Adultery refers to voluntary sexual relations between an individual who is married and someone who is not the individual’s spouse. When a married person has sexual relations with someone who is not his or her spouse, he or she commits adultery.
There are two requirements for divorce in Hong Kong: 1) the marriage has broken down irretrievably and 2) one or more of the five facts listed in section 11 of the Matrimonial Causes Ordinance (MCO) is satisfied.
According to section 11 of the Matrimonial Causes Ordinance (MCO), adultery is one of the “facts” a party can use to prove that the marriage has broken down irretrievably.
Under section 11A(2)(a) of the MCO , to establish the fact of adultery, the petitioner must show two things:
- the petitioner’s spouse (respondent) has committed adultery, and
- the petitioner finds it intolerable to live with the respondent
The court is obliged to find only the adultery and the fact that the petitioner finds it intolerable to live with the respondent. Whether or not the adultery caused the irretrievable breakdown is irrelevant: Anderson v Anderson (1972) 117 Sol Jo 33
According to section 15A(3) of the MCO, where the parties to the marriage have lived with each other for more than six months after it has become known to the petitioner that his or her spouse has committed adultery, the petitioner will not be entitled to rely on the adultery for the petition of marriage.
It is not a requirement to name the person who committed adultery with the spouse. According to section 14 of the MCO, if the petitioner chooses to name the alleged adulterer in the petition, the petitioner shall make the alleged adulterer a party to the proceedings unless excused by the court.
The petitioner must prove that adultery has occurred, not only a belief that there has been adultery. The standard of proof is “a preponderance of probability” and there is also a presumption of innocence to overcome.
Ms. Ngan is on the panel of Solicitors for the Legal Aid Department of criminal matters, matrimonial/family law, employee compensation, personal injury, medical negligence, and land disputes and has participated in cases related to the Hague Convention on the Abduction of Children, which involved parental abduction of children in and out of the country. In addition, she provides legal advice to clients concerning marriage or relationship breakdown, drafts pre-nuptial and post-nuptial agreements, separation deeds and divorce agreements, and assists to delete non-biological father’s name on birth certificate. Ms Ngan is also experienced in handling void marriage petition, unreasonable behavior divorce petitions, litigation regarding the validity of the Enduring Power of Attorney (EPA), applying for Guardianship Order, Debt-related legal advices, employees’ violations of fiduciary duties such as conflict of interests and breach of confidentiality, applications for Dependent Visas, Company, Shares and Property transfers Due Diligence Check, Building Mortgages, Re-mortgage of public housing flats/HOS units, handling landlord-tenant dispute cases, Adverse Possession, cases involving investigations by the Independent Commission Against Corruption, Immigration Department or Police Force, traffic crime cases, criminal defense or mitigation, probate application for Hong Kong residents who have died outside Hong Kong, civil litigation and debt claims, etc.
If necessary, you can also apply for legal aid. Ms. Ngan is a member of the Legal Aid Department Penal for Criminal, Divorce/Family Law, Employees’ Compensation, Personal Injury, Medical Negligence, and Land Disputes. If legal aid is approved, the aided person has the right to choose a lawyer to represent.