In the High Court decision, in the matter of the Estate of Lui Kwan Cheung,[1] the Hong Kong Special Administrative Regional Court of Appeal addressed whether the mental incapacity of a party to a marriage renders a marriage void or voidable. In Cheung, the Hong Kong Court of Appeal upheld the lower court decision which found that such a marriage is voidable only, and not void. This is an important and consequential distinction in capacity to Marry proceedings.
The marriage in question was alleged to be predatory in nature by the family of the deceased. I have previously written extensively on predatory marriages and the capacity to marry.[2] However, what is unique about the decision in Cheung is its detailed and fulsome historical analysis regarding the history of legislative rules concerning provisions for a voidable marriage based on unsoundness of mind, or mental disorder.
Background
The matter concerns Lui Kwan Cheung (the “Deceased”) who was born in 1929 and died on July 31, 2014, at the age of 85. The nephew of the Deceased (the “Nephew”) claimed the Deceased made a will in 1994 (the “1994 Will”) which names he and other family members as beneficiaries.[3]
Madam Ng (the “Defendant”) claims to be the widow of the Deceased, pursuant to their purported marriage on August 1, 2010 (the “2010 Marriage”). The Defendant also claims the Deceased made a will on August 21, 2010 (the “2010 Will”), appointing her sole executrix and beneficiary. On December 1, 2015, she was granted probate of the 2010 Will.[4]
The Nephew claims that the Deceased never married and had no children. He also claims the Deceased did not in any event have the requisite capacity to enter into the 2010 Marriage nor, to execute the 2010 Will, which he claims was void and/or a product of the undue influence of the Defendant.
In 2019, the Nephew, commenced proceedings against the Defendant. Amongst his allegations, was one that related to another action, where the Defendant had previously stated in June 2010 that the Deceased had been diagnosed as suffering from an advanced state of Alzheimer’s and incapable of managing his daily business.[5]
The Nephew’s claim was that the marriage was void, not just voidable. The Defendant issued a summons for an order that the Nephew’s claim be struck on the grounds that annulment of the 2010 Marriage is barred under s.20(4) of Hong Kong’s Matrimonial Causes Ordinance (“MCO”). Here, it was argued that the court shall not grant a decree of nullity on the grounds that a marriage is voidable unless the court is satisfied that the proceedings were instituted within three years from the date of the marriage.
In a decision dated August 11, 2020, the Nephew’s pleading seeking relief that the 2010 Marriage was invalid and/or null and void, was struck. The Nephew appealed. The singular issue on appeal before the court was whether it is arguable that the 2010 Marriage was void. In upholding the lower court decision that the 2010 marriage was voidable and not void, the court provided an extensive review of the relevant common law, and statutory legal developments in both England and Hong Kong.
At the heart of the appeal was the construction of s.20 of the MCO and the differences between the original s.20 (which applies to marriages that took place before July 1, 1972) and the current s.20. The Nephew’s position was that references to “unsound mind,” “mental disorder,” or “insanity” under the original s.20 as grounds for rendering a marriage voidable do not have the effect of displacing the general law that a marriage is void where one party lacks mental capacity to understand the nature of marriage.
The Decision
The court looked at the distinction between the grounds for a declaration that a marriage be void, and grounds for a voidable marriage. It was held that pursuant to s.20(1) of the MCO, there are no grounds upon which a marriage shall be void for mental incapacity. Rather, s.20(2) of the MCO sets out the grounds on which a marriage is voidable, including expressions relating to mental incapacity, such as “unsoundness of mind” and “suffering … from mental disorder.”[6]
The Nephew, through his counsel, relied on s.20(1)(b) of the MCO for his proposition that the “marriage is otherwise invalid by the law of Hong Kong,” and submitted that there is a common law rule that a marriage is void where one of the parties lacks the mental capacity to understand the nature of marriage at the time of its celebration.[7] In response to this submission, the court engaged in the review of the common law rule and its position in both England and Hong Kong.
The Common Law Rule
The court noted that the Common Law Rule originated from a doctrine of canon law which was adopted by ecclesiastical law,[8] and explored in the early English authorities of Turner v. Meyers[9] and Browning v. Reane.[10] Similarly, in 1857 the Matrimonial Causes Act (“MCA 1857”) was introduced which had the effect of transferring the jurisdiction exercised by ecclesiastical courts in relation to nullity proceedings to the common law courts. The MCA 1857 did not, however, specify any statutory grounds upon which a marriage may be rendered void or voidable.[11]
Statutory Grounds of Voidability
In 1937, s.7 of the Matrimonial Causes Act 1937 (“MCA 1937”) provided, for the first time, statutory authority for the grounds upon which a marriage shall be voidable.[12] Section 7(1)(b) MCA 1937 eventually became s.8(b) Matrimonial Causes Act 1950.
In 1970, the Law Commission in England published its 1970 Law Commission Report which recommended a comprehensive codification of the law on nullity.[13] Based on these recommendations, the Nullity of Marriage Act 1971 (“NMA 1971”) was enacted. Section 2 provides that a marriage shall be voidable on several grounds.[14] Section 2(c) of the NMA 1971 eventually became s.12(c) Matrimonial Causes Act 1973.
Hong Kong’s Position
The first statute in Hong Kong providing for divorce, was the Divorce Ordinance 1932 (“DO 1932”). Section 3 of DO 1932 provided that, “subject to the provisions in this 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 for the time being acts and gives relief in matrimonial proceedings.[15]
The DO 1932 provided the court with the jurisdiction to declare a marriage void (as opposed to voidable). Importantly, s.13(c) of the DO 1932 provided for the two causes of mental incapacity rendering a marriage void under Common Law Rule (pursuant to Browning and Turner).
The court in Cheung did not accept the Nephew’s alternative argument that the Common Law Rule was incorporated and formed part of Hong Kong law by virtue of s.3 DO 1932. Rather, the court in Cheung, held that while the Common Law Rule was codified in s.13(c) DO 1932 in Hong Kong, it ceased to exist when s.13(c) of the DO 1932 was repealed. The court did, however, acknowledge that when the Hong Kong legislature adopted the provisions in NMA 1971, a comprehensive statutory code setting out the grounds on which a marriage shall be voided in Hong Kong was implemented.
Disposition
The court held that the lower court Judge was correct to strike out the parts of the Nephew’s Statement of Claim which sought to plead that the 2010 Marriage was null and void on the ground that the Deceased had no mental capacity at the time of the marriage.[16]
The appeal was dismissed with an order nisi that the costs of the appeal be paid by the Plaintiff to the Defendant.
Concluding Comments
Despite clear evidence which indicated that the Deceased was likely incapable of contracting into a marriage, the court in Cheung did not grant the Nephew standing to challenge the marriage. This case turned on the ever-important distinction between being able to discern whether a marriage could be characterized as a void, or voidable marriage.
The court was live to the fact that the Deceased suffered from mental deficits which would have made the marriage voidable however was not of the view that the 2010 Marriage was null and void. In this circumstance, pursuant to s.20(4) of the MCO, the Deceased would have had to annul the marriage within three years of entering it.
With the number of predatory marriage cases on the rise, it is always interesting to see how these complex matters are treated in different jurisdictions and to compare the different statutes which are relevant to marriages and the determination of the requisite capacity to marry.
—
[1] CACV 418/2020, [2023] HKCA 865, on appeal from [2020] HKCFI 1243 [Cheung].
[2] See WEL Partners, “Predatory Behaviours and the Vulnerable Client: A Quiet Welfare Disaster?” prepared for the STEP Global Congress, London, United Kingdom, July 7-8, 2022, available online: http://welpartners.com/resources/WEL-STEP-Congress-Predatory -Marriages.pdf; See also Albert Oosterhoff, “Curbing the Scourge of Predatory Marriages by Legislation” (November 12, 2019), WEL Partners Blog, accessed online: http://welpartners.com/blog/2019/11/curbing-the-scourge-of-predatory-marriages-by-legislation/
[3] Cheung, supra note 1 at paras 26-27.
[4] Ibid., at para 27.
[5] Ibid., at para 30.
[6] Ibid., at para 42.
[7] Ibid., at para 43.
[8] See The Law Commission’s Report on Nullity of Marriage (1970) §11.
[9] (1808) Hagg Con 414 [Turner]. In Turner, a husband, after recovering from insanity, brought proceedings to annul a marriage on the ground of his insanity at the time of the marriage. The court in Turner pronounced the marriage null and void and Sir William Scott held that “a party may come forward to maintain his own past incapacity” and that “a defect of incapacity invalidates the contract of marriage” for “want of consent.”
[10] (1812) 2 Phill Ecc 69 [Browning]. Browning, was a case which concerned a husband who sought administration of the effects of his wife who died intestate. The wife’s nephew alleged that at the time of the marriage, the deceased was incapable of contracting a marriage due to her mental deficiency. In Browning, Sir John Nicholl referred to marriages contracted by the antiquated terms ‘idiot’ and ‘lunatic,’ which are unacceptable terms today but commonplace in the 19th century. Sir John Nicholl held that these marriages are absolutely void.
[11] Cheung, supra at paras 45-49.
[12] Section 7(1)(b) of the MCA 1937 provided that “in addition” to any other grounds” on which a marriage is by law “void or voidable,” a marriage shall be voidable on the ground that either party to the marriage was at the time of the marriage “of unsound mind” or a “mental defective” within the meaning of the Mental Deficiency Acts 1913 or 1927.
[13] In §96 of the 1970 LC Report, the LC recommended that the law relating to nullity “should be incorporated in a comprehensive statute setting out the grounds on which a marriage governed by English law is (i) void or (ii) voidable).
[14] Including, “that either party to the marriage did not validly consent to it, whether in consequence of .. unsoundness of mind or otherwise” or “that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from a mental disorder within the meaning of the Mental Health Act 1959 of such a kind or to such an extent as to be unfitted for marriage.
[15] Cheung, supra at para 61.
[16] Cheung, supra at para 91.
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Written by: WEL Partners
Posted on: April 25, 2024
Categories: Commentary, WEL Newsletter
In the High Court decision, in the matter of the Estate of Lui Kwan Cheung,[1] the Hong Kong Special Administrative Regional Court of Appeal addressed whether the mental incapacity of a party to a marriage renders a marriage void or voidable. In Cheung, the Hong Kong Court of Appeal upheld the lower court decision which found that such a marriage is voidable only, and not void. This is an important and consequential distinction in capacity to Marry proceedings.
The marriage in question was alleged to be predatory in nature by the family of the deceased. I have previously written extensively on predatory marriages and the capacity to marry.[2] However, what is unique about the decision in Cheung is its detailed and fulsome historical analysis regarding the history of legislative rules concerning provisions for a voidable marriage based on unsoundness of mind, or mental disorder.
Background
The matter concerns Lui Kwan Cheung (the “Deceased”) who was born in 1929 and died on July 31, 2014, at the age of 85. The nephew of the Deceased (the “Nephew”) claimed the Deceased made a will in 1994 (the “1994 Will”) which names he and other family members as beneficiaries.[3]
Madam Ng (the “Defendant”) claims to be the widow of the Deceased, pursuant to their purported marriage on August 1, 2010 (the “2010 Marriage”). The Defendant also claims the Deceased made a will on August 21, 2010 (the “2010 Will”), appointing her sole executrix and beneficiary. On December 1, 2015, she was granted probate of the 2010 Will.[4]
The Nephew claims that the Deceased never married and had no children. He also claims the Deceased did not in any event have the requisite capacity to enter into the 2010 Marriage nor, to execute the 2010 Will, which he claims was void and/or a product of the undue influence of the Defendant.
In 2019, the Nephew, commenced proceedings against the Defendant. Amongst his allegations, was one that related to another action, where the Defendant had previously stated in June 2010 that the Deceased had been diagnosed as suffering from an advanced state of Alzheimer’s and incapable of managing his daily business.[5]
The Nephew’s claim was that the marriage was void, not just voidable. The Defendant issued a summons for an order that the Nephew’s claim be struck on the grounds that annulment of the 2010 Marriage is barred under s.20(4) of Hong Kong’s Matrimonial Causes Ordinance (“MCO”). Here, it was argued that the court shall not grant a decree of nullity on the grounds that a marriage is voidable unless the court is satisfied that the proceedings were instituted within three years from the date of the marriage.
In a decision dated August 11, 2020, the Nephew’s pleading seeking relief that the 2010 Marriage was invalid and/or null and void, was struck. The Nephew appealed. The singular issue on appeal before the court was whether it is arguable that the 2010 Marriage was void. In upholding the lower court decision that the 2010 marriage was voidable and not void, the court provided an extensive review of the relevant common law, and statutory legal developments in both England and Hong Kong.
At the heart of the appeal was the construction of s.20 of the MCO and the differences between the original s.20 (which applies to marriages that took place before July 1, 1972) and the current s.20. The Nephew’s position was that references to “unsound mind,” “mental disorder,” or “insanity” under the original s.20 as grounds for rendering a marriage voidable do not have the effect of displacing the general law that a marriage is void where one party lacks mental capacity to understand the nature of marriage.
The Decision
The court looked at the distinction between the grounds for a declaration that a marriage be void, and grounds for a voidable marriage. It was held that pursuant to s.20(1) of the MCO, there are no grounds upon which a marriage shall be void for mental incapacity. Rather, s.20(2) of the MCO sets out the grounds on which a marriage is voidable, including expressions relating to mental incapacity, such as “unsoundness of mind” and “suffering … from mental disorder.”[6]
The Nephew, through his counsel, relied on s.20(1)(b) of the MCO for his proposition that the “marriage is otherwise invalid by the law of Hong Kong,” and submitted that there is a common law rule that a marriage is void where one of the parties lacks the mental capacity to understand the nature of marriage at the time of its celebration.[7] In response to this submission, the court engaged in the review of the common law rule and its position in both England and Hong Kong.
The Common Law Rule
The court noted that the Common Law Rule originated from a doctrine of canon law which was adopted by ecclesiastical law,[8] and explored in the early English authorities of Turner v. Meyers[9] and Browning v. Reane.[10] Similarly, in 1857 the Matrimonial Causes Act (“MCA 1857”) was introduced which had the effect of transferring the jurisdiction exercised by ecclesiastical courts in relation to nullity proceedings to the common law courts. The MCA 1857 did not, however, specify any statutory grounds upon which a marriage may be rendered void or voidable.[11]
Statutory Grounds of Voidability
In 1937, s.7 of the Matrimonial Causes Act 1937 (“MCA 1937”) provided, for the first time, statutory authority for the grounds upon which a marriage shall be voidable.[12] Section 7(1)(b) MCA 1937 eventually became s.8(b) Matrimonial Causes Act 1950.
In 1970, the Law Commission in England published its 1970 Law Commission Report which recommended a comprehensive codification of the law on nullity.[13] Based on these recommendations, the Nullity of Marriage Act 1971 (“NMA 1971”) was enacted. Section 2 provides that a marriage shall be voidable on several grounds.[14] Section 2(c) of the NMA 1971 eventually became s.12(c) Matrimonial Causes Act 1973.
Hong Kong’s Position
The first statute in Hong Kong providing for divorce, was the Divorce Ordinance 1932 (“DO 1932”). Section 3 of DO 1932 provided that, “subject to the provisions in this 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 for the time being acts and gives relief in matrimonial proceedings.[15]
The DO 1932 provided the court with the jurisdiction to declare a marriage void (as opposed to voidable). Importantly, s.13(c) of the DO 1932 provided for the two causes of mental incapacity rendering a marriage void under Common Law Rule (pursuant to Browning and Turner).
The court in Cheung did not accept the Nephew’s alternative argument that the Common Law Rule was incorporated and formed part of Hong Kong law by virtue of s.3 DO 1932. Rather, the court in Cheung, held that while the Common Law Rule was codified in s.13(c) DO 1932 in Hong Kong, it ceased to exist when s.13(c) of the DO 1932 was repealed. The court did, however, acknowledge that when the Hong Kong legislature adopted the provisions in NMA 1971, a comprehensive statutory code setting out the grounds on which a marriage shall be voided in Hong Kong was implemented.
Disposition
The court held that the lower court Judge was correct to strike out the parts of the Nephew’s Statement of Claim which sought to plead that the 2010 Marriage was null and void on the ground that the Deceased had no mental capacity at the time of the marriage.[16]
The appeal was dismissed with an order nisi that the costs of the appeal be paid by the Plaintiff to the Defendant.
Concluding Comments
Despite clear evidence which indicated that the Deceased was likely incapable of contracting into a marriage, the court in Cheung did not grant the Nephew standing to challenge the marriage. This case turned on the ever-important distinction between being able to discern whether a marriage could be characterized as a void, or voidable marriage.
The court was live to the fact that the Deceased suffered from mental deficits which would have made the marriage voidable however was not of the view that the 2010 Marriage was null and void. In this circumstance, pursuant to s.20(4) of the MCO, the Deceased would have had to annul the marriage within three years of entering it.
With the number of predatory marriage cases on the rise, it is always interesting to see how these complex matters are treated in different jurisdictions and to compare the different statutes which are relevant to marriages and the determination of the requisite capacity to marry.
—
[1] CACV 418/2020, [2023] HKCA 865, on appeal from [2020] HKCFI 1243 [Cheung].
[2] See WEL Partners, “Predatory Behaviours and the Vulnerable Client: A Quiet Welfare Disaster?” prepared for the STEP Global Congress, London, United Kingdom, July 7-8, 2022, available online: http://welpartners.com/resources/WEL-STEP-Congress-Predatory -Marriages.pdf; See also Albert Oosterhoff, “Curbing the Scourge of Predatory Marriages by Legislation” (November 12, 2019), WEL Partners Blog, accessed online: http://welpartners.com/blog/2019/11/curbing-the-scourge-of-predatory-marriages-by-legislation/
[3] Cheung, supra note 1 at paras 26-27.
[4] Ibid., at para 27.
[5] Ibid., at para 30.
[6] Ibid., at para 42.
[7] Ibid., at para 43.
[8] See The Law Commission’s Report on Nullity of Marriage (1970) §11.
[9] (1808) Hagg Con 414 [Turner]. In Turner, a husband, after recovering from insanity, brought proceedings to annul a marriage on the ground of his insanity at the time of the marriage. The court in Turner pronounced the marriage null and void and Sir William Scott held that “a party may come forward to maintain his own past incapacity” and that “a defect of incapacity invalidates the contract of marriage” for “want of consent.”
[10] (1812) 2 Phill Ecc 69 [Browning]. Browning, was a case which concerned a husband who sought administration of the effects of his wife who died intestate. The wife’s nephew alleged that at the time of the marriage, the deceased was incapable of contracting a marriage due to her mental deficiency. In Browning, Sir John Nicholl referred to marriages contracted by the antiquated terms ‘idiot’ and ‘lunatic,’ which are unacceptable terms today but commonplace in the 19th century. Sir John Nicholl held that these marriages are absolutely void.
[11] Cheung, supra at paras 45-49.
[12] Section 7(1)(b) of the MCA 1937 provided that “in addition” to any other grounds” on which a marriage is by law “void or voidable,” a marriage shall be voidable on the ground that either party to the marriage was at the time of the marriage “of unsound mind” or a “mental defective” within the meaning of the Mental Deficiency Acts 1913 or 1927.
[13] In §96 of the 1970 LC Report, the LC recommended that the law relating to nullity “should be incorporated in a comprehensive statute setting out the grounds on which a marriage governed by English law is (i) void or (ii) voidable).
[14] Including, “that either party to the marriage did not validly consent to it, whether in consequence of .. unsoundness of mind or otherwise” or “that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) from a mental disorder within the meaning of the Mental Health Act 1959 of such a kind or to such an extent as to be unfitted for marriage.
[15] Cheung, supra at para 61.
[16] Cheung, supra at para 91.
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