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Expert Insights

20 December 2021

Does Adultery Affect Divorce in Hong Kong?

Details of singer, Wang Leehom, and his ex-wife, Lee Jinglei’s, relationship have been recently splattered across the covers of tabloids, with Lee raising allegations of Wang having extra-marital affairs and sex partners throughout their marriage. It is unknown whether this is the sole reason for their divorce.

In Hong Kong, divorce proceedings may proceed as long as the petitioner proves that their marriage has irretrievably broken down. The petitioner may choose to support this by either proceeding on a “fault” or “no-fault” basis.

Fault

The “fault” basis consists of the following:

1. adultery;

2. the unreasonable behaviour of the respondent; or

3. the respondent’s desertion.

In practice, if the petitioner decides to proceed on a fault basis, the most common option would be on the respondent’s unreasonable behaviour. This is because the grounds of desertion and adultery are difficult to prove. Particularly, in respect of adultery, it may be a costly (and difficult) exercise for the petitioner as it is a requirement to show that voluntary sexual intercourse occurred between the respondent and the third party. Purely a belief that adultery has occurred will not be successful. The petitioner must also show that it is intolerable for them to reside with the respondent following the infidelity. This is a subjective test, but if the parties reside together for more than six months following the adultery, the petitioner cannot claim that they consider it intolerable to reside with the respondent.

In contrast, the bar for unreasonable behaviour is not as high as many people would expect. Although more extreme allegations such as a party not wanting children or having too many sexual demands can be treated as unreasonable behaviour, allegations such as the respondent failing to demonstrate love or affection towards the petitioner, or the petitioner feeling as if their opinions are not respected, will suffice. This is generally the easier and most cost-efficient ground to pursue for a fault-based divorce.

No-Fault

The “no-fault” grounds consist of the following: 

1. the parties’ one year separation with consent; or

2. the parties’ two-year separation without consent.

Despite the breakdown of the relationship, some parties prefer commencing divorce proceedings on a no-fault basis as they will not be required to blame the other party for the breakdown of the marriage. This will assist the parties in maintaining an amicable relationship and reduces the chance of conflict. Another option will be for parties to jointly apply for a divorce.

Many jurisdictions have in fact abolished the concept of divorce proceeding on a “fault” basis. “No-fault” divorce is due to come into effect in England and Wales in April 2022. This means that parties to a marriage may apply for a divorce solely on the basis that their marriage has broken down. The respondent may also not contest the ground for divorce.

Whether a party proceeds via a “fault” or “no-fault” basis will usually not affect the financial settlement to be received by the parties. It will, however, be advantageous for a party to proceed on a “fault” basis if they wish to immediately commence proceedings.

With constant updates being published of Wang and Lee’s divorce, this will certainly be a development to watch. For individuals who reside in Hong Kong undergoing a similar situation, it is strongly advised that they speak with a family lawyer in the first instance to understand more about their options going forward.

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