4. Other than the marriages registered under the Marriage Ordinance in Hong Kong, what other types of marriages are recognized by Hong Kong law? Can a couple whose marriage is registered in a foreign country, or a couple married through traditional Chinese customs, or a non-registered couple apply for divorce in Hong Kong?
Since 7th October,1971, a couple in Hong Kong can only validly marry in accordance with the Marriage Ordinance (Cap. 181 of The Laws of Hong Kong). This generally means that it must be a voluntary union for life of one man with one woman to the exclusion of all others and that the marriage ceremony must be carried out at one of the Marriage Registries or licensed places of worship. This is called a registered marriage.
A foreign marriage celebrated outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed is generally recognized as a valid marriage similar to a marriage registered in Hong Kong.
Chinese Customary Marriage and Modern Marriage
However, apart from registered marriages and foreign marriages, the law also recognizes as valid 2 other types of marriage if they were contracted in Hong Kong before 7th October, 1971.
- Chinese Customary Marriage
The first type is Chinese customary marriage. It is a marriage celebrated in accordance with the traditional Chinese customs that were accepted at the time of the marriage, either in the part of Hong Kong where the marriage took place, or in the parties' family place of origin, usually their native place in China.
- Modern Marriage
The other type is called a modern marriage, which is one where an unmarried man and a woman neither of which was less than 16 years of age went through an open ceremony in the presence of at least two witnesses in such a manner that a reasonable person would think that a marriage has been celebrated.
For this type of marriage, the kind of marriage ceremony performed did not have to be in accordance with formal Chinese law and custom, it would be valid and subsisting as long as a reasonable man thinks a marriage had taken place.
It is important to note that the ceremony had to be ‘open’ in the sense that it was so held that it was known and could be seen by all those who were not particularly invited to participate. This requirement would be satisfied by, for example, leaving the door of the room in which the ceremony took place open. This type of marriage is also called validated marriage.
Parties to these 2 latter types of marriage (Chinese customary marriage and modern marriage) can have them post-registered at the Marriage Registry. If one party refuses to post-register it, the other may apply to the District Court for a declaration that such a marriage exists and thereafter can post-register it unilaterally.
Parties to a registered marriage or a foreign marriage seeking a divorce must go through the Family Court of Hong Kong.
To obtain a divorce in a Chinese customary marriage situation, the party or parties must first of all have the marriage post-registered or declared valid by the District Court. If the parties agree to divorce, they must go before a designated public officer who will explain the consequences to them and ask them to sign an agreement. If only one party wants a divorce, he or she can apply to the court in the usual way , but only after the registration or declaration of the marriage as stated above.
In the case of a modern marriage, if both parties agree, they can divorce by going before a designated public officer and by signing a written document. The written document sets out unequivocally the final and complete dissolution of the marriage and must be signed in the presence of 2 witnesses.
Either party to these 2 types of marriages can, upon divorce, apply for maintenance (financial support) if the need arises.