LETTER OF THE LAW

Does marriage make you an owner of the family home?

Hong Kong court recently ruled against wife in divorce battle who had not made financial contributions

PUBLISHED : Monday, 22 August, 2016, 4:23pm
UPDATED : Monday, 22 August, 2016, 9:35pm

If the title deeds show your husband or wife, but not you, as the owner of the family home, you might wonder whether marriage itself is enough to make you a part owner.

Hong Kong’s Court of Appeal had to grapple with this question last year in Mo Ying v Brillex Developments Ltd and decided that marriage and non-financial contributions to the well-being of the family are not enough to give a spouse an ownership interest.

The difficulty that faces spouses who make a claim like this is the legal approach that requires them to show that they and their partner had a common intention to share ownership of the home. Very often, there is no express discussion about sharing ownership. In Mo Ying, the wife had asked her husband to put her name on the title deeds, but her request was rejected.

In the absence of an express agreement or financial contributions ... there was no way for the wife to argue that she had an ownership interest in the property

If there was no express agreement to share ownership, the courts are prepared to infer the existence of such an agreement. In Mo Ying, the Court of Appeal said that the agreement could be inferred from contributions to mortgage payments or from other contributions to the household finances that made it possible for the other party to carry on meeting the mortgage instalments.

The wife in Mo Ying had made no such contributions. In the absence of an express agreement or financial contributions to the domestic budget referable to the acquisition of the home, there was no way for the wife to argue that she had an ownership interest in the property.

Divorce proceedings had begun when the wife launched her claim to a share of the family home, but by that time the husband had already sold the family’s flat to a third party. The Court of Appeal made the point that the wife could have expected to be awarded at least half of the value of the home as ancillary relief in the matrimonial proceedings.

The law concerning the ownership of the family home performs the same function as ancillary relief proceedings in the sense that it considers how the family’s wealth should be divided up when the relationship breaks down. This raises the question as to whether family law principles and outcomes should influence the law concerning the ownership of the family home. The Court of Appeal did not think so and rejected any attempt to elide the property and matrimonial law regimes.

The property law principles in this area have, according to many, been radically overhauled in the past decade. The effect of this overhaul has been to allow the courts to look retrospectively at everything that the parties said and did, starting at the time when the family home was acquired, that might cast light on their ownership intentions. This change would seem to allow the court to include the fact of marriage and the making of non-financial contributions to the well-being of the family to be taken into account.

Mo Ying shows that this is not so when it comes to deciding whether or not there was an intention to share ownership.

Michael Lower is a professor at the Faculty of Law, the Chinese University of Hong Kong