Embrace Change, Own Your Life｜Divorce Procedure Self-help Handbook

Catalog

• Front-word
• Jurisdiction in Divorce
• Divorce Procedures
• Divorce Q&A
• Legal Aid

• Flow for Divorce

  Presenting a petition for divorce to the Court

  • File a divorce petition (or Joint Application) to the Family Court Registry by hand or via a lawyer
    
    

  Receiving a divorce petition

  • If your spouse is the “petitioner”, you are known as the “respondent”. You need to consider whether to defend against the date of separation proposed by your spouse or the listed accusations against you for unreasonable conduct, you should specify the above in the acknowledgement of service (Form 4) and return it to the Family Court Registry before the deadline.

   

  Fixing a court hearing date

  • After the petition has been served on the respondent, 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.

   

  Divorce Main Suit

  • If the other party does not dispute the fact relied on for divorce, the petitioner applies for Decree Nisi (a tentative court order for divorce) by filing Form 21.
  • If the other party disputes the fact relied on for divorce, the petitioner applies to fix a date for trial, the Court will dismiss the petition if insufficient evidence for divorce is found.
    
    

  Children (if any)

  • Issues that need to be dealt with by the court: (1) Custody: Joint custody or sole custody. (2) Care and Control: the child to live with which parent. (3) Access: visiting the child.
  • Before a final court order on the custody, care and control and access, either party may apply for an interim order on the three issues.

   

  Ancillary relief (Maintenance and distribution of family assets)

  • The ancillary relief proceedings commence when one party gives to the other a formal notice of intention to seek money or property orders from the court.
  • Before a final court order on the issues of maintenance for the party and the children (if any), either party may apply for an interim maintenance order for the party and/or children.

   

  Decree Absolute

  • Six weeks after the court has granted a decree nisi, and that the court is satisfied with the arrangements for children, you can apply for your decree to be made absolute.

  (Decree Absolute – The final Court Order dissolving a marriage as of the day the certificate is issued)

   

  Family Mediation

  Family Mediation is a voluntary problem-solving process designed to help separating/divorcing couples reach their own mutually acceptable agreements regarding on-going arrangements for their children and/or the resolution of financial matters. It is a process in which a trained, impartial third person (the mediator) can assist both parties to communicate and negotiate issues without spending lots of cost and expense to contest matters in court. Before the commencement of the legal process or at any time during the legal process, either of the parties may conduct mediation to resolve disputes at any time.

• Presenting a petition for divorce

  Unilateral application: Presenting a petition for divorce

   

  To start divorce proceedings, you need to fill in:

  Form 2	Petition (the form that you need to fill in depends on your particular circumstances or grounds for divorce)
  Form 2B	Statement as to the arrangements for children (if applicable)

   

  If you file a divorce petition, 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 the petition to be served on every other party to the proceedings, either by hand or by post. Note that you must not serve the petition on the respondent yourself. Instead you must use the services of a third person, or send the petition by post.

   

  Joint Application (which means you and your spouse have agreed to apply together for a divorce)

   

  You need to fill in:

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

   

  If it is a joint application, the two parties will be the "first applicant" and "second applicant" respectively, and that both parties should file the application to the Family Court Registry.

             

  All forms you need are available from the Family Court Registry or download it online ;

  Forms 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. You will be given a case number, which must be marked on any subsequently filed documents.

  In addition to the above-mentioned relevant documents, the court should also be informed whether the couple is willing to accept family mediation services.

   

   

• Receiving a petition for divorce

  First to understand on what ground the other party is relying on for a divorce. If you intend to dispute/defend the date of separation set by your spouse or the unreasonable behaviour alleged against you by your spouse, you have to state so in the Acknowledgement of Service (Form 4) and send it back to the Family Court Registry within 8 days of receipt of the divorce documents, whereas your Answer to the divorce petition has to be sent back to the  Family Court Registry within 29 days of receipt of the divorce documents, with a copy thereof be sent to the petitioner (your spouse).

   

  1. If the ground for a divorce petition is based on your unreasonable behaviour, then you should consider whether you want to dispute/defend, meaning that you argue that there is no unreasonable behaviour on your part. If the petitioner is represented by a lawyer, you may have to pay for the legal fees of petitioner's main divorce suit.
  2. If you and the other party have lived apart for a continuous period of at least one year, then you can apply to the Court for a divorce petition to be based on One-year separation with consent.
  3. The Department of Legal Aid does not usually accept applications involving disputes in main suit (i.e. defend the divorce petition or dispute any facts therein etc.)

   

  (If you have any child(ren) under the age of 18)

  You also have to consider whether you want the custody, care and control of your child(ren); If so, you should try your best to live with your child(ren) during the divorce proceedings.

   

• Fixing a court hearing date

  After your petition has been served on the respondent you should next apply to the Registrar for directions to set down the case for trial (i.e. to fix a date for a court hearing). The Registrar must be satisfied that the petition has been served on the respondent. This can be proved either by

  1. showing that the respondent has completed and returned a Form 4 (Acknowledgment of Service) to the Registrar; or
  2. having the person who served the documents on the respondent file an affirmation confirming that the petition has been delivered to the respondent.

   

  Joint Applications will be set down provided that the relevant documents are in order.

   

  • If you and your spouse apply for a divorce together; or either party apply for a unilateral divorce and the other party does not object to the divorce, and that all arrangements, including alimony, asset and property, child custody/access etc., can all reach to an mutual agreement by both parties; a special procedure can be applied after filing the relevant consent and returning all the required documents in order, that is, both parties can complete the divorce procedures without going to court to attend the hearing.
  • If there is no consensus on the right to custody of child(ren), the Family Court will issue the "Notice of Child Appointment" when issuing the divorce case number. The first hearing of the child appointment will generally be conducted after 3 months. Within 28 days of the hearing date, submit a "Form on Children's Matters" (Form J) detailing children's matters to the court for filing and exchange copies with the other party.
  • If there is no consensus on the ancillary relief (alimony/asset allocation), the Family Court will issue the "Notice of First Appointment hearings " when issuing the litigation number of the divorce case. The first hearing of the first meeting will generally be held after 3 months, both parties must submit all the "Statement of Economic Conditions" (Form E) detailing the property and income status to the court filing within 28 days of the first meeting date, also exchange copies with the other party.

• Divorce Main Suit

  Special Procedure List: Joint applications or you have petitioned for divorce but the respondent does not file an answer, the petition will be set down in the Special Procedure List. 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, or if there are applications for ancillary relief by either party, the court will adjourn these matters to the Family Court Chamber, both parties will be required to attend the hearings.

• Matters Affecting Children

  The court will order custody (custodial rights), care and control, and child visitation arrangements for child(ren) under the age of 18.

   

  If both parents dispute over the child custody, the judge would ask both parties to file their own children's form (Form J) and order a Social Investigation Report to be done by the Social Welfare Department. The Social Welfare Officer would then interview both parties and arrange for home visits so as to understand the parties' living conditions and their relationship with the child(ren).

   

  The child(ren)'s welfare is the Court's paramount consideration, and the following factors would be taken into account: -

  • • The child(ren)'s wishes;
    • The parents' behaviour as to whether they are suitable to take care of the child(ren);
    • The physical and mental health of the parents and child;
    • The parents' caring capability, such as financial resources and living conditions;
    • Any negative impacts on the child(ren) caused by the change of environment;
    • Age of child(ren);
    • The benefit of keeping the siblings together with one parent;
    • Status quo preferred;

   

  There are different types of custody: "Sole custody" or "Joint custody". Sole custody is granted to one parent only. Joint custody is granted the custody of the child(ren) to both parents.

   

  There is no definition (or an exhaustive list) of the term custody. In general, custody means the custodial parent is empowered to make major decisions concerning the child such as education, religion, and major medical treatment. The party who has not been granted the custody remains the right to be consulted and gives opinions on child(ren)'s matters even though he or she has no right to decide. If both parents fail to reach to an agreement on the child(ren)'s matters, the court will make the final decision.

   

  Joint custody is now generally encouraged, (one parent is granted with the care and control, while the other parent is granted with visiting access), as it is considered good for parents to realize that they both have a responsibility towards their child and their parental duties do not cease on the breakdown of the marriage. No matter which parent the child(ren) lives with, a high level of agreement and cooperation between the parents is encouraged and required.

   

  Before a final court order on the custody, care and control and access, either party may apply for an interim order on the three issues.

• Ancillary Relief (Maintenance & Financial Matters)

  Court established the following for maintenance arrangement: 

  Four principles

  1. The objective of fairness;
  2. Rejection of discrimination;
  3. Apply the yardstick of equal division;
  4. Avoid ‘minute retrospective investigations’;

   

  Five steps

  1. Identify the parties’ assets;
  2. Assess the parties’ financial needs;
  3. Apply the sharing principle if assets exceed needs;
  4. Consider whether there are good reasons for departing from equal division (equal sharing should not be applied mechanistically);
  5. Decide the outcome.

   

  The ancillary relief proceedings commence when one party gives to the other a formal notice of intention to seek money or property orders from the court.
  
  

  Alimony can be assigned to a spouse or children. Spousal maintenance is valid for life, but it will be ceased upon remarriage of the recipient of the maintenance. For children, maintenance will end when the child(ren) reaches the age of 18 or complete full-time studies (whichever is the latter).
  
  

  After receiving the application for ancillary relief, the “Financial Dispute Resolution” process will begin, and the court will set a hearing date for the "First Appointment hearing".
  
  

  With no less than 14 days before the date of the "First Appointment hearing”, both parties can file a questionnaire on the other party’s Form E together with a concise statement of issues, chronology and other documents.

   

  The Court will consider the following circumstances when judging over ancillary relief:

  • The income, earning capacity, property, and other financial resources which each of the parties has or is likely to have in the foreseeable future;
  • The financial needs, obligations, and responsibilities which either of the parties 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 and the duration of the marriage;
  • Any physical or metal disability of either of the parties;
  • 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;
  • The value to either of the parties of any benefit which that party will lose as a result of the dissolution of the marriage.

   

  Arrangement of Maintenance

  • Maintenance can be by way of lump sum payment or monthly payments;
  • If agreed by both parties, the relevant legal documents must state: -

  • • Amount of maintenance (for spouse and child(ren) respectively);
    • Payment method (bank transfer, automatic transfer, cheque etc.);
    • Bank account details; and
    • Payment date (e.g. on or before the day of each and every month).
  • If the other party is currently unable to pay maintenance, you shall ask for nominal maintenance in the amount of HK$1 per annum to retain the right to apply for maintenance in the future.

   

  Before the court makes a final order regarding the maintenance of one party and the children (if any), either party can apply for an interim maintenance order for themselves and/and their children.

• Final order for divorce (Decree Absolute)

  6 weeks after the Court has granted a decree nisi, you can apply for your decree to be made absolute (a final order for divorce) by sending a completed "Notice of Application for Decree Nisi to be made Absolute" to the Court, using Form 5 (for a petition) or Form 5A (for a joint application).

   

  If there are children of the marriage, the decree nisi will not be made absolute until the Court declares that it is satisfied with the arrangements made for them. The Registrar will issue a Certificate of Decree Absolute to each party if the registrar is satisfied that the statutory requirements have been complied with.