that he could by contract divest himself of a legal capacity recognised by the jus cogens of his personal law, as well as affecting the status of a third party.
39. Accordingly, the Sub-Committee feels that there is scant legal justification for treating the essential nature of marriages contracted before the Appointed Date in a radically different way merely because of a difference in form. It would recommend that marriages falling within a definition which would embrace both Chinese Customary Marriages and Chinese Modern Marriages should be accorded similar retrospective recognition. Moreover, for the reasons set out in the preceding paragraph, the Sub-Committee would not agree with the suggestion made at p. 84 of the Report that no recognition should be extended to concubines added, before the Appointed Date, to marriages celebrated in Chinese Modern form. (Where the marriage was celebrated abroad, or where one of the parties was subject to a personal law other than the law of Hong Kong, the ordinary conflict rules would of course apply to formal validity, capacity, and the essential character of the marriage). On the theory which the Sub-Committee favours, Chinese Modern Marriages, together with Chinese Customary Marriages, would be classified as potentially polygamous (correctly, in the opinion of de Basto and Dicks, having regard to the law as it stands at present in Hong Kong, though in Hu's view both forms of marriage ought to be regarded as monogamous).
40. It is appreciated that this might give rise to some injustice, but the Sub-Committee believes that this would be cured by changing the proposed nature of Post-Registration (q.v.)
"NEW RECOMMENDATION NO. 3: ON POST-REGISTRA- TION
Intention:
To provide facilities for the issue of official certificates of marriages retrospectively recognized, in order inter alia to facilitate compliance with passport or visa requirements.
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