HK Divorce Law

7/27/2019 HK Divorce Law

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ANNEX C

The Hong Kong Government Gazette

Chapter: 179 MATRIMONIAL CAUSES ORDINANCE

(Replaced 79 of 1981 s. 5)

Part: III DIVORCE 30/06/1997

Section: 11 Ground for divorce, etc. 30/06/1997

The sole ground for presenting or making a petition or application for divorce shall be that the marriage has

broken down irretrievably and proceedings for divorce shall be instituted either-

(a) by a petition for divorce; or

(b) by an application for divorce.


Section: 11A Proof of ground for petition 30/06/1997

(1) A petition for divorce may be presented to the court by either party to a marriage.

(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably

unless the petitioner satisfies the court of one or more of the following facts-(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the

respondent;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live

with the respondent;

(c) that the parties to the marriage have lived apart for a continuous period of at least 1 year immediately

preceding the presentation of the petition and the respondent consents to a decree's being granted;

(d) that the parties to the marriage have lived apart for a continuous period of at least 2 years immediately

preceding the presentation of the petition;

(e) that the respondent has deserted the petitioner for a continuous period of at least 1 year immediately

preceding the presentation of the petition.


Section: 11B Proof of ground for application, etc. 30/06/1997

(1) An application for divorce shall be made to the court jointly by both parties to the marriage.(2) The court hearing an application for divorce shall not hold the marriage to have broken down

irretrievably unless it is satisfied as regards either or both of the following facts-

(a) that the parties to the marriage have lived apart for a continuous period of at least 1 year immediately

preceding the making of the application; and

(b) that not less than 1 year prior to the making of the application a notice under subsection (3), signed by

each of such parties was given to the court and that the notice was not subsequently withdrawn.

(3) (a) The parties to a marriage may at any time give to the court a written notice signed by each of them of

their intention to apply to the court to dissolve their marriage.

(b) A notice under this subsection shall be in such form as is for the time being specified in rules made under

section 54.

(Added 29 of 1995 s. 7)

Section: 11C Interpretation (Part III) L.N. 280 of 2008 01/03/2009

(1) For the purposes of this Part, a husband and wife shall be treated as living apart unless they are livingwith each other in the same household.

(2) (Repealed 4 of 2008 s. 15)

(Added 29 of 1995 s. 7)

Section: 12 Restriction on petitions within one year of marriage 30/06/1997

(1) Subject to subsection (2), no petition for divorce shall be presented to the court before the expiration of

the period of 1 year from the date of the marriage (hereafter in this section referred to as "the specified

period").

(Amended 29 of 1995 s. 8)

(2) A judge of the court may, on an application made to him, allow the presentation of a petition for divorce

within the specified period on the ground that the case is one of exceptional hardship suffered by the

petitioner or of exceptional depravity on the part of the respondent; but in determining the application the

judge shall have regard to the interests of any child of the family within the meaning of section 2 of the

Matrimonial Proceedings and Property Ordinance (Cap 192) and to the question whether there is reasonableprobability of a reconciliation between the parties during the specified period. (Amended 39 of 1972 s. 33)

[cf. 1970 c. 45 s. 35 U.K.]

(3) Nothing in this section shall be deemed to prohibit the presentation of a petition based upon matters

which occurred before the expiration of the specified period. [cf. 1965 c. 72 s. 2 U.K.]

Section: 13 Divorce not precluded by previous judicial separation 30/06/1997

(1) A person shall not be prevented from presenting or making a petition or application for divorce, or the

court from granting a decree of divorce, by reason only that the petitioner or an applicant or respondent has


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at any time, on the same facts or substantially the same facts as those proved in support of the petition or

application, been granted a decree of judicial separation or an order under, or having effect as if made under,

the Separation and Maintenance Orders Ordinance (Cap 16).

(2) In a case to which subsection (1) applies the court may treat the decree of judicial separation or the order

described in that subsection as sufficient proof of the ground on which it was granted; provided that in such a

case the court shall not grant a decree of divorce without receiving evidence from the petitioner or, if the case

is an application for divorce, evidence from both of the applicants unless, in such a case, the court considers itreasonable in the particular circumstances to receive evidence from 1 only of those applicants.


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Notes:

1. Please see the saver provision in relation to the repealed section 13(3), as contained in section 18 of 29

of 1995. Such repealed section 13(3) and the saver provision are reproduced as follows:

"18. Saver

Where immediately before the commencement of this Ordinance section 13(3) of the principal

Ordinance applied to a particular period of desertion, that section shall continue so to apply as if

section 9 of this Ordinance had not been enacted.".

2. 29 of 1995 commenced operation on 24 June 1996.

3. The repealed section 13(3), which was in force immediately before section 9 of 29 of 1995 came into

operation, is reproduced below-"(3) For the purposes of a petition for divorce in such a case, a period of desertion immediately

preceding the institution of proceedings for a decree of judicial separation or for such an order as

aforesaid having the effect of a decree of judicial separation shall, if the parties have not resumed

cohabitation and the decree or order has been continuously in force since it was granted, be deemed

immediately to precede the presentation of the petition.".

Section: 14 Alleged adulterer as a party 30/06/1997

(1) Where in a petition for divorce one party to the marriage alleges that the other has committed adultery,

the party making the allegation shall make the person alleged to have committed adultery with the other

party to the marriage a party to the proceedings unless excused by the court on special grounds from doing

so.

(2) Rules of court may, either generally or in such cases as may be prescribed by the rules, exclude the

application of subsection (1) where the person alleged to have committed adultery with the other party to themarriage is not named in the petition.

(3) Where in pursuance of subsection (1) a person is made a party to a petition for divorce, the court may, if,

after the close of the evidence on the part of the person making the allegation of adultery, it is of opinion that

as regards the allegation there is not sufficient evidence against the person so made a party, dismiss him or

her from the suit.

(4) (a) Rules of court may make provision, in cases not falling within subsection (1), with respect to the

joinder as parties to proceedings under this Ordinance of persons involved in allegations of adultery made in

those proceedings, and with respect to the dismissal from such proceedings of any party so joined.

(b) Rules of court made by virtue of this subsection may make different provision for different cases.


Section: 15 Hearing of petition 10 of 2005 08/07/2005

(1) In any proceedings for divorce it shall be the duty of the court to inquire, in so far as it reasonably can,into any facts alleged by any party to the proceedings. (Replaced 29 of 1995 s. 10)

(2) If the court is satisfied on the evidence of any such fact as is mentioned in section 11A(2) or 11B(2), then

unless it is satisfied on all the evidence that the marriage has not broken down irretrievably, it shall, subject

to subsection (3) of this section, grant a decree nisi of divorce. (Amended 29 of 1995 s. 17) [cf. 1969 c. 55 s.

2(3) U.K.]

(3) If it appears to the court, at the hearing of a petition for divorce presented in pursuance of leave granted

under section 12(2), that the leave was obtained by the petitioner by any misrepresentation or concealment

of the nature of the case, the court may-

(a) dismiss the petition, without prejudice to any petition which may be brought after the expiration of the

period of 1 year from the date of the marriage upon the same facts, or substantially the same facts, as those

proved in support of the dismissed petition; or (Amended 29 of 1995 s. 10)

(b) if it grants a decree, direct that no application to make the decree absolute shall be made during that

period. [cf. 1965 c. 72 s. 5(5) U.K.]

(4) If in any proceedings for divorce the respondent alleges against the petitioner and proves any such fact as

is mentioned in section 11A(2), the court may give to the respondent the relief to which the respondent

would have been entitled if the respondent had presented a petition seeking that relief. (Amended 29 of 1995

s. 17) [cf. 1965 c. 72 s. 5(6) U.K.]

(5) Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before

the expiration of 3 months from its grant, unless the Chief Judge by general order, or the court in any

particular case, fixes a shorter period. (Amended 10 of 2005 s. 12) [cf. 1965 c. 72 s. 5(7) U.K.]



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Section: 15A Provisions to encourage reconciliation 30/06/1997

(1) If at any stage of proceedings for divorce it appears to the court that there is a reasonable possibility of a

reconciliation between the parties to the marriage, the court may adjourn the proceedings for such period, as

it thinks fit to enable attempts to be made to effect such a reconciliation.

(2) The power of the court to adjourn under subsection (1) shall be additional to any other power of the court

to adjourn proceedings.(3) Where the parties to the marriage have lived with each other for any period or periods after it has become

known to the petitioner that the respondent has, since the celebration of the marriage, committed adultery-

(a) if the length of that period or of those periods together is 6 months or less, their living with each other

during that period or those periods shall be disregarded in determining for the purposes of section

11A(2)(a) whether the petitioner finds it intolerable to live with the respondent; but (Amended 29 of

1995 s. 17)

(b) if the length of that period or of those periods together exceeds 6 months, the petitioner shall not be

entitled to rely on that adultery for the purpose of section 11A(2)(a). (Amended 29 of 1995 s. 17)

(4) Where the petitioner alleges that the respondent has behaved in such a way that the petitioner cannot

reasonably be expected to live with him, but the parties to the marriage have lived with each other for a

period or periods after the date of the occurrence of the final incident relied on by the petitioner and held by

the court to support his allegation, that fact shall be disregarded in determining, for the purposes of section

11A(2)(b), whether the petitioner cannot reasonably be expected to live with the respondent if the length ofthat period or of those periods together is 6 months or less. (Amended 29 of 1995 s. 17)

(5) In considering for the purposes of this Part whether the period during which the parties to a marriage

have lived apart has been continuous, no account shall be taken of any period or periods together not

exceeding 6 months during which the parties have resumed living with each other, but no period during

which the parties lived with each other shall count as part of the period during which the parties to the

marriage have lived apart. (Replaced 29 of 1995 s. 11)

(6) References in this section to the parties to a marriage living with each other shall be construed as

references to their living with each other in the same household. (Added 33 of 1972 s. 7) [cf. 1969 c. 55 s.

3(2)-(6) U.K.]

Section: 15B Decree to be refused in certain circumstances 30/06/1997

(1) The respondent to a petition for divorce in which the petitioner alleges any such fact as is mentioned in

section 11A(2)(d) may oppose the grant of decree nisi on the ground that the dissolution of the marriage willresult in grave financial or other hardship to him and that it would in all the circumstances be wrong to

dissolve the marriage. (Amended 29 of 1995 s. 17)

(2) Where the grant of a decree nisi is opposed by virtue of this section, then-

(a) if the court is satisfied that the only fact on which the petitioner is entitled to rely in support of his petition

is that mentioned in section 11A(2)(d); and (Amended 29 of 1995 s. 17)

(b) if apart from this section it would grant a decree nisi, the court shall consider all the circumstances,

including the conduct of the parties to the marriage and the interest of those parties and of any children or

other persons concerned, and if the court is of opinion that the dissolution of the marriage will result in grave

financial or other hardship to the respondent and that it would in all circumstances be wrong to dissolve the

marriage it shall dismiss the petition.

(3) For the purposes of this section hardship shall include the loss of the chance of acquiring any benefit

which the respondent might acquire if the marriage were not dissolved. (Added 33 of 1972 s. 7) [cf. 1969 c.

55 s. 4 U.K.]

Section: 15C Power to rescind decree nisi in certain cases 30/06/1997

(1) Where the court on granting a decree nisi of divorce holds that the only fact on which the petitioner is

entitled to rely in support of his petition is that mentioned in section 11A(2)(c), it may, on application made

by the respondent at any time before the decree is made absolute, rescind the decree if it is satisfied that the

petitioner has misled the respondent, whether intentionally or unintentionally, about any matter which the

respondent has taken into account in deciding to consent to the grant of a decree. (Amended 29 of 1995 ss. 12

& 17)

(2) Where a court on granting a decree nisi of divorce is satisfied in accordance with the requirement of

section

11B(2)(a), it may, on an application's being made in that behalf by either party to the marriage, at any time

before the decree is made absolute, rescind the decree if it is satisfied by that party that he or she has been

misled by the other party, whether intentionally or unintentionally, about any matter which he or she took

into account when deciding to make the application for divorce. (Added 29 of 1995 s. 12)

(Added 33 of 1972 s. 7) [cf. 1969 c. 55 s. 5 U.K.]

Section: 16 Intervention of the Proctor 30/06/1997

(1) In any proceedings for divorce under this Ordinance- (Amended 29 of 1995 s. 17)

(a) the court may, if it thinks fit, direct all necessary papers in the matter to be sent to the Proctor, whoshall

instruct counsel to argue before the court any question in relation to the matter which the court deems it

necessary or expedient to have fully argued;


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(b) any person may at any time during the progress of the proceedings or before the decree nisi is made

absolute give information to the Proctor on any matter material to the due decision of the case, and the

Proctor may thereupon take such steps as he considers necessary or expedient. (Amended 33 of 1972

s. 8)

(2) Where the Proctor intervenes or shows cause against a decree nisi in any proceedings for divorce, the

court may make such order as may be just as to the payment by other parties to the proceedings of the costs

incurred by him in so doing or as to the payment by him of any costs incurred by any of those parties byreason of his so doing. [cf. 1965 c.72 s. 6 U.K.]

Section: 17 Proceedings after decree nisi 30/06/1997

(1) Where a decree nisi of divorce has been granted but not made absolute, then, without prejudice to section

16, any person (excluding a party to the proceedings other than the Proctor) may show cause why the decree

should not be made absolute by reason of material facts not having been brought before the court; and in

such a case the court may-

(a) notwithstanding anything in section 15(5), make the decree absolute; or

(b) rescind the decree nisi; or

(c) require further inquiry; or

(d) otherwise deal with the case as it thinks fit. (Amended 33 of 1972 s. 9)

(2) (a) Where a decree nisi of divorce has been granted and no application for it to be made absolute is made,

then, at any time after the expiration of 3 months from the earliest date on which such an application couldhave been made, an application for a decree absolute may be made by-

(i) in a case where the decree nisi was granted on a petition for divorce, the person against whom it was

granted; or

(ii) in a case where such a decree was granted on an application for divorce, either of the parties by whom the

application was made.

(b) Where an application is made under this subsection, the court may in relation to it exercise any of the

powers mentioned in subsection (1)(a) to (d). (Replaced 29 of 1995 s. 13)

[cf. 1965 c. 72 s. 7 U.K.]

Section: 17A Financial protection for respondent in certain cases 30/06/1997

(1) This section shall apply where-

(a) the respondent to a petition for divorce in which the petitioner alleges any such fact as is mentioned in

section 11A(2)(c) or (d) has applied to the court under this section for it to consider the financial position ofthe respondent after the divorce; and (Amended 29 of 1995 s. 17)

(b) a decree nisi of divorce has been granted on the petition and the court holds that the only fact on which

the petitioner is entitled to rely in support of his petition is that mentioned in section 11A(2)(c) or (d).

(Amended 29 of 1995 s. 17)

(2) The court hearing an application by the respondent under subsection (1) shall consider-

(a) all the circumstances, including the age, health, conduct, earning capacity, financial resources and financial

obligations of each of the parties; and

(b) the financial position of the respondent as, having regard to the divorce, it is likely to be after the death of

the petitioner should the petitioner die first.

(3) Notwithstanding anything in this Ordinance but subject to subsection (4), the court shall not make

absolute the decree of divorce if an application has been made under subsection (1), unless it is satisfied that-

(a) the petitioner should not be required to make any financial provision for the respondent; or

(b) the financial provision made by the petitioner for the respondent is reasonable and fair or the best thatcan be made in the circumstances.

(4) The court may, if it thinks fit, proceed without observing the requirements of subsections (2) and (3) if-

(a) it appears that there are circumstances making it desirable that the decree should be made absolute

without delay; and

(b) the court has obtained a satisfactory undertaking from the petitioner that he will make such financial

provision for the respondent as the court may approve.

(Added 33 of 1972 s. 10) [cf. 1969 c. 55 s. 6 U.K.]

Section: 18 Remarriage of divorced persons 30/06/1997

(1) Where a decree of divorce has been made absolute and either-

(a) there is no right of appeal against the decree absolute; or

Cap 179 - MATRIMONIAL CAUSES ORDINANCE 9

(b) the time for appealing against the decree absolute has expired without an appeal having been brought;or

(c) an appeal against the decree absolute has been dismissed, either party to the former marriage may marry

again.

(2) No clergyman shall be compelled-

(a) to solemnize the marriage of any person whose former marriage has been dissolved and whose former

spouse is still living; or

(b) to permit the marriage of such a person to be solemnized in the church or chapel of which he is the

minister. [cf. 1965 c. 72 s. 8 U.K.]


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Section: 18A Court not to dismiss petition or application to make absolute a decree nisi on ground of

collusion or misconduct of petitioner 30/06/1997

Without prejudice to any provision of this Ordinance which empowers or requires the court to dismiss a

petition

for divorce or judicial separation or to dismiss an application for a decree nisi to be made absolute, nothing in

any rule of law shall be taken as empowering or requiring the court to dismiss such a petition or application

on the ground of collusion between the parties in connection with the presentation or prosecution of thepetition or the obtaining of the decree nisi or on the ground of any conduct on the part of the petitioner.

(Added 33 of 1972 s. 11) [cf. 1969 c. 55 s. 9(3) U.K.]

Section: 18B Rules 10 of 2005 08/07/2005

The Chief Judge may make rules for the purposes of- (Amended 10 of 2005 s. 13)

(a) ensuring that, where on a petition for divorce the petitioner, in pursuance of section 11A(2)(c), alleges

that the respondent consents to a decree being granted, the respondent has been given such information as

will enable him to understand the consequences to him of his consenting to a decree being granted and the

steps which he must take to indicate that he consents to the grant of a decree; and [cf. 1969 c.

55 s. 2(6) U.K.]

(b) requiring the solicitor acting for a petitioner for divorce to certify whether he has discussed with the

petitioner the possibility of a reconciliation and given him the names and address of persons qualified to help

effect a reconciliation between the parties to a marriage who have become estranged; and [cf.1969 c. 55 s. 3(1) U.K.]

(c) enabling the parties to a marriage, or either of them, on application made either before or after the

presentation of a petition for divorce, to refer to the court any agreement or arrangement made or proposed

to be made between them, being an agreement or arrangement which relates to, arises out of, or is connected

with, the proceedings for divorce which are contemplated or, as the case may be, have begun, and for

enabling the court to express an opinion, should it think it desirable to do so, as to the reasonableness of the

agreement or arrangement and to give such directions, if any, in the matter as it thinks fit. [cf. 1969 c. 55 s.

7(1) U.K.]

(Added 33 of 1972 s. 11. Amended 29 of 1995 s. 17)

Documents

HK Divorce Law