- The Mainland has two routes, divorce by agreement and divorce through the courts. Hong Kong has only one, divorce through the court. The two places also differ in time limits and terminology.
- To divorce in Hong Kong you must show that the marriage has lasted at least one year and that you have a statutory ground such as adultery, separation or desertion. The court must be satisfied that the marriage has broken down irretrievably.
- On the Mainland, a first application for divorce through the courts is usually refused, unless it involves bigamy, harmful habits, domestic violence or cohabitation with another person. A second application after six months is usually granted.
- If a Hong Kong resident and a Mainland resident registered their marriage in Hong Kong and later want a divorce on the Mainland, it must go through the courts, and notarised and translated documents must be ready.
When a marriage ends, the couple must go through a formal divorce procedure. The Mainland and Hong Kong have different legal systems, so the procedures and conditions differ.
This page sets out the main differences in divorce between the Mainland and Hong Kong, and whether residents of one place can divorce in the other’s jurisdiction.
How divorce procedure differs between the Mainland and Hong Kong
The Mainland offers two routes, divorce by agreement and divorce through the courts. Hong Kong offers only divorce through the court. The two places also differ in time limits, terminology and conditions.
| Mainland | Hong Kong | |
|---|---|---|
| Time limit for applying for divorce | Can be done at any time after marriage | You must have been married for one year before you can apply for a “divorce” |
| What the other party is called | The other party is called the defendant | The other party is called the “respondent” |
| Test for divorce | Centres on the breakdown of the relationship | Hong Kong: the marriage must have broken down irretrievably |
| Length of separation required | Usually two years | Can apply after one year |
| Where it is handled | The civil affairs bureau or the court | The Family Court completes the “procedure” |
On inheritance in Hong Kong: when one spouse dies, the surviving spouse usually has priority in the distribution of the estate.
In Hong Kong, whether or not the couple agree, a divorce application must be made to the Family Court.
- If you agree, you can file a “joint application” setting out the divorce terms you have agreed.
- If you disagree, you must file a “petition for divorce” stating the reasons and facts for the divorce.
- The Family Court first grants a “decree nisi”. If no one objects within six weeks, you can apply for a “decree absolute”, which formally ends the marriage.
- On the Mainland, divorce by agreement is handled by the civil affairs bureau. Once the couple have settled everything between them, it generally takes about one month.
- A divorce through the courts is started in court. Depending on how far the children’s care or the division of property is disputed, it takes anywhere from one month to two years.
On the Mainland, a first application for divorce through the courts is usually refused unless you can prove that the other party committed bigamy, has harmful habits such as gambling or drug use, committed domestic violence, or is living with someone else. If you apply again after six months, the court will usually grant it.
Conditions for divorce in Hong Kong:
- Joint application: the couple must have been separated for at least one year, or have filed the relevant supporting documents with the Family Court before the year is up.
- Application by one spouse: you must have been married for one year (less than a year needs the court’s special permission) and be able to prove adultery, separation (at least one year with consent, or two years without consent), or desertion for one year.
- The court will grant the application as long as it finds that the marriage has “broken down irretrievably”.
- Hong Kong: at least one spouse must hold Hong Kong status, or have lived in Hong Kong continuously for three years up to the time of the divorce application, or have a close connection with Hong Kong, before the Family Court can hear the case.
- Mainland: for a divorce by agreement, the couple must have registered their marriage on the Mainland and at least one must still hold Mainland household registration. A divorce through the courts does not require a Mainland marriage certificate, but one spouse must hold Mainland household registration, or the defendant must have a stable home and continuous residence on the Mainland.
Couples in a cross-border marriage should seek professional legal advice early, deal with the procedure in the most suitable jurisdiction, and put a written agreement in place early in the marriage to reduce disputes later.
- What to prepare for a Hong Kong divorce: documents, information and points to consider
- Divorcing overseas: can a Hong Kong person divorce in Hong Kong if they married abroad?
- Is separation required before divorce? How to prove separation and use the evidence
- Decree nisi and decree absolute in Hong Kong
- Hong Kong divorce agreements, petitions and joint applications explained
Not sure how Mainland and Hong Kong divorce procedures work?
Talk to us to check your case and the documents you need.
Mainland and Hong Kong residents divorcing in each other’s jurisdiction
If a Hong Kong husband and a Mainland wife registered their marriage in Hong Kong and later want a divorce on the Mainland, it can often only be done through the courts. The civil affairs bureau cannot handle a divorce by agreement.
- It may have to be handled at a civil affairs bureau qualified to register foreign-related marriages.
- If the couple cannot agree on the divorce, the People’s Court must accept the case and give a ruling.
- With a cross-border element, notarisation, translation and service of notices need more care.
If you choose to apply for divorce in a Mainland court, you will usually need to prepare the following documents and meet the court’s requirements.
- Statement of claim: sets out the grounds for divorce and your claims, including the care of the children and the division of property.
- The Hong Kong marriage certificate: a notarial certificate issued jointly by a China-Appointed Attesting Officer and a Hong Kong solicitor, confirming that the original and the copy match.
- The children’s birth certificates: if obtained in Hong Kong, they must also be notarised before use on the Mainland.
- Identity documents: the Mainland spouse brings the household register and identity card; the Hong Kong spouse brings the Hong Kong identity card and the Home Return Permit or a Mainland travel permit.
- Authorisation: if you cannot attend in person, you must have the power of attorney notarised in Hong Kong and confirmed with the transmission stamp of a China legal services company.
Court proceedings for a foreign-related divorce are similar to an ordinary Mainland divorce, with three stages: filing the case, the trial and the judgment. Service and appeal periods are usually longer.
- Both spouses on the Mainland: you can attend court in person to give your account and take part in mediation. If one spouse does not agree to the divorce, it may take more than a year.
- One spouse overseas: you can appoint a Mainland lawyer to act for you throughout the case without returning. The authorisation and notarisation must follow the local procedure, and the documents are then sent back to the Mainland for translation and confirmation.
- Children and assets: Mainland courts usually deal only with property and child disputes that can be enforced on the Mainland. Assets overseas may not be dealt with at the same time because they are hard to verify across borders.
- Service: if the other party cannot be found, the court may serve by public notice. For a defendant living abroad, give their actual residential address in full to help service, although the time allowed for service abroad is generally longer.
Please note
- A foreign national’s passport counts as an identity document. The court can accept it directly, and it generally does not need separate notarisation.
- If a foreign national has a Chinese name, their English name can be added after it in the statement of claim. The name must be exactly the same throughout notarisation and authentication.
- We recommend using a judgment as the closing document, because some countries may not recognise a Chinese court’s mediation statement.
Divorce procedure on the Mainland
Mainland divorce takes two forms, divorce by agreement and divorce through the courts. The process has been adjusted since the Civil Code came into force.
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Making the application
Both spouses sign a divorce agreement (which must settle the care of the children, the division of property and debts), and hand the marriage certificate, identity cards and the divorce registration application form to the marriage registration office.
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Acceptance and review
The office checks the documents. If they are incomplete or the conditions are not met, the application is not accepted. If the marriage certificate is lost, a supporting statement must be submitted.
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30-day cooling-off period
There is a 30-day cooling-off period from the date of application, during which either spouse can withdraw the divorce application.
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Completing the registration
Within 30 days after the cooling-off period, both spouses attend again to submit the application. If the review finds no problems, the divorce certificate is issued.
If one spouse will not agree to a divorce by agreement, or there is a major dispute, either spouse can bring a court case. However, the husband cannot bring a case during certain periods affecting the wife, and spouses of serving military personnel face other legal restrictions.
- You must apply to file the case with the grassroots People’s Court where the defendant is registered. If the defendant’s residence differs from their registered place, you can also choose the court where they live.
- The documents needed include the divorce statement of claim, household register, identity card, marriage certificate and evidence that the relationship has broken down, such as domestic violence or separation records. Proof about property and child custody must also be submitted.
- Before the case is filed, the court first arranges pre-action mediation lasting 30 to 60 days, hoping to bring the couple to a settlement or agreement.
Mediation has three possible outcomes: it fails and the case goes to trial; the couple reconcile and withdraw the application; or they reach an agreement and the court issues a mediation statement that ends the marriage immediately.
Once the case reaches trial, the judge may suggest mediation again. Unless there is good reason, both parties generally have to attend court in person.
A divorce case is generally not decided in the courtroom. The judge decides whether to grant the divorce under the Civil Code, based on whether there is bigamy, domestic violence or long-term separation.
- If you do not accept the judgment, you can appeal within 15 days after the written judgment is served.
- If the first application is refused, you can bring a new divorce case after six months, or after one year of separation.
Thinking of a court divorce on the Mainland?
Talk to us to check your situation and preparation for the case.
Divorce procedure in Hong Kong
Under the Matrimonial Causes Ordinance (Cap. 179), a divorce requires proof that the marriage has broken down irretrievably. The statutory grounds include adultery, unacceptable behaviour and separation.
- Adultery.
- Unacceptable behaviour that makes it impossible for the couple to live together.
- Both spouses agree and have been separated for more than one year.
- Separation of more than two years without the other spouse’s consent.
- One spouse has been missing for more than two years.
The couple must show that the marriage has lasted at least one year before they can apply. If the marriage involves serious difficulty, the court may use its discretion to waive this limit.
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File the petition
File a complete petition for divorce with the Family Court, together with documents such as the marriage certificate, notices, a statement of truth and proof of family mediation.
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Service of documents
Serve the petition on the other party by a lawful method. In a divorce by agreement this step can be left out.
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Decree nisi
If the court accepts that the grounds are made out, it grants a decree nisi, followed by a six-week waiting period in which others can object.
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Decree absolute
Six weeks after the decree nisi, the applicant can ask for it to be made absolute, which formally ends the marriage.
After the divorce, custody and access arrangements for the children are made in their best interests. Property is divided fairly according to both spouses’ financial positions, contributions and needs, and the court may also consider a maintenance order where necessary.
Divorce is not the end. Making good arrangements for the children’s care and the division of property helps both of you start a new life.
Mediation can help the couple reach a settlement before the formal hearing, saving time and money and easing emotional conflict. Choosing the right solicitor is also important.
- Preparing mentally for divorce, and how counselling helps mental health
- Rebuilding your life after divorce: how to look after yourself and start again
- How divorce affects children in Hong Kong, and ways to support them
- Helping children adjust to a new family after divorce, so that children in a remarried, blended family grow up well
Planning to apply for divorce in Hong Kong?
Ask us about the procedure that applies to you and the steps involved.
Frequently asked questions about divorce procedure in the Mainland and Hong Kong
What is the basic difference between divorce on the Mainland and in Hong Kong?
The Mainland allows both divorce by agreement and divorce through the courts, while Hong Kong allows only divorce through the court.
How long must the marriage have lasted before you can apply for divorce in Hong Kong?
In Hong Kong, a couple must show that the marriage has lasted at least one year before they can apply for divorce.
Does a Mainland divorce application have a time limit like Hong Kong’s?
The Mainland has no minimum length of marriage, and a couple can apply for divorce by agreement at any time.
What is the main evidence needed in a Hong Kong divorce?
A Hong Kong divorce requires proof that the marriage has broken down irretrievably. Common evidence includes adultery, proof of separation and unacceptable behaviour.
How does a court divorce on the Mainland differ from one in Hong Kong?
On the Mainland, a first court application for divorce may be refused, and you need to show a long separation or irreconcilable differences. In Hong Kong you need to show that the marriage has broken down irretrievably.
What are the main documents for a court divorce on the Mainland?
You need the divorce statement of claim, household register, identity card and marriage certificate, and possibly other supporting documents such as evidence that the relationship has broken down.
