L v E

CourtFamily Court (Hong Kong)
Judgment Date06 Aug 2007
Judgement NumberFCMP172/2006
SubjectMiscellaneous Proceedings
FCMP000172/2006 L v. E

FCMP 172 / 2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 172 OF 2006

__________________

BETWEEN

L Petitioner
and
E Respondent

__________________

Coram : Deputy District Judge T Chan in Chambers

Date of Hearing : 30 May 2007

Final Submissions : 26 July 2007

Date of Judgment : 6 August 2007

_____________________

J U D G M E N T

_____________________

1. By an Originating Summons dated 21 September 2006, the Applicant husband seeks a declaration from this Court that a validated marriage pursuant to sections 8 and 9 (3) of the Marriage Reform Ordinance subsists between him and the Respondent wife herein. The parties would be referred to as Applicant and Respondent respectively.

Background

2. The Applicant is now 66 years old while the Respondent is 56. Parties had been living together since 1968. Out of the relationship 4 children were born in the 70s’. The Applicant left the Respondent and the children in or about 1995. The case of the Applicant is that the marriage between them is a validated marriage pursuant to s.8 of Cap 178 as there had been ceremonies carried out accordingly. He therefore seeks a declaration from the Court to that effect. It is his intention that a petition for divorce would be issued and he will make subsequent application for ancillary relief against the Respondent. The application is opposed by the Respondent who maintains that no celebration of marriage had ever taken place as alleged by the Applicant or at all.

The Law

3. The validity and validation of marriages is provided in the Marriage Reform Ordinance (Cap 178) :

Section 8:
Subject to section 14, every marriage celebrated in Hong Kong before the appointed day as a modern marriage by a man and a woman each of whom, at the time of the marriage, was not less than 16 years of age and was not married to any other person shall be a valid marriage, and shall be deemed to have been valid since the time of celebration, notwithstanding –
(a) that the proper personal law and religion of the parties, or one of them, was Chinese law and custom, and the marriage was prohibited by or failed to comply with the requirements of Chinese law and custom; or
(b) that the marriage was not under and in accordance with the Marriage Ordinance (Cap 181)”.
Section 2
“Modern marriage” (新式婚姻) means a marriage celebrated in Hong Kong before the appointed day by open ceremony as a modern marriage and in the presence of 2 or more witnesses”;

4. From the above provisions, a valid marriage under s 8 of Cap 178 has to fulfill the following requirements:

(a) the marriage was celebrated in Hong Kong by open ceremony and in the presence of 2 or more witnesses;
(b) such celebration took place before 7th October 1971;
(c) at the material time the parties, a man and a woman, were not less than 16 years of age; and
(d) neither of the parties was married to any other person.

The Applicant’s Case

5. The Applicant’s case is that the marriage was celebrated on 15 November 1968 in Hong Kong by open ceremony. There was first ancestor worshipping in the morning in front of relatives and followed by a banquet attended by relatives and friends in the evening. The Applicant gave evidence and called two witnesses, Wing and Cheong on this.

The Respondent’s Case

6. The Respondent’s case is that there was no ceremony to celebrate any marriage, and they were just cohabitants although there were 4 children from the relationship. She called no witnesses to court.

Evidence

The Applicant

7. The Applicant had filed 3 affirmations and attended court to give evidence and be cross-examined. He said that there were some open ceremonies.

8. He told the Court that by the time of 1965, he had his own small business selling Joss-sticks. He had the business in a small shop at Ground Floor, No. 148 B Kau Kiang Street Kowloon. It is a shop situated at the corner of Kau Kiang Street and Fuk Wing Street. Apart from running his business there, he also lived in cockloft inside the shop. At the same time, he had rented a flat on the 9th Floor of the same building (“the Flat”). The official address of the Flat reads 9th Floor, No. 172, Fuk Wing Street, Sham Shui Po, Kowloon. The Applicant himself used half of the Flat as warehouse for storage. A Mr. Leung rented the other half and ran a small garment factory there. He said he met the Respondent in about 1966 who was a relative of the said Mr. Leung working at the Flat.

9. According to the Applicant, at a time close to their marriage, he accompanied the Respondent who was attaining 18 at that time to apply for an ID card for her to stay in Hong Kong. He stood as a sponsor with his business in support. The application was granted and the Respondent stayed in Hong Kong.

10. In regard to the date of the marriage, the Applicant said that he himself chose the date for celebrating the marriage. He said that according to the Tung Sing (通勝), a Chinese almanac, 15 November 1968 was an auspicious date for marriage ceremony. He said as he was selling joss-sticks which was closely related to the traditional Chinese religion, he knew how to pick an auspicious date for particular purposes and customers asked him to do that for them also. He said that was why he remembered the date. As to the celebration of the marriage, the Applicant said that there were some ceremonies. First the bride was received from a hotel room by him and some friends and was escorted to the Flat which was to be their matrimonial home. At that time, Mr. Leung had already moved away. At the Flat there was ancestor tablet and they worshiped the ancestor tablet there. Such ritual of worshipping was attended and witnessed by the elder relatives. The two also observed the ritual of pouring and serving tea for the elderly relatives.

11. According to the Applicant, in the same evening there was a wedding banquet held at a restaurant named DH Restaurant at 156 Castle Peak Road (“the Banquet”). Invitation cards had been sent out to the guests for the purpose. The Banquet was attended by 300 odd relatives. There were about 10 odd tables. His two witnesses Wing and Cheung had attended the Banquet. He said the...

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