Fung Sing Wai v Chow Chiu Wan
Court of Appeal
Civil Appeal No. 245 of 2015
Yuen, Kwan and Poon JJA
17 March 2017

Marriage – validity – alleged marriage ceremony during dinner in PRC in 1949 – period between abrogation of Civil Code and before PRC Marriage Law came into effect in 1950 – whether formal validity and essential validity of marriage established

In 1947, X, the deceased, married M, the mother of P, D2, D3 and D4. It was D1’s case that she also entered into a marriage with X in December 1949. At that time, the Civil Code of the Republic of China of 1931 (the “Civil Code”) had been abrogated by the PRC and the PRC Marriage Law was not implemented until May 1950. X and D1 also had four children, D5–8. M died in 1988 and X died intestate in 2008. P sought revocation of the grant of Letters of Administration which had been granted to D1 and for the grant to himself with consequential orders, on the ground that D1 had failed to establish she was X’s wife. P challenged whether a marriage ceremony had taken place between X and D1, as D1 alleged, at a dinner in Guangzhou since X’s siblings were absent and there was no evidence that X and D1 had entered into a marital union during the dinner. If there was a valid marriage between X and D1, then she would be the only surviving wife and entitled to a share of his estate. The Judge found that D1 had failed to prove the formal validity of the alleged marriage and the alleged marriage would have also failed the test of essential validity. D1 appealed.

Held, dismissing the appeal, that:

  • On the common ground that before the promulgation of the PRC Marriage Law in May 1950, the second marriage was only voidable, it followed that it was not void ab initio for want of capacity. Before the abrogation of the Civil Code, an earlier marriage would not have affected the capacity of a person domiciled in China to enter into a second marriage, in contravention of Art. 985 of the Civil Code.
  • The present case was not a situation where there was no evidence of foreign law so that the court would presume it was the same as Hong Kong law; rather, there was expert evidence on foreign law to the effect that there was a “legal vacuum”, in that the codified law in the form of the Civil Code had been abrogated and the PRC Marriage Law had not yet been promulgated. The expert evidence that the new PRC Government had taken a pragmatic non-interventionist approach to such unions in this period merely indicated that X had the capacity to enter into the alleged marriage in December 1949, which was a matter of essential validity.
  • D1 also had to prove the formal validity of the alleged marriage. On her case, she had to prove that the celebrations accorded with the formalities that were required (or at least were recognised as sufficient) for a customary marriage. It was not open to D1 to submit that the alleged marriage ceremony complied with the formal requirements of a “Chinese modern marriage” as it was never pleaded as an alternative. Further, immemoriality and continuity were required for the establishment of a custom in the legal context, but the “Chinese modern marriage” was a creation of the Republican era only. In any event, the Judge was entitled to find D1’s testimony as to what had occurred at the dinner to be untruthful or unreliable and there was insufficient evidence of what had taken place.

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