| Racing for Divorce In Two Different Jurisdictions: Part II |  |  |  |
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As people are now living in a world without borders, it is possible that a divorcing couple with connections with more than one country can have parallel divorce proceedings going ahead at the same time in two different jurisdictions.
Besides the significantly increasing number of cross-border marriages between Hong Kong and the Mainland as we have discussed in our Newsletter in February 2011, many married couples now have homes in different countries, or may enjoy residence in one country and domicile status in another. The issue of appropriate jurisdiction arises where separating parties having connections with more than one country file competing petitions for divorce.
The Hong Kong Court shall have jurisdiction in proceedings for divorce if either party to the marriage:-
1. was domiciled in Hong Kong at the date of the petition or application;
2. was habitually resident in Hong Kong throughout the period of 3 years immediately before the date of the petition or application; or
3. had a substantial connection with Hong Kong at the date of the petition or application.
Substantial Connection
Generally, the court will look at various different factors including but not limited to the following:-
l closeness of the country with the couple and the family
l what would be fair to both parties
l past pattern of life
l place of work of the couple
l domicile and habitual residence
l nationalities of the couple
l in which jurisdiction the couple have their principal connections, (for example, the location of their assets, any children, schoolings, family etc.)
l emotional and psychological turbulence of the parties
l whether the connection is real or is merely engineered for temporary tactical advantages
l whether there is any pre-nuptial agreement or separation agreement indicating where the couple would like divorce to be dealt with
It is not necessary to demonstrate that Hong Kong is the only jurisdiction with which the relevant party has substantial connection or that the connection with Hong Kong is the most substantial connection. It is sufficient for a party to show that he or she has “a” substantial connection with Hong Kong.
Application for a stay
There are no fixed arrangements between Hong Kong and other countries as to what should happen when both Hong Kong and the other country have jurisdiction to deal with a couple’s divorce. For example, a Hong Kong wife may issue divorce proceedings in Hong Kong under the appropriate jurisdiction rules and the divorce papers may be served validly on her husband who lives in France. Her husband in France may have also issued divorce proceedings under the law of France and serve the divorce papers on his wife in Hong Kong. As a result, there would be two sets of concurrent but conflicting divorce proceedings in two different countries.
Taking the above scenario as an example, the Hong Kong Court would often be asked by the French husband to “stay” (i.e. to suspend) the Hong Kong divorce proceedings as he prefers the divorce proceedings in France to continue. Similarly, the wife bringing her divorce proceedings in Hong Kong would apply to the French court of France to stay the husband’s proceedings in France in favour of the Hong Kong divorce proceedings.
If an application is made for a stay of the Hong Kong divorce proceedings in these circumstances, the Hong Kong court would usually look at the balance of fairness and convenience. This is a balancing exercise for the Hong Kong court which has its discretion to decide whether it is more appropriate for the divorce proceedings to be dealt with in the foreign jurisdiction rather than in Hong Kong.
Application for a stay - The Spiliada principle
The principles applicable to a stay of proceedings in Hong Kong including divorce proceedings on the ground of “forum non conveniens” were set out in English House of Lord case Spiliada Maritime Corp v Cansulex Ltd [1987] AC 46 in which Lord Goff said:
“The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitable for the interests of all the parties and the ends of justice”
The evidential burden is upon the applicant for a stay. If the applicant has successfully proved to the court that there is another available forum which is clearly more appropriate for the trial of the action than the Hong Kong court, the court will ordinarily grant a stay of the Hong Kong proceedings. The emphasis is upon “appropriate” rather then “convenient”. The purpose is to identify the forum “with which the action has the most real and substantial connection”.
If the court is satisfied that the applicant has proved that Hong Kong is not the natural and proper forum and other court in another jurisdiction is clearly more appropriate than Hong Kong, the next question for the court is: will a trial at other forum deprive the Hong Kong Petitioner of any “legitimate personal or juridical advantages”? If the answer is no, the court may exercise its discretion to grant a stay of the proceedings in Hong Kong in the overall circumstances and justice of the case.
Anti-suit injunction
In appropriate cases, where a party believes that the divorce proceedings should be conducted here in Hong Kong and if the other party attempts to commence proceedings in another jurisdiction, the first party may seek an order from the court restraining the second party from commencing proceedings in another jurisdiction. Such order is commonly known as an anti-suit injunction. This is a reverse situation of forum non-conveniens.
The family courts in Hong Kong have vast experience in dealing with cases with an international dimension. Many involved the large expatriate community in Hong Kong whose assets are located in Hong Kong and overseas. The Hong Kong courts regularly deal with the valuation of overseas properties and make orders thereto. It is commonplace for even the modestly affluent to have homes in two countries. A petitioner who asserts a substantial connection with Hong Kong may also have a substantial connection with one or more other jurisdiction. Given the complexity of scenarios which can arise if proceedings are issued in competing jurisdictions and the resulting complications and delay to the divorce proceedings with increased legal costs, parties should take advice at an early stage from specialist family lawyers in the possible jurisdictions to commence proceedings as to the best way to tackle such issues. It would be a waste of the parties’ resources for litigation to be conducted on two fronts.
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| IMPORTANT: The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors. |
| For enquiries: Please contact members of our Family & Matrimonial Practice Group: |
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Sherman Yan |
Tze-Yan Lam Consultant +(852) 2107 0335 ty.lam@onc.hk |
Piera Ng Associate +(852) 2107 0306 piera.ng@onc.hk |
Published by ONC Lawyers © 2011
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