Doan Quang Hanh v. Vu Thi Tham

HCA000007/1986

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

DIVORCE JURISDICTION

NO. 7 OF 1986

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BETWEEN

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Coram: Hon. Mayo, J. in Court

Date of Hearing: 18th May, 1987

Date of Delivery of Judgment: 22 MAY 1987

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JUDGMENT

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1. The Petitioner and the Respondent are presently refugees in camps in Hong Kong. The Petitioner came from Vietnam in 1982 and the Respondent in 1983. One of the purposes of these proceedings is to endeavour to regularize the position concerning the status of the parties. I was informed by Miss Cheng for the Respondent that the Respondent has received an offer for settlement in Finland and if all goes well she is due to depart with the two children of the marriage on the 27th of May.

2. At the commencement of the hearing before me, Miss Cheng advised me that she had received instructions from her client that it was no longer her wish to oppose these proceedings. She was also satisfied that there was now no dispute over the custody of the children nor was there any problem concerning financial support.

3. My concern in this matter is whether the Petitioner is able to prove the contents of his petition and further petition. Put very simply the Petitioner is alleging that the marriage ceremony which was performed on the 29th December 1973 was a customary marriage which did not conform with the requirements of a valid marriage according to the laws of the Democratic Republic of Vietnam. Accordingly the Petitioner prays for a decree of nullity.

4. The Petitioner goes on to state that on the 15th of April 1982, he did contract a valid marriage to Lam Quynh Quyen in Haiphong, Vietnam and he seeks a declaration that this was a valid marriage. Mr. Pritchard who was representing the Petitioner indicated to me that he was very much more concerned with obtaining the decree of nullity than he was the declaration. The further petition which was filed on the 11th of November 1986 was framed in the alternative. As the parties had by that time been separated for over five years, the Petitioner sought a dissolution of their marriage should the court hold that the original marriage was valid and subsisting.

5. I must state at the outset that this is not by any means a simple case. Mr. Pritchard outlined to me the grave difficulties he had encountered in ascertaining the true legal position in Vietnam. It was impossible to obtain copies of official records. It was also extremely difficult to obtain any satisfactory statement concerning the law in Vietnam. Mr. Pritchard did, however, manage to obtain affidavits of law from two gentlemen who had some qualifications to give opinions.

6. The first opinion was obtained from Mr. Khai Nguyen. Mr. Nguyen is an English Solicitor and is a holder of a licencie en droit and is a member of the Saigon Bar. He claims to be conversant with the laws of the Democratic Republic of Vietnam. The other expert is a Mr. Nguyen Gia Khamh who is a barrister in Paris. This second Mr. Nguyen was at one time a barrister of the Court of Appeal in Saigon and the former professor at the Buddhist University of Law in that city.  Both experts clearly stated as their opinion that for a marriage to be recognised as valid according to the laws of the Republic, it must be performed or witnessed in front of an official of the state. Mr. Nguyen Khai states that it must be before an officer acting on behalf of the district administrative committee as sub registrar and Mr. Nguyen Gia Khamh says that it must be before a municipal magistrate.   Both experts agree at least by implication that a customary marriage which does not fulfil this requirement would not be a valid marriage. I am prepared to accept the expert testimony of these gentlemen.

7. The Petitioner went into the witness box and gave evidence concerning the main issues which were referred to in the petition. He described the ceremony which took place on December the 29th, 1973. A party was held at his father's house when the Respondent and members of her family attended. Discussions took place between the Petitioner's father and the Respondent's father and drinks and snacks were served. The Petitioner was adamant that at no time, did the parties or either of them attend before any official to register the marriage.

8. I am prepared to accept the Petitioner's evidence in this connection. When this evidence is taken in conjunction with the expert opinions I have referred to I am satisfied that the Petitioner has succeeded in proving that the marriage was not a valid marriage. The Petitioner is therefore entitled to a decree nisi of nullity. I am also satisfied that the arrangements for the two children of the family are satisfactory.  To a large extent arrangements of this nature are outside the control of the parties. However, I am informed that the two boys will accompany their mother to Finland and it would seem that this is in the best interests of the children.

9. The Petitioner also made an application that there should be an abridgment of time to enable the decree absolute to be pronounced without delay. Having regard to all of the circumstances of the case and the fact that Miss Cheng supported the application I have decided that this is a proper case for time to be abridged and I order that the decree absolute should be made forthwith.

10. One consequence of this order is that prayer 2 of the petition and prayer 1 of the further petition must be dismissed as they are prayers for the dissolution of the marriage on the basis that it was a valid marriage. I have also decided that in the circumstances of the case that it would be better for me to decline making the declaration which is sought that the Petitioner's marriage to Madam Lam is valid and subsisting. In my view there is insufficient material before me to enable me to make any such declaration.

11. I advised the parties at the conclusion of the hearing on the 18th of May of the result. I also informed them that I would be giving them my reasons in writing which would follow. This I now do. Finally I order that both parties' costs are to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. Rodney Pritchard (D.L.A.) for Petitioner

Miss Pamela Cheng (Helen A. Lo & Co.) for Respondent