Confusing form spells trouble for parted couples

PUBLISHED : Monday, 15 August, 2011, 12:00am
UPDATED : Monday, 15 August, 2011, 12:00am


Confusion surrounding the legal definition of marital status has put a separated couple at risk of criminal prosecution.

A senior lawyer specialising in family law said more estranged couples could fall into the same trap if the Immigration Department fails to clarify one of its forms.

Melville Boase, said he had handled two cases in the last two years arising from Form ID91, which is used to apply for an extension of stay by non-permanent residents.

The department requires applicants to tick one of the boxes on the line headed 'Marital Status' under which there are the choices of 'bachelor/spinster', 'married', 'divorced', 'separated' and 'widowed'.

Under the Matrimonial Causes Ordinance, couples who have lived apart for one year remain as 'married' until the court has granted an absolute divorce decree - a document which officially declares the couples have divorced.

Therefore, couples who have been living apart for some time but have not been granted a decree absolute may think they should declare their status as 'married' instead of 'separated' when they apply for an extension of stay.

Earlier this year, an estranged couple having lived apart for two years came under investigation by Immigration officials on suspicion that they had failed to disclose a change in their matrimonial status, Boase said.

They were granted a decree absolute in 2009 after having lived apart for two years.

One of the parties remarried last year. But the couple were summoned for investigation for declaring their status as 'married' instead of 'separated' in filing their applications for visa extensions in 2007 and 2008. The couple were cautioned and released on bail.

They sought legal advice from Boase who wrote to the department to argue on their behalf.

The pair eventually received a phone call saying that the department would not take their case any further.

This is the second such case Boase, who has been practising in the city for 30 years, has handled in the past two years. The first one followed the same pattern of investigation but was called off later.

'That is why I was surprised when this second case came to me,' Boase said.

The department said it would 'review the relevant application forms and consider using clearer expressions to better facilitate applicants in the application process in future'.

From 2008 to last year, out of 68 prosecutions by the department for making a false declaration, there were 65 convictions.

People making a false statement to the Immigration Department face a fine of HK$150,000 and 14 years in prison.