A. General description of the legal consequences of divorce
Once a marriage relationship is dissolved in a legal sense (i.e. a divorce decree/order has been granted by the Court), each party will no longer be a spouse and both parties are free to remarry.
Certain rights that are available to each party as a spouse will be either lost or affected upon divorce, for example:
- certain benefits under a former spouse’s life insurance will be lost;
- social security benefits may be lost or changed;
- taxation status will be changed (e.g. married person’s allowance);
- medical insurance provided by a former spouse’s employer will be lost; and
- divorce will cause any testamentary gift (e.g. gift in the will) to a former spouse or benefits under a family trust to lapse.
Both parties lose rights that were given to them under certain matrimonial legislations, in particular their “matrimonial home rights”. However, as far as children are concerned, each parent (unless otherwise ordered by the Court) retains parental responsibility on divorce and there is an obligation on both the father and the mother to provide their children with financial support.
Orders for financial provision, or property adjustment orders (if any), made by the Court in accordance with the law in favour of either of the parties to the marriage will take effect upon divorce. Orders for settlement (e.g. transfer or take over of any property), or variation of settlement, in respect of any child of the family will also take effect upon divorce. All other orders for children take effect as soon as they are made.
The Court of First Instance and the District Court have jurisdiction to declare a marriage null under the Matrimonial Causes Ordinance if:
(1) either parties to the marriage was domiciled in or had a substantial connection with Hong Kong at the date of the petition; or
(2) either parties to the marriage was habitually resident in Hong Kong throughout the period of three years immediately preceding the date of petition; or
(3) both parties to the marriage were residents in Hong Kong at the date of the petition; or
(4) the respondent in the proceedings was resident in Hong Kong at the date of the petition; or
(5) the marriage was celebrated in Hong Kong.
A void marriage is regarded by law as never having taken place.
On the other hand, a voidable marriage is valid and subsisting until declared void by a decree of nullity.
There are several circumstances under which a marriage can be declared null and void by the Court, depending on whether the marriage took place after 30 June 1972 or before 1 July 1972, such as:
A. Grounds upon which marriage after 30 June 1972 will be null and void
(1) That it is not a valid marriage under the Marriage Ordinance, that is to say at the time of the marriage:
- the parties to the marriage are within the prohibited degrees of kindred and affinity (e.g. marriage between brother and sister); or
- either party is under the age of 16; or
- the parties have intermarried (marriage between blood relatives) in disregard of certain requirements as to the formation of marriage
(2) That the marriage is otherwise invalid by the law of Hong Kong
(3) That at the time of the marriage either party was already lawfully married
(4) That the parties are not respectively male and female
B. Grounds upon which marriage after 30 June 1972 will be voidable
(1) That the marriage has not been consummated due to the incapacity or refusal of one party to do so (Ground 1)
(2) Either party to the marriage did not validly consent to it due to reasons such as duress, mistake, unsoundness of mind (Ground 2)
(3) Either party was suffering from mental disorder at the time of the marriage (Ground 3)
(4) Either party was suffering from communicable venereal disease (Ground 4)
(5) The respondent was pregnant by some person other than the petitioner at the time of the marriage (Ground 5)
However, the court shall not, in proceedings instituted after 30 June 1972, grant a decree of nullity on the ground that a marriage is voidable (whether the marriage took place before or after 1 July 1972) if the respondent satisfies the court:-
(a) that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and
(b) that it would be unjust to the respondent to grant the decree.
Such provision replaces, in relation to any decree to which it applies, any rule of law whereby a decree may be refused by reason of approbation, ratification or lack of sincerity on the part of the petitioner or on similar grounds.
Without prejudice to the above, the court shall not grant a decree of nullity on the grounds mentioned in the said Grounds 2, 3, 4 & 5 unless the court is satisfied that the proceedings were instituted within 3 years from the date of the marriage.
Without prejudice to the above, the court shall not grant a decree of nullity on the Grounds 4 & 5 unless the court is satisfied that the petitioner was at the time of the marriage ignorant of the facts alleged.
C. Void or voidable marriage celebrated before 1 July 1972
Marriage which took place before 1 July 1972, will be void on any of the following grounds:-
(1) That the parties to the marriage are within the prohibited degrees of consanguinity or affinity (meaning descended from the same ancestor)
(2) That the former husband or wife of either party to the marriage was living at the time of the marriage and the marriage with such former husband or wife was then in force
(3) That the consent of either party to the marriage was obtained by force or fraud
(4) That the marriage is invalid by the law of Hong Kong
Such marriage will be voidable by the law of Hong Kong on any of the following grounds:-
(1) That the marriage has not been consummated due to refusal of either party to do so
(2) That at the time of the marriage either party to the marriage:
- was of unsound mind; or
- was a mentally disordered person to the extent as to be unfitted for marriage and the procreation of children; or
- was subject to recurrent attacks of insanity or epilepsy
(3) That the respondent was at the time of the marriage suffering from communicable venereal disease
(4) That the respondent was at the time of the marriage pregnant by some person other than the petitioner
(5) At the time of the marriage either party to the marriage was impotent or incapable of consummating the marriage
If the marriage is declared null (invalid), each party will be free to remarry in the same way as if a divorce had been granted. The Court has the same power to make orders relating to money and children as it does in divorce and judicial separation proceedings.
A decree of nullity granted after 30 June 1972 on the ground that a marriage is voidable shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time.