Petition & Joint Application

12-Month Rule

Generally speaking by section 12 Matrimonial Causes Ordinance (Cap 179) no petition for divorce shall be presented to the court before the expiration of the period of 1 year from the date of the marriage.

However, by section 12(2) A judge of the court may, on an application made to him, allow the presentation of a petition for divorce within the specified period on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent. – For the rules and procedure for making an application under section 12 see Rule 5 Matrimonial Causes Rules (Cap 179A).

However this is generally regarded as a very difficult hurdle to cross for obvious public policy reasons  – being very drunk one night in Las Vegas is not going to be a sufficient ground. ‘Exceptional depravity’ is generally hard to establish and in any event where the couple are no longer living together it is often far less costly to simply wait for 12-months to elapse. However in serious cases it is possible and, as the statue says, in determining the application the judge must also have regard to the interests of any ‘child of the family’ as defined by section 2 of the Matrimonial Proceedings and Property Ordinance (Cap 192) and to the question whether there is reasonable probability of a reconciliation between the parties during the specified period.

After 12-months has elapsed, by section 11 Matrimonial Causes Ordinance (Cap 179), the sole ground for presenting or making a petition or application for divorce shall be that the marriage has broken down irretrievably and proceedings for divorce shall be instituted either (a) by a petition for divorce; or (b) by an application for divorce.

Petition

For reasons which are perhaps self-evident most divorce proceedings are begun by Petition – meaning either a husband or wife will be the person who starts the divorce process. By s.11A (1) a petition for divorce may be presented to the court by either party to a marriage. By s. 11A(2) the court hearing a petition for divorce shall not hold the marriage to have ‘broken down irretrievably’ unless the petitioner satisfies the court of one or more of the following facts –

(a) that the respondent has committed adultery* and the petitioner finds it intolerable to live with the respondent (emphasis added);
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the parties to the marriage have lived apart for a continuous period of at least 1 year immediately preceding the presentation of the petition and the respondent consents to a decree’s being granted;
(d) that the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition;
(e) that the respondent has deserted the petitioner for a continuous period of at least 1 year immediately preceding the presentation of the petition.

*Note: whilst this is unlikely to affect many couples in Hong Kong there are still some old men living in and around Yuen Long – often recognisable by the big smiles on their faces – to whom  “adultery” (通姦) does not include sexual intercourse by him with a concubine (tsip) if he is a party to a lawful customary marriage celebrated in accordance with section 7 of the Marriage Reform Ordinance (Cap 178). See section 2 Matrimonial Causes Ordinance (Cap 179)

Application

Where a divorce is mutually agreed between the parties, by section 11B(1) an application for divorce shall be made to the court jointly by both parties to the marriage. The ‘shall’ here means that such an application must or can only be made by both parties. By section 11B(2) the court hearing an application for divorce shall not hold the marriage to have broken down irretrievably unless it is satisfied as regards either or both of the following facts:

(a) that the parties to the marriage have lived apart for a continuous period of at least 1 year immediately preceding the making of the application; and [‘either or both’ above means ‘or’ should properly be inserted here]

(b) that not less than 1 year prior to the making of the application a notice under subsection (3), signed by each of such parties was given to the court and that the notice was not subsequently withdrawn.

Subsection (3)(a) requires that the parties to a marriage may at any time give to the court a written notice signed by each of them of their intention to apply to the court to dissolve their marriage. Subsection 3(b) further stipulates that a notice under this subsection shall be in such form as is for the time being specified in rules made under section 54, which merely prescribes the standard Form to be used in order to give such notice.

For the rules and procedure for presenting a Petition or Joint Application under section 11A or  11B see Rule 12 Matrimonial Causes Rules (Cap 179A). See also Form 3 and Form 4  (scroll down) as mentioned in Rule 12(7)

The following, very basic, procedural steps are taken from the Judiciary website. But see also my general remarks on divorce elsewhere on this site here.

How to Apply for a Divorce

If you are petitioning for divorce on your own account, fill in a petition form and take it personally to the Family Court Registry, M2, Wanchai Law Courts, Wanchai Tower, 12 Harbour Road, Hong Kong.

If you and your spouse have agreed to jointly apply to the court, you should together fill in a joint application form and submit it as above.

How soon after marriage can I petition for divorce? Unless the court allows otherwise, you can start a petition for divorce only if you have been married for at least 1 year.
Must I explain why I want a divorce? You must be able to prove that you have reasons (or “grounds”) for saying that the marriage is at an end. The term the court uses is “the marriage has irretrievably broken down”.The court will accept one or more of the following grounds as proof:
  • that your spouse has committed adultery and that you find it intolerable to live with him / her
  • that your spouse has behaved in such a way that you cannot be reasonably expected to live with him / her
  • that you and your spouse have lived apart for a continuous period of at least 1 year before filing the petition and that he / she agrees to a divorce
  • that you and your spouse have lived apart for a continuous period of at least 2 years before filing the petition (in such a case your spouse’s consent to a divorce is not required)
  • that your spouse has deserted you for a continuous period of at least 1 year before filing the petition

In the case of a joint application, you and your spouse must prove to the court (a) that you have lived apart from each other for a continuous period of at least 1 year before making the application; or (b) that not less than 1 year prior to the making of the application a notice (Form 2E) signed by each of such parties was given to the court and that the notice was not subsequently withdrawn.

If there are children of the family who are under the age of 18, you must include in your petition your proposal as to their custody and access. If you wish to apply for ancillary relief such as maintenance, transfer of property, division of matrimonial assets, etc., you should also pray so in your petition.

Will I need a lawyer? – Submitting a petition or joint application for divorce puts legal proceedings in motion, so you will find it helpful to seek legal advice before any submission is made.You will particularly need a lawyer in the following circumstances:
  • your spouse does not agree to a divorce
  • neither of you can agree on the arrangements to be made for the children or on financial matters

In seeking legal advice, you may wish to take advantage of the Legal Aid Scheme administered by the Legal Aid Department (Tel: 2537 7677) or alternatively choose your own solicitor. For details, please refer to the “How to apply for Legal Aid in Civil Cases” leaflet which is available at all Courts, Legal Aid Department office and Public Enquiry Service Centres of District Offices. Each year, the Law Society of Hong Kong publishes a Directory of Hong Kong Law Firms, which includes a list of firms handling matrimonial cases. This directory can be consulted in Public Enquiry Service Centres of District Offices, public libraries and at the office of the Law Society of Hong Kong.

Please note that while the staff of the Family Court Registry will seek to give you every assistance relating to divorce procedures, they are not lawyers and they are not permitted to offer legal advice.

The Duty Lawyer Service’s free Legal Advice Scheme provides members of the public with preliminary legal advice including matrimonial law in District Offices.

Can I seek family mediation? – Family mediation is a problem-solving process designed to help couples who are divorcing or separating reach their own mutually acceptable agreements about ongoing arrangements for their children and / or how to resolve financial matters.It is a voluntary process in which a specially trained, impartial third person, the mediator, seeks to help both sides to communicate effectively and to negotiate issues in dispute, all in a completely confidential setting. You can contact the Mediation Co-ordinator’s Office for enquiries.
Petition for DivorceWhat forms do I have to fill in?
To start a petition, you need to fill in:
Form 2 Petition
Form 2B Statement as to the arrangements for children (if applicable)
Form 3 Notice of Proceedings
Form 4 Acknowledgement of Service (case number and name of parties only)

Joint Application
In the case of a joint application, you need to fill in:

Form 2C Joint application
Form 2D Statement as to the arrangements for children (if applicable)

All forms you need are available from the Family Court Registry and may be completed in English or Chinese. When you have filled them in, take them to the Family Court Registry for filing, together with your original marriage certificate or a certified true copy. The filing fee is $630. You will be given a case number, which must be marked on any subsequently filed documents.

How will my petition be served on my spouse? – Now that legal proceedings have started, you are known as the “petitioner” and your spouse is known as the “respondent”. After filing your petition, you must arrange for a sealed copy of it to be served on every other party to the proceedings, either by hand or by post. Note that you must not serve the petition yourself on the respondent. Instead you must use the services of a third person or send the petition by post. (In the case of joint applications, there is no need to arrange for service on the other party.)
What should I do after filing a petition or joint application? – You should next apply to the Registrar for directions to set down the case for trial, using an application form obtainable from the Family Court Registry. Your petition or application will be set down for hearing in one of the following lists:
List
Fee
Special procedure list
$630
Defended list
$1,045

Where a petition is concerned, before the case can be set down the Registrar must be satisfied that the petition has been served on the respondent. This can be proved either by showing that respondent has completed and returned to the Registrar a Form 4, or by having the person who served the documents on the respondent file an affirmation to that effect. Joint applications will be set down provided that the relevant documents are in order.

The Registrar will make directions on the date, place and time of trial and will notify you and the other parties.

What happens next?Special Procedure List If you have petitioned for divorce but the respondent does not file an answer, the petition will be set down in the Special Procedure List. Joint applications also come under the Special Procedure List.After the Registrar has given directions for trial, he will consider the evidence you have filed. If he is satisfied that you have proved the contents of the petition or application, he will make and file a certificate to that effect. Both parties will receive a copy, endorsed with the terms they have agreed.There is no need for either party to attend the hearing. The court will grant a decree nisi dissolving the marriage. Defended List

Where the petition for divorce is made and the respondent has filed an answer, the cause will be set down in the Defended List. In such cases, the court will either grant a decree nisi dissolving the marriage or will dismiss the petition if insufficient evidence is found. In the event of court granting the decree of divorce, if there are children of the family whose question of custody and access need to be dealt with by the court, or if there are applications for ancillary relief by either party, the court will adjourn these matters to Chambers with directions for social investigations report and filing of affidavit of means by the parties where appropriate.
When will my divorce become final?  – Six weeks after the court has granted a decree nisi, you can apply for your decree to be made absolute by sending to the court a completed “Notice of Application for Decree Nisi to be made Absolute”, using Form 5 (for a petition) or Form 5A (for a joint application).If there are children of the marriage, the court has a duty to consider the arrangements for their welfare, even if the children are over 18 but are still receiving full-time education. The decree nisi will not be made absolute until the court is satisfied with the arrangements for them.The Registrar will issue a Certificate of Decree Absolute to each party if he is satisfied that the statutory requirements have been complied with.
Can I see the court records of my case?  Either party can inspect the court records of their case at the Registry on payment of the prescribed fee of $18.
Performance Pledge
Waiting Time

i) Dissolution of marriage – from setting down for trial to actual hearing

– Special Procedure List

50 days

– Defended List (1-day hearing)

110 days

ii) Financial applications – from filing of summons to hearing (1-day hearing)

110-140 days
  • Wherever possible, the Judiciary will reply at once to correspondence from members of the public. In any case, we will issue an interim reply within 10 days and a full response within 30 days of receiving such correspondence.
  • We welcome all comments and suggestions for improving our services. Please send them to the Judiciary Administrator at the High Court, 38 Queensway, Hong Kong.

How to contact us?

Business Hours

Family Court Registry and Accounts Office

Monday to Friday 9:00 a.m. to 1:00 p.m.
2:00 p.m. to 5:00 p.m.
Saturday 9:00 a.m. to 12:00 noon
(Closed on Sundays and Public Holidays)