Research On The Legal Application Of Divorce Property Division In Hong Kong

Since Hong Kong came back under the sovereignty of China in 1997,it became a special administrative region of China.Recent years saw increasingly frequent economic exchanges and civil and commercial contacts between mainland China and Hong Kong,and the number of marriages between mainland citizens and Hong Kong residents also increased year by year.Due to the economic,political,historical and cultural differences between Hong Kong and Mainland China,the number of divorce cases involving Hong Kong elements has also increased in recent years.According to the data collected by judicial agencies across the country,the number of cross-border marriages between Hong Kong and Mainland China has increased by more than20,000 each year.In the judicial practice of cross-border divorce relating to Hong Kong,the division of property,custody of the children,and maintenance of the spouse became the focus problem.The division of property,due to the difference of law rules between Mainland and Hong Kong in the marital property system,choice of law became very important,for the application of different laws will lead to different results.Mainland China enacted its first law regulating the choice of law in the foreign-related civil legal relationship in 2011,which is however not detailed and lack of manipulation.Therefore,this article will firstly analyze the problems existing in our legislation and examine the judicial practice in the property division between mainland citizen and Hong Kong residence,and then put forward the proposals for the perfect of our legislations.The first part mainly introduces the legal conflicts between Mainland China and Hong Kong concerning the division of divorce property.There are great differences in marriage legislation,property law and civil procedure law between Mainland China and Hong Kong,which are manifested in the conflict of marital property system,property law and divorce procedure rules.Among them,the core problem is that the provisions of legal property system in the marriage law of Mainland China and Hong Kong are different.The legal property system adopted in China at the present stage is the marital joint property system,while Hong Kong takes the separate property system as its legal property system,which will lead to different applicable laws and widely divergent judgment results.The second part makes an overview and analyzes the general rules of law application in Hong Kong-related divorce.First of all,in the division of property in Hong Kong-related divorce,a very important rule is the autonomy of the parties,which indicates that the husband and wife have some autonomy in choosing the court and the applicable law of the husband and wife's property relationship.Secondly,Hong Kong-related divorce property division involves both personal relationship and property relationship,so it inevitably involves the coordination of the connection points of personal law and property law.Division of property in divorce,if involves real estate division will inevitably involve the change of real right of real estate,and the court of the place where the property is enforced,so do not ignore the importance of the law of the place where the property is,at the same time residents of chattel property also gradually diversified types,movable segmentation mainly according to both sides of husband and wife belong to a person,but,if the nature of the chattel is more special,so these special chattel property at the same time also to get to a certain extent local legal regulation.Finally,the place where the act of litigation procedures apply to court has always been an important rules of private international law,because the parties come from different jurisdictions,and the main property of marriage is often located in mainland China or Hong Kong,both court to method can not only relevant to the case facts into the nature of specific legal category,can also exclude foreign law applicable to maintain their own sovereign interests and public interests.The third part,through the analysis of the typical Hong Kong-related divorce property division cases,points out the existing problems in the judicial trial and misunderstanding of the law.The primary problem is the judgment of “Hong Kong-related factors” in the property division,which cannot be only considered from the nationalities of the parties,but also should be considered from the perspectives of the place where the property locates,and the nature of the property.If the property in dispute locates in the territory of Mainland China,the property division also has foreign elements.Secondly,through the analysis of a typical case on the real estate ownership confirmation,we can find that there are still some problems in judicial practice,such as the judgment of the common residence,the relationship between the application of personal and property laws in the division of real estate,and it is urgent for legislators to formulate corresponding laws and regulations.The fourth part puts forward some suggestions on perfecting the legal rules of Hong Kong-related divorce property division in China.To be in detail,the perfect suggestions include four aspects: first,the disputes over the confirmation of real estate rights in Hong Kong-related divorce cases should be classified as “marital property relationship”,which can not only reflect the property law nature of the divorce property division,but also reflect the identity law nature;second,the criteria for change of habitual residence should be clarified and personal law connecting points should be added,such as the place of marriage;third,the choice of law on the pre-condition of divorce should be made clear in our legislation,the law of the court and should be considered;finally,it should be clarified that the property contract between the spouses must conform to the legal form and cannot damage the interests of the third party and the public.