Martin Kwan
Introduction
There is an increasingly common marital phenomenon being experienced in Hong Kong in which married couples are forced to live separately. Due to financial difficulties and high property prices, couples are forced to remain living with their respective parents, rather than together.[1] Where divorce is concerned, this situation may present difficulties under HK law. Generally physical separation is one of the statutory means for establishing the breakdown of a relationship for the purpose of divorce. However, a question arises as to whether the mere fact of living apart would constitute a legal separation. This article explores this question.
Section I explains the phenomenon of couples being forced to live apart by financial reasons in Hong Kong. Section II then explores whether this fact constitutes legal separation. It is suggested that it is arguable both ways, leading to uncertainty. It is concluded that the existing legal regime on divorce cannot adequately accommodate this emerging conjugal arrangement, and requires legislative amendments.
- The Recent Marital Phenomenon in Hong Kong
With the steady increase of housing prices in Hong Kong (‘HK’), buying a flat or even renting one proves to be difficult. Many married couples are forced to live apart.[2] Staying at their parents’ home, instead of renting a flat, allows them to save much money to purchase a new property in the future.
This Hong Kong situation is comparable with the Western trend which prefers a ‘living apart together’ (‘LAT’) relationship.[3] In Western cultures, LAT couples seek to live separately for various reasons. This is especially ‘common among young adults’, as it ‘enables people to protect their independence, autonomy, own space and assets’.[4] They ‘feel that cohabitation could place them or their dependents in a vulnerable position’.[5] However, the HK situation differs. Where the Western LAT relationship is usually a voluntary lifestyle preference which is less motivated by financial reasons, the HK one is driven by economic factors. Married couples want to live together, though their financial situation forces them to stay apart.[6] While this HK phenomenon is also taking place in some Western cities,[7] for the ease of reference ‘LAT couples’ refers to the HK phenomenon in this paper.
The next section discusses how this emerging trend of living apart fits within the existing regime of divorce, and in particular, whether it constitutes legal separation for the purpose of divorce.
- The Legal Implications
It is submitted that this recent connubial arrangement does not easily fit within the existing legal regime in HK. The main issue originates from the fact that the couple is not living together. This raises the question whether there is a mutual/common household, since family law statutes are based on such premise.[8]
- The legal significance of having a mutual household
The Matrimonial Causes Ordinance (Cap 179) (MCO) requires a petitioner for divorce to prove that; (1) the marriage has irretrievably broken down, and (2) existence of one of the five statutory facts.[9] Among these five facts, two of them require that the couple has lived apart for at least one year (if the respondent consents to the divorce), or two years (where no consent is required). Most importantly, s 11C(1) provides that ‘a husband and wife shall be treated as living apart unless they are living with each other in the same household’.[10] Thus, the question would be whether the HK couples are legally considered as living apart. If yes, they do not have to wait for the statutory periods and can divorce immediately (as long as there is an irretrievable breakdown).
The Fatal Accidents Ordinance (Cap 22) addresses the question of a ‘same household’. Under this ordinance, a dependent can claim for damages against the person who causes the death of the deceased. Importantly, a ‘dependant’ includes a person who lived with the deceased in the same household as a husband or wife (but does not necessarily have to be a legal spouse). If living apart leads to the absence of a mutual household, the dependant would be precluded from having a remedy.
For clarity, the scenario addressed in this paper refers to a couple who used to live apart amicably due to financial reasons, their relationship then deteriorates and they then seek a divorce. The couple only needs to prove the breakdown by establishing that .[11] The issue is then, whether the fact that they have lived apart could be used to prove separation.
The couple may have pragmatic reasons for trying to prove such, as this could enable an immediate divorce if this marital arrangement counts as statutory separation. Therefore, the only statutory provision in concern for the discussion below is s 11C(1) MCO on whether there is a common/mutual household. If there is no such common/mutual household, separation is established. It is shown below that merely maintaining a relationship as husband and wife may not be sufficient to establish a common household, and separation could still be found.
- Is there a mutual household?
In the English case of Santos v Santos, [12] Sachs LJ recognised that there could be situations where a separation is voluntary or involuntary. These involuntary situations could include, for example, imprisonment, hospitalisation, or working overseas.[13] Accordingly, the question of whether there is a common household does not solely depend on whether the couple is physically living together. There is also a mental element on whether the spouses recognise that the marriage subsists despite living apart.[14] As such, it does not require that the couple has to be living under the same roof.[15] More importantly, Sachs LJ noted that the statute ‘does not use the [term] “house”, which relates to something physical, but “household”’, which is ‘a word which essentially refers to people held together by a particular kind of tie, even if temporarily separated’.[16]
On this understanding, living apart does not amount to legal separation. It could be argued that there is a mutual household for the purpose of s 11C(1) MCO. However, this line of argument is not entirely straightforward when opposing arguments are taken into consideration.
For example, in the HK situation, a noteworthy consideration is whether the couples are planning to buy a flat in the future. In other words, their intention is to start a household in the future. By living apart due to financial constraints, they mentally accept that they are not yet able to start a household. They acknowledge that having a flat is essential to a household. Furthermore, an inability to procure an apartment may be a significant factor in the breakdown of a marriage.
In the English case of Kotke v Saffarini, the Court of Appeal held that there is a vital distinction between ‘wanting and intending to live in the same household, planning to do so, and actually doing so’.[17] This case concerned a claim for loss of dependency under the Fatal Accidents Act 1986. It depended on whether there was a mutual household for two years between the petitioner and the deceased. The petitioner never married the deceased and they maintained a LAT relationship. Although they had a joint household (by living together) after the petitioner was pregnant, this was not done early enough to satisfy the two-year requirement. It was academically noted that Kotke is an example where the court does not recognise LAT relationship as amounting to a household.[18]
This subtle distinction would more accurately reflect the nature of the conjugal arrangement in HK, as it corresponds to the fact that the HK couples have not had a common household yet and are merely planning to start a mutual household. Although ‘household’ is legally not the same as a ‘house’, when a flat is so essential to a household (which is true in most cultures), the lack of a common place to live remains a highly crucial consideration.[19] Furthermore, the fact that the petitioner in Kotke was never married would not constitute an adequate distinguishing feature because under the Fatal Accidents Act 1986, the statutory test was essentially the same by requiring (1) a husband and wife relationship (even if not legally married) and (2) a mutual household.
While the test in Santos focusses on whether the marriage is mentally recognised as subsisting despite living apart, case law has clearly established that this is not the only aspect for consideration. There are two aspects, namely (1) living together as husband and wife (which corresponds to the question in Santos on whether the marriage subsists), and (2) whether there is a mutual household. The second aspect is more fundamental and determinative. The existence and importance of the second aspect is evidenced from a series of cases.[20] In the English case a couple lived separately though the husband frequently visited his wife during the weekends and had sexual intercourse. It was held that there were two separate households, with no finding of a mutual one. They were deemed just ‘intimate friends’ and could not be said to be ‘living together’ in ordinary language.[21]
Thus, applying this argument on the HK situation, despite the couple being emotionally connected as husband and wife, it remains open—and hence uncertain—for the court to hold that there is not a mutual household under s 11C(1) MCO. This stems from the consideration of whether they are still planning to start a mutual household in the future, but have not yet started one. Arguably, the situations contemplated in Santos are where a mutual household is already in place, but the couple are subsequently separated by voluntary or involuntary reasons.
Without a common household a legal separation under s 11A(2) MCO can be found. This proves the irretrievable relationship breakdown and allows the couple to divorce under s 11 MCO.
Conclusion
The HK phenomenon demonstrates that the new conjugal arrangement does not always have a common household. The existing legal regime expects married couples to have a household. However, this legal requirement fails to accommodate the nature and needs of these new couples. This gap in the existing legal regime results in inconsistencies. On one hand, there is a mutual household that is inconsistent with the nature of the marriage and existing case law. On the other hand, there is no common household and this would in effect allow an immediate divorce, as it means that they are separated right from the beginning. This is inconsistent with the overall divorce regime which is designed not to allow immediate divorce.[22] This may also undermine the evidential function of legal separation, which is designed to help prove irretrievable breakdown.[23]
The thrust of the problem is that s 11C(1) MCO requires a common household, which is a concept not entirely compatible with couples living apart. The provisions on requiring separation prior to divorce self-evidently illustrates that living together, which is expected from conventional marriages, remains a substantial consideration.[24] While it is open to the courts to hold that LAT couples have a common household by focusing alone on their commitment as husbands and wives, it is unknown if the courts are willing to do so. From a literal perspective, the courts may find it difficult to strain the meaning of ‘same household’ to include couples living apart. As divorce involves broader concerns such as social policy and how LAT marriage should be recognised as a new form of marriage, the courts may deem this difficult matter best be left to the legislature.[25] Furthermore, it may be undesirable for the courts to carve out exceptions by artificially holding that a couple have a common household, despite they are merely planning to have one. Doing so may risk unduly complicating existing case laws on what constitutes a common household.[26] In any event, this topic requires actual judicial consideration to see how the court would resolve this new issue.
This paper thus recommends that the legislature pre-empts this issue by reconsidering the archaic reliance on the notion of a ‘same household’ to determine whether a couple is living apart. LAT couples mentally consider themselves as husbands and wives, despite not having such a household. Thus, it is suggested that the definition of ‘living apart’ should no longer be based on whether there is a ‘common/same household’. Instead, it should be solely based on whether the couple mutually recognise the subsistence of the marriage. However, if the legislature decides to keep the concept of ‘same household’, it is suggested that an inclusive subsection could be added. This would provide that ‘Even if a couple does not live in the same household, they do not live apart if the couple mutually recognise the subsistence of the marriage’. The most important point is to recognise that for LAT marriages, living apart does not prove an irretrievable breakdown, as different from conventional marriages.
This article was published in March 2020.
[1] Chermaine Lee and Megumi Lim, ‘The married couples in Hong Kong who live apart’ (BBC, 16 September 2019) <www.bbc.com/worklife/article/20190903-the-married-couples-in-hong-kong-who-live-apar> accessed 2 February 2020; Rachel Leung, ‘How Hong Kong is making it hard for young couples to make wedding plans … and forces them to live apart after marriage’ South China Morning Post (19 May 2018) <www.scmp.com/news/hong-kong/education/article/2146632/how-hong-kong-making-it-hard-young-couples-make-wedding> accessed 2 February 2020; Gloria Cheung, ‘Hong Kong cost of living forces married couples into separate beds’ Financial Times (20 March 2016) <www.ft.com/content/eb37e092-e993-11e5-bb79-2303682345c8> accessed 2 February 2020.
[2] ibid.
[3] Irene Levin, ‘Living Apart Together: A New Family Form’ (2004) 52(2) Current Sociology 223; Karen Upton-Davis and Robyn Carroll, ‘Living Apart Together: is it an effective form of asset protection on relationship breakdown?’ (2017) Journal of Family Studies; Vicky Lyssens-Danneboom, Sven Eggermont and Dimitri Mortelmans, ‘Living Apart Together (LAT) and Law: Exploring Legal Expectations Among LAT Individuals in Belgium’ (2013) 22(3) Social & Legal Studies 357.
[4] Rory Coulter and Yang Hu, ‘Living Apart Together and Cohabitation Intentions in Great Britain’ (2015) 38(12) Journal of Family Issues 1701, 1703.
[5] ibid 1703; Levin (n 3) 223. For example, some would want to live with their own children from previous marriages, whilst maintaining a separate relationship with a new partner.
[6] Lee (n 1).
[7] See Constance Rosenblum, ‘Living Apart Together’ New York Times (13 September 2013) <www.nytimes.com/2013/09/15/realestate/living-apart-together.html> accessed 2 February 2020; Coutler and Hu (n 4) 1703.
[8] ‘Common household’ is a term for establishing legal separation for the purpose of divorce, pursuant to ss 11, 11A and 11C of the Matrimonial Causes Ordinance, which will be further elaborated. Generally speaking, there is not a common household when there is a ‘complete cessation of communal living’: Edwina Higgins and Kathryn Newton, ‘Seeking a Divorce’, in Ruth Lamont (ed), Family Law (OUP 2018) 66, 90. See also Stephen Gilmore and Lisa Glennon, Hayes and Williams’ Family Law (OUP 2018) 77.
[9] Matrimonial Causes Ordinance, s 11A(2).
[10] Emphasis added. The law is generally the same in England under the Matrimonial Causes Act 1973, except that the latter requires the couple to have lived apart for 2 years (if with consent) or 5 years (if without consent).
[11] Matrimonial Causes Ordinance, s 11A(2). Proving separation raises a rebuttable presumption of irretrievable breakdown: Higgins and Newton (n 8) 79.
[12] [1972] Fam 247 (CA). This case has been approved by the Hong Kong courts. See eg PLTO v KLK [2013] HKCA 154 [52]; LHF formerly known as LT v TWK [2014] HKFC 48 [157]; HYH v CY [2013] HKFC 70 [59]; SP v JBJ [2012] HKCA 248 [8].
[13] ibid.
[14] ibid; See also Higgins and Newton (n 8) 90.
[15] ibid; See also Matthew Thorpe and others (eds), Rayden & Jackson on Divorce and Family Matters, Vol. 1(1) (Butterworths 2016) [9.57].
[16] ibid; See also Gully v Dix [2004] EWCA Civ 139 [24]; Harkinder Kaur v Sandeep Singh Dhaliwal [2014] EWHC 1991 [43]; McA. (M.) v McA. (X.) [2000] 2 ILRM 48 (High Court of Ireland) [9], [13] (per McCracken J).
[17] [2005] EWCA Civ 221 [59].
[18] Nigel Lowe and Gillian Douglas, Bromley’s Family Law (OUP 2015) 940; Law Commission, Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com CP No 179, 2006) para 9.38; Despite criticisms for the lack of recognition, the government has confirmed there will be no reform: see the observations in Swift v Secretary of State for Justice [2013] EWCA Civ 193 [16]. Kotke (n 17) is still cited as a guiding authority in Joanna Miles, Rob George and Sonia Harris-Short, Family Law: Text, Cases, and Materials (OUP 2019) 105.
[19] Apparently, having a common house, despite not living together, is a vital factor. This is evidenced in Kotke (n 17) [28]: ‘Use of [the word “household”] embodies a concept somewhat elusive of definition, combining as it does both the physical connotation of a place i.e. a particular house or home and personal connotations of association i.e. the family or household resident within it…’ (emphasis added).
[20] In the English case of Brocq v Brocq [1964] 2 All ER 464, the husband and wife had separate bedrooms without sexual intercourse and even verbal communication. In other words, they were not living as husband and wife. However, since the wife continued to cook for the husband, there was a mutual household. Similarly, in Mouncer v Mouncer [1972] 1 All ER 289, the husband and wife had separate bedrooms and were on bad terms. They were together in order to take care of their children. It was held that there was still a mutual household. In other words, these cases demonstrate that the existence of the first aspect is separate from the second aspect.
[21] (1978) 8 Fam Law 243. This case was adopted in HK in Chiu Chee Kan, Peter v Chiu Kung Tien Ming, Tammy [1992] HKCA 214 [11].
[22] Miles, George and Harris-Short (n 18) 133: ‘The requirement that the petitioner must prove a “fact” means parties cannot divorce immediately by mutual consent’.[xxii]
[23] Lowe and Douglas (n 18) 220.
[24] Matrimonial Causes Ordinance, s 11A(2)(c) and (d). It has been noted that the obligation to live together could be an obligation of marriage: Jonathan Herring, ‘Family’, in Andrew Burrows (ed), English Private Law (OUP 2013) 37, 71. The statutory formulation arguably implies ‘an obligation to live together’: Robert Leckey, ‘Shifting Scrutiny: Private Ordering in Family Matters in Common-Law Canada’, in Frederik Swennen (ed), Contractualisation of Family Law – Global Perspectives (Springer 2015) 93, 103.
[25] See eg Gilmore and Glennon (n 8) 58: After noting that married couples have a lower statistical rate of relationship breakdown than mere cohabitants, it is suggested that ‘in the interests of family stability and the economic well-being of children, the law should not encourage cohabitation and should instead take positive steps to promote the institution of marriage’. Applying Gilmore and Glennon’s point to the present situation, if LAT couples could divorce immediately, it simply defeats the stabilizing effect provided by marriage. Therefore, this may be one of the considerations to carve out legislative exceptions for LAT couples to disallow immediate divorce.
[26] Kotke (n 17) [59] stands as a powerful authority where it was held that there is a vital distinction between ‘wanting and intending to live in the same household, planning to do so, and actually doing so’. Carving out exceptions for LAT would undermine this established distinction. Furthermore, the potential confusion is intensified by the fact that there are other types of LAT couples, such as those who live apart for lifestyle preferences and never intend to have a common household.