TNAG-0189-FCO40-225-Chinese-marriages-in-Hong-Kong-1969 — Page 80

Reference...

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. cཡ་ཨིཨིམ1,

Please see (1).

'comments

I would welcome

Your

in the proposals put forward by the

Solicitor-General

in

the enclosure

to ().

1.R. Huway

31.10.68

Mr. Murray

As I understand paragraphs 9, 11 and 13 of the enclosure to (1), it is proposed that where the legal system of a country provides for the Chinese modern marriage and persons contract such a marriage in such a country, whether before or after "the appointed date", that marriage shall be capable of being dissolved in Hong Kong by mutual consent provided that both spouses can show that on the date of the divorce there existed a real and substantial connection between the two parties and Hong Kong.

2.

This proposal is founded on the changes consequent in the law of England on the House of Lords decision in Indyka versus Indyka, changes which in the opinion of the Governor's legal advisers will lessen the risk that such divorces would not be recognised in England.

3.

Notwithstanding however the above mentioned decision, the basic rule still remains that the English courts continue to recognise decrees of divorce pronounced by the courts of a foreign country (including for this purpose those of Scotland, Northern Ireland and of Hong Kong) if, and only if, these are granted by the court of the husband's domicile. This basic rule is subject to (1) any statutory exception made by a United Kingdom Act applying to England; and (2) any other exceptions which may be recognised by English judicial decisions. In Indyka v. Indyka the House of Lords decided that recognition may be extended to divorce decrees of foreign courts granted

4.

(a) on the basis of nationality of both spouses; and

(b) perhaps when granted on the basis of nationality

separately acquired by a wife living apart from her husband where the wife had a real and substantial connection with the country pronouncing the decree. An analysis of the ratio decidendi of the Indyka case was given by Mr. Justice Ormrod in Angelo v. Angelo (1967), 3 A.E.R., page 314.

I see no legal objection to the Governor's proposal mentioned above. / /It is for the appropriate courts to work out in due course whether the basis of recognition approved in the Indyka case should be extended to the category of marriages, circumstances referred to in the first paragraph of this minute.

the

/ 5.