CHINESE CUSTOMARY LAW-NURASILAH BINTI SUHARDI (2016239628)

In the case of Chinese customary law, the main problem faced by the courts in the Malay

Peninsula in the nineteenth century was to ascertain what the substantive principles of this law

should be. There were neither precedent from China nor authoritative texts to fall back on. The

laws of China of the Ching Dynasty were considered unsuitable to regulate the affairs of Chinese

immigrants with their different social conditions.

In the 25 years after 1912, the Chinese legal system came into revolution. Traditional

principles were discarded and old laws replaced by codes on Western lines. The court create their

own form of Chinese customary law in the Strait Settlements and Malay states which were subject

to the form and techniques of English law, including the doctrine of stare decisis. The body of that

Chinese customary law were applied to all persons of the race, regardless of their religion or

domicile. It ignored the fact that Chinese people were subject to customs which varied from place

to place in their country of origin. Although it is based on customs originating in Ching China, it

had been considerably modified. It does not only distorting Chinese customs but also rigidifying

them and turning them into a static law. In creating the body of law, the courts were guided by;

evidence given by experts witnesses of the established practice of the Chinese immigrants, some

textbooks on Chinese customs which had acquired a certain degree of recognition, Sir George

Stauntons incomplete English translation of the Ta Ching Lu Li, the law code which contained

some general provisions of family law in Ching China.

In the context of Chinese customary law, there were several matters which should be

resolved by the court which are matters concerning the position of tsip (secondary wife) and her

children, the division of property of the deceased rich who died intestate and adoption.
 The courts had reorganized the Chinese practice of polygamous unions. In the early cases,

the requirements for formal validity of marriage for the tsip(secondary wife) and the tsai (primary

wife) were just the same. The spouses have to fulfill three conditions which are: long-continued

cohabitation, intention to form a permanent union and public repute. All the cases agreed that

mutual consent was necessary and that such consent was to be proved by evidence of some

permanence of the union. However as time has passed, later cases made the requirements less

and less stringent, until the only requirement necessary was proof of mutual consent to marry.

The next issue is traditional Chinese customs recognized the first wife as having a higher

social and legal rank than the second wife in the. However, court had decided under the English

Statute of Distribution 1670, that they shall be entitled to equal status in some respects. For

example in the Six Widows Case, four of the wives were regarded as widows, entitled equal shares

from the husbands property and were given the same rights to administer the deceased estate.

Besides that, children of all the wives were considered legitimate even born after marriage thus

entitle to inherit equally with the first wifes children.

Legitimacy was determined by the domicile of the father. In the case of father possessing

a Chinese domicile, the legitimation by subsequent marriage whether it is monogamous or

polygamous was possible. Somewhat inconsistency, the courts rejected legitimation by subsequent

recognition although this was an established practice in the Strait Settlements.

In addition, the Chinese practice adoption to prevent the extinction of lineage. An adopted

child stands in all respects as a legitimate natural born child in the matter of succession. However,

the Chinese custom of adoption was not recognized in the Straits Settlements and the Malay states.

It was rejected by the Privy Council in Khoo Thiang Bee et Uxor v Tan Beng Guat [1877] 1 Ky

413. It was on the grounds that the Chinese customary law on adoption was uncertain and it would
merely add to the conflict of laws problem in the Straits Settlements where uniformity in the laws

of inheritance must be preserved as far as possible. Legislation also affected the practice of

adoption. The Distribution Ordinance of 1985 restricted the status of adoption to persons formally

adopted under the Adoption Ordinance of 1952. The other situation can be seen in the case of Tan

Kui Lim v Lai Sin Fah. The Federal Court considered the issue of adoption under customary law

of the Hakka community. The son of the deceased mother applied for an order deciding the

adoption of her grandson by the deceased to be null and void. The Federal Court held on the advice

of expert opinion that the adoption was not in accordance with the Chinese customs practice by

Hakka community.

The impact of Law Reform (Marriage and Divorce) 1976 introduced a significant change

to regulate aspects of marriage and divorce among non-Muslims. The changes were made by the

abolished polygamous marriages among non-Muslims and provided irretrievable breakdown of

marriage as a ground of divorce. However the act does not affect the customary form of marriage.

This means that the marriage ceremony can still be in the form of a custom practice by its

community as long as the marriage is registered after the ceremony.

REFERENCES:

1. Wan Arfah Hamzah. (2009). A First Look at the Malaysian Legal System: Oxford Fajar.

2. Customary law. (2014) .Retrieved from

http://www.slideshare.net/mobile/nelfiamiera/customary-law-4