Yeung Yeu-kong v. Yeung Fung Lai-mui

CACV000045/1970

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 45 OF 1970

(On Appeal from Divorce Jurisdiction Action No.61/1970)

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Coram: Blair-Kerr, Mills-Owens & Huggins, JJ.

Date of Judgment: 8 January 1971

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JUDGMENT

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Blair-Kerr, J.:

The petitioner (husband) sought a decree for the dissolution of his marriage to the respondent on the ground that she had deserted him without cause. The petition was not defended; and it is clear from the Judge's findings of fact that he would have granted the relief sought but for the fact that, in his view, he had no jurisdiction to do so.

2. Paragraph 1 of the petition reads as follows:-

"..... on the 26th day of April 1961, the petitioner was lawfully married to ........... the respondent at the. Registrar's Office at Kowloon .......... and in the marriage certificate it was set out that the same parties (were) previously married to each other according to Chinese customary rites and ceremonies in Hongkong on 26th November 1960. On the said 26th November 1960, the petitioner welcomed the respondent to his home; they 'kowtowed' to the Heaven and Earth and thereafter cohabited together as man and wife; prior to the said customary marriage the respondent was a spinster."

In the marriage certificate issued by the Registrar of Marriages under the provisions of the Marriage Ordinance, Cap. 181, the following words appear under the heading "condition":-

"Same parties previously married to each other according to Chinese customary rites and ceremonies in Hong Kong on 20th November 1960."

3. The reasons which the learned Judge gave for declining juris-diction may be summarised as follows:-

"The parties were lawfully married according to Chinese customary rites in November 1960; it was then that they assumed by operation of law the status of married persons; the Registry Office ceremony in April 1961 did not confer upon the parties the status of husband and wife because they already had that status; there can be only one marriage between two persons; a married man can not marry his wife a second time; therefore the Registry Office ceremony was no more then a ceremony or a registration of the pre-existing status; therefore, if the appellant is to be free to marry again, it is the customary marriage which must be dissolved; jurisdiction in divorce is governed by the Matrimonial Causes Ordinance, Cap. 179, and this Ordinance gives jurisdiction to the Supreme Court to dissolve a monogamous marriage (which is defined as a marriage contracted in accordance with the Marriage Ordinance, Cap. 181); s.38 of Cap. 181 provides that a 'marriage' under that section is 'without prejudice to the earlier customary marriage'; a s.38 'marriage' is therefore no more than a ceremony; the potentially polygamous customary marriage may well have become a monogamous marriage as a result of the Registry Office ceremony but this does not assist the petitioner; it might have done so if the case had been brought in the English courts; in England 'monogamous marriage' is not defined as it is in the Matrimonial Causes Ordinance (viz. a marriage contracted under the Marriage Ordinance); to give the Hongkong courts jurisdiction, it is not enough that the marriage is monogamous or that it has become monogamous; the customary marriage, which it is sought to dissolve was not contracted under the Marriage Ordinance; therefore the court has no jurisdiction to make a decree for the dissolution of the customary marriage.

4. Clearly, the public interest was involved in this decision; and, upon this Court being informed that the petitioner had filed notice of appeal but that no counsel would be appearing to argue in support of the judgment in the court below, we directed that the papers be sent to the Attorney General as Queen's Proctor indicating that we hoped that he would see fit to instruct counsel to appear as amicus curiae in order that the court would have the benefit of hearing both sides of the question. In fact, the Proctor (Mr. Sneath) appeared personally upon the hearing of the appeal; and the court was much indebted to him for his careful submissions. He argued firstly in support of the judgment; but it was clear that, in the end, he supported counsel for the appellant (Mr. Basto).

5. On 8th January, we allowed the appeal, and we made a decree for the dissolution of the marriage to be made absolute 3 weeks from that date, indicating that we would give reasons for our decision later.

6. There is nothing in English legislation comparable to s.38 of the Marriage Ordinance Cap. 181. But, in recent years, the English courts have been called upon to deal with many cases in which persons married polygamously abroad have sought to dissolve their marital status by invoking the jurisdiction conferred upon the courts by the Matrimonial Causes Act 1965 or earlier legislation; and, in my view, there are dicta in a number of reported decisions which are of assistance in resolving the questions raised in this appeal.

7. Although the attitude of the courts in England towards polygamous, or rather potentially polygamous marriage, has changed markedly over the years, it is of interest to glance at some of the dicta in Hyde v. Hyde and Woodmansee ⁽¹⁾, a case which was decided shortly after the enactment of the Divorce and Matrimonial Causes Act 1857. The learned Judge Ordinary, having defined marriage as understood in Christendom as the voluntary union for life of one man and one woman to the exclusion of all others, is reported to have said (pp.133/4):-

"There are no doubt countries ........ in which men and women do not ........ cohabit together upon these terms. In such parts the men take to themselves several women ............ it may be .......... that the women there pass by some word or name which corresponds to our word 'wife'. But there is no magic in a name; and if the relation there existing between man and woman is not the relation which in Christendom we recognise and intend by the words 'husband' and 'wife', but another and altogether different relation, the use of a common term to express these two separate relations will not make them one and the same .................................. we regard (marriage) as a wholly different thing, a different status from Turkish or other marriages among infidel nations .................."

For our present purpose, the interesting aspect of that passage is that the Judge Ordinary regarded the status conferred by any "marriage" which did not imply the voluntary union for life of one man and one woman to the exclusion of all others, as being something necessarily different from the status conferred by monogamous marriage - which was the only type of union to which, according to English ideas in those days, the word "marriage" could be properly ascribed.

8. In Hyde ⁽¹⁾ the English court refused to recognise a polygamous union as a valid marriage for the purpose of giving the court jurisdiction to entertain a petition by one of the parties for dissolution. The Judge Ordinary said (p.138):-

"..... as between each other they are not entitled to the remedies, the adjudication, or the relief of the matrimonial law of England."

However, it is evident from more recent English decisions that the courts there have now relaxed the former rule that if the ceremony was designed to create a polygamous union, the character of that union was fixed for all time; and it is now accepted that a potentially polygamous marriage may well become monogamous, and vice versa. For example, in Ali v. Ali⁽²⁾, it was held that the acquisition of a domicile of choice in a country the law of which forbids polygamy was sufficient to convert a union which was potentially polygamous, but which was de facto monogamous, into one which was de jure monogamous. The headnote reads in part:-

"(ii) by acquiring an English domicil of choice during the continuance of his potentially polygamous marriage the husband precluded himself from conferring subsequently the status of wife on another woman by a polygamous marriage, although he had not changed his religion; accordingly the husband's acquisition of an English domicil of choice ... converted his potentially polygamous marriage into a monogamous union ...."

At p.119 Cumming-Bruce J. said:-

"The husband .... carried into effect his intention of making England his country of domicile. Thereby he subjected himself to monogamy as a rule of his personal law and, in my view, this was as effective to convert a potentially polygamous marriage to a monogamous marriage as specific legislation ...."

In referring to specific legislation, the learned judge obviously had in mind a passage from the judgment of Sir Jocelyn Simon in Cheni v. Cheni ⁽³⁾ which reads:-

"Two spouses may contract a valid polygamous union and subsequently join a monogamous sect, or go through a second ceremony in a place where mono-gamy is the law. Again, a marriage in its inception potentially polygamous though in fact monogamous may be rendered monogamous for all time by legislative action proscribing polygamy; this, according to the evidence, has in fact happened in the State of Israel in relation to the marriages of Sephardic Jews ......"

In Cheni⁽³⁾ the parties, who were Sephardic Jews domiciled in Egypt, were married in Cairo according to Jewish rites. According to both Jewish and Egyptian law, as it stood at the material time, the husband was permitted, in certain circumstances, to take a second wife if his wife had not borne him a child during the first ten years of marriage. In fact a child was born 2 years after the marriage; and by Jewish and Engyptian law the marriage thereby became irrevocably monogamous. The English court held that it had jurisdiction to entertain the wife's petition because at the date of the proceedings the marriage was mono-gamous. At p.877, Sir Jocelyn Simon said :-

"...... in these days of widespread inter-penetration of societies in different stages of development, it is not a reasonable presumption that spouses who marry polygamously will not by personal volition or act of state convert their marriages, or have them converted, into monogamous unions; ...................... the marriage has ....................... the benefit of the doubt as far as jurisdiction is concerned, so that it is sufficient that it is either monogamous in its inception or has become so by the time of the proceedings."

And at p.878, Sir Jocelyn Simon said:-

"..... the reasoning in Hyde⁽¹⁾ ................. is applicable only to a marriage that is potentially polygamous at the time of the proceedings ................ This reasoning has no relevance to a marriage of originally polygamous potentiality which has become strictly monogamous by the time of the proceedings ............... In the present case the only tie that binds the parties is a marriage from which all polygamous potential has been removed."

9. In Ohochuku v. Ohochuku⁽⁴⁾, the parties who were Christians were married in Nigeria according to local custom. The union was recognised as a valid marriage by Nigerian law, and it was potentially polygamous. The parties subsequently went through a second ceremony of marriage at a register office in London. The husband never relinguished his Nigerian domicile of origin. The wife petitioned the English court for divorce on the ground of cruelty. Wrangham J. said (p.255):-

"The only question is, which marriage is it that has to be dissolved .......... That raises the question whether this court has jurisdiction to dissolve this Nigerian marriage or only jurisdiction to dissolve the marriage celebrated in London ................. in this court ....... the Nigerian marriage must be regarded as a polygamous marriage over which this court does not exercise jurisdiction. I, therefore, pronounce a decree nisi for the dissolution not of the Nigerian marriage but of the marriage in London. I am told that in fact that will be effective by Nigerian law ............ to dissolve the Nigerian marriage; but that forms no part of my judgment."

Judges in subsequent cases have found the language of this decision somewhat difficult to understand. For example in Ali v. Ali ⁽²⁾, Cumming-Bruce J. appears to have understood Ohochuku⁽⁴⁾ as an example of conversion.

He said (p.119):-

"As by English law the parties were validly married, I find it a little difficult to see how the registrar succeeded in marrying them again. The significance of the case, however, is that it was recognised by Wrangham J. as a valid case of conversion of a potentially polygamous marriage into a monogamous marriage."

And in Cheni⁽³⁾, Sir Jocelyn Simon, when discussing Ohochuku⁽⁴⁾, said (p.878):-

".......... a polygamous marriage .......... was followed by a second ceremony at a London register office. Wrangham J. treated the latter as having converted the original and potentially polygamous marriage into a monogamous union."

In Parkasho v. Singh⁽⁵⁾ Cairns J. (reverting to Ohochuku⁽⁴⁾) said:-

"The subsequent event in that case which changed the character of the relationship of the parties was a marriage ceremony in this country. It appears from his judgment that the way in which Wrangham J. dealt with the matter was this: he took the view that the only marriage that he could consider and could dissolve was the marriage which had taken place in this country. It must, however, be recognized, because of cases such as Baindail (otherwise Lawson v. Baindail⁽⁶⁾ that even a potentially polygamous marriage must be regarded as a marriage when one is considering whether one or both of the parties to it can marry again in this country; and it may be that, on close analysis of the circumstances existing in Ohochuku v. Ohochuku⁽⁴⁾, the right view would be that an originally potentially polygamous marriage had been converted into a monogamous marriage by a subsequent marriage ceremony in this country."

That may be so; but it is not what Wrangham J. said. He appeared to regard the parties in Ohochuku⁽⁴⁾ as having been validly married twice; and that he could dissolve one "marriage" without interfering in any way with the other.

10. I confess that I am quite unable to follow the reasoning of the learned judge in Ohochuku⁽⁴⁾. A decree of divorce does not dissolve a ceremony. As Hodgson L.J. said in Thynne v. Thynne⁽⁷⁾ (p.305):-

"The term 'dissolution' is inappropriate to the concept of a ceremony. What is dissolved is the status, not the ceremony. That is the subject-matter of the jurisdiction conferred upon the court by ....... the Matrimonial Causes Act ......"

And in Merker v. Merker⁽⁸⁾ Sir Jocelyn Simon said (p.937):-

"....... a decree of divorce does not operate on any particular ceremony, but on the status of the parties. It is their married status, not the ceremony which gave rise to it, which is dissolved. The same principle, in my view, applies to a decree of nullity ................... It declares that the ceremony did not give rise to the status of marriage in the parties to it. Indeed it is because it operates directly on the status of the subject-matter and not on the contract giving rise to the status that it constitutes a judgment in rem."

11. But this does not mean that if the first marriage was polygamous, or rather potentially polygamous, and the second ceremony was one designed to create monogamous marital status, the parties, somehow, have two statuses existing side by side. How can it be said that two marriages involving the same parties may exist side by side at any given time? I do not think that this is possible. At any given moment, there is only one subsisting marriage between the parties to it. What happens, then, to the status conferred by the earlier marriage?

12. It seems to me that the only rational way to look at this question is this: The status of a man and woman married monogamously does not change if they go through a second monogamous marriage ceremony. To that extent, I agree with the learned judge in the court below. But status is a generic term; the status of a person married monogamously is different from the status of a person married polygamously, although, of course, both persons have married status. When parties to a potentially polygamous union are permitted at a later date to marry monogamously, it seems to me that the polygamous union is superceded by the monogamous union. The incidents of the polygamous union are (so far as this is possible) converted and absorbed into the monogamous union. The parties now have monogamous status; and the monogamous union is then the only subsisting marriage between the parties.

13. In my view, the decree pronounced by Wrangham J. in Ohochuku⁽⁴⁾ did not merely "dissolve the marriage celebrated in London". The decree had the effect of dissolving the marital status of the parties. Putting it another way: the marital status conferred upon the parties by law as a result of both the Nigerian ceremony and the London ceremony was dissolved.

14. Turning now to the position in Hong Kong, the Marriage Ordinance No.4 of 1875 provided for the registration of marriages celebrated in licensed places of worship and before the Registrar. Section 29 (now s.28 of Cap.181) provided that

"all marriages celebrated under this Ordinance shall be good and valid in law to all intents and purposes";

and s.37 declared that the Ordinance applied only to marriages where one or both of the parties professed the Christian religion.

15. Section 37 was repealed by Ordinance no.20 of 1910; and the following new provisions were substituted therefor:-

These sections were repealed by the Marriage Amendment Ordinance No. 34 of 1932, which introduced, in substitution, two new provisions. The new s.37 (now s.38 of Cap.181) read as follows:-

And s.38 (now s.40 of Cap.181) read:-

16. Apart from such jurisdiction as had been conferred previously by the Indian and Colonial Divorce Jurisdiction Acts, the Supreme Court did not have jurisdiction in divorce prior to the enactment of the Divorce Ordinance No.35 of 1932 which was enacted on the same day as Ord.34 of 1932. Section 4 of the Divorce Ordinance read in part:-

17. The jurisdiction of the Supreme Court in divorce is now governed by s.9 of Cap.179, which reads:-

and a monogamous marriage is defined in s.2 as being a marriage celebrated or contracted in accordance with the provisions of the Marriage Ordinance.

18. Before contracting a marriage under s.38(2) of the Ordinance, the parties thereto are required by the proviso to s.21(1) to sign the following written declaration:-

"I,A.B. do hereby declare that I fully understand that by publicly taking C.D. as my wife (or husband as the case may be) ............. I shall become legally married and bound to the said C.D. although no other rite of a civil or religious nature shall take place, and I also understand that the effect of my publicly taking the said C.D. as my wife (or husband as the case may be) as aforesaid is to create between us a marriage which cannot be dissolved during our joint lives except by a valid judgment of divorce, and that if cither of us, during the lifetime of the other, shall contract another marriage while this one remains undissolved, he or she will be guilty of bigam ....................................................."

The words "contract another marriage" in the latter part of this declaration clearly refer to a marriage ceremony; and in his endeavour to support the judgment in the court below, Mr. Sneath submitted that the words "contract with each other a marriage" in s.38(2) were more properly attributable to the concept of a celebration than to a legal act conferring status. Mr. Sneath submitted that contracting a marriage under s.38(2) did not mean that the parties had a new status conferred on them, because they already had married status conferred upon them by their customary marriage; that this section merely conferred the right to participate in a statutory celebration which conferred certain benefits upon the parties to it; that they obtained, firstly, the benefit of registration of their married status under s.23; secondly, that s.24 of the Ordinance gave them a ready form of admissible evidence of their married status; and, thiredly, that s.28 constituted a vital protection against any challenge which might be raised against their customary marriage; that, having regard to the serious doubts which exist as to the essentials of a valid customary marriage, the value of these three benefits to the parties to a customary marriage must be very great; and that this is what the legislature intended by enacting that the "marriage" under s.38(2) would not be deemed "to prejudice the previous customary marriage".

19. I agree that the expression "contract with each other a marriage under this Ordinance" refers to the marriage ceremony; but it is a ceremony which confers monogamous marital status. Not only must the husband not have living "any other undivorced spouse" at the time when he goes through this monogamous marriage ceremony, but henceforth during the subsistence of the monogamous union he forfeits his right to take secondary wives - a right which he undoubtedly had during the subsistence of his customary marriage. I agree, of course, that the last sentence of s 38(2) could have been phrased more clearly; but I cannot believe that the intention was to preserve the customary marriage for the purpose of conferring upon the parties to it certain benefits such as registration and a readily available form of admissible evidence. In my view, when parties invoke the provisions of the Marriage Ordinance, to that extent they change their personal law. The monogamous marriage supercedes the customary marriage. Such marital status as was conferred by customary law is (so far as this is possible) absorbed in the new monogamous status. Only one marriage now subsists. In the words of Sir Jocelyn Simon, "the only tie that binds the parties is a marriage from which all polygamous potential has been removed"; and this monogamous union may, of course, be dissolved by judicial intervention under the Matrimonial Causes Ordinance.

20. It follows that when a decree for the dissolution of a monogamous marriage has been made absolute under the provisions of the Matrimonial Causes Ordinance, the entire marital status of the parties is thereby dissolved. There is no necessity for any further extra-judicial acts of dissolution under customary law.

21. Since drafting the above, I have read the judgment of my Brother, Mr. Justice Mills-Owens. I agree entirely with what he has said in regard to the last sentence of s.38(2) of Cap.181 and I do not think that there is anything that I could usefully add.

Representation:

(1) [1866] L.R. 1P. and D. p.130

(2) [1966] 1 A.E.R. p.664

(3) [1962] 3 A.E.R. p.873

(4) [1960] 1 A.E.R. p.253

(5) [1967] 1 A.E.R. p.741

(6) [1946] 1 A.E.R. p.342

(7) [1955] P. p.272

(8) [1962] 3 A.E.R. p.928

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 45 OF 1970

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Coram: Full Court. (lair-Kerr, Mills-Owens & Huggins JJ.)

Date of Judgment: 8 January 1971

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JUDGMENT

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Mills-Owens J.: As a matter of construction of the Marriage Ordinance I think it is clear that the effect of a marriage contracted pursuant to subsection (2) of section 38 thereof is to invest the parties to such marriage with a new status, namely that of being thenceforward partners in a monogamous union. It is the obvious purpose of the section that parties already husband and wife by virtue of a customary marriage may marry in accordance with the provisions of the Ordinance. A marriage in accordance with the provisions of the Ordinance is expressly declared, by section 40, to be a monogamous union. By reason of the words "and provided they have not living any other undivorced spouse", appearing in subsection (2) of section 38, parties to a customary marriage cannot contract a marriage under the Ordinance unless their existing customary union is what one might term de facto monogamous. The marriage ceremony prescribed by section 21 emphasises the monogamous nature of a marriage under the Ordinance, and under section 28 a marriage celebrated under the Ordinance is declared to be good and valid in law to all intents and purposes. It must follow that subsection (2) of section 38 contemplates not merely something in the nature of registration of the parties' previous customary marriage, potentially polygamous, but a true marriage monogamous in its nature.

2. As it appears to me, the provisions of section 38, enabling parties to a customary union to marry according to the form and purpose of the. Ordinance, are, clearly, provisions designed to benefit persons who are already parties to a customary union; to confer a benefit upon them, if, that is to say, they 'desire' (as subsection (1) of the section puts it) to have substituted a monogamous union, recognisable not only in Hong Kong but elsewhere as such, and more easily capable of proof.

3. The only difficulty which arises is the effect of the concluding sentence of subsection (2) of the section, to the effect - "In such cases the marriage under this Ordinance shall not be deemed to prejudice the previous customary marriage". This provision is capable of being read, and in my view should be read, as a provision designed to avoid any implication which might possibly be drawn that the previous customary marriage was of no legal effect during its subsistence, so as to preserve the incidents arising therefrom - in particular to ensure that the customary marriage is not superseded ab initio but remains of effect with respect to the period prior to the marriage under the Ordinance, and, necessarily, with all the consequences that flowed from that previous union, according to its nature, and with respect not only to the parties but to any offspring thereof. I would, therefore, construe the provisions of the last sentence of subsection (2) of the section as intended to preserve the prior operation in law of the customary marriage, with its consequential effects as I have indicated.

4. Accordingly I would hold that, subject to such preservation, the customary marriage became superseded by the marriage celebrated under the Ordinance, so that the parties in the present case were, at the date of the petition, parties to a monogamous union - and to such union only - capable of dissolution under the Matrimonial. Clauses Ordinance; the effect of a decree of dissolution thereunder being to dissolve their marital status, equally as if they had not previously been married according to the customary form. For these reasons I agreed that the appeal should be allowed and a decree of dissolution pronounced, I associate myself with the expressions of appreciation of the assistance to the Court given by the Queen's Proctor.

Representation:

Basto, Q.C., & H.C. Miu (Ho & Wong) for appellant.

Sneath, Queen's Proctor as amicus curiae.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 45 OF 1970

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Coram: Blair-Kerr, Mills-Owens & Huggins, JJ.

Date of Judgment: 8 January 1971

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JUDGMENT

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Huggins J.: I agree with the reasons expressed by my Lords but as we have differed from the trial judge and as a matter of some public importance has been canvassed before us I will endeavour to plot the course which I have followed in reaching my conclusion. Before doing so, however, I would like to associate myself with what Mr. Justice Blair-Kerr has said concerning the invaluable assistance we have received from the able arguments of the Queen's Proctor.

2. The sole question necessary for the determination of the appeal was whether the trial judge had jurisdiction to pronounce a decree of divorce. That question gave me no difficulty. However, it was obviously of some importance both to the appellant and to the public to know what would be the effect of the decree of divorce which we thought fit to pronounce and it was because we desired to consider this aspect of the matter that we decided to give our reasons later.

3. If the learned judge was doubtful about the jurisdiction to grant a petition it was, of course, proper for him to raise the point of his own motion: indeed, he was bound to do so even though the point was not raised by a party to the suit. What I do find a little alarming, however, is that he should have proceeded to reach a decision which must have far reaching consequences not only for the petitioner but also for many other married persons without hearing full argument. Moreover, he decided the legal issue without hearing proper evidence to satisfy himself that the legal issue required decision. What happened was that the petitioner sought to prove the Registry marriage by production of a marriage certificate. Section 24 of the Marriage Ordinance provides that such a certificate "shall be admissible as evidence of the marriage to which the same relates", but it is evidence of nothing more. In the certificate the judge noticed a recital of the fact that the same parties had previously been married to each other according to Chinese customary rites and ceremonies. (The fact of the customary marriage had in fact been pleaded in the petition). He made no enquiry as to the truth of this recital, a step which was obviously essential before he could properly make a finding of fact. It seems to me that, having doubts about his jurisdiction, he ought to have called for the assistance of the Queen's Proctor in order that both the facts and the law might be fully investiated. Had it not been left for this Court to call for the assistance of the Queen's Proctor perhaps the petitioner would have been saved the necessity of bringing the matter on appeal.

4. The reasoning of the learned judge may be summarised as follows:

5. No one quarrels with the first two stages of this reasoning. The fallacy lies in stages (3) and (4). The learned judge based himself upon a definition of "marriage" expressed by Lord Justice Brett in Niboyet v. Niboyet (1878) 4 P.D.1, 11:

"Marriage is the fulfilment of a contract satisfied by the solemnization of the marriage, but marriage directly it exists creates by law a relation between the parties and what is called a status of each. The status of an individual, used as a legal term, means the legal position of the individual in or with regard to the pest of a community.That relation between the parties, and that status of each of them with regard to the community, which are constituted upon marriage are not imposed or defined by contract or agreement but by law."

He then treated the "relation between the parties and what is called (the) status of each" as being something which, like the law of the Medes and Persians, changeth not and he was therefore forced to the conclusion that the Registry marriage was not a marriage at all. But that was to fly in the face of the Legislature, which has ordained that the parties to a customary marriage may contract with each other "a marriage under this Ordinance": s.38 (2) of the Marriage Ordinance. We are not to suppose that the Legislature did not mean what it said, nor are we to suppose that the marriage so contracted was intended to be a creature of no substance. The difficulty which the judge found was more apparent than real and only arose by reason of the assumption that the status of husband and wife was something which allowed of no degrees and of no different incidents. Mr. Justice Blair-Kerr has referred to Hyde v. Hyde (1866) L.R.1 P. & D. 130 and pointed out that there is no universally accepted concept of the marriage status. It was that very fact which lay behind the enactment of s.38. It is manifest that the Legislature intended by this section to acknowledge the existence of a basic status of husband and wife but at the same time to recognise that, since the incidents attaching to that status were not uniform in every case, a person might wish to submit himself to other incidents than those previously-attaching to his basic status. By contracting a marriage under the Ordinance a party to a customary marriage was given certain benefits in return for taking upon himself what some might regard as a more burdensome incident, namely monogamy.

6. Once it was established that the Registry marriage was a "marriage" and also a "marriage contracted in accordance with the provisions of the Marriage Ordinance" it became a marriage in respect of which the Matrimonial Causes Ordinance gave jurisdiction to pronounce a decree.

7. The second point canvassed before us can, perhaps, be said to have arisen from stage (6) of the learned judge's reasoning, his inference that the petitioner was seeking dissolution of the customary marriage. That was not what the petitioner asked for and was Hot what he sought: indeed, his contention is that the customary marriage does not require separate dissolution. This was a matter upon which the learned judge expressed no opinion because of his conclusion that the Registry marriage was not a marriage at all. He held that the customary marriage remained in full force and implied that it could be dissolved only by a customary divorce. As it is the husband who is seeking a dissolution that might not give rise to insuperable difficulties, but if it had been the wife who was seeking dissolution it would have been of vital importance that the Court should have jurisdiction not only to grant a decree of divorce but that that decree should sever the bond first forged by the customary marriage.

8. I agree that a decree of divorce does not dissolve a ceremony: see the passages cited by Mr. Justice Blair-Kerr from the judgment of Lord Justice Hodson in Thynne v. Thynne 1955 P. 272 and Sir Jocelyn Simon (as he then was) in Merker v. Merker 1963 P. 283. It is the relationship between the parties which is dissolved and therefore it is necessary to ascertain precisely what is the relationship between a man and a woman who, having been married according to Chinese customary rites, contract a marriage in pursuance of the authority given by s.38. That section says in plain terms that the Registry marriage "shall not be deemed to prejudice the previous customary marriage". How the Registry marriage could be "deemed" so to prejudice the customary marriage unless some statute said it should I do not understand and I think what the draftsman must have meant to say was that the Registry marriage "shall be deemed not to prejudice" the customary marriage. If no prejudice is to be done to the customary marriage the relationship created by it must not be altered. That necessitates that the relationship of husband and wife with the incident of potential polygamy shall remain in existence despite the contracting of a Registry marriage. On this construction of the section the effect is that the old relationship continues, although, so long as the Registry marriage subsists, the old relationship must remain (to use the phrase I used in argument) in a state of suspended animation since the incident of potential polygamy is inconsistent with the incident of monogamy attaching to the Registry marriage. However, dissolution of the Registry marriage might restore the old relationship to life. This admittedly novel concept appears to find some support in the judgnent of Mr. Justice Wrangham in Ohochuku v. Ohochuku I960 1 All E.R. 253. With all respect to those who have read his judgment differently it seems to me that Mr. Justice Wrangham quite clearly had in mind the possibility that two valid marriages could subsist at one and the same time, although I share the difficulty of Mr. Justice Cumming-Bruce in Ali v. Ali 1966 1 All E.R. 664 in understanding how, in the circumstances of the Ohochuku case, a second marriage could have been validly celebrated. No such difficulty arises in the present case because the Legislature has provided for a valid second marriage. In my view, however, the argument addressed to us to the effect that the old relationship must continue because otherwise, for example, a decree of nullity based upon the consanguinity of the parties at the time of a Registry marriage would annul the customary marriage as well as the Registry marriage takes the matter no further: if the Registry marriage was null and void the old relationship would not revive - it would never have gone into suspended animation. The argu-ment assumend that the customary law might allow a marriage which would be void if it were a marriage under the Ordinance and I am prepared to assume that that is so. Whether the court would grant a decree of nullity in respect of a Registry marriage celebrated under the authority of s.38 on a ground which did not make that marriage void ipso jure is open to doubt.

9. Although I confess that the logic of this strict construction of s.38 appealed to me at first sight, I do not think it can prevail. Infelicitous as the language of sub-section (2) may be I do not think it was the intention to introduce the entirely new concept of marriage relationships which I have described: I think that all that was intended was that the Registry marriage should be without prejudice to anything previously done under the customary marriage and, in particular, to the begetting of children. Our law, for better or for worse, regards the estate of matrimony to which monogamy is incident as a more honourable and therefore a greater estate than the estate of matrimony to which potential polygamy is incident. If, therefore, parties who have contracted a potentially polygamous marriage subsequently (by virtue of the authority of s.38) contract a monogamous marriage the lesser estate merges in the greater. This is the phenomenon which Mr. Justice Cairns had in mind when in Parkasho v. Singh 1967 1 All E.R. 737 he said of Ohochuku v. Ohochuku at p. 741:

"... it may be that ...... the right view would be that an originally potentially polygamous marriage had been converted into a monogamous marriage by a subsequent marriage ceremony in this country."

10. The result is, in my view, that the petitioner and the respondent are no longer man and wife together.

Representation:

de Basts Q.C. & H.C. Miu (Ho & Wong) assigned for Appellant.

Sneath Q.C. & Jones for Queen Proctor.

Respondent not appearing.