Lui Ming Lok (雷明樂) v Ng Im Fong Loretta (伍艷芳) [2023] 4 HKLRD 37, [2023] HKCA 865
Robert Pang SC, leading Jeff Yau, represented the defendant in Lui Ming Lok (雷明樂) v Ng Im Fong Loretta (伍艷芳) [2023] 4 HKLRD 37, [2023] HKCA 865.
In the context of claims under rival wills, the High Court struck out P’s pleading that the mental capacity of the party to a marriage rendered the marriage void. P appealed to the Court of Appeal against such striking-out. Shortly stated, it was argued on P’s behalf as follows. There exists a rule of the English common law, originating from a doctrine of canon law adopted by ecclesiastical law, that the marriage was void where, at the time when it was celebrated, one of the parties to it lacked the mental capacity to understand the nature of a marriage. That common law rule had always been a part of Hong Kong law and it had been preserved here by Hong Kong matrimonial legislation.
Held, dismissing the appeal, that:
- (1) Mental incapacity of a party to a marriage rendered the marriage voidable and not void. (See paras.2-4, 91, 94.)
- (2) Even if, for the sake of argument, the common law rule relied upon by P survived the Divorce Ordinance of 1932, by virtue of the Matrimonial Causes Ordinance of 1973, mental incapacity now rendered a marriage voidable and not void (Browning v Reane (1812) 2 Phil Ecc 69 not followed). (See paras.6, 23, 45, 83, 94.)
[The above is excerpted from the headnote to the report in HKLRD.]
