KWONG

Interim Decision #2434




                          MATTER OP EWONG, at al.

                         In Visa Petition Proceedings
                              A-19287469-70-71-72

                    Decided by Board September 18, 1975
Section 15 of ti e Marriage Reform Ordinance of Hong, Kong, which became effective
  October 7, 1971, and which provides that a marriage contracted according to Chinese
  law and custom subsisting on that date and registered in accordance with Part IV of
  that Ordinanc e may be dissolved, is not the sole method by which a customary marriage
  may be dissolved on or after October ?,1971; an unregistered customary marriage may
  still be dissolved in Hong Kong in accordance with Chinese law and custom.
ON BEHALF OF PETITIONER: Pro se



     In a decision dated March 14, 1975, we dismissed the appeal taken
  from the Service's denial of the four visa petitions submitted in behalf of
  the beneficiaries. The Service has submitted a motion requesting that
  we reconsider that decision. The motion will be granted, the proceedings reopened and the record remanded to the Service.
     The petitioner is a citizen of the United States. He seeks immediate
  relative status under section 201(b) of the Immigration and Nationality Act for the beneficiaries, his wife and three stepchildren. The
  adult female beneficiary is a native of China, and the children are
  natives of :Kong Kong. The children are evidently the offspring of a
  marriage celebrated under Chinese law and custom between the adult
  female beneficiary and her former husband.
     The petitions were initially denied on the ground that the present
  marriage between the petitioner and the adult female beneficiary was
  not valid. The invalidity of the present marriage was allegedly the
  result of the failure of the adult female beneficiary to dissolve her
  former marriage properly. The question we must decide is whether this
  former marriage was legally terminated in Hong Kong under Chinese
  law and custom.
     Although the petitioner's wife disputes the existence of a prior
  marriage, there is significant evidence in the record indicating that she
  contracted a marriage in accordance with Chinese law and custom. That
  marriage appears to have been terminated in September of 1974 by a
   mutual consent divorce executed in Hong Kong pursuant to Chinese
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  customary law. The Officer in Charge at Hong Kong, however, denied
  the petitions on the basis of section 15 of the Hong Kong Marriage
  Reform Ordinance, which became effective on October 7, 1971.
   The pertinent portion of section 15 of the Marriage Reform Ordinance
states:
    (1) A customary marriage subsisting on the appointed day (October 7, 1971) and
  registered in accordance with Part IV may where at least one party to the marriage has a
  substantial connexion with Hong Kong be dissolved on or after that day in accordance
  with this Part.
   The officer in charge evidently interpreted section 15 as establishing
the sole method by which a customary marriage may be dissolved on or
after the "appointed day." In our decision of March 14, 1975, we implicitly
accepted that interpretation. However, in several subsequent unreported decisions we have questioned whether section 15 of the Marriage
Reform Ordinance applies in any respect to a customary marriage not
registered under Part IV of that Ordinance.
   Apparently as a result of these more recent decisions, the officer in
charge obtained the opinion of the Solicitor General of Hong Kong on the
question of the dissolution of unregistered customary marriages. The
Service motion includes a copy of that opinion, which indicates that
unregistered customary marriages may still be dissolved in accordance
with Chinese law and custom.
  The adult female beneficiary's first marriage does not appear to have
been registered under Part IV of the Marriage Reform Ordinance. The
parties to that marriage separated and executed an agreement dissolving
their relationship. That agreement recognizes that a husband-wife relationship existed, provides for the termination of the relationship, pur-'
ports to make each party free to remarry, and provides for the custody of
the children.
   The December 1974 marriage between the petitioner and the adult
female beneficiary appears to have been validly contracted in Hong Kong.
It thus appears that our decision of March 14, 1975 was not correct. The
motion will be granted.
   ORDER: Our order of March 14, 1975 is withdrawn,-the proceedings
are reopened andthe record is remanded to the Service.




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