Translator：Jiang Wenyu

Landing has always been concerned with the professional development of lawyers, adhering to the concept of "absolute professionalism," and insisting on providing a platform for the professional development and exchange of lawyers. On December 11, 2023, the seminar on "Asset Division in Cross-Border Divorce" initiated by the IAFL Asia-Pacific Regional Chapter and hosted by the Shanghai Landing Law Offices was successfully held at the Landing Shanghai headquarters. The IAFL is a global association in the field of family law, which regularly holds knowledge-sharing and lectures in the field of family law every year.

Tian Jie, senior partner and deputy director of Department of Family and Wealth Inheritance of Landing, presided over the seminar.

The seminar invited IAFL members from four jurisdictions to share issues related to asset division in divorce cases under their respective legal domains. They are Rita Ku, partner at Rita Ku & Ser in Hong Kong; Steven Yoda, partner at Walzer Melcher & Yoda Law Firm in California, USA; Eleanor Lau, partner at Lander & Rogers Law Firm in Australia; and Wong Kai Yun, joint managing director at Chia Wong Chambers in Singapore.

Tian Jie first introduced the relevant legal system in mainland China, where fault-free divorce is the jurisdictional principle, meaning that no fault is required for divorce. Regarding the issue of eligibility, he stated that in China, either party can file for divorce, even if neither party is a Chinese national, as long as one party has habitual residence in China, usually allowing for divorce to be filed in China.

Rita Ku introduced the conditions for applying for divorce in Hong Kong, stating that either one party must be a resident of Hong Kong, or both parties must have resided in Hong Kong for at least 3 years prior to the application, or on the day of application, any party has a close connection to Hong Kong. Currently, the concept of close connection is expanding. Any valid reason for divorce can be submitted under the Matrimonial Causes Ordinance. The simplest reason for divorce is "lack of love" between the parties.

Steven Yoda also introduced the relevant laws on divorce in the United States, where each state has different legal provisions. The marriage laws in California are somewhat similar to those in China. Prior to filing for divorce in California, one party must have resided in the state for at least 6 months, and for at least 3 months in the corresponding county at the time of filing for divorce.

Eleanor Lau introduced the relevant legal policies in Australia, stating that one party must have been born in Australia, become an Australian citizen through blood relations, or legally reside in Australia with the intention to continue living there for at least 12 months. In cases where the marital relationship has irretrievably broken down, and the parties have been separated for at least 12 months and 1 day at the time of application, a divorce can be granted. Overall, Australia is a very liberal country when it comes to divorce.

 Wong Kai Yun introduced the relevant legal provisions in Singapore, where as long as either party habitually resides in Singapore or has been a resident for 3 years at the commencement of the proceedings, divorce can be sought. Singaporean law also requires fault-based divorce, meaning that the applying party must prove adultery, unreasonable behavior, separation, or desertion. Similar to Hong Kong, "lack of love" is also a common reason for divorce in Singapore.

Each legal jurisdiction not only has significant differences in the requirements for filing for divorce, but also in the recognition and distribution of marital property.

Tian Jie explained that mainland China operates under the regime of community property, where essentially all property acquired during the marriage is considered community property, while pre-marital property is considered separate property. Regarding gifts and inheritance, unless otherwise specified by the donor or testator, property acquired through gifts and inheritance during the marriage is also considered community property.

Following this, the four lawyers briefly shared the distribution rules of marital property in their respective legal domains, addressing questions from attending lawyers regarding the recognition of same-sex marriages, property distribution after divorce, and the division of assets following the dissolution of cohabitation relationships.

During this seminar, the guest lawyers also shared the difficulties and challenges they encountered in handling international divorce cases, providing insights and experiences, planting the seeds for in-depth study and research on family law cases in different legal domains among the audience, and opening the door to knowledge for better professional development. They also realized the necessity and importance of considering the legal differences in different jurisdictions in advance when dealing with cross-border divorces or in formulating family wealth planning. It is hoped that everyone will continue to pay attention to Landing and IAFL activities, helping everyone to deepen their expertise in their professional fields.

Rita Ku explained that generally, income and property acquired after marriage are considered marital assets in Hong Kong. The court has broad discretionary power to handle each case based on the duration of the marriage, the source and nature of the property, its value, and the needs of both parties. Even if property is determined to be non-martial, it does not necessarily mean that it is excluded from divisible property. Gifted property and inherited assets are not considered marital property in the Hong Kong region.

Steven Yoda described California’s laws as resembling a "community property" state similar to mainland China. Generally, all property acquired during the marriage is considered community property, while pre-marital property is considered separate property. However, gifts and inheritances are treated differently, as property acquired through gifts and inheritances is considered separate property. California law dictates that community property is generally divided equally between spouses, but divorced spouses can claim spousal support post-divorce.

Eleanor Lau explained that the definition of marital assets in Australia is quite broad, encompassing all assets, liabilities, pensions, etc., whether owned jointly, separately, or in certain cases through corporate entities, trusts, etc., regardless of whether these interests exist in Australia or overseas. Essentially, there is no separate concept of marital assets; all premarital and post-marital property is subject to division, albeit in varying proportions. Eleanor Lau also emphasized that the division of marital property in Australia is separate from the divorce process, and it does not necessarily mean divorce first and then division of property.

Wong Kai Yun explained that marital assets in Singapore include any assets acquired during the marriage or before the marriage, which are typically used or enjoyed by both parties or their children for housing, transportation, household, education, entertainment, social, and aesthetic purposes, or have undergone substantial improvement during the marriage. However, assets acquired through gifts or inheritances that have not undergone substantial improvement during the marriage are excluded.

Following this, the four lawyers briefly shared the distribution rules of marital property in their respective legal domains, addressing questions from attending lawyers regarding the recognition of same-sex marriages, property distribution after divorce, and the division of assets following the dissolution of cohabitation relationships.

During this seminar, the guest lawyers also shared the difficulties and challenges they encountered in handling international divorce cases, providing insights and experiences, planting the seeds for in-depth study and research on family law cases in different legal domains among the audience, and opening the door to knowledge for better professional development. The audience also realized the necessity and importance of considering the legal differences in different jurisdictions in advance when dealing with cross-border divorces or in formulating family wealth planning. It is hoped that everyone will continue to pay attention to LANDING and IAFL activities, helping everyone to deepen their expertise in their professional fields.