Divorce
Choosing a subtopic
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Marriage and cohabitant issues
- A. An overview
- B. Types of marriages in Hong Kong
- C. Registration and celebration of marriage
- D. Offences under the Marriage Ordinance
- E. Nuptial agreements
- F. Marrying non-HK residents
- G. Benefits and welfare enjoyed by married couples
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H. Bigamy
- 1. Is it still bigamy if I had same-sex marriage in a foreign country and then married another person in Hong Kong afterwards?
- 2. In a divorce petition, one of the parties has been ordered by the court to pay for the opposite party an ancillary relief. If the paying party later found out that the receiving party had been lawfully married to someone else in Mainland China when they married, can that party (a) set aside the decree absolute based on the new evidence, (b) request the court to declare the marriage null or void on the ground of bigamy, and (c) request to disentitle the opposite party to ancillary relief?
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I. Cohabitation
- A. The absence of factual marriage in Hong Kong
- B. Estate provision
- C. Protection from violence in cohabitation
- D. Parental Rights
- E. Upon Separation
- 1. What are the differences between a prenuptial agreement and a cohabitation agreement?
- 2. My partner is a Hong Kong resident while I am not. We have been living together for 1 year. Is our child be entitled to Hong Kong permanent residency even if we are unmarried?
- 3. Do I bear any responsibilities if I cause damages to the house or the neighbourhood where I cohabit with my partner?
- J. Transsexual marriage
- K. Same-sex marriage / Civil partnership
- L. Bogus marriage
- M. Records of marital status
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N. FAQ
- 1. Is there any age restriction for marriage in Hong Kong?
- 2. My wife is an Australian. I want her to come to Hong Kong and live with me. What do I have to do?
- 3. I got married in the Mainland China a few years ago but my husband has left me and disappeared. I want to marry another man in Hong Kong now. Is there any risk that I may be committing bigamy?
- 4. I suspect that my wife is having an affair with another man. Can this be a reason for divorce?
- 5. I am a woman cohabitating with my boyfriend. We have no plans of getting married. Would this jeopardize us in the legal sense?
- 6. I am getting married very soon. My father is very rich and he does not trust my fiancée. He has suggested me to make a nuptial agreement with my fiancée. What is a nuptial agreement?
- 7. Do nuptial agreements have any legal status?
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Parental rights and duties
- 1. Do fathers have parental rights over illegitimate children? If an illegitimate child is born without acknowledging the father during the birth registration, can the father claim the parental rights later? Is consent from the mother needed? Is any proof (e.g., DNA reports) needed?
- 2. Do same-sex couples enjoy the same parental rights as opposite-sex couples in Hong Kong?
- 3. Can a young person under the age of 18 receive a plastic surgery despite the opposition from parents?
- 4. Possible offences related to parental duties
- 5. Corporal punishment vs violence: what is the boundary?
- Custody of children and guardianship
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Divorce
- A. General description of the legal consequences of divorce
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B. Resolution methods other than divorce
- 1. Apart from going to Court to apply for a divorce, are there any other channels through which unhappy spouses can settle their differences? What are the differences between these other channels and divorce proceedings?
- 2. What are the advantages of Family Mediation?
- 3. Are there any formal organizations or voluntary agencies providing family mediation services to couples before or after divorce?
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C. Pre-conditions for divorce
- 1. What can I do if I cannot afford to retain a lawyer to represent me in divorce or matrimonial proceedings?
- 2. Can I get a divorce in Hong Kong? What conditions do I need to comply with?
- 3. Shall I choose to apply for divorce in Hong Kong?
- 4. Other than the marriages registered under the Marriage Ordinance in Hong Kong, what other types of marriages are recognized by Hong Kong law? Can a couple whose marriage is registered in a foreign country, or a couple married through traditional Chinese customs, or a non-registered couple apply for divorce in Hong Kong?
- 5. Will a concubine and the relevant children be legally recognized? Can they be parties in divorce proceedings?
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D. Procedures and grounds for divorce
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1. What are the grounds for divorce? Must I explain why I want a divorce?
- A. Adultery
- B. Unreasonable behaviour
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C. Desertion
- 1. If my spouse has failed to give me money for household expenses for a year, does it amount to desertion?
- 2. If my spouse has just gone away for more than a year without telling me the reason, can I get a divorce out of desertion? Do I need to show his/her intention?
- 3. If my spouse has gone away for more than a year for a reason (e.g., wandering around the world, debt evasion), can I get a divorce out of desertion?
- D. Separation
- 1. What are the essential differences in establishing the irretrievable breakdown of marriages by proving “fault” facts and “non-fault” facts?
- 2. If my spouse is sent to jail, can I apply for a divorce without his / her consent? What ground can I rely on? If the jail term is less than 2 years, can the petitioner rely on the desertion ground? For a jail term of 2 years or longer, can the two years’ separation ground be applied?
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2. How do I apply for divorce? (with a brief summary of the relevant procedures)
- 1. What should I do when I receive a divorce petition from my spouse? Should I employ a lawyer or can I handle it myself?
- 2. I got married to my partner outside Hong Kong; however, we lost our marriage certificate and the overseas government did not re-issue the marriage certificate to us. How can I apply for divorce in Hong Kong under the circumstances?
- 3. My spouse has disappeared for many years and I do not know his/her whereabouts. How can I serve the petition and other documents to him/her?
- 4. If the petitioner and the respondent still live together, can the petition be served on the respondent by the petitioner directly?
- 5. My spouse insists on not returning the Acknowledgment of Service (Form 4). Is the petition suspended?
- 6. Where a decree nisi is granted, under what circumstances would the decree not be made absolute or be revoked?
- 7. After the decree nisi is granted, if the petitioner does not apply for the decree to be made absolute (Form 5), can the respondent initiate the process by filling the Form 5?
- 3. When will the divorce proceedings be completed? How long will it take before I can marry again?
- 4. What will happen if a party passes away when the decree nisi was granted but is not made absolute?
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1. What are the grounds for divorce? Must I explain why I want a divorce?
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E. Matters affecting children
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1. Custody, care and control, and access
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A. Application
- 1. What factors will be considered by the Court in awarding custody of a child to either or both parties?
- 2. My daughter has been living with my husband since I separated from him two years ago. How likely is that I will be granted custody of my daughter if I apply for a divorce now?
- 3. Can a custody order be varied?
- 4. What happens if no party wishes to take custody of the children?
- 5. What does a social welfare report do in assessing the provision of children's custody?
- 6. If a party does not agree with the social welfare report, can he/she ask the court to reject it and call for another report?
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B. Enforcement
- 1. My wife wants to apply for divorce and she plans to take our only daughter out of Hong Kong during the waiting period. Can I stop her?
- 2. My wife refuses to see me and let me know where our daughter is, what should I do? How can I prevent my spouse from snatching our child?
- 3. Can one parent take a child out of Hong Kong upon the grant of a custody order?
- 4. What decisions can be made for children if a parent is granted custody of his/her children?
- 5. What decisions can be made for children by one parent if both parents are granted joint custody of their children?
- 6. What can a parent do if both parents are granted joint custody of their children and they have parenting disputes?
- 7. Does a parent who is granted sole custody of his/her children need to consult the other parent before making decisions for their children?
- 8. Can the custodial parent transfer custody to the non-custodial parent in private?
- 9. What are staying access and supervised access?
- 10. If the non-custodial parent is given access, can the custodial parent stop the other from visiting his/her children?
- 11. If the non-custodial parent is stopped by the other from visiting his/her children without reasonable grounds, what can he/she do?
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A. Application
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2. Maintenance
- 1. What factors will the Court consider in assessing the provision of child maintenance?
- 2. I got divorced and my ex-wife re-married. I can stop giving her financial support, but do I still need to pay for my child's maintenance for our child who lives with her?
- 3. My wife from mainland China gave birth to a child who is proved by the DNA test to be not my son. If I get divorced, do I still need to pay for the child's maintenance? Does she need to obtain Hong Kong permanent residency before we process the divorce?
- 3. Children's Dispute Resolution
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1. Custody, care and control, and access
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F. Financial matters
- 1. How would the Court deal with or divide the matrimonial properties between the husband & wife upon divorce?
- 2. What factors will the Court consider in assessing the kind and the amount of maintenance (or alimony) to be made for a spouse?
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3. What guidelines and steps will the court follow to decide on the division of matrimonial finance?
- 1. A married couple together owns a flat while the husband contributed to the majority part of the mortgage loan. Upon divorce, can the husband claim absolute ownership of the flat and refuse to split the proceeds derived from selling the flat?
- 2. If the property is owned by a party in mainland China or overseas, how would the party's interest be considered by the court in awarding granting ancillary relief?
- 3. If the property is co-owned by a party and his/her mother (a) in a joint tenancy or (b) in a tenant in common, how would the party's interest be considered by the court in granting ancillary relief?
- 4. Are the pensions of my husband/wife counted as assets when the court deals with the matrimonial property?
- 5. Does financial support from parents of a divorcing party considered as financial resources of the party?
- 6. Is property purchased during the separation period counted as the financial resources of the purchasing party?
- 7. To avoid the maintenance order, my husband deliberately quit his job and applied for Comprehensive Social Security Assistance (CSSA) upon receipt of the divorce petition. When considering his earning capacity and income, would that kind of trick work?
- 8. If my spouse owes me a debt, can I claim back the money in the divorce proceedings? Would it be counted as the financial resources of the parties? Would the court handle the debt case?
- 4. Can husband obtain maintenance from wife?
- 5. What kind of maintenance order (or financially related order) is the Court empowered to make?
- 6. What is “nominal maintenance”? Should I apply for such maintenance from my spouse in divorce proceedings?
- 7. If there is a change of financial status for a spouse, will the maintenance order be subsequently adjusted or varied by the Court?
- 8. If I got a large sum of money after the divorce (e.g. winning lottery or inherit a fortune from family), do I have to share with my ex-spouse from the maintenance?
- 9. What can the wife/husband do if the other party refused or failed to make maintenance payment?
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10. Financial Dispute Resolution
- 1. If the other party fails to submit the Financial Statement (Form E), what should the party do?
- 2. Is there any penalty for not submitting Form E?
- 3. Will the FDR hearing be suspended if the other party does not submit Form E?
- 4. What can a party do if he/she knows that the other party does not make full and frank disclosure in Form E?
- 5. Does the court investigate the truthfulness and wholeness of the information stated in Form E?
- 11. Pilot Scheme on Private Adjudication of Financial Disputes in Matrimonial and Family Proceeding
- G. Matrimonial home
- H. Costs
- I. Flowchart for divorce in Hong Kong
- J. Overseas divorce and legal separations
- K. Reciprocal enforcement of civil judgments of matrimonial and family cases in Hong Kong and Mainland China
- L. Case Illustration
- Protection for victims in domestic violence
- Surrogacy and artificial insemination
- Abortion
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