- To apply for a divorce in Hong Kong, you must show the court that the marriage has broken down beyond repair. Separation is a common way to show this, but it is not required.
- If you both agree to the divorce, you can apply after living apart for one year. If one of you does not agree, you must have lived apart for two years.
- You can prove separation with proof of residence, separate finances, separate social lives, changes in family roles and statements from third parties.
- Signing a separation agreement is the best way to prove separation. Once signed, it is legally effective and binds both of you.
Proving that you are separated is a key step in handling your divorce and dividing your finances. It rests on facts that can be shown, such as living arrangements, financial independence and separate social lives.
Below we explain whether divorce requires separation, how to prove separation and how to use your evidence.
Proving marriage breakdown: the accepted grounds
When you apply for a divorce in Hong Kong, you must show the court that the marriage has “broken down irretrievably”. The court decides on the evidence.
The court accepts several facts in support of a divorce application, including but not limited to the following:
- Your spouse has committed adultery and you find it intolerable to continue living together.
- Your spouse’s behaviour is such that you cannot reasonably be expected to live with them.
- Separation: you must show that you and your spouse have lived apart for a continuous period of at least 1 year before the application, and that your spouse consents to the divorce.
- Without your spouse’s consent, you and your spouse must have lived apart for a continuous period of at least 2 years.
- Your spouse has deserted you for a continuous period of at least 1 year.
Ending a marriage usually involves legal procedure. Separation is a common step along the way, but it is not strictly required.
Not sure which ground applies to you?
Talk to us to check your situation and the evidence you will need.
Joint applications: what you must prove, and arrangements for children and property
If you apply for divorce jointly, you must show the court that you meet one of the following requirements:
- You have lived apart for a continuous period of at least 1 year before the application.
- A notice of consent to divorce signed by both of you (Form 2E) was filed with the court at least 1 year before the application, and has not been withdrawn since.
Where there are children under 18, the application must include specific proposals for custody and access.
If you also seek ancillary relief, the following must be set out in detail in the application, including but not limited to:
- Maintenance
- Transfer of interests in property
- Division of matrimonial assets
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What is separation? Separation as a basis for divorce
Separation is usually the stage where tension between spouses has become too great for them to live together, but they are not yet ready to divorce formally.
Under Hong Kong law, separation is one of the valid bases for a divorce. The period required is:
| Period of separation required | |
|---|---|
| Both sides agree to the divorce | You can apply for divorce after only one year apart |
| One spouse does not agree to the divorce | You must live apart for two years before you can start divorce proceedings |
| Missing spouse | You must live apart for two years before you can start divorce proceedings |
How separation can ease marital problems
During this time, separation can:
- Ease tension at home and stop you from rushing into a divorce while emotions are running high.
- Give you both a chance to calm down, think independently and look for ways to solve the problems.
- Let you try out a possible future of living apart, including adjusting child care and living arrangements, and getting used to the change.
Separation and transfer of interests in a home
When spouses separate or divorce, being separated can be a reason to apply to transfer ownership of the following types of home, whether held jointly or in one name:
- Home Ownership Scheme
- Flats under the Private Sector Participation Scheme
- Flats under the Tenants Purchase Scheme
Please note
- Under the Housing Ordinance, these flats cannot be freely transferred within two years of their first sale, or before the premium has been paid.
- In special circumstances such as divorce or separation, the Housing Authority may approve a transfer application at its discretion, case by case.
Proving separation in legal proceedings
You need to put forward enough evidence to support your claim of separation. This may include documents and oral testimony.
In assessing evidence, the court looks at how complete and how credible it is.
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How to prove separation: evidence, and how to fix the separation date
The key to proving separation is showing that you and your spouse lead independent lives. Common ways to show this are:
- Proof of residence: if you live at different addresses, you can provide utility bills, a tenancy agreement or property registration documents.
- Financial independence: separate bank accounts and separate financial responsibilities and expenses show that your finances are independent.
- Social independence: if your social lives are completely separate and you no longer attend social events as a couple, this can also be evidence.
- Changes in family roles: if your roles in the family have clearly changed, for example you no longer take part together in family gatherings or festival celebrations, this can also be evidence.
- Statements from third parties: statements from friends, relatives or neighbours can support your claim of separation.
Separation means that spouses have stopped living together as husband and wife.
In Hong Kong, separation can mean living in different places, or living under the same roof but leading completely separate lives. The second is known as “living apart under one roof”.
How to fix the date of separation
If you and your spouse disagree about the exact date you separated, the following evidence can help show when separation actually began:
- Living arrangements: a change in living arrangements is direct evidence of the separation date, for example one of you moving out of the shared home, or clearly separate living areas within the same home.
- Financial evidence: records of payments for utilities and other household expenses can show how responsibilities and costs were shared. If you stopped supporting each other financially, or stopped giving each other gifts, that may also point to separation.
- Bank and tax documents: a change in the status of a joint account, such as keeping it or closing it, is important evidence. A change in tax filing status from “married” to “filing separately” is also strong proof of separation.
- Communications: e-mails, text messages or social media messages can reflect the state of your relationship and any intention to separate.
- Social interaction: changes in how the relationship is acknowledged in public and in private, and photographs taken after the separation, are important references for fixing the separation date.
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Can your evidence prove separation?
Talk to us to check your separation date and related evidence.
How a separation agreement proves separation: contents and legal effect
Signing a separation agreement is the best way to prove separation. It records clearly that you both intend to live apart, and the details, and helps avoid legal disputes later.
A separation agreement is drawn up by the spouses with a solicitor’s help and covers several important matters, including:
- Release from the duty to live together
- Division of matrimonial property
- Responsibility for debts
- Spousal maintenance
- Custody and guardianship of the children
The agreement also helps when you later apply for divorce, and in settling other issues arising from the marriage.
Once signed, a separation agreement is legally effective and binds both of you.
Separation arrangements under the law
Under the Matrimonial Causes Ordinance (Cap. 179), spouses can make their separation legally recognised in the following way:
- Sign a separation agreement
- One spouse applies to the court for separation
Under Hong Kong law, once married, spouses are in principle expected to live together. If one spouse refuses to live with the other without good reason, this may be treated as unreasonable behaviour and can be a basis for divorce.
If both spouses agree to release themselves from this duty, temporarily or permanently, the law also recognises such an agreement.
Common law defines separation rather loosely. It looks not only at whether you live together, but also at whether you still keep up a normal married relationship, for example whether you intend to get back together.
Please note
- Under common law, separation can be hard to prove, because besides living apart, it must also be assessed whether the relationship has really broken down.
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Does divorce require separation? How the period is counted and how to apply
Divorce does not always require separation, but separation of one or two years can be the factual basis for a divorce application to the court.
| One year apart | Two years’ separation | |
|---|---|---|
| The other parent agrees | Both of you must be willing to cooperate | Your spouse’s consent is not needed |
| Basis of application | Apply to the court for divorce on the basis of one year of separation | Apply for divorce directly on the basis of two years of separation |
The period of separation is counted from the day one spouse moves out, and it must be clearly stated in the divorce application documents.
The law allows spouses to apply for divorce jointly, but this is usually only in the one-year case, where you both agree to the divorce and accept the fact of one year of separation.
Joint applications are fairly uncommon, especially where custody of the children and maintenance are in question.
Please note
- Where the separation date is not in dispute, you do not need to submit specific documents to the court to prove that you have been separated for two years.
- If your spouse disputes the date or the fact of separation, the spouse who relies on it must provide evidence. This may involve filing affidavits and supporting documents, and arranging a hearing.
- Some people choose to wait until two years have passed before starting divorce proceedings, to avoid legal disputes.
Divorce based on unreasonable behaviour
If you have not been separated for one or two years, you can still apply for divorce on the basis of your spouse’s unreasonable behaviour. Such behaviour may include, but is not limited to:
- An affair
- Abuse
- Refusal of financial support
- Improper conduct
This is common where one spouse firmly refuses to divorce or sets unreasonable conditions. Even if your spouse has not done anything seriously wrong, there are usually enough grounds to apply for divorce.
Counting the period of separation
If a divorce application is withdrawn during the period of separation, the period does not start again.
As long as you have not reconciled and resumed married life, the earlier period of separation still counts.
For example, if you separated last June and withdrew a divorce application in the meantime, you can still apply on the basis of two years of separation once the following June arrives.
Handling the divorce yourself
As education levels rise and solicitors’ fees are high, more and more people handle their divorce themselves, especially where the spouses cooperate fully and nothing else is in dispute.
Please note
- Before you start, we suggest you consult a solicitor at least once, so that you understand the procedure and your rights and avoid delays or having to start again through unfamiliarity with the law.
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If you have not been separated long enough, how can you apply for divorce?
Ask us about your separation and the right way to apply.
Frequently asked questions: does divorce require separation, and how to prove it
Does divorce in Hong Kong require separation?
In Hong Kong, separation is a common way to show that a marriage has broken down, but it is not the only basis for divorce.
The court must be satisfied that the marriage cannot be repaired, and separation is one way of showing this.
How long must you be separated before you can apply for divorce?
If you both agree to the divorce, you can apply after living apart for one year. If one of you does not agree, you must have lived apart for two years.
If you have not been separated for one or two years, you can still apply for divorce on the basis of your spouse’s unreasonable behaviour.
How do you formally prove separation?
You can prove separation with documents showing that you live at different addresses, such as utility bills and tenancy agreements, and possibly statements from third parties.
If spouses live under the same roof, does it still count as separation?
Yes.
Even if spouses live under the same roof, it can count as separation if they lead separate lives and have stopped carrying out the duties and responsibilities of marriage. This is known as “living apart under one roof”.
Do you need to sign any legal documents during separation?
It is not compulsory, but you can sign a separation agreement. This is a formal document that records the date separation began and your arrangements for finances and support.
What does a separation agreement usually contain?
A separation agreement may cover division of property, custody of the children, access and financial support.
What if one spouse does not agree to the separation?
If one spouse does not agree to the separation, the other can still go ahead alone, but the dispute may need to be resolved by the court, and you will need enough evidence that the marriage has broken down beyond repair.
How does the Hong Kong court decide whether a marriage has broken down?
The court considers many factors, including but not limited to whether you still have a sexual relationship, whether an emotional bond remains, and whether you still carry out the duties of marital support.
