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2021 MarsdenLR 3757
COURT OF APPEAL PUTRAJAYA
LOO BOO CHEAI – Appellant
Versus
CHEN YUH FENG & ORS – Respondent
[Civil Appeal No: W-02(NCVCUWI)-936-05-2019]
A marriage contracted under the Civil Marriage Ordinance is monogamous, thus invalidating any subsequent customary marriage, affirming the precedence of statutory law over customary practices.
Headnote:(A) Civil Marriage Ordinance No 44 of 1952 – Section 4 – Law Reform (Marriage and Divorce) Act 1976 – Constitutionality of marriages – The court held that the disputed customary marriage was invalid and void due to the existence of a valid monogamous marriage under the CMO. The reasoning rested on the principles established in preceding case law, determining that the CMO takes precedence over customary practices in this context. (Paras 58-96)
(B) Customary marriage – Validity – The court emphasized that if the Deceased’s valid marriage under the CMO existed, a secondary customary marriage could not be validly contracted, highlighting the legislative intent behind these statutes. (Paras 57-77)
(C) Evidence evaluation – The court underscored the need for concrete evidence to validate the existence of customary marriages, treating oral testimonies without supporting documentation as insufficient. (Paras 29-49)
Facts of the case: The case involved claims by the 1st plaintiff asserting a customary marriage with the Deceased despite his existing marriage to the defendant under the CMO. The dispute arose after the Deceased's death, with claims of illegitimate status for children of the disputed marriage.
Findings of Court: The appellate court determined that the High Court erred in recognizing the disputed marriage, finding insufficient evidence for its validity, reinforcing the principles of monogamy under the CMO.
Issues: The primary issue centered on whether the customary marriage was valid given the existing statutory marriage.
Ratio Decidendi: The court concluded that the existence of a monogamous marriage under the CMO negated the validity of any subsequent customary marriage.
Result: The appeal was allowed, overturning the High Court’s decision.
JUDGMENT
Introduction
[1] This appeal is primarily concerned with the legal status of the customary marriage of the 1st respondent to the late Chan Kun Hong (the Deceased) purportedly to have taken place in or around the month of December 1978 at Kaohsiung City, Taiwan (the disputed customary marriage) when the Deceased's marriage to the appellant on 15 March 1969 and registered under the Civil Marriage Ordinance No 44 of 1952 (CMO) was subsisting. It is not disputed that the Deceased remained legally married to the appellant during his life time.
[2] The Deceased died intestate on 30 January 2013. On 17 February 2014 the appellant was granted Letters of Administration (LA) to administer the Deceased's estate. The appellant in her capacity as the administratrix, subsequently distributed the Deceased's assets and properties to the appellant and her two children as beneficiaries of the Deceased in accordance with the Distribution Act 1958 [Act 300]. The respondents challenged the grant of the LA to the appellant, claiming among others that the 1st respondent was one of the lawful widows of the Deceased and she and her two daughters, who are the 2nd and 3rd respondents, are the lawful children and next of kin of the Deceased.
[3] The appellant contended that the disputed customary marriage never took place. The appellant further contended that even if the disputed customary marriage did take place, it was invalid, null and void by reason of her marriage to the Deceased under the CMO.
[4] The main issue to be determined in this appeal is whether the High Court was correct in concluding as a matter of law and fact that the disputed customary marriage was valid and whether the same was deemed to be registered under s 4 of the Law Reform (Marriage and Divorce) Act 1976 (Act 164). The status of the 1st respondent's daughters is dependent on the outcome of this issue.
The Background Facts
[5] For ease of reference, we shall refer to parties as they were referred to in the High Court.
[6] Following their marriage, the Deceased and the defendant cohabited at No 26, Jalan Awan Kecil Satu, Taman Overseas Union Garden, Jalan Kelang Lama, 58200, Kuala Lumpur. They later moved to No 7, Jalan Awan Kecil 7, Taman Overseas Union Garden, Jalan Kelang Lama, 58200 Kuala Lumpur which was their permanent abode (OUG House). There are two children from the Deceased's marriage with the defendant. Their first child Chan Hui Ming was born on 25 November 1969 and their second child Chan Kuan Yoong (DW1) on 20 June 1971.
[7] Sometime in 1974, the Deceased and the defendant incorporated a company by the name of Feisco Sdn Bhd (Feisco). They were the two directors of Feisco. Feisco acquired a house at Lorong Maarof, Bangsar, Kuala Lumpur (Bangsar House) on 28 October 2013.
[8] Thereafter sometime in 1975, the Deceased with his business partners opened a nightclub in Kuala Lumpur known as "Ciro". The 1st plaintiff, who is a Taiwanese residing in Malaysia, was employed as a singer and entertainer at Ciro since 1975.
[9] The 1st plaintiff's case as regards her marriage to the Deceased is as follows. It was the Deceased's decision to solemnise the marriage in Taiwan. Logistically it was not easy for a large group of her family to be flown over to Malaysia. A small group of family and friends were invited. PW2 and PW4, who are friends of the 1st plaintiff, were invited. PW2 attended the wedding while PW4 could not make it as she was busy. A customary wedding ceremony of tea offering to the seniors in her family was held. They were the 1st plaintiff's brother and his wife. There was also an exchange of tea offering between her and the Deceased. Photographs were taken of the wedding ceremony. The photographs, dress that she wore, the invitation cards, memorabilia and many of her other keepsake possession were all kept at her brother's house in Guanming Village, Taitung City, Taiwan which she considered as her family home. The photographs and all her possess
