Unfortunately it is often the case that they cannot.
Hong Kong only has jurisdiction to entertain a divorce petition if, at the date of the divorce petition, either husband or wife is domiciled in Hong Kong, or has been habitually resident in Hong Kong throughout the previous 3 years, or has a substantial connection to Hong Kong.
“Domicile” can be a complex matter, but is essentially the country that a person treats as his permanent home and to which he has the closest legal attachment. At birth we all acquire a domicile of origin, usually our father’s domicile if he was alive when we were born, or our mother’s if he was not. We retain that domicile of origin throughout our lives unless we acquire a domicile of choice, which involves, among other things, making a permanent home in another country.
For the vast majority of people, what this really means is that where we were born determines our domicile and we keep that domicile all our lives. So, if you are Chinese and were born in Hong Kong, Hong Kong is almost certain to be your domicile. For those who were born elsewhere but have made Hong Kong their permanent home, they may have acquired Hong Kong domicile by choice.
So far as being “habitually resident” in Hong Kong for 3 years prior to the date of the divorce petition is concerned, there is usually no difficulty in determining whether that criteria can be met. The words mean what they say and whether you regularly take long business trips or holidays out of Hong Kong it is not going to change the fact that you are still habitually resident in Hong Kong.
The real difficulties arise with what amounts to having a “substantial connection” to Hong Kong.
There have been numerous reported decisions where “substantial connection” has been considered. Each case will depend on its own facts and the absence of one or more particular factors may not necessarily be fatal to satisfying this ground for jurisdiction. Generally though, renting or buying your home in Hong Kong, being based out of Hong Kong, having a Hong Kong identity card, paying Hong Kong taxes, joining Hong Kong recreational clubs or societies, are all matters that will be taken into account.
What this all adds up to is that if you are currently living in Hong Kong on anything other than a temporary basis, getting divorced in Hong Kong should be possible. The fact though that you were married in Hong Kong or at some time in the past you lived in Hong Kong (but now live in Shanghai or Macau for example) or that you still own an investment property in Hong Kong or have business interests of one sort or another here, are not factors that on their own make it possible to get divorced in Hong Kong.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.