メ
Connelly exceversing juridiction
!
6
preferable to retain a safeguard on the lines of the words which we suggested, and the Governor now agrees
in paragraph 2 of his despatch, should be omitted. The terms of the passage in question clearly seem to imply that the second marriage is valid only on the supposition that the first one was not valid, and I suggest that the Daving should be more explicit on
this point. The wording I propose (adapted from a draft Bill now in preparation, amending the Foreign Marriages Act) is as follows:-
Where any such marriage would, but for this Ordinance, have been invalid and either of the parties theto has subsequently during the life of the other party, but before the commencement of this Ordinance, lawfully married any other person, this Ordinance shall not render the first marriage valid or affect validity of the subsequent marriage".
DIVORCE.
4 Where only a decree nisi was granted by the Chief
fustice, the parties have no reason to believe themselves free to re-marry, and it seems reasonably clear that no steps should be taken to validate the decree.
5. It appears that there were also 4 decrees absolute-
namely the 3 mentioned in paragraph 5 of (1), and that mentioned in (2). In two cases further proceedings have been taken in Hong Kong, and presumably no action by the Government of Hong Kong is either necessary or desired by the parties.
6. It is the remaining two cases which may create
a serious problem.
I assume that boste the decrers miser
the decrers abestati, & not only the lathe,
1
man made in vitiornment".
The crucial question is whether the parties were at the time of the divorce domiciled in Hong Kong. If they were, then I see no very strong reason why the divorce should not be validated, and a very good reason in the case mentioned in (2) why this step should be taken.
If, however, the parties in either case were not lomiciled in Hong Kong, then there is, in my opinion, serious doubt as to whether validating legislation can lawfully be enacted in Hong Kong. Indeed, if I am to express a firm opinion, it is that validation is not possible without an Act of Parliament.
8. My reasons are as follows:-
J
If the parties were not domiciled in Hong Kong, the Court had no jurisdiction except by virtue of the Indian and Colonial Divorce Jurisdiction Acts, 192 and 1940, as applied to Hong Kong by the Hong Kong Divorce Jurisdiction Order in Council 1935. The Act as so applied confers jurisdiction in such a case upon "the Supreme Court of Hong Kong" The validity of the divorce is (to say the least) open to question mainly by reason of a doubt as to whether competion pronouncing the decrees, (the Supreme Court was andent constituted, and the Act must necessarily refer to a properly constituted Court Hence,/a Hong Kong Ordinance purporting to validate the divorce would clearly in effect be amending the Act and would therefore undoubtedly be void as repugnant to the Act under the Colonial laws Validity Act 1865.
/10.
of the I dont
were founded,