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

Catalog

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

• What is the definition of Separation? Is it necessary to have a Separation Agreement? What is a “Separation but Living under the same roof?

  In general, Separation means spouses live apart, usually when one of them moves out of the marriage residence and no longer lives as a couple.

   

  Unless the other party disputes on the date of separation, there is no need to submit any documents or evidence to the court to prove that the couple has separated. If one of the parties does not agree with the date of separation or believes that there is no separation between the couple, signing a separation agreement is one of the solutions. Other ways such as keeping record of an email or SMS conversation can also be used to indicate that the other party has moved out, which can be used as proof of separation in the future.

   

  If one of the party does not make aware of the intention of separation, especially for couple who live apart in different locations for work, and that the couple participates family and friend gatherings like a couple as they used to, the court may not acknowledge and accept such period of separation.

   

  If there are conditions that do not allow one of the party to move out from the marriage residence, that the couple has to live in the same residence but they are in fact living an individual life separately, such as sleeping in separate rooms, do not share a bed, no sexual activity, take meals and housework separately, etc., given that the other party is made aware of the separation intention of the other, the court can also accept this way of separation living under the same roof.

• What to do if the marriage certificate is lost?

  If the marriage certificate has been lost or your spouse is unwilling to provide it, you should apply for a certified copy of marriage certificate at marriage registries.

• It is necessary to hire a lawyer for divorce?

  Submitting a petition or joint application for divorce puts legal proceedings in motion, so you will find it very helpful and safe to seek legal advice before any submission to the Court is made.

   

  You will particularly need a lawyer in the following circumstances:

  1. 1. your spouse does not agree to a divorce;
     2. neither of you can agree on the arrangements to be made for the children or on financial matters.

• What to do if the other party refuses to accept the Court documents?

  The third party who helped you with the service of documents would have to make an affirmation/affidavit to prove that the said documents have been delivered to the other party or the other party has had knowledge of the same, then file such affirmation/affidavit with the Family Court; or

   

  When you sent the documents by registered post and received the proof of receipt by the other party, file such proof with the Family Court.

• What to do if the other party has disappeared and is nowhere to be found?

  You can apply to the Court for substituted service (e.g. advertising on newspaper your divorce petition or post the documents to another address at which the other party might receive the same.)

   

  You can apply to the Court for service of affidavit, a written statement by affirmation shows that you have exhausted all practicable means to locate the other party, e.g. you have enquired both parties’ parents, family and friends, any electronic communication means to contact the other party, visited to the other party’s work location, and whether you have reported to the Police about the other party as a missing person, etc.

• Is it a must for me to attend the Court hearings?

  If you are the Petitioner, in the case of a unilateral divorce petition, you must attend the hearings, otherwise the Court would not process your petition for divorce and the proceedings will be paused without any further hearing date being fixed. (For special circumstances, you can write to the Court asking for permission not to attend the hearing)

   

  If you are the Respondent, , in the case of a unilateral divorce petition filed by your spouse, the Court would carry on with the hearing in your absence. Therefore, attending the hearings can protect your rights in a divorce case.

• Can I only get alimony after the divorce proceeding is over?

  No. Before the final divorce decree order is issued, either party in need can apply for “interim maintenance”. Such kind of order cannot last beyond the final divorce decree. It will terminate in any event upon the death of either party.

   

  The “interim maintenance” amount so ordered to be paid is not necessarily any indication of the amount which may be ordered to be paid upon the granting of the decree.

• Will the maintenance amount be adjusted?

  As periodic maintenance payments can last for a number of years, their level is open to variation if there is a subsequent change in the circumstances of either party such as the loss of employment or inflation. You can apply for a maintenance amount adjustment to the family court. The original order can be varied to reflect the change in circumstances.

   

  If both parties would agree that maintenance should be increased annually by a certain percentage or in line with an established inflation measuring index. This can avoid making costly regular applications back to the Court.

   

  Note that a lump sum order and Property Adjustment Order cannot be varied subsequently.

• What can the wife/husband do if the other party refused or failed to make maintenance payment?

  There should be no delay in pursuing for the outstanding amount as the court might refuse to enforce the Order of payment for those arrears due more than 12 months before proceedings to enforce the payment of them have begun.

   

  You may consider the following ways to enforce the court order for maintenance against your spouse:

   

  • Judgment summons

  The judge has the power to make a new order for payment of the amount due or to commit your spouse to prison if he or she cannot justify his or her failure to pay. If your spouse fails to attend the hearing, the court will adjourn the case to a further hearing. If he or she still fails to attend on the adjourned hearing, the judge can commit him or her to prison in his or her absence. Any committal to prison can be suspended on terms relating to the payment of the debt.

   

  • Attachment of income to satisfy order

  The Court may order the income to be attached as to the whole or part of the amount payable under the maintenance order.

   

  • Prohibition order

  Apply to the Court on an ex-parte basis (applied unilaterally by one of the parties only) for an order that your spouse be prevented from leaving Hong Kong pending recovery of the debt.

• How to protect oneself from violence and/or threats by one's spouse?

  Call the Police and perform a medical assessment at hospital: even if you do not intend for him to be prosecuted, an official record with the Police would help your divorce petition or application for an injunction. If the Police finds sufficient evidence, the spouse can be arrested, remanded in custody or even be prosecuted. If you have reported to the police, remember to obtain the report number from the police for record.

   

  The spouse and/or child(ren) suffering from domestic violence can apply for an injunction under the Domestic and Cohabitation Relationships Violence Ordinance: prohibiting the spouse from harassing, assaulting and/or molesting the applicant, orders can be granted to prohibit the spouse from entering or staying in certain residence or area. The application forms for injunction orders can be obtained either from a solicitor, the Legal Aid Department, or the Family Court Registry.

• What is the legal protection for children born out of wedlock?

  When a child is born out of wedlock, in which case the mother has all parental rights and authority automatically. However, on application made by the father, the court may grant him the parental rights and authority if the court accept him as a father of the child.

   

  As soon as the court has accepted him as the biological father, the father shall have the same rights, and shall be under the same obligations in respect of the maintenance and support as if the child had been born legitimate.

   

  If the parents dispute over the issue of their children, one of them can apply to the Family Court for instructions, the court will make the order based on the child's best interests as the primary consideration.

• How can CSSA recipients deal with default on maintenance payments?

  Alimony is regarded as income under the Comprehensive Social Security Assistance Scheme, unless only a nominal alimony order is issued in a divorce, the maintenance amount will be regarded as an evaluation condition for receiving CSSA.

   

  If a CSSA recipient is a maintenance payment recipient but he/she fails to obtain the maintenance amount on time from the spouse under the alimony order, he/she can report to the Social Welfare Department and indicate his/her intention to pursue the outstanding amount.

   

  The maintenance recipient can apply to the Family Court to enforce the court order for payment of outstanding maintenance against the spouse or apply to the Legal Aid Department (LAD) for legal aid to enforce the alimony order.

   

  You can also seek assistance from the Social Security Field Units, with your consent, the staff will refer you to the Legal Aid Department for legal support for the execution of maintenance orders.