Divorce here or Australia?

[discobay]

So when does UK law apply?
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[hello_there]

If the wife has not renounced Chinese citizenship and taken Australian then I guess she is still domiciled in Hong Kong, so if she is (one of) the petitioners then I guess the court would accept the petition. But if she has been in Australia for a long time, taken Australian citizenship and, particularly if she no longer holds Chinese citizenship, then I think you'd have to file in Australia. Where they got married might influence this as well.

The legal concept of "domicile" refers to where someone presently lives. It is separate concept from citizenship and you can be domiciled in one country while a citizen of another.

[PDLM]

Under UK law as I understand it the judge can refuse an agreement if he or she considers it to one-sided (I guess to stop one party being beaten into submission).

Well yes, that's true under HK law as well I believe.

[PDLM]

The legal concept of "domicile" refers to where someone presently lives. It is separate concept from citizenship and you can be domiciled in one country while a citizen of another.

I am acutely aware of this. But "domicile" is certainly NOT where someone currently lives. Most short term expats will continue to be domiciled in their home country (by default, the one where they were born). Moving your domicile is something that is not quick or easy and it is hard to determine where a court would judge your domicile to be until a relevant case comes before them.

Many long term expats from the UK put some considerable effort into getting their domicile recognised as being somewhere else because of the relative punitive inheritance tax there.

[PDLM]

So when does UK law apply?
Posted via Mobile Device

When you petition the UK courts for divorce AND the UK Courts accept that it is within their jurisdiction.

[hello_there]

I am acutely aware of this. But "domicile" is certainly NOT where someone currently lives. Most short term expats will continue to be domiciled in their home country (by default, the one where they were born). Moving your domicile is something that is not quick or easy and it is hard to determine where a court would judge your domicile to be until a relevant case comes before them.

Many long term expats from the UK put some considerable effort into getting their domicile recognised as being somewhere else because of the relative punitive inheritance tax there.

I'm refering to the HK concept of domicile (which is what a HK court would consider), which CAN be changed relatively simply, by moving overseas for a duration of more than one year with the intent to remain overseas for an indefinite period (often accomplished by accepting an open term job contract abroad or being married to someone who is domiciled abroad with no immediate intent to return to HK). Point was that if the chick is married and living overseas for an indefinite period of time (and plans to remain overseas during/ after the divorce), a HK court will not likely accept a divorce petition absent certain circumstances (particularly a large amount of marital property in HK, minor children living in HK, etc.)

To regain domicile in HK is relatively easy for someone with a HK passport - just move home and declare your intention to stay in HK to the court if asked.

[hello_there]

So when does UK law apply?
Posted via Mobile Device

Many common law-based jurisdictions (Aus, most US states, HK) have a similar rule re: judge must approve a non-contentious divorce settlement (to protect the weaker party). How carefully a judge examines the settlement varies by jurisdiction and by judge.

[discobay]

The family did move to Oz because of the husband's company transferring him. They left with the intention of not returning to HK in the short to mid-term. But they have no property in HK other than some cash.

[PDLM]

Does the wife now have permanent right of abode in Australia (or Australian citizenship)? How long has she been living there?

If so and for a long time then, absent any significant current ties to Hong Kong, I concur with hello_there that if the petition is made whilst she is still resident in Australia then there's a good chance the HK courts would decline it. But if she walked out on him and returned permanently to Hong Kong before the petition was served then she might well get the HK courts to take it.

But that doesn't really answer the core question of how the spoils might be divided differently for a petition in Australia vs one in Hong Kong.

[discobay]

No she does not.