Expert Insights

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.

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