Introduction:

Cross-border marriages are now very common. When divorcing parties initiate divorce proceedings in different jurisdictions, issues of jurisdiction conflict may arise.

Regarding whether Hong Kong courts have jurisdiction over a divorce case, according to Section 3 of the Matrimonial Causes Ordinance (Cap. 179) of Hong Kong laws, Hong Kong courts have jurisdiction over divorce proceedings under that Ordinance in the following circumstances:

1. On the date when the petition or application is made, any party to the marriage has Hong Kong as their domicile;

2. During the whole period of three years immediately preceding the date when the petition or application is made, any party to the marriage has been ordinarily resident in Hong Kong;

3. On the date when the petition or application is made, any party to the marriage has a substantial connection with Hong Kong.

If both parties to litigation are conducting proceedings in Hong Kong courts and courts of another jurisdiction on the same matter, and both Hong Kong courts and the courts of that other jurisdiction have jurisdiction over the same matter, how can this be handled? In Hong Kong law, there is an order called an anti-suit injunction, the purpose of which is to restrain the other party to the litigation from seeking or taking further action in proceedings in other jurisdictions on the same matter, or to prohibit the other party from commencing proceedings in other jurisdictions on the same matter.

Legal Principles of Anti-Suit Injunctions

The relevant legal principles of anti-suit injunctions can be found in the cases of Airbus Industrie G.I.E. and Patel [1999] 1 AC 119 and Société Aerospatiale and Lee Kui Jak [1987] 1 AC 871.

The relevant legal principles of anti-suit injunctions are as follows:

(1) Hong Kong should have a sufficient relationship or connection with the matter in dispute to justify indirect interference with foreign courts by an anti-suit injunction. In cases of alternative courts, this involves whether Hong Kong courts are the natural forum for resolving the relevant dispute;

(2) An anti-suit injunction should only be granted where it is necessary to achieve justice. Generally, such circumstances may be when the foreign proceedings are vexatious or oppressive;

(3) An anti-suit injunction is not directed at foreign courts, but at the party who is conducting or threatening to conduct foreign proceedings—this is a personal order;

(4) An injunction will only be granted where the party to be restrained can bring the matter in dispute before Hong Kong courts and the anti-suit injunction would be an effective means against the party to be restrained;

(5) Because such orders indirectly affect foreign courts, Hong Kong courts must consider comity and exercise caution in exercising jurisdiction.

Case Analysis 1:

BGPB and KSW [2021] HKCFI 1366 (Regarding custody, care, and control of Child AB)

In the case of BGPB and KSW [2021] HKCFI 1366, Child AB was born in Hong Kong and was born during the cohabitation of the Plaintiff (Father) and the Defendant (Mother). Child AB is an illegitimate child of the Plaintiff (Father) and the Defendant (Mother). In that case, the Plaintiff (Father) applied to Hong Kong courts for an anti-suit injunction to restrain the Defendant (Mother) from seeking or taking further action in proceedings already commenced in the Family Court of Western Australia regarding Child AB’s custody, care, and control, or from commencing parallel proceedings in Australia.

When considering whether Hong Kong is the natural forum for resolving the dispute, Hong Kong courts considered several factors, including:

(1) Child AB was born in Hong Kong and lived in Hong Kong for 6 years (at that time, Child AB was 6 years old);

(2) Before Child AB was taken to Australia by the Defendant (Mother) and left in Australia against the Plaintiff (Father’s) will, Child AB received education in Hong Kong;

(3) Before Child AB was taken to Australia, Child AB’s habitual residence was Hong Kong;

(4) The Plaintiff (Father) has been working in Hong Kong continuously;

(5) Before the Defendant (Mother) took Child AB to Australia, the Plaintiff (Father) and the Defendant (Mother) lived together in Hong Kong for 10 years.

Therefore, Hong Kong courts ruled that Hong Kong was, both in the past and present, the natural forum for resolving disputes regarding Child AB.

After establishing that Hong Kong is the natural forum for resolving the relevant dispute, Hong Kong courts further considered whether the Defendant (Mother’s) proceedings in Western Australia were vexatious or oppressive.

Regarding this issue, Hong Kong courts considered the following six circumstances:

First, on October 30, 2020, the Plaintiff (Father) commenced Hong Kong proceedings by summons. The case management hearing of the summons was scheduled for January 6, 2021. The day before the hearing, the Defendant (Mother) wrote to Hong Kong courts indicating her intention to commence parallel proceedings in the Family Court of Western Australia. Due to the pandemic, she could not come to Hong Kong, and she applied to the court for an adjournment of the hearing to seek legal advice. Due to time constraints, the court did not have time to respond to the adjournment application.

At the case management hearing of the summons on January 6, 2021, after the Plaintiff (Father) proved that relevant court documents had been served on the Defendant (Mother), the court made the following orders (“Interim Orders”):

(a) Interim custody, joint care, and control of Child AB were granted to the Plaintiff (Father) and the Defendant (Mother);

(b) The Defendant (Mother) shall immediately bring Child AB back to Hong Kong;

(c) After Child AB returns to Hong Kong, the Defendant (Mother) shall immediately submit to the court all passports issued to Child AB;

(d) Until further order of the court, the Defendant (Mother) shall not take Child AB out of Hong Kong or arrange or permit Child AB to leave Hong Kong;

(e) The Plaintiff (Father) and the Defendant (Mother) shall file evidence with the court for the full trial scheduled for February 22, 2021.

These orders were made by Hong Kong courts at approximately 10:00 AM on January 6, 2021. However, the Defendant (Mother) commenced proceedings in the Family Court of Western Australia (“Western Australian Proceedings”) at 8:01 PM on January 6, 2021 (Australian time). Hong Kong courts held that the Defendant (Mother) had clearly sought legal advice when she applied to Hong Kong courts for an adjournment of the case management hearing of the summons.

The Plaintiff (Father) was not informed about the Western Australian proceedings until January 9, 2021, when he was in Australia. It was only then that the Defendant (Mother) first notified the Plaintiff (Father) of her intention to keep Child AB in Australia. The aforementioned Interim Orders had also been served on the Defendant (Mother). The Defendant (Mother) told the Plaintiff (Father) that she had previously received documents for the Hong Kong proceedings, but she had never informed the Plaintiff (Father) of her position.

Two and a half months after the summons was served on her, the Defendant (Mother) applied for legal aid in Hong Kong on February 4, 2021. According to the Legal Aid Ordinance (Cap. 91) of Hong Kong laws, the relevant legal proceedings were required to be paused for 42 days, and the scheduled hearing on February 21, 2021, was suspended and changed to March 30, 2021.

Hong Kong courts learned that on February 22, 2021, the Defendant (Mother) had a hearing in the Family Court of Western Australia, which she had never mentioned to Hong Kong courts.

Second, Hong Kong courts held that the Defendant (Mother’s) litigation strategy was to delay the Hong Kong proceedings as much as possible. The Defendant (Mother’s) act of telling Hong Kong courts that she needed to seek legal advice and applying for an adjournment after she had already sought Australian legal advice was an act of deliberate misleading of Hong Kong courts. Through her legal aid application, she bought more time for her Hong Kong proceedings and prevented the proceedings from proceeding as scheduled.

Third, Hong Kong courts also considered the relief sought by the Defendant (Mother) in the Western Australian proceedings. In the Western Australian proceedings, she acknowledged the Plaintiff (Father’s) rights as a father. Hong Kong courts held that the Defendant (Mother) could have agreed to the Plaintiff (Father’s) application under Article 3 of the Guardianship of Minors Ordinance (Cap. 13) of Hong Kong laws for rights and powers as Child AB’s father as if Child AB were his legitimate child. However, the Defendant (Mother’s) application in the Western Australian proceedings was for joint parental responsibility with the Plaintiff (Father). The court held that the Defendant (Mother) could actually have sought similar relief in the Hong Kong proceedings. If the Defendant (Mother) wished to challenge the Hong Kong proceedings, she could have done so. She could also have applied to Hong Kong courts for an order to take Child AB out of Hong Kong.

Fourth, Hong Kong courts also took into account that the Defendant (Mother) acted in person in the Hong Kong proceedings. The court specifically reminded the Defendant (Mother) that the full trial would proceed, and arranged pre-trial equipment testing for her so that she could attend the hearing via video conference. However, the Defendant (Mother) did not attend the pre-trial equipment testing or the full trial on March 30, 2021.

Fifth, the day before the full trial, the Defendant (Mother) submitted a submission to Hong Kong courts claiming but actually unable to dispute Hong Kong courts’ jurisdiction. The court held that the Defendant (Mother) could actually bring the matter in dispute before Hong Kong courts’ jurisdiction, and an anti-suit injunction against her would be an effective means.

Sixth, Hong Kong courts also considered that before the ruling on this anti-suit injunction (May 13, 2021), Hong Kong courts had already made final orders (April 1, 2021) on the Plaintiff (Father’s) rights and powers as a father and on matters of Child AB’s custody, care, and control. Therefore, requiring all parties to re-argue the same matter in a second jurisdiction while the Defendant (Mother) refused to participate in Hong Kong proceedings would be a waste of judicial resources, as well as a waste of resources that the Plaintiff (Father) could have used for Child AB’s well-being.

Based on the above six circumstances, the court held that the Defendant (Mother’s) commencement of foreign proceedings with knowledge of the Hong Kong proceedings was vexatious and oppressive.

Application That May Be Made by a Party to Proceedings: Stay of Hong Kong Legal Proceedings on Grounds of Forum Non Conveniens

In some cases involving anti-suit injunctions, when one party to litigation applies to Hong Kong courts for an anti-suit injunction, the other party may apply to stay the Hong Kong proceedings on grounds of forum non conveniens.

Case Analysis 2:

Wang and Luo [2022] HKFC 198

The following is a brief chronology of the case of Wang and Luo [2022] HKFC 198:

On February 19, 2021, the Petitioner (Husband) filed a divorce petition in Hong Kong.

Thereafter, on May 25, 2021, the Petitioner (Husband) applied to the court for interim custody, care, and control of the daughter.

On August 2, 2021, the Petitioner (Husband) applied to the court for an order that the daughter shall not leave Hong Kong without the court’s permission, and if the daughter is not in Hong Kong, an order that the daughter be returned to Hong Kong.

On January 4, 2022, the Petitioner (Husband) applied to the court to withdraw the divorce petition and unconditionally terminate the proceedings, with costs to be paid by him to the Respondent (Wife).

On January 7, 2022, the court ordered, regarding the Petitioner (Husband’s) application on January 4, 2022, that the decree nisi be adjourned to a date to be fixed.

On March 3, 2022, the Petitioner (Husband) filed a divorce application at the Daxing District People’s Court in Beijing, applying for dissolution of the marriage, sole custody of the daughter, and ancillary relief regarding three properties in the Mainland under the Respondent (Wife’s) name. It can be seen that the Petitioner (Husband) wished to handle the main action, children’s matters, and ancillary relief all in the Beijing proceedings.

On approximately March 29, 2022, the Respondent (Wife) raised a jurisdiction challenge in the Beijing legal proceedings.

On April 28, 2022, the Respondent (Wife) filed an anti-suit injunction application and an interim anti-suit injunction application in the Hong Kong proceedings to restrain the Petitioner (Husband) from continuing the legal proceedings in Beijing or commencing any legal proceedings in the Mainland on the same or substantially the same disputes as in the Hong Kong proceedings.

On July 20, 2022, the Daxing District People’s Court issued a judgment dismissing the Petitioner (Husband’s) divorce application, in particular based on the principle of forum ac pricipis.

On July 22, 2022, the Petitioner (Husband) appealed against the judgment of July 20, 2022.

A. The Petitioner (Husband’s) Application to Withdraw Hong Kong Proceedings on Grounds of Forum Non Conveniens

The court held that regarding the Petitioner (Husband’s) application to withdraw Hong Kong proceedings, the Petitioner (Husband) must prove: (1) he has sufficient grounds to withdraw the petition and terminate the Hong Kong proceedings; and (2) the Petitioner (Husband’s) withdrawal of the petition and termination of Hong Kong proceedings will not cause injustice to the Respondent (Wife) and will not deprive her of any rights she has already obtained in the Hong Kong proceedings, which should be preserved as much as possible. In deciding whether to grant the Petitioner (Husband’s) application to withdraw proceedings, the court considered the parties’ arguments on forum non conveniens.

What is the Principle of Forum Non Conveniens

In the case of DCG and SLC [2005] 3 HKC 293, the court established the standards for the application of the principle of forum non conveniens. When considering whether a court in a jurisdiction is a forum non conveniens, the court must decide whether there is another available court with jurisdiction, and which is the appropriate forum for hearing the proceedings.

To answer this question, the party applying to stay the Hong Kong proceedings must prove: (1) Hong Kong is not the natural or appropriate forum; and (2) there is another forum that is clearly more appropriate than Hong Kong.

If the party applying to stay Hong Kong legal proceedings can prove the aforementioned (1) and (2), the other party wishing to continue proceedings in Hong Kong must prove that if the proceedings are heard in a court outside Hong Kong, he will be deprived of legitimate personal or judicial advantages. If he can prove this, the court must balance the advantages of the alternative forum against the disadvantages he may face.

In the case of Wang and Luo [2022] HKFC 198, Hong Kong courts considered that the proceedings were commenced by the Petitioner (Husband) in Hong Kong on the basis of his domicile being in Hong Kong, and that he subsequently applied to Hong Kong courts for various reliefs. Therefore, his conduct should be regarded as he voluntarily and unconditionally submitted the dispute to Hong Kong courts.

It can be seen that when considering whether a party to litigation has voluntarily submitted the dispute to Hong Kong’s jurisdiction, Hong Kong courts consider factors including whether the party has filed any pleadings with the court regarding the substantive merits of the litigation, whether they have invoked Hong Kong courts’ jurisdiction to seek interim or final orders for the other party to perform certain acts, etc.

Regarding the Petitioner (Husband’s) application to withdraw the petition and terminate proceedings, Hong Kong courts considered the following factors:

First, the Petitioner (Husband) submitted the dispute to Hong Kong’s jurisdiction by filing the divorce petition.

Second, the Petitioner (Husband’s) divorce application at the Daxing District People’s Court in Beijing was dismissed, so he was unlikely to argue that Beijing was a more appropriate forum.

Third, Hong Kong courts considered the following and held that Hong Kong is a more appropriate forum:

1. Both parties to the litigation are Hong Kong permanent residents;

2. The Petitioner (Husband) gave up his Mainland domicile to obtain Hong Kong permanent resident status;

3. Both parties to the litigation purchased properties in Hong Kong, including the matrimonial home;

4. The daughter was born, grew up, and received education in Hong Kong;

5. Both parties to the litigation seek custody, care, and control of the daughter. The daughter lives in Hong Kong with the Respondent (Wife), so handling matters regarding the daughter in Hong Kong is cost-effective and can be handled effectively and expeditiously within reasonable practical limits.

Therefore, the court held that the Petitioner (Husband) did not have sufficient grounds to support his application to withdraw the petition and terminate Hong Kong proceedings. Moreover, granting his application would cause injustice to the Respondent (Wife). She would be deprived of the benefits of having the Petitioner (Husband) file and serve financial statements and children’s matter forms as ordered by Hong Kong courts for the main action and children’s matters, to be handled cost-effectively and effectively and expeditiously within reasonable practical limits. These benefits to her should be preserved as much as possible.

B. The Respondent (Wife’s) Anti-Suit Injunction Application

When handling the Respondent (Wife’s) anti-suit injunction application, the court considered the Petitioner (Husband’s) voluntary and unconditional submission of the dispute to Hong Kong’s jurisdiction, that Hong Kong was clearly the natural forum for resolving the parties’ dispute, and the Petitioner (Husband’s) active participation in Hong Kong proceedings. Therefore, the court accepted the Respondent (Wife’s) argument that the Petitioner (Husband’s) commencement of proceedings in Beijing was an act of forum shopping.

The court further considered the Petitioner (Husband’s) act of forum shopping, his concealment from the Respondent (Wife) of his intention to commence divorce proceedings in Beijing, and his refusal to comply with court orders to file and serve financial statements and children’s matter forms, or to have a social welfare officer write a social investigation report. Therefore, the court accepted the Respondent (Wife’s) argument that the Petitioner (Husband’s) commencement of proceedings in Beijing was vexatious or oppressive.

Regarding the Respondent (Wife’s) anti-suit injunction application, the court ordered that neither the Petitioner (Husband) himself, his employees or agents, nor any other persons on his behalf, shall continue proceedings at the Daxing District People’s Court.

Summary

A party commencing proceedings should first understand whether they wish to handle the dispute through Hong Kong’s legal system and principles, whether Hong Kong is the appropriate forum for handling the dispute, and whether there are courts in other jurisdictions more appropriate than Hong Kong. Since the act of filing a petition or originating documents is very likely to be regarded by the court as voluntarily choosing to submit the matter to Hong Kong’s jurisdiction, and the party commencing proceedings is the one who decides when and where to commence proceedings, once a petition or originating documents have been filed with Hong Kong courts, it will be difficult for the party commencing proceedings later to argue that they have not submitted the matter to Hong Kong’s jurisdiction, thereby seeking a stay of legal proceedings or termination of proceedings.

If a party is the one against whom proceedings are brought, they should seek legal advice as soon as possible after receiving the petition or originating documents. Similarly, they should first understand whether they wish to handle the relevant matter through Hong Kong’s legal system and principles, whether Hong Kong is the appropriate forum for handling a particular matter, and whether there are courts in other jurisdictions more appropriate than Hong Kong. If the party against whom proceedings are brought wishes to raise a jurisdiction challenge, they should do so before filing any substantive defense or answering documents, so as to minimize the risk of being regarded by the court as having agreed to submit the dispute to Hong Kong’s jurisdiction. The party against whom proceedings are brought may consider applying for a stay of legal proceedings depending on the circumstances.

Each party to litigation should carefully choose the appropriate forum to handle the dispute, so as to reduce the risk of commencing proceedings in an inappropriate forum and avoid unnecessary litigation costs. If you need advice on how an anti-suit injunction may affect divorce proceedings in a specific case, please feel free to contact our lawyers through the channels below.