Chong Chui Yuk-ching v. Chong Pui-cheong

DCCJ009036/1982

HEADNOTES

Family law - Marriage Reform Ordinance Cap. 178 Sections 2 and 9 - customary marriages and modern marriages - essential requisites - effect of later registered marriage

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

HOLDEN AT VICTORIA

ACTION NO. 9036 OF 1982

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Coram: H.H. Judge Roy.

Date: 8th March, 1983

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JUDGMENT

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1. This action first came before me on 23rd November 1982. It claimed on behalf of the wife an injunction that the defendant be restrained from molesting or harassing the plaintiff and her two sons, a declaration that the marriage between the plaintiff and. defendant is valid and subsisting and custody of the said two sons to the Plaintiff. The hearing continued on 29th November 1982 and at the conclusion thereof having stated my reasons, I gave judgment for the plaintiff, granting custody and the injunction to the plaintiff, preserving reasonable access to the defendant and reserving only for later decision in writing the question of whether or not a valid marriage between the parties subsists. I had hoped that a decision on this remaining issue might not prove to be necessary in view of my other findings, but I have since been requested on behalf of the plaintiff to make a declaration as to validity so that she may clarify her marital status.

2. The District Court has jurisdiction to hear and determine applications of this nature under Section 9(3) of the Marriage Reform Ordinance 1970 Cap. 178. In the present case the application is made by the wife and the husband disputes the existence of the marriage. In such circumstances under the subsection mentioned above the Court is empowered to make a declaration that a customary marriage or a validated marriage as the case may be, subsists between the parties. Of necessity this involves an examination of the distinction between customary marriages and modern marriages and of the peculiar characteristics of each. I have been assisted in this by that well-known publication of Dr. Vermier Y. Chiu Marriage Laws and Customs of China, by an article by Leonard Pegg in Volume 2 Hong Kong Law Journal 1975 at page 4 and by the Strickland Report on Chinese Law and Custom in Hong Kong published in February 1953.

3. The matter is complicated in the present case by the fact that the husband on 13th August 1975 went through a subsequent ceremony of marriage solemnized in the Registrar's office at Aberdeen with one TAM Sau-lan with whom he still resides as man and wife. There have been three daughters of this marriage. It is argued on behalf of the husband that the certificate of this marriage, which was produced to the Court by consent, is evidence that no valid marriage with the plaintiff subsisted . in the first place, since before a marriage is celebrated in Hong Kong there must be an investigation as to the status of the parties. I do not accept this submission. The Certificate of Marriage is evidence that that marriage was duly solemnised and registered and that the marriage is good and valid to all intents and purposes, but no more. There is nothing in either the Marriage Ordinance or the Marriage Reform Ordinance which would oblige the Registrar to carry out an investigation as to the status of the parties. It is true that before the Registrar issues any certificate one of the parties to an intended marriage must appear personally before him and make an affidavit that he or she believes that there is not any impediment of kindred or alliance or any other lawful hindrance to the marriage (Section 12 Marriage Ordinance). Apart from this however, the giving of notice of intended marriage and the production of consents for persons under 21 years of age, there is no requirement for the Registrar to investigate the status of the parties to the proposed marriage.

4. If a valid form of marriage exists between the parties it may be either a Chinese customary marriage or a Chinese modern marriage. In fact I have been invited in this case to make a finding that either one subsists. A customary marriage is defined under the Ordinance (Section 7) as one celebrated in Hong Kong before the appointed day (fixed by Gazette Notice as 7th October 1971) in accordance with Chinese law and custom i.e. traditional Chinese customs accepted at the time of marriage as appropriate for the celebration of marriage either (a) in the part of Hong. Kong where the marriage took place, or (b) in the place recognized by the family of either party to the marriage as their family place of origin. A modern marriage on the other hand means according to the Ordinance a marriage celebrated in Hong Kong before 7th October 1971 by open ceremony as a modern marriage and in the presence of two or more witnesses. As has been observed by others before me this definition in so far as it says that a modern marriage is a marriage celebrated as a modern marriage is singularly unhelpful. However the concept is loosely based on Article 982 of the Chinese Civil Code. An open ceremony has been defined as "a ceremony so held that it is known and can be seen by all those who are not particularly invited to participate" (Yuan No. 859 of 1933 quoted in Chiu at P.128). In the case before me evidence of the marriage ceremony was given only by the wife and by her sister who admitted to being 15 years of age at the time. I regard the evidence as deficient in two respects so far as it purports to establish conclusive proof of a modern marriage. First there is insufficient evidence that the ceremony was "open" within the meaning of that term I have already referred to and secondly it is inadequate as to the presence of competent witnesses to the ceremony.

5. On the other hand there was plenty of evidence which could be taken into account in order to support a finding that a Chinese customary marriage took place. No documentary evidence of any sort was forthcoming. But the wife said she and the defendant were married on 28th September 1971 when she was 20 and the defendant 21. She said the wedding was precede by a pre-nuptial ceremony on 18th May 1971 when the defendant's younger brother, his mother and a match-maker attended her home bringing with them $3,000 in cash and 200 catties of wedding. cakes as wedding gifts from the defendant and his family. On the wedding day the defendant arrived with several best man and a go-between in a specially decorated motor-car. Thereafter the bride in a traditional bride's dress was conveyed to the defendant's parents' home. The bride was assisted by her two younger sisters. There she served tea to his parents. After this she and the defendant kow-towed to heaven and earth. In front of them were roast pork, fruit, wine, joss sticks and candles. 'That evening a wedding feast of 13 or 14 tables was held at the Yuen Hing Shing Restaurant, Hong Kong. After the feast the plaintiff and the defendant returned to the home of the defendant's parents at Sassoon Road, Pok Fu Lam, Hong Kong. After three days she and the defendant returned to visit her maiden home according to custom. The defendant and his brothers brought with. them on that occasion a roast pig and some cakes.

6. In cross-examination the plaintiff said she was illiterate but found out from her co-workers that after people marry in Hong Kong they could go to a Government office to register their marriage. At a later stage she wanted to formally register their marriage but the defendant by then had married his present wife and refused to register his marriage with the plaintiff. She said that there was a matchmaker at the wedding ceremony who was hired by the defendant's family to complete the ceremony but that person had since passed away. She alleged that wedding photographs were taken on the day of the wedding but these had subsequently been destroyed by defendant.

7. The Plaintiff's younger sister who was present and witnessed the wedding ceremony and banquet gave corroborative evidence. She briefly described the ceremony and the banquet and her role which was that of supporting and assisting her older sister. The demeanour of both the plaintiff and her sister I judged to be good. I felt both, though uneducated, gave their evidence in a forthright, straightforward and truthful manner. The defendant's evidence on the other hand seemed to me to be self-serving and unreliable.

8. An affirmation in writing was put in by consent on behalf of the plaintiff by an expert in Chinese law and customs, Mr. Hung Chow Miu, He confirmed that a marriage of the sort described by the plaintiff in this case according to Chinese law and custom would amount to a valid Chinese customary marriage.

9. It is clear that there is no authoritative and clear definition of just what a Chinese customary marriage is (see Pegg's Article P.17). In this case however, I accept the evidence for the plaintiff that there was a marriage ceremony which was celebrated according to the traditional rites and customs of the parties' families and which was accepted by them and by the parties as amounting to a Chinese customary marriage in the Pokfulam - Aberdeen area of Hong Kong. I find that subsequent to the ceremony itself the parties lived together as man and wife and two sons were born of their union. The evidence of Mr. Miu satisfies me that a ceremony such as that described by the plaintiff is capable of creating a valid marriage under Chinese customary law. The marriage took place before October 7th 1971 and under Section 7(3) of the Marriage Reform Ordinance such a customary marriage of persons who are subject to Chinese law and custom is declared to be a valid marriage. I conclude therefore on the evidence that a valid customary Chinese marriage was celebrated between the parties on 28th September 1971.

10. It may be that such a finding on my part will have unfortunate consequences as far as the defendant is concerned. It may possibly result in a conclusion that defendant has committed an offence under the Marriage Ordinance or it may mean that the subsequent marriage contracted by the husband on 13th August 1975 is regarded as bigamous. These questions are not for me to decide. I do not however see the existence of a subsequent marriage as being any bar to the finding I now make. Likewise I do not consider that I should be inhibited in any way from making the declaration I now make on the basis of the evidence before me by the fact of that later marriage or by any consequences which may flow from my findings. Accordingly I make a declaration that a valid customary marriage subsists between the plaintiff and the defendant.