Are traditional marriages valid in law?

LOO BOO CHEAI (PENTADBIR HARTA PUSAKA CHAN KUN HONG, SIMATI) v. CHEN YUH FENG & ORS [2021] MLJU 1346

• Chan (“the Deceased”), and Mrs. Loo were married and registered under the Civil Marriage Ordinance No 44 of 1952 (“CMO”) with 2 children.

• It is not disputed that the Deceased and Mrs. Loo were legally married during his lifetime.

• Loo was granted Letters of Administration (“the LA”) to administer the Deceased’s estate and subsequently distributed the Deceased assets and properties to herself and her two children as beneficiaries of the Deceased.

• Chen challenged the grant of the LA to Mrs. Loo claiming that she was one of the lawful widows of the Deceased and she and her two daughters, are the lawful children and next of kin of the Deceased.

• According to Ms. Chen, she was married to the Deceased sometime in December 1978 in Kaohsiung City, Taiwan through customary and/or traditional marriage that is deemed to be valid and registered under the Law Reform Act (Marriage and Divorce) Act 1976 (“Act 164”).

• Loo contended that she had never known the existence of the extra-marital affair of Ms. Chen and the deceased until a few days before the death of the deceased. The Deceased had requested for his 2 children to be allowed to attend his funeral and to be included in the obituary.

• Loo claimed that the disputed marriage had not taken place because the Deceased’s passport for the relevant years did not show that the Deceased traveled to Taiwan in 1978. Added to that, Mrs. Loo contended that the Ambassador Hotel that Ms. Chen claimed was the venue of the traditional marriage was not in existence in 1978.

• Loo claimed that Ms. Chen and her children were not named as beneficiaries in the LA because Ms. Chen was a stranger and had no relation to the Deceased while her children were illegitimate.

• Apart from her stand that the disputed marriage had never taken place, Mrs. Loo also contended that if at all there was one, it was invalid, null, and void because the Deceased had contracted a monogamous marriage under the CMO.

• At the High Court, the learned judge found on the balance of probabilities that the customary marriage ceremony had taken place at the Ambassador Hotel in 1978. The learned Judge agreed with Ms. Chen that the customary marriage was valid by virtue of Act 164, the marriage was deemed to be registered.

• Loo appealed to the Court of Appeal.

• The Court of Appeal is of the view that there appears to be an insufficient judicial appreciation of the evidence adduced in the High Court as to whether the disputed customary marriage did take place.

• The Court of Appeal held that the CMO only recognizes monogamous marriages. As such the customary marriage even if it did take place contravened the CMO.

• The Court of Appeal stated that under Act 164, marriages solemnized before 1.3.1982 are recognized and these included marriages solemnized in accordance with the provision of statutes such as the Christian Marriage Ordinance 1956, and the CMO, Chinese customary marriages, Hindu customary marriages, and common law marriages.

• In the circumstances, the disputed customary marriage, even if it did take place, can never have been validly solemnised.