Is it Still Bigamy if I [Legally] Married a Sex Doll in a Foreign Country Then Married a Human Being in Hong Kong Afterwards?

“Bigamy is having one wife too many. Monogamy is the same.”

—Oscar Wilde

INTRODUCTION

Agalmatophilia is a term that describes an individual who exhibits sexual attraction towards inanimate objects. As many took an (individually) isolationistic approach to fight COVID, 2020 saw a spike of human-inanimate relationships.

This trend is best illustrated towards the end of 2020 when Yuri Tolochko, a Kazakh bodybuilder, made international headlines after he publicly announced that he fell in love and legally married his sex doll. His marriage was reportedly completed with full official wedding ceremony (attended by friends and family), official marriage certificate and a honeymoon.

This is of course not an isolated case as a 36-year-old Hong Kong man later also made headlines after he proposed to his sex-doll, citing that doll relationships are easier to handle than human ones. Unfortunately for this particular case in Hong Kong, human-doll relationships are not [at this time] legally recognized.

That said, it is well known by now that otherworldly unions have been becoming commonplace by the turn of the decade.

CONFLICT OF MARRIAGE LAWS ISSUES--DIFFERENT JURISDICTIONS, DIFFERENT RULES

Under s.40 of the Marriage Ordinance (Cap 181), the meaning of marriage is confined to a relationship between a man and women. On this basis, the Courts in Hong Kong have declined to recognize non-traditional relationships such as same-sex marriage. As illustrated in the earlier case study, human-doll relationships are similarly not recognized in Hong Kong

Notwithstanding this, a foreign marriage can be seen as valid in Hong Kong PROVIDED that the following three (3) conditions are satisfied:

  1. a marriage 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 (see s.2(2) of Married Persons Status Ordinance (Cap 182));
  2. both parties must have possessed the capacity to marry in accordance with the law of each party’s antenuptial domicile generally known as the essential validity of a marriage, or the capacity of a person to marry (according to his or her personal law) (see Wong Zhong Lan-Xiang and Others v Frank Wong and Another [2003] 4 HKC 609); and
  3. such marriage must NOT be “repugnant to the conscience of this Court, even if it is valid according to the lex loci celebrationis as well as the law of the antenuptial domicile of the parties”.

In short, whilst there are types of marriages that are not legally recognised, Hong Kong nevertheless respects others’ law and custom so long as they are not repugnant to public policy.

It appears that the short answer is, if the 3 criteria above are satisfied, such individual is recognised married.

WHAT IS BIGAMY UNDER HONG KONG LAW?

Bigamy is a criminal offence of marrying someone while still being legally married to another. Under section 20(1) of the Matrimonial Cause Ordinance (Cap 179) (“MCO”), bigamy is a ground to nullify a marriage. This applies even where the offending party is already undergoing divorce proceedings in another jurisdiction. So long as the divorce proceedings is not completed and, hence, that the offending party is still legally married, the “new” marriage shall be void (see s.20(1)(c) of MCO).

Pursuant to s.45 of the Offences Against the Person Ordinance (Cap 212) (“OAPO”), an individual who commits bigamy commits an offence and upon indictment shall be liable to imprisonment for seven years.

IS IT BIGAMY--COMBINATION OF UNRECOGNIZED UNION AND RECOGNIZED UNION?

The problem with the status quo is that whilst unconventional civil unions may not be registrable in Hong Kong, technically, parties to such unregistered unions are still very much, technically, “married”. The question, therefore, arises where, if an individual is engaged in a legal foreign marriage (which is not legally recognizable in Hong Kong) and subsequently decides to marry another individual in Hong Kong, has such individual committed an offence under s.45 of the OAPO?

For many individuals who have been accused of bigamy in Hong Kong, their case can oftentimes be traced to a common starting point, specifically, when these individuals attend the Marriage Registry for the purpose of making the necessary declarations in order to prepare for a new marriage. In many instances, individuals declaring themselves a ‘bachelor/spinster’ (later discovered to have already been married in a pre-existing relationship (recognized or unrecognized) overseas) may still find themselves still liable for prosecution for making a ‘false declaration’.

As such, the only way to safely “remarry” without the risk of being accused of bigamy will mean that the foreign marriage (be it valid or otherwise under Hong Kong Law) will first have to be dissolved.

CONCLUSION

Yuri’s case of marrying the doll of his life is however different. The fact remains, marriages with inanimate objects are unlikely to persuade the courts that all parties involved must have possessed the capacity to marry. Capacity, after all, generally refers to the mental ability of one or both of the parties to the marriage to agree to become spouses. In the absence of an artificial intelligence/soul (which will not be the contention of this paper today), it is quite difficult to establish capacity. It is therefore likely to be concluded by authorities that no pre-existing marriage exists at all.

As such, unlike same-sex couples who are now able to enjoy inheritance protection (though not so far as getting their marriage registered), Yuri’s doll will not have such protection under Hong Kong law, nor will Yuri be accused of bigamy in Hong Kong if he decides to subsequently get married in Hong Kong.

Jurisdictions: 

Solicitor, ONC Lawyers

Joshua Chu is a Litigation Solicitor qualified to practice in Hong Kong. Before becoming a lawyer, Joshua worked in the healthcare industry serving as the IT department head at a private hospital as well as overseeing their procurement operations.

Since embarking upon his legal career, his past legal experience includes representing the successful party in one of Hong Kong’s first cryptocurrency litigation cases as well as appearing before the Review Body on Bid Challenges under the World Trade Organization Government Procurement Agreement concerning a health care industry related tender.

Today, Joshua’s practice is mainly focused in the field of dispute resolution and technology law.

Aside from his legal practice, Joshua is currently also a Senior Consultant with a regulatory consulting firm which had been founded by ex-SFC Regulators as well as being a management consultant for the Korean Blockchain Centre.

Partner, ONC Lawyers

Michael Szeto is a litigation partner of ONC Lawyers and heads the firm’s Employment practice. Prior to joining the firm, he had practised with various prominent law firms in Hong Kong. He has many years of experience in handling complex commercial dispute resolution, shareholders’ and joint venture disputes, bankruptcy and insolvency matters, debt recovery and mortgagee actions. He also routinely deals with regulatory actions and compliance matters under the Securities and Futures Ordinance, the Hong Kong listing rules and anti-money laundering laws and guidelines.

On the employment side, Michael often advises on various contentious and non-contentious employment matters, covering contract reviews, termination disputes, injunctive relief, discrimination and harassment claims, data privacy matters, as well as advice on matters relating to team moves, remuneration packages and employee incentive schemes. He is a frequent author of employment articles in industry publications and presenter to legal and human resource professionals.

Michael’s broad clientele includes listed companies, directors, shareholders, local and overseas banks, financial institutions, local and international corporations as well as statutory bodies.