Customary Law October 2008 Question 5

(a) Customary law are personal laws which are applicable to particular racial, religious or ethnic groups. It can be define as a regular pattern of social behaviour which has been accepted by the bulk of a given society as binding upon its members. This is due to the benefits it can gain such as it encourages inter-personal relations and maintain cohesive society for the individual and collective betterment. This custom will be enforced by courts and have a legal consequence on its breach such as legal moral and social sanctions. Customary law exists where a certain legal practice is observed and the relevant actors consider it to be law In international law, customary law refers to the Law of Nations or the legal norms that have developed through the customary exchanges between states over time, whether based on diplomacy or aggression. Essentially, legal obligations are believed to arise between states to carry out their affairs consistently with past accepted conduct. Customary law is not much relevant to the Chinese and Indian communities today as it has been curtailed by the existence of the Law Reform Act 1976. However, natives of Sabah and Sarawak are still enjoying the usage of customary laws on a daily basis. In the Peninsular, Malay customary laws are still applied and most importantly in Negeri Sembilan in some aspects of family law and inheritance.

(b) The Six Widows Case discuss on the application of Chinese customary law that is applied in Malaysia. Due to the absence of precedents from China and authoritative text as, courts had decided for the case based on English law. Based on the facts, a rich Chinese man died intestate leaving a vast fortune. He married women as primary wife predeceased him leaving one son. However, there are Six other women claimed to be his widows, some having children with him including one born before marriage. Issue arose on whether all the women have equal status and entitled equal shares from the husbands property. Besides that, whether the children were legitimate as required by the English Statute of Distributions 1670. Based on this case, it concluded that the requirements for formal validity of marriage were the same for first wife and other wives which are a long-continued cohabitation, intention to form a permanent union and public repute. The court held that Chinese customary marriages were polygamous. Thus four of the women were lawfully married where consist of the primary wife or tsai and others named as inferior wives or concubine called tsip. However, another two of the women failed in their claims as they did not undergo solemnization. The law based on this case treated these marriages as of equal status among the 4 of the widows. They are entitled of equal shares from the husbands property and were given same rights to administer the deceaseds estate. Moreover, children of all the wives will be considered legitimate, even born after marriage. Thus, entitle to inherit equally with the children of first wife. By this case of huge proportions, the court also afrmed the common law of legitimacy as received law in the Straits Settlements, although the way it was applied to the Chinese who were held to be allowed to marry polygamous would not be familiar to a common lawyer in England. Even a male child could only succeed to a fathers intestate estate, not just on proof of biological connec tion (as Chinese custom would likely have allowed), but additionally on proof that the conception or

birth had legitimately taken place during the subsistence of a valid marriage between his parents. To analyse the case, question should be asked on what is considered as marriage. According to English matrimonial law, marriage is a monogamous contract between a man and a woman. Obviously that definition does not suit the judgement made by the courts in this case. However, while referred to the Chinese law, marriage refers to a monogamous contract where a husband can only have one lawful and official wife at a time but it is clear in Chinese custom that Chinese man is permitted to take any number of inferior wives. Besides that, based on the case of Choa Choon Neoh v Spttiswoode, court held that polygamous marriages were to be recognized by law of the Strait Settlement for the reason that it was settled law by the Second Charter of Justice which subject to the qualification that English law that was received was to be applied subject to local religions, manners and customs. However, by the emergence of Law Reform Marriage Act, had abolished the polygamous marriages among non-Muslims including Chinese.