Hostname: page-component-586b7cd67f-gb8f7 Total loading time: 0 Render date: 2024-11-30T19:41:47.925Z Has data issue: false hasContentIssue false
  • English
  • Français

Chinese Family Law in a Common Law Setting

A Note on The Institutional Environment and the Substantive Family Law of the Chinese in Singapore and Malaysia

Published online by Cambridge University Press:  23 March 2011

David C. Buxbaum
Get access

Extract

The development of Chinese family law in Malaysia and Singapore provides an interesting case study of an attempt to fuse elements of two disparate legal systems in a foreign social climate. The present court system of Malaysia and Singapore and the adjective law are based in large part upon principles of English common law, while the substantive family law applied to the Chinese people is in part a reflection of “traditional” Chinese law. These diverse legal orders function in a social setting which, although substantially influenced by Chinese tradition, is nevertheless a distinct environment, and which, on the other hand, certainly bears little resemblance to the native habitat of the common law.

Type
Articles
Information
The Journal of Asian Studies , Volume 25 , Issue 4 , August 1966 , pp. 621 - 644
Copyright
Copyright © The Association for Asian Studies, Inc. 1966

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 The courts of Malaysia have generally regarded the law of the Ch'ing dynasty (1644–1911) as the prototype of traditional Chinese law. In that many Chinese emigrated to Malaysia during that period, and in that the legal innovations promulgated by Yüan Shih-k'ai and the Nationalist Government (1912–1949) perhaps helped to undermine the ancient social and legal structure but presumably did not have a substantial impact upon prevailing legal attitudes in China, particularly in the family law field, such a designation is not unreasonable. (The ineffectiveness of the courts especially in the rural areas, the importance of custom in family law matters, the Japanese invasion and the weakness of the central government were some of the many factors that muted the effectiveness of these legal innovations.) In this paper we shall mean Ch'ing China when referring to traditional China.

2 See for example Chung-kuo Hsien-tai Shih-liao Tzu-shu No. 6 (Taiwan, 1962), pp. 121f.Google Scholar

3 Thus far only the University of London offers a course in Chinese law among the major institutions of the United Kingdom, and a Chinese law course was only instituted at the Law Faculty of the University of Singapore–the only law school in Malaysia and Singapore–in 1963.

4 A recent conference (wherein this article was first presented) under the sponsorship of the Association of Southeast Asian Institutions of Higher Learning brought together representatives from eleven Asian countries to discuss the role of customary family law and colonial law in the present and future development of their legal systems. The proceedings of the conference will be published in the near future in a volume entitled Family Law and Customary Law in Asia: A Contemporary Legal Perspective (ed. David C. Buxbaum).

5 While the Women's Charter 1961 (discussed infra) seriously modifies the applicability of substantive Chinese law to the domestic relations disputes of the Chinese in Singapore, the Malaysian states continue to apply “customary” Chinese law to these matters. What was originally deemed “customary” Chinese law by the Malaysian judiciary and legislature is in reality a fusion of both the positive law and customary law of traditional China.

6 See Ch'in-Ting Ta-Ch'ing Hut-Tien (25th year Kuan Hsü, 1899 ed.) Chüan 6 (13–16) (reprinted Taiwan) pp. 0081–0082Google Scholar; hereafter referred to as Ch'ing Hui-Tien. See Tung-tsu, Chü, Local Government in China under the Ch'ing (Cambridge, 1962), p. 2.Google Scholar

See also Ta Ch'ing Lii-Li Tseng-Hsiu T'ung-tsuan Chi-ch'eng (T'ung-chih 2nd year ed. 1863) Chuan 30 (including appended Hsing-an Hui-lan)Google Scholar; hereafter referred to as Ta-Ch'ing Lii-Li.

The effectiveness of control seems quite remarkable in that: “With a total of roughly 1,500 magistrates in all types of chou and hsien, there was on the average one magistrate for 100,000 inhabitants (calculated on the basis of the 1749 official figures) or 250,000 (1819 official figures).” Kung-chuan, Hsiao, Rural China, Imperial Control in the Nineteenth Century (Seattle, 1960), p. 5.Google Scholar

7 Ku-yuan, Chen, Chung-kuo Fa-chih Shih (1934), p. 63.Google Scholar

8 Freedman, Maurice, Lineage Organization in Southeastern China (London, 1958), p. 1Google Scholar. The lineage has been defined “…as an exogamous patrilineal group of males descended from a founding ancestor, plus their wives and unmarried daughters.” Sprenkel, S. van der, Legal Institutions of Manchu China (London, 1962), p. 80Google Scholar. This does not imply a biological connection. See also Hsing-an Hui-lan, appended to Ta-Ch'ing Lü-Li, Chüan 8. Here it was held in an 1828 case that, where there were no eligible relatives, a child of the same surname could be adopted and was entitled to the prerogatives of die heir although he was not of the same tsung—a somewhat wider grouping dian the lineage. He was therefore permitted the liu-yang, i.e., the claim of exemption from criminal punishment in order to care for his adoptive parents. This decision could be justified on the theory that all those of the same surname were originally of the same family—a belief held in traditional China. (This belief was fortified by the law prohibiting marriage between persons of the same surname, although there were probably fewer than 470 surnames in China.) See also Jamieson, G., Chinese Family and Commercial Law (Shanghai, 1921), pp. 131, 132.Google Scholar

9 Serious offenses such as murder, treason, etc., were dealt with by the government through the court system, etc. The lineage heads and leading officers had powers of punishment including oral censure, yü; demand for formal ritualistic apology; corporal punishment, chang-tse; expulsion form the lineage (a very serious punishment in the traditional Chinese society so that there was a provision in most regulations for re-admission upon good behavior); and finally punishment by invoking the power of the courts. Hui-chen Wang, Liu, The Traditional Chinese Clan Rules (New York, 1959), pp. 36–45Google Scholar. In a few cases, clan rules envisioned capital punishment or orders to commit suicide. At times the provisions from the penal codes were incorporated into the lineage regulations.

Hsiao, p. 67 note 109, citing hsien records of the Nan-hai district, notes that a young man who beat his mother when reprimanded for gambling “… was put to death by order of a gentry clansman.”

10 Liu, pp. 22–24.

11 Ibid. E.g., unfilial behavior was punished under many lineage rules by forty strokes; the Ch'ing code however provided a minimum of one hundred strokes of the bamboo for this offense.

12 Hsiao, p. 348.

13 Purcell, Victor, The Chinese in Malaya (London, 1948) pp. 143ffGoogle Scholar. See also Ee, Joyce, “Chinese Migration to Singapore, 1896–1941,” 2 Journal of Southeast Asian History, (1961), pp. 33–35.Google Scholar

14 On Malaya see Gullick, J. M., Indigenous Political Systems of Western Malaya (London, 1958), pp. 23–25Google Scholar. On Borneo see Ju-k'ang, T'ien, The Chinese oj Sarawak,: A Study of Social Culture (London, 1953). p. 69.Google Scholar

15 Skinner, G. William, “Overseas Chinese Leadership: Paradigm for a Paradox,” U.N.E.S.C.O. Symposium, p. IGoogle Scholar. While Skinner talks particularly of Manila, Semarang and Phnom Penh, he notes this system was in existence throughout Southeast Asia. The term Capitan or Kapitan is from “the Portuguese cognate of ‘captain.’ ” In the larger communities, the Capitan had various colleagues of rank and the system of selection was institutionalized involving both the Chinese community and the colonial governments.

16 “Rules and Secret Signs of the Toh Peh Kong Society,” Comber, Leon, Chinese Secret Societies in Malaya: A Survey of the Triad Society from 1800–1900 (New York, 1959), pp. 279–284Google Scholar. See also Comber, Leon, The Traditional Mysteries of Chinese Secret Societies in Malaya (Singapore, 1961, pp. 56–59.Google Scholar

17 Kaye, Barrington, Upper Nankin Street, Singapore: A Sociological Study of Chinese Households Living in a Densely Populated Area (Singapore, 1960), p. 176.Google Scholar

18 Purcell, p. 143.

19 “Letters of Patent” (1855), Braddell, R., The Law of the Straits Settlements, A Commentary, II (2nd edition, Singapore, 1931), p. 232Google Scholar at p. 249 and p. 13. The “customary” family law of the inhabitants of Malaya and Singapore was given expression within the ambit of these restrictions upon the scope of the applicability of common law. This unfortunate negative definition of the role of “customary” law and hence of Chinese “customary” law has placed a restrictive judicial interpretation on the scope of customary Chinese law in both Malaya and Singapore. Thus, for example, although secondary wives have been given recognition by the courts, they have been permitted to inherit equally with the principal wife under the Statutes of Distribution (SIA: Widows Case 12 S.S.L.R. 120). This has rightfully been designated a “most curious result,” Report of a Committee Appointed by the Governor in October, 1948, Chinese Law and Custom in Hong Kong (Hong Kong, 1950) p. 89Google Scholar. In part this interpretation, as Braddell notes, was probably the result of the fact that Muslim wives are regarded as having equal status unlike Chinese wives and the courts tended to analogize these two separate legal situations.

See also Ong Cheng Neo v. Yeap Chia Neo I. Ky. 326; L.R. 6 P.C. 381. It was held in Regina v. Williams (1858) 3 Ky. 16 that: “… the prescribed adaptation to native opinions and usages shall go only ‘as far as the same can consist with the due execution of the law and the attainment of substantial justice.’ ” It was further noted that “… nothing is said about applying native law to native cases, but it is merely required that the ‘Administration of Justice’ shall be adapted, so far as circumstances permit, to ‘the Religions, Manners, and Customs’ of the native inhabitants, while the rules of Practice are to conform, as nearly as may be, to the Rules of the English Courts of Request.” See also Fatimah v. Logan (1871) I Ky. 255.Google Scholar

20 Braddell p. 26–27. See Regina v. Williams (1858) 3 Ky. 16.Google Scholar

21 The High Court in Malaya, the High Court in Singapore and the High Court in Borneo were vested with the judicial power of the Federation of Malaysia (Cap. 4, 13, [I], [a], [b], [c] Malaysia Act 1963; Article 121, Constitution). A Federal Court in Kuala Lumpur has jurisdiction to hear appeals from decisions of the High Courts ([2] [a]), as well as original and consultative jurisdiction in specific cases (Article 128, Constitution).

22 North Borneo: Application of Laws Ordinance (Cap. 6), Ordinance No. 15, i960; Sarawak: Application of Laws Ordinance (Cap. 2). See also February 1928 Ordinance, Revised Laws of Sarawak, 1947 (Cap. 1, Sec. 2); “The Law of England, in so far as it is not modified by Ordinances enacted by the Governor with the advice and consent of the Council Negri, and in so far as it is applicable to Sarawak having regard to native custom and local conditions shall be the Law of Sarawak.” The actual introduction of English law, however, was a slow process and is still only gradually being effectuated. In part this is due to questions of political power, in part the result of the rural nature of die territory and in part reflects a difference in colonial policy. The early letters of patent of the Court of Judicature in the Straits Settlements do not use the word “only,” nor “… and subject to such qualification as local circumstances and native customs render necessary.” [Emphasis supplied.] This is perhaps another reason for the Borneo court's somewhat broader interpretation of the role of customary law. Finally, the Borneo States were not thoroughly integrated into the colonial administration until a later period, being subject to Chartered Company rule. The generally accepted date for the reception of common law is 1826. It is of interest to note that the early Charters proceeded on the rather humorous assumption that the island of Penang was uninhabited in 1786 when Light occupied the island. Since there was, therefore, no existing lex loci, and the Chinese, Malays and Chulias could not establish their laws in a British possession, English law could be applied at the discretion of the colonial government. Regina v. Williams (1858) 3 Ky. 16Google Scholar; Re Loh Toh Met (1961) 28 M.L.J. 234, p. 237.Google Scholar

23 See Sheridan, L. A., Malaya and Singapore, the Borneo Territories, the Development of Their Laws and Constitutions (London, 1961), pp. 14–23.Google Scholar

24 As Freedman notes with reference to Singapore: “… it is necessary to point out here that, historically, it is probably only since the last quarter of the nineteenth century that government intervention in Chinese affairs has had any great influence. With the disappearance of the Capitans China the internal affairs of the Chinese community largely passed out of the purview of the British administration. Legally and politically the Chinese contrived to maintain their own world. The few civil cases which came up for judgment before the courts had only a limited significance for the Chinese community as a whole. During the half-century before the growth of a system of direct control of Chinese affairs the codes by which Chinese regulated their family affairs and the bodies to which they resorted in cases of dispute were beyond the reach of the government. It was during this period that the secret societies flourished as instruments of political control and courts of law within a closed Chinese society.” Freedman, Maurice, “Colonial Law and Chinese Society,” LXXX Journal of the Royal Anthropological Institute of Great Britain and Ireland (London, 1950), p. 98.Google Scholar

25 Pickering, W. A., “Chinese Secret Societies,” J. S. Br. R. A. S., Vol. Ill, pp. 1–18Google Scholar, as quoted in Jackson, R. N., Immigrant Labour and the Development of Malaya, 1786–1920 (Malaya, 1961), pp. 49–50.Google Scholar

26 No. 26 of 1955; amended, No. 25 of 1958; No. 36 of 1958; No. 34 of 1959; No. 56 of 1959; No. 43 of 1960 and No. 56 of i960. This should be differentiated from the Preservation of Public Security Ordinance, No. 25, 1955, as amended, which permits detention without trial of individuals “… with a view to preventing that person from acting in any manner prejudicial to the security … or maintenance of public order…. ”

27 For example the procedure for establishing a betrothal, ting-hun, a condition precedent to a legal marriage, varied substantially among the provinces, hsien, and in fact among different classes and groups within the same local community. The forwarding of a bottle of wine to the girl's house by the go-between was an essential part of the betrothal procedure in Hungshui and Ting-hsi hsiens in Kansu. Receiving tobacco and smoking was an essential part of the procedure in parts of what was then Feng-tien (Liaoning) and failure to receive tobacco at die girl's home by the potential bridegroom's family meant that there would be no marriage. Somewhat more relevant to the Chinese of Singapore and Malaysia, the betrothal money, p'in-chin, was an essential element of the marriage procedure in parts of Fukien, . Chung-k.no Hsien-tai Shih-liao Tzu-shu No. 6 (Taiwan, 1962), p. 121 fGoogle Scholar. These procedures were given sanction during and even for some time after die fall of the Ch'ing dynasty by the code and law courts, as well as by the informal legal organs. See for example Ta-li-yüan Pan-chüeh-li Ch'uan-shu (1933 ed.), case no. 596, 1913, where it was deemed essential to pass through the established customary betrothal procedures (or ceremonies), “hsi-kuan shang, i-ting i-shih” as well as the marriage ceremony in order to validate a marriage.

28 Van der Sprenkel, p. 150, quoting from a book for legal officials by a Manchu gentry member and long-time legal secretary, Wang Hui-tsu.

29 See Braddell, I, p. 80–88.

30 Cantonese pronunciation more properly romanized ts'ip, i.e., ch'ieh in Kuo-yü. In that the courts in Singapore and Malaysia use the spelling t'sip it will be used in the text. Tiai is the Cantonese romanization for primary wife, i.e., ch'i in Kuo-yü.

31 Yen-hui, Tai, Chung-Kuo Shen-fen Fa Shih (Taipci, 1959), p. 73, 74Google Scholar. As Meng-tzu noted, “Of the three unfilial [acts], not having a posterity is the worst.”

32 There is evidence that custom modified the severity of this provision under certain circumstances as will be noted below. There is even a little evidence, although it is rather weak, that punishment could be avoided by the officials regarding the second woman as a ch'ieh or secondary wife. See T'ai-wan Kuan-hsi Chi-shih, Vol. 2, No. 12, p. 943 ff. Nevertheless, as noted in the code and Ta-Ch'ing Hui-tien, p. 14762, if you have a living primary wife and again purport to marry a primary wife you will be punished by ninety strokes and the second marriage will be severed by divorce. There was, however, an earlier provision in the Hui-tien which indicates that the second marriage is to be regarded as the taking of a ch'ieh and no divorce is to result (apparently not indicating that there shall be no punishment). This provision was expunged in 1741. There was, however, a revival of this provision under special modified circumstances in 1821, as will be noted below in footnote 44.

33 Freedman, Maurice, Chinese Family and Marriage in Singapore (London, 1957), p. 121.Google Scholar

34 Kaye, p. 174. See also Hanna, W. A., The Formation of Malaysia (New York, 1964), p. 206 ff.Google Scholar

35 See, e.g., Re Lee Choon Guan, deed. (1935) 1 M. L. J. 78Google Scholar; Lew Ah Lui v. Choa Eng Wan (1935) IV S. S. L. R. 78 (Singapore)Google Scholar; Woon Ngee Yew v. Ng Yoon Thai (1941) 7 M. L. J. 32 (Perak)Google Scholar; Tan Ah Bee v. Foo Koon Thye (1947) 13 M. L. J. 169Google Scholar; Yap Kwee Ying v. Law Kiai Foh (1951) 17 M. L. J. 21 (Johore Bahru).Google Scholar

36 The doctrine of presumption of marriage was applied to the Chinese in Ong Cheng Neo v. Yeap Chia Neo (1872), 1 Ky. 326Google Scholar. See also Cheang Thy Phin v. Tan Ah Loy (1920), 14 S. S. L. R. 79Google Scholar; Khoo Hoot Leong v. Khoo Hean Kwee, L. R. (1926), A. C. 529.

Traditional Chinese custom required the t'sip to be introduced to, and accepted by, the primary wife (if any) at a tea ceremony. The Li-chi said it was not necessary to prepare the six ceremonies of marriage in order to marry a ch'ieh: “P'in yüeh ch'i, pen yiieh ch'ieh; liu li pu pei, wei chih pen.” Nevertheless, certain elements of the formal marriage rites were also likely to be undertaken, including the calling of the go between, and undoubtedly the use of p'in-chin or p'in-li and possibly the marriage contract. See Yi-yun, Shih, “Kuan-yu Wu Kuo Chin-tai Fa-chih Shang di Ch'ieh Chih Yen-chiu,” Tai-wan ta-hsüeh Fa-hsueh-yüan K'an-hsing (September, 1956), p. 137 at p. 145 ffGoogle Scholar. See also T'ai-wan Szu-ja ]en-shih Pien, p. 630 ff., for examples of certain marriage contracts used to marry a ch'ieh. It has also been held that family recognition of the marriage is not required as evidence of a valid marriage. Lee Siew Neo v. Gan Eng Neo (1952) 18 M. L. J. 184 (Singapore)Google Scholar. Remarriage of widows is tolerated by the courts of Malaya and Singapore. Chan Lam Keong v. Tan Saw Keow (1951) 17 M. L. J. 21 (Kedah).Google Scholar

37 (1961) 27 M. L. J. 10, p. 10 (Alor Star).

38 Ibid., pp. 10, 11.

39 Er Gek Cheng v. Ho Ying Seng (1949) 15 M. L. J. 171 per Murray-Aynsley, C. J. (Singapore)Google Scholar. Although a tea ceremony and recognition of the marriage by the husband's family was expected in most cases, the court held it was evidentiary only and not essential to the acquisition of the status of a secondary wife. See also Lee Siew Kow, deed., (1952) 18 M. L. J. 184.Google Scholar

40 McAleavy, H., “Chinese Law in Hong Kong: the Choice of Sources,” Changing Law in Developing Countries (New York, 1963) (ed. Anderson, J. N. D.), p. 258 at p. 264Google Scholar: “The essential difference between wife and concubine must be insisted upon, if Chinese law is to be understood at all. It was a difference not of degree, but of kind.” The wife, unlike the t'sip, had die right to administer the family estate after the death of the husband until die son reached the legal age. The wife also “… shared her husband's status in the family and the clan.” Secondary wives, “… who could be taken without restriction of number, enjoyed no comparable right, and as a rule were limited, and then only in the absence of a legitimate widow, to expressing dieir opinion in the family or clan council.” This is radier a strong statement of the differences between the primary and secondary wife; nevertheless their status was undoubtedly different in law.

41 See Freedman, , “Colonial Law …” p. 102.Google Scholar

42 Re Ho Khian Cheong, deed., (1963) 29 M. L. J., 316 at p. 317.Google Scholar

43 “In my opinion, as die deceased had a principal wife living in Singapore at the time he went dirough a ceremony of marriage with Quek Boo Lat, he could only take her as a secondary wife. Con sidering the fact that the deceased and Quek Boo Lat had agreed to become man and wife, it seemed unfair to me to relegate her to a position of a concubine merely because the position of principal wife which she intended to fill had been taken by someone else. Bom justice and common sense required that she be accorded die status of a secondary wife.” Per, Ambrose J. (1963) 29 M. L. J. 316 at p. 317Google Scholar. See also Woon Kai Chiang v. Yoe pak Yee (1926), S. S. L. R. 27Google Scholar, where it was held diat since there was a presumption against bigamy, the status of a secondary wife devolved upon die woman who went dirough a ceremony appropriate for a principal wife widi a man already married.

44 “From die earliest ages Chinese law allowed a man to have only one [primary] wife at a time.” McAleavy, , “Chinese Law in Hong Kong.., p. 264Google Scholar. Chien t'iao, or Kim Tin in Cantonese, however, was a method of dual succession whereby, for example, a younger brother's son was permitted to succeed to both his own line and his father's elder brother's line if the latter had no sons. This was accomplished by the taking of two wives, one as die adopted child of his uncle—his father's elder brother—and the other in his own right. Although the law code prohibited the keeping of two wives, a case in 1821 declared that punishment in die case of chien t'iao would not be the same as if bigamy had been committed, but the second woman was to be treated as a secondary wife if a case were taken before die court. McAleavy, pp. 264–266. See also Case No. 852 (1917) decided in die early Republic. There it was held under die revised laws of die later Ch'ing period, Hsien-hsing Hsing-lü, that in the chien t'iao situation, during the life of the first wife, the second would not be regarded as having die legal status of a primary wife. The courts in Malaysia have not recognized the specific circumstances by which taking a second primary wife was permitted by Chinese customary and positive law. Generally the courts have given recognition to what could be deemed bigamy and potentially receive severe punishment in traditional China. It is also likely that in Chinese society in Malaysia these primary marriages which were given recognition (at least as secondary relationships) by the court would be regarded by social custom at least as bigamous in nature. Indeed, there is little question that a person having a primary wife who is going through a second ceremony appropriate to the taking of a primary wife realizes that he is doing wrong unless involved in a Kim Tiu situation.

45 In the Goods of Lao Leong An [1867] Leic. 418, (1867) 1 S. S. L. R. 1Google Scholar. The court seems in part to be influenced by the fact that the English Statutes of Distribution were previously applied to Muslim wives although it does indicate recognition of die differences in status. In Perak, Order in Council No. 23, 1893, did not permit inferior wives to share in the husband's estate; however this was repealed in 1930 and the Distributions Ordinance was applied to all Chinese wives. The Lao Leong An case, the first case upholding the status of a t'sip and applying the English Statutes of Distribution, was supported by numerous subsequent decisions, including: Lee Joo Neo v. Lee Eng Swee (1887) 4 Ky. 325Google Scholar; In the Goods of Ing Ah Mit (1888) 4 Ky. 380Google Scholar. The Six Widows Case, Choo Ang Chee v. Neo Chan Neo and Others (1908) 12 S. S. L. R. 120Google Scholar, is regarded as establishing finally the polygamous nature of Chinese marriages and parendietically seeming to require a ceremony for marriage of primary wives. Despite the wording of the Charter, a dissenting opinion on this issue was registered by Sercombe Smith J., who felt diat only English common law could be applied by the courts. ”We cannot import into this Colony a marriage of such a nature as that it is capable of being followed by or subsisting with another, polygamy there being the essence of the contract.“In Ngai Lau Shia v. Low Ch'u Neo (1915) 14 S. S. L. R. 35Google Scholar, it was held that the courts will take judicial notice of die polygamous nature of Chinese marriage. The Privy Council affirmed die question of die validity of secondary marriages raised in Cheong Thye Phin v. Tan Ah Loy (1916) 14 S. S. L. R. 79Google Scholar in Khoo Hoot Leong v. Khoo Hean Kwee (1926) L.R. [1926] A. C. 529Google Scholar and also indicated that since no ceremony was needed, secondary marriage with a Christian woman could be permitted.

46 See Straits Times, April 10, 1964, p. 4Google Scholar, for a recent discussion of this problem in the case of the estate of Lee Gee Chong, “biscuit king.” In this case it was alleged diat a woman who apparently had had an on-and-off relationship of approximately 16 mondis’ duration widi the decedent—a wealdiy heir—without the knowledge of his family, had acquired the status of a secondary wife. Therefore she would be entided to the same portion of the widows’ share as die decedent's primary wife and other lawful secondary wife. While this problem is somewhat moot, or will be in several decades in Singapore with the passage of the Women's Charter, No. 18 of 1961, it is still of significance in the states of Malaya. Sabah and Sarawak, having interpreted die scope of Chinese law somewhat more broadly, do not have this problem (as will be noted).

47 Ta-Ch'ing Lü-Li, Chüan 8. The sons generally inherit equally with the minor exception of certain hereditary rank which devolves upon the oldest son and ”… articles of pure personal adornment …“brought by die wife to the family; see McAleavy, H., ”Certain Aspects of Chinese Customary Law in the Light of Japanese Scholarship,” XVII B. S. O. A. S. (1955), p. 546Google Scholar. Note Chinese Law and Custom in Hong Kong, p. 89: “The main difference between the Straits Settlements and Hong Kong is that in Hong Kong the courts have held that the Statutes of Distribution are totally inapplicable to the distribution of the estate of a Chinese intestate.…”

48 Which, as noted supra, are generally no longer co-residential in Malaysia. There has also been an inference in recent decisions and obiter dicta in other cases indicating a possible tendency to permit Christians to become secondary wives, thus tending to universalize this status. See Buxbaum, David C., “Freedom of Marriage in a Pluralistic Society” (1963), 5 Malaya Law Review, 383.Google Scholar

49 In part this difference has been fortified by statute. See North Borneo, Procedure Ordinance, 1926 (No. 1) which provides that matters of inheritance upon intestacy shall be determined by the communal laws of the people. See also Matasin bin Simbi v. Kawang binti Adullah [1953] S. C. R. 106Google Scholar and Hickling, R. H., “The Borneo Territories”; Malaya and Singapore, The Borneo Territories…, pp. 115 ff.Google Scholar

50 Tay Sok. Ann v. Tay Sok Hiong [1955] S. C. R. 17, p. 20Google Scholar. But cf. Chan Bee Neo v. Ee Siok Choo [1947] S. C. R. 1.Google Scholar

51 [1955] S. C. R. 17; see also Chan Bee Neo v. Ee Siok Choo [1947] S.C.R. IGoogle Scholar; and Ko Jin Moi v. Stow Chong Koo [1956] S.C.R. 48Google Scholar which held a Hakka wife has no right to the real property of the husband, which devolves upon the sons, and who in turn must support her.

52 In Loh Chat Ing v. Law lng At [1959] S. C. R. 13Google Scholar, the court upheld a T'ung Yang-hsi marriage where a girl was given to the father of the respondent at the age of seven so that she (might become the future wife of die respondent, as she did at age 18.

53 Lo Stew Ying v. Chong Fay [1959] S. C. R. 1Google Scholar. The courts in the Borneo territories have jurisdiction over questions of divorce of a customary marriage, Liu Kui Tze v. Lee Shah Lian [1953] S. C. R. 55Google Scholar, and unlike the Malay States and Singapore (until recently) a court procedure is required to effectuate such a divorce although apparently a mutual petition for divorce will suffice. Wong Chu Ming v. Kho Liang Hiong [1952] S. C. R. I. CfGoogle Scholar. Re Soo Hat San and Wong Sue Foong (1961) 27 M. L. J. 221Google Scholar (Kuala Lumpur) which indicates Chinese customary marriages can only be dissolved by Chinese custom and not under the Divorce Ordinance, 1952. Divorce of a tsai under traditional Chinese law was somewhat restricted (see Freedman, , “Colonial Law and Chinese Society,” p. 109Google Scholar); however a t'sip could be disposed of rather easily although as noted divorce was not much practiced in Chinese society. The courts in Malaya and Singapore seem to permit divorce of a secondary wife providing there is the necessary intent and repute, e.g., by informing clansmen and relatives. See In the Estate of Sim Stew Gttan deed. (1924) I M. L. J. 95Google Scholar; [1933] S. S. L. R. 539. See also Khoo Hoot Lcong v. Khoo Chong Yeok [1930] A.C. 346Google Scholar for the possibility (which seems remote) of divorcing a secondary wife who had given birth to a son. Divorce of primary wives by mutual consent is accepted practice in Singapore and Malaya. See Chua, B. L., “Domestic Relations,” Malaya and Singapore …, p. 364 at 373 fGoogle Scholar. See also Lew Ah Lui v. Choo Eng Wan [1935] S. S. L. R. 177Google Scholar; Six Widows Case (see supra).

54 Sec Siaw Moi Jea v. Lu Ing Hui [1959] S. C. R. 16, pp. 18, 19Google Scholar. The court refused to reopen questions relating to possible grounds for divorce that had been previously settled in “arbitration” by influential community members.

55 Revised Laws, 1946. Cap. 74. Relevant Sections are: Sec. 4, (1) (2) (3) (4) (5).

56 In which case it is to be registered forthwith. Sec. 5 requires that: “The Registrar shall not register any marriage until he is satisfied that the ceremonies required by established Chinese law or custom have been duly performed and that the marriage is valid according to such custom.” Some registration of marriages takes place prior to the filing of an action, or as an attempt to prevent a party from dissolving the marriage. In Lo Siew Ying v. Chong Fay (1951) S. C. R. I, a 1945Google Scholar marriage was registered in 1958 “… so as to tie her to him.”

57 Chiew Boon Tong v. Goh Ah Pet [1956] S.C.R. 58.Google Scholar

58 “There is, indeed, a very strong emotional resistance among Chinese in Singapore today to the idea of divorce (and Malays and Europeans are derided for their recourse to this practice), despite the fact that a process of separation tantamount to divorce is generally recognized.” Freedman, , “Colonial Law…” p. 109.Google Scholar

59 Tai Yen-hui, p. 88, 89, 90.

60 Ta-Ch'ing ü-Li, Chüan 8.

61 Tai Ycn-hui, pp. 88–90.

62 Ta-Ch'ing Lü-Li, Chüan 8.

63 Tai also suggests (p. 90) that custom sanctioned the adoption of a child of a different surname as the legitimate heir.

64 Yeh-k'an, T'ai-wan Wen Hsien, Tai-wan Szu-fa Jen-shih Pien, p. 640, 643 ff.Google Scholar

65 Freedman, , “Colonial Law…” p. 112Google Scholar. He also notes that: “In Singapore at the present time adoption of one kind or another is very common.”

66 No. 18 of 1939, Revised Laws of Singapore, 1955, Cap. 36 is modeled after the English Adoption of Children Act (1926) (16 and 17 Geo 5, c. 29) as amended 1950, as is the Malayan Ordinance.

67 Khoo Tiong Bee v. Tan Ben Gwat (1877) 1 Ky. 473.Google Scholar

68 No. 41 of 1952.

69 No. 1, 1958.

70 Ibid., Sec. 3.

71 The latest date for which statistics were available at the time of the writing of this article. Ali, Ibrahim bin, Report of the Registrar-General on Population, Births, Deaths, Marriages and Adoptions for the Year 1961 (Malaya, 1963) p. 12Google Scholar. The comparative figures of registration of adoptions for previous years include: 1955: 225; 1956: 460; 1957: (population 6,278,763) 526; 1958: (pop. 6, 515,385) 740; 1959: (pop. 6, 697, 827) 982; 1960: (pop. 6, 909, 009) 922; 1961: (pop. 7, 136, 804) 1, 852. While the increase from 1960 to 1961 was 100.9 percent, the 1960 figure showed a decrease of 6.1 percent as compared with the 1959 figure. Trends therefore are somewhat difficult to ascertain.

72 While, as noted earlier, traditional Chinese adoption generally involved the payment of a specific sum of money, Section 10 of the Singapore Adoption of Children Ordinance, 1939, prohibited parent or guardian from receiving payment or reward without the court's sanction. In Re Sim Thong Lai (1955) 21 M. L. J. 25 (Singapore), p. 27Google Scholar, the Secretary for Chinese Affairs, Mr. R. N. Broome, testified: “But in my opinion a genuine Chinese adoption is rarely considered correctly completed except where the adopters are near relatives of the maternal parents unless there is a payment of money by the adopters to the natural parents. It is not sufficient that there be a token payment in the sense of a small coin wrapped in red paper. The payment is normally substantial, and may be up to $200 or more. I do not think this payment is regarded as a purchase price. It is rather a token of compensation to the parents for the expenses incurred in bearing and rearing the child up to the time of adoption.” This so-called “ginger and cake” money of $200 was held not to be a reward for the transfer of the child in this case, but is merely compensation for care. The court in a wise decision upheld the adoption. Sale of a child has been deemed illegal in the Borneo territories, which, therefore, refuse to permit a civil action for recovery of the sum-Pang Chin v. Pang Chow Pee [1952] S. C. R. 18. The courts have also construed Chinese wills rather strictly, giving primary consideration to the English concept of legitimate birth, rather than to the Chinese concept where in paternal recognition was sufficient to confer the status of a legitimate child. E.g., see Re Tan Tong deed. (1962) 28 M. L. J. 355Google Scholar (Kuala Lumpur) where specific references to sons were made by the testator (who did not differentiate between adopted and natural sons) including references to sons who were adopted. The testator permitted his grandchildren to take his children's share of the estate if one of his children were to the with in twelve years of the death of the testator. Adoption was widely practiced in the testator's family and the adopted grandchildren were adopted while the testator was still alive. Under Section 10 of the Evidence Ordinance, No. 11 of 1950, which says wills are to be construed as they would be in a court in England, and despite the court's recognition of Chinese custom, it held that the testator meant natural children when he referred to children. This is a remarkable decision in that the testator specifically referred to his own adopted children as his sons, had knowledge that his son's children were adopted, but nevertheless the court refused to uphold the rights of the adopted grandchildren to inherit their father's share. Cf. Cham Lam Keong v. Tan Saw Keow (1951) 17 M. L. J. 21 (Malaya).Google Scholar

73 No. 18 of 1961.

74 Bartholomew, G. W.; Athulithmudali, L. W., “The Women's Charter (1961)” 3 Malaya Law Review 316Google Scholar. The criticism is not confined to the drafting but includes other external factors.

75 Part II (4) (1). It should be emphasized that the Charter is prospective in its effects and therefore does not render plural marriages in existence at die time of its passage invalid.

76 As was the purported wife. The relevant sections are: Part II, 4 (2) (3); Part II, 5 (1) (2).

77 But see Part I, 3 (2): “Parts II to VI and Part IX and section 166 of this Ordinance shall not apply to any person who is married under, or to any marriage solemnized or registered under the provisions of Muslim law or of any written law in Singapore or in the Federation of Malaya providing for the registration of Muslim marriages.”

78 To a random sample questionnaire circulated among college students and adults in Singapore in 1964, 100% of the 183 persons who responded said they knew of or had heard of people who had entered into “non-legal” secondary relationships despite the passage of the Women's Charter. Of course such a survey is not very meaningful, but seems to indicate that there is general belief that the provisions of the Charter re secondary wives are not being obeyed.

79 The need to introduce the secondary wife to the primary wife—who was almost always taken first—and thus have her accepted at a tea ceremony is one traditional aspect that could have been utilized as a preliminary basis for the reform of Chinese law. The underlying basis for the taking of a secondary wife was to continue the family line, and this could have been die ideological basis for further restrictions, etc. For example, emphasis upon the fact that to “… the Prophet Mohammed divorce is the most detestable of all permitted things …” has provided an ideological basis for reform of divorce under the Muslim Ordinance, 1957, in Singapore. See Ahmad Ibrahim, State Advocate-General, Singapore, “Muslim Marriage and Divorce in Singapore,” XXVIII M. L. J. (1962), p. xi, p. xiv.Google Scholar

80 See also 82 (2) and (3) which provide that the court will similarly have no authorization to make decrees of nullity or judicial separation and restoration of conjugal rights unless the marriage was contracted under a monogamous marriage law, in addition to which in the case of nullity the “marriage to which die decree relates” must have been celebrated in Singapore. In the case of judicial separation or restitution of conjugal rights, the parties of the marriage must in addition reside in Singapore at the time of the commencement of proceedings.

81 Part IX, 81 provides that, subject to exceptions contained in the ordinance, “… the court shall in all suits and proceedings hereunder act and give relief on principles which in the opinion of the court are, as nearly as may be, conformable to the principles on which the High Court of Justice in England acts and gives relief in matrimonial proceedings.”

82 82 (1) (a). See also Part XI, 166, which may be construed to deem all legal “customary” marriages to be registered under die ordinance, if contracted prior to its enactment.

83 But see Bartholomew, G. W., “Recognition of Polygamous Marriages in America” 13 I. C. L. Q. (1964)Google Scholar which purports to show that Mormon marriages were never potentially polygamous in Utah because the law prohibited such polygamous unions at the time Hyde v. Hyde was decided. Bartholomew feels that the American courts have dealt with the problem of polygamous marriages “… far more neatly … logically and consistently than the English courts.” The American courts define polygamy as dc facto polygamy and even in such cases may be willing to give legal affects to some incidents of such unions. These cases, the author holds, “… demonstrate very clearly that there exists an acceptable alternative to the policy of marital apartiieit followed by the English courts” (p. 1075).

Potentially polygamous marriages are given some indirect recognition by English courts, e.g., Baindal v. Baindal [1946] P. 122Google Scholar; Sinha Peerage Claim (1939) 171 Lords Jo. 350Google Scholar [1946] 1 All E. R. 348; see also 48 L. Q. R. 341; 66 Harvard Law Review 961; 31 B. Y. B. I. L. 248; and 19 M. L. R. 690.

84 Cowen, Zelman, “A Note on Potentially Polygamous Marriages,” 12 International and Comparative Law Quarterly, p. 1407 (1963).CrossRefGoogle Scholar

85 E.g., Sara v. Sara (1962) 31 D.L.R. (2 cd) 566Google Scholar; Cheni v. Cheni [1963] 2 W. L. R. 17Google Scholar. The court held in Cheni v. Cheni that where a marriage, potentially polygamous at its inception, becomes monogamous by the lex loci celebrationis at the date of suit, the court would have jurisdiction. In Sara v. Sara, a Hindu form of marriage was consummated in India, which permitted polygamy at die time of celebration. The husband diereafter acquired a domicile of choice in British Columbia and the Hindu law was changed to make polygamous marriages illegal in India. The court retained jurisdiction over the marriage.

85 See Lee Wah Fui v. Law, Times, March 4, 1964Google Scholar, Cairns J. In this recent English case the parties were married in Hong Kong by Chinese traditional custom in 1942. In 1959 they entered a contract of mutual divorce and the husband returned to England where he is domiciled, and wishing to remarry diere wanted first to ascertain die validity of his divorce. In view of die importance of this case, the Queen's proctor was called in and he requested that the court avoid die difficulty of jurisdiction in view of the fact diat the marriage was originally potentially polygamous, by deciding diat “die divorce was valid to dissolve any marriage in fact celebrated.” He cited Russ v. Rust [1962] 3 W. L. R. 930Google Scholar, and Merger v. Merger [1963] P. 283Google Scholar. The final decision has been rendered in Lee v. Law [1964] 2 All E. R. 248Google Scholar. The court held that, although die marriage was potentially polygamous, the divorce validly dissolved any marriage between the husband and wife. The court did not determine whether or not a valid marriage was celebrated, but avoided that question by narrowing the issue to whether or not the husband was free to marry. The court said diat cognizance can be taken of a potentially polygamous marriage for some circumstances, including the facts in this case, without necessarily determining whether the marriage was valid in the first place. The court's reasoning is somewhat specious, in that unlike the legitimacy of offspring or questions of property rights, in determining die question of the legitimacy of a divorce the validity of the original marriage is more directly at issue. Nevertheless this is some indication of the lengths courts are willing to go to avoid the consequences of Hyde v. Hyde. See also Shahnaz v. Rizwan [1964] 2 All E.R. 993Google Scholar enforcing a contract for deferred mehar or dower in an English court, arising out of a potentially polygamous marriage. See P. R. H. Webb, “Polygamy and the Eddying Winds,” 14 I. C. L. Q. 273 (1965).

87 There have been recent discussions in Malaysia about the possibility of eliminating this adversary divorce proceeding from the Singapore statute in view of the premium it puts upon perjury and in view of its undesirable social effects.

88 See Lo Siew Ying v. Chong Fay (1959) S. C. R. 1 at p. 3Google Scholar, where Mr. Kong Fen Fatt, former Registrar of Chinese Marriages for the Hakka community testified that according to modern Hakka custom “… if the parties were incompatible the wife could get a divorce even if the husband refused to agree.” Query as to whether legal ratification of such custom, if it exists, is desirable? See Tang Sui Ing v. Goh Tiew Liong (1964) 30 M.L.J. 406Google Scholar (Siba) where the Foochow Chinese headman testified as to customary divorce among the Foochow community. He claimed a marriage contracted under Foochow Chinese custom may be dissolved if there is a complete and absolute desertion by either party, or absolute failure on the part of the husband to maintain the wife and children, for at least two years; or if die parties are completely out of sympathy with one another. Serious questions arise about both the reality of such customs and the desirability of giving them judicial sanction, if they exist.

89 For example in Yong Mong Yung v. Chat Shang (1964) 30 M. L. J. 424 (Kuching)Google Scholar. The court, while calling for evidence of Hakka custom on divorce merely found “… there is no custom governing divorce among [the] … community, the modern practice being to leave it to the courts.” There is substantial doubt as to this being modern practice and doubt whether the community lacks custom regarding divorce, but in that the court feels it must rely upon experts when dealing with this question, if the experts are inadequate such a result is possible. The court thereupon examined the question of cruelty and finding none, disallowed the divorce. This decision by Williams, C. J. is one of the poorer judgments in this area, arising from lack of information about the people, area and prior cases in Sarawak. See for example (1959) S.C.R. 1, cited in preceding footnote.

90 See Freedman, , Chinese Family and Marriage …, pp. 155–177Google Scholar, for an interesting study of modern forms of marriage among groups of Chinese in Singapore. It should be emphasized that the social structure of various Chinese communities differs and that this should be considered in evaluating Chinese law.

91 See Buxbaum, David C., “Preliminary Trends in the Development of the Legal Institutions of Communist China and the Nature of the Criminal Law,” International and Comparative Law Quarterly (1962), 1, at p. 1CrossRefGoogle Scholar, for some information on the attempt by the government on the Chinese mainland to foster formal and informal institutions to handle legal matters. See also Buxbaum, David C., Osteuropa Rechi No. 1, 1964Google Scholar, for some notes regarding possible traditional influences upon legal development in mainland China.

92 Straits Times, October 2, 1963, at p. 7.Google Scholar

93 See Marshall, H. H., “The Judicial Committee of the Privy Council: A Waning Jurisdiction” 13 International and Comparative Law Quarterly 697 (1964)CrossRefGoogle Scholar. The original right to hear appeals from colonial and dominion courts was a prerogative of the King and it was in 1833 that the King's power was delegated to the Judicial Committee of the Privy Council. In debates which resulted in elimination of the Privy Council's jurisdiction over appeals from die courts of the Irish Free State in 1933, Senator Conally noted: “A State, from the decisions of whose court an appeal lies to any court or tribunal or authority outside itself cannot be said to possess judicial sovereignty in the fullest sense.” In Canadian debates it was noted that appeals to the Privy Council were often decided upon grounds of Imperial political policy, as some of the members of the Council had admitted. All appeals from Canadian courts were abolished in 1949, from Burmese courts in 1947, from Israel in 1948, from India in 1949, from Pakistan in 1950, from South Africa in 1950, from Somalia in 1960, from Ghana in 1960, from Cyprus in 1960, from Cameroon Republic in 1961, from Tanganyika in 1962, from Nigeria in 1963, and from Zanzibar in 1963. A factor in abolishment of the Privy Council's appeal jurisdiction has often been their lack of intimate knowledge of local conditions or of the local legal system (p. 708). Limited appeal lies from the High Court of Australia and appeal lies from the courts of New Zealand. Kenya has continued to permit appeals as have Northern Rhodesia, Nayasaland and Ceylon.

94 As has been noted: “A society can be forced to modernize under the impact of external forces, and indeed in the 19th- and 20th-century modernization has meant, to a very large extent, the impingement of Western European institutions on new countries in the Americas, in Eastern and Southern Europe, and in Asia and Africa. Some of these societies have never—or not yet—gone beyond adaptation to these external impingements. Lacking a high degree of internal adaptability, many become stagnant after having started on the road to modernity, or their modern frameworks have tended to break down.” Eisenstadt, S. N., “Transformation of Social, Political and Cultural Orders in Modernization,” American Sociological Review (October, 1965) p. 659, 660.CrossRefGoogle Scholar