• news-banner

    Expert Insights

“Marrying means to halve one’s rights and double one’s duties” - Arthur Schopenhauer - Is that so?

Whether marrying will halve one’s rights and double one’s duties really depends on how one interprets and views matters. There are certainly rights and family duties that come with marriage. For the obvious, you might no longer have absolute freedom to use your assets, or be at liberty to develop new romantic relationships with others. In addition to your own parents and family members, you will also have your spouse’s parents and family members to deal with. Couples are usually overwhelmed by these new roles and responsibilities, and they usually overlook the legal rights that come with the marriage.

Marriage is a legal contract. Once entered into, both parties are bound by its legal consequences. It is also more than just a legal contract. It signifies the voluntary union for life of one man and one woman to the exclusion of all others, and gives the couple new status as “husband” and “wife”. However, unlike other contracts, the exact terms of the agreement are not printed on the marriage certificate. It is fair to say that most people likely have very little idea what they are signing up for in terms of their legal obligations, in particular, economic obligations towards each other.

Here are some of the legal rights and obligations following marriage.

Right to marry

Once you are married, you are not at liberty to marry another person unless and until you are divorced from your current spouse. You must make sure that your divorce is finalized before you can marry another person.

Rights involving assets and liabilities

Marriage is a union of the life of one man and one woman, which includes union of finances. What used to be separate will become joint assets to be shared by the parties after they are married. Assets and properties purchased during the marriage will likely be counted as family assets too, which are to be used and shared by the parties during the marriage. If the parties divorce in the future, these family assets will be subject to division. You will be entitled to claim a share of the family assets on divorce.

In some cases, even the parents of the parties might be dragged into their disputes, especially when there are gifts involved. The most common type of disputes where parents are dragged into divorce proceedings usually involve landed properties, especially in cases where the matrimonial home is purchased and/or funded by the parent(s).

The Court, when making a decision on how the assets should be split between the parties, will look at all circumstances and factors in order to achieve a fair and reasonable outcome. The starting position of capital division is 50-50, unless there are exceptional circumstances, which warrant a departure from the yardstick of equality.

Rights to maintenance

Once you are married, you have the right to claim for maintenance from the other spouse on divorce, which you would not have if you were merely a cohabitee. The Court will consider the needs and means of the parties and take into account of all factors and circumstances in order to consider whether one party should be paid maintenance and how much. These factors include the length of the marriage, age of the parties, their respective earning capacity, their lifestyle and living standard during the marriage, etc. The Court will also take into account the fact that some of the spousal benefits will be lost after divorce, for example, medical insurance coverage under one of the spouses’ employment, pension rights, housing benefits, travel allowance etc. The key is that the decision should be fair and reasonable to the parties.

Inheritance Rights

Once you are married, even if you do not have a valid Will, your spouse will be entitled to your estate by law. If you leave a spouse but no children, parents, siblings of the same parents, or their children, then the surviving spouse is absolutely entitled to the whole of your estate after deduction of all debts, taxes, funeral, legal and administration expenses from the estate. The amount your spouse will be entitled to is slightly different in situations where there are surviving children, parents or siblings upon your death.

Marriage will also invalidate the Will you made before marriage. You will need to make a new one to set out clearly your wishes for your estate to be dealt with in the event of your death.

Divorce itself does not invalidate your Will but your Will will take effect as though your former spouse has died on the date of Decree Absolute, i.e. the final divorce order. This would mean that any gifts to your former spouse will not take effect and will fall into your residuary estate. Therefore it is important to make a new Will after divorce to set out your wishes.

Prenuptial agreement

It might not be a very romantic thing, but because of the legal consequences of the marriage, it is advisable for parties who are getting married to get a prenuptial agreement done before they marry. This will help safeguard any assets that they are about to bring into the marriage, or the potential inheritance they get from their parents and families, which they would want to avoid being split and shared on divorce.

A prenuptial agreement is an agreement reached between the parties before they enter into a marriage, setting out their intended financial arrangements in the unfortunate event of a divorce. This will save a lot of potential disputes upon divorce, which in turn will save a lot of time and cost as well as take a lot of stress and pressure off the divorcing couple.

Although prenuptial agreement is not automatically binding in Hong Kong like a commercial contract, and that the Court will still have discretion to consider how the capital and assets shall be divided between the parties on divorce to achieve fairness. However, if certain conditions are met, it is likely that that Court will uphold the prenuptial agreement. Therefore, it is still best for the parties to seek legal advice for a prenuptial agreement to be done before getting married.

Our thinking

  • What are the different ways to own a Hong Kong property? What is sole ownership and what are joint tenants and tenants-in-common?

    Ian Devereux

    Insights

  • Arbitration Rules – How Different Are They?

    Mazin Al Mardhi

    Insights

  • Overview of the Leasehold and Freehold Reform Bill: What are the key provisions?

    Laura Bushaway

    Insights

  • Home buyers and sellers hit by cyber-attack

    William Marriott

    Quick Reads

  • International Relocation: The Parent Trap 25 years on ...

    Joshua Green

    Quick Reads

  • FT Wealth quotes Sarah Anticoni and Vanessa Duff on prenups to protect family wealth

    Sarah Anticoni

    In the Press

  • Spears quotes Piers Master on the Harrington Review of Foreign Direct Investment

    Piers Master

    In the Press

  • The Times quotes Emily Campbell on the Chancellor’s ‘pot for life’ reforms

    Emily Campbell

    In the Press

  • Reciprocal Enforcement of Judgments between Mainland China and Hong Kong

    Stephen Chan

    Insights

  • Top Tips to Building your Brand - Women in Chancery

    Katelyn Silver

    Quick Reads

  • What next for residential property? Autumn Statement Update

    William Marriott

    Quick Reads

  • Property118 schemes for landlords – a mistake worth fixing?

    Hugh Gunson

    Insights

  • The impact of disputes concerning ultimate entitlement on interim maintenance applications and legal services orders

    Sophia Leeder

    Insights

  • The statutory residence test

    Dominic Lawrance

    Insights

  • Split year treatment

    Dominic Lawrance

    Insights

  • World renowned theatre producer Sir Cameron Mackintosh unveiled as latest guest on ‘Client Conversations’ podcast from Charles Russell Speechlys

    Simon Ridpath

    News

  • Client Conversations Podcast: Sir Cameron Mackintosh

    Simon Ridpath

    Podcasts

  • Potential parental disputes about school fees should a Labour government add VAT to fees

    Sarah Jane Boon

    Quick Reads

  • Sarah Wray writes for International Adviser on what might be in store for personal taxation under a potential Labour government

    Sarah Wray

    In the Press

  • Professional Adviser quotes Julia Cox on possible IHT reform if the Labour Party win the next general election

    Julia Cox

    In the Press

  • Labour government - potential change to cohabitation laws?

    Sarah Anticoni

    Quick Reads

  • The Economic Crime and Corporate Transparency Act 2023: 6 Key Changes to Trust Reporting under the Register of Overseas Entities

    Dominic Lawrance

    Insights

  • Arbitration is Cheaper – Myth or Reality?

    Thomas R. Snider

    Insights

  • Tax Concessions for Family Offices in Hong Kong

    Jeffrey Lee

    Insights

  • South China Morning Post quotes Lisa Wong on a high-profile ruling in Hong Kong relating to RIVF

    Lisa Wong

    In the Press

  • Hong Kong Halves Stamp Duty for Non-Permanent Residents and Stamp Duty Suspension for Overseas Talents

    Jovanne Zee

    Insights

  • Caring across borders: The UK’s Homes for Ukraine scheme and the global nature of parental responsibility

    James Elliott-Hughes

    Quick Reads

  • Game of Homes: Transatlantic Disputes

    Cara Fung

    Quick Reads

  • A Labour government: what might be in store for personal taxation?

    Sarah Wray

    Quick Reads

  • 5 top tips to make estate administration easier for your executor

    Jessica Dawkins

    Quick Reads

  • Back to School: How should recently separated parents face the new term?

    David Hansford

    Quick Reads

  • The Family Fund: Bank of Mum & Dad 2.0

    Vanessa Duff

    Quick Reads

  • Inside Britney and Sam’s $10m prenup

    Shivi Rajput

    Quick Reads

  • Mind your Language !

    Vanessa Duff

    Quick Reads

  • Oops!....I did it again - Britney's third divorce

    Charlotte Posnansky

    Quick Reads

  • NSPCC urges Government to protect children from domestic abuse during holidays

    Shivi Rajput

    Quick Reads

  • A brief look at HMRC v A Taxpayer [2023] UKUT 00182 (TCC)

    Dominic Lawrance

    Quick Reads

  • ATED and the farmhouse

    Sarah Wray

    Quick Reads

  • Recognising financial abuse in a relationship

    Vanessa Duff

    Quick Reads

  • Million Dollar Footballer With No Assets?

    David Carver

    Quick Reads

Back to top