So, you think you are separated from your spouse...

In Hong Kong, a divorce petition based on the “no fault” fact of separation is either pleaded or 1 year’s separation with consent or 2 years’ separation without consent.  In both cases whether or not you and your spouse are separated is a matter of law and fact.

The story can be a typical one; one party moves to Hong Kong to take up an expatriate package of arrangement, and the other party stays in their home country for the benefit of the children’s schooling and/or their housing commitments for example.  Another often heard tale is that one Party has a business in mainland China or elsewhere and needs to be away from Hong Kong for substantial periods of time whilst the spouse stays in Hong Kong again because of family commitments, or convenience or better schooling for the children.  In both cases, the couple finds itself “physically” separated for long periods of times.

The lay person may think that “separation” is simply not being physically together (being the rudimentary definition in the dictionary), however, Matrimonial Law in Hong Kong defines “separation” in a divorce scenario as a couple having ceased living together in a marital sense; as man and wife.  This may include, but is not limited to, factors such as not sharing a bedroom, not having sexual relations, not sharing meal times, not spending quality time together as a family, not undertaking every day tasks and caring for the other as man and wife. In Hong Kong, where housing is scarce and extremely expensive, it is not uncommon for couples who are in fact separated, and may have in fact informed each other and/or third parties of their separation, to continue to live under one roof whilst running two separate households whether for the children’s benefit, culture or financial reasons.

In light of the above reasons, it is prudent to reach an agreement with your spouse that you have indeed separated.  While we understand this is no easy task, this will prevent any argument later on, whereby one Party does not accept the commencement of the separation which whether by consent or not, can defeat the main suit for divorce. 

It is, therefore, advisable think twice as to whether or not you have truly separated from your spouse if you are contemplating divorce based on the ground of separation.  If, however, the facts do not amount to separation then you do not necessarily have to proceed on a fault basis; you can always consider bridging the time gap in the interim by entering into a Deed of Separation and Family Arrangement, by which you can agree the financial matters and Children arrangements, which will then be included in a Consent Order, when the one year or two years period of separation is achieved.

By Martin Leong

Libby Donohoe