Am I Entitled To Anything Upon Separation?
The idea of a common law marriage between unmarried couples is a myth. Unmarried couples do not have any legal status equivalent to that of married couples in Hong Kong. Thus, regardless of how long a couple may have been cohabiting, de facto couples do not enjoy the same scope of rights as enjoyed by married couples.
Currently there are laws protecting a party in a de facto relationship in terms of domestic violence, but if a long-term cohabiting couple separate, there are very few grounds upon which one party can apply to the Court for any financial support from the other party. This contrasts greatly with the position of married couples going through divorce who have the right to apply for a range of financial orders under the Matrimonial Proceedings and Property Ordinance, Cap. 192. For cohabiting couples, regardless of the length of the relationship, there is no right to apply to the Court for maintenance, or a capital sum payment, or the transfer of property.
Financial support for an individual in a de facto relationship is only possible when there are children born of the relationship, and even then, any financial maintenance is for the benefit of the children, not the parent. For instance, an unmarried mother may apply to the Court for child maintenance from the child’s father to support the rearing of the parties’ child. Included in that maintenance, if ordered by the Court, may be a basic ‘carer’s allowance’ to support the unmarried mother in raising her child. However, this will generally only be a limited sum to cover her needs if caring for her children reduces her ability to work. This would usually be considerably less than the maintenance ordered for a divorcing parent in a comparable situation.
Aside from this, the only other avenues open to a party in a de facto relationship to seek financial compensation or an award of property from the other party would likely arise out of the general laws of Hong Kong with regard to contract or property. For example, if one party contributed to the purchase price or loan repayments on a property, or contributed to it through renovation, this may give rise to a beneficial interest and/or a right to live in the property. One party may even be able to demonstrate that there was a common intention constructive trust arising when the property was bought such that they are entitled to live there, even if the property is legally in the other party’s name.
What If My Long Term Partner Dies And We’re Not Married?
If a person has not married his/her cohabiting partner, and his/her cohabiting partner dies intestate (without a will), he/she cannot share in the estate of his/her cohabiting partner.
However, under the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) a cohabiting partner may apply for financial provision from his/her deceased partner’s estate, even if the deceased partner leaves no will and that partner does not have the legal status of a husband or wife.
According to section 3(1)(b)(ix) of the Inheritance (Provision for Family and Dependants) Ordinance, any person who has been maintained wholly or substantially by the deceased immediately before the deceased’s death can apply for financial provision from the deceased person’s estate. Therefore, if a cohabiting partner can prove that he/she has been maintained by the deceased partner, then he/she can still receive maintenance from the deceased’s estate.
