Court found no valid customary marriage as the deceased was legally married to another, emphasizing regulations under the Civil Marriage Ordinance and the Law Reform Act.

Hue Chooi Yin ("the Petitioner") filed a Petition (see Amended Re-Amended Petition in enclosure 119) under r 80 of the Divorce and Matrimonial Proceedings Rules 1980 seeking a declaration with respect to her matrimonial status.

Brief facts

The Petitioner alleged that on 5 May 1979 she was married to the late Chew Choon Ming ("CCM") according to Chinese customary marriage rites ("the customary marriage") in the presence of the Petitioner's family members including the Petitioner's mother, Kong Koon Thye, and her eldest sister, Hue Chui Kum (PW3), at the Yung Ting Association, No 4345, Jalan Ali Pitchay, Ipoh, Perak Darul Ridzuan.

At the time of the alleged customary marriage, Chew Pit King ("the Respondent"), who is the son of CCM through his first marriage to Soo Poi Eng, was slightly more than 6 years old.

The Petitioner alleged that she and CCM lived together and cohabited since the date of the alleged marriage in 1979 and had 2 children, namely, a daughter, Chew Mei Fun, born on 5 April 1988 and a son, Chew Pit Tian, born on 22 November 1991.

The alleged customary marriage of the Petitioner to CCM was neither registered as a marriage under The Civil Marriage Ordinance 1952 nor under the Law Reform (Marriage and Divorce) Act 1976 .

The Respondent contended that at the time of the alleged customary marriage, his father, CCM was married to his mother, Soo Poi Eng. CCM and Soo Poi Eng had 2 children, namely, a daughter, Chew Mei Lian, and a son, Chew Pit King (the Respondent).

Soo Poi Eng passed away on 8 March 1997. CCM passed away, intestate, on 5 June 2000.

The Petitioner prays for the following:

1. a declaration that Hue Chooi Yin, the Petitioner, is the lawful wife of CCM who died on 5 June 2000 as the earlier marriage between CCM and Soo Poi Eng on the demise of Soo Poi Eng on 8 March 1997 was dissolved by virtue of s 6(a) of The Civil Marriage Ordinance 1952 and by virtue of the fact that CCM and the Petitioner cohabited, had 2 children and lived together as husband and wife without interruption for more than 22 years until the death of CCM on 5 June 2000;

2. that the said marriage celebrated on 5 May 1979 between the Petitioner, Hue Chooi Yin, and CCM in accordance with Chinese customary rites in Ipoh, Perak Darul Ridzuan may be declared to be a valid and subsisting marriage for all intents and purposes; and

3. costs of this application.

Issues

The issues in this case are:-

(1) whether there was a customary marriage between the Petitioner and CCM on 5 May 1979;

(2) if there was no customary marriage, can the Court make the declarations sought by the Petitioner?

(3) if there was a customary marriage, is such marriage valid under:

(a) The Civil Marriage Ordinance 1952 ("the CMO"); and /or

(b) the Law Reform (Marriage and Divorce Act) 1976 ("the LRA").

(4) based on (3) above, can the Court make the declarations sought by the Petitioner?

In deciding on the above issues, the Court would also consider the question whether or not under the CMO and the LRA the fact that the Petitioner had cohabited with CCM and had given birth to 2 children would give rise to a legal marriage between them prior to and after the demise of Soo Poi Eng.

Preliminary point raised by learned Counsel for the Respondent

In his written submissions, learned Counsel for the Respondent raised a preliminary point that in order to get a declaration in respect of the marital status of a person under r 80 of the Divorce and Matrimonial Proceedings Rules 1980 ("the DMP Rules"), the Petitioner must show that she has a matrimonial status to be declared.

However, in para 9 of the Petition, the Petitioner had pleaded that "if the late Chew Choon Ming had fulfilled his promise by marrying the Petitioner after the death of his first wife on 08 March 1997..... then the Petitioner would be his l