Foreign Marriages, Bigamy, Polygamy and Nullity in the Law of Hong Kong

What is bigamy?

Bigamy is the act of marrying a person while being legally married to another. It is a criminal offence triable upon indictment which, upon conviction, renders the offender liable to imprisonment for 7 years (s. 45 of the Offences Against the Person Ordinance (Cap. 212)).

Bigamy has been alleged where a person marries for a second time without going through all the formalities of a divorce or judicial separation. Bigamy has also been alleged where the validity of Hong Kong customary marriages have been questioned. These cases involve concubinage unions or kim tiu marriages, which were celebrated before 7 October 1971 (ss. 5 and 6 of Marriage Reform Ordinance (Cap 178)).

Under s. 20(1)(c) of the Matrimonial Causes Ordinance (Cap. 179) if either party to a marriage was already lawfully married at the time of marriage, the other party can petition for nullity, meaning that the marriage will be declared null and void. Neither delay nor conduct constitutes a bar to a decree of nullity.

Bigamy compared with polygamy

Each legal system lends recognition to a matrimonial process. A polygamous marriage is one that has been validly celebrated under a law which permits the husband to take more than one wife while being legally married to another, regardless of whether he actually does so. Some systems are exclusively monogamous, while others may be both monogamous and the polygamous, such as in India and Pakistan. A monogamous marriage may be changed to a polygamous marriage, or vice versa, in many ways. The most common is by changing one’s personal law or religion.

Foreign marriages

In Hong Kong, a foreign marriage is valid if three conditions are satisfied:

  1. It is celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed (s. 2(2) of the Married Persons Status Ordinance (Cap. 182));
  2. Both parties possessed the capacity to marry in accordance with the law of each party’s antenuptial domicile such as the law relating to minimum age of marriage, union between the same sex, bigamous union, or prohibited degrees of consanguinity or affinity (Wong Zhong Lan-Xiang and Others v Frank Wong and Another [2003] 4 HKC 609); and
  3. It is not repugnant to the conscience of the Court in Hong Kong.

Conflict of laws consideration of analysis has led to in-depth consideration of the validity of purported marriages and whether a party has committed bigamy. Courts will not defer in stating that there were two valid marriages as in the case of Wong Zhong Lan Xiang & Others v Wong & Another, should they be satisfied that the individual marriages were valid with respect to either Hong Kong law or foreign law. Each case turns on its facts.

Implications of bigamy

Where a marriage is void, the court regards the marriage as never having taken place. However, the consequences of bigamous relationships often prove to be more complicated than that and have been dealt with extensively in cases concerning immigration, maintenance, and probate.

If you have obtained previous permission to stay in Hong Kong, the permission can be vitiated if it was obtained by a false representation as to a valid and lawful marriage. This was the case in Ma Chi Ching v Director of Immigration [2015] 1 HKLRD 1133 where it was held that the marriage was bigamous and not valid and therefore the immigration status also changed.

Interestingly, despite the Court setting aside the Decree of Divorce and making an Order Nisi after finding the wife to be bigamous in L v C [2007] 3 HKLRD 819, it was held that bigamy does not immediately disentitle a party to ancillary relief, which is traditionally granted to parties in a divorce. The court considered all the circumstances of the case and stated in paragraph 172 of the judgment that:-

“…a bigamous relationship does not necessarily mean a black and white scenario where the bigamist is guilty and the other party is innocent. It is a reminder that in matrimonial cases, there may be many fine shades of grey.”

Criminal bigamy

Sentences for bigamy will vary according to the circumstances of the case. According to R v Sze Tin Sin [1987] 3 HKC 333, where there was deception of the innocent party, with some injury resulting, an immediate custodial sentence is necessary, the length depending on the gravity of the injury inflicted. In this case, the court allowed weight to be placed on the fact that the spouse of the second marriage had been deceived and upheld the magistrate’s sentence of 12 months imprisonment, albeit noting that it was substantial.

In another case, HKSAR v Lam Ka Wing [2000] HKCFI 352, the court upheld the Magistrate’s sentences of 3 months for making a false declaration for the purpose of procuring marriage and 3 months for bigamy, to run concurrently. The man in that case entered into a false marriage for a reward and later married another woman by falsely declaring that he was a bachelor. The Magistrate considered that as the offence was committed for monetary gain and was aimed at deceiving the authorities, the offence was serious and a proper sentence had the Defendant not pleaded guilty would have been 9 to 12 months.

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Tanner De Witt

Tanner De Witt