Disputes on the jurisdiction in divorce proceedings
Hong Kong is a true international city with a large number of residents from Mainland China, Taiwan, the United States, the United Kingdom, Europe, South Asia, Japan, South Korea and other places. Therefore, divorce cases in Hong Kong often involve cross-border and international elements. An important issue in divorce proceedings involving cross-border marriages is jurisdiction, that is one party may file a divorce suit in Hong Kong while the other party does not wish to litigate in Hong Kong and would like to file a divorce petition in a Court of another jurisdiction outside Hong Kong. Thus, conflict of jurisdiction arises.
The ground of Hong Kong Court’s jurisdiction over divorce cases
The legal principle for Hong Kong Courts to exercise jurisdiction over divorce cases is section 3 of the Matrimonial Causes Ordinance (Chapter 179 of the Laws of Hong Kong. According to this provision, Hong Kong Courts have jurisdiction over divorce cases in the following three situations:
- at the time when a divorce petition or application is filed, either of the two parties to the marriage is domiciled in Hong Kong; or
- at the time when the divorce petition or application is filed, either of the two parties to the marriage has ordinarily resided in Hong Kong for at least three years; or
- at the time when the divorce petition or application is filed, either of the two parties to the marriage has significant ties with Hong Kong.
Conflict of jurisdiction
Hong Kong Courts shall determine whether they have jurisdiction in accordance with section 3 of the aforementioned Matrimonial Causes Ordinance. For a cross-border marriage, the other party to the marriage may not be a Hong Kong resident or reside in Hong Kong, and the other party to the marriage may file a divorce lawsuit in another jurisdiction (not Hong Kong) where he lives. The Courts of Hong Kong and outside Hong Kong usually only decide whether it has jurisdiction over the divorce proceedings according to its own laws. Therefore, it is very likely that both the Courts of Hong Kong and another jurisdiction decide that they have jurisdiction over the divorce case. Facing a scenario of conflict of jurisdiction, the parties involved need to adopt a correct strategy.
The petitioner’s litigation strategy
For the petitioner (i.e., the party taking out the divorce proceedings), if he/she does not want the divorce proceedings to take place in Hong Kong Courts, he/she must be clear-minded and should not take out a divorce proceeding in the Hong Kong Courts from the very beginning. This is because there is the principle of “voluntary submission to the jurisdiction”. It means that if a party voluntarily submits himself to the Hong Kong jurisdiction (regardless of whether the Hong Kong Court actually has jurisdiction or is the appropriate forum to exercise jurisdiction), such party is estopped from backing out. In practice, an inexperienced divorce petitioner may first file a divorce petition in a Hong Kong Court, and then want to terminate the Hong Kong proceedings and litigate in another jurisdiction. Then, unless the other party in the proceedings agrees, this kind of backing out application to terminate the Hong Kong proceedings is often not accepted by the Hong Kong Court, because the Hong Kong Court will treat the petitioner’s submission of a divorce petition in the Hong Kong Court as the willingness to accept the Hong Kong Court’s jurisdiction.
For the petitioner, if the respondent (that is, the defendant in the divorce proceedings) has already filed another divorce lawsuit in a jurisdiction outside Hong Kong, the petitioner can consider applying for an anti-suit injunction in a Hong Kong Court, forbidding the respondent from continuing the proceedings in foreign jurisdiction..
The respondent’s litigation strategy.
For the respondent, if he/she does not want the divorce proceedings to begin in the Hong Kong Courts, he/she should make an application to challenge the jurisdiction before submitting any substantive defence to the Hong Kong Courts. If the respondent submits a substantive defence without challenging the jurisdiction or reserving the right to challenge the jurisdiction, the Court may treat this as voluntarily accepting the jurisdiction of the Hong Kong Court and cannot back out.
Jurisdiction disputes raised by the respondent usually base on one of the following two legal principle: the first principle is that the Hong Kong Courts do not have jurisdiction under section 3 of the Matrimonial Causes Ordinance (that is, the case does not match any one of the conditions in section 3) ; the second principle is although Hong Kong Courts have jurisdiction under section 3 of the aforementioned Matrimonial Causes Ordinance, Hong Kong is not the most convenient Court to exercise jurisdiction compared with Courts in a foreign jurisdiction.
The “Forum Non Conveniens” principle in Hong Kong matrimonial litigation
The “Forum Non Conveniens” principle originates from the English common law, and was confirmed in The Adhiguna Meranti [1987] HKLR 904 and a series of Hong Kong cases thereafter in Hong Kong Courts. The implication is that even though Hong Kong Courts have jurisdiction over divorce proceedings in accordance with section 3 of the Matrimonial Causes Ordinance, if there is a Court in another jurisdiction outside Hong Kong that is more suitable to try the case than Hong Kong Courts, the Hong Kong Courts can rule that Hong Kong is not the most convenient forum and dismiss the proceedings. The “Forum Non Conveniens” principle is usually one of the legal foundations on which the respondent relies when he/she challenges Hong Kong Court’s jurisdiction.
According to the principle established by the Court in The Adhiguna Meranti [1987] HKLR 904, when dealing with a jurisdictional challenge raised by a party based on the principle of ”Forum Non Conveniens”, the Court needs to consider whether there is a Court in another jurisdiction that has jurisdiction and is more appropriate for trying the case in order to achieve fairness.
When applying the above principles in practice, the Court needs to first consider whether there is a Court in another jurisdiction (need to specifically clarify the foreign jurisdiction) that is obviously more appropriate to try the case; and if there is such Court, then the Court needs to consider if the case is tried in a Court outside Hong Kong, whether it will deprive the respondent who challenges the jurisdiction any personal or legal interests (for example, the validity of matrimonial property agreement in civil law system is different from Hong Kong law; civil law does not have property disclosure procedure in matrimonial litigation; this kind of difference in legal systems may deprive a party’s potential legal interests in Hong Kong litigation); if the answers to the first and second questions are affirmative, then the Court has to balance the pros and cons and make the final decision.
Anti-suit injunction in divorce proceedings in Hong Kong
The anti-suit injunction in Hong Kong matrimonial proceeding is an order against a party in divorce by the Hong Kong Court, it forbids that party from initiating or continuing litigation in a Court of foreign jurisdiction. The anti-suit injunction targets the party in the litigation, but not the Court of foreign jurisdiction. The Hong Kong Court has no authority to order the foreign Court not to entertain or try any case, but it has right to order any party of Hong Kong matrimonial proceedings from undergoing any litigation outside Hong Kong. Breaching the anti-suit injunction issued by Hong Kong Court may result in criminal contempt of court.
If Hong Kong Court deems itself to be the most appropriate forum to try the divorce case, and carrying out the same litigation procedure in foreign jurisdiction is oppressive, vexatious or unconscionable, then Hong Kong Court can issue an order to permanently forbid any party from litigating outside Hong Kong. Hong Kong Court can also temporarily forbid any party from litigating in order to avoid any delay in Hong Kong litigation procedures. Issuing an anti-suit injunction order is a serious act, the Court should in principle act cautiously, and only issue anti-suit injunction order in special cases.
For divorce matters, please consult our solicitors in divorce team.