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Cohabiting couples, limited rights

By Gabriella Chan

Hong Kong, 10 March 2023: It is well documented that marriage in Hong Kong is on the decline. Figures released by the Census and Statistics Department last summer revealed the crude marriage rate – the number of marriages per 1,000 in the population – hit 30-year lows of 6.7 for women and 8.0 for men in 2021. That represented a huge drop from 15.5 for women and 17.6 for men in 2011.

Experts have cited several reasons for this trend, including sky-high property prices, couples tying the knot later in life and, more recently, financial instability caused by the Covid-19 pandemic. But there is another factor: the growing number of unmarried couples living together. A survey published by the Family Council three years ago revealed wider acceptance of cohabitation in traditionally conservative Hong Kong. Attitudes had softened, it reported, with 44% of respondents accepting the notion of “cohabitation without intention of getting married” and 45% agreeing “cohabitation before marriage is a good idea”.

However, it is reasonable to assume a fair proportion of those respondents would be unaware of the legal status of such couples in Hong Kong. The idea of “common law marriage” is a myth. Unmarried couples who live together do not enjoy many of the benefits – relating to taxation, pensions, medical treatment and public housing, for example – attached to married couples. No matter how long they have been together under the same roof, cohabiting couples are not recognised as married under the law.

Why is this important? Because unmarried couples are treated differently from their wedded counterparts in three crucial areas: estate provision, financial support in the event of separation, and parental rights. The latter is a complex issue on its own and will be discussed in a future article. For now, we can examine inheritance and financial arrangements.

According to the Intestates’ Estates Ordinance (Cap 73), if one partner in a de facto relationship dies intestate – that is, without leaving a will – the other is not eligible for succession to their partner’s estate. The surviving partner might be able to obtain financial support from the estate via the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481), but they would need to prove the deceased had maintained him or her either wholly or substantially before their death. This can be difficult where both partners have been working and earning similar incomes.

If an unmarried couple separate and there are no children involved, the grounds on which one of them can apply to the courts for financial support are extremely limited. In contrast, married couples going through separation or divorce have a range of protections under the Matrimonial Proceedings and Property Ordinance (Cap 192). Couples ending a de facto relationship have no similar rights with regard to maintenance, lump sum payments or transfer of property.

The only avenues for a claim would arise from the general laws relating to contract or property. For example, if one party contributed to the purchase price or loan repayments on a property, or made payments towards renovation, they may have grounds for a successful action.

One area where married and de facto couples do have equal status is protection from violence. The Domestic and Cohabitation Relationships Violence Ordinance (Cap 189) allows victims of physical, verbal or psychological abuse to seek legal remedies and apply for court injunctions. These include restraining orders designed to prevent a partner using or threatening violence and ouster orders to keep a partner out of the shared home.

While not often used in Hong Kong, cohabitation agreements – which have a similar rationale to prenuptial agreements (discussed earlier in this article) – can be considered. Such an arrangement, which has the force of contract, can give a couple clarity during the relationship, such as how they settle bills and mortgage payments, and contain built-in protections should they go their separate ways.

In summary, the law in Hong Kong is heavily weighted in favour of conventional married couples, as highlighted in an exhaustive report commissioned by the Equal Opportunities Commission. The study showcases myriad ways in which cohabiting couples – whether opposite or same-sex partners – are treated differently under current legislation.

Couples living together in unmarried relationships are advised to be aware of their rights and to seek legal advice if they require clarity. Here at BC&C, we have experienced Family Law solicitors ready to listen and assist.

Gabriella Chan is an Associate with BC&C. She focuses her practice on Family Law, being proficient in a wide range of matters arising from the matrimonial context, and is also active in the Hong Kong Family Law Association. She can be contacted at Gabriella@boasecohencollins.com.

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