Family law in Hong Kong: overview
A Q&A guide to family law in Hong Kong.
The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.
To compare answers across multiple jurisdictions visit the Family Country Q&A tool.
This Q&A is part of the multi-jurisdictional guide to Family law. This contribution, in its original form, first appeared in Family Law (2nd edition), General Editor James Stewart of Penningtons Manches LLP.
Family Law was published in association with the International Academy of Matrimonial Lawyers.
For a full list of jurisdictional Q&As visit www.practicallaw.com/family-mjg.
Jurisdiction and conflict of law
Sources of law
The main ordinances in Hong Kong governing divorce, children's welfare and financial relief on the breakdown of a marriage are the:
Matrimonial Causes Ordinance (Chapter 179) (MCO).
Matrimonial Proceedings and Property Ordinance (Chapter 192) (MPPO).
Marriage Ordinance (Chapter 181).
Guardianship of Minors Ordinance (Chapter 13) (GMO).
Family proceedings (save for wardship proceedings) are initiated in the District Court where there is a separate family jurisdiction. There is also a Court of First Instance (High Court) jurisdiction (for wardship proceedings and for cases transferred from the District Court) and Appellate jurisdiction in the Court of Appeal and Court of Final Appeal although there is no separate family court in any of the higher jurisdictions. Proceedings in the District Court and the Court of First Instance (High Court) are usually not open to the public. Proceedings in the Court of Appeal and the Court of Final Appeal are in open court. Where the proceedings are not open to the public, the parties are normally anonymous unless the court otherwise directs (for example, the Court of Final Appeal directed that there should be no anonymity in two applications for leave to appeal under FAMV Nos. 38 & 39 of 2014 after consultation with the parties).
Hong Kong courts have jurisdiction in proceedings for divorce if either of the parties to the marriage:
Is domiciled in Hong Kong at the date of the petition or application.
Is habitually resident in Hong Kong throughout the three years immediately preceding the date of the petition or application.
Has a substantial connection with Hong Kong at the date of the petition or application.
An application for an order for financial relief, including orders in relation to property, can be made within divorce or judicial separation proceedings in Hong Kong.
An application for an order for financial relief, including orders in relation to property, can also be made in Hong Kong by a party whose marriage has been dissolved or annulled or parties that have been legally separated, by means of judicial or other proceedings in a place outside Hong Kong.
Certain jurisdictional requirements, analogous to the court's jurisdiction in divorce proceedings in Hong Kong, must be met for the court to entertain such an application. Leave of the court to make an application must first be obtained.
Child custody and maintenance can be dealt with within divorce proceedings under the Matrimonial Proceedings and Property Ordinance (Chapter 192) or without, under the Guardianship of Minors Ordinance (Chapter 13).
Domicile and habitual residence
Where divorce jurisdiction is concerned, a person acquires domicile in Hong Kong if he is present in Hong Kong and intends to make a home in Hong Kong for an indefinite period. As far as habitual residence is concerned, and in the context of divorce jurisdiction, a period of residence in a place one considers "home" and to which one routinely returns, denotes habitual residence.
For financial orders under Part IIA of the Matrimonial Proceedings and Property Ordinance, jurisdictional requirements are analogous to the court's jurisdiction in divorce proceedings.
A child's domicile is that of the country or territory with which he or she is for the time being most closely connected. Where the child's parents are domiciled in the same country or territory and the child has his or her home with either or both of them, it is presumed, unless the contrary is proved, that the child is most closely connected with that country or territory. Where the child's parents are not domiciled in the same country or territory, and the child has his or her home with one of them but not with the other, it is presumed, unless the contrary is proved, that the child is most closely connected with the country or territory in which the parent with whom he has his or her home is domiciled.
The habitual residence of a child living with both parents is that of the parents. The habitual residence of the parents refers to their abode in a particular place or country which they have adopted voluntarily and for settled purposes as part of the regular order of their life for the time being, whether of short or long duration.
Conflict of law
A party applying for a stay of proceedings in favour of a foreign jurisdiction must take out an inter-partes summons supported by an affidavit.
Hong Kong has adopted the principles set out by the UK House of Lords in Spilada Maritime Corp v Cansulex Ltd, The Spiliada  AC 460, in Louvet v Louvet  1 HKLR 670, and more recently confirmed by the Court of Appeal in DGC v SLC nee C  HKLFR 160, governing the stay of Hong Kong proceedings by reason of forum non conveniens or forum conveniens.
The single question to be decided is whether there is some other available forum having competent jurisdiction, which is the appropriate forum for the trial of an action, that is, where the action can be tried more suitably in the interests of all the parties and the ends of justice.
The applicant for the stay must establish both that Hong Kong is not the natural or appropriate forum ("appropriate" in this context means the forum that has the most real and substantial connection with the action); and there is another forum available which is clearly or distinctly more appropriate than Hong Kong.
Failure by the applicant to establish these two matters at this stage is fatal to the application.
If the applicant can establish both of the two matters above, the claimant in the Hong Kong proceeding must show that he or she will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong.
If the applicant can establish the above loss of advantage, the court must balance the advantages of the alternative forum with the disadvantages that the claimant may suffer. Deprivation of one or more personal advantages is not necessarily fatal to the applicant for the stay if they can establish to the court's satisfaction that substantial justice will be done in the available appropriate forum.
Pre- and post-nuptial agreements
Validity of pre- and post-nuptial agreements
In SPH v SA  17 HKCFAR 364, the Court of Final Appeal stated that the principles enunciated in UK Supreme Court decision of Radmacher v Granatino  AC 534 should also be regarded as the law in Hong Kong. In common with the UK Supreme Court, the Court of Final Appeal in Hong Kong saw no reason to distinguish between ante-nuptial agreements and separation agreements.
In relation to separation or post-nuptial agreements, the Court of Final Appeal stated that the Hong Kong Court of Appeal had already accepted in L v C  3HKLRD 819,  HKFLR 334 that the old rule that agreements providing for future separation are contrary to public policy is obsolete and the Court of Final Appeal endorsed this Judgment. They agreed with the UK Supreme Court that this should not be restricted to separation agreements, and further stated that none of the supposed distinctions between them can any longer be supported. However, the Court of Final Appeal accepted that there may be circumstances where it is appropriate to distinguish between an ante-nuptial and a separation agreement.
In L v C, the Court of Appeal confirmed that when parties that are legally competent to manage their own affairs freely enter into a bargain for the division of matrimonial assets, the courts will hold the parties to their bargain, unless there are either:
Unfair or unconscionable circumstances surrounding the conclusion of the agreement.
Material and drastic unforeseen circumstances arising thereafter, which could cause manifest prejudice to one of the parties.
Divorce, nullity and judicial separation
Recognition of foreign marriages/divorces
The general rule is that a marriage celebrated outside of Hong Kong is recognised in Hong Kong, if celebrated in accordance with the law in force at the time and in the place where it was celebrated.
Hong Kong courts recognise an overseas divorce in Hong Kong if either spouse at the date of the institution of the proceedings in the country in which it was obtained, was either:
Habitually resident in that country.
A national of that country.
See Question 26.
The sole ground for presenting or making a petition or application for divorce is that the marriage has broken down irretrievably. The court hearing a petition for divorce must not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts:
The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent.
The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.
Both parties to the marriage have lived apart for a continuous period of at least one year immediately preceding the presentation of the petition and the respondent consents to a decree being granted.
Both parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.
The respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition.
There is a restriction on applying for divorce within the first year of marriage, although the court may allow a petition to proceed within the first year of marriage on the grounds of exceptional hardship.
There is also provision in the Matrimonial Causes Ordinance (Chapter 179) (MCO) for a joint application for divorce based on the parties' separation of at least one year.
A petition for a decree of nullity can be presented to the court by either party to a marriage on the grounds provided in section 20 of the MCO, which provides for void and voidable marriages.
A petition for judicial separation can be presented to the court by either party to a marriage on one or more of the five facts above. However, with a judicial separation, as distinct from divorce, the court is not concerned with irretrievable breakdown and can grant a decree of judicial separation if it is satisfied on the evidence of any of the five facts. A petition can also be presented within the first year of marriage. Judicial separation is not often used and usually sought where one or both of the parties are opposed to divorce.
Finances/capital and property
The court has powers to make orders for (sections 4, 5, 6 and 6A, Matrimonial Proceedings and Property Ordinance (MPPO)):
Periodical payments, secured periodical payments and lump sum orders for the other party to the marriage.
Periodical payments, secured periodical payments and lump sum orders for the child of the family.
Transfer and settlement of property.
Variation of settlements and sale of property.
It is only on the grant of a decree absolute that the court can make orders as above in respect of sections 4, 6 and 6A of the MPPO. The court has jurisdiction over the parties' assets wherever they are located.
The court is obliged to consider all the factors in section 7(1) of the Matrimonial Proceedings and Property Ordinance:
The income, earning capacity, property and other financial resources that each of the parties to the marriage has or is likely to have in the foreseeable future.
The financial needs, obligations and responsibilities that each of the parties to the marriage has or is likely to have in the foreseeable future.
The standard of living enjoyed by the family before the breakdown of the marriage.
The age of each party to the marriage and the duration of the marriage.
Any physical or mental disability of either of the parties to the marriage.
The contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family.
In the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
In LKW v DD [FACV 16 of 2008], the Hong Kong Court of Final Appeal considered the proper approach to making financial provision orders on and after the dissolution of a marriage. The court identified four principles from White v White  1 AC 1996 and various landmark English cases which followed. The principles are the:
Objective of fairness.
Rejection of any gender or role discrimination.
Yardstick of equal division that must be departed from only for good articulated reasons.
Rejection of minute retrospective investigation.
With a view to achieving a fair financial outcome, the court further provided a framework as guidance for a systematic consideration of issues relevant to the court's exercise of its discretion under section 7 of the Matrimonial Proceedings and Property Ordinance (see Question 9):
The final resources of each of the parties as at the date of the hearing must be ascertained.
The parties' financial needs must be assessed.
If there are surplus assets after the parties' needs have been catered for, the sharing principle must be applied to the parties' total assets, leaving the "needs" question previously considered to be dealt with under that principle.
Whether good reasons exist for departing from the principle of equal division.
To decide on the award, taking into account the overall impact of all relevant factors.
In relation to maintenance pending legal proceedings, the relevant legal principles are set out by Hartmann JA (as he then was) in HJFG v KCY  (CACV127/2011 1HKLRD 95. The governing principles require the court to balance the reasonable needs of the applicant spouse (and the children where applicable) against the paying spouse's ability to pay by using a broad-brush approach. The sole criterion to be applied in determining the application is "reasonableness", which is synonymous with "fairness".
The court must consider all the factors in section 7(1) of the Matrimonial Proceedings and Property Ordinance, namely the:
Income, earning capacity, property and other financial resources that each of the parties to the marriage has or is likely to have in the foreseeable future.
Financial needs, obligations and responsibilities that each of the parties to the marriage has or is likely to have in the foreseeable future.
Standard of living enjoyed by the family before the breakdown of the marriage.
Age of each party to the marriage and the duration of the marriage.
The physical or mental disability of either of the parties to the marriage, if any.
Contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family.
Value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring, in the case of proceedings for divorce or nullity of marriage.
See also Question 9.
There is no formulaic assessment for children's maintenance. The relevant statutory factors to be considered are (section 7(2), Matrimonial Proceedings and Property Ordinance):
Financial needs of the child.
Income, earning capacity (if any), property and other financial resources of the child.
The physical or mental disability of the child, if any.
Standard of living enjoyed by the family before the breakdown of the marriage.
Manner in which the child was being, and in which the parties to the marriage expected the child, to be educated.
Reciprocal enforcement of financial orders
Hong Kong has reciprocal arrangements, under the Maintenance Orders (Reciprocal Enforcement) Ordinance (Chapter 188), for facilitating the recovery of maintenance by or from persons in Hong Kong from or by other persons in reciprocating countries.
Reciprocating countries for maintenance orders include:
The Canadian Provinces of Manitoba, Saskatchewan and Ontario.
The Isle of Man.
Reciprocating countries for maintenance orders other than affiliation orders (orders adjudging, finding or declaring a person to be the father of a child, whether or not it also provides for the maintenance of the child) are:
Commonwealth of Australia and its territories.
The Canadian Province of British Columbia.
The Solomon Islands.
Financial relief after foreign divorce proceedings
An application for an order for financial relief, including orders in relation to property, can be made in Hong Kong by a party whose marriage has been dissolved or annulled or the parties to the marriage have been legally separated, by means of judicial or other proceedings, in a place outside Hong Kong (Part IIA, Matrimonial Proceedings and Property Ordinance).
Certain jurisdictional requirements, analogous to the court's jurisdiction in divorce proceedings in Hong Kong, must be met for the court to entertain such an application. Leave of the court to make an application must first be obtained. If leave is granted, the court also has power to make interim maintenance orders to avoid transactions intended to defeat applications for financial relief and to prevent transactions intended to defeat prospective applications for financial relief.
The court can make such orders as it thinks fit for the "custody and education" of any child of the family under the age of 18 (section 19, Matrimonial Proceedings and Property Ordinance). The court can make orders regarding the custody of the minor and the right of access to the minor of either of his or her parents (section 10, Guardianship of Minors Ordinance).
The first and paramount consideration in an application under either of the above ordinances is the best interests of the child.
The term "custody" is not defined in the legislation. Courts have interpreted it to mean:
Making the decisions of a child's life.
Decisions of real consequence in safeguarding and promoting the child's health, development and general welfare.
Custody can be held jointly by the parents, or solely by one parent. Hong Kong does not have the concept of "parental responsibility" as yet.
Following the breakdown of a marriage, the court makes orders providing for the custody, care and control of and access to the child or children. The concept of "care and control" is not defined in the legislation. It is generally said to mean the day-to-day looking after of the child or children.
Orders for care and control are usually to one parent solely. Joint care and control orders can be made, usually only by consent, as they normally require a high level of co-operation between the parents.
Access is the right of the child or children to see the non-custodial parent, or in the case of joint custody, the right of the child to see the parent without care and control. The normal order is for reasonable access, with details to be worked out between the parents. Alternatively, access can be defined. Access can also be supervised.
In the case of a child or children of parents who are not married, the mother has custody of the child or children. The father will only have rights as may be ordered by a court.
Leave to remove/applications to take a child out of the jurisdiction
When a court in Hong Kong makes a custody order, it also directs that the child or children cannot be removed from Hong Kong without leave of the court. There is therefore a positive requirement to make an application to the court for leave to permanently remove a child or children from the jurisdiction of Hong Kong.
In SMM v TWM [CACV 209/2009], the Court of Appeal concluded that the principles in Payne v Payne  Fam 473 should be applied and adopted in Hong Kong. The two propositions applied by the Hong Kong court are that:
The welfare of the child is the paramount consideration.
Refusing the primary carer's reasonable proposals for relocation is likely to impact detrimentally on the welfare of the child.
It is usually the primary carer parent who makes the application and generally the motivation arises out of the parent's remarriage or an urge to return home. The other parent's opposition usually centres on a reduction in contact, influence and being a part of the child's life.
The removing parent's application must be:
Genuine and not motivated by a selfish desire to exclude the other parent from the child's life.
Realistic, well thought out and investigated.
Assuming the above conditions are satisfied, the remaining parent's opposition is given careful consideration including the extent of the detriment to him or her and his or her future relationship with the child or children in the event of removal. The impact on the removing parent of a refusal of his or her application is also considered. The child's welfare is ultimately the paramount consideration.
Surrogacy and adoption
The law on surrogacy in Hong Kong is governed by the Human Reproductive Technology Ordinance (HRTO) (Chapter 561, Laws of Hong Kong).
Only the gametes of a married couple can be used in a surrogacy arrangement (section 14, HRTO). The Code of Practice on Reproductive Technology and Embryo Research prepared and maintained by the Council on Human Reproductive Technology, a statutory body established under section 4 of the HRTO, further provides, among other things, that a reproductive technology procedure can only be provided to a wife who is unable to carry a pregnancy to term and for whom no other treatment option is practicable.
The surrogate mother is the legal mother of the child at birth by virtue of her giving birth to the child. In order to obtain parental rights to the child, the commissioning couple must apply to the court for a parental order in their favour in place of the surrogate mother. The court can make an order providing for a child to be treated in law as the child of the parties to a marriage in circumstances where the child has been carried by a woman other than the wife, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination following the use of gametes of one or both of the spouses (section 12, Parent and Child Ordinance (PCO) (Chapter 429, Laws of Hong Kong)). Therefore, only those who can apply to the court for the parental order can use a surrogacy arrangement to become the legal parents of the child.
The commissioning couple must apply for the order within six months of the birth of the child (section 12, PCO):
The child's home must be with the husband and wife or either of them.
The husband or wife or both of them must be domiciled in Hong Kong and either:
habitually resident in Hong Kong throughout the immediately preceding period of one year; or
have a substantial connection with Hong Kong.
In considering an application for an order under section 12 of the PCO, the court must be satisfied, among other things, that both the commissioning couple and the surrogate mother have a full understanding of the matter and have unconditionally agreed to the making of such an order. As a matter of good practice, the surrogacy agreement must clearly state that the:
Implications of the necessary arrangements and procedures have been fully and clearly explained to each of the parties by their respective legal and medical representatives.
Parties have had the opportunity to raise any issues which they may have had before the start of the surrogacy arrangement.
No person, whether in Hong Kong or elsewhere, is allowed to make or receive any payment for a surrogacy arrangement (section 17, HRTO). Reasonable expenses incurred by the surrogate mother in the course of the pregnancy, however, can be paid to her.
No surrogacy arrangement is enforceable by or against any of the persons making it (section 18, HRTO).
Where a parental order is made under section 12 of the PCO, the Registrar of the Court must notify the Registrar of Births and Deaths, enabling the registration of the commissioning couple as the child's legal parents.
A Bill has been drafted to amend the HRTO to provide for a new offence for publishing or distributing advertisements purporting to promote sex selection services.
Adoption is governed by the Adoption Ordinance (Chapter 290). Adoption by Chinese customary law was abolished in 1973. A sole applicant can adopt a child if they are (Adoption Ordinance):
The mother, father or relative of the child.
At least 21 years old.
Married to a parent of the child or a person who is a minimum of 25 years old.
There is one restriction on the eligibility of the applicant in that a sole male applicant cannot adopt a female child unless the court is satisfied that there are special circumstances justifying it.
A joint application can be made by two spouses provided one of the applicants is either:
The mother, father or relative of the child and the other applicant is a minimum of 21 years old.
A minimum of 25 years old and the other applicant is a minimum of 21 years old.
The consent of every person who is a parent or guardian of the child or who is liable under an order or agreement to contribute to the maintenance of the child is required. In the case of an application by one of two spouses, the consent of the other spouse is required. The applicant and the child must also reside in Hong Kong.
Family dispute resolution
Mediation, collaborative law and arbitration
Family mediation was introduced in Hong Kong in 2000. It is a voluntary process, pro-actively encouraged by the government, the courts and the profession. An application to the court, by way of a consent summons, is required to make a mediated agreement an order of the court and therefore enforceable.
Collaborative practice, being a contractual agreement between trained professionals and the parties to act collaboratively to resolve their family disputes, is a relatively new process in Hong Kong. Not only lawyers but also health professionals and financial specialists can be trained in the collaborative process. Any agreement reached must be made into an order of the court.
A pilot scheme was introduced on 9 January 2015 for Private Adjudication of Financial Disputes in matrimonial and family proceedings. This is another mode of alternative dispute resolution to further the objective of settlement facilitation. The pilot scheme will run for an initial period of three years, starting from 19 January 2015. The private financial adjudication procedure is applicable in the following proceedings:
An application for ancillary relief, other financial orders and/or financial relief under Part II and Part IIA of the Matrimonial Proceedings Property Ordinance, Cap. 192.
An application for maintenance and/or financial orders under the Guardianship of Minors Ordinance, Cap. 13.
An application under section 3 of the Separation and Maintenance Ordinance, Cap. 16 for an order for payment under section 5(1)(c),(d), (e) and section 9 of the same Ordinance.
An application for financial provision under the Inheritance (Provision for Family and Dependants) Ordinance, Cap. 481.
Any other application of a financial nature in Matrimonial and Family Proceedings to which the court agrees that the procedures should apply.
An application for costs in relation to any of the above applications or proceedings.
Family arbitration has not been introduced in Hong Kong.
Civil partnership/same-sex marriage
Same-sex marriages are not recognised in Hong Kong. The Marriage Ordinance recognises "the voluntary union for life of one man and one woman to the exclusion of all others".
In W v Registrar of Marriages [FACV 4 of 2012], W, a post-operative male to-female transsexual was not permitted to marry her male partner. The Registrar of Marriages decided that W did not qualify as a "woman" under the Marriage Ordinance and the Matrimonial Causes Ordinance. W challenged that decision, contending that she should in law be counted as a woman for the purposes of marriage. W was unsuccessful in her challenge at first instance and on appeal. The Court of Final Appeal, in May 2013, allowed W's appeal by a majority (one judge dissenting). W was granted a declaration that the Marriage Ordinance and the Matrimonial Causes Ordinance must be read and be given effect so as to include within the meaning of the words "woman" and "female" a post-operative male-to-female transsexual person whose gender has been certified by an appropriate medical authority to have changed as a result of sex reassignment surgery and a further declaration that W is in law entitled to be included as "a woman" within the meaning of the Marriage Ordinance and the Matrimonial Causes Ordinance and therefore eligible to marry a man. The court, however, recognised that there could be difficult issues arising in various areas and called on the government and the legislature to consider enacting legislation to deal with such areas. The court was also of the view that there is a strong case for a comprehensive review of the legislation concerning problems facing transsexuals. A Bill to amend the Marriage Ordinance, Cap. 181 to implement the Court of Final Appeal's Order in this case was voted down in October 2014.
There is no legislation governing civil partnerships. Nothing in W v Registrar of Marriages is intended to address the question of same-sex marriages.
Controversial areas and reform
There are no areas of law currently undergoing major change.
The law relating to child custody and access remains the most out-of-step. A Consultation Paper was published in 1998 and a Law Reform Commission Report was published in March 2005 to adopt the concept of "parental responsibility" in place of the concepts of "custody" and "care and control" (among other things). Progress of the implementation of the Law Report Commission recommendations has been slow. Although a draft Bill of the recommendation is being prepared, the legislation has yet to be changed.
Bilingual Laws Information System
Description. These are official government websites, updated and maintained by the Government/ Judiciary of Hong Kong.
Catherine Por, Partner
Stevenson, Wong & Co
Professional qualifications. Hong Kong, Solicitor, 1991; England and Wales, Solicitor, 1983; Hong Kong, Accredited Mediator; Hong Kong, Notary Public; Hong Kong, Arbitrator
Areas of practice. Family law and private client practice.
Non-professional qualifications. BSc Economics, London School of Economics
Languages. English, Cantonese, Mandarin
Publications. Volumes 1 & 2 of Family Law (Jurisdictional comparisons).