Lwky v. Lyj

FCMC 7745 / 2024

[2026] HKFC 30

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 7745 OF 2024

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JUDGMENT
( Want of Jurisdiction )

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1.This is the Respondent’s application for striking out and/or dismissal of the Petitioner’s Petition for Divorce for want of jurisdiction, and alternatively, for the proceedings to be permanently stayed on the ground that Mainland China is a more convenient forum to dispose of the matters (“the Jurisdiction Summons”).

2.I shall refer to the Petitioner and the Respondent as Husband and Wife respectively. The Husband is represented by Mr Peter Zhu while the Wife by Ms Sally Wong.

Background

3.The Husband and Wife are now aged 88 and 67 respectively.  They first met in the US in 1991. On 25 November 2011, they had their first formal marriage in the US.

4.According to the Wife, back in 2014, the Husband asked the Wife to move to Hong Kong but the Wife considered that she had no family ties to or connection with Hong Kong. If it were not the Husband’s request, the Wife would not have moved to Hong Kong. Whilst they eventually moved to Hong Kong, they would only stay in Hong Kong for about one-third of a year at that time. For the remaining two-thirds of a year, they would primarily live in the Mainland and occasionally in the US. The parties had a divorce in the US on 2 April 2016.

5.Subsequently, their second formal marriage was registered in the US on 22 February 2017. They then moved to Hong Kong. On 6 July 2017, the Husband and Wife purchased their matrimonial home in Hong Kong (“the Matrimonial Home”). That was an uncompleted unit at the time when the sale and purchase agreement was signed. The property was completed in December 2020. The Wife therefore argued that the property should not be considered as their matrimonial home because the parties have never led to any meaningful matrimonial life in the property given the Husband has already relocated to Guangzhou after COVID in 2020.

6.On 4 September 2023, the Husband issued a Petition for Divorce on the ground of 2 years separation (“the 1^st Petition”). Since the Wife has no family ties to or connections with Hong Kong except for the Husband, after the 1^st Petition has been presented, the Wife formed the intention of leaving Hong Kong to stay in the Mainland permanently so as to reunite with her cousins and close friends there. At that time, the Wife’s property in the Mainland was rented out and her cousin has allowed her to stay in her cousin’s residence until the financial dispute with the Husband is settled. Since then, the Wife has moved her personal belongings from Hong Kong to the Mainland, but she chose not to relocate the furniture until the divorce proceedings have been concluded.

7.The Wife says that she ceased residing in the Matrimonial Home in early 2024. The Wife has applied for the Residence Permit for Hong Kong, Macao and Taiwan Residents, the Permit was issued to her on 18 April 2024.

8.It was the Wife’s intention to cut all the ties to Hong Kong, and she claims that she has fully settled in the Mainland around early 2024. She would stay in the Mainland permanently, and would return to Hong Kong for one or two weeks to prepare the court documents and for hearing only.

Procedural history of the divorce petition

9.As mentioned above, on 4 September 2023, the Husband issued the 1^st Petition for Divorce on the ground of 2 years separation. It was pleaded that the parties separated since August 2021 and the parties were domiciled in Hong Kong. The Wife indicated in the Acknowledgement of Service that she would defend the case. In the Answer to the Petition, the Wife pleaded that they only separated from each other since 13 June 2023 while she raised no objection that she was domiciled in Hong Kong.

10.On 14 May 2024, leave was granted by the Court to the Husband to issue a fresh petition on the ground of 1 year separation with consent. The Order included the usual terms that the proceedings of the 1^st Petition be stayed upon presentation of a fresh petition and would be dismissed upon the making of the decree nisi under the fresh petition. For the First Appointment hearing, since the parties have filed the Form Es, the Court directed the parties to file and serve questionnaires and answers and required the parties to attempt to reach an agreement on the valuation of the property involved.

11.On 19 July 2024, a fresh petition (“the 2^nd Petition”) was issued by the Husband, in which the sole ground to confer jurisdiction was that the Wife was domiciled in Hong Kong.

12.The Husband and the Wife continued to file their respective questionnaires on 28 May 2024 and 28 June 2024 respectively in the 1^st Petition. Their Answers to the Questionnaires were respectively filed on 12 August 2024 and 30 December 2024 in the file of the 1^st Petition.

13.In respect of the 2^nd Petition, the parties filed Consent Summons dated 9 September 2024 seeking the Court’s directions for, inter alia, (1) extension of time for the Wife to file the Answer to the Husband’s Questionnaire, and (2) the Husband to provide further Answer to the Wife’s Questionnaire, in particular, questions 10-13. In approving the Consent Summons, the Master directed on 10 September 2024 that the parties should take out interlocutory applications, including expert directions and application for a stay, within 28 days, and the First Appointment hearing originally fixed for 10 September 2024 be adjourned to 3 December 2024. On 2 December 2024, the parties filed another Consent Summons for further extension of time and further adjournment of the First Appointment hearing. The Court granted the time extension and further adjourned the hearing to 8 April 2025. At the hearing on 8 April 2025, as the Wife has failed to comply with the Order dated 10 September 2025, the Master adjourned the First Appointment to 15 May 2025.

14.Eventually, the Wife took out the Jurisdiction Summons on 22 April 2025. The Wife filed the Form 4 dated 28 April 2025 indicating that she would dispute over the jurisdiction of the Petition. She argued that since early 2024, she has fully settled in the Mainland permanently, and therefore she was not domiciled in Hong Kong at the time of the 2^nd Petition.

15.The substantive hearing of the Jurisdiction Summons was originally fixed to be heard on 23 September 2025. On that day, the Husband took out Summons to amend the 2^nd Petition by including the Wife and the Husband’s substantial connection with Hong Kong as grounds to confer jurisdiction (“the Amendment Summons”). Leave to amend was granted, and the following costs order was made:

a)  Costs of the hearing on 23^rd September 2025 be apportioned as follows:- (1) 50% be in the cause of the Amendment Summons; and (2) 50% be in the cause of the Jurisdiction Summons, both be reserved;

b)  Hearing of costs of the Amendment Summons be adjourned to a date to be fixed in consultation with the Counsel’s diary, pending the determination of the Jurisdiction Summons.

16.The substantive hearing of the Jurisdiction Summons was adjourned to 5 February 2026 to be heard before me. By paragraph 4 of the Order made by Deputy Judge W Y Ho on 23 September 2025, the Wife was granted leave to withdraw paragraph 2 of the Jurisdiction Summons. Therefore, there is no need for this Court to deal with the alternative application for a permanent stay.

The arguments of the parties

17.The Husband argues that:

a)  The Wife is domiciled in Hong Kong, or either party has substantial connection with Hong Kong.

b)  The Wife has participated in the divorce proceedings in Hong Kong since the 1^st Petition, and has not denied that she was domiciled in Hong Kong at the time of the 1^st Petition. In any case, she has voluntarily submitted to the jurisdiction.

c)  The 2^nd Petition is a continuation of the 1^st Petition such that the rule of “once competent, always competent” applies.

18.The Wife raises objection to the Husband’s case by saying that:

a)  By pleading both “domicile” and “substantial connection” grounds, the Husband implicitly acknowledges the uncertainty as to whether the “domicile” ground could be sustained.

b)  The Wife was never domiciled in Hong Kong.

c)  The Husband fails to discharge his burden to show the “substantial connection” ground of either party.

19.At the substantive hearing, both Mr Zhu and Ms Wong agreed that I shall first consider whether the parties have substantial connection with Hong Kong at the time of the 2^nd Petition, and if not, whether the Wife was domiciled in Hong Kong at the time of the 2^nd Petition. If I am not satisfied with the jurisdiction issue of the 2^nd Petition, I shall proceed to consider whether the Wife was domiciled in Hong Kong at the time of the 1^st Petition, and whether the 2^nd Petition could be regarded as a continuation of the 1^st Petition. Since there was no plea of substantial connection of either party in the 1^st Petition, I need not consider the substantial connection ground in respect of the 1^st Petition.

The law

20.Section 3 of the Matrimonial Causes Ordinance, Cap 179 provides that:

“ The court shall have jurisdiction in proceedings for divorce under this Ordinance if:

(a) either of the parties to the marriage was domiciled in Hong Kong at the date of the petition or application;

(b) either of the parties to the marriage was habitually resident in Hong Kong throughout the period of 3 years immediately preceding the date of the petition or application; or

(c) either of the parties to the marriage had a substantial connexion with Hong Kong at the date of the petition or application.”

21.It is pleaded that both parties have substantial connection with Hong Kong in the 2^nd Petition. I shall deal with the substantial connection ground first.

Substantial connection

22.In the judgment of ZC v CN (Divorce: jurisdiction) [2014] 5 HKLRD 43, Cheung JA summarised the legal principles as follows:

“ 9.4 Whether a person has a substantial connection with Hong Kong is clearly a question of fact. No definition for this term will be succinct or comprehensive enough. What one may do is to look at the surrounding factors to see whether that person is substantially connected with Hong Kong at the time of the petition. As a starting point, one begins to see if that person has connection here and then decide whether that connection is a substantial one, see S v S [2006] 3 HKLRD 751, [15]. In terms of connection, there must be physical presence in Hong Kong, this must be the ground rock of invoking the divorce jurisdiction. But because of the requirement of "substantial", the presence cannot be of a transitory nature otherwise this will encourage "fly in" and "fly out" divorces, a theme that the Court has consistently emphasised, see, for example, Griggs (née Sharp) v Griggs [1971] HKLR 299 , Ta Tran Thi Thanh v Ta Van Hung [1981] HKDCLR 37 and more recently S v S, B v A [2008] 1 HKLRD 43.

……

9.7 Traditionally, the discussion of this topic mainly centred on the foreign expatriate community who are present in Hong Kong because of business commitments or to avail themselves of the opportunities in this international commercial city, see, for example, S v S, B v A, G v G [2005] HKFLR 182 and Z v Z (Substantial Connection and Forum) [2012] HKFLR 346 . Increasingly in recent years this issue is extended to many of the Hong Kong and Mainland Chinese families who have homes or businesses both here and on the Mainland. Examples can be found in this and other cases such as LS v AD (Forum: discovery in the PRC) [2012] HKFLR 376 and YS v TTWD (Substantial Connection: Forum) [2012] HKFLR 129. The focus of discussion in these cases is not about mainlanders who came here on visitors' two-way permit but those who have resident status in Hong Kong. Needless to say, the same approach of looking at the surrounding circumstances in order to ascertain the presence of substantial connection is to apply to these parties as well.

9.8 The fact that a party has resident status which allows him or her to live here legally is only a factor to be taken into account. He or she may not be living here on a long term basis and only comes here occasionally. No doubt one has to look at other factors such as the party's past pattern of life, the frequency of his visit to Hong Kong, the length and purpose of the stay, whether the party is engaged in business or work here, whether the rest of the family is here and whether a home has been established here and whether the children are at school here. It is also important to bear in mind that since the legislation only requires the party to establish a substantial connection in Hong Kong, he or she at the same time may have a substantial connection elsewhere, see S v S . In my view, if a party is shown to have substantial connection elsewhere by reason of his home or work, this may be used to contrast with the connecting factors he has in Hong Kong to see whether the Hong Kong connection is a substantial one.

9.9 It was said in Savournin [1971] HKLR 180, 184 (and also B v A [2008] 1 HKLRD 43, at [20]) that a meaning must be given to substantial connection wider than domicile or three years' ordinary residence. But this is not intended to be interpreted so loosely as to encourage residence of passage (Indyka v Indyka [1969] 1 AC 33 at 105) or divorce of convenience. At the same time it will be unduly restrictive if one confines the connecting factors solely to that of a family context, namely, accommodation in a matrimonial home and presence of spouses and children. While in the majority of cases, family context is the focus of the inquiry and a material factor, there may well be situations where a party is in Hong Kong without the presence of his family, but nonetheless is able to show that he has a substantial connection here. It really depends on the circumstances of the case. Such cases, however, must be regarded as exceptional.”

Substantial connection – Husband

1.  Physical presence

23.The Husband accepts that at the time of the 2^nd Petition, both parties were not physically present in Hong Kong. In fact, the Husband has relocated to the Mainland in around 2020.

24.The Husband recognises that physical presence in Hong Kong is necessary to establish connection. He invites the Court to consider that the lack of residence in Hong Kong at the date of the 2^nd Petition is not a fatal factor and the Court should look at the parties’ past pattern of life: see FWM v. NXC [2024] HKFC 137 at §§26-28.

25.The Husband asks the Court to consider:

a)  The Covid-19 pandemic has seriously affected his returning to Hong Kong;

b)  His senior status and health condition has seriously obstructing his ability to travel to Hong Kong;

c)  His physical presence is not merely transitory.

26.There is no doubt that the Husband was not physically present at the time of the 2^nd Petition (i.e. 19 July 2024). Neither was he physically present in Hong Kong throughout the year 2022. He only spent 79 days and 11 days in the year 2023 and 2024 (up to 19 July 2024) respectively. I consider that his physical presence prior to the 2^nd Petition was only transitory in nature. Having considered all the circumstances, I am not satisfied that the Husband has established his physical presence at the time of the 2^nd Petition.

2.  Social presence

27.The Husband also invites the Court to consider his strong social presence in Hong Kong, including his first ever marriage (with someone other than the Wife) registered in Hong Kong, his only daughter was born and educated in Hong Kong. He used to have friends and relatives in Hong Kong. He is also receiving old age allowance and health care voucher in Hong Kong.

28.The Court of Appeal said in the case of ZJW v. SY [2017] HKFLR 612 at §56 that “[s]ection 3(c) of the MCO asks the question if a party has a substantial connection with Hong Kong at the time of the issue of the divorce petition. In answering the question, the court takes a holistic approach and evaluates all the relevant factors including any pre-petition event, matter, conduct or circumstance, if pertinent, while always being in mind that it is the position as at the date of the petition that is determinative. As said, how much weight is to be attached to a relevant factor would vary according to the particular circumstances of the case…”. In the present case, the first ever marriage of the Husband was registered in 1966 while his daughter was born in 1967. In this regards, I accept the Wife’s submissions that the alleged historic ties to Hong Kong of the Husband carry minimal weight in determining whether the Husband has substantial connection.

29.Whilst the medical benefits and the old age living allowance of the Husband is one of the considerations, having balanced all the circumstances, I am not satisfied that the Husband has established his social presence at the time of the 2^nd Petition.

3.  Economic presence

30.Further, the Husband’s bank and investment accounts in Hong Kong represented about 4% of the total value of his liquid assets only. I accept the Wife’s argument that the Husband does not have any economic presence in Hong Kong.

Substantial connection – Wife

1.  Physical presence

31.The Wife argues that her stay in Hong Kong has been transitory, in that, since 2014, she has been residing in Hong Kong for only about one-third of each year.

32.The Husband contends that the Wife spent over 60% of her time in Hong Kong in the consecutive 3 years immediately before the 2^nd Petition. The Husband produced a table showing the Wife’s stay in Hong Kong from 2020 up to the date of the 2^nd Petition:

Year	Days in HK	%	Nights in HK	%
2020	81	22.13	76	20.77
2021	282	77.26	280	76.71
2022	365	100	365	100
2023	236	64.66	226	61.92
2024 (up to 19 July 2024, totalling 201 days)	134	66.67	128	63.68

33.The Husband takes exception to the Wife’s allegation that she has fully settled in the Mainland in early 2024. The Wife’s Immigration Records showed that she spent 134 days from January to 19 July 2024, that is to say, 66% of her time was spent in Hong Kong. Mr Zhu for the Husband argues that it is difficult to see how the Wife has “fully settled” in the Mainland when she has in fact spent 66% of her days and nights in Hong Kong prior to the 2^nd Petition.

34.Further, the record did not support the Wife’s allegation that she would only return to Hong Kong to deal with the divorce proceedings. The Husband raises serious doubt as to why the Wife has to have a lengthy stay in Hong Kong simply to deal with the proceedings. The immigration records show that the Wife’s footprints in Hong Kong in the year 2024 (up to the date of the 2^nd Petition) were:

Periods	Number of days
1 January to 8 January	7
10 January to 3 April	84
25 April to 29 April	4
7 May to 4 June	28
30 June to 10 July	10
10 to 11 July	1

35.From the file record in respect of the 1^st Petition, the First Appointment hearing was initially fixed for 13 November 2023. Since decree nisi has not been pronounced, the Master made the directions on paper on 2 November 2023 that the First Appointment hearing be adjourned to 20 February 2024 and directed the parties to file respective Form Es, Questionnaires and Answers, and so forth.  The parties filed joint letter on 16 February 2024 to ask for further adjournment of the hearing and extension of time for the Wife to file Form E. The Court granted an order in terms.

36.Eventually, the Wife’s Form E (dated 20 March 2024) was filed on 26 March 2024. The First Appointment hearing was taken place before a Master on 14 May 2024. That was the first hearing in which the parties personally attended, and it was on that occasion where the Husband was granted leave to commence a fresh petition on one year consent ground.

37.In the circumstances, what the Wife would need to do in early 2024 was to provide instructions for the preparation of Form E dated 20 March 2024 and to provide instructions for the hearing on 14 May 2024. As such, I do not accept the Wife’s contention that after fully settled in the Mainland in early 2024, she was “compelled to return to Hong Kong on occasions to prepare for the proceedings”. Moreover, as pointed out by Mr Zhu, the Wife has spent 66% of her time in Hong Kong in the year 2024 up to the date of the 2^nd Petition. The length of her stay in Hong Kong was consistent in the year 2023. I do not accept that the Wife’s stay in Hong Kong prior to the 2^nd Petition was transitory as alleged.

2.  Social presence

38.The Wife argues that she has no family, relatives or any other close connection in Hong Kong. She moved to Hong Kong solely at the Husband’s request. She obtained the Residence Permit for Hong Kong, Macao, and Taiwan Residents on 18 April 2024, i.e. three months before the 2^nd Petition.

39.Mr Zhu for the Husband accepts that the Wife has no family members or relatives in Hong Kong. He invites the Court to draw an inference that by staying in Hong Kong for a number of years, the Wife must have made some friends in Hong Kong. However, with respect, we do not have sufficient evidence to draw such inference at the present moment.

3.  Economic presence

40.The Husband contends that the Wife maintains bank accounts, credit card and securities account in Hong Kong, and the Matrimonial Home registered in their joint names is located in Hong Kong.

41.Mr Zhu for the Husband submits that while the Wife’s own case is that the monthly spending at the time of her Form E (dated 20 March 2024) was HK$12,000, the Wife would actively withdraw cash from her Bank of China accounts at around HK$4,000 to HK$5,000 per month between March 2023 and February 2024. She has continued to use her Heng Seng bank account to settle the utilities and management bills in Hong Kong. During the Wife’s stay in Hong Kong, as she admitted, she would live in the Matrimonial Home.

42.Ms Wong for the Wife argues that the value of the Matrimonial Home accounts for only 33.4% of the total value of the Wife’s landed assets. Since Form A in respect of the 1^st Petition was registered against the Matrimonial Home, and it could not be sold. The value of the bank and investment accounts represent about 14% of the Wife’s total liquid assets. The transactions and cash withdrawals have been minimal. Ms Wong also drew my attention to the Bank of China statements that the monthly cash withdrawals in early 2024 have been diminishing.

43.As mentioned in §9.8 in the case of ZC v CN (Divorce: jurisdiction), supra, the law only requires the party to establish a substantial connection with Hong Kong, he or she at the same time may have a substantial connection elsewhere. As to what is required to be “substantial”, Hartmann J (as he then was) explained in the case of S v. S [2006] 3 HKLRD 751 at §§16 – 19 as follows:

“16. ‘Substantial’ is a plain enough English adjective. We all understand what it means.- at least in substance (if I may be excused the play on words). I say that because it is not a word that lends itself to precise definition or from which precise deductions can be drawn. To say, for example, that ‘there has been a substantial increase in expenditure’ does not of itself allow for a calculation in numerative terms of the exact increase. It is a statement to the effect that it is certainly more than a little but less than great. It defines, however, a significant increase, one that is weighty or sizeable.

17. It speaks for itself, I think, that an artificially constructed connection will not be a substantial one. A connection must be real in the sense, for example, that it has not been engineered for temporary tactical advantage. It was not the intention of the Legislature (in passing s.3(c) into law) to create a convenient off-shore divorce jurisdiction. As it has been said in an earlier authority, the subsection is not intended for "birds of passage".

18. As the jurisdiction looks to the determination of matrimonial proceedings, a material factor will be whether both parties to the marriage have lived in Hong Kong and, if so, how long they have lived here as man and wife. But those factors will not necessarily be determinative. In each case the factors to be considered will be different and the weight to be given to them, in the factual context of each case, will no doubt be different too.

19. In summary, whether - for the purposes of the Ordinance - a connection is substantial or not can only be determined on the basis of a broad objective assessment, taking all relevant factors into account.”

44.Returning to the present case, the Bank of China Statements of the Wife from March 2023 to February 2024 showed the following ATM withdrawals:

Statement date	Total amount of ATM withdrawals (HK$)
7-3-2023	31,000
6-4-2023	20,000
6-5-2023	6,000
7-6-2023	1,000
7-7-2023	7,000
7-8-2023	0
7-9-2023	7,000
7-11-2023	0
7-12-2023	2,500
6-1-2024	10,000
7-2-2024	5,000

45.The statements showed that, from May 2023 to February 2024, there were constant monthly ATM withdrawals of a few thousands for most of the months. Whilst the amount of monthly withdrawals were varying, the statements did not support the Wife’s argument about the alleged diminishing withdrawals of cash. Comparing with the Wife’s monthly spending of about HK$12,000, the amount of monthly withdrawals was substantial enough to establish the connection with Hong Kong.

46.I remind myself that the Court should take a holistic approach and evaluate all the relevant factors including any pre-petition event, matter, conduct and circumstance, if pertinent, while always bearing in mind that it is the position as at the date of the petition that is determinative: see ZJW v. SY [2017] HKFLR 612 at §56.  The Matrimonial Home is a Hong Kong property registered under of the joint names of the parties. As admitted by the Wife, the value of the Matrimonial Home accounts for 33.4% of the total value of the Wife’s landed assets. The value of the bank and investment accounts in Hong Kong represent about 14% of the Wife’s total liquid assets. As revealed in the Wife’s Form E, the Wife does not have substantial money in bank accounts, and most of the assets are in the form of landed properties, including the Matrimonial Home, and properties in Guangzhou and the US. The fact that Wife has acquired the Residence Permit for Hong Kong, Macao, and Taiwan Residents is only one of the factors to be considered. Having considered all the circumstances, including the physical and financial presence of the Wife, adopting a broad objective assessment, I am satisfied that the Wife has substantial connection with Hong Kong at the time of the 2^nd Petition.

Other issues

47.In view of my ruling on the Wife’s substantial connection with Hong Kong which confers the jurisdiction of the Hong Kong Family Court to deal with the 2^nd Petition, I need not deal with the issue of the Wife’s domicile in the 2^nd Petition, nor do I have to consider whether the 2^nd Petition is a continuation of the 1^st Petition.

Costs

48.The parties basically agree that costs should follow the event. Mr Zhu and Ms Wong also agree that the costs of the Amendment Summons and the costs of the hearing on 23 September 2025 should be paid by the Husband to the Wife to be taxed if not agreed.

Conclusion

49.The Jurisdiction Summons filed on 22 April 2025 is dismissed.

50.Costs of the Amendment Summons filed on 23 September 2025 and the costs of the hearing on 23 September 2025 be paid by the Petitioner to the Respondent with certificate for counsel.

51.Subject to the preceding paragraph, there be costs order nisi that costs of the Jurisdiction Summons be paid by the Respondent to the Petitioner with certificate for counsel.

52.If no application for variation of costs order nisi is made, the parties shall submit their respective statements of costs (limited to 3 pages at font 14 with double line spacing) within 21 days from the date hereof and the parties shall submit their respective lists of objection (limited to 3 pages at font 14 with double line spacing) within 7 days thereafter.

53.Unless otherwise directed, the costs shall be assessed by summary assessment to be determined by paper disposal without oral hearing.

Mr. Peter Zhu instructed by H. Y. Leung & Co. LLP for the Petitioner

Ms. Sally Wong instructed by Yip, Tse & Tang for the Respondent