Ch 4 Ancillary Relief

Period of Pre-marital Cohabitation – Effect on Ancillary Relief

As to whether pre-marital cohabitation should be considered as part of the marriage, Ribeiro NPJ had this to say in the latest Hong Kong Court of Final Appeal case of WLK v. TMC (FACV 21/2009 (at paras. 97 to 100(:

‘… Pre-marital cohabitation is clearly capable of coming within section 7 as a species of “conduct” or as a fact to be taken into account as a relevant part of “all the circumstances”. But, as pointed out by Hartmann J (as he then was) in F v. F, the fact of cohabitation per se is not sufficient. It is the nature of the cohabitation which dictates whether it should be taken into account in the exercise of the court’s discretion under section 7…

Pre-marital cohabitation which is taken into account tends to involve the parties living together in circumstances which approximate to cohabitation as a married couple. Thus, in GW v RW (Financial Provision: Departure from Equality), Mr. Nicholas Mostyn QC, sitting as a Deputy High Court Judge, agreed with Hartmann J’s approach and stated: “… in my judgment where a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way the couple live, it is unreal and artificial to treat the periods differently.”

And, in CO v CO (Ancillary Relief: Pre-Marriage Cohabitation), Coleridge J stated: “Committed, settled relationships which often endure for years in the context of cohabitation (often but not always with children) outside marriage must, I think, be regarded as every bit as valid as those where parties have made the same degree of commitment but recorded it publicly by civil registration, ie by marriage.” …

In contrast, in H v H, Balcombe J considered the parties’ pre-marital relationship irrelevant: “To consider it as equivalent to a true period of marriage would be cynical in the extreme. It lacked any semblance of permanence; there were no children, and on the several occasions when they separated both considered themselves free to take another partner.”

From the above authority, two principles can be gathered: (1) Pre-marital cohabitation is capable of becoming a relevant factor to be considered under s.7 of the Matrimonial Proceedings and Property Ordinance, (Cap.192) in deciding on an application for ancillary relief; and (2) Pre-marital cohabitation which is taken into account tends to involve the parties living together in circumstances which approximate to cohabitation as a married couple as their relationship “moves seamlessly from cohabitation into marriage”.