- 5 ·
Some Commonwealth countries likely to follow.
Two modifications of White Paper :- Remove limitation that only marriages contracted in Hong Kong may be dissol- ved by mutual consent.
How this limitation came about.
7. (contd)
for some time because the House of Lords declined to lay down any precise rules as to what would constitute a 'real
and substantial connection' with a country.
8.
There are signs that both Australia and New Zealand welcome the change in principle and will follow the Indyka case. The law in the various States of the
U.S. has long indicated a general preference for granting
recognition to decrees of divorce obtained in other States.
The claim of persons who have made Hong Kong their home.
9.
So far as the White Paper proposals are concerned
two modifications now suggest themselves if we are to take advantage of this change in the law. The first is that the right to dissolve a marriage by mutual consent, irrespective of domicile, should not be limited to those
Chinese modern marriages which took place in Hong Kong.
10.
It is unlikely that the McDouall/Heenan Report
intended this anomalous limitation and it is easy to gee
how it came about. The main concern lay with those
Chinese modern marriages which had been contracted in Hong Kong and which were, therefore, without legal validity, ag distinct from such marriages contracted in Taiwan, or in China prior to 1949. Once the decision was made to accord these Hong Kong marriages retrospective recognition, it became a logical consequence to retain one of their important concomitants, namely divorce by mutual consent.
As the report dealt with Chinese marriages in Hong Kong
it is understandable that no proposals were made with
regard to the dissolution of marriages which had taken
place elsewhere.
11.
However, in accepting these proposals attention must be directed to those persons who have made Hong Kong their home since their marriage elsewhere. If they had
married under a legal system which provided for the Chinese modern marriage and which also permitted dissolution of
-/6