Unmarried Couples and Property in Hong Kong: What You Own, and What You Can Claim

The question many people ask

The question people actually ask is not a legal question. It is a sum: I put money in, the deed has their name on it, so do I have a share or not?

When that question turns up on a Hong Kong forum, nobody uses the words "beneficial interest" or "trust". What turns up is the deposit, the mortgage instalments, the money spent on the renovation, the bills — and the flat being in one name. What is worth noticing is that inside a single thread you will find one person saying flatly that the name on the deed ends the matter, and another, a few lines below, saying that anyone who can prove they paid towards the mortgage can get it back. Both are certain. Neither cites anything.

Government pages generally do not tell a cohabiting partner anything about their position in property or in an estate.

This article starts from the outcome rather than from the statute: whether you have a share, what your contributions are worth, what happens if your partner dies instead of leaving — and why those two routes run on opposite evidence.

The short answer

Hong Kong has no such status as a common-law spouse, and living together for any length of time does not by itself create an automatic share in a home held in the other partner's sole name — but that does not leave you with nothing. This article sets out two routes, and the evidence that wins one weakens the other.

• Route one: a proprietary claim in equity — a common intention constructive trust, or a proprietary or promissory estoppel. You do not claim as a partner, because there is no such claim. You claim that the flat is, in equity, partly yours. *This route is not confined to the period while both of you are alive: it can be pursued against the estate after a death — in Luo Xing Juan, discussed below, the party sued was the estate of the deceased partner, and the Court granted relief.* The starting point is against you: beneficial interest is presumed to follow legal interest, and the burden of proof is on the person asserting that the two differ.
• Route two: a claim under Cap. 481 for financial provision out of the estate — this route exists only where there has been a death. Cap. 481 s.3(1)(ix) — "(ix) any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased,". At the door this limb does not ask how close the relationship was; it asks whether you were being kept. Once you are through it, s.5(6) makes the closeness of the relationship a factor the court shall weigh. And above it sits a gate that has nothing to do with you at all: the deceased must have died domiciled in Hong Kong, or have been ordinarily resident here at some time in the three years before death. If that gate fails, the route never existed.
• The two can coexist; they are not alternatives. One asks whether the flat is in part beneficially yours; the other asks whether the estate should make financial provision for you. After a death, both can be on the table. They are, however, different claims: different procedure, different priority, different time limits. The Cap. 481 time limit is in the next bullet.
• Why the two run in opposite directions. Cap. 481 s.3(3) requires that the deceased was contributing to your reasonable needs "otherwise than for full valuable consideration". The more equally you paid your way, the less of what you received counts as maintenance. The same payments are the strongest evidence you can have on the trust route. Your own history sorts the two routes in opposite directions.
• Two clocks, both started by a death, and nobody will tell you when either of them started — which is not the same as not being able to check. Six months from the first taking out of representation for a Cap. 481 application. Twelve months for the surviving spouse's election to take the home — which a cohabiting partner does not have. Both run from the day somebody takes out a grant, not from the death and not from the day you find out.
• Note. The position of same-sex couples changes over time, and statements about it below are dated.

Those two routes are not a complete list. A statutory text cannot answer a common-law question. A beneficial interest can also come from being a co-owner on the title, from an express agreement or an express trust, from a resulting trust, or from an estoppel — the Court of Final Appeal description quoted below names ownership and co-ownership at common law, the common intention constructive trust and proprietary estoppel in the same breath. Say it more bluntly for one of them: proprietary or promissory estoppel should not be read as the weak option. In Luo Xing Juan Angela v Estate of Hui Shui See Willy [2008] HKCFA 48, (2009) 12 HKCFAR 1 (FACV 32/2007; the judgment is at https://www.hklii.hk/en/cases/hkcfa/2008/48 ) the Court of Final Appeal dealt with an unmarried couple and the flat they lived in. In that case the flat was owned by a company, and under the heading “C.2 Inapplicability of the common intention constructive trust” Ribeiro PJ held that the common intention constructive trust could not run against the company, because a shareholder has no legal or equitable interest in the company’s property and the company was not a party to, and did not unconscionably depart from, any common intention. That did not leave her empty-handed: the Court upheld a promissory estoppel instead. Under “E.2 The requirements of promissory estoppel” the Court stated the test: “A promissory estoppel may be said to arise where (i) the parties are in a relationship involving enforceable or exercisable rights, duties or powers; (ii) one party (“the promisor”), by words or conduct, conveys or is reasonably understood to convey a clear and unequivocal promise or assurance to the other (“the promisee”) that the promisor will not enforce or exercise some of those rights, duties or powers; and (iii) the promisee reasonably relies upon that promise and is induced to alter his or her position on the faith of it, so that it would be inequitable or unconscionable for the promisor to act inconsistently with the promise.” Under “E.5 Reliance on the promise and unconscionability” the Court found that she had continued to live with the deceased as man and wife, had forgone employment opportunities of her own and had paid one $40,000 mortgage instalment, and that these were significant acts and omissions of detrimental reliance. The relief, under “F.2 Relief in the present case” and the Orders, was a declaration that she take 35% of the net proceeds when the flat was sold, secured by an equitable charge, conditional on her giving up possession on not less than one month’s written notice from the liquidator. As the Privy Council put it in a passage the Court adopted: “No matter whether or not the facts of a given case go far enough to establish an equitable interest in land, they may satisfy the requirements for a promissory estoppel.” So estoppel is not the weak option; in that case the constructive trust failed and the estoppel succeeded, and it carried 35% of the sale proceeds. How your own facts sit against that test is a question for a solicitor.

Whose name, and whose benefit

Hong Kong law splits ownership of a property in two: the name on the title, and who is actually entitled to the benefit behind it. Every question in this article is about the second one.

The starting point is against the person whose name is not on the title, and there is a Hong Kong Court of Appeal statement of it. In Primecredit Ltd v Yeung Chun Pang Barry & anor, CACV 246/2016 (Court of Appeal, 21 July 2017), Lam VP wrote at §1.4: "Whilst there is a presumption of beneficial interest following legal interest". Kwan JA put the burden question at §17: "As it is the claim of Madam Wong that the beneficial ownership of the Property is different from the legal ownership, the burden of proof is on her to establish this."

This must be said plainly: that is not a cohabitees' case. The parties were a mother and her son, and the proceedings arose out of a judgment creditor's charging order over a flat. It is cited here because it is a Hong Kong Court of Appeal judgment, and because what it says about the starting point and the burden is stated generally. *The Court of Final Appeal judgment about an unmarried couple and the flat they lived in is Luo Xing Juan [2008] HKCFA 48 (FACV 32/2007), and its holdings on the common intention constructive trust and on promissory estoppel are set out above.*

*The UK Supreme Court in Jones v Kernott [2011] UKSC 53 separated two situations, and taking the wrong one states the law backwards.* Paragraph 52 is the reader's situation — a home in one name only:

In other words the first argument is not about how much you should get. It is about whether it was ever intended that you have anything at all. Paragraph 51 of the same judgment — "The starting point is that equity follows the law and they are joint tenants both in law and in equity." — is about property in joint names. Quoting paragraph 51 to a sole-name reader tells them the opposite of the law that applies to them.

But paragraph 52 has a closing sentence that must not be dropped. It ends: "If the evidence shows a common intention to share beneficial ownership but does not show what shares were intended, the court will have to proceed as at para 51(4) and (5) above." So paragraph 51 is not irrelevant to a sole-name reader. Its starting point is not yours; its method for working out shares becomes relevant once you have shown that you have a share at all.

Jones v Kernott is English and is persuasive only in Hong Kong. It is cited because the Court of Final Appeal (Lam PJ) has described the financial affairs and properties of unmarried couples as governed by the common law on ownership and co-ownership, the common intention constructive trust and proprietary estoppel. To be precise: that is judicial description, in a judgment dissenting in part, not a ruling on any issue before the Court.

Why the two routes run on inverse evidence

One and the same fact — how much you put in — makes one route stronger and the other weaker at the same time. Neither Ordinance says so itself, because the two provisions sit in different Ordinances.

First, why the inheritance route penalises paying your way. Cap. 481 s.3(3) defines what being maintained wholly or substantially means:

Look at "otherwise than for full valuable consideration". It is a bargain test: it asks whether what you received was paid for. What it is not is a test with need left out of it. The same sentence reads "towards the reasonable needs of that person", so need is written into the threshold itself; and past the threshold the first matter s.5(1) directs the court to is "the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future". Section 3(3) asks whether value was given. Section 5 asks what the resources and the needs are. Neither question cancels the other. A partner who paid their share of the rent, the mortgage and the bills gave value, and to that extent what they received was not maintenance. The more equal you were, the narrower this route becomes.

The same Ordinance defines what does not count as consideration, and that helps some readers. Cap. 481 s.2(1): "valuable consideration (有值代價) does not include marriage or a promise of marriage;". So a promise to marry you later is not something you gave. Money can be — but having paid money is not the same as having given full valuable consideration for everything you received. That is a question of fact about the whole arrangement, not an inference from a payment.

Now the property route, which needs exactly what the other one penalises. In Primecredit at §2.4, Cheung JA set out the second route to a common intention constructive trust: "direct contributions to the purchase price by the party who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust." The court attributed that formulation to Lord Bridge of Harwich in Lloyds Bank Plc. v Rosset [1991] AC 107.

So the same mortgage payment is your best evidence on one route and evidence against you on the other. The reader's own history sorts them:

• A reader who paid half the mortgage and was financially the other's equal has something to work with on the property claim, and a hard threshold to cross on Cap. 481.
• A reader who gave up work, ran the home and paid nothing towards the flat has the easiest case that they were maintained wholly or substantially — and has lost the most direct piece of evidence on the property claim.

And the second reader has a further problem. The applicant who most easily gets through Cap. 481's door recovers on the narrower of its two measures. Section 3(2)(b): "(b) in the case of any other application made by virtue of subsection (1), means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance."

Homemaking is in the Ordinance. It is simply addressed to somebody else. Section 5(2) opens "where an application for an order under section 4 is made by virtue of section 3(1)(i), (ii) or (iii), the court shall, in addition to the matters specifically mentioned in paragraphs (a) to (f) of that subsection, have regard to—", and only then comes "(b) the contribution made by the applicant to the welfare of the family of the deceased, including any contribution made by looking after the home or caring for the family,".

This is easy to overstate, and the overstatement is false. Section 5(2) does not stop a court from weighing homemaking in a (ix) case. Section 5(1)(g) is a residual factor — "(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant." — and every one of subsections 5(2) to 5(6) is expressed to be without prejudice to its generality. The accurate statement is that homemaking is mandatory for a spouse, a former spouse and a tsip, and discretionary for a (ix) applicant. That is the difference between a right and a hope.

The same subsection ends with something else given to a spouse alone. Section 5(2) closes: "and, in the case of an application by the wife or husband of the deceased, the court shall also, unless at the date of death a decree of judicial separation was in force and the separation was continuing, have regard to the provision which the applicant might reasonably have expected to receive if on the day on which the deceased died the marriage, instead of being terminated by death, had been terminated by a decree of divorce." A spouse is measured against a notional divorce. A (ix) applicant is not — but a (ix) applicant is not measured against nothing. Section 5(5) applies to s.3(1)(viii) and (ix) and requires the court to "have regard to the extent to which and the basis upon which the deceased assumed responsibility for the maintenance of the applicant, and to the length of time for which the deceased discharged that responsibility." Section 5(6) applies to s.3(1)(ix) and to no other limb, and requires the court to "have regard to the closeness of the relationship between the applicant and the deceased immediately before the death of the deceased." *So the (ix) applicant has three mandatory factors of their own — two under s.5(5) and one under s.5(6) — and how close the relationship was is something the court shall have regard to. What the (ix) applicant lacks is the notional-divorce yardstick, not a yardstick.*

One last provision, and it points the same way again. Section 5(8) requires the court, in considering a person's financial resources, to take into account their earning capacity. A cohabiting partner who works and earns is counted against at that step. So being financially independent makes the door harder to get through under s.3(3) and makes the need look smaller under s.5(8). The same fact, counted twice, in the same direction.

What your contribution is actually worth

Money towards the purchase price is the strongest thing a reader can have. It is not, by itself, enough — and inside a relationship money handed over is very readily characterised as a gift.

There are two routes to a common intention constructive trust, and both are set out in one Hong Kong Court of Appeal judgment. Primecredit §2.3: "The first situation where common intention constructive trust may arise is where at any time prior to acquisition, or exceptionally at some later date, there is an agreement, arrangement or understanding reached between the parties on how the property is to be held beneficially." Note "or exceptionally at some later date" — the understanding does not have to have been reached before the flat was bought.

The second is the passage quoted above at §2.4: where there is no evidence of an agreement, the court relies on conduct, and direct contributions to the price readily justify the inference.

The same judge drew the boundary himself. Primecredit §2.9 begins: "It is not necessary in this judgment to resolve these two opposite doctrines or the difference between the second limb of common intention constructive trust and resulting trust." So the two routes are the court's statement of the doctrine, not a formula that decides cases.

And in the same judgment the Vice-President wrote something that directly displaces the impression that only direct payments count. At §1.6: "Since Stack v Dowden [2007] 2 AC 432 and Jones v Kernott [2012] 1 AC 776, as far as Hong Kong is concerned, the modern approach on constructive trust is to assess the common intention of the parties by a holistic approach having regard to the context", and then: "In a domestic context, particularly in relation to a matrimonial home, the court is not constrained in that exercise by pure direct monetary contributions to the purchase price".

That sentence cuts both ways, and the article states both. It means that never having paid towards the deposit does not by itself end the matter. It equally means that having paid does not by itself settle it. The court looks at the whole picture, not at an arithmetic total.

The gift risk is real, and the same judgment is the example. The trial judge concluded that "more likely than not, the purchase was a gift". The Court of Appeal held he was plainly wrong on the facts and allowed the appeal. Both halves belong in the article: the characterisation happens, and it is not beyond appeal.

On the presumption of advancement. Primecredit §2.13 records counsel for the plaintiff citing Cheung Pui Yuen v Worldcup Investments Inc (2009) 12 HKCFAR 31 and Suen Shu Tai v Tam Fung Tai [2014] 4 HKLRD 436 for the proposition that the presumption of advancement is relatively weak and can be rebutted on comparatively slight evidence. That is a submission recorded in a judgment, not a holding of either of those courts. Cheung JA's own answer, at §2.15, was that because a resulting trust operates in the absence of evidence of intention it is not helpful to describe it with an adjective like weak, and that "the issue of financial contribution is clearly a most weighty consideration". Whether the presumption of advancement applies between unmarried partners is not settled.

Three things readers ask:

• Renovation. Whether money spent on renovating counts: take advice on your own facts. The Court of Appeal's second route at §2.4 names contributions to the purchase price, initially or by mortgage instalments. It does not name renovation and it does not name homemaking.
• Being charged back for the years you lived there — occupation rent, or equitable accounting between co-owners. Lioe Ka Khie, HCAP 12/2005 (Court of First Instance, Lam J, 23 January 2009), says at §92 that a party has a "potential liability to pay an occupation rent to the estate for the occupation of the flat" — and at §93 that "that is not an issue which I need to decide now". Stated exactly: one Hong Kong text mentions occupation rent, in passing, and expressly declines to decide it. On whether the other side can charge you rent simply because you lived there, the answer follows. And two things have to be kept apart: equitable accounting is an adjustment of accounts between co-owners, so it presupposes the very beneficial share the reader is trying to establish. A person with no beneficial share is not a co-owner, and how their years of occupation are treated is a different question. In Cheung Lai Mui v Cheung Wai Shing [2021] HKCFA 19 (FACV 1/2021; the judgment is at https://www.hklii.hk/en/cases/hkcfa/2021/19 ) the Court of Final Appeal dealt squarely with equitable accounting and occupation rent between co-owners, and the question on which it granted leave is this very question. Question 2 asked: “Whether a co-owner in sole occupation of land, in cases other than partition or ouster and in the absence of agreement, should be ordered to account to the other co-owners for occupation rent.” Under the heading “Conclusion on Question 2”, Ribeiro PJ and Gummow NPJ answered it — no. The Court held: “We conclude that the authorities considered above do not establish any new, free-standing “modern approach” such as that urged by the respondents and favoured by the Court of Appeal. Claims by one co-owner against a co-owner in occupation for payment of occupation rent or for an account of rent can only arise in accordance with the principles laid down in the established authorities.” The Court then set out the closed list of gateways. It held: “Unity of possession precludes such claims otherwise than in cases of ouster (including “constructive exclusion” as in domestic violence cases); or where an operative agreement renders the co-owner in occupation an agent or bailiff so as to come under a duty to account to the other.” To that the Court added a third route: where partition or analogous proceedings have been begun, equity may, in the process of equitable accounting, debit an occupying owner with an occupation rent to set off expenditure for which that owner claims credit. In the case itself everyone had proceeded throughout on the basis that there had been no ouster, and no other established basis was even alleged, so the claim for mesne profits, occupation rent and an account of rent failed outright. What this means for a reader: the bare fact that you lived there for years does not, by itself, make you liable for occupation rent in Hong Kong. The other side has to point to ouster, to an agreement making you an agent or bailiff, or to equitable accounting inside a partition or similar action.
• Looking after children. Caring for children turns into money mainly through the carer's allowance under the Guardianship of Minors Ordinance (Cap. 13) s.10(2)(b), and only where there is a child; and a carer's allowance is maintenance, not a share in a property.

Hong Kong courts do decide these claims, and the outcomes do not generally run the reader's way: the two sole-name domestic cases both went against the non-owner; two are joint-names cases starting from a presumption of equality, which is the opposite starting point; and the one clear win by a non-owner was over business assets supported by a signed memorandum, multiple independent witnesses and recordings.

If they die instead

Start with a threshold that has nothing to do with you and can close the whole route: it asks about the deceased, not about you.

Cap. 481 s.3(1) opens with it, before the list of nine kinds of applicant:

If the deceased was not domiciled in Hong Kong at death and was not ordinarily resident here at any time in those three years, Cap. 481 does not apply at all — however long you were together, and however completely they kept you. But state it exactly: retiring across the boundary, or working abroad for years, does not by itself fail this gate. The gate has two legs and either one is enough. The second leg has nothing to do with domicile: ordinary residence in Hong Kong at any time in the three years before the death is enough, so a reader whose partner worked abroad may still be through it on that leg alone. The first leg is domicile, and how domicile is decided is in the Domicile Ordinance (Cap. 596) itself. Section 3(1): "Every individual has a domicile." Section 3(2): "No individual has, at the same time and for the same purpose, more than one domicile." And s.5(2) sets out what acquiring a new domicile takes: "Subject to sections 6, 7 and 8, an adult acquires a new domicile in a country or territory if—(a)he is present there; and(b)he intends to make a home there for an indefinite period." So leaving Hong Kong does not by itself shed a Hong Kong domicile; a new domicile has to be acquired in its place. The Judiciary's Probate Registry questions and answers say the same thing at §§11.6–11.7: domicile means the place where the deceased was lawfully staying and intended as a permanent home at death; and where the deceased died in the Mainland or overseas the Registry asks for an affidavit dealing with where the home was and in what form, the length of stay in Hong Kong and whether there was an intention to reside permanently or indefinitely, where the business and the bulk of the investments and assets were, where family and friends were, and where papers and personal belongings were kept, plus social habits. This is an evidence question, not a question answered by where somebody moved to. A contested domicile is a question for a Hong Kong solicitor.

The same document adds something a cross-border reader has to know, at §2.3: the probate jurisdiction of the Hong Kong court, including the Probate Registry, covers the estate in Hong Kong only. Estate outside Hong Kong — the Mainland and Macau included — has to be dealt with and administered under the law of the place where it is situated; and s.24A(1) of the Probate and Administration Ordinance (Cap. 10) likewise defines "assets" as property situated in Hong Kong. So a reader whose partner left property outside Hong Kong has that estate to deal with separately, under the law of the place where it is.

Past that gate, a cohabiting partner usually falls into limb (ix) and nothing else:

The entry condition is financial support, not duration, and what being maintained wholly or substantially means is the s.3(3) test quoted above. The full nine limbs, both measures under s.3(2), and the separate route open to a person who in good faith went through a marriage that turned out to be void, are set out limb by limb in another guide on this site (ss.5(5) and 5(6) belong to the (ix) applicant and are stated above rather than deferred): see Dying Without a Will in Hong Kong .

Three further points.

First, the order the court can make is not limited to money. Cap. 481 s.4(1) lists five kinds of order, of which (c) is: "(c) an order for the transfer to the applicant of such property comprised in that estate as may be so specified;". The words "for his maintenance" in s.3(2)(b) limit the amount, not the form of the order. That matters, because "maintenance" reads like a monthly allowance.

Second, which court. The answer is not in the definition. Cap. 481 s.25(1): "Subject to subsections (2) and (3), proceedings under this Ordinance shall be commenced in the District Court." The application is commenced in the District Court; it is not the applicant's choice. The s.2(1) definition — "court (法院), unless the context otherwise requires, means the Court of First Instance or the District Court;" — says which two courts the word "court" can mean in this Ordinance, not that an applicant may pick one. The route up to the Court of First Instance is s.25(2), which carries the power to make rules of court providing for the transfer and retransfer of proceedings — a matter for the rules and the court, not for the applicant.

Third, the clock nobody will tell you about — and it is not a clock you cannot check. Cap. 481 s.6:

It runs from the first taking out of representation — a step in an estate administration conducted by other people, which you may never be told about. Not from the death, and not from the day you find out. And nothing in Cap. 481 lets the executive move this period. So no official can extend these six months. Only the court can permit a late application.

But "nobody will tell you" is not "you cannot check". The Judiciary's Probate Registry questions and answers describe, at §11.8, a computer record search open to any member of the public who attends the Registry in person: search on the deceased's name, or on a Registry file reference prefixed HCAG or HCCV, and it will show whether a grant has yet been sought or issued. The charge is $18 per search (fees move). The limits belong with it: there is no automatic alert, so monitoring means searching again and again yourself, and you may still never find out in time. And a late application is still permitted only by the court, never by an official.

A common misconception: that unmarried cohabitants have no rights and the law provides no safety net. That is wrong. There is a safety net, but it is narrow: Cap. 481 s.3(1)(ix), which requires proof that the survivor was being maintained wholly or substantially by the deceased immediately before the death — difficult to show where both partners were working and earning similar incomes.

As for Cap. 73, the only place in the whole Ordinance that mentions someone in the reader's position is a discretion, and it should not be relied on as a route. Section 4(1) is exhaustive — "The residuary estate of an intestate shall be distributed in the manner or be held on the trusts mentioned in this section." — and a cohabiting partner is in none of the classes in ss.4(2) to 4(8). Only after all of them fail does s.4(9) arrive:

Three limits belong with it: it bites only where nobody takes an absolute interest; it is a "may", not a "shall"; and the Ordinance provides no application procedure. One half of it is useful, though: the gift to the Government is expressly "subject to the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481)", so a Cap. 481 claim survives even where an estate would otherwise go to the Government.

The surviving spouse can require the home to be handed over. A cohabiting partner cannot.

Hong Kong law has a mechanism aimed at exactly the question the reader is asking — can I stay in the flat — and it is a right to compel rather than a claim to bring. It is keyed to one word the reader does not have.

Cap. 73 s.7, with Schedule 2:

Schedule 2 paragraph 1(1) sets out how it works: where the residuary estate includes an interest in those premises and "the surviving husband or wife so elects, the personal representatives shall appropriate that interest".

Look at what that machinery is. It is a statutory election rather than a discretionary claim brought to a court: the survivor elects, and the personal representatives must comply. The home comes out of the estate at a valuation, with the balance settled in money. That is not the same as having no conditions. Schedule 2 requires a written election and a valuation, requires the survivor to meet any difference in value, imposes a time limit and excludes certain property; and in specified cases the election is not exercisable unless the court so orders. Those conditions are set out below.

A cohabiting partner misses it three times over: they cannot make the election, which s.7 gives to a surviving husband or wife; they have no share to set it against, because s.4(1) is exhaustive; and "husband" and "wife" are locked by s.2(1) — "husband (丈夫) and wife (妻子), in relation to a person, mean a husband or wife of that person by a valid marriage;" — with "valid marriage" defined by s.3. One chapter, one question, and the answer is no three times.

In fairness, the right itself is fenced. Schedule 2 disapplies it to short tenancies; where the residence forms part of a building the estate holds entire, or was partly non-domestic at the death, the election is not exercisable unless the court so orders; and the time limit is paragraph 3(1)(a):

Put the two clocks side by side. Twelve months for an election the reader does not have. Six months for the application the reader does. Both run from the same event — somebody taking out a grant — and the shorter one is the reader's. Schedule 2's own machinery belongs to the other guide: see Dying Without a Will in Hong Kong .

There is one more asymmetry in the same pair of Ordinances, and it is checkable. Cap. 481 s.2(1) defines "husband" or "wife" to include not only a spouse by a valid marriage but also "(b) a person who in good faith entered into a void marriage with the deceased" (unless the marriage was dissolved or annulled in the deceased's lifetime, or that person remarried). Cap. 73 s.2(1) has no such limb. So a person who went through a ceremony that turned out to be legally void is a spouse for the family-provision claim and is not a spouse for intestacy. The dividing line is not whether a marriage came into existence. It is whether a ceremony was gone through. A partner of thirty years who never went through any ceremony is on neither side of it.

The statute book knows what cohabitation is. It never knows it for property.

Hong Kong's statute book knows precisely what a cohabiting relationship is and recognises it operatively in many chapters — pensions, employees' compensation, fatal accidents, discrimination, medical decision-making, anti-money-laundering relatedness, domestic violence — and in the chapters that decide property and succession, not once.

What matters is the distribution: in the chapters that decide property and succession there is nothing at all. Cap. 481, the Land Registration Ordinance (Cap. 128), the Conveyancing and Property Ordinance (Cap. 219) and the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) — four chapters end to end, and not one operative recognition of a cohabiting partner.

The Domestic and Cohabitation Relationships Violence Ordinance (Cap. 189) is the whole pattern in miniature. It does five things in sequence:

• It defines the relationship. Section 2(1): "cohabitation relationship (同居關係)— (a) means a relationship between 2 persons (whether of the same sex or of the opposite sex) who live together as a couple in an intimate relationship; and (b) includes such a relationship that has come to an end;" This form of words is not unique to Cap. 189. The phrase "live together as a couple in an intimate relationship" appears in five chapters: Cap. 189; Cap. 32 s.265B(5)(a) (defining a cohabitant); Cap. 622 ss.484 and 666; Cap. 651 (defining a cohabitation relationship and a cohabitee); and Cap. 155S (defining a cohabitation relationship and a cohabitee). What is distinctive about Cap. 189's is limb (b): it is the only one of the five that also includes a relationship that has come to an end.
• It supplies a statutory checklist for proving it. Section 3B(2): "In determining whether 2 persons (the parties) are in a cohabitation relationship, the court shall have regard to all the circumstances of the relationship including but not limited to any of the following factors that may be relevant in the particular case—", followed by eight factors: living in the same household; sharing the tasks and duties of daily life; stability and permanence; the arrangement for sharing expenses or financial support and the degree of financial dependence or interdependence; whether there is a sexual relationship; whether the parties share the care and support of a specified minor; their reasons for living together and the degree of mutual commitment to a shared life; and how they conduct themselves towards friends and relatives and are treated by them. This is a test for Cap. 189 and for nothing else — it is not a test under Cap. 481 or in trust law. It is set out here because it is the only official list in the statute book of what a cohabiting relationship looks like in evidence.
• Then, on an application by a cohabiting partner alone, it adds a threshold. Section 6(3) bars the court from granting the occupation provisions or attaching an authorisation of arrest on such an application "unless the court is satisfied that having regard to the permanence of the cohabitation relationship it is appropriate in all the circumstances to grant that injunction or attach that authorization of arrest". There is no equivalent precondition on a spouse's application.
• The order is time-limited. Section 6(1) gives such a provision effect for a period "not exceeding 24 months" as the court considers appropriate. To be accurate: that cap is not aimed at cohabiting partners. The identical words apply to the equivalent provisions in a spouse's injunction under s.3. What is specific to cohabiting partners is s.6(3)'s threshold, not the time limit.
• And it stays off the title. Section 10: "An injunction containing a provision mentioned in section 3(1)(c) or (d), 3A(4)(b) or (c) or 3B(1)(c) or (d) shall not be registered under the Land Registration Ordinance (Cap. 128)." The two authentic texts of this section do not say the same thing: the English is prohibitory, and the Chinese reads 「無須根據《土地註冊條例》(第128章)註冊」 — need not be registered. Both are authentic. How such a divergence is dealt with is itself in the statute book. Interpretation and General Clauses Ordinance (Cap. 1) s.10B(3): "Where a comparison of the authentic texts of an Ordinance discloses a difference of meaning which the rules of statutory interpretation ordinarily applicable do not resolve, the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance, shall be adopted." That directs a reconciliation of the two texts; it does not license leaving two readings standing as competing rules, and "need not be registered" does not entail "cannot be registered". Whether the Chinese formulation permits voluntary registration is not settled.

One more thing about Cap. 189, because it is easy to misread: its gateway is molestation, not the relationship. Section 3B(1) requires the court to be satisfied that the applicant or a specified minor has been molested by the other party. It is a personal-safety provision, not a housing provision, and it changes nobody's interest in a property.

As for the category "the division of property arising from a cohabitation relationship" itself — Hong Kong law names it exactly once, and names it in order not to enforce it. Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645), s.6(1)(c)(vi):

The direction has to be stated exactly. That limb defines when a Mainland judgment is an excluded matrimonial or family case. Subsection 6(2) separately defines when a Hong Kong judgment is excluded, and this item is not in that list. So the legislature can name the reader's claim with precision, and has done so once, on a list of things it will not enforce across the boundary. Separately, s.5(1)(b) of the same Ordinance excludes judgments about the succession to, or administration or distribution of, an estate — in both directions.

The legislature also knew how to write a qualifying period for a cohabiting couple, nine years earlier. The Fatal Accidents Ordinance (Cap. 22) s.2(1) includes among dependants a person living with the deceased in the same household immediately before the death as husband or wife, and "(ii) had been living with the deceased in the same household for at least 2 years before that date, as the husband or wife of the deceased;".

Cap. 22 had that in 1986. Cap. 481, which commenced in 1995, has nothing like it. No provision of Cap. 481 sets a minimum period for the applicant's relationship. So the length of the relationship neither opens nor closes the Cap. 481 door. The absence is not an oversight: because Cap. 481 admits people by maintenance rather than by relationship, there is nothing for a period to attach to.

There is not even a settled Chinese term. The same concept is rendered 同居人士 in Cap. 32, 同居者 in Cap. 651 and 同居伴侶 in Cap. 155S, while Cap. 189 and Cap. 622 use 同居關係 for the relationship itself. The form closest to ordinary usage appears in a banking rule. Even Cap. 189 is not internally consistent: 同居人士 appears only in the heading to s.3B, while its operative text says 同居關係一方 throughout.

Why is it like this? The Court of Final Appeal said so itself. In [2024] HKCFA 30 the Court conducted its own survey of Hong Kong statutes recognising cohabitation and concluded that disparate statutory purposes entail differing definitions, and that legislative policy dictates who is included for the particular purposes of each Ordinance. So the absence from Cap. 481 and Cap. 73 is a policy position rather than an oversight — which is a stronger and more useful thing to know than that the statute book is inconsistent. And across that whole survey the Court never reaches property or succession between unmarried partners.

Counted against you, not claimable by you

The same government brings a partner's income and assets into the calculation when deciding what you are owed, and gives you no claim on those assets when the relationship ends.

Government material uses the word cohabit / 同居 mainly in two registers: domestic violence under Cap. 189, and Social Welfare Department means-testing forms, where "Cohabiting" is a marital status and the partner's income and assets are required. Government material generally tells a cohabiting partner nothing about property or inheritance.

The Census and Statistics Department's published web tables do not break out cohabiting couples.

The department has two boxes pointing in opposite directions. Marital status is recorded as respondents report it, regardless of whether the marriage or divorce underwent any legal registration or ceremony; marriage statistics are restricted to registered marriages only. So the same department promotes the same couple into the married column in one table and erases them into non-relative households in another. Hong Kong has no third box.

One relevant figure is not the Government's. The Duty Lawyer Service's 2025 applicant profile records 22 "Cohabitation" out of 1,312 applicants — 1.68%. What it is: one year's applicants to one legal-assistance scheme who described themselves that way. It is not a population estimate and must not be read as one.

And the cheapest fix is a will. For how a will is made, see Making a Will in Hong Kong .

What can be done now

One step in this topic costs $10, tells you the fact everything turns on, and notifies nobody. A registration costing $375 appears on the title where the owner and any buyer can see it. ⚠ How long that exposure lasts is two questions, not one: legal effect, and visibility. On effect, Cap. 128 s.17 provides that the registration of a judgment, order or lis pendens "shall cease to have effect at the end of 5 years from the date of registration", though it "may be re-registered from time to time" for 5 years at a time. Section 17 ends the registration's effect. It does not say the entry disappears from what a search returns. Under Cap. 128 s.19, removal is by an order of the court or a judge vacating it. The difference is not the money. It is the exposure — and the second is not a step that can simply be taken, as the paragraph after the table sets out.

Working the numbers

Both figures are from the Schedule to the Land Registration Fees Regulations (Cap. 128 sub. leg. B):

Do not confuse that row with the other $10 item in the same Schedule. Item 8(a) — "for each memorial or Government lease $10" — is a search of each memorial or Government lease, not the product the surrounding text describes as telling you what the title says: the amount is the same, the thing bought is not. Two neighbouring figures in the same Schedule are worth knowing: item 11(b), "historical and current particulars of a property $25", and item 13(a), "for each memorial and any instrument annexed thereto supplied $100".

But item 5 is a registration fee, not a protection that can be bought, and that belongs beside the price. A lis pendens is a pending suit in which some property is the thing being litigated. Land Registration Ordinance (Cap. 128) s.14: "The provisions of this Ordinance relating to judgments (subject to the provisions hereinafter contained) shall extend to lites pendentes." Section 16: "No lis pendens shall be registered in the Registry of the High Court, or elsewhere than in the Land Registry; and a lis pendens not registered in the said office shall not bind any purchaser or mortgagee of the estate intended to be thereby affected." And s.19, on the court's power to vacate a registration, opens: "The court or judge before whom any property sought to be bound is in litigation". So before there is anything to register there must already be proceedings on foot in which that property is the thing being litigated, and a court document issued in them. The $375 is the Land Registry's registration fee alone; it does not include the cost, the time or the costs risk of bringing proceedings.

The difference in price is $365. The difference is not $365. A land search tells you what the title says — the fact everything in this article turns on — without telling anyone that you looked. Registering a lis pendens is its exact opposite: it appears on the title, the owner and any purchaser can see it, and the Land Registry cannot remove it; only a court order can vacate it.

Both fees move, and the instrument says how. They sit in subsidiary legislation and are amended by Legal Notice — the Schedule's own closing note records L.N. 79 of 2025 as the most recent. Item 5 went from $280 on 16 July 2025 to $375 on 1 July 2026, a rise of 34% inside thirteen months. So each figure should be read with its regulations and item number. (Regulation 3 lets the Land Registrar waive a fee, but only where it would be paid out of general revenue — not this reader.)

Legal aid: the limits are in the Ordinance. Legal Aid Ordinance (Cap. 91) s.5(1): legal aid is available to a person whose financial resources do not exceed $452,320, for the civil proceedings in Part 1 of Schedule 2 other than those in Part 2. Section 5A: the Supplementary Legal Aid Scheme covers a person whose financial resources exceed $452,320 but do not exceed $2,261,600, and it runs on the closed list of case types in Part 1 of Schedule 3. Part 1 of Schedule 2 item 1 includes civil proceedings in the District Court, and Cap. 481 s.25(1) commences these applications in the District Court — so on the class-of-proceedings question the ordinary scheme reaches this subject, subject to the separate means and merits tests (Cap. 91 s.10). Both figures are amended by Legal Notice, most recently L.N. 29 of 2026. For the eligibility machinery, see Legal Aid Eligibility in Hong Kong .

Free telephone advice. The Law Society's Wills and Probate advice line carries no relationship field. Its Matrimonial Law Helpline's intake form asks for the full name of the caller's spouse, and a cohabiting partner has no field to complete.

Do cohabitation agreements work? Public sources differ. A public legal-information source says the effect of such an agreement is yet to be tested in court; a law firm's page says it has the force of contract. The effect of any particular agreement is for a solicitor to assess on its terms.

On whether the other party can charge you back for the years you lived there, see the analysis above of Cheung Lai Mui v Cheung Wai Shing [2021] HKCFA 19.

What other places did

On whether homemaking counts, the difference between Hong Kong and Australia is a list of paragraph numbers, not a difference of legal tradition.

Australia. When making a property order between de facto partners, the Family Law Act 1975 expressly directs the court to the contribution a party made to the welfare of the family in the capacity of homemaker or parent (s.90SM(4)(c)); and s.4AA(2) lists nine circumstances, among them the duration of the relationship and the ownership, use and acquisition of their property. Cap. 481 s.5(2)(b) contains materially the same homemaking sentence — and addresses it to a spouse, a former spouse and a tsip, not to a (ix) applicant; and s.5(2)(a) gives duration only to a marriage or a union of concubinage. On paper the difference between the two jurisdictions is which list of applicants the sentence is written for.

But the contrast must not be simplified, because the simple version is wrong. Australia has a two-year threshold and three other ways past it: a child of the relationship, substantial contributions plus serious injustice if no order were made, or registration of the relationship (s.90SB). Hong Kong has no threshold and no claim. Saying that Hong Kong has no qualifying period and Australia has two years states two things that are not opposites: one is a door with a lock on it, the other is a wall.

Comparing the two clocks is really about what each clock is attached to. Australia's runs two years from the end of the relationship, with leave to apply out of time where hardship would be caused (ss.44(5) and 44(6)). Hong Kong's runs six months from a grant of representation. Hong Kong has no separation claim to time-limit, so the Cap. 481 clock starts with a death. But one thing has to be said exactly: that is not the same as saying Hong Kong has no limitation statute.

The Limitation Ordinance (Cap. 347) exists, and it does not admit claims by subject matter. The provisions that reach this article's subject are ss.4, 7, 10, 17, 20, 21, 26, 36 and 40. Section 4(1)(a): six years for an action founded on simple contract or on tort. Section 4(2): "An action for an account shall not be brought in respect of any matter which arose more than 6 years before the commencement of the action." Section 7(2): twelve years for an action to recover land, with the title extinguished at the end of the period by s.17. Section 20(2): six years for a beneficiary's action to recover trust property or in respect of any breach of trust — subject to s.20(1), which disapplies any period prescribed by the Ordinance to two classes of action, of which (b) is an action "to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use." Section 36: "Nothing in this Ordinance shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise." And s.40: "This Ordinance shall not apply to any action or arbitration for which a period of limitation is prescribed by or under any other Ordinance or any imperial enactment, or to any action or arbitration to which the Crown is a party and for which, if it were between subjects, a period of limitation would be prescribed by or under any other enactment."

Section 40 is why the six months above is untouched by Cap. 347: Cap. 481 s.6 prescribes its own period.

On whether to act now or wait: waiting does not start the Cap. 481 clock, which is started by a death and a grant of representation.

Scotland. The Family Law (Scotland) Act 2006 lets a cohabitant apply for a capital sum on separation (s.28) and lets a survivor apply on the other's intestacy (s.29), capped by s.29(4) at what a spouse or civil partner would have received and requiring the application within six months of the death (s.29(6)). That figure is stated with the power that can move it: s.78 of the Trusts and Succession (Scotland) Act 2024 has enacted the substitution of twelve months for six months in s.29(6), but that section takes effect only on a day appointed by commencement regulations and had not been commenced as at 31 August 2026. Six months is the current rule, but it is a figure that a commencement decision can move. This article describes the structure and quotes none of the text.

England is useful precisely because it did not legislate. Law Com No 307 (2007) is still recorded as "Pending" on the Law Commission's own completed-projects table nineteen years later. The Ministry of Justice consultation A fairer end to relationships ran from 5 June to 14 August 2026 and covered cohabitants' rights on separation and on intestacy. The consultation has closed; that is not the same as a change on the way.

On the phrase "common law marriage" itself. Lady Hale in Gow v Grant [2012] UKSC 29 at paragraph 50 referred to "the widespread belief that cohabiting couples are already protected by something called “common law marriage” which has never existed in the south". To be precise: she is speaking of England, not Hong Kong.

And the piece of legislative history most worth keeping is a single word. The Law Reform Commission's report of May 1990 recommended a residual class covering a person maintained "wholly or partly" by the deceased. What was enacted reads "wholly or substantially", narrowed at Legislative Council Committee stage in 1995. Neither "wholly or partly" nor "cohabit" appears anywhere in Cap. 481. The door was narrowed twice, by two different bodies five years apart, and neither time was the cohabiting partner the subject of the decision.

Same-sex couples

In [2024] HKCFA 30 (26 November 2024) the Court of Final Appeal endorsed a remedial interpretation of limb (d) of "valid marriage" in Cap. 73 s.3 and Cap. 481 s.2(1), and of "husband" and "wife", so as to cover same-sex marriages contracted outside Hong Kong.

The limit travels with it. The same judgment states: "It does not have the effect of constituting such marriages valid marriages under Hong Kong law and does not confer the status of marriage upon the parties to such a same-sex marriage." The interpretation reaches a marriage contracted outside Hong Kong and nothing else. A same-sex couple who never married anywhere gains nothing from it and stands exactly where an unmarried opposite-sex couple stands: limb (ix), on the maintenance measure.

The consolidated Ordinance does not show this judgment, so Cap. 73 ss.2(1) and 3 and Cap. 481 s.2(1) must be read together with it.

One thing that can be said today, and it is genuinely useful. The Registration of Same-sex Partnerships Bill was negatived on 10 September 2025. It would have amended Caps 1, 132M, 278, 465, 465A and 486 — none of which is Cap. 73, Cap. 481, Cap. 128 or Cap. 219. Whatever its fate, it would not have moved the property or inheritance answer either way.

And one thing still on the books. The Mandatory Provident Fund Schemes Ordinance (Cap. 485) s.2(1) still reads: "spouse (配偶), in relation to a person, includes a person of the opposite sex with whom the person is cohabiting in a bona fide domestic relationship as man and wife;". The remedial interpretation above was of Cap. 73 and Cap. 481, not of Cap. 485.

The law in this area has moved recently; check for later developments. For the full chronology of the legal position of same-sex couples, see Legal Rights of Same-Sex Partners in Hong Kong .