Hong Kong Ordinances

MATRIMONIAL CAUSES ORDINANCE - SECT 20

Grounds for decree of nullity

(1) A marriage which takes place after 30 June 1972 shall be void on any of
the following grounds only-

   (a)  that it is not a valid marriage under section 27 of the
        Marriage Ordinance ( Cap 181), that is to say-

        (i)    the parties to the marriage are within the prohibited degrees
               of kindred or affinity; or

        (ii)   either party is under the age of 16; or

        (iii)  the parties have intermarried in disregard of certain
               requirements as to the formation of marriage;

   (b)  that the marriage is otherwise invalid by the law of Hong Kong;

   (c)  that at the time of the marriage either party was already lawfully
        married;

   (d)  that the parties are not respectively male and female.

(2) A marriage which takes place after 30 June 1972 shall, subject to
subsection (3), be voidable on any of the following grounds only-

   (a)  that the marriage has not been consummated owing to the incapacity of
        either party to consummate it;

   (b)  that the marriage has not been consummated owing to the wilful refusal
        of the respondent to consummate it;

   (c)  that either party to the marriage did not validly consent to it,
        whether in consequence of duress, mistake, unsoundness of mind or
        otherwise;

   (d)  that at the time of the marriage either party to the marriage, though
        capable of giving a valid consent, was suffering, whether continuously
        or intermittently, from mental disorder within the meaning of the
        Mental Health Ordinance ( Cap 136) of such a kind or to such extent as
        to be unfitted for marriage;

   (e)  that at the time of the marriage the respondent was suffering from
        venereal disease in a communicable form;

   (f)  that at the time of the marriage the respondent was pregnant by some
        person other than the petitioner.

(3) The court shall not, in proceedings instituted after 30 June 1972, grant a
decree of nullity on the ground that a marriage is voidable

(whether the marriage took place before or after 1 July 1972) if the
respondent satisfies the court-

   (a)  that the petitioner, with knowledge that it was open to him to have
        the marriage avoided, so conducted himself in relation to the
        respondent as to lead the respondent reasonably to believe that he
        would not seek to do so; and

   (b)  that it would be unjust to the respondent to grant the decree.

(4) Without prejudice to subsection (3), the court shall not grant a decree of
nullity on the grounds mentioned in subsection (2)(c), (d),

   (e)  or (f) unless the court is satisfied that the proceedings were
        instituted within 3 years from the date of the marriage.

(5) Without prejudice to subsections (3) and (4), the court shall not grant a
decree of nullity on the grounds mentioned in subsection

(2)(e) or (f) unless the court is satisfied that the petitioner was at the
time of the marriage ignorant of the facts alleged.

(6) Subsection (3) replaces, in relation to any decree to which it applies,
any rule of law whereby a decree may be refused by reason of approbation,
ratification or lack of sincerity on the part of the petitioner or on similar
grounds. (Replaced 33 of 1972 s. 12) [cf. 1971 c. 44 ss. 1, 2, 3(1)-(4) U.K.]

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____ Note: The repealed section 20, which is reproduced below, shall continue
to have effect in relation to marriages which took place before 1 July 1972
and the new section 20 shall have effect only in relation to marriages which
took place after 30 June 1972-(33 of 1972 s. 26(2))-

20. Grounds for decree of nullity

(1) A marriage shall be void on any of the following grounds-

   (a)  that the parties to the marriage are within the prohibited degrees of
        consanguinity or affinity as provided in the Marriage Ordinance (
        Cap 181);

   (b)  that the former husband or wife of either party to the marriage was
        living at the time of the marriage and the marriage with such former
        husband or wife was then in force;

   (c)  that the consent of either party to the marriage was obtained by force
        or fraud in any case in which the marriage might be annulled on this
        ground by the law of England;

   (d)  that the marriage is invalid by the law of the Colony.

(2) A marriage shall, subject to subsection (3), be voidable on any of the
following grounds-

   (a)  that the marriage has not been consummated owing to the wilful refusal
        of the respondent to consummate it; or

   (b)  that at the time of the marriage either party to the marriage-

        (i)    was of unsound mind, or

        (ii)   was a mentally disordered person within the meaning of the
               Mental Health Ordinance ( Cap 136) of such a kind or to such an
               extent as to be unfitted for marriage and the procreation of
               children, or

        (iii)  was subject to recurrent attacks of insanity or epilepsy; or

   (c)  that the respondent was at the time of the marriage suffering from
        venereal disease in a communicable form; or

   (d)  that the respondent was at the time of the marriage pregnant by some
        person other than the petitioner; or

   (e)  that at the time of the marriage either party to the marriage was
        impotent or incapable of consummating the marriage. [cf. 1965 c. 72 s.
        9(1) U.K.]

(3) The court shall not grant a decree of nullity in a case falling within
paragraph (b), (c) or (d) of subsection (2) unless it is satisfied that-

   (a)  the petitioner was at the time of the marriage ignorant of the facts
        alleged; and

   (b)  proceedings were instituted within a year from the date of the
        marriage; and

   (c)  marital intercourse with the consent of the petitioner has not taken
        place since the petitioner discovered the existence of the grounds for
        a decree. [cf. 1965 c. 72 s. 9(2) U.K.]

(4) Nothing in this section shall be construed as validating a marriage which
is by law void but with respect to which a decree of nullity has not been
granted. [cf. 1965 c. 72 s. 9(3) U.K.]