Family Law Ch.2

CHAPTER 2
PRACTICE AND PROCEDURE OF

THE DIVORCE SUIT
By Philippa Hewitt
Para.
1. Relevant law ........................................................................................................................... 2.001
2. Names of the parties .............................................................................................................. 2.005
3. Preliminary matters ................................................................................................................ 2.006
4. Drafting the divorce petition .................................................................................................. 2.008

(a) The particulars ................................................................................................................. 2.009
(b) The prayer ........................................................................................................................ 2.010
5. Drafting the joint application ................................................................................................. 2.016
6. Drafting the nullity petition ................................................................................................... 2.022
7. Drafting the petition for judicial separation ........................................................................... 2.025
8. Drafting the petition for presumption of death and dissolution ............................................. 2.026
9. Statements of arrangements for the children ......................................................................... 2.027
10. The certificate of reconciliation ............................................................................................. 2.033
11. Filing ...................................................................................................................................... 2.035
12. Service ................................................................................................................................... 2.038

(a) Deemed service ................................................................................................................ 2.045
(b) Substituted service ........................................................................................................... 2.047
(c) Order dispensing with service .......................................................................................... 2.050
(d) Service out of the jurisdiction of hong kong .................................................................... 2.052
13. Subsequent pleadings ............................................................................................................. 2.053
14. Amending the pleadings ......................................................................................................... 2.054
15. Directions for trial and affidavit in support of petition .......................................................... 2.058
16. Special procedure divorce and the decree nisi hearing .......................................................... 2.060
17. The decree nisi hearing .......................................................................................................... 2.063

(a) Decree nisi hearing for nullity ......................................................................................... 2.066
(b) Judicial separation ............................................................................................................ 2.067
18. Drafting the decree nisi and accompany order ....................................................................... 2.068
19. Rescission of decree nisi ........................................................................................................ 2.073
20. The decree absolute ................................................................................................................ 2.076

(a) Application for decree absolute by the respondent .......................................................... 2.078
(b) Application to abridge the six-week time limit ................................................................ 2.079
(c) Certificate to make decree nisi absolute ........................................................................... 2.081
(d) The one-year rule ............................................................................................................. 2.082
(e) Application to set aside decree absolute .......................................................................... 2.084
Family Law_Chapter 02.indd 29 2/17/14 11:19 AM

30 PRACTICE AND PROCEDURE OF THE DIVORCE SUIT
21. Acting for the respondent – the acknowledgement of service ............................................... 2.086
22. The procedure if acting for an applicant in a joint application .............................................. 2.094
23. The defended suit ................................................................................................................... 2.098

(a) Filing an acknowledgement of service and answer ........................................................ 2.100
(b) Application to file an answer out of time ........................................................................ 2.105
(c) Directions for trial following filing of acknowledgement of service .............................. 2.115
(d) The answer ...................................................................................................................... 2.117
(e) The cross-petition ........................................................................................................... 2.120
(f) The statement as to arrangements for the children ......................................................... 2.122
(g) Filing and service ............................................................................................................ 2.123
(h) Drafting the reply ............................................................................................................ 2.125
(i) Directions for trial after the close of pleadings .............................................................. 2.128
(j) Preparation for hearing ................................................................................................... 2.130
(k) In court ............................................................................................................................ 2.133
(l) The opening .................................................................................................................... 2.134
(m) The examination-in-chief ................................................................................................ 2.135
(n) Cross-examination .......................................................................................................... 2.136
(o) Re-examination ............................................................................................................... 2.137
(p) Witnesses ........................................................................................................................ 2.138
(q) Closing ............................................................................................................................ 2.139
(r) Compromise .................................................................................................................... 2.140
(s) Costs ............................................................................................................................... 2.142

1. RELEVANT LAW
The procedure governing divorce proceedings in the Family Court can be found 2.001
predominantly in the Matrimonial Causes Ordinance (Cap 179) and its subsidiary
legislation, the Matrimonial Causes Rules (MCR) (Cap 179A).
Under s 10A Matrimonial Causes Ordinance (MCO) “a matrimonial cause and any other 2.002
proceedings under this Ordinance shall be commenced in the District Court”. Section
10A provides for the subsequent transfer of proceedings to the High Court if appropriate.1
However, generally the rules governing the procedure of the Family Court are those of
the High Court (Rules of the High Court (Cap. 4A)(RHC), even if the matter remains
in the District Court (MCR, r 3), except in relation to the law governing appeals where
the District Court rules apply, and in relation to certain ordinances as outlined below. If
there are no rules of procedure governing a specific situation in Hong Kong, the courts
can look to the current law in force in the High Court of Justice in England.2 In respect
of the applicable rules, according to Practice Direction (PD) 15.12, the RHC apply to:
(1) matrimonial proceedings (subject to rules of the MCR ie most applications

between spouses) governed by the MCO and the Matrimonial Proceedings
and Property Ordinance (MPPO) (Cap 192);
(2) proceedings under the Domestic and Cohabitation Relationships Violence
Ordinance (Cap 189);
(3) proceedings issued under the Married Persons Status Ordinance (Cap 182); and
(4) all family proceedings transferred to the High Court.
The Rules of the District Court (Cap. 336H) apply to proceedings under 2.003
(1) the Guardianship of Minor’s Ordinance (Cap 13);

(2) the Parent and Child Ordinance (Cap 429);
(3) the Separation and Maintenance Orders Ordinance (Cap 16);
(4) the Married Persons Status Ordinance; and
(5) all other proceedings issued in or transferred to the District Court.
Since the amended PD 15.12 came into effect on 7 July 2011, applications under the 2.004
Inheritance (Provision for Family and Dependants) Ordinance (Cap 481) are also
to be considered to be “family proceedings”. Such applications can be heard either
in the Court of First Instance or the District Family Court and the appropriate rules
will apply.
1
MCR, r 32 and r80(5). See also Practice Direction 15.14 which came into effect on 24th October 2013 in respect of
transfer from the District Court to the Court of First Instance. See B v B (unrep., FCMC 3105/1999, 11 July, 2000);
H v H (unrep., FCMC 7173/2000, 1 February, 2002) and SWM v PYC (unrep.,CACV 308/2002, [2002] HKEC
1360). The rules govern when and if the transfer may be made and the procedure in respect of paperwork and
directions for the future handling of the case. This practice should be read if the practitioner is considering a transfer.
2
MCO, s 10.

2. NAMES OF THE PARTIES

2.005 In applications for divorce, nullity and judicial separation, the parties are respectively
known as the petitioner and the respondent as the action is commenced by petition.3
Joint applications are commenced by originating application, and the parties are
known as the 1st and 2nd applicants. In other family proceedings, the appropriate
mode of beginning the proceedings is by way of originating summons and the parties
are to be called the applicant and the respondent. The spouse who files the petition is
known as the “petitioner” and the receiving spouse is the “respondent”. Even if he or
she cross-petitions, the name “respondent” remains. The party in adultery petitions
with whom the adultery is alleged to have been committed shall be made a party to the
proceedings and is known as the “second respondent”. In an answer, the third party
is known as the “party cited”.4 If adultery is alleged but the name of the third party is
unknown, and/or is not named in the petition (or answer), the third party need not be
named in the case heading.5 The naming of the second respondent can also be excused
on special grounds or insufficient evidence.6
3. PRELIMINARY MATTERS
2.006 It may be appropriate for the petitioner to send a pre-action letter, prior to service
of the petition, discussing terms of settlement as well as the divorce itself. Often the
petitioner will send a pre-action letter to the respondent (or his solicitors if known)
dealing with the divorce unless the respondent is likely to avoid service.
2.007 The petitioner should locate the original or a certified copy of the marriage certificate
which should be filed at the court with the petition and accompanying papers.7 If the
marriage certificate is in Chinese or in some language other than English and the
proceedings are to proceed in English, then this should be translated and a certified
translation filed at the court.8 If the proceedings are to be in Chinese, the same rules
apply and the certificate must be in the Chinese language. If the marriage certificate
cannot be located, an ex parte application to dispense with filing of the marriage
certificate must be made prior to filing the petition.
4. DRAFTING THE DIVORCE PETITION9

2.008 Many firms use a standard printed form as the basis for the petition. The documents
must be accurate, grammatically correct and avoid the use of inflammatory language.
It is important that the information is correct. If incomplete, the papers will be returned
3
MCR, r 9.
4
MCR, r 22(1).
5
MCO, s 14(2), MCR, r 13(1).
6
MCO s 14(3). See also Tomkins v Tomkins 164 ER 678.
7
See MCR, r 12(2).
8
As to the use of language in family proceedings, see MCR, r 4.
9
The general form of petition (see Form 2, Appendix to MCR Matrimonial Causes Rules) is a useful guide.

DRAFTING THE DIVORCE PETITION 33
by the registry for amendment and the petitioner may have to apply for leave to amend
the petition (if it has been served), and this causes unnecessary delay to the client. The
required clauses are as follows:
(1) Full names of the parties as stated on the marriage certificate. The names on
the petition must match those on the marriage certificate. If the names are
mis-spelt or are different in any way, the registry will return the papers for
amendment and clarification. This can cause unnecessary delay for the client.
Sometimes it may be appropriate to state the maiden name of the wife (eg
Isabel Jones nee Smith) for clarity. If a party is commonly known by another
name, and this may be on their ID card, for example an anglicized name;
this should also be stated (eg Yip Ho Yeung also known as Kathy Yeung) and
the court may ask for documentary proof of the other name(s). The place of
marriage should also be stated as on the marriage certificate.
(2) The address where the parties last resided together as husband and wife and
the occupations and present addresses of the parties.
(3) The petitioner’s address: if the petitioner does not wish to disclose his
address, he can state this in the petition. The petitioner may have good reason
to do this, for example in the case of molestation, the facts of which will no
doubt be pleaded in the particulars (see para 2.008). An ex parte application
for leave to omit the address for the petitioner should be made prior to the
presentation of the petition and must be supported by an affidavit. The
Family Court have requested that the applicant’s address and contact details
be provided to the registry in a sealed envelope to assist registry staff to
locate parties who may later become litigants in person.10 If the petitioner
does not know the current address of the respondent, he should state the last
known address and that he is currently residing at an address “unknown to
the petitioner”.
(4) Whether the parties are domiciled, have a substantial connection with or have
habitually resided in Hong Kong for three years. The question of domicile or
residence is of great importance as it relates to the jurisdiction of the court
to hear the matter.11 If the petitioner is pleading substantial connection or
three years’ habitual residence in the petition, he should include particulars
to avoid being required by the court to amend the petition later.
(5) Whether there are any children and if so, their names, sex and dates of birth.
If there are no children, this should be specifically stated. All children of the
parties should be named, even if they are over 18 years of age. If the child is
over 16 but under 18 details as to whether the child is in full time education or
undergoing training should be provided. “Children of the family” are defined
by Part I of the Marriage Ordinance (181 Sch 5) as “a child who has lived in
the same household as that person and has been treated by that person as a
10
See Law Society Circular 10.232 dated May 2010 para 8(b).
11
See Ch 1, paras 1.012–1.021 and Ch 3.

child of his family”. If there is a dispute as to whether a child is a child of the

family, particulars must be given.
(6) Whether there are any other children. If the petitioner is a man, he has to state
if any other children have been born to the respondent, so far as he is aware.
If the petitioner is a woman, she can state categorically if she has or has not
had any other children.
(7) Whether there have been other proceedings concerning the marriage, in Hong
Kong or elsewhere and if so, the details of the court, date of the proceedings,
names of the parties and the date of any forthcoming trial. This could be
relevant in a forum dispute if proceedings have been issued elsewhere first.12
It would also be relevant if there had been a previous petition, which had
been stayed or dismissed or any other proceedings in court issued prior to the
petition being issued, such as Wardship proceedings.13 The particulars of the
outcome of such previous proceedings should be given.
(8) Whether there is a proposed settlement to support the respondent and the
children born during the marriage. This fact is particularly relevant in divorces
citing two years separation without consent due to the issue of financial
hardship.14 If a consent summons has been settled between the parties prior
to issuing the petition, this can be filed with the petition as an attachment and
the court asked in the prayer to make this agreement an order of court.
(9) In the case of petitions for divorce and joint applications, it must also be
said that the marriage has broken down irretrievably. In the case of judicial
separation, this is omitted.
(a) The Particulars
2.009 The fact or facts upon which the petitioner is relying must be stated, and if the fact
relied upon is unreasonable behaviour, then the particulars of that behaviour have
to be set out separately under a heading “Particulars”. No corroborative evidence
needs to be provided at this stage but a summary should be given with allegations of
the unreasonable behaviour pleaded in separate paragraphs with details of specific
incidents. If the fact is based on adultery, and there is a confession statement signed
by the respondent, this is normally filed at the court at the same time as the affidavit in
support of the petition.15 If the fact is based on the parties’ separation, the date of the
separation, whether one year or two, must be stated.
(b) The Prayer
2.010 The prayer in the divorce petition sets out, for the benefit of the court and the other
party, what the petitioner is asking for and must include a request for the dissolution
12
See Ch 3.
13
See Ch 12.
14
See Ch 1, paras 1.053–1.061.
15
See paras 2.057–2.058.

DRAFTING THE JOINT APPLICATION 35
of the marriage, and may include a request for provision regarding custody and access
to the children, ancillary relief and costs.
If there is a child under the age of 18, custody must be set out in the prayer, even 2.011
though that child may no longer be attending school or is even working.
The request for ancillary relief should normally be drafted in general terms, to include 2.012
everything that the petitioner may possibly want to apply for now and in the future.16 If
ancillary relief is not claimed in the petition, leave of the court will have to be sought
if the petitioner subsequently wishes to make the claim. Such relief would include
maintenance pending suit, periodical payments, secured periodical payments, lump
sum, secured lump sum, transfer of property order, sale of property order and transfer
or variation of settlement order for the petitioner and the children. Circumstances can
change, and if the prayer is not general and comprehensive, the petitioner may need to
alter his request at a later date, which may cause delay. There is no such requirement
for the respondent who can simply file a proper notice at any time.
Once settlement has been reached, the parties should dismiss the claims made in the 2.013
prayer as appropriate. This is usually required by the paying party in order to satisfy
him that the petitioner will not seek further relief from the court. In order to properly
dismiss the claims, they must first be requested in the prayer.
Finally, the petition must be signed and dated. If instructing a solicitor, the solicitor 2.014
should sign in the name of the firm; if not, the petitioner should sign personally.
It is now a requirement under the Civil Justice Reforms and PD 15.1217 in respect of 2.015
Matrimonial Proceedings and Family Proceedings to file, pursuant to RHC O.41A a
Statement of Truth that must accompany the petition and that must be signed by the
petitioner.18
5. DRAFTING THE JOINT APPLICATION

This procedure arose following the Law Reform Commission’s recommendation that 2.016
there should be available a “divorce by mutual consent after one year’s notice”. It
is contained in s 11B MCO which states that “an application for divorce shall be
made to the court jointly by both parties to the marriage”. The application is made by
originating application.19
The court hearing an application for divorce shall not hold the marriage to have broken 2.017
down irretrievably unless it is satisfied as regards either or both of the following facts:
(1) that the parties to the marriage have lived apart for a continuous period of at
least one year immediately preceding the making of the application and
16
MCR, r 68.
17
Also PD 19.3 Statements of Truth.
18
See sample Statements of Truth document at Appendix A.
19
MCR, r 9. See Form 2C attached to the appendix of the MCR.

(2) that not less than one year prior to the making of the application a notice
under sub-s (3), signed by each of such parties, was given to the court and
that the notice was not subsequently withdrawn.
2.018 The parties to a marriage may at any time give to the court a written notice signed by
each of them of their intention to apply to the court to dissolve their marriage. A notice
under this subsection shall be in such form as is for the time being specified in rules
under s 54 MCO.
2.019 The parties must either file an appropriate notice20 or have in fact lived apart for a
one-year period in order to activate this provision. Section 11C MCO goes on to say
that “a husband and wife shall be treated as living apart unless they are living with
each other in the same household”. So if a couple wish to proceed on the basis of one-
year separation and they have not filed the appropriate notice, they will have to show
the court that they have maintained separate households, that is, that there has been
separation of “bed and board”.
2.020 The joint application is similar to a divorce petition in that all of the essential clauses
remain and the format is virtually identical save that reference is made to the 1st and
2nd applicant instead of petitioner and respondent.21 It will also be signed by both
parties and, where applicable, their respective solicitors.22
2.021 At any time before decree nisi is pronounced, either of the applicants can give notice of
their withdrawal from the proceedings and the proceedings will be stayed.23
6. DRAFTING THE NULLITY PETITION

2.022 The petition for nullity must include all details upon which the petitioner wishes to
rely in the particulars. For example, a petition based on a respondent’s unwillingness
to consummate the marriage must set out that the petitioner expected to consummate
the marriage and the respondent wilfully refused to do so.24
2.023 The petition for nullity should include all the same clauses as in a petition for divorce
save that, under cl 8, the ground upon which the petitioner seeks an annulment must be
stated and an additional clause is included at cl 9 stating “this petition is not presented
or prosecuted in collusion with the respondent”.
2.024 The prayer should request the court for an annulment of the marriage, rather than
dissolution of the marriage. Claims for financial relief and claims in respect of the
children can be made if appropriate. The petition will neither state that the marriage
has broken down irretrievably nor will it seek its dissolution in the prayer, but request
a declaration that it should be null and void.
20
See Form 2E in the appendix of the MCR.
21
See Form 2C in the appendix of the MCR.
22
MCR, r 11(2).
23
MCR, r 15c.
24
See sample Petitions for Both Void and Voidable Marriages at Appendix A.

STATEMENTS OF ARRANGEMENTS FOR THE CHILDREN 37
7. DRAFTING THE PETITION FOR JUDICIAL SEPARATION25

This will have the same form as a petition for divorce, save that there is no prayer to 2.025
dissolve the marriage and no declaration that the marriage has broken down irretrievably.
8. DRAFTING THE PETITION FOR PRESUMPTION

OF DEATH AND DISSOLUTION
In this case, the petition must provide details of when the respondent was last seen 2.026
or heard of, where the parties last cohabitated, what steps had been taken to trace the
respondent and the circumstances in which the parties ceased to cohabit.26
9. STATEMENTS OF ARRANGEMENTS FOR THE CHILDREN27

In a petition for divorce, nullity, judicial separation or joint application and where 2.027
there are children under the age of 16 or in full-time education or training, a statement
of the current and future arrangements for the children must be filed and signed by
the petitioner28 or by the first and second applicants in the case of a joint application.29
Thus where the petition or joint application makes reference to a child or children, 2.028
such a statement of arrangements for the children must be filed at court together with
the petition or joint application, certificate of reconciliation, certificate for mediation
and marriage certificate.30 This can be drafted in either the first or third person and
is designed to tell the judge the present arrangements for the care of the children
and proposals for their future, including where they are living, who looks after them,
where they are being educated and how they are being maintained. This includes all
children of the family including step children.
The Law Society circular 10-292 at para 5 specifically requests that practitioners should 2.029
provide sufficient details on the proposed arrangements for the children including such
detail as who looks after the children, when the parents are at work and if the petitioner
seeks custody of the children and nominal maintenance of HK$1, some information
about the petitioner’s means and ability to support the children.31
As the welfare of the children is of paramount importance to the court, the statement 2.030
of arrangements is an important document that informs the judge as to the status of
the children at the commencement of the proceedings. In addition, at the end of the
25
See sample Petition for Judicial Separation at Appendix A.
26
MCR, r9(8) and sample Petition for Presumption of Death and Dissolution of Marriage at Appendix A.
27
MCR, r 9(3).
28
See Form 2B in the appendix of MCR and Form 2C in the case of a joint application.
29
See Form 2C in the case of a joint application.
30
See paras 2.034–2.036.
31
Also see Law Society Circular 12.906 (para I(7)) Consolidated Family Court Practice 3.12.12, which states that,
as there is no longer longer a requirement for the parties to attend court at the decree nisi, the arrangements for
the children must be as detailed as possible, including details such as who looks after the children when the
parties are at work, and details of the financial ability of a party who seeks custody and only nominal maintenance
of HK$1 to support the children.

proceedings, a decree absolute will not be granted until a s 18 MPPO declaration has
been made. A s 18 declaration is a statement made by the court that arrangements
have been made for the children that are satisfactory or that are the best that can
be devised in the circumstances. A s 18 declaration may be obtained at the same
time as decree nisi if maintenance for and custody of the children has been agreed.
If maintenance is not agreed, the declaration will be included in the final order for
ancillary relief. If there are no children or no relevant children, there will be a s18
declaration to that effect.
2.031 If arrangements for the children change dramatically between filing the petition and
the decree nisi hearing, a second statement as to arrangements updating the position
should be filed prior to the hearing.
2.032 Following the Civil Justice Reforms, O 41A, the Statement of Arrangements for the
children is also a document which must be verified by a Statement of Truth.
10. THE CERTIFICATE OF RECONCILIATION32

2.033 A certificate of reconciliation stating whether the question of reconciliation has been
discussed with the petitioner must also be filed at court. In fact, this is a document of
little consequence as it has no legal effect. However, it must be filed at court and it must
be signed by the solicitor dealing with the case.33 It is not served on the respondent.
2.034 If it appears to the court and/or in an application by the parties that there is a good
chance of reconciliation, the court may adjourn the case to allow for this possibility
at any time. It is possible to make an application to the court to stay the proceedings
sine die with liberty to restore upon 28 days notice being given by the petitioner or
the respondent so long as the notice is not given to the court within three months of
making the order of stay. This way, if there is a possibility of reconciliation, the court
will want to give the parties time and every opportunity to do so.
11. FILING
2.035 The following papers should be filed with the Family Court in Hong Kong, currently
located in the District Court in Wan Chai on the M1 or first floor (the registry is on the
M2 level). All petitions are initiated here. They may be subsequently transferred to the
High Court, but they originate in the Family District Court.
(1) The original petition or joint application and two copies, one for the
petitioner, one for the respondent and one for the court (or three copies if
the fact upon which the petitioner is relying is that of adultery, as the second
respondent will also need to receive a copy); the court keeps the original.
(2) The original signed statement of arrangements for the children and two
copies.
32
See Form 2A in the appendix of the MCR.
33
See Form 2A in the appendix of the MCR.

FILING 39
(3) If the petitioner is represented, the certificate of reconciliation signed by the

handling solicitor for the petitioner (for the court file).
(4) The original marriage certificate or certified copy (for the court file).
If for some reason the petitioner does not have the marriage certificate, the
papers can be filed with an undertaking by the petitioner’s solicitors to file
the original marriage certificate, or a certified copy at a later stage (ie when
a certified copy of the marriage certificate is available) or before filing a
request for directions for trial. If the marriage certificate is in a language
other than English and the proceedings are in English, a certified translation
must be obtained and filed with the court.34
(5) Form 3 (notice of proceedings)35 that explains to the respondent the
procedure and two copies to be followed. The form contains a good precise
of the respondent’s rights. It warns him of the deadlines he must adhere to,
summarizes some of the effects of divorce (for example on inheritance),
gives details in respect of the respondent’s ability to file his own statement
of arrangements of the children, and explains the right to have his financial
situation post divorce considered under s 17.
(6) Statement of Truth pursuant to the RHC O.41A.36
(7) Legal aid certificate and notice of issue of the legal aid certificate, if
applicable.
(8) The certificate of mediation signed by the petitioner and the solicitor, if
represented.37
(9) The confession statement, if the fact of adultery is the basis of the divorce
application, although the court will accept production at the stage of filing
the affidavit in support of petition (Form 21).
(10) The issuing fee (currently HK$630 for petition and HK$28 for each sealed
copy). This fee will be waived if the petitioner is legally aided.
The petitioner’s solicitors should retain a copy of each of these documents on a separate 2.036
pleadings file. Then a practitioner can see at a glance which documents have been filed
with the court.
The registry will issue the petition and a stamped sealed copy of the petition will 2.037
be returned to the petitioner, together with the other documents for service of
the respondent. If there are claims for financial relief other than HK$1 nominal
maintenance, the court will automatically appoint a “First Appointment of FDR”
hearing and a Notice of the First Appointment of FDR will be provided. The case will
have been assigned a case number, which must appear on all papers from now on. Once
34
See comments at para 2.006.
35
See appendix to MCR – Form 3.
36
See PD 15.12.
37
See Ch 14 and sample Petitioner’s and Respondent’s Certificates As to Mediation in Appendix A.

filed, a petition cannot be withdrawn.38 It can be dismissed for want of prosecution or

if the petitioner gives notice of discontinuance as below.
12. SERVICE39
2.038 At any time before a petition is served, the petitioner may file a notice of discontinuance
and the cause shall thereupon stand dismissed.40
2.039 The petition should be served as soon as practicable on the respondent. The petitioner
cannot serve the papers on the respondent in person.41 If there are solicitors already on
record as acting for the respondent, they should be asked if they will accept service of
the petition on behalf of their client. In general, it is a good practice to write a letter to
the other side before you serve the petition. However, the petitioner’s solicitor should
be wary if it is likely that, as a result of writing such a letter, the respondent will seek
to avoid service or issue a petition in another jurisdiction.42
2.040 The respondent must be properly served. If a party is unaware of the matrimonial
proceedings and the petitioner successfully ultimately obtains decree absolute, this
can be set aside if the respondent objects on the basis that he was unaware of the
proceedings. This was so in FHFK v NCM.43 In this case, the husband presented a
petition in October 2005 based on the ground of desertion by the wife. He alleged that
she had deserted him with the two children in May 2003 and that they had not returned
to the matrimonial home and that the husband could not locate them. By way of
affirmation in October 2005, the husband applied for substituted service of the petition
to be effected through an advertisement in the Sun News newspaper and an order in
terms was given. Decree nisi was pronounced in May 2006 and decree absolute duly
given a month thereafter. The wife then applied to the court on the basis that she had
not received the petition, the decree nisi or the decree absolute, only learning of the
divorce in September 2006 upon hearing of the husband’s proposed remarriage. The
wife alleged that she and the children had in fact remained living in the matrimonial
home until as late as September 2005 when she moved out as she could no longer
afford to pay the mortgage. It was clear on the facts that the husband was aware of
where she was living in September 2005 as he had been to the matrimonial home
to try to persuade her to sign the divorce papers. The husband alleged that, when he
signed his affirmations of October 2005 and January 2006, he did not know that the
contents were untrue. However, on his own admission there had been an irregularity
in obtaining his divorce.
2.041 The court held in this case that the order for substituted service was obtained
improperly by means of false information that the wife had not been served properly
and was unable to contest the petition and therefore the decree nisi and absolute were
38
Demetrion v Demetrion [1950] All ER 49.
39
MCR, r 14.
40
MCR, r 7. See sample Notice of Discontinuance at Appendix A.
41
MCR, r 14(3).
42
See Ch 3.
43
[2008] HKFLR 297.

SERVICE 41
obtained improperly. Following the case of Wiseman v Wiseman,44 the failure to make
full disclosure did not render the divorce proceedings null and void but voidable and
the court had jurisdiction to set aside the divorce, which the Court of Appeal in this
case duly did. The orders for substituted service, decree nisi and decree absolute
were all set aside. The court found that the wife was an innocent party who should
not be deprived of a marital status that was obviously an important one because of
the improper conduct of her husband, and they even went so far as to order that the
judgment should be sent to the Secretary for Justice for consideration as to whether
criminal prosecutions were necessary in light of her husband’s conduct. The order for
decree absolute was set aside notwithstanding the husband in this case had remarried.45
The documents that must be served are:46 2.042
(1) notice of First Appointment. This is a document prepared by the court and
provided to the petitioner’s solicitor when the sealed petition is returned to
them from court if there is a claim for ancillary relief in excess of nominal
maintenance. It is a notice of the date when the parties will have to attend
court in accordance with PD 15.11 governing the procedure for the Financial
Dispute Resolution process;47
(2) a sealed copy of the petition;
(3) statement of arrangements for the children if applicable;
(4) Form 3 – notice of proceedings;48
(5) Form 4 – acknowledgment of service;49
(6) notice of intention to proceed with the application for ancillary relief, if
applicable;50
(7) certificate of mediation;51
(8) government pamphlet as to mediation;
(9) proforma of Form E; and
(10) notice of Issue of Legal Aid if appropriate.
Service is proved if 2.043
(1) the acknowledgment of service (Form 4) is signed by the respondent and

returned to the divorce registry.52 If the case is one of adultery, the second
44
[1953] P 79 (Denning LJ).
45
See also reference to this case in the Law Society Circular 12.906 – The Consolidated Family Court Practice
dated 3.12.12 in which the Family Court User’s Committee wished to highlight the judgment of FHFK v NCM
[2008] HKFLR 297 referred to above.
46
MCR, r 12(7).
47
This process is dealt with in detail in Ch 7.
48
See appendix of MCR. See also Appendix A, sample Form 3 – Notice for Overseas Service.
49
See appendix of MCR.
50
See Ch 5 – Form 8 or 9 – appendix of MCR.
51
See Ch 19 and appendix.
52
MCR, r 14(5a).

respondent must also be served and should also return the acknowledgement
of service served on him to the registry;
(2) the acknowledgment of service is signed by the respondent’s solicitors on
his behalf and returned to the registry. If the petition is based on one year’s
separation with consent, the acknowledgment of service must, in any event,
be signed by the respondent as evidence of his consent;
(3) the documents are served personally on the respondent and an affidavit to
that effect is filed at court. It is a good practice for the petitioner’s solicitor’s
clerk to serve the petition personally on the respondent and to prepare an
affidavit of service as a matter of course. The affidavit of service must contain
some detail about how the respondent identified himself or was identified.
Practice Direction 15.2 stipulates that identification may be by means of a
photograph exhibited to the affidavit or by the personal knowledge of the
process server or by admission of the person served that he is the spouse
of the petitioner. Therefore, it is advisable provided the clerk serve the
respondent with a photograph to assist in identifying the respondent; and53
(4) where the petitioner acts in person, the petitioner may seek assistance
through the bailiff office. The non-represented petitioner is not allowed
to effect personal service by himself. The court would usually advise the
petitioner to serve the petition by double registered post so as to enable
the respondent to sign and return the receipt for use as evidence to prove
service. Alternatively, the court may suggest that the petitioner who is
not represented do arrange for a friend or relative who is over 18 years to
serve the petition personally on the respondent. The person affecting the
service needs to file an affirmation of service to prove the same, should the
respondent fail to file the acknowledgment of service.
2.044 If service proves difficult, a petitioner may apply for an order of deemed service,
substituted service or obtain an order dispensing with service.
(a) Deemed Service54
2.045 If the petitioner does not have evidence of service as set out above that the respondent
has received the petition, the petitioner may be able to apply to the court on an ex
parte basis for an order for “deemed service”. The petitioner should file an affidavit in
support and a draft order for approval.55 Note that there is no need to issue a summons.
2.046 An order for deemed service may be granted if, for example, a solicitor has served the
petition and accompanying documents on the respondent by registered post and if the
respondent then signs the postal advice slip. The petitioner can then swear an affidavit
confirming that the signature on the postal advice slip is that of the respondent.
53
MCR, r 14(7) and MCR, r 112. See also PD 15.2 Personal Service.
54
MCR, r 14(6).
55
See sample Ex-parte Application for Deemed Service and corresponding sample Draft Order at Appendix A.

SERVICE 43
Deemed service is appropriate where there are circumstances that suggest that the
respondent has received the papers but is ignoring the process.
(b) Substituted Service56
If it has proved impossible to serve the respondent by any of the methods referred 2.047
to above, the petitioner may consider applying ex parte for an order of “substituted
service”. A notice advertising the petition should be filed in an appropriate newspaper.
If the respondent is Chinese, then the advertisement would normally appear in Sing
Pao or Oriental Daily News. If the parties are not Chinese, it would normally be
more appropriate to advertise in the South China Morning Post. The petitioner must
then swear an affidavit exhibiting the advertisements. Substituted service can also be
affected by attempting to serve the respondent by post to an address where it is known
he resides or visits, or care of a third party.
The usual procedure is to apply ex parte without notice with an affidavit in support of 2.048
a draft order and there is no need to issue a summons. (The papers are similar to those
required for deemed service.) The affidavit must give details of the attempts that have
been made to serve the respondent with documentary support where available.
Applications for substituted service should only be made after serious and genuine 2.049
efforts to locate the party have failed.57
(c) Order Dispensing with Service58
Very occasionally it may be necessary to apply to the court for an order “dispensing 2.050
with service” altogether if, for example, all attempts to serve and/or trace the
respondent have failed and where it is known that the respondent has left Hong Kong
for some unknown destination where it is not possible even to publish a notice of the
proceedings in that foreign place.
This must necessarily be a last resort as a judge will be very reluctant to grant an order 2.051
that may lead to the respondent being divorced without being given notice of the fact.
Application should be made to the court ex parte with an affidavit in support and a
draft order.59
(d) Service out of the Jurisdiction of Hong Kong
Service out of the jurisdiction can be done without leave of the court.60 Generally, a 2.052
solicitor from the jurisdiction in which the respondent resides will be employed to
deal with service. If service is out of the jurisdiction, the respondent has 21 days
to submit his acknowledgement of service to the registry in Hong Kong and 42 days to
56
MCR, r 14(a). See sample Notice, and Draft Order for Substituted Service at Appendix A.
57
Law Society Circular 10.292 para 6(e) and Law Society Circular 12.906 – The Consolidated Family Court
Practice dated 3.12.12.
58
MCR, r 14(10).
59
See sample Affirmation for an Order Dispensing with Service at Appendix A.
60
MCR, r 109.

file an answer from the date when the petition would have come to the notice of the
respondent. The time limits are as adopted by the RHC O II and the notice in Form 3
will be amended accordingly.
13. SUBSEQUENT PLEADINGS

2.053 After the question of service has been satisfactorily dealt with, the respondent has
eight days from receipt of the petition in which to decide whether to defend the
divorce or not. The acknowledgment of service should be returned to the court, duly
signed within this time limit indicating the party’s intention to defend or not, as
the case may be. If the respondent decides to defend, he must file an answer within
21 days of returning the acknowledgment of service. The petitioner can file a reply to
the answer within 14 days of receiving the answer.61 If the respondent replies in the
acknowledgement of service that he will not defend the divorce suit, the petitioner can
then apply for decree nisi.62 This does not mean that matters in relation to children and
finances are necessarily settled, only the divorce suit.
14. AMENDING THE PLEADINGS

2.054 A petition may be amended without leave before it is served but only with leave after it
has been served.63 An application can be made ex parte if the opposing party consents
in writing to the amendment. In practice, amendments to a petition will normally
be agreed and a consent summons filed with the court, in which leave is requested
and annexing a copy of the suggested draft amended petition.64 A sealed copy of the
amended petition must then be served to all parties, unless specifically requested that
this be dispensed with.65
2.055 If there are to be any amendments to the pleadings, particularly to the petition, such
as correcting details or amending the particulars to achieve agreement between the
parties, this should be done prior to the application for directions for trial. It is not
uncommon for petitions that have been issued on the “fault” fact of unreasonable
behaviour settled by the agreement that the matter proceed on the “non-fault” basis of
separation. Be careful of the date of separation as the parties will have to have been
separated for a year immediately preceding the presentation of the petition. If this is
not the case, and it is the only way a couple can agree to settle the divorce suit, it may
be necessary to re-issue a separate petition. If there are papers that have already been
filed, such as an exchange of Form Es, it is possible to apply to the court to ensure that
all pleading are transferred to the fresh proceedings.66
61
See below at paras 2.093–2.134 in the context of a defended divorce.
62
See paras 2.057–2.058.
63
MCR, r 16.
64
See sample Consent Summons at Appendix A.
65
MCR, r 17.
66
Complications can arise from this process, particularly if there is a question of appeal. The judge may not have
jurisdiction to hear an appeal that has a case number that differs from the original proceedings.

SPECIAL PROCEDURE DIVORCE AND THE DECREE NISI HEARING 45
In the case of judicial separation, this can be amended to a petition for divorce at any 2.056
time after the one-year rule has been observed. If an answer to the petition is filed,
leave of the court is required before any amendment can be made to the petition.
Amendments to pleadings must first be in red, second in green, third in violet and 2.057
fourth in yellow.
15. DIRECTIONS FOR TRIAL AND AFFIDAVIT

IN SUPPORT OF PETITION67
Once the pleadings are closed, and/or the Form 4 returned to court indicating that the 2.058
respondent does not intend to defend, or if the respondent is out of time in filing Form 4,
the petitioner can file an application for directions for trial.68 The court will then allocate
a date for the decree nisi hearing and will notify both parties by a standard letter.
At the same time as filing the proforma application for directions for trial (decree 2.059
nisi), an affidavit must be sworn by the petitioner in support of the petition.69 In this
document, the petitioner swears that the contents of his petition are true and informs
the court of any changes. In respect of petitions regarding separation (one or two
years), details of the residences of the petitioner and the respondent since separation
are given.
16. SPECIAL PROCEDURE DIVORCE AND THE DECREE

NISI HEARING70
If the divorce is not to be defended and the respondent has filed a Form 4 indicating 2.060
that he will not defend the petition, then the registrar will proceed to set the matter
down for trial in the “special procedure” list for a decree nisi hearing.71
If there is a consent summons before the court then, subject to the judge’s approval, it 2.061
will usually be made an order of court on that date. As soon as practicable after a cause
has been entered in the special procedure list, the registrar will consider the evidence
filed by the petitioner and will either prepare a certificate that the petitioner has proved
the contents of the petition (the registrar’s certificate) or give the petitioner further
opportunity to file more evidence or remove the cause from the special procedure list.72
It is the best practice for solicitors to work with their clients to reach settlement prior to 2.062
issuing the divorce petition. If there is settlement at this stage, there is no need for the
67
MCR, r 33.
68
In the case of a joint application Form 21 (5) or (6) at the appendix of the MCR.
69
Form 21 (1)–(4) and (7), choosing which is appropriate for the particular fact pleaded.
70
See PD 15.4 “Special Procedure”. The Law Society Circular 12.906 specifies that practitioner’s should be
familiar with the requirements of the PDand in addition that the statement for arrangements for children should
be as detailed as possible (I (7)).
71
Also at Ch 1, paras 1.072–1.078.
72
MCR, r 47A.

court to set down the matter at a First Appointment, thus saving the court and client’s
time and costs. If the consent summons can be annexed to the petition, the court will
consider it at the decree nisi hearing, and if all is in order, make an order in terms. The
judge cannot make final orders in respect of financial relief until decree nisi has been
pronounced.73
17. THE DECREE NISI HEARING

2.063 On the filing of the register’s certificate, a day will be fixed for the pronouncement of
a decree by a judge.74 The judge will pronounce the decree in open court but neither
the parties nor their representatives need to attend. This will be done if the petitioner
has sufficiently proved the contents of the petition and if it is not defended. Orders
in respect of costs, children and finances are also made. If agreement has not been
reached, directions will be given for the further determination of these issues. In
practice, this generally means an adjournment to the First Appointment hearing that is
often after the decree nisi hearing for the reason that final financial orders cannot be
given until decree nisi and therefore the best chance is given to the parties to finally
settle at the First Appointment or shortly thereafter if possible.
2.064 If settlement is achieved and orders made in terms of the consent summons at decree
nisi, the orders as to the decree and any costs orders that relate to the main suit will be
made in the open court, and the orders in respect of the children and the finances will
be made in chambers. Where there are no orders in respect of children and ancillary
relief, orders in the open court will be the pronouncement of decree nisi and the s 18
declaration and costs.75
2.065 Costs normally follow the event and therefore, if pursuant to a fault divorce costs is
claimed in favour of the petitioner, they will normally be ordered by the judge, unless
application to the contrary has been made by the respondent. The normal costs order
for non-fault divorce is “no order as to costs” or in other words, each party has to
bear their own costs. According to the Law Society circular 10-292, “Family Court
Judges might not award costs where solicitors issue petitions based on any of the “fault
facts” if it is clear from the petition that the parties have lived apart for more than
two years”.76
(a) Decree Nisi Hearing for Nullity
2.066 Unlike the divorce procedure that has been simplified under the ordinance by the
introduction of the Social Procedure, the decree nisi hearings for nullity petitions must
still be heard in open court even if they are not disputed. Gowns and tabs must be
worn as with a defended action.77 At the hearing, the petitioner’s solicitor will ask the
73
See Ch 5.
74
MCR, r 47A(2).
75
Consolidated by LS Circular 12.906 dated 3.12.12 (I para 6).
76
LS Circular 10.232 para 6(b)(i). Consolidated by LS Circular 12.906 dated 3.12.12.
77
See paras 2.094–2.097.

DRAFTING THE DECREE NISI AND ACCOMPANY ORDER 47
petitioner (inter alia), “Are you seeking a declaration that this marriage be declared
null and void?” As with a divorce, there will be a decree nisi followed six weeks later
by an application for a decree absolute and the procedure is similar to divorce.
(b) Judicial Separation
There is no decree nisi in judicial separation petitions. Since this is the final decree, a 2.067
s 18 declaration is required at this stage. Divorce will not be precluded by a previous
judicial separation decree under s.13 MCO so long as the parties have been married
for over a year. Either the petitioner or the respondent can apply to the court under
this section for a divorce despite the existence of the judicial separation petition,
provided that the facts on which the judicial separation was proved are ‘substantially
the same’.
18. DRAFTING THE DECREE NISI AND ACCOMPANYING ORDER

After the decree nisi hearing, it is the duty of the petitioner’s solicitor to draft both the 2.068
decree nisi and the accompanying order.78 The decree will record the date and place of
the marriage, the names of the parties, the ground of irretrievable breakdown and the
fact upon which the decree is based. This could be one or more facts as pleaded in the
petition or cross-petition. The accompanying order deals with all matters other than
the dissolution of the marriage itself.79
In the case of a joint application, a decree can be drawn up by either of the parties who 2.069
should notify the other party that he is drawing up the decree.80 If a party fails to draw
up the decree in accordance with the rules, the other party may do so after seven days
following decree nisi.
The accompanying order will include: 2.070
(1) an order for costs;

(2) orders made in relation to the children for custody and access (if matters
relating to the children have been adjourned, the order will specify this);
(3) orders, either interim or final, made in relation to finances. If matters have
settled and final orders are made at decree nisi, it is often the case that
payment of lump sum or periodical payments will be payable upon, or some
specified number of days after, decree absolute;
(4) a s18 declaration if the judge is satisfied that everything has been done in
respect of the children as far as possible. Normally, a s 18 declaration under
the MPPO will not be given until matters in relation to custody, access and
finance relating to the children have been settled, if applicable;81 and
78
MCR, r 56(1).
79
See Form 24 in the appendix of MCR for the proforma order. A sample document of the Accompanying Order
can be found at Appendix A.
80
MCR, r 56(1)(d).
81
See paras 2.026–2.031.

(5) orders made regarding the filing of affidavits and other directions such as the
future conduct of the case. Often, if settlement has not been reached these
matters will be adjourned to the first appointment date.
2.071 The order should be drafted and signed by the petitioner’s solicitor and sent to the
court for its approval. Orders are often amended by the court, in which case a new draft
must be typed that is then returned to the court for sealing.82
2.072 The final draft order should be filed at court with a request for the required number of
sealed copies. The petitioner’s solicitor should collect the copies and serve them on all
relevant parties.
19. RESCISSION OF DECREE NISI 83

2.073 Where a decree nisi has been granted but not made absolute, any party to the proceedings
can apply for the decree not to be made absolute on the basis of material facts that were
not bought to the attention of the court or on the basis of a reconciliation, or on one
party rescinding their consent to divorce (if the basis was one year’s separation). The
respondent can apply at any time prior to decree absolute. The court can also rescind
the decree if, for example, neither party has proceeded to decree absolute, and in its
discretion, it seems appropriate.84
2.074 In the case of TWY v CWC 85, the parties had their decree nisi pronounced in 1992 on
the basis of the husband’s unreasonable behaviour. Two months following the decree
nisi, the parties reconciled and continued to cohabit for a further 14 years. Sometime
after 2006, the wife applied to make the decree nisi pronounced in her favour absolute,
alternatively she applied for leave to issue a fresh petition. Owing to the long period
of cohabitation following the decree, the court declined to make the existing decree
absolute but leave was granted to issue a fresh petition based on the parties’ two years
separation (they had occupied separate rooms). The rescission of the decree was to
be in the open court, and the petitioner was required to draw the application to the
attention of the proctor under s 16 MCO or the Secretary of Justice under r 61 MCR.86
2.075 If an application has been made by a respondent to rescind the decree on the basis that
one party mislead the other which resulted in that party giving consent under either s
11 A(c) or 11B MCO,87 the procedure is to make an application to a judge in the open
court under the procedure set out in r 56A MCR.88
82
See appendix of MCR – Forms 24(1) and (2) for sample orders.
83
MCR, r 56A and 64 and MCO, s 15.
84
See TWY v CWC (rescission of decree nisi) [2010] HKFLR 5.
85
Ibid.
86
The matter was subsequently resolved with the assistance of the Proctor/Secretary for Justice, and it was held that
the court had jurisdiction, notwithstanding that there had been no formal intervention by the Proctor/ Secretary
for Justice, under ss 10 and 17 of the MCO, to rescind the decree nisi. The court had the inherent jurisdiction to
control proceedings and had the ability to bring them to an end: “where a decree nisi had been pronounced but,
for whatever reason, it was clear that no application to make it absolute was likely to be made, then if the matter
was brought to its attention the court had the ability to and should mitigate any statement which then arose”
(see S v S (rescission of decree nisi: pension sharing provisions) [2002] 1 FLR 457).
87
MCO, s 15C and 15C(2).
88
The procedure is similar for rescinding a decree for judicial separation: MCR, r 67.

THE DECREE ABSOLUTE 49
20. THE DECREE ABSOLUTE

The petitioner can apply for the decree absolute, which is the final stage in a divorce, six 2.076
weeks after the pronouncement of the decree nisi. The date of the decree nisi is not counted
and if six weeks expire on a day when the court is closed, the application can be made on
the next working day. As many petitioners are very anxious to obtain their decree absolute,
this should be clearly diarized in the solicitor’s diary. A decree absolute will not be given,
however, unless a s18 MPPO (or s17A MCO, as mentioned in Chapter 1 in the context
of considering the financial position of a respondent following divorce based on either
one or two years separation, if appropriate) declaration has been made or if there are any
applications or appeals pending.89
The application is made by lodging a notice in Form 590 (or Form 5A in the case 2.077
of a joint application made by either of the parties).91 When the decree nisi is made
absolute, a certificate to that effect, with the date upon which the decree was given, is
sent to the petitioner and to the respondent by the court.
(a) Application for Decree Absolute by the Respondent
If the petitioner fails to apply to the court to make the decree nisi absolute, the 2.078
respondent, subject to the s 18 declaration having been made, may apply to the court
three months after the date of the expiration of the time limit relating to decree nisi (ie
six weeks plus three months). The application should be made inter partes and must
be supported by an affidavit setting out the facts.
(b) Application to Abridge the Six-Week Time Limit
The court has power to reduce the time limit of six weeks upon the application of 2.079
the petitioner (or the party who obtained the decree in the case of cross-petitions).
Therefore, if the respondent would like to obtain decree absolute before the six weeks,
he must ask the petitioner to make the application. This application can be made prior
to decree nisi and then considered at that time. If the matter causing the need for an
abridgement happens after decree nisi, an application can be made by summons. This
can be done by way of a letter to the trial judge so long as the other side is notified.
A common reason for such an application or request is the imminent birth of a child 2.080
with another partner and/or a desire to remarry quickly after decree nisi. In some
cases, an application to expedite the decree absolute has been successful, for example,
where the respondent was seen to be using delaying tactics. 92
89
The procedure in respect of making a decree nisi absolute is found in MCR, r 65. Section 15(5) MCO provides
that every decree of divorce shall be decree nisi in the first instance and shall not be made absolute before the
expiration of three months. By the Matrimonial Causes (Decree Absolute) General Order (Cap 179 sub Leg C)
the period is reduced to 6 weeks. For a summary of the law in this area see also comments of the Court of Appeal
in JAH v VH (unrep., CACV 279/2012, [2013] HKEC 2017).
90
91
Ibid.
92
The question of expediting the decree absolute was considered by the Family Court in LPK v SH and HSH
(expedition of decree absolute) [2012] HKFLR 257.

(c) Certificate to Make Decree Nisi Absolute
2.081 In the absence of any appeal or other application as outlined above, the judge will
normally make the decree nisi absolute and will send to the petitioner and the
respondent or both applicants a certificate in Forms 6, 7, 7A or 7B as appropriate93
and sealed by the court. An index of decree absolute is kept at the registry of the High
Court, which can be searched and a copy is obtained on the payment of a fee.94 There
may be delay while the court checks for other applications, or there may be delay if, for
example, the parties are Jewish or from some other religion that requires a declaration
from the parties that steps have been taken to dissolve the marriage in accordance with
the appropriate practices.
(d) The One-Year Rule95
2.082 If neither party has applied for a decree absolute within a year of the date of the decree
nisi, an explanation for the delay must be given to the court. An application can be
made by way of an inter partes summons supported by an affidavit.96
2.083 Relevant information may include whether the parties have recommenced cohabitation
(in which case the court may stay the decree pending further information) or whether
the wife has given birth that year (in which case consideration will have to be given as
to whether this is a child of the family).
(e) Application to Set Aside Decree Absolute
2.084 On rare occasions, the court will allow the decree absolute to be set aside. This was
the case in FHFK v NCM 97 where the respondent had not been notified of the divorce
proceedings. A similar situation arose in L v L (setting aside decree absolute)98 where
the facts relied upon by the petitioner were found to be false. It has been held that there
is an inherent jurisdiction which allows a party against whom the decree nisi has been
granted to apply to delay of stay the application to make the decree absolute.99
2.085 In JAH v VH (decree absolute),100 the Family Court has to consider whether decree
absolute obtained through an administrative error could be set aside.101 In this case it was
said, obiter, that setting aside the decree absolute would not unravel the existing court
order on ancillary relief, as the transfers were expressed in the form of undertakings.
An order could only take effect on pronouncement of decree absolute. This case
93
94
MCR, r 66.
95
MCR, r 65(2).
96
See TWY v CWC, and para 2.074 above.
97
[2008] HKFLR 297, see also para. 2.012 above.
98
[2010] HKFLR 427.
99
See comments in JAH v VH (unrep., CACV 279/2012, [2013] HKEC 2017), [6.1], citing Miller-Smith v Miller-
Smith (No 2) [2010] 2 FLR 351 and England v England (1979) 10 Fam Law 86
100
[2011] HKFLR 255. See also, the decision of the Court of Appeal, (unrep., CACV 279/2012, [2013]
HKEC 2017).
101
Case cited Zinkin v Wong [2000] 1 HKC 642 (applied) and LCM v LYY (distinguished).

ACTING FOR THE RESPONDENT – THE ACKNOWLEDGEMENT OF SERVICE 51
subsequently went to the Court of Appeal who considered in detail the implications
of s.17A MCO in respect of an application for decree absolute as in this case, the
wife was anxious that the decree absolute should not be allowed until such time as
various undertakings agreed in mediation had been complied with. In this case, the
court considered the procedure which is applicable where the respondent, as opposed
to the petitioner, applies for the decree nisi to be made absolute.102 The husband in
this case further argued that it was against public policy not to allow the decree to be
made absolute when the marriage had clearly come to an end. The Court of Appeal
held that the extent of the husband’s outstanding obligations was a factor to be taken
into account and that the wife would encounter real difficulties in enforcing the terms
of the consent order should the decree absolute be granted. Therefore the wife’s appeal
was allowed and the husband’s decree absolute was set aside, only to be granted on the
parties complying with the terms of the consent order.
21. ACTING FOR THE RESPONDENT – THE

ACKNOWLEDGEMENT OF SERVICE
When acting for the respondent, one of the initial pieces of advice may be to suggest 2.086
counselling. Counselling may be more appropriate for a respondent as he may be
surprised by the action taken by the petitioner, whereas the petitioner may well have
been contemplating divorce for some time. In addition, the respondent may wish to try
to sort out some of the outstanding issues through mediation,103 and a list of mediators
should be provided.
When the respondent seeks legal advice, generally he is in receipt of the petition 2.087
that has been served on him. The notice of proceedings in Form 3104 will inform the
respondent of the procedure, namely that he has eight days from receipt of the petition,
inclusive the day of service of the petition, in which to file the acknowledgement of
service and 21 days from service in which to file an answer. If he fails to return the
acknowledgment within the eight days and the service is proved, the petitioner can
apply for directions for trial and proceed to decree nisi.105
The respondent must complete the acknowledgment of service in Form 4106 and 2.088
send it to the court. The solicitor acting should do this on the respondent’s behalf.
The acknowledgment of service should state clearly whether the respondent intends
to defend the divorce itself and those issues on which he requires to be heard. For
example, the respondent may consent to a divorce and to custody of the children
102
Rules 65(4) and (5) MCR citing Smith v Smith [1990] 1 FLR 438 which held that the registrar still had discretion
to refuse the decree absolute and Rayden and Jackson Divorce and Family Matters 18th ed para 11.17 in which
it was stated that: `The most common reason for refusing to grant the application is if the petitioner would be
financially prejudiced by, for example, loss of pension, but the court is not bound to refuse the application in these
circumstances’. See also Wickler v Wickler [1998] 2 FLR 326 where the wife was held not to be able to use the
process to attain an award greater than her entitlement.
103
See Ch 19 for a general discussion of mediation.
104
See forms annexed to MCR.
105
See paras 2.057–2.058.
106
See forms annexed to MCR.

vesting in the petitioner, but may wish to make an application for access to the children
and to be heard on the claims for ancillary relief. This must all be stated clearly in the
acknowledgment of service, signed by the respondent’s solicitor and returned to the
court within eight days of service by either the solicitor or the respondent (inclusive of
the date of service). If the respondent agrees to a divorce proceeding on the basis of one
year’s separation by consent, he must indicate that he does not intend to defend the suit
as well as that he consents to a divorce on this basis and also signs the form personally.
2.089 Occasionally, the respondent may wish to defend the divorce itself 107 because he does
not accept that the marriage is over, does not wish to accept the blame for its breakdown
or does not agree with the facts relied upon by the petitioner. The respondent should
understand that defending a divorce suit is very expensive and the costs of defending
will come out of the matrimonial assets when the available money could be used by the
parties themselves or for any children of the family. If the respondent is not willing to
accept that the marriage has broken down, and it is simply a matter of allotting blame,
then it is wise to suggest to the petitioner’s solicitors that the petition be amended to a
form that is acceptable to both parties. If the respondent wishes to defend, he needs to
complete the appropriate section of the acknowledgement of service as set out above.
This is sufficient “notice of intention to defend”.108
2.090 Generally, the petition can be amended to more mild particulars that are acceptable
to both sides. Occasionally, the parties will not agree on a fault divorce at all but will
agree that the petition can be amended to that of one year’s separation by consent. This
can prove problematic if the one year had not elapsed from the date the fault petition
(unreasonable behaviour or adultery) was issued. In this scenario, it is possible to
dismiss the first petition and reissue a fresh petition on non-fault grounds. This can
be done by way of consent summons, which should be signed by the parties and the
solicitors in the name of the firm. Ensure that all pleadings, such as Form E109 if filed,
are transferred to the fresh proceedings.
2.091 A possible defence to a petition based on two years’ separation without consent is
where the dissolution of the marriage would result in grave financial hardship to the
respondent. An example of hardship would be the loss of future pension rights that
the respondent would otherwise receive. In practice, it is difficult to prove a case of
grave financial hardship that cannot be compensated by the payment of a lump sum or
periodical payments, but may be appropriate in the case of a very low income family.110
2.092 The acknowledgement of service allows the respondent to indicate to the court on
which aspects of the case he wishes to be heard. Therefore, even if he is prepared
not to defend the divorce suit itself, he may well want to be heard on ancillary relief
or in respect of the children and costs. It is customary when the petitioner claims all
available financial relief, for the respondent to do the same in the acknowledgement of
107
See paras 2.093–2.134.
108
MCR, r 15(11).
109
See Ch 7.
110
See Ch 1, paras 1.053–1.061.

THE DEFENDED SUIT 53
service. If he does so, the application for ancillary relief is deemed to have been made,
although a notice of intention to proceed with ancillary relief is also advisable.111
A respondent can be heard as to his views on the petitioner’s statement of arrangements for 2.093
the children and can file a similar statement with the court and serve it on the petitioner.112
22. THE PROCEDURE IF ACTING FOR AN APPLICANT

IN A JOINT APPLICATION
The parties should both file a notice of intention to dissolve the marriage on the basis 2.094
of one year’s separation by consent.113 This is the only fact under which the application
can be made. The joint application can be filed when the parties have been separated
for a year. Practitioners are not allowed to act for both parties, even if they appear to be
in agreement on all matters, in case of possible future conflict of interests.
As stated above, the joint application is similar in form to a petition. The same 2.095
accompanying documents should be drafted and filed as in a petition. The statement of
arrangement for the children should be signed by both parties.114 Statements of truth
are required to be signed by both parties.
Both parties must swear an affidavit in support of the application in order to apply for 2.096
decree nisi.
Both parties must apply for decree absolute by lodging Form 5A with the court signed 2.097
by both parties.115
23. THE DEFENDED SUIT

Generally, the preceding paragraphs have dealt with an undefended suit. On rare 2.098
occasions, the respondent will state that he wishes to defend an action. The reasons for
this vary. It may be because the respondent wants total agreement on ancillary matters
first, and wrongly assumes that tactically he should therefore defend the matter. In reality,
the question of the divorce itself is quite separate from that of the children and finances. It
may alternatively simply be a matter of face, principle or allocating blame. Often in that
instance, the prospect of paying for a defended court action can bring people to their senses.
It may be that a respondent simply finds it difficult to come to terms with the fact that
the petitioner believes that the marriage is over. In that instance, consider recommending
him to a counsellor. The respondent may simply want to remain married but it should be
pointed out that, if a petitioner is determined to divorce, it will happen eventually, probably
after two years separation if grave financial hardship cannot be proved.116
111
Form 8 (appendix to MCR).
112
MCR, r 15B.
113
Form 2E (appendix to MCR).
114
Form 2D (appendix to MCR).
115
Form 5A (appendix to MCR).
116
See R v S (defended suit) [2011] HKFLR 381 in respect of a defended divorce.

2.099 It is a good practice to encourage the parties to settle on the divorce suit if possible. As
Hon Justice Cheung has put it in the Court of Appeal case of SJH v RJH:117
“As both parties are now of the same view that the marriage has irretrievably broken
down, the Court in exercising its divorce jurisdiction in a modern setting, will be
loathe to allow the parties to use valuable court time to litigate a matter which has no
impact whatsoever on the divorce itself and which should be dissolved as quickly and
painlessly as possible. As Ormrod LJ observed in Grenfell v Grenfell118 that:
There is no point, as I see it, in a case like this in conducting an enquiry into behaviour
merely to satisfy feelings, however genuinely and sincerely held by one or other of
the parties. To do so would be a waste of time of the court and, in any event, would
be running, as I think, counter to the general policy or philosophy of the divorce
legislation as it stands today. The purpose of Parliament was to ensure that where
a marriage has irretrievably broken down, it shall be dissolved as quickly and as
painlessly as possible under the Act, and attempts to recriminate in the manner in
which the wife in this case appears to wish to do should be, in my judgment, firmly
discouraged”.
(a) Filing an Acknowledgement of Service and Answer
2.100 If the respondent wishes to defend he should say “yes” in the acknowledgement of
service at question 4119 and return it to the court. The respondent then has eight days
from the service of the petition and the notice of proceedings (Form 3) inclusive of the
day of service, to file the acknowledgement of service.
2.101 The respondent has 21 days from the receipt of the notice to file an answer.120 An answer
may be filed at anytime before directions have been given for trial, notwithstanding
that the time for filing the answer has expired or if that person has not given notice
of intention to defend.121 As with a petition, it is now a requirement for a respondent,
when filing an answer, to also file a statement of truth pursuant to RHC O.41A.
2.102 If the respondent does not comply with the time limits, he may be penalized by the
judge in respect of costs.
2.103 If service is to be effected outside the jurisdiction, the time limit is extended to 21 days
from the receipt of the acknowledgement of service inclusive of the day of receipt,
and in the case of filing an answer, the time limit is extended to 42 days, inclusive of
the day of receipt. This time limit is based on advice from the Family Court Registry
pursuant to RHC O.11, r.4, which simply states a time limit must be given.
117
SJH v RJH [2012] 4 HKLRD 308; [2012] HKFLR 235, cited in the Family Court case LPK v SH and HSH
(expedition of decree absolute) [2012] HKFLR 257.
118
[1978] 1 All ER 561, 566
119
Form 4 (appendix to MCR).
120
MCR, r 18(1).
121
MCR, r 18(2).

If the acknowledgment is prepared by a litigant in person, a solicitor who may be 2.104

assisting him should ensure that the respondent prepares the form himself and
understands the language of the form.122
(b) Application to File an Answer out of Time123
Leave can be sought from the court to file an answer out of time and will normally be 2.105
granted.124
In the case of YSP v HFF125 the Court of Appeal looked in detail at the authorities on 2.106
how a court should deal with the delay and extension of time by a party in filing an
answer to the petition.
In that case, Cheung JA set out a number of principles. They were as follows: 2.107
(1) the starting point is that under the special procedure, the registrar has certified
that the petitioner has proved the contents of the petition and is entitled to a
decree, following Day v Day;126
(2) an application for extension of time to file an answer should be dealt with
under the principle that an application should be refused unless there were
“substantial grounds for the belief ” that the decree would have been obtained
“contrary to the justice of the case”;
(3) each case has to be dealt with on its own facts; and127
(4) in the case where an applicant had not been served and the proceedings took
place without his knowledge, he would get a re-hearing; but in a case where the
applicant was aware of the proceedings but chose not to defend, changed his
mind or asked for more time, he would have to satisfy the court that it was more
probable that the decree was obtained contrary to the justice of the case.128
The judge gave the following four examples of factors the court may consider in the 2.108
exercise of its discretion in favour of granting an extension of time:
(1) When delay in filing the answer is not due to the fault of the applicant, but,
for example, due to the delay in processing a legal aid application.129
(2) The delay is of relatively short duration such as a few days.130
122
LS Circular 12-906 (I para 1) Consolidated Family Court Practice highlights the practice whereby a solicitors
firm may prepare a typed copy of the Form 4 in English and ask the respondent to sign it. This is bad practice as
the respondent may refute that he understood the document.
123
See sample Summons to file an answer out of time at Appendix A.
124
MCR, r 15.
125
(unrep., CACV 235/2003, [2003] HKEC 1257).
126
[1980] Fam 29.
127
Rogers v Rogers [1974] 1 WLR 709.
128
Nam Lau Bik Yiu v Nam Yuk Tong (unrep., CACV 115/1984, [1985] HKLY 524).
129
Nash v Nash [1968] P. 597;[1967] 2 W.L.R. 1009;[1967] 1 All E.R. 535.
130
Lawlor v Lawlor [1995] 1 FLR 269.

(3) Allegations of adultery contain a stigma that a party may wish to defend.131
(4) The conduct of the parties is relevant in ancillary relief where allegations
of adultery or unreasonable behaviour are made against a party and if he
is precluded from defending the petition he would be estopped in ancillary
proceedings from denying such allegations.
2.109 The judge also held in this case that it was important to bear in mind that a divorce
affects the status of a person and while a petitioner has confirmed the contents of the
petition by an affirmation, the allegations against the respondent remain uncontested
in court proceedings.
2.110 The judge also observed that the respondent was often at a disadvantage as no further
notice is given by the registrar to the respondent that he is about to consider the evidence
with a view to making his certificate that the petitioner has proved his case. The first time
the respondent knows of what is happening is the receipt of a notice of the date and place
for the pronouncement of a decree, by which time the process of adjudication is over.
2.111 In YSP v HFF, the court did not believe that the delay was a tactical move by the husband
to delay the wife from obtaining a divorce but it was apparent from his evidence that
he was trying to effect a reconciliation. The husband denied the facts as alleged in the
petition and the court deemed that there would be an injustice which would also affect
his position in the ancillary relief that the wife may obtain subsequent to the divorce.
2.112 In addition, in the unreported Court of Appeal case of Lo Kit Loon v Margery Lo Wing
Miu132, the respondent was also allowed to file his answer out of time. In that case, a strong
indication was given by the court that, although the respondent was some six months late
in applying to file his answer, he should not be denied the ability to answer the allegations
in the petition. He had filed an acknowledgment of service indicating that he wished to
defend the petition, and he made it clear that he also wished to file a cross-petition.
2.113 The Court of Appeal held in that case that it was wrong of the Judge at the first instance
to accept the petitioner’s assertion that “nowadays no legal or social stigma” is
attached to a party to a divorce based on allegations of the kind made in that case. The
respondent may find himself in difficulty both with regard to custody and maintenance
and therefore the potential for prejudice against one party was considered greater if
the respondent was not to be allowed to file an answer, than if he was. Therefore, the
answer was allowed to be filed out of time.
2.114 A case before the District Court was that of JAH v VH (leave to file an answer)133 in
which the principles were considered in the context of a short delay caused by incorrect
legal advice, resulting in the husband being out of time. In this case, the petition made
a number of serious allegations, but the wife contended that she did not intend to rely
on them and that the matter was to be heard, as was normally the case, in chambers
and not open to the public. The judge found that it was not open to her to allow the
husband to file an answer as the law currently stood but nevertheless, refused to set
131
Huxford v Huxford [1972] 1 WLR 210 and Collins v Collins [1972] 2 All ER 658.
132
(unrep., CACV 144/1982, 23 December 1982).
133
[2010] HKFLR 430.

the matter down for decree nisi in the special procedure list for the next six weeks
to allow the husband to make whatever application he deemed necessary. The court
also considered was whether the petition could be granted on the particulars would be
contrary to justice if the husband in this case was not allowed to answer them.
(c) Directions for Trial Following Filing of Acknowledgement of Service
If an acknowledgement of service is not filed at court, then the onus is on the petitioner to 2.115
prove that service has been affected.134 The petitioner’s solicitors will then set the matter
down in the undefended list. The respondent can give notice in the acknowledgement of
service of his intention to defend and file an answer out of time at any point before the
directions for trial have been issued and a date for the decree nisi hearing obtained. An
answer can be filed without filing an acknowledgement of service first.
If directions for trial and a date for pronouncement of decree nisi has been given, 2.116
and the respondent nevertheless still wishes to defend, an inter partes summons shall
be issued to that effect supported by an affidavit. There will be a short court hearing
unless the other side agrees to deal with the matter by way of consent. The respondent
will probably succeed in his application unless there are extenuating circumstances,
but he may have to pay the costs of the summons.
(d) The Answer
If the respondent wants to defend the action, then he files an answer, which is a 2.117
response to the petition.135 There is a particular style used when drafting an answer136
and it must be accompanied by a statement of truth.137 The respondent will either admit
or deny the allegations made in the petition, paragraph by paragraph, and then prepare
a response setting out his version of events. If it is only an answer (and not a cross-
petition), the respondent should ask the court, or “pray”, that the prayer in the petition
be rejected and the petition be dismissed. The respondent can also pray in the answer
for relief in respect of the children, finances and costs.
As with the petition, the answer is signed by the solicitor acting on behalf of the 2.118
respondent if instructed. The facts in the answer must be pleaded with sufficient
particularity but not the evidence by which they are to be proved.138 There is no defence
against a divorce based on two years separation without consent other than to deny the
date or duration of separation. If a respondent wishes to oppose the grant of a decree
nisi on the basis that dissolution of the marriage will result in grave financial or other
hardship, he must do so by way of an answer to the petition.
If a respondent to a petition based on one year’s separation by consent withdraws 2.119
his consent, normally the case will be stayed by the court, rather than providing an
obligation on the respondent to file an answer.
134
See paras 2.037–2.051.
135
MCR, r 18.
136
See sample Answer at Appendix A.
137
RHC O.41A.
138
MCR, r 21 (1).

(e) The Cross-Petition
2.120 If the respondent wishes to defend the petition and to issue a cross-petition, then it
is appropriate to do so at the end of the answer. This section should cite the facts
relied upon by the respondent for the divorce and should contain the allegations in the
“particulars” which, in the same way as the particulars in a petition, will set out the
details of the adultery or unreasonable behaviour. Finally, the cross-petition will end
with the prayer. This will begin by stating that the respondent therefore prays that the
petition may be dismissed and the prayer of the petition may be rejected. It should pray
that the marriage be dissolved on the basis of the fact pleaded in the cross-petition. It
will then set out what the respondent is seeking by way of ancillary relief, arrangements
for the children, in a similar way to the provisions included in the petition.139
2.121 The same rules apply to drafting the answer or answer and cross-petition and reply as
apply to drafting the original petition and accompanying documents.140 The documents
must be factually and grammatically correct, in the right format and should avoid
over-inflammatory language.
(f) The Statement as to Arrangements for the Children
2.122 If the respondent disagrees with the statement as to arrangements for the children filed
by the petitioner, then he should file his own at the court with the answer or answer and
cross-petition.141 This must also be verified by a statement of truth under RHC O.41A.
(g) Filing and Service
2.123 The answer or answer and cross-petition must be filed in the court at the divorce
registry and served on the petitioner, if acting in person, or on the petitioner’s solicitors
if appropriate. As with the petition, the answer and cross-petition should not be served
by the respondent on the petitioner personally. If there is a cross-petition, Forms 3 and
4 should be served as in the case of a petition.142
2.124 As with the petition, if there is an amendment to the answer, the respondent must apply
for leave to amend the answer.
(h) Drafting the Reply
2.125 If the petitioner wishes to answer the specific allegations made in the answer and the
particulars to the cross-petition or anything not previously dealt with in the prayer in
the petition, then he should file a reply.
139
See para 2.009 and sample Cross-Petition at Appendix A.
140
See paras 2.007–2.014.
141
MCR, r 15B. As with the petitioner, the statement of arrangement filed by the respondent must contain sufficient
detail to enable to court to ascertain a picture of the suggested child care. See above.
142
MCR, r 23.

Once the answer or answer and cross-petition have been filed by the respondent, 2.126
the petitioner then has 14 days from receipt of those pleadings to file a reply.143 No
pleading subsequent to a reply can be filed without leave144 or subsequent to directions
for trial being given.145
The reply must also be verified by a statement of truth under RHC O.41A. 2.127
(i) Directions for Trial after the Close of Pleadings
If there is no reply, either party can file and serve the notice of intended venue146 and 2.128
apply for a pre-trial review eight days thereafter. Note that by applying for directions,
it is assumed that the petitioner denies every material allegation of fact made in the
answer and cross-petition in any event. Once directions for trial have been applied for,
no further pleadings can be filed or amended without leave, and the number of witnesses
and their addresses must also be given. Solicitors acting in defended divorces should
apply for a 15–20 minute pre-trial review before setting the matter down for trial.147
Both solicitors will then receive a note from the court giving permission to fix a date 2.129
for the hearing. The normal procedure is to write a letter that will be copied to the
client and the senior judicial clerk at the divorce registry making an appointment to
meet the senior judicial clerk at the divorce registry in order to fix a date. Court clerks
for both parties will then attend at the appointed time and consult with a book setting
out the court appointments for the Family Court Judges. A date will then be fixed at a
mutually convenient time, if needed, in accordance with counsel’s diaries. A date can
also be fixed at the pre-trial review if counsel’s dates are known.
(j) Preparation for Hearing
The applicant’s solicitor should prepare a paginated (ie numbered) bundle of pleadings 2.130
in chronological order if the pleadings are long.
Consideration should also be given as to whether there is a need to instruct counsel. 2.131
Counsel would be appropriate if the issues are complex and also if there will be
significant cross-examination. If the party is legally aided, it will be necessary to
check with the Legal Aid department as to whether they will fund use of counsel.
If counsel is instructed, a certificate for counsel must be requested at the end of
the hearing. It may well be advisable to instruct counsel: preparing for the hearing
is time consuming and it may be as economical for the client to have an expert
cross-examiner employed.
The court, pursuant to MCR r 28, may make any order for discovery or inspection of 2.132
documents as it considers “necessary or desirable” prior to the hearing.
143
MCR, r 19 Matrimonial Causes Rules (Cap 179).
144
MCR, r 19.
145
MCR, r 20.
146
See sample Notice of Desired Place of Trial at Appendix A.
147
LS Circular 12.906 Consolidated Family Court Practice at para I.3.

(k) In Court
2.133 The hearing will be heard before a single judge in open court. Advocates in open court
including the solicitor, who if a barrister has not been instructed, will need to wear a
collar or tabs and gown with a white shirt and dark suit. The petitioner’s solicitor will
sit on the right-hand side of the court facing the judge and the respondent on the left-
hand side. The petitioner and respondent will sit behind counsel, if applicable.
(l) The Opening
2.134 The burden of proof governs the right to begin. Where there are cross-petitions, the
earlier in time has the right to begin. Therefore, generally it will be the petitioner’s
solicitor who opens by giving a brief summary of the facts. Advocates should be guided
by the judge as to whether he wishes the pleadings to be read out to him partially or in
full. Sometimes, the judge will prefer to go immediately to the examination-in-chief
of the petitioner.
(m) The Examination-in-Chief
2.135 The petitioner is called to the witness box and will either swear the oath or make an
affirmation. The petitioner is asked to confirm that the contents of the petition are true
and correct. Then if appropriate, he should be questioned concerning the particulars
in order to elaborate the matrimonial “offence” relied upon to prove that the marriage
has broken down irretrievably.
(n) Cross-Examination
2.136 The petitioner will then be cross-examined on what he has said and in the petition itself
by the opposing solicitor or counsel. Leading questions can be asked at this point.
(o) Re-Examination
2.137 The petitioner’s counsel will then re-examine him on questions arising out of the
cross-examination, but only in order to clarify points raised. No new evidence can be
brought on re-examination.
(p) Witnesses
2.138 After the petitioner’s evidence has closed, including witnesses called by him or on
his behalf, then the respondent will be called, examined by counsel in chief and then
cross-examined by the petitioner’s counsel. Witnesses for the respondent can be called,
and the above procedure will be repeated. Evidence is to be taken orally.148
148
MCR, r 38.

(q) Closing
Each side will then summarize the position and close the matter. The judge will either 2.139
deliver judgment or defer the matter and hand down judgment at a later date.
(r) Compromise
The magic word throughout a prospective defended divorce is “compromise”. A full 2.140
defended hearing where both parties agree that a marriage has broken down irretrievably
is costly and emotionally draining. At the end of the day, the costs will inevitably be
paid out of the monies available to be shared between the parties themselves and all
that is achieved at the end is a decree of divorce, which could have been obtained far
more cheaply and quickly. After a full hearing, a court will rarely rule that a marriage
has not broken down irretrievably. In practice, parties very rarely proceed to defend
a suit and hearings of this nature may happen once or twice in a legal career if at all.
Negotiations looking towards a compromise acceptable to both should be investigated 2.141
thoroughly and options would include:
(1) amending the petition in a manner acceptable to the respondent and

proceeding on the basis of the amended petition to an undefended hearing;149
(2) amending the cross-petition in a manner acceptable to the petitioner and
proceeding on the basis of the amended cross-petition to an undefended
hearing;
(3) if the parties have been separated for one year, proceeding on the alternative
ground of one years’ separation by consent (but note they must have been
separated for one year proceeding the presentation of the petition); or
(4) both parties accepting in part or in whole the petition of the other, in which
case they can proceed on both cross-decrees. In that instance, both sides will
need to go through the undefended procedure, that is each to swear an affidavit
confirming the contents of their petition is true and correct, and both applying
for directions for trial can proceed on both cross-petitions to cross-decrees.
(s) Costs
Costs will follow the event, as in most litigation. If a party refuses to be sensible and 2.142
to compromise, then that party may be penalized on costs, although it is clear from
the comments of Cheung JA in YSP v HFF150 that a party has every right to answer a
divorce petition, as not to do so may adversely affect his case.
149
See paras 2.053–2.056 for the procedure regarding amendment to the petition.
150
(unrep., CACV 235/2003, [2003] HKEC 1257).


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CHAPTER 2

PRACTICE AND PROCEDURE OF

2. Names of the parties .............................................................................................................. 2.005

3. Preliminary matters ................................................................................................................ 2.006

4. Drafting the divorce petition .................................................................................................. 2.008

5. Drafting the joint application ................................................................................................. 2.016

6. Drafting the nullity petition ................................................................................................... 2.022

7. Drafting the petition for judicial separation ........................................................................... 2.025

9. Statements of arrangements for the children ......................................................................... 2.027

10. The certificate of reconciliation ............................................................................................. 2.033

11. Filing ...................................................................................................................................... 2.035

12. Service ................................................................................................................................... 2.038

13. Subsequent pleadings ............................................................................................................. 2.053

14. Amending the pleadings ......................................................................................................... 2.054

17. The decree nisi hearing .......................................................................................................... 2.063

19. Rescission of decree nisi ........................................................................................................ 2.073

20. The decree absolute ................................................................................................................ 2.076

Family Law_Chapter 02.indd 29 2/17/14 11:19 AM

23. The defended suit ................................................................................................................... 2.098

Family Law_Chapter 02.indd 30 2/17/14 11:19 AM

(1) matrimonial proceedings (subject to rules of the MCR ie most applications

(1) the Guardianship of Minor’s Ordinance (Cap 13);

Family Law_Chapter 02.indd 31 2/17/14 11:19 AM

2. NAMES OF THE PARTIES

4. DRAFTING THE DIVORCE PETITION9

Family Law_Chapter 02.indd 32 2/17/14 11:19 AM

Family Law_Chapter 02.indd 33 2/17/14 11:19 AM

child of his family”. If there is a dispute as to whether a child is a child of the

(a) The Particulars

(b) The Prayer

Family Law_Chapter 02.indd 34 2/17/14 11:19 AM

5. DRAFTING THE JOINT APPLICATION

Family Law_Chapter 02.indd 35 2/17/14 11:19 AM

6. DRAFTING THE NULLITY PETITION

Family Law_Chapter 02.indd 36 2/17/14 11:19 AM

7. DRAFTING THE PETITION FOR JUDICIAL SEPARATION25

8. DRAFTING THE PETITION FOR PRESUMPTION

9. STATEMENTS OF ARRANGEMENTS FOR THE CHILDREN27

Family Law_Chapter 02.indd 37 2/17/14 11:19 AM

10. THE CERTIFICATE OF RECONCILIATION32

Family Law_Chapter 02.indd 38 2/17/14 11:19 AM

(3) If the petitioner is represented, the certificate of reconciliation signed by the

Family Law_Chapter 02.indd 39 2/17/14 11:19 AM

filed, a petition cannot be withdrawn.38 It can be dismissed for want of prosecution or

Family Law_Chapter 02.indd 40 2/17/14 11:19 AM

Service is proved if 2.043

(1) the acknowledgment of service (Form 4) is signed by the respondent and

Family Law_Chapter 02.indd 41 2/17/14 11:19 AM

(a) Deemed Service54

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(b) Substituted Service56

(c) Order Dispensing with Service58

(d) Service out of the Jurisdiction of Hong Kong

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13. SUBSEQUENT PLEADINGS

14. AMENDING THE PLEADINGS

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