Key points
This case in 30 seconds
- Situation
- Her spouse went back to the Mainland and lost contact; the phone number and address no longer worked.
- Approach
- She presented a sole petition and applied to the court to serve by newspaper advertisement instead.
- Result
- It took a little longer than an ordinary case, and she eventually obtained the certificate of decree absolute.
Three things that made the case go smoothly
- Before presenting the petition, she and her spouse had lived apart for more than two years.
- Keep records of your efforts to find your spouse, and tell the court by affidavit that you have done all you can to find them.
- After the decree nisi is granted, complete the application for the decree absolute on time.
Background
The client in this case is a married woman. After she and her spouse began living apart, he went back to the Mainland. His phone number and address then stopped working, and they had no further contact.
She wanted to end the marriage, but with her spouse’s whereabouts unknown she could not simply contact him to talk it through as in an ordinary case, and did not know where to start.
Her worries were mainly about the procedure itself:
- Her spouse had lost contact, and she did not know whether she could still apply for a divorce
- She was unclear which records of her search she should keep
- She worried the documents could not be served on her spouse and the application would stay stuck
What troubled her more was that her spouse had not replied for some time, and she did not know whether a case where the respondent cannot be found can go ahead.
She had searched online, but different websites said different things, and she was not sure her situation was covered.
At the first consultation she told the dedicated consultant the whole story: how they came to live apart, when they last had contact, and what she had already tried.
She wanted to know whether a divorce application was still possible when her spouse could not be found, and what she needed to prepare.
Losing contact with your spouse does not mean the application stops there. The first decisions are how to present it and how to deal with service.
Why choose a sole petition and substituted service?
In this case we chose a sole petition, because her spouse had lost contact and a joint application could not be made.
If your spouse’s address is unknown, you can apply to the court to serve by newspaper advertisement instead.
Main differences between a sole petition and a joint application
| Sole petition | Joint application | |
|---|---|---|
| How it is filed | One side files | Both sides file together |
| Serving your spouse | The petition must be served on the spouse | Not required |
| A child under 18 | Arrangements for custody and access must still be put forward together | Custody and access arrangements must be put forward together |
| Applying for the decree absolute | Form 5 | Form 5A |
For a full comparison of the two routes, see “Divorce by Mutual Consent vs a Sole Petition”. For the five stages and the documents needed, see “Divorce procedure”.
A spouse who went back to the Mainland and lost contact does not stop you applying for a divorce: first do all you can to find them and keep records, then apply to the court for substituted service or dispensing with service.
If your spouse can still be reached in the Mainland, see “Divorce cases where the spouse is in the Mainland”.
Two years’ separation as the ground: your spouse’s consent is not needed
Before presenting a divorce petition, if you and your spouse have lived apart for at least two continuous years, that can be the ground for the petition, and your spouse’s consent is not needed.
How do I apply for substituted service by newspaper advertisement?
The petitioner may not serve the petition on the respondent personally. It must be served through a third party or by post.
In a missing spouse case, you need to prepare the application for substituted service and an affidavit stating that you have done all you can to find your spouse.
What documents and fees do you need to prepare?
To file a divorce petition, complete Form 2.
- File the petition with the original or a certified copy of the marriage certificate, delivered in person to the Family Court Registry, and pay the filing fee of HK$630.
Once a sole petition with substituted service is settled on, what remains is knowing the timing of each stage and preparing the relevant documents.
How we helped
From the first consultation to the Certificate of Decree Absolute, the same dedicated consultant follows your case. Our help falls into three stages.
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Preparation
From the first consultation
At the first consultation, the dedicated consultant learns how contact with the spouse was lost and checks whether the application can be made on the ground of separation.
We helped her put together the records of her attempts to reach her spouse, including his last address, phone number and the results of asking relatives and friends, and prepared the affidavit needed for substituted service.
Once the information was in order, we went through every detail with her to make sure what was put to the court was consistent throughout.
Keeping a record of the last address, phone number and enquiries made of relatives and friends helps with the affidavit later.
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Filing and service
About 50 days from listing to hearing
With the documents ready, we helped her complete the petition and went with her to the Registry to file it in person and pay the filing fee.
Since her spouse’s whereabouts were unknown, we prepared the application for substituted service at the same time and helped her apply to the court to serve by newspaper advertisement.
Where the other side does not file an answer, the case goes on the Special Procedure List. Neither side has to attend, and the court deals with it on paper.
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Decree stage
6 weeks after the decree nisi
After the court granted the decree nisi, we explained to her what the decree means and its limits, and noted the waiting period.
Once the waiting period had passed, we prepared and filed the documents to make the decree nisi absolute.
Once the documents were sent out, we followed the court’s progress and told her the moment the certificate was issued.
6 weeks after the decree nisi is made, the notice of application for the decree nisi to be made absolute can be filed; use Form 5 for a petition by one side and Form 5A for a joint application.
Throughout, the client could phone the dedicated consultant at any time, in Cantonese, Mandarin or English.
We explained every court letter first, and what needed following up.
We are a divorce consultancy. We help you organise information, prepare documents and understand the procedure. If your case needs legal advice or a representative in court, we will tell you honestly and help you make other arrangements.
With the three stages joined up, this was the outcome.
Outcome
She eventually obtained the certificate of decree absolute and the marriage was formally dissolved; it took a little longer than an ordinary case.
Because her spouse had lost contact, this case needed extra time to assemble the records of the search and apply for substituted service. Once the court approved the method of service, the rest of the process was the same as an ordinary sole petition.
Going by the court’s waiting times, the dedicated consultant told her in advance roughly when each step would be done, so she knew where she stood.
For her, the biggest difference was that she did not have to wait for her spouse to reply, or for him to sign for the documents in person, before taking the next step.
As long as the affidavit and the records of the search are prepared step by step, the case can still move forward on schedule.
She said afterwards that she had first assumed that if her spouse could not be found, the divorce application would go nowhere. The dedicated consultant explained how to deal with it, and she learned there was still a way forward.
How does the procedure change if your situation is different?
The procedure in this case reflects the need for substituted service because her spouse had lost contact. If your situation is different, the procedure will change too.
Children under 18: If there are children under 18, the arrangements for custody and access must be put forward together.
The case is later contested: If the case is later contested, it goes on the defended list, at a cost of HK$1,045.
Spouse never responds: Even if your spouse does not agree, does not sign or does not reply, you can still present a sole petition. The court can continue the proceedings in your spouse’s absence on the facts that have been proved.
Three things you can do first in a similar situation
- Keep as many records as you can of your attempts to contact your spouse, such as the last address, phone number and the results of asking relatives and friends.
- Have your marriage certificate and your own identity details ready.
- Remember there is a waiting period after the decree nisi; once it ends, you can apply for the decree absolute.
FAQ
Can I still apply for a divorce if my spouse went back to the Mainland and lost contact?
A spouse who went back to the Mainland and lost contact does not stop you applying for a divorce: first do all you can to find them and keep records, then apply to the court for substituted service or dispensing with service.
If I apply on the ground of two years’ separation, do I need my spouse’s consent?
Before presenting a divorce petition, if you and your spouse have lived apart for at least two continuous years, that can be the ground for the petition, and your spouse’s consent is not needed.
How do I prove I have done all I can to find my spouse?
In a missing spouse case, you need to prepare the application for substituted service and an affidavit stating that you have done all you can to find your spouse.
If my spouse’s address is unknown, how are the documents served?
If your spouse’s address is unknown, you can apply to the court to serve by newspaper advertisement instead.
If my spouse never responds, will the court still deal with the case?
If your spouse does not return Form 4 within 8 days, the court can still continue with the case.
What documents does a sole petition need, and what does it cost?
To file a divorce petition, complete Form 2.
File the petition with the original or a certified copy of the marriage certificate, delivered in person to the Family Court Registry, and pay the filing fee of HK$630.
Will a hearing be scheduled? Do I need to attend?
Where the other side does not file an answer, the case goes on the Special Procedure List. Neither side has to attend, and the court deals with it on paper.
For an undefended case, the wait from listing to hearing is about 50 days; for a defended case, 110 days.
What happens after the decree nisi?
6 weeks after the decree nisi is made, the notice of application for the decree nisi to be made absolute can be filed; use Form 5 for a petition by one side and Form 5A for a joint application.
Do you give legal advice or appear in court for clients?
We are divorce consultants. We help you gather information, prepare documents and understand the procedure.
If your case needs legal advice or court representation, we will tell you honestly and help you make other arrangements.
Illustrative case: this page is adapted from similar cases we have handled. The people and details have been changed, and it is not a record of an identifiable client.
Every case is different, and the time taken and the result will vary. This page is general information only. It is not legal advice and is not a promise about your case.
