Cross-border divorces : Comparing the Hong Kong requirements of “grounds” and “facts” for divorce with the filing requirements in France.
Considering a Divorce in Hong Kong — Grounds and Facts
In Hong Kong there is only one ground for divorce: that the “marriage has broken down irretrievably”. To prove this ground, a party must establish at least one of five facts: unreasonable behaviour, one year separation with consent, two year separation, desertion, or adultery.
Unreasonable Behaviour
To establish this fact, the petitioner must establish that the respondent has behaved in such a way that the petitioner cannot “reasonably be expected to live with the respondent”. Generally, the behaviour cannot be ancient history and should have occurred within the six months prior to filing the petition to avoid increased court scrutiny into the particular.
The courts encourage parties to attend mediation and attempt to resolve their differences rather than going to trial on the petition. Solicitors are required to advise their clients of this option and most solicitors actively encourage their clients to attend mediation. Thus, to keep matters amicable, most parties will allege mild facts and avoid “trashing” the respondent as tempting as that might be. For example, instead of saying “she is a cold fish!”, the petitioner might say that the respondent does not demonstrate love and affection; rather than “he completely ignores me!”, one might state that the respondent does not communicate.
One Year Separation with Consent
Where parties have lived apart for one year and the respondent consents to entry of a divorce decree, the petitioner can allege one year separation with consent and avoid having to make claims of unreasonable behaviour. The parties do not have to maintain separate residences to prove this fact, but the parties must reside in separately to clear scrutiny of this fact.
Two Year Separation
The differences between one year and two year separation is the length of time and the elimination of the requirement that the respondent consent to entry of a divorce decree.
Desertion
This fact is established when the petitioner establishes that the respondent has intentionally and permanently forsaken and abandoned the marriage without consent and without reasonable cause for one year prior to filing the petition.
Adultery
The mere fact that a party had an adulterous relationship is insufficient to prove the fact of adultery. The petitioner must also allege that s/he finds it intolerable to live with the respondent as a result. The courts have noted that the act of adultery must be voluntary and with a person of the opposite sex and, generally, the paramour must be named as a second respondent in the action.
Comparison with Proceedings in France
Currently in France there are two stages in the divorce proceedings. First you petition the courts to ask the authorisation to divorce, without invoking any grounds, and second when the judge is satisfied that the marriage has irretrievably broken down, you will file a petition based on grounds.
There are, however, two situations in France where there is no need to invoke grounds for divorce
- When both spouses agree on the divorce and the consequences thereof, in which case they will file the equivalent of a consent summons.
- When the spouses agree on the divorce, but not on the consequences of the divorce. In that case they will use the proceeding entitled “divorce by acceptance of the principle of the divorce” and will not state any grounds for divorce.
In the other cases they will have to state either a fault or irrevocable change of the matrimonial tie, the latter requiring the spouses to have been living apart for at least 2 years, and a clear intention to separate.
Why do French nationals intending to divorce should be aware of the grounds for Divorce in Hong Kong?
Because the French Judge, who has jurisdiction, may have to apply Hong Kong Law in some cases.
This is provided by Article 8 of the European Regulation 1259/2010 of 20 December 2010, referred to as Rome III, which lists criteria to be taken in to account to determine the applicable law with regards to grounds for divorce. The first one is that Hong Kong law will be applied if, for instance, both spouses were living in Hong Kong when Courts were petitioned.
As a result, French Nationals, even when petitioning in France, must make sure they fulfil the grounds for divorce provided by Hong Kong Law and ensure that they are aware of these issues. In addition, kindly note that divorce proceedings in France will undergo a major change from 1 January 2021, so advice on these matters is essential.
This article was written with my fellow family law practitioner in Hong Kong Kimberly Ann Dasse.
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