II. Types of marriages in Hong Kong
Various types of marriages are recognized by Hong Kong law.
A. Registered marriage
Since 7th October 1971, a couple in Hong Kong can only validly marry in accordance with the Marriage Ordinance. This generally means that it must be a voluntary union for life of one man with one woman to the exclusion of all others and that the marriage ceremony must be carried out at one of the Marriage Registries or licensed places of worship in Hong Kong. This is called a registered marriage.
In addition, section 21(3A) of the MO states that a marriage celebrated by a civil celebrant can take place at any place in Hong Kong apart from the office of the Registrar and a licensed place of worship.
B. Foreign marriage
A foreign marriage celebrated outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed is generally recognized in Hong Kong as a valid marriage similar to a marriage registered in Hong Kong.
If the marriage was conducted and registered overseas, the marriage itself will not be governed by Hong Kong Law. However if the parties to the marriage choose to have a divorce in Hong Kong, they may do so and the laws of Hong Kong in relation to the divorce proceedings will apply.
C. Chinese customary marriage and modern marriage
Apart from registered marriages and foreign marriages, the law also recognizes as valid two other types of marriage if they were conducted in Hong Kong before 7th October, 1971.
Chinese customary marriage
The first type is a Chinese customary marriage. It is a marriage celebrated in accordance with the traditional Chinese customs that were accepted at the time of the marriage, either in the part of Hong Kong where the marriage took place, or in the parties’ family place of origin, usually their native place in China.
The other type is called a modern marriage, which is where an unmarried man and woman, neither of whom is less than 16 years of age, went through an open ceremony in the presence of at least two witnesses in such manner that a reasonable person would think that a marriage has been celebrated.
It is important to note that the ceremony has to be ‘open’ in the sense it was known and could be seen by all those who were not particularly invited to participate in the ceremony itself. This requirement would be satisfied by, for example, leaving the door of the room in which the ceremony took place open. This type of marriage is also called validated marriage.
Parties to these two latter types of marriage (Chinese customary marriage and modern marriage) can have the marriage post-registered at the Marriage Registry (that is, the marriage can be registered at the marriage registry after the event has taken place).
Registering a customary or validated modern marriage “legalizes” the marriage and allows it to be legally valid, enforceable and binding.
Sections 7 and 8 of the Marriage Reform Ordinance (“MRO”), Cap. 178 provide for what constitutes customary and validated modern marriage. Section 9 of the MRO provides for the registration of customary and validated marriages.
Evidence needs to be produced indicating the customary or validated marriage was celebrated in Hong Kong before 7 October 1971. Two witnesses to the marriage are required to give statutory declarations to confirm that they were present during the wedding ceremony. These documents need to be submitted to the Marriage Registration and Records office.
Once the application is approved by the Registry, the customary or validated marriage is registered.
If one party refuses to have the marriage registered after it has taken place the other party may apply to the District Court for a declaration that such a marriage exists and thereafter that party can post-register it unilaterally.