Family and Matrimonial Law

Bigamy is regulated under section 45 of the Offences Against the Person Ordinance (Cap. 212): “Whosoever being married shall marry any other person during the life of the former husband or wife shall be guilty of felony, and being convicted thereof shall be liable to imprisonment for 7 years.”

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Definition:

Bigamy occurs when a person, already lawfully married, contracts another marriage before the first marriage is dissolved (i.e., before a decree absolute of divorce or the spouse’s death).

Applies whether the second marriage is in Hong Kong or abroad.

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Elements of the offence

• The accused was legally married at the time of the second marriage.
• The first marriage was still valid and subsisting.
• The accused went through a marriage ceremony with another person.

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Defences

• Honest and reasonable belief that the first marriage had been lawfully dissolved.
• The first spouse had been absent for at least 7 years and was not known to be alive (per section 46 Cap. 212).
• The first marriage was void ab initio.

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Same-sex marriage is not recognised as a valid marriage under Hong Kong matrimonial law, but foreign same-sex marriages may be recognised for limited statutory purposes such as tax, inheritance, and employment benefits.

Under the Marriage Ordinance (Cap. 181) and Hong Kong case law, marriage is legally defined as:

“a voluntary union for life of one man and one woman to the exclusion of all others.”

Key points from statutory law and case authorities:

1. Local same-sex marriage

Not permitted under the Marriage Ordinance.

Basic Law Article 37 protects the freedom of marriage but has been interpreted (e.g., MK v Secretary for Justice [2022] HKCA 1247) as referring to heterosexual marriage only.

2. Foreign same-sex marriages

Generally not recognised as valid marriages for the purposes of Hong Kong matrimonial law (e.g., divorce, nullity).

However, certain court decisions (e.g., Leung Chun Kwong v Secretary for the Civil Service [2019] HKCFA 19, Ng Hon Lam Edgar v Secretary for Justice [2024] HKCFA 30) have recognised foreign same-sex marriages for specific statutory purposes, such as:

• Employment and spousal benefits in the civil service.
• Joint tax assessment under the Inland Revenue Ordinance.
• Inheritance rights under the Intestates’ Estates Ordinance and the Inheritance (Provision for Family and Dependants) Ordinance.
• Certain immigration, housing, and pension benefits.

3. No civil partnership framework

Hong Kong law does not provide for civil partnerships or registered partnerships for same-sex couples.

4. Limited recognition principle

Recognition is purpose-specific: a foreign same-sex marriage may be treated as valid for the interpretation of a particular statute but will not be recognised as a “marriage” under the Marriage Ordinance.

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The Hong Kong marriage registration process is a structured statutory procedure involving eligibility checks, notice, certification, authorised celebration, and formal registration.

The process is governed by the Marriage Ordinance (Cap. 181) and relevant administrative procedures set by the Registrar of Marriages.

Key statutory requirements and steps:

1. Eligibility

• Minimum age is 16.
• If aged 16–20 (and not widowed), written consent from a parent/guardian or court order is required (Marriage Ordinance, sections 14 & 18A).
• Parties must be single, of opposite sex, and not within prohibited relationships.

2. Giving Notice of Intended Marriage

• Parties must attend a marriage registry or sub-office in person with identification documents.
• Complete and sign the Notice of Intended Marriage form.
• The notice is exhibited publicly at the registry for 15 clear days.

3. Certificate of Registrar of Marriages

• If no objection is lodged within the 15-day period, the Registrar issues a Certificate of Registrar of Marriages.
• This certificate is valid for three months from the date of issue.

4. Celebration of Marriage

Must be conducted by:

• A Registrar at a marriage registry;
• A competent minister at a licensed place of worship; or
• A civil celebrant at any permitted venue (excluding Registrar’s office or licensed place of worship per section 21(3A) MO).

At least two witnesses must be present.

5. Registration

The marriage celebrant completes the marriage certificate and forwards it to the Registrar for official registration.

The Registrar enters the marriage in the official register.

6. Validity

Marriage must comply with all statutory requirements to be valid.

Grounds for nullity include: prohibited relationships, improper celebration, lack of certificate, underage marriage without consent, bigamy, or same-sex marriage (except for limited recognition purposes).

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Yes — prenuptial and postnuptial agreements can be upheld in Hong Kong if entered into freely, with full understanding, independent advice, and fairness. However, the court may vary or disregard them if circumstances make enforcement unjust.

1. Historical position

• Prenuptial agreements were traditionally considered contrary to public policy and unenforceable.
• Postnuptial agreements (including separation agreements) were generally treated as valid contracts but subject to fairness review.

2. Modern position (Radmacher principles adopted in Hong Kong)

The court will give effect to a nuptial agreement if:

• Each party entered into it freely;
• Each party had a full appreciation of its implications; and
• It is fair to hold the parties to the agreement in the circumstances at the time of divorce.

3. Factors affecting enforceability

• Independent legal advice for each party.
• Full financial disclosure before signing.
• No undue pressure or exploitation of a dominant position.
• Terms must not prejudice the reasonable needs of any children.
• The agreement must not be manifestly unfair at the time of enforcement.

4. Court’s role in divorce proceedings

Under section 7(1) of the MPPO, the court retains discretion to make financial orders.

Nuptial agreements are a relevant factor but not binding on the court — the court may depart from them if fairness requires.

5. Separation agreements

Valid contracts under section 14 of the MPPO.

Courts generally uphold them unless unforeseeable circumstances would make enforcement unjust.

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Child custody decisions in Hong Kong are governed by the Guardianship of Minors Ordinance (Cap. 13), the Matrimonial Proceedings and Property Ordinance (Cap. 192) (for ancillary relief in divorce).

Key legal principles:

1. Welfare of the child is paramount

• Section 3 of the Guardianship of Minors Ordinance (Cap. 13) provides:

In relation to any minor, the welfare of the minor shall be the first and paramount consideration.

• The court will consider the child’s physical, emotional, and educational needs.

2. No presumption in favour of either parent

The court must consider all relevant factors, including each parent’s capacity to care for the child, stability of living arrangements, and the child’s existing relationships.

3. Types of custody orders

• Sole custody: One parent has the authority to make major decisions for the child (education, medical, religion).
• Joint custody: Both parents share decision-making authority — increasingly preferred unless there is high conflict.
• Care and control: Determines with whom the child lives day-to-day.
• Access orders: Regulate the non-residential parent’s contact.

4. Relevant factors considered by the court:

• Age, health, and wishes of the child (depending on maturity)
• Bond with each parent and siblings
• Continuity and stability of care
• Each parent’s ability to meet the child’s needs
• Any history of domestic violence or abuse
• Practicalities of schooling and living arrangements

5. Relocation cases

• If custody involves relocation overseas or to Mainland China, the court applies welfare principles and considers the impact on the child’s relationship with the non-relocating parent.

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Property division is governed primarily by the Matrimonial Proceedings and Property Ordinance (Cap. 192) (“MPPO”), section 7(1), and guided by the leading case LKW v DD (2010) 13 HKCFAR 537.

The Hong Kong courts adopt a five-step approach to ancillary relief:

1. Ascertain the parties’ financial resources at the date of the hearing — including all assets, income, pensions, and entitlements.
2. Assess the parties’ financial needs — housing, living expenses, and child-related responsibilities.
3. Apply the sharing principle — starting from equal division of matrimonial assets unless there is a good reason to depart.
4. Consider reasons to depart from equal division, such as:

• Non-matrimonial property (assets acquired before marriage or from external sources)
• Short marriage duration
• Special contribution by one party
• Conduct in exceptional cases (e.g. reckless dissipation of assets)

5. Determine the form of the award — lump sum, property transfer, sale and division of proceeds, or maintenance.

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The key difference lies in the legal status of the marriage before proceedings:

• Divorce assumes the marriage is valid and simply terminates it.
• Nullity declares the marriage invalid — either from the outset (void) or from the annulment date (voidable).

This affects legal consequences such as the legitimacy of children, succession rights, and property division.

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Under the Matrimonial Causes Ordinance (Cap. 179):

Divorce:

• Governed primarily by section 11, which requires proof that the marriage has broken down irretrievably.
• Grounds include adultery, unreasonable behaviour, desertion, or separation for a statutory period.
• A divorce ends a valid marriage from the date the decree absolute is granted.

Nullity:

• Governed by section 20.
• Applies when a marriage is either void (never legally valid from the start) or voidable (valid until annulled).
• Void marriage grounds (section 20(1)) include: prohibited relationships, bigamy, underage marriage (under 16), and same-sex marriage under current law.
• Voidable marriage grounds (section 20(2)) include: non-consummation, mental incapacity, venereal disease at the time of marriage, pregnancy by another man.
• A decree of nullity for a void marriage treats it as if it never existed; for a voidable marriage, it is valid until annulled, and annulment only takes effect from the date the decree is made absolute (section 20B).

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Yes — your spouse’s overseas residence does not automatically prevent divorce proceedings in Hong Kong, but you must satisfy the jurisdictional requirements under section 3 of the Matrimonial Causes Ordinance (Cap. 179), the Hong Kong court has jurisdiction to entertain divorce proceedings if, at the date of the petition, either party:

(a) is domiciled in Hong Kong; or

(b) is habitually resident in Hong Kong; or

(c) has a substantial connection with Hong Kong.

If your spouse lives overseas, you can still file for divorce in Hong Kong provided you can show that either you or your spouse meets one of the jurisdictional criteria (domicile, habitual residence, or substantial connection with Hong Kong).

Examples:

• You are a Hong Kong permanent resident and still live in Hong Kong (habitual residence).
• Your spouse is domiciled in Hong Kong even if currently abroad.
• Either party has strong ties to Hong Kong (family, property, long-standing business interests) amounting to a substantial connection.

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Under section 11 of Matrimonial Causes Ordinance (Cap. 179):

"No petition for divorce shall be presented to the court before the expiration of the period of 1 year from the date of the marriage."

There are limited exceptions, the court may allow a petition within the first year if the applicant can demonstrate exceptional hardship suffered or exceptional depravity by the other party.

This means that, in general, you must wait at least one year from the date of marriage before filing for divorce. If you wish to file earlier, you must apply for the court’s leave and provide strong evidence of exceptional hardship or depravity.

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Under the Matrimonial Causes Ordinance (Cap. 179), there is only one legal ground for divorce in Hong Kong:

The marriage has irretrievably broken down.

This breakdown must be proved by establishing one or more of the following five facts:

• Adultery – The respondent has committed adultery and the petitioner finds it intolerable to live with them.
• Unreasonable Behaviour – The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with them.
• Desertion – The respondent has deserted the petitioner for a continuous period of at least one year immediately before the petition is filed.
• One Year Separation with Consent – The parties have lived apart for at least one year and both consent to the divorce.

Two Years Separation without Consent – The parties have lived apart for at least two years, and the petitioner may apply without the other party’s consent.