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XCR(79)141
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marriage may be dissolved either in accordance with Part V or in accordance with the Matrimonial Causes Ordinance (e.g. for adultery, desertion for 2 years, living apart for 5 years etc).
5
A customary marriage is a marriage celebrated in Hong Kong before 7th October 1971 in accordance with the traditional customs of that part of Hong Kong concerned or of the family of either party; such a marriage is assumed to be potentially polygamous.
6
A modern marriage is a marriage celebrated in Hong Kong before 7th October 1971 "as a modern marriage by a man and a woman each of whom, at the time of marriage, was not less than sixteen years of age and not married to any other person"; such a marriage is assumed to be monogamous.
7
It is not entirely clear why customary marriages were excluded from the provisions of the Matrimonial Causes Ordinance. The reason was probably that such marriages were regarded as potentially polygamous because they permitted concubines to be taken, and following United Kingdom law then in force, that matrimonial relief should apply only to monogamous marriages. Whether or not that was so, there now does not appear to be any good reason why the parties to a registered customary marriage should be excluded altogether from the operation of the Matrimonial Causes Ordinance.
8
There have been requests (even one in the Legislative Council by Mrs Kwan Ko Siu-wah in October 1977) that customary marriages be accorded the same matrimonial relief as modern marriages. The matter has been studied and it is considered that this should be done. Clause 4 of the bill accordingly repeals and replaces section 15 of the principal Ordinance to provide that registered customary marriages may be dissolved under either Part V or the Matrimonial Causes Ordinance.
B
Matrimonial Causes (Amendment) Bill 1979 - Annex B
9
In its present form, section 7A (2) of the principal Ordinance excludes the jurisdiction of the court to hear an application by a former wife in a registered modern or customary marriage for maintenance where the amount of maintenance has been agreed in the divorce agreement terminating the marriage under Part V of the Marriage Reform Ordinance (Chapter 178). The Director of Legal Aid has pointed out that the section does not prevent a former husband from making such an application, and accordingly clause 3 (b) of the Matrimonial Causes (Amendment) Bill 1979
G.S. 84
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