- Whatever the circumstances of an affair, the court normally divides assets fairly under the law and does not tilt the division because of personal conduct. But if the family's assets have suffered a serious loss, the division can be affected.
- Since 14 June 1996, Hong Kong no longer allows claims for damages because of adultery.
- Adultery in itself usually has little effect on a custody decision, unless it harms the child psychologically. The court's main concern is the child's best interests.
- A prenuptial agreement and a trust can help separate what you owned before marriage, but the court has wide discretion when dealing with the division of assets, maintenance and similar issues.
When a marriage breaks down and the couple cannot agree on how to divide their assets, they have to turn to the court. What people worry about most is whether the assets will automatically be split in half.
This article looks at whether an affair affects the division of property, how the court treats a prenuptial agreement, and maintenance.
Divorce After an Affair: Grounds, Coping and Dividing Property
Applying for divorce after an affair is relatively simple. Emotionally, start by accepting that the fault lies with the other person. Property is normally divided fairly under the law.
In Hong Kong, you only need to show that your spouse's conduct has made it impossible to carry on with the marriage. An affair is one of the most common grounds.
Besides affairs, there are many more personal reasons, for example:
- A spouse who cannot show affection
- Poor communication
- Differences in values
For example, one client said their partner woke them in the night demanding sex. This kind of behaviour has also been treated as a reasonable ground for divorce.
So in Hong Kong, once you can prove this kind of conduct, you do not need a great deal of supporting evidence to apply for divorce.
After a spouse's infidelity, many people feel anger, grief and even self-doubt. The first thing to be clear about is that the fault lies with the other person, not with you.
Divorce after an affair leaves deep emotional wounds, but life has to go on.
Seeking professional counselling or talking to family and friends is an effective way to recover step by step.
Once your feelings have settled, you must deal with the practical matters that follow, such as dividing property.
Whatever the circumstances of the affair, the court normally divides assets fairly under the law and does not tilt the division because of personal conduct.
Does an affair affect the division of property?
Feel free to check your situation with us.
Property, Maintenance and Compensation for Adultery in a Hong Kong Divorce
In Hong Kong, an affair and the division of property are two separate matters. Even if the divorce is caused by a spouse's infidelity, maintenance and the division of family assets are decided fairly under the law.
Child maintenance
In divorce cases involving a family and children, the court is very strict about financial support:
- Where one parent is the family's main earner, that parent normally has to keep paying maintenance for the children
- The amount depends on the children's reasonable needs and the paying parent's ability to pay
- If both parents have a steady income, the court looks at each parent's finances and earning power to decide what share each should bear
How property and maintenance are linked
Some people wrongly think that a divorce over an affair directly changes how property is divided. But Hong Kong courts do not normally change the division of property because of who was at fault for the breakdown.
Please note
- On the contrary, the spouse who had the affair may still have to pay maintenance, which adds to their financial burden.
- On maintenance, it is wise to agree clearly how much goes to the former spouse and how much to the children, to avoid financial disputes later.
Affair and adultery: the legal difference
In Hong Kong, an “affair” and “adultery” are two quite different concepts. Both involve unfaithfulness in a marriage, but adultery has a strict legal definition and standard of proof.
| Affair | Adultery | |
|---|---|---|
| What it involves | May involve emotional betrayal or physical infidelity | A married person voluntarily has sex with someone who is not their spouse |
| Legal standard | May not meet the legal standard for adultery | Firm evidence that sex took place is needed |
Divorce and compensation for adultery
In Hong Kong, if a spouse commits adultery, the court will not normally award the other spouse any financial compensation for it.
Even if the court finds that adultery took place, this does not lead to financial compensation for the “injured” spouse.
Since 14 June 1996, Hong Kong no longer allows claims for damages because of adultery.
For proceedings begun after that date, there is no legal basis for compensation even if adultery is proved. The only exception is a case that had already begun before that date.
Adultery, child custody and ancillary relief
When the court hears a divorce based on adultery, the adultery itself usually has little effect on the custody decision or on ancillary relief (the orders about money and property after divorce):
- The court's main concern is the child's best interests, not the parents' moral conduct
- Even if a parent has committed adultery, that parent may still be given custody as long as they are seen as able to care for the child properly
Adultery and the division of property
On the division of property, however, if the court finds that a spouse overspent because of adultery, or caused serious loss to the family's assets, this is treated as serious misconduct.
For example, if a spouse spends a large sum on an affair, this may affect how the court divides the marital assets, because the conduct directly affects the family's finances.
Please note
- Adultery in itself does not help a custody claim, but if it has affected the child psychologically or emotionally, the court may take that into account.
- For example, if the child is unwilling to spend time with the parent's affair partner, or is distressed and upset by the adultery, this may affect the custody decision.
Prevention: a prenuptial agreement and a trust
To avoid disputes over property on divorce, it is wise to set up a trust and sign a prenuptial agreement before marriage. They can be seen as “insurance” for the marriage.
With both sides understanding and agreeing, a couple can plan in advance how their assets are managed and divided. This protects each person's finances and reduces the financial shock and legal disputes of a divorce.
- How to secure the best maintenance after divorce
- Common reasons and grounds for divorce in Hong Kong
- What to know about affairs and infidelity in divorce in Hong Kong
- Advice on preparing before a divorce
The Myth That an Affair Lets You Take Half Your Spouse's Assets in Hong Kong
A spouse's affair or adultery can be good grounds for divorce. But when Hong Kong courts divide property on divorce, they do not automatically favour one side because of the other's adultery.
The court divides assets fairly mainly according to each side's financial contribution, their finances during the marriage, and their needs, not on moral judgement.
What “splitting the assets” really means
| Common belief | What actually happens | |
|---|---|---|
| Share of assets | Assets are split half and half on divorce | Depending on the length of the marriage, each side's financial contribution, the standard of living and other factors, one share may well be far more than half |
| The spouse who had an affair or committed adultery | It directly affects the outcome of the division | It does not increase their maintenance burden or reduce their share of the assets |
In some cases one spouse may receive up to 70 per cent of the assets, especially where contributions to the family are hard to measure. The court considers every aspect to reach a fair division.
Basic principles for dividing property on divorce
In Hong Kong, dividing property on divorce does not mean automatically cutting one spouse's assets in two. The court considers many factors, including but not limited to:
- Each side's financial situation
- Contributions during the marriage
- Each side's financial needs
The starting point may be 50/50, but the final division is adjusted to the facts of the case.
The court aims to make the division fair. It is not a way of punishing unfaithfulness.
In dividing assets, the court looks not only at what the couple own together but also at what each owned personally before the marriage.
Even the financially weaker spouse is not necessarily entitled to half of the other's assets.
For example, if the marriage was short and the court considers that the weaker spouse contributed little to it, that spouse may not receive the division they expect.
Property division is gender-neutral
Hong Kong law treats the division of property on divorce as gender-neutral. A wife may receive part of her husband's assets, and a husband may equally receive part of his wife's.
- Is a wife always entitled to half the assets on divorce?
- What happens to the property and mortgage after divorce
- Housing arrangements for public rental flats after divorce
Are assets automatically split half and half on divorce?
Get in touch, and a dedicated consultant will first understand your situation.
Arranging Your Property Before a Divorce: Prenuptial Agreements and Trusts
To keep finances in a marriage transparent and fair, couples are advised to set up a trust and sign a prenuptial agreement before the wedding, so that what each owned before marriage is kept apart from what they own together afterwards.
This helps avoid disputes over property later. It also prevents the other side from having unrealistic expectations or misunderstandings about the assets.
How a trust is set up and how it works
A trust is a way of managing property. The owner (the settlor) transfers rights in the property to a trustee, who manages it according to the purpose and terms of the trust.
| How it is treated on divorce | |
|---|---|
| Rental property owned before marriage and put into a trust | In theory, it should not count as shared property |
| Rent used for everyday household expenses or paid into a joint bank account | May be treated as wealth shared by the couple, and may be used in the division of property |
Even if one spouse does not want their assets divided, they cannot put all their assets into a trust.
For example, a billionaire who puts almost all his assets into a trust and lives in poverty himself is not realistic in practice.
| How it is treated on divorce | |
|---|---|
| Income from work after separation, or an inheritance from the family | Normally does not have to be divided on divorce |
| One spouse wins the Mark Six jackpot after separation | It does not have to be divided, but it is taken into account as a new source of wealth |
For example, if your usual monthly income is HK$50,000 and the other side asks for the same living expenses, the windfall will naturally affect what you are expected to pay.
Why prenuptial agreements matter, and why trusts have become common
In Hong Kong, some families sign a prenuptial agreement and set up a trust before the wedding. It may seem to assume that the marriage could end, but in most cases it is the parents who ask for it:
- To protect family assets and make sure wealth passes smoothly to the next generation
- This covers not only a family business but also a large amount of personal property and investments
Trusts used to be seen as the preserve of the aristocracy. In modern society, as the economy has grown and personal wealth has increased, setting one up has become common.
According to the latest figures, Hong Kong has more than 500,000 people worth tens of millions. This shows that trusts are no longer limited to the very wealthy.
A trust can effectively avoid disputes over property on divorce, make sure assets are clearly allocated, and stop money problems from damaging relationships within the family.
Please note
- If one spouse's parents own commercial property and the rent is used for family expenses, not setting up a trust clearly may cause problems over the division of property on divorce.
- Under a common law system like Hong Kong's, a trust or a prenuptial agreement cannot completely prevent disputes over property.
- Hong Kong courts have wide discretion when dealing with the division of assets, maintenance and similar issues. They take all relevant factors into account to reach a fair and just decision.
Putting a prenuptial agreement into effect, and its challenges
Signing a prenuptial agreement does not settle everything. In cases such as divorce after an affair, the other side may ask for shared property to be divided or for a property to be sold.
A prenuptial agreement has to be properly carried out on divorce. It asks the court to consider both sides' actual needs and finances, divide assets fairly, and make sure assets owned before marriage are not treated as family wealth.
- Dividing assets on divorce in Hong Kong, and how to protect yours
- Hong Kong divorce: property title, mortgage division and points to note
Can a prenuptial agreement prevent disputes over property?
If in doubt, feel free to contact our dedicated consultants.
Divorce After an Affair in Hong Kong: Frequently Asked Questions
In Hong Kong, is an affair the only ground for divorce?
No. An affair is one common reason for divorce, but Hong Kong law has other grounds too, such as unreasonable behaviour, two years' separation (with the other spouse's consent) or five years' separation (without it), and the other spouse's disappearance.
After finding out about a spouse's affair, should I start divorce proceedings at once?
It depends on your situation.
Some people choose to try marriage counselling or other ways of repairing the relationship.
If you decide to divorce, it is best to consult a solicitor first, so that you understand your legal rights and the best course of action.
How do I prove my spouse's affair?
Proof can come in many forms, including but not limited to message records, e-mails, social media messages, photos, videos or witness statements.
When gathering evidence, it is best to consult a solicitor to make sure your methods are lawful and effective.
If my spouse has an affair, can I get compensation?
In Hong Kong, apart from the division of the couple's shared property, a spouse who has an affair does not normally have to pay “moral compensation”.
However, you can receive financial support through maintenance and arrangements for the children.
My spouse does not agree to a divorce. Can I still divorce them because of an affair?
Yes. If you can prove the affair in court, and prove that it has broken the marriage down beyond repair, the court can grant a divorce.
How do I deal with the emotional distress of an affair?
Dealing with this kind of distress can take time and outside support. You can consider counselling, joining a support group or talking to trusted friends and family.
After an affair, can we still part peacefully?
Entirely possible.
Many couples, even after an affair, reach a peaceful settlement through negotiation and counselling. This covers the division of property, maintenance and the children's care.
A peaceful separation not only reduces emotional harm but also helps protect the long-term wellbeing of both of you and your children.
