Read the full judgment text of CACV 36/2011 on BabelCite. This Court of Appeal judgment was delivered on 21 March 2013 before Hon Cheung JA, Hon Yuen JA, Hon Lam JA.
Family law – divorce – jurisdiction – domicile – Matrimonial Causes Ordinance – Domicile Ordinance – forum non conveniens – decree nisi – nullity – appeal – The Court of Appeal considered whether the Family Court had jurisdiction to hear divorce proceedings where the Husband's domicile was in question. The Husband was born on the Mainland, acquired right of abode in Hong Kong, but lived in New Zealand and later the Mainland. The Court held that under the Domicile Ordinance, the Husband was not domiciled in Hong Kong on the date of the petition. Consequently, the court had no jurisdiction. The Court also discussed forum non conveniens obiter, noting the parties and child were not resident in Hong Kong, making enforcement difficult. The appeal was allowed, the lower court order dismissed, and the decree nisi declared void. No order as to costs. The judgment clarifies the application of the Domicile Ordinance Cap. 596 in determining domicile for matrimonial proceedings. It emphasizes that parties cannot confer jurisdiction on a court by consent. The decision highlights the importance of residence and intention in establishing domicile. The obiter discussion on forum non conveniens underscores the practical difficulties of enforcing orders when parties are non-resident. The case serves as a precedent for jurisdiction challenges in cross-border divorce cases involving the Mainland and New Zealand.
Legal issues: Jurisdiction based on domicile · Forum non conveniens
Outcome: Appeal allowed; FCMC10543/2009 dismissed; Decree Nisi void
Cites 1 case