One of the rewarding aspects about practice at the Hong Kong Bar is that one gets to learn many new things. Conducting litigation well involves delving deep into the relevant facts. We therefore get to learn about different industries and different trust or corporate structures all the time.
By the same token, doing divorce cases often requires us to study the background to a divorce, and how a family has conducted itself in the lead-up to the breakdown of a marriage. There is some truth in Tolstoy’s observation that all happy families are alike, but each unhappy family is unhappy in its own way.
For a long time in the history of the common law, however, the secular courts actually had very little to do with divorce. It was the domain of canon law and the ecclesiastical courts. The most famous divorces in English legal history were probably those of Henry VIII, but those were in fact effected by way of a number of contrived interpretations of canon law.
The Archbishop of Canterbury at the time, Thomas Cranmer, preferred a more honest approach and proposed a set of reforms of the canon laws of England, enabling divorce on the more modern grounds of adultery, cruelty, desertion or bitter enmity. But after Henry VIII obtained his divorce, the reforms were shelved. They did not materialise for another 300 years.
It was only in 1857 that the Court for Divorce and Matrimonial Causes was established in England, and the divorce jurisdiction of the Church courts was abolished.
Nowadays it is much easier to get a divorce across the common law world. Yet in Hong Kong, divorce is still not a wholly unbridled right. Even if both parties agree, without a “fault-based ground” such as adultery or unreasonable behaviour, they must live apart for a continuous period of at least a year before they can obtain a divorce.
Hence, in real-life practice, there are still contested petitions, meaning that a party does not agree to a divorce and requires the petitioner to prove the requisite grounds. This is unusual and is often done only for tactical reasons.
