Common law marriage： The urgent need to address a legal gray area in Hong Kong

DENG JIE

To validate and legally recognise their intention to be married in Hong Kong， two persons of opposing genders have to comply with substantive and procedural formalities laid out in the Marriage Reform Ordinance （“MRO”） and Matrimonial Causes Ordinance （“MCO”）.Prior to the implementation of these statutes， the common law marriage was a viable alternative for parties to wed and perhaps legally recognise their union. The following paper lays out the definition and requirements for a common law marriage to be proven. Although other foreign jurisdictions have adopted a clear stance towards common law marriage， Hong Kongs stance towards common law marriage and its legal ramifications remain ambiguous. This paper calls for greater clarification in Hong Kong pertaining to the legality and validity of common law marriage.

Common law marriage refers to an informal arrangement between legally competent parties who intend to become husband and wife at the present time and thereafter cohabitate. To prove their common law marriage， parties first had to raise a presumption that they were engaged in a long period of cohabitation and were reputed similarly to a relationship of husband and wife.

The essence of a common law marriage lies in its informality. In spite of any formal ceremony or registration， parties are presumed to have been lawfully married at some point during their long cohabitation with their reputation being husband and wife so long as there is no clear evidence to rebut the presumption. The urgency to prove a common law marriage may arise in a number of scenarios of which two are most apparent. First， when one party to the union dies intestate leaving the other to contend for a share in the formers assets. The other occurs when either party seeks to sever their union and prove their entitlement to shared property or to secure custody of children （if any）.

In spite of guidance afforded by preceding English cases on common law marriage， Hong Kong has a relative dearth of case law or regulation on the topic. Although common law marriage instances may be deemed negligible in Hong Kong at present， the legal status and rights afforded to cohabiting couples for long periods who behave as husband and wife remains unclear. Legal ambiguity still persists in Hong Kong as Courts nor legislation have provided a clear interpretation or standpoint on the viability or validity of common law marriage.

Protect the legitimate expectations of parties engaged in common law marriage

The ambit of the law in Hong Kong and its protective function spans across all persons regardless of their traits and beliefs. Given the relative dearth of case law on common law marriage in Hong Kong， attention is paid to cases in England and Singapore. A common trend highlighted in all these cases is that they involve ethnic or religious minorities in their respective jurisdictions. Hong Kong is predominantly populated by ethnic Chinese who subscribe to a wide variety of religions apart from Christianity. For those who are unfamiliar with the official prescribed manner to marry， it is likely for them to genuinely believe they entered into marriage following a ceremony and cohabitating for extended periods of time. However， their interests may not be protected by the law of Hong Kong. Without any regulation or case law， it is unclear as to the stance adopted in Hong Kong towards the minority of common law spouses.

Furthermore， Hong Kongs MROprovides that a valid marriage is to be registered and officiated in a licensed place of worship by a competent minister or by a civil celebrant. For those failing to officiate their marriage， yet cohabit over a long duration and are deemed to be spouses by habit， they require the protection of the law. Though it is likely that Hong Kongs Courts will reflect the judicial view towards common law marriage by English Courts， legislation is necessary. This will undoubtedly providethe common law spouses in Hong Kong with clarity of the requirements that must be met before their marriage is recognised as a common law marriage.

It is noteworthy that across different states in Canada， different legal rights are accorded to parties in a common law marriage. Common law partners who have cohabited for over two years in British Columbia， Canada are accorded the same legal rights and responsibilities of married couples. Whereas in Quebec， common law marriage is not recognised. This wide deviation occurs from a declaration by the Supreme Court of Canada in 2013 that each Canadian province has the freedom to determine the legal status accorded to common law spouses. In comparison， Hong Kong is unlikely to accord common law marriage with equivalent legal rights of a valid， registered marriage. Nevertheless， the adoption of a clear stance brings assurance and provides common law spouses with the incentive to officiate their marriage to avoid any unintended repercussions.

Clarifying the evidential threshold required to raise and rebut the presumption of common law marriage

Hong Kongs relative dearth of case law or legislation on common law marriage renders its requirements for a potential applicant obscure. Where there is ambiguity in the law， the Courts either interprets existing law or legislation is issued to provide a clear and just outcome. Although it is admitted that the nature and evidential requirement of each case differs， the provision of guidelines on the nature and type of evidence deemed adequate would be thoroughly helpful to potential applicants.

Though doubts persist， the following guidelines were adapted from cases explored. To first raise the presumption of common law marriage， an applicant seeking to prove common law marriage must first satisfy the Courts inquiry that they entered into marriage genuinely in the belief that they were to be regarded as a spouse of the other. It is an evidential presumption that can be only rebutted by strong and weighty evidence to the contrary. These factors including the sincerity of parties beliefs， habits and the compliance with statutory requirements for marriage.

The type of marriage and the parties respective conduct at the time of their wedding underline whether attempts were made to comply with statutory requirements of marriage. In both A-M v A-Mand Gandhi v Patel， which both concerned non-Christian religious wedding ceremonies， the English Court held that no attempt was made by the applicant to comply with the requirements of an English marriage. It declared in both cases that there was no marriage between respective parties. However， this is overtly onerous as it would be unfair for a non-Christian marriage to be struck down on the basis of religious differences. Instead， it is preferred for non-compliance and the sincerity of parties beliefs towards marriage to be assessed in matters of degree and subject to the Courts purview.

Moreover， the duration and manner of cohabitation before the presumption is operative also differs across different jurisdictions. Most provincial jurisdictions that legally recognise common law marriage in Canada stipulate that cohabitation for 3 years at the minimum is necessary. However， in the UK， the required period for cohabitation is seven years at the minimum. The duration threshold will likely depend on the attitude of Courts or policy-makers towards common law marriage. Given the lengthier duration in the UK， it is likely for Hong Kong to adopt a similar threshold towards parties cohabitation duration.

It is also unclear as to the extent and type of evidence to be adduced to satisfy the Courts inquiry into the reputation of the common law spouses. Although its credibility may be doubtful， familial or other close relations may testify to the couples relationship. Expert testimony may not be suitable to determine if the couple were regarded as husband and wife. The Court may instead look towards objective evidence of the parties sincerity towards their union such as the presence and joint raising of children or the joint ownership of assets. Therefore， without clarification of the evidential threshold required to rebut the presumption， there is insufficient guidance to applicants and the Court may be unable to provide a consistently just outcome.

Dire ramifications of a non-marriage as opposed to a void-marriage

The failure of both parties to comply with the legal requisites of a valid marriage reduces the legal rights that the law traditionally accords both parties. Uncertainty persists as to whether the Court， upon objectively ascertaining the evidential proof of the couples relationship， will deem it a non-marriage or that of a void marriage. Although the distinction may seem artificial or elusive， the difference between the two in relation to the division of assets， financial provision， property adjustment and granting of child custody are striking.

Courts， in determining whether a marriage is void or was never contracted， pay attention to the wedding ceremony and whether it complied with the formal requirements of State marriage law. In the UK， compliance with the English Marriage Act 1949 was fundamental to a valid marriage. The case of MA v JA highlights an attempt by applicants to prove that an Islamic wedding undertaken by an Imam in a mosque was a void marriage rather than no marriage at all. They were ultimately successful in proving a valid marriage， despite not complying formality requirements， as （i） parties did not knowingly and willfully breach the formality provisions and （ii） the ceremony was in its character of the kind contemplated by the Marriage Act 1949. This approach may be adopted in Hong Kong for Courts to dictate the validity of a marriage.

In the event the marriage is found to be valid， a decree of nullity issued by a Court in Hong Kong under the s 20（1） of the MCO deems a marriage void ab initio. It permits ancillary relief orders to be made nevertheless. This lies in stark contrast with a Court declaration that no marriage existed at all that prevents any maintenance orders or further claims from being made. These are the two polarities that exist regarding common law marriages. Applicants seek to prove the marriage and procure a decree of nullity. Whereas a defendant seeks to rebut the presumption and deem it a non-marriage. It is ideal for Courts or legislation to provide guidance to those engaged in invalid marital unions of the consequences which they face should they fail to formalise their union according to the marital laws of Hong Kong.

Conclusion

The above existing uncertainties of common law marriage in Hong Kong point towards an urgent need for clarification. The percentage of cohabitants engaged in common law marriages in Hong Kong is admittedly unclear. Although common law marriage may be dismissed as de minimis， potential applicants would benefit tremendously from the protection and guidance that the Hong Kongs laws can provide.

Reference

[1]Cap 178， 1997.

[2]Cap 179， 1997.

[3]The UK has explicitly recognised its existence via case law and Canada has provided for it via legislation.

[4]Wong Zhong Lan-Xiang v Frank Wong [2003] HKCA 585 at [33].

[5]Chief Adjudication Officer v Bath [2000] 1 FLR 8 at [20].

[6]The facts in Gandhi v Patel [2002] 1 F.L.R. 603 correspond with this description.

[7]A-M v A-M [2001] 2 F.L.R 6.

[8]Gandhi v Patel， Chief Adjudication officer v Bath， MA v JA [2012] EWHC 2219 and A-M v A-M are all cases that have dealt with common law marriages.

[9]Isaac penhas v Tan Soo Eng [1953] MLJ 73.

[10]See Hong Kongs demographic profile 2013， ， retrieved 20 March 2014.

[11]See Kazia. A， “4 myths about common law relationships” [2013]. Retrieved from http：//www.cbc.ca/news/canada/4-myths-about-common-law-relationships-1.1315129 at （20 March 2014）.

[12]The genuine bona fide belief is a shared underlying requirement in UK cases thus far including Ma v JA and Chief Adjudication Officer v Bath.

[13]See Dame Margaret Booth， N. Wall Q.C.， G.J. Maple and A.K. Biggs， “Rayden and Jackson on Divorce and Family Matters”， 18th Ed [London， Butterworths， 2005] at para 7.11.

[14]MA v JA [2012] EWHC 2219 at [83].

[15]Probert， R.， “Cretney and Probert's Family Law”， 7th Ed， [London， Sweet & Maxwell， 2009] p. 36.

[16]Supra n 11.

[17]Dukali v Lamrani[2012] EWHC 1748 at [33].

[18]Supra n 6 at [31].

[19]See MA v JA [2012] EWHC 2219 at [92] – [103].

[20]W v Registrar of Marriages [2012]FACV No. 4 at [40].