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Expert Insights

30 November 2021

We’re technically married, we just haven’t signed the papers. What’s the difference?

In light of the constantly changing restrictions surrounding public gatherings, it is not uncommon to hear of couples opting to delay their weddings and to cohabit in the interim. Many young couples treat this period as a “trial run” for marriage; some even deciding to forego marriage altogether, believing that officially signing the papers make little difference towards their day-to-day relationship. With the rise of the popular concept of a “common law marriage”, this has contributed to the belief that married and cohabitating partners are entitled to similar rights upon the breakdown of their relationship. This is not the case in Hong Kong.

There is no such thing as a “common law spouse” in Hong Kong. No matter how long the de facto relationship, parties do not have rights to apply for maintenance against the other, or be entitled to any capital sum, or a transfer of property. If the relationship turns sour, parties will be required to seek for relief by way of the general laws of contract or property. For example, if one party contributes towards the purchase price of their former home, but the property is legally held by their partner, they may argue they have a beneficial interest, including but not limited to a resulting trust, towards such property. Of course, this is much less straightforward than applying the safeguards under the regime for married partners.

Unmarried mothers can apply for financial relief on behalf of their children, such as monthly maintenance, lump sum provision and the transfer of property. This amount will only be for a “carer’s allowance”, which is considerably less than what the mother would have been able to apply for had she been married. With respect to unmarried fathers, they will not have the same parental rights as the mother, unless they issue an application to the Court.

Interestingly, parties in a de facto relationship are entitled to apply for injunctive relief in terms of domestic violence. This includes orders such as a non-molestation injunction, ouster injunction or occupation order. If, however, one party dies without a valid will, the rules of intestacy will not grant any division of the deceased’s estate to the other. Instead, the surviving party will be required to issue an application with the court, proving that they were maintained by the deceased prior to their death.

As seen from above, cohabiting parties have little legal protection upon the breakdown of their relationships, despite sharing property based on love and trust. For parties who maintain they do not want to enter into the institution of marriage, it is advised that they enter into a cohabitation agreement to set out the terms they would wish for a court to take into account should their relationship break down. This will avoid any misunderstandings in respect of the parties’ intention when purchasing property. Should parties choose to subsequently enter into marriage, a cohabitation agreement may also be used as a framework for a prenuptial agreement. Choosing to protect your interests, whether married or not, will always be a prudent approach. 

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