Bigamy is the act of entering into a marriage with one person while still legally married to another. It is a legal ground to nullify a marriage. A nullified marriage means the marriage is declared null and void, which means the marriage is treated as if it never existed.

According to section 20(1) of the Matrimonial Clause Ordinance (MCO), Cap. 179 , when at the time of marriage either party has already been lawfully married, the said marriage is void. For example, if a person marries a second time without first completing the formal steps of divorce for his/her first marriage, then his/her second marriage is nullified.

Section 18(1) of the MCO provides for the remarriage of divorced persons:

“Where a decree of divorce has been made absolute and either-

1. there is no right of appeal against the decree absolute; or
2. the time for appealing against the decree absolute has expired without an appeal having been brought; or
3. an appeal against the decree absolute has been dismissed;

either party to the former marriage may marry again.”

If someone got married in Mainland China or overseas and is undergoing a divorce process, as long as the divorce process is not completed and the status of that person is not “single”, then the said person cannot get married again in Hong Kong, as the marriage would be void under section 20(1)(c) of the MCO .

Vice versa, if the party originally got married in Hong Kong but is getting married again in the Mainland or overseas, albeit undergoing divorce proceedings at the time the party gets married (assuming the proceedings are not yet completed), the said party commits bigamy, under section 45 of the Offences Against the Person Ordinance ( Cap. 212 ).

According to section 45 of the Offences Against the Person Ordinance ( Cap. 212 ), any person who, being married, marries any other person during the life of the former husband or wife shall be guilty of an offence triable upon indictment, and shall be liable to imprisonment for seven years.

Adultery is the term used for 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.

The only ground for divorce in Hong Kong is that “the marriage has broken down irretrievably”. According to section 11 of the Matrimonial Causes Ordinance (MCO), adultery is one of the five “facts” a party can use to prove that the marriage has broken down irretrievably, and the petitioner has to establish the fact of adultery.

Under section 11A(a) of the MCO , to establish the fact of adultery, the petitioner must show two things:

1. the petitioner’s spouse has committed adultery, and
2. the petitioner finds it intolerable to live with the spouse who has committed adultery.

Point (2) above is a test from the  subjective point of view of the adulterer’s spouse as to whether or not he/she finds it intolerable to live with the adulterer. The feeling of intolerance does not have to be related to the adultery: it may be a result of the adultery, but it may also relate to some other behavior of the adulterer.

Time limit

If the parties continue to live together for more than six months following the act of adultery, the petitioner will not be entitled to rely on the fact of adultery because the petitioner will not be able to show that he/she finds it intolerable to live with his/her spouse who has committed adultery.

Proof

It is not a requirement that the person who committed adultery with the respondent is identified. The petition and confession statement could state that the respondent committed adultery with a person unknown to the petitioner, or the petitioner can choose to disclose the identity of the person if the petitioner knows who that person is.

The petitioner must have certain knowledge 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. Whoever raises the allegation of adultery has to prove it.

Unmarried cohabitant couples do not have the legal status of married couples and thus do not enjoy the benefits attached to married couples, which includes tax, pension, medical and public housing benefits. The most important fact is that, regardless of how long the cohabitants have been living together, cohabitant couples are not recognized as married couples under the law. Thus, cohabitant couples fall outside the scope of the rights enjoyed by married couples.

A. Estate provision

According to the Intestate Estate Ordinance (IEO), Cap. 73 , if a person has not married his/her cohabiting partner, and his/her cohabiting partner dies intestate (without a will), he/she cannot share in the estate of his/her cohabiting partner( section 4 ). According to section 2 of the IEO , “intestate” also includes a person who leaves a will but dies intestate as to some beneficial interest in his/her estate.

However, the Inheritance (Provision for Family and Dependants) Ordinance ( Cap. 481 ) provides a way for a cohabiting partner to apply for financial provision from his/her deceased partner, even if the deceased partner leaves no will and no legal status of husband or wife exists. According to section 3(1)(b)(ix) of the Inheritance (Provision for Family and Dependants) Ordinance , any person who has been maintained wholly or substantially by the deceased immediately before the deceased’s death can apply for financial provision from the deceased person’s estate. Therefore, if a cohabiting partner can prove that he/she has been maintained by the deceased partner, then he/she can still receive maintenance from the deceased’s estate.

B. Protection from violence in cohabitation

Hong Kong laws seek to protect cohabitants from violence in their relationships. The Domestic and Cohabitation Relationships Violence Ordinance ( Cap. 189 ) allows victims of violence, whether in marriage or cohabitation relationships, to seek legal remedies and apply for court injunctions. For example, a person may apply for a restraining order to prevent the perpetrator or abusive partner from entering or remaining in their residence: under ( Section 3B of the Domestic and Cohabitation Relationships Violence Ordinance ).

For more details about domestic violence, please read “ Domestic violence and assistance ”.

C. Parental Rights

Where unmarried cohabitants have children, the mother has all the rights and authority regarding the child’s custody and upbringing, while the natural father does not have automatic parental rights. To enjoy parental rights, the natural father must make an application for a Court Order under ( Section 3(1)(c) of the Guardianship of Minors Ordinance , Cap. 13 ).

D. Upon Separation

In the event of a breakdsown in their relationship, cohabitants do not enjoy any legal rights. In particular, the law does not provide unmarried separated couples the same rights that are enjoyed by divorced couples following the breakdown of their marriage.

Transsexual persons are those who have changed from one sex to another. Normally transsexuals change their gender by undergoing a sex reassignment medical treatment and surgery. They can then apply to change to a new identity card (HKID card) with the newly acquired gender.

According to section 40 of the Marriage Ordinance , marriage involves a voluntary union for life of one man and one woman to the exclusion of all others.

The Court of Final Appeal decision in W v Registrar of Marriages recognize a transsexual’s right to marriage. It was declared that the meaning of “woman” and “female” includes a post-operation male-to-female transsexual person whose gender has been certified by an appropriate medical authority as having changed after sex reassignment surgery. Accordingly, the Court held that under the law “W” is entitled to be included as “a woman” under the relevant provisions of the Marriage Ordinance, and therefore is eligible to marry a man.

Further, the Court of Final Appeal held in Q & Tse Henry Edward v Commissioner of Registration that the underlying policy of the Commissioner of Registration requiring a full sex reassignment surgery (which involves a highly invasive surgery to remove the uterus and ovaries and construct an artificial penis for the female to male transgender persons) before amending the gender markers on their HKID cards, was unconstitutional. In other words, the completion of full sex reassignment surgery is not a necessary condition for amending the gender markers on transgender persons’ HKID cards. The appellants in that case have been medically certified that additional surgical procedures are not needed, the surgery carries certain post-operative risks and possible complications, and is medically unnecessary for many transgender persons, including the appellants.

Under the Hong Kong law, marriage shall be a Christian marriage or the civil equivalent of a Christian marriage. Section 40 of the Marriage Ordinance ( Cap. 181 ) states that marriage “implies a formal ceremony recognized by law as involving the voluntary union for life of  one man and one woman to the exclusion of all others “. Therefore, same-sex couples are excluded from the legal institution of marriage, along with the benefits of marriage.

Civil partnership (or same sex unions) is not recognized in Hong Kong. Under section 4 of the Marriage Reform Ordinance , marriage is defined as “the voluntary union for life of one man with one woman to the exclusion of all others…”

It is worthy to note that under the UK Civil Partnership Act of 2004, British Nationals and BNO citizens already have the right to register as civil partners, meaning Hong Kong residents holding BNO status actually possess the right to register for civil partnership under UK law. However, they cannot register for civil partnerships in Hong Kong as the HKSAR government raised “strong objections” with the British consulate-general. Therefore, despite their “citizenship”, Hong Kong people do not have the British constitutional rights within Hong Kong.

1. Is there any age restriction for marriage in Hong Kong?

The minimum age for marriage in Hong Kong is 16. However, if either party is over 16, but still under 21, and is not a widow or widower, written consent to the marriage is required. The written consent is usually provided by a parent or guardian.

Any person, minister or civil celebrant who, knowing that a written consent from the proper person has not been obtained, marries or assists or procures any other person to marry a person under the age of 21 years who is not a widow or widower commits an offence and shall be liable to a fine and imprisonment.

For more details, please go to Matrimonial Matters > Marriage and co-habitant issues > An overview .

2. My wife is an Australian. I want her to come to Hong Kong and live with me. What do I have to do?

For spouses from overseas (other than Mainland China), if they wish to enter Hong Kong to reside, they need to apply for a dependant visa. They must show that they are dependants of their spouses who are either Hong Kong permanent resident or a resident who is not subject to a limit of stay (i.e. a resident with the right to land or on unconditional stay).

The following conditions must be satisfied for a successful dependant visa application:

• Reasonable proof of a genuine relationship between the applicant (“dependant”) and the spouse residing in Hong Kong (“sponsor”);
• the applicant should be of clear criminal records and raise no security or criminal concerns for the HKSAR;
• the sponsor can substantially support the dependant and provide suitable accommodation during his/her stay in Hong Kong.

For more details, please refer to Matrimonial Matters > Marriage and co-habitant issues > Marrying non-HK residents .

3. I got married in the Mainland China a few years ago but my husband has left me and disappeared. I want to marry another man in Hong Kong now. Is there any risk that I may be committing bigamy?

If you got married in Mainland China, as long as the divorce process is not completed and your status is not “single”, then you cannot get married again in Hong Kong.

Vice versa, if the party originally got married in Hong Kong but is getting married again in the Mainland or overseas, albeit undergoing divorce proceedings at the time the party gets married (assuming the proceedings are not yet completed), the said party commits bigamy.

Any person who, being married, marries any other person during the life of the former husband or wife shall be guilty of an offence triable upon indictment, and shall be liable to imprisonment for seven years.

For more about bigamy, please visit Matrimonial Matters > Marriage and co-habitant issues > Bigamy .

4. I suspect that my wife is having an affair with another man. Can this be a reason for divorce?

Adultery is one of the reasons a party can use to prove that the marriage has broken down irretrievably, which is the legal grounds for divorce in Hong Kong. You have to establish the fact of adultery. You have to show that your wife has committed adultery, and you find it intolerable to live with her. However, if you and your wife continue to live together for more than six months following the act of adultery, you will not be entitled to rely on the fact of adultery. Besides, you must have certain knowledge that adultery has occurred, not only a belief that there has been adultery.

To know more about this, please go to Matrimonial Matters > Marriage and co-habitant issues > Adultery .

5. I am a woman cohabitating with my boyfriend. We have no plans of getting married. Would this jeopardize us in the legal sense?

Unmarried cohabitant couples do not have the legal status of married couples because they do not enjoy the benefits attached to married couples, which include tax, pension, medical and public housing benefits. The most important fact is that, regardless of how long the cohabitants have been living together, cohabitant couples are not recognized as married couples under the law. Thus, cohabitant couples fall outside the scope of the rights enjoyed by many married people.

If you want to know more, please refer to Matrimonial Matters > Marriage and co-habitant issues > Cohabitation .

6. I am getting married very soon. My father is very rich and he does not trust my fiancée. He has suggested me to make a nuptial agreement with my fiancée. What is a nuptial agreement?

Agreements made between couples before or after marriage are known as nuptial agreements. Nuptial agreements are contracts, entered into by couples, which determine the rights and obligations of each of them in the event their marriage fails. Premarital agreements are drawn up and signed before marriage, while post-marital agreements are made during the marriage. Post-marital agreements can be made either while the couple is still together, or when they separate. Post-marital agreements entered into during separation are known as “separation agreements”.

The content of nuptial agreements normally include terms for

• division of property
• maintenance for support of a spouse
• other financial arrangements such as trusts, company share transfers etc.

More complex agreements may arise where specific terms for a financial award result in the breakdown of the marriage.

For more about nuptial agreements, please visit Matrimonial Matters > Marriage and co-habitant issues > Nuptial agreements.

7. Do nuptial agreements have any legal status?

Nuptial agreements, other than separation agreements, are not as a general rule considered binding in the usual contractual sense in law in Hong Kong. There is no specific legislation concerning nuptial agreements, and not many court cases have addressed the topic of nuptial agreements.

However, such agreements (not being separation agreements) could be taken into account when deciding the outcome in divorce proceedings in Hong Kong courts involving ancillary relief and division of financial assets under the Matrimonial Proceedings and Property Ordinance as “circumstances of the case” or “conduct”, and may be upheld in part or in whole.

When the court needs to determine whether or not to make an order in accordance with a nuptial agreement, the question of fairness is a key issue. As ruled in an English case, nuptial agreement should be given effect (that is, enforced) if it was “freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing, it would not be fair to hold the parties to their agreement.” This principle was followed in Hong Kong.

On the other hand, according to the Matrimonial Property and Proceedings Ordinance, separation agreements (agreements entered between couples once they have separated or on the occasion of their separation) are valid contracts.

To understand more about this, please visit Matrimonial Matters > Marriage and co-habitant issues > Nuptial agreements.