- To apply for divorce you must have been married for more than 1 year. Even if your spouse does not agree, you can still file a divorce petition on your own by showing that the marriage has “broken down irretrievably”.
- For a joint application, or a unilateral application where the other side files no answer, the total is HK$1,260. If the other side files an answer, the total comes to HK$1,675.
- “2 years’ separation” does not need your spouse’s consent. Even if you still live under the same roof, the court will treat you as separated if you can show that you no longer live as husband and wife.
- Even if your spouse disagrees and defends the case, in the long run they can hardly stop the divorce from going through.
When a marriage is over but your spouse will not agree to a divorce, many people wrongly believe the marriage cannot be ended.
In fact, Hong Kong law provides a way to apply for divorce on your own. Even if the other spouse refuses to cooperate, you still have the right to bring your marriage to an end.
Marriage Breakdown: The Only Legal Basis for Divorce
A divorce does not need both spouses to agree. There is only one core requirement for petitioning: to show that “the marriage has broken down irretrievably”.
Hong Kong recognises five situations that can show a marriage has broken down:
- 1 year’s separation, with the other spouse’s consent
- 2 years’ separation
- Unreasonable behaviour
- Adultery
- Desertion
Important points before you apply for divorce
The basic condition for applying for divorce is that you have been married for more than 1 year.
Except for a joint application, even if your spouse does not agree, you can still file a divorce petition on your own as long as you can show the court that the marriage has truly broken down.
Please note
- In general, a couple married for less than 1 year cannot apply for divorce, unless the applicant faces exceptional hardship or the other spouse has been exceptionally depraved. This is a basic limit that exists to protect the institution of marriage.
Not sure which situations can show a marriage has broken down?
Feel free to check your situation with us.
Converting the Order: Procedure and Budgeting for Costs
After a decree nisi has been granted, the applicant must wait at least 6 weeks, then complete the “Notice of Application for Decree Nisi to be made Absolute” and file it with the court.
The marriage is formally ended only once the decree absolute has been granted.
Budgeting for costs
When you plan a divorce application, think about all the costs that may arise, including:
- Basic administrative fees
- Possible solicitor’s fees
- Extra legal costs if the case is disputed
Depending on how complex the case is, the total cost can range from as little as HK$1,260 to tens of thousands of dollars or more.
Costs and Procedure: Divorce by Agreement, and an Application Your Spouse Does Not Agree To
The cost of a divorce application depends on how you apply and the procedure that follows. There are three main types:
| Filing fee | List fee | Total | |
|---|---|---|---|
| Joint application | HK$630 | Special Procedure List fee HK$630 | HK$1,260 |
| Unilateral application, other side files no answer | HK$630 | Special Procedure List fee HK$630 | HK$1,260 |
| Unilateral application, other side files an answer | HK$630 | Defended List fee HK$1,045 | HK$1,675 |
Please note
- These figures cover basic administrative fees only. If the case is complex or you need a solicitor’s help, the actual cost may be higher.
Divorce by agreement: the simple procedure
When both spouses agree to divorce and there is no dispute over the division of property or custody of the children, you can choose to handle the divorce yourselves, without hiring a solicitor.
The conditions for applying are: you have lived apart continuously for at least 1 year, or at least 1 year before applying you filed with the court a consent signed by both of you (and not withdrawn).
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Application documents and how to file
Both spouses complete the application form together and file it with the Family Court Registry, together with the original marriage certificate or a certified copy. A filing fee of HK$630 is payable at this step.
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The hearing and the grant of the decree
The Family Court will put the application on the Special Procedure List, and a further administrative fee of HK$630 is payable. These cases usually need no hearing attended by either spouse, and the court grants a decree nisi after reviewing the papers.
If nothing unusual happens, the whole process is relatively simple and straightforward.
Applying without consent: you need a legal ground
If one spouse wants to apply alone, the procedure is more complicated. The applicant must show the court that “the marriage has broken down irretrievably”. The accepted legal grounds are:
- Your spouse has committed adultery and you find it intolerable to go on living together
- Your spouse has behaved unreasonably, so that you cannot be expected to live with them
- You have lived apart for at least 1 year and the other spouse agrees to the divorce
- You have lived apart continuously for at least 2 years (the other spouse’s consent is not needed)
- The applicant has been deserted by the spouse for at least 1 year
Preparing documents, and service
The applicant completes the divorce petition and files it in person at the Family Court Registry. A copy of the petition must be served on the other spouse by a third party (not the applicant).
Please note
- If there are children under 18, the petition must include specific proposals for their custody and access arrangements.
Extra documents, and the option of a solicitor’s help
Besides the main petition, the applicant has to complete several other documents, including:
- Notice of Proceedings
- Acknowledgement of Service
- Statement of Truth
- Family mediation certificate
Because the procedure is complicated, many applicants hire a solicitor to help and to draft a detailed agreement that sets out the key points, such as access to the children, custody and maintenance.
Fees generally start from a few thousand Hong Kong dollars.
How a case is handled when it is not defended, and when it is defended
| Other side files no answer | Other side files an answer | |
|---|---|---|
| Case list | Put on the Special Procedure List | Moved to the Defended List |
| Administrative fees | HK$1,260 in total (including the filing fee) | HK$1,045 |
| Result | The court grants a decree nisi, ending the marriage | The court hears both sides’ evidence and then gives judgment |
Please note
- If the evidence is not enough to show the marriage has broken down, the court may dismiss the application.
Appeals, and extra costs to consider
If either spouse is unhappy with the Family Court’s decision, or the two cannot agree on the children or financial issues and further proceedings are needed, solicitors’ fees and court costs can be high.
The total cost could reach tens of thousands or even hundreds of thousands of Hong Kong dollars. This is a possible extra expense to bear in mind when you apply for divorce.
- The fastest route when both spouses agree: steps, timing and costs
- What to prepare for a Hong Kong divorce: documents, information and points to consider
Not sure which legal grounds are acceptable?
Get in touch, and a dedicated consultant will first understand your situation.
Spouse Does Not Agree to Divorce: Divorce After 2 Years’ Separation
“2 years’ separation” is one of the most common grounds for divorce. Its biggest advantage is that your spouse’s consent is not needed. If you can show that you have actually lived apart for 2 years or more, you can apply for divorce on your own.
The legal meaning of separation is more flexible
- In law, “separation” does not only mean living in different places.
- Given Hong Kong’s housing situation, even if you still live under the same roof, the court will treat you as separated if you can show that you no longer live as husband and wife (for example, no intimate relationship, separate finances and separate daily lives).
Service of the papers is what makes it effective
Even after 2 years’ separation, your spouse may still refuse to sign for the documents.
Once you have served the divorce papers on your spouse in the way the law requires, you can carry on with the divorce whether or not your spouse signs for them or responds.
Your spouse’s refusal to cooperate only means they have given up their right to take part in the proceedings.
A flexible alternative: divorce on the ground of unreasonable behaviour
“Unreasonable behaviour” (UB) is another commonly used ground, especially where you have been separated for less than 2 years. It covers a wide range, and all of the following can count as unreasonable behaviour:
- Serious cases: visiting prostitutes, gambling, heavy drinking, drug use, domestic violence
- Milder cases: not giving household money, neglecting the family, having an affair, ignoring the children and so on
How each case is judged
The court does not give a fixed list of what counts as “unreasonable behaviour”. It looks at the facts of each case.
The key is to show that your spouse’s behaviour means you cannot reasonably be expected to go on living with them.
Evidence, and what it affects
- If your spouse does not contest the case, you usually do not need to give the court specific evidence of the unreasonable behaviour.
- Your spouse’s behaviour generally does not affect how the marital assets are divided, and the divorce petition is not a public document.
- If you have already been separated for 2 years, we suggest you avoid using this ground to list your spouse’s faults, so as not to cause unnecessary conflict.
Other grounds for divorce: adultery and desertion
Although a spouse’s affair is a common reason a marriage breaks down, in practice few people petition on the ground of “adultery”, mainly because:
- An accusation of adultery may provoke strong resistance from the other spouse
- Proving adultery does not affect the division of property either
Choosing an approach that avoids conflict
- Even when a spouse has had an affair, many people still prefer the milder ground of “unreasonable behaviour” to an outright accusation of “adultery”. It lowers the chance of the other side defending and speeds up the divorce.
How useful is the desertion ground?
If your spouse has deserted you for more than 1 year in a row, you can apply for divorce on the ground of “desertion”.
However, this ground is used less often, because once the other spouse has left, “unreasonable behaviour” is usually quicker and more effective.
Spouse Does Not Agree to Divorce: Practical Divorce Strategy Tips
Depending on your situation, you may find the following suggestions useful:
- If you have been separated for 2 years, we suggest using the “2 years’ separation” ground
- If you have been separated for more than 1 year but less than 2, and your spouse is willing to cooperate, you can choose “1 year’s separation, with the other spouse’s consent”
- If your spouse does not agree, or you have been separated for less than 1 year, you can use “unreasonable behaviour” as the ground
When your spouse defends the case
Even if your spouse disagrees and defends the case, in the long run they can hardly stop the divorce from going through.
If one spouse is set on divorce, then even if the other succeeds in opposing it for the time being, the applicant can wait until the conditions are met (such as 2 years’ separation) and apply again.
The help a solicitor can give
A solicitor can look at your situation and help you work out the most suitable ground for divorce, judge whether your evidence is enough, and guide you through the procedure.
If you are the respondent, a solicitor can also help you decide whether to file a cross-petition or defend the case, to protect your rights.
- How to rebuild your life after a divorce in Hong Kong
- How divorce affects children in Hong Kong, and ways to support them
Not sure which ground for divorce suits you best?
If in doubt, feel free to contact our dedicated consultants.
Common Questions About a Spouse Who Does Not Agree to Divorce
What if my spouse refuses to accept the divorce papers? How do I serve them?
If your spouse refuses to accept the papers, you can apply to serve them another way, such as by newspaper notice, by post to the last known address, or through a third party who is in touch with your spouse.
How likely is a divorce application without your spouse’s consent to succeed?
If you can show clearly that the marriage has truly broken down, the chance of success is fairly high.
The key is to give specific evidence for your ground, such as proof of separation, evidence of adultery or records of abuse.
About how long does a divorce application without your spouse’s consent take?
It generally takes 6 to 12 months. If your spouse defends the case, or there are disputes over the children or the division of property, it can stretch to 18 months or longer.
What documents do I need to prepare for a divorce application without your spouse’s consent?
You need the divorce petition, the marriage certificate, the Notice of Proceedings, the Acknowledgement of Service, the Statement of Truth, the family mediation certificate, and evidence to support your ground.
What should I watch for if there are children under 18 and I apply alone?
The petition must include specific proposals for custody and access arrangements.
The court puts the children’s best interests first, and may ask both spouses to take part in mediation or a family investigation.
Can I apply again if the court dismisses my divorce application?
Yes, but you will need to wait for a while and put forward new evidence or a new ground.
A better course is to take legal advice first, find out why the first application was dismissed and prepare stronger evidence.
