Tsun Kok Chung Richard v Lee Chun Yu  HKCU 1596
A joint tenant of a property acquired in contemplation of marriage may lose his/her interest in the property if the marriage does not materialise.
In Tsun Kok Chung Richard v Lee Chun Yu  HKCU 1596, the Defendant decided against marrying the Plaintiff and subsequently lost her half-interest in the Property, which was purchased by the Plaintiff as their intended matrimonial home.
During late March or early April 2008, the Plaintiff, a successful solicitor in Hong Kong with his own law firm, was introduced to the Defendant, who was married with a 3-year-old son. The Plaintiff was then a 45-year-old bachelor who was looking for marriage and a family of his own. The Defendant was unhappily married and was openly drawn to the fact that the Plaintiff could provide a good education and living for her son. The relationship progressed quickly, and by late May or early June 2008, they agreed to get married.
During July 2008, the Plaintiff acquired a flat in contemplation of marriage ("Flat"). It was conveyed into the names of both the Plaintiff and Defendant as joint tenants. The Plaintiff paid the deposits, provided the full purchase price and was also solely responsible for the mortgage payments for the Flat.
During August 2008, shortly after the assignment of the Flat to the Plaintiff and the Defendant, the Defendant ended the relationship due to the Plaintiff's unfavourable attitude towards her son. As the marriage failed to materialise, the Plaintiff subsequently attempted to recover the Defendant's half-interest in the flat. The Defendant refused, arguing that her interest in the Flat was a gift.
The Plaintiff brought proceedings against the Defendant in an attempt to compel her to transfer her half-interest in the Flat on five grounds, namely:-
- fraud, it being alleged that the Defendant's interest in the Flat was procured by a fraudulent scheme devised to "extract financial benefit from the Plaintiff by her pretence that she was going to marry him";
- resulting trust, where the Plaintiff provided the entire purchase price for the Flat;
- constructive trust, it being alleged that there was a mutual understanding that the Defendant would only obtain an equitable interest in the Flat upon marriage;
- conditional gift, it being alleged that the Plaintiff's gift to the Defendant of an equitable interest in the Flat was conditional upon marriage; and
- unjust enrichment, where the Defendant's interest in the Flat was procured by fraud and/or the equitable interest was conditional upon the Defendant becoming the Plaintiff's wife.
The Court found that the Defendant had a genuine intention to marry the Plaintiff, and rejected the Plaintiff's allegations of fraud.
The Plaintiff succeeded on the basis that the equitable interest in the Flat was a conditional gift where the primary reason for the acquisition of the Flat was the intention that it should be the Plaintiff and Defendant's matrimonial home. The Plaintiff did not intend the Flat to be an outright gift, but a gift that was conditional upon the Defendant becoming his wife.
Since the marriage did not take place, the condition had not been satisfied and the Defendant was ordered to transfer her interest in the Flat to the Plaintiff.
This decision makes it clear that a gift, including an interest in property, acquired in contemplation of marriage is returnable if no marriage takes place.
Referring to the Court of Appeal judgment in Ian Hung Wai v Cheung Sau Kuen  3 HKLRD 458 and s.25 of the Law of Amendment and Reform (Consolidation) Ordinance, Cap 23: "In Hong Kong, the common law position has been modified to dispense with the condition that the right to claim back a gift or to retain it is subject to the party in question being the 'innocent' party."
Therefore, even if the Plaintiff had been the one to call off the wedding, he would have been entitled to recover the Defendant's part-interest in the Flat.