Pitfalls exist when Hong Kong has no framework for common law marriage

A woman in a relationship is unable to make financial claims against the man when their relationship breaks down, but a claim can be made on behalf of any children

PUBLISHED : Saturday, 31 December, 2016, 6:43pm
UPDATED : Saturday, 31 December, 2016, 10:14pm

Even though she lived with fugitive tycoon Joseph Lau Luen-hung for over a decade, called him her husband and was the mother of two of his children, the tycoon’s ex-girlfriend, Yvonne Lui Lai-kwan , was not legally considered to be his wife due to the absence of common law marriage in Hong Kong.

Legal experts say that because this legal framework does not exist in the city, women in unmarried relationships are not entitled to make financial claims against their ex-partners if the relationship falls apart.

However, the experts say, the financially stronger party – Lau in this case – has the duty to provide financial support to the children so they can enjoy the standard of living they enjoyed before their parents’ breakup.

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The concept of “common law marriage” is a legal framework that considers two people married even if they have not signed marriage documents as long as, for example, they have lived together for many years.

“In Hong Kong there is no such thing as a ‘common law’ wife or husband. In broad terms, the unmarried mother of a child can only make financial claims for the benefit of the child and not for herself,” said Marcus Dearle, a partner at international law firm Berwin Leighton Paisner’s Hong Kong office.

The family law expert said that in a high-net-worth case, the financial claims for the benefit of a child with unmarried parents could be “very high” – sometimes “in the millions” a year to be paid by the financially stronger party until the child leaves university. A general housing allowance also needed to be paid, he said.

“Or alternatively, money will be required to be put into trust to purchase a property of a value commensurate with the standard of living the financially stronger party enjoys – so that the trust money reverts to the financially stronger party once the child has completed his higher education,” he said.

The concept of “common law marriage” exists in several US states.

Lau, 65, made headlines in November when he announced in a full-page statement printed in several newspapers that he had ended his relationship with Lui, 37, in 2015.

Lau said that he had given Lui “money, jewellery and other gifts” worth more than HK$2 billion.

In a later interview with Apple Daily, Lau accused Lui of being greedy, saying: “Even if you give her HK$10 billion, she will still betray me for HK$1.”

But in a surprise statement, Lui reassured Lau that she had no desire to take her family matters to court amid speculation of a possible fight over his estate. She also said she was aware that “common law marriage” did not exist in the city.

But Lau, the controlling shareholder of listed developer Chinese Estates Holdings, has a lot at stake. Forbes estimates he is worth US$12.6 billion, making him the fifth richest person in Hong Kong.

“A public breakup in the media, with parties producing press releases, is a risky strategy,” Dearle said.

“Confidentiality is also important to protect the interests of children, as they may sometimes suffer from the consequences of publicity, the symptoms of which might only appear when they are older, resulting in damaged and dysfunctional relations with their parents. And, if a case does go to court, family law judges take a dim view when parents go to the media.”

Barrister Albert Luk Wai-hung said while the absence of “common law marriage” had deprived Lui of her chance to make financial claims for herself while Lau is still alive, she could do so if some day Lau passes away by arguing that she was “dependent” on Lau.