In Lui Ming Lok v Ng Im Fong Loretta, the Court of Appeal examined the issue of whether the mental incapacity of a party to a marriage renders the marriage void or voidable. The Court agreed with the Court of First Instance and concluded that such a marriage is only voidable.

The appeal, which arose from a probate action, turns on the construction of section 20 of the Matrimonial Causes Ordinance (Cap.179) (“MCO”):

1. Under section 20(1)(b) MCO, a marriage which takes place after 30 June 1972 shall be void if “the marriage is otherwise invalid by the law of Hong Kong”; and
   
   

2. Under section 20(2) MCO, a marriage which takes place after 30 June 1972 shall, subject to section 20(3), be voidable if (c) either party to the marriage did not validly consent to it in consequence of “unsoundness of mind” or (d) at the time of marriage, though capable of giving a valid consent, was suffering from “mental disorder” within the meaning of the Mental Health Ordinance (Cap.136).
   

The Plaintiff argued that there is a common law rule that a marriage is void (and not simply voidable) if one of the parties lacked the requisite mental capacity, and that this common law rule has been part of Hong Kong law by reason of section 20(1)(b) MCO.

Yuen JA conducted a detailed examination of the legislative history of relevant statutory provisions in England & Wales and Hong Kong. Her Ladyship considered that the common law rule was codified in section 13(c) of the Divorce Ordinance 1932 (a marriage may be declared null and void if “either party was a lunatic or idiot at the time of the marriage”), but the same was repealed with the enactment of the Matrimonial Causes Ordinance 1967. By the time of the passing of the 1972 amendment to the Matrimonial Causes Ordinance 1967, the common law rule must have ceased to exist in Hong Kong. The reason is that the Hong Kong legislature adopted the Nullity of Marriage Act 1971 (“NMA”), and the NMA was a comprehensive and exclusive statutory code, which did not provide for mental incapacity as a ground for rendering a marriage void (as opposed to voidable).

Cheung JA gave a concurring judgment after examining the legislative history of the statutory provisions. The full judgment can be viewed here.

From Temple Chambers, Paul Shieh SC, instructed by Chiu, Szeto & Cheng, acted for the plaintiff.