- If you both agree to the divorce, separation need only be one year. If your spouse does not agree, or has disappeared, separation must be two years.
- Unless the other side disputes the date of separation, you do not need to put documents or evidence before the court to prove that you have been separated for two years.
- If you in fact live as if you were separate households, and the other side knows that the applicant wants to separate, the court can also accept separation under one roof.
- Signing a separation agreement is the best proof of separation, but the other side must agree to sign.
Separation means a couple live apart, usually with one spouse moving out of the marital home and no longer living together as a married couple.
Under the Matrimonial Causes Ordinance (Cap. 179), a couple can make a separation agreement, or one spouse can ask the court for a judicial separation under the same Ordinance.
Divorce After One or Two Years' Separation, and How to Prove Separation
Separation is counted from the day one of you moves out. If you have been apart for a year and you are both cooperating, you can apply for divorce on the basis of one year's separation.
If you have been apart for two years, you can also apply on that basis, and the other side's consent to the divorce is not needed. The dates of separation must be stated in the divorce petition.
There are several ways to prove separation:
- The petitioner's tenancy agreement, water, electricity and gas bills, plus envelopes showing the address.
- A separation letter: soon after you separate, a divorce solicitor sends your spouse a letter recording the fact and date of the separation. The petitioner keeps a copy as evidence for a later divorce application.
- Signing a separation agreement or separation deed is the best way, but the other side must agree to sign, and the solicitor's fee is higher than for a separation letter.
Do you need a separation agreement to divorce?
Unless the other side disputes the date of separation, you do not need to put documents or evidence before the court to prove that you have been separated for two years.
If the other side disputes it (that is, does not agree with the date of separation, or says you were never separated), the burden of proof falls on the spouse applying for the divorce.
For the court to decide whether you have been separated for a full two years, you have to file an affidavit, submit supporting documents, and wait for a trial date.
Some people would rather wait until they have been separated for two years before starting divorce proceedings.
What are the ways to prove separation?
Feel free to check your situation with us.
Separation Under One Roof, and What Separation Means
If your circumstances do not allow you to move out of the marital home, sleeping in separate rooms still counts as separation, even though you live in the same home.
If in practice you live as if you were separate households, for example by:
- Sleeping in separate rooms or beds
- Having no sexual relationship
- Eating separately, and so on
and the other side knows that the applicant wants to separate, then the court can also accept this kind of separation under one roof.
At common law, the meaning of separation is somewhat vague. Besides whether you live together, you also have to look at whether you still carry on as a married couple, in order to decide whether you are “separated”. For example:
- Whether you no longer regard the marriage as continuing
- Whether you intend to reconcile with your spouse, and similar factors.
So, to avoid vagueness and disputes, signing an agreement to separate is the best proof of separation.
Married couples owe each other a duty to live together, but may agree to separate
After marriage, spouses have a duty under the law to live together.
Please note
- If one spouse breaks that duty, the other can ask them to carry it out. If they still refuse, that is unreasonable behaviour (conduct unreasonable), which is a ground for divorce, and the other spouse can lawfully ask for a divorce.
At the same time, the law recognises an agreement between spouses to release each other from the duty to live together.
What You Can Agree in a Separation Agreement
When you make a separation agreement, with the help of a divorce solicitor, the two of you can divide up and agree the following:
- Suspending the duty to live together
- Matrimonial property
- Responsibility for debts and how they are repaid
- Maintenance between the spouses, and the amount of child maintenance
- Care of the children and guardianship
- How any future divorce application will be handled
- Other matters related to the marriage.
Separation agreements have become more and more common in recent years.
What separation does in a divorce or a marriage
Most couples separate when one of them can no longer willingly live with the other but does not yet want a divorce. Separation can:
- Ease family tensions and avoid a hasty divorce.
- Keep you apart for a while so each of you can calm down and look for ways to avoid divorce.
- Let each of you experience what a future divorce would really be like, including living alone and arranging the children's care, so you can judge and prepare for the change in your lives.
- Avoid conflict or domestic violence.
- Separation is one of the grounds for divorce, and can serve as evidence in a divorce case.
What can a separation agreement cover?
Get in touch, and a dedicated consultant will first understand your situation.
Download a Separation Agreement Template
A separation agreement template first sets out the details of both sides:
- Party (husband): name and identity card number.
- Party (wife): name and identity card number.
- On X/X/X, the parties registered their marriage at XXX. During the marriage they had X children [names].
The parties now agree the following about their separation:
- XXX and XXX separate voluntarily.
- The couple's shared property is: [list]. For now it will be managed by [husband/wife]. Neither side may let, sell or otherwise dispose of any shared property without the other's consent.
- The couple's existing shared claims and shared debts are: [list]. The shared claims will be managed by [husband/wife] for now, and the shared debts will be [how they are handled].
- Each spouse's existing personal claims and debts are managed, enjoyed and borne by that spouse. The same applies to personal claims and debts arising during the separation.
- Shared claims and debts arising during the separation will be [how they are handled].
- Each spouse manages and controls their own finances, and may refuse the other's financial demands.
- During the separation, neither side's friends or family may interfere in or take part in the other's normal life and spending, and the two of you need not keep in contact.
- During the separation, custody of the child XXX will temporarily be with [husband/wife], who will support the child, with maintenance of HK$XX per month.
- Each spouse keeps whatever they earn during the separation.
- [Husband/wife] will pay the other maintenance of HK$XX per month.
- [Husband/wife] has access X times a month. The date, time and place are XXX.
- Once the separation has lasted 12 months, either side has the right to apply to the court for a divorce, and the other agrees to consent to the divorce at that time.
This agreement is made in two copies, one for each side, and takes effect when both sign. The separation is counted from the day [husband/wife] moves out.
Party: [husband] Party: [wife] Date: ____
Living Together Without Marriage: Common Questions, and Transferring a Home Ownership Scheme Flat
An unmarried couple who live together do not have the same status as a married couple, and cannot enjoy the rights a married couple have, for example:
- Tax allowances
- Pensions
- Medical and public housing benefits
More importantly, however long a couple live together, they are not treated as married spouses, so they cannot enjoy the rights of a married couple.
Can separation be a reason to apply to transfer ownership of a flat?
If a couple own one of the following special housing units, jointly or in one name, divorce or separation can be a reason to apply to transfer ownership:
- Home Ownership Scheme
- Private Sector Participation Scheme (PSPS)
- Tenants Purchase Scheme (TPS)
Under the Housing Ordinance, ownership of such a flat cannot be freely transferred, unless it is resold on the secondary market two years after the date it was first sold, or the premium has been paid.
But in special circumstances, the Housing Authority can use its discretion to approve an application to transfer ownership, case by case.
The usual reasons for applying to transfer ownership include transferring the flat to a spouse because of divorce or separation.
Can an unmarried couple who live together enjoy the rights of a married couple?
If in doubt, feel free to contact our dedicated consultants.
