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Print articleCross-Border Marriages: Connection Substantial Enough to Divorce in Hong Kong?
August, 2020 -
The Covid-19 pandemic has been reshaping many personal relationships. Cracks in some family relationships have been exacerbated due to high-pressure confinement under the same roof in lockdown. Such rise in marital conflicts has inevitably caused more breakdown of marriages. Amongst these cases, are families who have homes or businesses both in Hong Kong and Mainland China, who need to consider whether the divorce proceedings should be instituted in Hong Kong or Mainland China.
In all divorce cases commenced in Hong Kong, the Hong Kong Court must be satisfied that it has jurisdiction to deal with the case. In cross-border divorce cases, where one of the parties argues that a Mainland court is the more appropriate forum for the proceedings, the Hong Kong Court has to decide the issue by applying the legal doctrine of forum non conveniens.
Jurisdiction
The Hong Kong Court has jurisdiction over a divorce petition based on either party’s domicile or habitual residence in, or substantial connection with, Hong Kong. It is relatively easier to establish one’s domicile or habitual residence. A person is domiciled in Hong Kong if he/she has his/her permanent home here and nowhere else. If either party of a marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition, the Hong Kong Court also has jurisdiction in the divorce proceedings. However, the Court expects more particulars to be provided to establish one’s substantial connection with Hong Kong. Like many cross-border families, the Petitioner (wife) in the recent case of CN v YTW, FCMC 10370/2017 [2020] HKFC146 tried to assert a “substantial connection” with Hong Kong in her Amended Petition. However, the Court was not satisfied that the facts put forward by the Petitioner for showing a substantial connection were substantial enough to invoke the Hong Kong Court’s jurisdiction:-
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(1) |
Being the holder of a Hong Kong Identity Card and having no HuKou (??) or identity card in the Mainland did not help her case. She only had short stays in Hong Kong every year and, thus could not say Hong Kong was her home when the proceedings were commenced. Her renunciation of Hukou per se would not establish such connection with Hong Kong. |
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(2) |
Her business trips and employment history in Hong Kong since 1990 was unhelpful because the relevant time of “substantial connection” is the time when the petition was filed with the Hong Kong Court. |
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(3) |
Her allegation that a flat in Hong Kong was the matrimonial home was not accepted because Immigration Department records showed that the parties had only been in Hong Kong at the same time for 4 to 7 days during the relevant time. There was also no evidence that she and/or her daughter had moved to live in Hong Kong on a permanent basis when the petition was filed with the Hong Kong Court. |
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(4) |
Having a “licence to work” as an insurance broker or being engaged as an insurance broker in 1999 without evidence that she had actually worked in Hong Kong did not help her case either. |
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(5) |
Although the Court will take into consideration the fact that a party has a local bank account and is using it as their primary account (like the Petitioner was in this case), this does not necessarily establish a “substantial connection”. |
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(6) |
In establishing her social network and community connection in Hong Kong, she relied on her relationship with her parents-in-law who lived in Hong Kong, as being one of the most important connections she had in Hong Kong. However, they had passed away around 9 years before her petition was filed. The Court also had great doubt as to whether she really had close social relationships with other people in Hong Kong as she alleged, as there was no evidence to show how close she was with them and how frequently she had kept in contact with them. |
Forum Non Conveniens
In the CN v YTW case, the Respondent applied to stay the proceedings in Hong Kong on the ground of forum non conveniens and on the basis that the Beijing Court was the more appropriate forum for the proceedings. The Court acceded to the Respondent’s application after applying the well-established law governing the stay of proceedings on the ground of forum non-conveniens, namely:-
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(1) |
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 the action. |
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(2) |
In answering question (1) above, the applicant has to establish that Hong Kong is not the natural or appropriate forum, and that there is another available forum which is clearly or distinctly more appropriate than Hong Kong. |
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(3) |
If the applicant is able to establish both matters in (2) above, the plaintiff in the proceedings (the petitioner in this case) has to show that s/he will be deprived of a legitimate personal or juridical advantage if the action is tried in a forum other than Hong Kong. If the plaintiff is able to establish this, the Court has to balance the advantages of the alternative forum with the disadvantages that the plaintiff may suffer. |
In the CN v YTW case:
- According to the PRC legal opinion submitted to the Court, in the event of the Hong Kong Court taking the view that it has no jurisdiction over the case, the PRC Court would accept jurisdiction. Hence, the Hong Kong Court held that there is another available forum, namely the Beijing Court. Further, the Respondent had successfully discharged his burden of establishing that Hong Kong is not the natural or appropriate forum and that the Beijing Court is clearly and distinctly more appropriate.
- The Court held that there was no juridical advantage which the Petitioner would be deprived of if the case was tried in the PRC. Accordingly, no balancing exercise (between the advantages of the alternative forum with the disadvantages that the Petitioner might suffer) had to be done.
Comments
In any cross-border divorce, a major consideration is where the proceedings should take place. That decision will be based on a number of factors, including whether the court in the selected forum has jurisdiction to hear the case and where it would be more advantageous in terms of asset distribution for the proceedings to take place. Even if the court of the selected forum does have jurisdiction, there is always the possibility that a party may argue that another forum is more appropriate. It is therefore crucial that in any cross-border divorce, advice is sought on jurisdiction at the outset.
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