A BILL
INTITULED
An Ordinance to remove doubts as to the validity of certain marriages celebrated in the Colony of Hong Kong after the outbreak of hostilities with Japan.
Be it enacted by the Governor of Hong Kong, with the advice and consent of the Legislative Council thereof, as follows:-
1. This Ordinance may be cited as the Occupation Marriages Short title. (Validity) Ordinance, 1948, and shall be construed as one with
the Marriage Ordinance, 1875, hereinafter referred to as the Ordinance principal Ordinance.
No. 7 of 1875.
2. In this Ordinance the following expressions shall have the Interpretation. meaning hereby assigned to them:-
""
war period means the period from the 8th of December, 1941, to the 15th of October, 1945;
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"Registrar means the Registrar of Marriages under the principal Ordinance and includes a deputy registrar.
3.
Save as hereinafter appears this Ordinance shall apply to Application. all marriages celebrated in the Colony during the war period except non-Christian customary marriages celebrated according to the personal law and religion of the parties.
4.
celebrated
during the
A marriage celebrated in the Colony during the war period Validation shall not be deemed invalid by reason of its having been celebrated of marriages in a place which had not been duly licensed under section 3 of the principal Ordinance or without compliance with the require- war period. ments of such Ordinance concerning notice of marriage, certificate of notice, licence or competency of the officiating minister and subject as is herein provided, all such marriages are hereby declared to be and always to have been valid.
5. Nothing in this Ordinance shall validate any marriage Prevailing which was invalid on the ground of kindred or affinity, or because grounds of one of the parties was under the age of sixteen years, or any validity. marriage which would have been invalid notwithstanding com- pliance with all the requirements of the said Ordinance, or any marriage which before the commencement of this Ordinance has been declared invalid by a court of competent jurisdiction: Provided further that where any marriage to which this Ordinance applies would, but for this Ordinance, have been invalid and either party 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 the validity of the subsequent marriage.
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Keliet against penalties applicable to ministers.
Certificate
minister.
6. No minister who has complied with section 7 of this Ordinance shall be liable to any penalties under the principal Ordinance in respect of any matter referred to in section 3 of this Ordinance and no proceedings shall be taken without the consent of the Attorney General against a minister who has not so complied in respect of a marriage to which this Ordinance applies.
7. Every minister who has officiated at a marriage to which by officiating this Ordinance applies and who has not already given the parties a certificate in Form No. 5 in the Schedule to the principal Ordinance shall, at the request of either party, give such a certificate: Provided that if such minister satisfies the Registrar that he is unable to give such a certificate because he is unable to secure the signature of the two witnesses to the marriage and has no certificate with their signature in his possession or because he is unable to obtain information necessary to enable him to complete the certificate, it shall suffice if the officiating minister, with the consent of the Registrar, gives a certificate which, in lieu of being signed by two witnesses of the marriage, states the names of two such witnesses and gives such information as he and the parties or either of them are able to supply.
Effect of
certificate of marriage issued by the officiating minister.
8. A certificate in the form first referred to in section 7 of this Ordinance, whether given before or after the commencement of this Ordinance and a certificate in the form subsequently referred to in the said section if countersigned by the Registrar shall, if given in respect of a marriage to which this Ordinance applies, be admissible as evidence of the marriage to which the same relates in any court or before any person having by law or by consent of parties authority to receive evidence.
Duties of
9. (1) The Registrar shall collect and preserve in a register the Registrar. in a convenient form such information in relation to marriages to which this Ordinance applies as has already been or may subsequently be, furnished to him, and shall for a fee of five dollars supply any person requiring it with the information in his possession regarding a particular marriage.
Regulations.
(2) The Registrar shall enter in a convenient place in such register the fact of his consent in any particular case to the form of certificate secondly referred to in section 7, and shall note on such certificate that his consent was obtained and sign the
same.
10. The Governor in Council may make regulations prescrib- ing-
(a) rules, forms and fees for any application by an officiating minister for the Registrar's consent under section 7 of this Ordinance and for information under section 9;
(b) for further cases in which an officiating minister should be relieved from penalties notwithstanding that he has been unable to give any certificate under section 7;
(c) generally for carrying this Ordinance into effect.
1.
Objects and Reasons.
The Marriage Ordinance, 1875, section 3, provides that the Governor may license any place of public worship to be a place for the celebration of marriage and by section 5, one of the parties to any intended marriage is requested to give notice thereof to the Registrar in a prescribed form. Under section 8, the Registrar issues a certificate to the effect that such notice has been duly entered in the marriage book and by section 10, the proceedings are void if the marriage does not take place within three months after giving of such notice. Prior to the issue of the Registrar's certificate, an affidavit of no impediment to the marriage is also required under section 12.
2. The above provisions may, to some extent, be derogated from if the special licence of the Governor is obtained, but in any event, a party under 16 cannot lawfully marry and a party between 16 and 21 requires the consent of parent or guardian, and, failing such consent, the consent of the Registrar. See sections 12A to 14 inclusive and section 22.
3. Under section 19, marriages may be celebrated in any licensed place of worship by a competent minister, but no marriage shall be celebrated by such minister without the Registrar's certificate or the Governor's special licence. Penalties prescribed by section 29.
are
Under section 20, books of marriage certificates are issued
to the several licensed places of worship and the certificate must be signed in duplicate by the parties, the officiating minister and two witnesses. One certificate is handed to the parties and the other transmitted by the officiating minister to the Registrar for filing. Under section 21, if the parties are married in the Registry, the same procedure is followed save that the copy is retained by the Registrar and filed.
Under section 24, such certificate as aforesaid or a certified copy is admissible as evidence of the marriage. Finally, by section 26-
(1) No marriage shall be valid which would be null and void on the ground of kindred or affinity in England or Wales.
(2) A marriage shall be null and void if both parties knowingly and wilfully acquiesce in its celebration in any place other than the office of the Registrar of Marriages or a licensed place of worship (except when authorised by a special licence), or under a false name or without a certificate of notice or licence duly issued, or by a person not being a competent minister or the Registrar of Marriages or his deputy, or if either party to the marriage is at the time of its celebration under the age of sixteen
years.
(3) But no marriage shall, after celebration, be deemed invalid by reason that any provision of this Ordinance, other than the foregoing, has not been complied with ".
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4. During the Japanese occupation, the Registrar of Marriages ceased to function, and no special licence could be granted by the Governor nor did the Japanese set up any alterna- tive machinery to fill the vacuum. Parties nevertheless continued to get married in licensed places of worship and also in internment camps. It is believed that in some cases, parties were married in hotels which, like internment camps, were not licensed places of worship. Altogether over 500 marriages to which the Ordinance would apply took place and in none of these cases was it possible to comply with all the requirements of the Ordinance, particularly, the vital necessity of obtaining either a certificate of notice or a special licence. There is, however, considerable authority for saying that where statutory requirements become impossible of fulfilment, the right to marry in accordance with the common law revives, so that a marriage celebrated in compliance therewith is valid. It is not altogether clear what the common law require- ments are in colonial territories, but again, there is authority for saying that the requirement applicable in England and Wales, that the officiating minister must be a priest of the Church of England, does not apply in the Colonies, and that in the Colonies, a valid marriage could, at common law, be contracted per verbá de præsenti where compliance with local forms is impossible.
5. It is, in any event, clearly right that doubts as to the validity of such marriages should be removed, except in cases where the defect was a defect which went to the root of the marriage, i.e., which would have invalidated the marriage even if all the requirements of the Marriage Ordinance had been complied with. It may be, however, that in some cases parties have altered their position by remarrying or that their marriage has been dissolved by a court of competent jurisdiction. In such cases, the status quo should be preserved, i.e., the marriage should not be validated by legislation but either party should be free to argue that it was nevertheless valid at common law.
6. (a) The object of the present Bill is to give effect to the principles stated in paragraph 5 of these Objects and Reasons and also to make provision for relief from penalties applicable under the Ordinance and, so far as possible, for the furnishing of marriage certificates and their admissibility as evidence;
(b) Clauses 3, 4 and 5 of the Bill seek to carry out the first of these objects;
(c) by Clause 6, an officiating minister is relieved from penalties if he complies with Clause 7, under which he is under a duty to supply on request of either party a marriage certificate on the form prescribed by the Ordinance, or alternatively, after satisfying the Registrar that he cannot comply, to give a certificate in a modified form;
(d) Clause 8 makes both forms of certificate given under Clause 7 admissible in evidence.
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7. The Registrar of Marriages has already collected a con- siderable amount of information about occupation marriages, including a register of marriages celebrated at Stanley and particulars of marriages celebrated elsewhere in the Colony. It is appropriate that this information should be available to interested parties who may now, or at a later date, be seeking evidence of a marriage. This is provided for by clause 9 which also authorises the moderate fee of $5 for supplying the informa- tion.
8. In the normal course of events, an officiating minister should be able to comply with the provisions of clause 7, but it is conceivable that a case may arise in which a minister. cannot comply, and ought nevertheless, to be relieved from penalties. Clause 10 accordingly enables the Governor in Council to provide for this by regulations. It is also desirable to be able to expand by regulation the procedure for an officiating minister to obtain the Registrar's consent to a substituted certificate and for applica- tions by the public to the Registrar. Provision has been made by clause 10.
J. B. GRIFFIN,
Attorney General.
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