Yeung Yeu Kong v. Yeung Fung Lai Mui

HCMC000061/1970

IN THE SUPREME COURT OF HONG KONG

DIVORCE JURISDICTION

NO. 61 OF 1970

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Coram: Briggs J. in Court

Date of Judgment: 7th November, 1970.

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JUDGMENT

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1. The Petitioner prays of a decree of divorce on the ground of the desertion of his wife. The Petition is undefended.

2. On November 20th, 1960 the Petitioner was married to the Respondent in accordance with Chinese customary rites and ceremonies in Hong Kong. On April 26th, 1961 the same parties went through a ceremony of marriage in the Registrar's office at Kowloon in accordance with the Marriage Ordinance.

3. There are no children of the family. The parties lived together until September 1966. On the 20th day of that month the Respondent left the Petitioner and she has never returned. The Respondent did not tell the Petitioner that she was leaving him before she left. And she left without his consent. The Petitioner made efforts to get her to return to him but she refused his offers and requests. In these circumstances the Petitioner prays for a decree of divorce.

4. In his petition the Petitioner does not recite the fact of the marriage in 1960, the customary marriage. I learned of this because, in the ordinary way, the file contained a copy of the marriage certificate relating to the second ceremony in the Registry Office. This recites the previous customary marriage. It is apparent that the Registrar was acting under section 38 of the Marriage Ordinance when he issued this certificate. I will deal with that section later in this judgment.

5. The Petitioner in effect is asking the Court for a dissolution of the Registry Office ceremony. But the customary marriage is a perfectly valid marriage and would still subsist if the Registry Office ceremony were to be avoided.

6. A similar point arose in the case of Thynne v. Thynne⁽¹⁾. In that case Hodgson L.J. said (at page 305) "The term 'dissolution' is inappropriate to the concept of a ceremony. What is dissolved is the status, not the ceremony. This is the subject matter of the jurisdiction conferred upon the court by the statute, now the Matrimonial Causes Act, 1950."

7. A little later in his judgment he quotes from the judgment of Brett L.J. in Niboyet v. Niboyet⁽²⁾ as follows:-

"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 rest 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."

8. The moment we have a lawful marriage between two persons, that status arises. And it arises as of law. This means that there can only be one marriage between two parties. If a man marries a woman the status of married persons arises immediately. If they go through a second ceremony of marriage with each other that does not alter their existing status. Another way of expressing the same thing is that a married man cannot "marry" his wife a second time so as to alter or affect his or her status.

9. I am not here of course concerned with the religious aspect of marriage. In many cases owing to a change in religion a married couple will go through a second ceremony of marriage with each other. Such a second ceremony though it may be of importance from a religious point of view does not affect the legal status of the parties.

10. The petitioner and the respondent were lawfully married by Chinese custom in 1960. It was then that they assumed by law the status of married persons. It is this marriage which must be dissolved if the Petitioner is to be free to marry again. The Registry Office ceremony was not a marriage, namely, it did not confer upon the parties to it the status of husband and wife. They already had that status. It was no more than a ceremony, or a registration of the pre-existing status. And I hold this to be the case despite or rather because of the wording of Section 38 (2) of the Marriage Ordinance, which specifically leaves a previous customary marriage untouched.

11. The customary marriage is of course a potentially polygamous marriage. Jurisdiction in divorce is governed by the Matrimonial Causes Ordinance and is restricted to monogamous marriages. A monogamous marriage is defined in section 2 of the Ordinance as a marriage which, "if it took place in Hong Kong, was celebrated or contracted in accordance with the provisions of the Marriage Ordinance."

12. The marriage of 1960 was celebrated according to Chinese custom and was not therefore a marriage celebrated in accordance with the Marriage Ordinance.

13. However Section 38 of that Ordinance reads as follows:-

14. If a married couple go through a ceremony in accordance with that section when they are already married by customary rites can it be said that that ceremony is a marriage which, in the words of the Matrimonial Causes Ordinance, "is celebrated or contracted in accordance with the Marriage Ordinance?"

15. In Cheni v. Cheni⁽³⁾ lit was held that the English Courts had jurisdiction to adjudicate on a marriage which although potentially polygamous at its inception, had become monogamous at the date of the commencement of the proceedings.

16. This may well be said to have occured here. The potentially polygamous marriage of 1960 has become a monogamous marriage by virtue of the 1961 ceremony in the Registry Office. The latter ceremony does not replace the former. That this is so is evident from the clear wording of Section 38 (2) which I have quoted above. The so called marriage under the Marriage Ordinance is to be registered without prejudice to the earlier marriage.

17. I do not think that the fact that the potentially polygamous marriage has now become monogamous, [if it has,] can assist the Petitioner. It may have assisted him had this case been brought in the English Courts. In English Law the jurisdictional requirement is a monogamous marriage, but the word "monogamous" is not defined in the English Matrimonial Causes Act in the terms in which it is defined in the Hong Kong Matrimonial Causes Ordinance. To give this Court jurisdiction the marriage which it is sought to dissolve must have been contracted under the Marriage Ordinance. It is not enough that it is a monogamous marriage or that the marriage has become monogamous though originally potentially polygamous. It cannot be said that the 1960 marriage the marriage, which it is sought to dissolve, was contracted under the Marriage Ordinance. It was not.

18. This petition must be dismissed.

19. Petitioner's costs to be taxed in accordance with the Legal Aid Regulations.

Representation:

H.C. Mui (Ho & Wong) for Petitioner.

Judgment read in Court

(1) 1955 P. 272

(2) 4 P.D. 1. at p.11.

(3) 1965 P. 85.