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As more and more cases of marriage are concerning family laws in Hong Kong, it is more important to understand and master the laws in Hong Kong. So it is meaningful to research the same and difference between the marriage laws of Hong Kong and Mainland China. As a family lawyer, specially, master the Hong Kong law is more important to vindicate the legality right of privy C. The special history background determines its early law roots in former marriage of China and Britain law. Hong Kong marriage law undergoes several emend and reform. The family laws end the mixture of China and Britain, and establish a full suit of law system with remarkable feature after reform.
(1) The same and difference of marriage contract
①The stated terms of Hong Kong family law
First, qualification term. Family law in Hong Kong regulates registration, both male and female the age must over 16. Over 16 but before 21,they must acquire the permission of their parents or legal guardians and they are not closed kinsfolk.
Second, registration term. The marriage proposer should present the marriage requisition to the registration officer and write “I will marry to another party within three months after the date of declare.” When the registration officer receive the application, he will issue the marriage proclaim at the place of privy Third, if no one opposes through 15days of proclaim, the will be given to registration.
② The stated term of Marriage Law of the P.R.C
First, qualification term. The Marriage Law of the P.R.C regulates, the male must over 22 years old and the female must over 20 years old. This is later than Hong Kong ’s and is not must be agreed by others, advocating marriage freedom, legality marriage is not be intervened. Forbidding Cahokia epidemical broken and, specially, the illness taken is likely to contagion next and the closed kinsfolk.
Second, registration term. The male and female must go to the registry office by themselves or they are not legality spouse. When they register, they are spouse.
(2) The same and difference of void marriage
① The conditions of void marriage in Hong Kong law
The void marriage in Hong Kong law is referring to the marriage behavior of privy C is not accord with the basic conditions of the law. The marriage voids from begin to end. In Hong Kong, void marriage children ’s status is different with marriage children. The essential conditions of void marriage:
First, the both party of marriage conclusion is in the forbid of law. In terms of Hong Kong law, any male must not marry to closed kinsfolk, or is void marriage.
Second, they are not at legal age is void marriage. When they are wedding, one is not over 16, this marriage relation continuance many years but this marriage relation is also void from begin to end.
Third, not according to the law to transact the registration procedure is void marriage. Any one apply marry in Hong Kong must present the marriage requisition to the registration officer and pledge that this marriage has not any judicial obstacle. Marriage must be registered and wedding must be in the church, which has license. The people who preside the wedding must has formal qualification.
② The conditions of void marriage in Marriage Law of the P.R.C
First, bigamy
Second, the closed kinsfolk which prohibit marriage
Third, either party takes the ill cannot be marriage of the medical before marriage and it is not occurred after marriage.
Fourth, either party hasn't reached the legal age.
(3) The same and differences of dissolved marriage
①The dissolved marriage in Hong Kong family law
Pursuant to the family law in Hong Kong, dissolved marriage means the party involved in the marital relation has reached the requirement of laws and the court may declare the marriage dissolution from the day of declaration and the children they have are legitimate children. The marriage shall be dissolved under the following circumstances:
First, one party is disabled in sexual relation, which means the couples’ first time of their sexual intercourse was not good.
Second, one party refused to have sexual relation with the opposite party. As the common law regulates that the husband and wife have the obligations of cohabitation, the court may declare the marriage dissolution if either party refused to perform the above obligation.
Third, in case of a marriage made under coercion, the court may make the declaration of marriage dissolution.
② The dissolved marriage in the Marriage Law of the P.R.C
According to the article 11 of Marriage Law of the People’s Republic of China, where marriage is contracted by coercion, the coerced party may appeal to the marriage registration office or the People’s Court for annulment of such marriage. Such an appeal for annulment of marriage made by the coerced party shall be submitted with one year from the date of marriage registration. Where the party concerned whose personal freedom is illegally restrained, such an appeal for annulment of marriage shall be submitted within one year from the date of the restoration of the personal freedom.
(3) The same and differences in divorce conditions and procedures
① The conditions of divorce in Hong Kong
In Hong Kong, an application for divorce shall be made to the court jointly by both parties to the marriage while it may be made to the Civil Affairs Bureau in mainland China. The court hearing an application for divorce shall not hold the marriage to have broken down irretrievably unless it is satisfied as regards either or both of the following facts:
First, both parties have to be settled in Hong Kong. If the female party applies for divorce, she has to be living in Hong Kong for more than 3 years or she has been abandoned by her husband or her husband was deported;
Second, either party has some actual relations with Hong Kong when applying for divorce;
Third, their marriage shall be in existence for more than 3 years when applying for divorce except that one party’s behavior is bad indeed. And the opposite party has to submit the affidavit concerning the relevant aspects to the court.
If both parties reach the agreement of divorce, they shall submit their application for divorce to the court and wait of one year. In this year, they may withdraw or insist on their application. After one year, the court may approve their divorce application if no party withdraws their application.
Pursuant to the relevant laws, the court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts:
First, the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
Second, the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
Third, the parties to the marriage have lived apart for a continuous period of at least 1 year immediately preceding the presentation of the petition and the respondent consents to a decree's being granted;
Fourth, the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition;
Fifth, the respondent has deserted the petitioner for a continuous period of at least 1 year immediately preceding the presentation of the petition.
Concerning the procedures, the divorce cases are under the jurisdiction of local court with a final judgment after two proceedings. The judgment made the court in Hong Kong are complex judgment, which means the court may make two judgments, temporary judgment and the final judgment. Temporary judgment is also call interim judgment, which performs no effectiveness to the applicant’s marriage. In 3 months from the temporary judgment has been made, both parties shall not get married but to scan their marriage. In the 3 months, they may also withdraw their application for divorce. The final judgment shall be made after 3 months if no party withdraw their application and their marriage shall be dissolved.
②The divorce condition and procedure in China
There are two ways to release the marriage relationship in China: divorce register and litigation. If both parties desire divorce, they can apply to the marriage registration office in one’s Hukou location for get it and they don’t need to go to the court. The second way can be used at the time when one party wants to divorce but the other one disagrees. When the court finds either party has the circumstances in article 46, the Marriage Law of China, the divorce shall be granted if mediation fails:
First, bigamy or, cohabitation of a married person with any third party;
Second, domestic violence or, maltreatment and desertion of one family member by another;
Third, bad habits of gamble or drug addiction, which remain incorrigible despite repeated admonition;
Fourth, separation caused by incompatibility, which lasts two full years; and
Fifth, any other circumstances causing alienation of mutual affection.
Divorce shall be granted if one party is declared to be missing and the other party thereby files an action for divorce.
The Chinese courts usually refuse making the divorce judgment at the first time of hearing the divorce case except the instance above or the parties have the evidence to show their mutual affection no long exists. If the parties sue to the court again after 6 months from the date he/she got the judgment, there is more possibility for the court to make a divorce judgment. |
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