- To apply for divorce when your spouse is missing, you must set out in detail the circumstances of the disappearance and the steps taken to find them. The court then examines the evidence.
- If you cannot make a joint application and cannot rely on your spouse's unreasonable behaviour, you must wait until you have been separated for two years before applying for divorce.
- Once your spouse is confirmed missing, you can ask the court for “substituted service”, but you must show that the usual methods of service are no longer possible.
- The court does not grant substituted service lightly. Perjury is a crime. Never lie on oath.
Under the Matrimonial Causes Ordinance (Cap. 179), applying for divorce when a spouse is missing must follow set legal procedures. You must set out in detail how your spouse disappeared and what steps you have taken to find them.
The court examines the evidence to decide whether the standard for a missing-spouse divorce is met. If it is confirmed, the divorce application can be approved. The process can be relatively complicated and take longer.
The basic divorce procedure
In most cases, unless the couple make a joint application based on one year's separation, one spouse starts the divorce alone and the other is the respondent.
Under the current Matrimonial Causes Ordinance (Cap. 179), the person applying for divorce must prove that the marriage has broken down irretrievably. This may include the following:
- A spouse's adultery
- Being unable to live together
- Separation of more than two years
- Desertion for at least one year
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- Helping children adjust to a new family after divorce, so that children in a remarried, blended family grow up well
Not sure whether the marriage has broken down irretrievably?
Feel free to check your situation with us.
How to handle a divorce when your spouse is missing or uncooperative
Unless both spouses make a joint application on the ground of one year's separation, a divorce application is in most cases made by one spouse alone, and the other attends court as the respondent.
For example, a husband wants to apply for divorce jointly with his wife on the ground of one year's separation. But she refuses to cooperate, avoids his contact and accuses him of harassing her.
In that situation, if a joint application is not possible and you cannot rely on your spouse's unreasonable behaviour, you must wait until you have been separated for two years before applying for divorce.
What to do when your spouse is missing
If you lose contact with your spouse during the separation, for example because they move house or change jobs or contact details, court documents cannot be served, and the divorce is held up.
The applicant must prove that the divorce petition and other documents have been served on the spouse. If you cannot find your spouse, you can try to trace them through:
- Your spouse's family
- Your spouse's friends
- Your spouse's colleagues, and so on
Why you should keep tracking your spouse
During the separation, keep track of your spouse's movements where you can. Unless they are deliberately hiding, social media such as Facebook, Twitter or Weibo may give you some leads.
Please note
- Once the court allows the divorce petition to be served by an alternative method, the rest of the divorce can go ahead.
- If the division of family property or maintenance is involved, it must be dealt with separately.
- The divorce will not be delayed indefinitely, but how long it takes depends on the circumstances and the court's decision.
- Decree nisi and decree absolute in Hong Kong
- Hong Kong divorce agreements, petitions and joint applications explained
Serving documents when a spouse is missing
Normally, a divorce is started when the applicant hands the documents to the respondent directly or sends them by post.
If the respondent cannot be reached or their whereabouts are unknown, the divorce is seriously held up. The applicant must show that they have tried several ways of contacting the respondent, and keep a record of the effort.
Once your spouse is confirmed missing, you can apply to the court for “substituted service”. You must show that the usual methods of service are no longer possible, and that you have taken other reasonable steps to make sure the respondent learns of the divorce application.
In extreme cases, where your spouse really cannot be found and their family refuses to cooperate or to reveal where they are, you can give the court an affidavit saying you have done all you can but still could not find them.
You can ask the court to allow the documents to be served in another way, so that the respondent learns of the divorce application. The methods may include:
- Placing a notice in a newspaper
- Handing the documents to your spouse's close relatives, such as parents or siblings
Please note
- The court does not grant these alternative methods lightly, to prevent anyone from using a missing spouse as an excuse for a quick divorce.
- Perjury is a crime. Never lie on oath.
Serving a respondent who is overseas or not a local resident
If the respondent is not a local resident or may not be in Hong Kong, a notice in a local newspaper may not be effective enough, and the court may refuse substituted service.
In that case, making sure the respondent receives the divorce application is harder, and the applicant needs to look for more alternative ways to serve.
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Spouse missing and court documents cannot be served?
Get in touch, and a dedicated consultant will first understand your situation.
How can you make your marriage happier and prevent divorce?
Unhappiness in a marriage is sometimes down to both sides. To make your marriage happier, you can try the following:
- Communicate more: keep talking openly and honestly with your partner, share your feelings, thoughts and needs, understand theirs, and look for ways to solve problems together.
- Support each other: support your partner in difficulty and congratulate them on their achievements, to build trust and closeness.
- Create good memories together: spend good time with your partner and build shared memories. You can plan trips, join activities or hold family gatherings.
- Keep respect and gratitude: respect your partner’s views and choices and show thanks for what they do, which helps protect each other’s dignity and self-esteem.
- Keep a balanced pace of life: arrange work and life sensibly so that you have enough time for each other. Proper rest and relaxation matter too.
- Build romance and closeness: go on dates regularly or create romantic moments, such as giving gifts, writing love letters or arranging a special dinner.
Seek professional help
- If you both find it hard to resolve your marriage problems, consider asking for help from a psychotherapist, a marriage counsellor or a legal professional.
- Domestic violence in Hong Kong: definition, effects and where to get help
- How do I apply for a divorce?
- Divorce mediation in Hong Kong: the process and its benefits
- Spot the common mistakes in the divorce process, and do not let emotion take over
- What to know about affairs and infidelity in divorce in Hong Kong
Having trouble resolving problems in your marriage?
If in doubt, feel free to contact our dedicated consultants.
