Tuesday, March 31, 2015

Hong Kong Divorce Jurisdiction

Jeremy D. Morley  

The courts of Hong Kong deal with large numbers of international divorce cases. Hong Kong has jurisdiction if certain specified conditions are fulfilled but it is important to understand that the courts may decline jurisdiction on the grounds of inconvenience in some cases.  

Hong Kong courts have jurisdiction of divorce cases if –  
          a) Either of the parties to the marriage was domiciled in Hong Kong at the date of the petition or application; or  
          b) Either of the parties to the marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application; or  
          c) Either of the parties to the marriage had a substantial connection with Hong Kong at the date of the petition or application.  
A.    Domicile
The meaning of the term “domicile” is significantly affected by a Domicile Ordinance “to consolidate and reform the law for determining the domicile of individuals” enacted as of 1 March 2009, which amends the common law of domicile in certain respects. The Ordinance provides that:
          -every person has a domicile but not more than one;
          -on becoming an adult, an individual retains the domicile that he had immediately beforehand;
          -an adult acquires a new domicile in a country or territory if he is present there and intends to make    a home there for an indefinite period;
          -a child is domiciled in the country or territory with which he is for the time being more closely connected;
          -where the child's parents are domiciled in the same country or territory and the child has his home with either or both of them; it shall be presumed, unless the contrary is proved; that the child is most closely connected with that country or territory; and
          -where the child's parents are not domiciled in the same country or territory and the child has his home with one of them, but not with the other, it shall be presumed, unless the contrary is proved, that the child is more closely connected with the country or territory in which the parent with whom he has his home is domiciled.   
In a case in which I provided assistance to the husband, the Hong Kong court very recently ruled that:

“it does not seem to me that the wife’s domicile changed again when she came to Hong Kong on a temporary basis in June 2013 with the two children of the family. There was no intent originally to reside in Hong Kong on a permanent or indefinite period. This may have changed from the wife’s perspective in December 2013, but this is not something that the husband ever agreed to. Further from a factual perspective-the wife’s permanent home in April 2014 still remained the family home in New Jersey. She was only living in a rental property in Hong Kong. Her whole married and family life up until that point had been conducted in the United States when she issued her divorce petition last year.”

B.     Habitual Residence
In ZC v. CN [2014] HKCA 389, the Hong Kong Court of Appeal ruled that
Habitual or ordinary residence refers to ‘a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration. It is necessary that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled’ : R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309, judgment of Lord Scarman at page 340-344. Lord Scarman applied the natural and ordinary meaning approach in construing the words ‘ordinarily resident’ of the United Kingdom Education Act 1962.
The same meaning of habitual or ordinary residence is to be given to the family law legislation : Ikimi v Ikimi [2002] Fam 72 Thorpe LJ at page 82, reaffirmed in Mark v Mark [2006] 1 AC 98.
Unlike domicile, one may have habitual or ordinary (the terms are the same) residence in two places at the same time.
In the recent case of Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45, the Court of Final Appeal construed ‘ordinarily resident’ in Article 24(2)(4) of the Basic Law. The Court of Final Appeal emphasised the purposive and contextual approach in statutory interpretation (paragraph 50) and qualified the natural and ordinary meaning approach of Lord Scarman by regarding it only as a starting point but not decisive (paragraph 80). Ma CJ held that:
̒It is always necessary to examine the factual position of the person claiming to be ordinarily resident to see whether there are any special features affecting the nature and quality of his or her residence. If such features exist, one asks whether they result in that person’s residence being qualitatively so far-removed from what would traditionally be recognised as “ordinary residence” as to justify concluding that he or she is not “ordinarily resident”. This is necessarily a question of fact and degree and the outer boundaries of “ordinary residence” are incapable of precise definition. But the exercise is necessary since the meaning of “ordinary residence” in art.24(2)(4) can only be considered in the factual context presented by the person claiming to come within the meaning of that concept.’
However, in ZC v. CN the Court of Appeal did not address the recent modification by the English courts in In re L (A Child) (Habitual Residence) [2013] UKSC 75 to the interpretation of the term “habitual residence” to conform to the test of habitual residence that the Court of Justice of the European Union had previously adopted in Mercredi v Chaffe (Case C-497/10 PPU) [2012] Fam 22.

C.    Substantial Connection
The meaning of the term “substantial connection” has been discussed in several international divorce cases. Cases have held that a party’s connection with Hong Kong must be “of sufficient significance or worth, to justify the courts of Hong Kong assuming jurisdiction in respect of matters going to, and consequential upon, the dissolution of that party’s marriage.”
The leading case is ZC v. CN in which the Hong Kong Court of Appeal made the following points:
·         Whether a person has a substantial connection with Hong Kong is clearly a question of fact. No definition for this term will be succinct or comprehensive enough. What one may do is to look at the surrounding factors to see whether that person is substantially connected with Hong Kong at the time of the petition.
·         As a starting point, one begins to see if that person has connection here and then decide whether that connection is a substantial one. In terms of connection, there must be physical presence in Hong Kong, this must be the ground rock of invoking the divorce jurisdiction. But because of the requirement of ‘substantial’, the presence cannot be of a transitory nature otherwise this will encourage ‘fly in’ and ‘fly out’ divorces.
·         Hence in order to see whether the proceeding has a real and substantial connection to Hong Kong one must, first of all, ascertain whether at the time of its commencement the parties have substantially conducted their matrimonial life in Hong Kong.
·         Hong Kong being an international commercial city, the identification of this issue is most acute for expatriate families who live in Hong Kong.
·         The relevant considerations are, for example, whether the parties’ matrimonial home is here, what is their past pattern of life; do they regard Hong Kong as their home for the time being even if their life style may indicate that they may not take root in one place for too long a time. Related to the issue are matters such as the place of work of the spouses: do they choose to work here; even if one of them has to ‘commute’ overseas to work, is Hong Kong still treated as their home base. Likewise for the children of the family: are they studying here or spending their vacations here even if they are studying abroad.
·         The fact that a party has resident status which allows him or her to live here legally is only a factor to be taken into account. He or she may not be living here on a long term basis and only comes here occasionally. No doubt one has to look at other factors such as the party’s past pattern of life, the frequency of his visit to Hong Kong, the length and purpose of the stay, whether the party is engaged in business or work here, whether the rest of the family is here and whether a home has been established here and whether the children are at school here.
·         It is also important to bear in mind that since the legislation only requires the party to establish a substantial connection in Hong Kong, he or she at the same time may have a substantial connection elsewhere. 
·         If a party is shown to have substantial connection elsewhere by reason of his home or work, this may be used to contrast with the connecting factors he has in Hong Kong to see whether the Hong Kong connection is a substantial one.
·         At the same time it will be unduly restrictive if one confines the connecting factors solely to that of a family context, namely, accommodation in a matrimonial home and presence of spouses and children. While in the majority of cases, family context is the focus of the inquiry and a material factor, there may well be situations where a party is in Hong Kong without the presence of his family, but nonetheless is able to show that he has a substantial connection here. It really depends on the circumstances of the case. Such cases, however, must be regarded as exceptional.
In a case in which I assisted the husband, the Hong Kong court very recently ruled that the wife, who had lived in Hong Kong before her marriage, had then lived in the United States with her husband during 16 years of marriage, and who had then lived in Hong King with the parties children for ten months before starting a divorce case in Hong King, did not have a substantial connection with Hong Kong. The Court stated as follows:
“In this case, although the wife is presently in Hong Kong, the parties have never lived in Hong Kong as man and wife or family. There is no matrimonial home here and no question that their past pattern of life was in New Jersey. Further this is not a typical expatriate scenario where the parties were required to relocate to different countries on a regular basis. The wife and children are here because the wife has chosen to remain in Hong Kong following the breakdown of her marriage to the respondent. Although the wife and children would visit Hong Kong frequently, there was never any suggestion that this was for anything other than a holiday, so that the wife could catch up with family and friends, etc. It is true that the wife has recently set up home here and that the children are attending school. But this is in the context of the fact that the original intention was that this would be a temporary move of 1-2 years. It is clear that the wife does have a connection with Hong Kong but given the recent guidance provided by the Court of Appeals above, it does not appear that the connection is sufficient to afford her the jurisdiction to issue divorce proceedings here. In such circumstances it does not seem to me that the wife had a substantial connection when she issued her divorce proceedings in Hong Kong.”