Chinese Customary Law

CHINESE CUSTOMARY LAW
In the first place, the colonial judiciary could not have fully appreciated , and therefore
applied, elements of traditional Chinese Law in Malaya, the same way they did to Hindu law.
The courts often rely to the Ta-Ching Lu-Li that had been translated into English and also
other minor texts.
In the early days of the colony, British tried to attract Chinese immigrants to Penang
in order to profit their bussiness but there was a little interference due to their way of life. As
the Chinese wanted to be ruled and governed by their own laws, Francis Light commited the
administration of each the community, a Capitan. Capitan is an important person socially and
politically. The Capitan was also the link between the communities and the official British
administration.
The Chinese lived in their own clan and community, which may be grouped along
surnames or types of trade or bussiness. Elements of Chinese custom, such as the setting aside
of property for ancestor worship, gradually gave way to principles of law which were alligned
to the western perception of equity.
The study of recognition and application of Chinese Law and custom will be made on
the following subjects:
A. POLYGAMY1
By Chinese law,custom and usage, the Chinese in China were legal to practise
polygamy unions. Likewise, there was recognition by the courts, both in the Straits
Settlements as well as the Malay States, that the early Chinese settler validly enter the
polygamous unions according to Six Widows Cases.
This custom among the Chinese received the recognition of the Privy Council in case
on appeal of Straits Settlements, Cheang Thye Phin v Tan Ah Loy, where the Lordship agreed
that according to the Chinese Marriage law of marriage, which was applied in Penang in the
case of Chinese residents, a Chinese resident may have secondary wives who have the status
of wife and those who their children were legitimate.
The legal recognition of polygamous unions implies that all the wives of the marriage
would acquire equal legal status and this factor would bear strongly upon issues relating to the
inheritence of the property of the husband upon his decease.
Sharifah Suhana Ahmad (1999), The Malay Customary Law, Malaysian Legal System, 26-39
To the extent, even if the person is Christian in religion but Chinese in race, he could,
nevertheless, contact a valid polygamous unions.
B. CUSTOMARY MARRIAGE CEREMONY2
The legal requirements for a principal marriage and secondary marriage that have
been stated by the High Court in Re Lee Choon Guan, deceased that is, although no
ceremony needed to be proven, it was necessary to prove the followings (i) an
intention to form a permanent union, (ii) long continued cohabitation, (iii) repute of
marriage.
Cohabitation and repute, it would appear, were the two strongest pieces of
evidences in favor of the valid customary marriage. This was clearly addressed by the
court in Woon Kai Chiang v Yeo Pak Yee & Ors which held that, when a Chinese
cohabited with a woman and married another, the persumption of a former marriage
arising from cohabitation and repute was more stronger than the persumption against a
subsequent bigamous marriage.
Subsequently, the courts reduced the requirements for proof of a valid marriage
and accepted a valid marriage on the basis of mutual consent.
C. DIVORCE
The divorce of the secondary wife could be affected by the husband forvarious
causes, including improper conduct. No actual ceremony needed, and all that were
required intention repute.
In the case of Woon Ngee Yew & Ors v Ng Yoon Thai & Ors claimed to be the
widow of Yap Swee, deceased. The defence alleged that she had been divorce during
the lifetime of the deceased. The sufficient evidence to proove that they had been
divorced was when the husband dont want to return to her and he told his various
friends and relations about the divorce matter. So then, the divorce can be constitute
according to the customs among the Chinese in Perak.
The courts acceptence of Chinese customs in marriage and divorce remains of
pure acedemic interest only.
Sharifah Suhana Ahmad (1999), The Malay Customary Law, Malaysian Legal System, 26-39

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CHINESE CUSTOMARY LAW

B. CUSTOMARY MARRIAGE CEREMONY2

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