April 2023

The enactment of the Divorce, Dissolution and Separation Act in UK (the “Act”) has introduced a mechanism of “No-Fault” application for divorce on the sole ground that the marriage has broken down irretrievably without any need to adduce evidence of “unreasonable behaviour”.

Before the Act, the sole ground for divorce is that the marriage has broken down irretrievably and the parties have to rely on one of the five facts for filing the petition namely: separation for 2 years with consent, separation for 5 years without consent, adultery, desertion or unreasonable behaviour.The Hong Kong situation adopts the same factual basis to establish that the marriage has broken down irretrievably, save that separation periods are shorter (one year with consent and two years without consent).

In other words, before the Act, if the petitioner desires not to go through the separation period and if the factual background of divorce does not fall into the ambit of adultery or desertion, the petitioner has to rely on a pleaded case of unreasonable behaviour.To establish this, the petitioner has to plead that the respondent has acted in such a way that he or she cannot be reasonably expected to live with the respondent.  This inevitably leads to a fault-finding exercise and statement of defence from the respondent to contest the petitioner’s application, in particular, some unreasonable behaviour petitions may comprise rather mild and trivial conduct or even emotional outbreak but not actual conduct at all. Costs and time thrown on the contested petition and resulted in delay for hearing and dealing with the core ancillary relief battlefield thereafter.

Under the Act, the No-Fault Divorce petition removes the conduct-based element and no evidence needs to be pleaded or filed. The long-waited Act can effectively shorten the divorce queue.With the introduction of the Act in UK, it is generally expected that similar reform should be brought to Hong Kong.It seeks to tally with the modern divorce law process in encouraging a non-confrontational approach and robust settlement, with minimum adverse impact and damage to the children of the family.