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INTERNATIONAL SURVEY
OF FAMILY LAW

2018 Edition

Edited by
Margaret Brinig

Cambridge – Antwerp – Chicago

 CONTENTS

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
List of Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv

Africa
Children and Informal Justice Systems in Africa
Julia Sloth-Nielsen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Ambit and Scope of the Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Characteristics of Informal Justice Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Human Rights Principles and Informal Justice Systems: Challenges
and Promising Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5. Proposals for Engagement with Informal Justice Systems . . . . . . . . . . . . . . 17
6. Conclusions and Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Africa
The Law and the Protection of the Family in Sentencing Primary
Caregivers of Children: Practice from a Few African Countries
Jamil Ddamulira Mujuzi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2. South Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3. Uganda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4. Namibia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Albania
Cross-Border Disputes over Child Custody and Access Rights
and the ECtHR Jurisprudence in the Case of Albania
Ledina Mandija . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
2. Child Custody and Access Rights in Case of Divorce under
the Albanian Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
3. The Enforcement of the Foreign Judgments and Cross-Border
Parental Disputes under the ECtHR Jurisprudence in the Case
of Albania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
4. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

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 Contents

Australia
Greater Recognition of Adults as Individuals?
Grant T. Riethmuller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

1. Marriage Equality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
2. Parents and Children. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
3. Property and Binding Financial Agreements. . . . . . . . . . . . . . . . . . . . . . . . . 84
4. Australian Law Reform Commission Review . . . . . . . . . . . . . . . . . . . . . . . . 95
5. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Belgium
Belgian Family Law Anno 2018
Elisabeth Alofs and Anne-Sophie Vandenbosch . . . . . . . . . . . . . . . . . . . 99

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
2. Marriage and Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
3. Registered Partnerships and Other Partnerships Outside Marriage . . . . 107
4. Filiation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
5. Parental Responsibilities and Child Maintenance . . . . . . . . . . . . . . . . . . . . 113
6. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Brazil
The Necessary Subordination of the Interests and Commitment of Adults
in the Construction of a Preventive Public Policy to Reduce the Sexual
Vulnerability of Children in Brazil
Antonio Jorge Pereira Júnior . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
2. Sexual Exploitation and Sexual Hyper-Culture . . . . . . . . . . . . . . . . . . . . . . 120
3. Full Protection and the Need for Expanded Prevention . . . . . . . . . . . . . . 123
4. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

Canada
Efforts to Address Intimate Partner Abuse and High-Conflict Custody
Disputes in Canada
Martha Bailey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
2. Intimate Partner Abuse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
3. High-Conflict Custody Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
4. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

viii Intersentia
 Contents

China
A Survey on the Intestate Succession Views and Relevant Habits
of Private Entrepreneurs in Contemporary China and its Legislative
Implications
Chen Wei and Shi Lei. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

1. Basic Information about the Respondents . . . . . . . . . . . . . . . . . . . . . . . . . . 148

2. Analysis of the Intestate Succession Ideas and Relevant Habits
of Private Entrepreneurs in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
3. Features and Reasons of the Statistics in this Survey . . . . . . . . . . . . . . . . . 156
4. The Messages Derived from the Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

China
Child Sexual Assault in China and Preventive Education
Xia Li . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

1. Statistical Data of Sexual Assault on Children in 2016. . . . . . . . . . . . . . . . 167

2. The Current Situation of Education Concerning Sexual
Assault Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

England and Wales

To Procreate, or Not, That is the Question
Mary Welstead . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

1. The Desire to Procreate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

2. The Desire Not to Procreate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
3. Court-Ordered Prevention of Procreation: Abortion, Contraception,
Sterilisation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
4. Concluding Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

Germany
Law Reforms in Abundance
Nina Dethloff and Katharina Kaesling. . . . . . . . . . . . . . . . . . . . . . . . . . 211

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
2. Marriage for All? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
3. Law to Combat Child Marriages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
4. Fraudulent Acknowledgements of Paternity . . . . . . . . . . . . . . . . . . . . . . . . 217
5. Regulation of Sperm Donations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
6. Future Prospects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

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 Contents

Hong Kong
Cutting Our ‘Children’s’ Coats According to Our Cloth: Hong Kong
Family Mediation Regarding Children’s Arrangements in the Context
of Culture and Law
Sala Sihombing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

1. Hong Kong’s Family Law Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

2. Hong Kong’s Cultural Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
3. Impact on Mediation Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
4. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250

India
Family Privacy in India
Sayali Bapat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
2. Family Privacy in India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
3. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269

Ireland
Sheltering the Homemaker in Irish Family Law: Ireland’s Failure
to Evolve with the Shifting Social and Family Norms
Louise Crowley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 271

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
2. Article 41 Pledge to Protect the Family Based on Marriage . . . . . . . . . . . 274
3. Constitutional Preference for Women in the Home . . . . . . . . . . . . . . . . . . 277
4. Retaining Protection of the Homemaker Spouse Notwithstanding
the Decree of Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282
5. Proper Provision and the Infinite Right to Apply: Forcing a Lifetime
Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
6. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295

Italy
Robots for the Family: Protection of Personal Data and Civil Liability
Isabella Ferrari. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

1. New Challenges for Italian Law in the Management of Robots

Destined to be Used at Home. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
2. New Members of the Family in the Era of Industry 4.0 . . . . . . . . . . . . . . . 299
3. Privacy Protection within the Family Context . . . . . . . . . . . . . . . . . . . . . . 302

x Intersentia
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4. Damaging the Home and Family Members: How to Locate Civil

Liability in Relation to Robots? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
5. The Robot: A New Member of the Family to Protect Against . . . . . . . . . . 317

Japan
The Japanese Supreme Court should Promote Family Law Reform
More Drastically
Fumio Tokotani . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
2. The Judgment Relating to the Waiting Period for Women’s Remarriage . . . .323
3. The Judgment Relating to the Mandatory Common Surname
of Husband and Wife. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
4. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332

Korea
Recent Development in Korean Family Law: Best Interests of the Child,
End-of-Life and Sexual Minorities
Hyunjin Kim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
2. Legislation for the Best Interests of the Child . . . . . . . . . . . . . . . . . . . . . . . 335
3. End-of-Life (‘Life-Sustaining Treatment’) . . . . . . . . . . . . . . . . . . . . . . . . . . 340
4. Ongoing Issues for Sexual Minorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
5. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356

Myanmar
Marriage under Myanmar Customary Law
Khin Khin Oo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358
2. Nature and Sources of Myanmar Customary Law . . . . . . . . . . . . . . . . . . . 358
3. Subjects of Myanmar Customary Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360
4. Nature of Marriage under Myanmar Customary Law . . . . . . . . . . . . . . . . 361
5. Essentials of Valid Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362
6. Marriageable Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
7. Consent and Capacity of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
8. Proof of Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
9. Shift from Polygamous to Monogamous Marriage . . . . . . . . . . . . . . . . . . . 367
10. Special Marriage Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
11. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372

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New Zealand
A Review of Relationship Property and the Māori Way of Life in Parenting
Disputes: Changes Afoot
Mark Henaghan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373

1. The New Zealand Law Commission’s Review of Relationship Property . . . . 374

2. The Importance of Tikanga Māori in Formal Court
Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381

Norway
The Strengthening of Fathers’ Rights in Norwegian Child Law
and Other Recent Reforms
Tone Sverdrup . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 385

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
2. Recent Reforms in Child Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386
3. Minimum Age of Marriage and Changes to Wedding
Ceremonies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395

Papua New Guinea

Child Welfare and Protection Law Reform in Papua New Guinea:
A Critique
John Y-Luluaki . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400
2. Purpose of this Chapter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403
3. Structure of the Lukautim Pikinini Act 2015 . . . . . . . . . . . . . . . . . . . . . . . . 404
4. Child Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
5. Child Welfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 417
6. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 423

Poland
Supporting Elderly Persons in Polish Family and Succession Law
Małgorzata Balwicka-Szczyrba, Anna Sylwestrzak
and Marcin Glicz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426
2. The Relevance of Research on the Problem of Old-Age
Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426
3. Old-Age Maintenance in the Polish Family and Guardianship
Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 428
4. Quasi-Maintenance Obligations for Elderly Persons
in Succession Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431

xii Intersentia
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5. Maintenance and Quasi-Maintenance Obligations: Conflict

of Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435
6. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438

Portugal
Chronicle of a Legal Reform Foretold: The Shape of the Law to Come
Regarding Incompetent Adults in Portugal
Rute Teixeira Pedro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 441
2. The Need for a Reform of the Legal Framework Applicable
to Incompetent Adults in Portugal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 442
3. The Obsolescence of the Present Legal Framework . . . . . . . . . . . . . . . . . . 445
4. The Main Traits of the Law to Come. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 450
5. Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454

Serbia
The Case of ‘Missing Babies’ in Serbia before the European Court
of Human Rights
Melanija Jančić . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 455

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456
2. The Case of Zorica Jovanovic v. Serbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 456
3. The Importance and the Impact of the Judgment in the Case
of Zorica Jovanovic v. Serbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
4. The Case of ‘Missing Babies’ before the Constitutional Court of Serbia . . . . .464
5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 466

Singapore
The Evolution of the Singapore Family Justice Courts: A Journey to Serve
Families and Children Responsibly
Yarni Loi and Sylvia Tan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469
2. Some Brief Facts about Singapore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470
3. First Milestone (1995): Establishment of the Family Justice
and Juvenile Division, and the Introduction of Voluntary
Mediation and Counselling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 472
4. Second Milestone (2011): The Child Focused Resolution Centre
and Introduction of Compulsory Mediation and Counselling . . . . . . . . . 475
5. Third Milestone (2014): Birth of the Family Justice Courts. . . . . . . . . . . . 477
6. Early Results of the 2014 Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488
7. Aspirations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489
8. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 491

Intersentia xiii
 Contents

South Africa
The Implications of Varying Statutory Minimum Age Thresholds
for Child Consent in Respect of Minors Granted Majority Status
Through Civil Marriage in South Africa
Najma Moosa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 493

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495
2. Meanings and Definitions Used in Relation to Children . . . . . . . . . . . . . . 498
3. Inconsistencies within Legislation and the Welfare
of Married Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
4. Further Reasons Why Early Marriage (and Marital Majority)
should be Given the Death Knell in South Africa . . . . . . . . . . . . . . . . . . . . 516
5. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521

Sweden, Norway and the USA

Regulations of and Remedies for Corporal Punishment Against Children
Elizabeth Perry, Viola Boström and Marie Nordvik . . . . . . . . . . . . . . . 527

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529
2. Legal Limits on Parental Discipline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530
3. The Legal Consequences of CP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 540
4. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 557

xiv Intersentia
 LIST OF CONTRIBUTORS

Elisabeth Alofs
Professor of Law and Managing Director of the Master of Laws in Notarial
Studies, Faculty of Law and Criminology, Vrije Universiteit Brussel (Free
University of Brussels), Belgium
Martha Bailey
Professor, Faculty of Law, Queen’s University, Ontario, Canada
Małgorzata Balwicka-Szczyrba
Professor of Law, Faculty of Law and Administration, Department of Civil Law,
University of Gdańsk, Poland
Sayali Bapat
Doctor of Juridical Science Candidate, Emory University School of Law, Atlanta,
United States of America
Viola Boström
Senior Lecturer in Family Law, Department of Law, Umeå University, Sweden
Margaret Brinig
Fritz Duda Family Professor of Law, The Law School, University of Notre Dame,
United States of America
Chen Wei
Professor, Civil and Commercial Law School and Director of the Foreign Family
Law and Women Theories Institute, Southwest University of Political Science
and Law, Chongqing, China
Louise Crowley
Senior Lecturer in Family Law, School of Law, University College Cork, Ireland
Nina Dethloff
Director of the Center for Advanced Study ‘Law as Culture’ and of the Institute
for German, European and International Family Law, University of Bonn,
Germany
Isabella Ferrari
Adjunct Professor in Comparative Private Law, University of Studies of Modena
and Reggio Emilia, Italy

Intersentia xv
 List of Contributors

Marcin Glicz
Assistant Professor, Faculty of Law and Administration, Department of Civil
Law, University of Warmia and Mazury in Olsztyn, Poland
Mark Henaghan
Professor of Law, Faculty of Law, University of Otago, Dunedin, New Zealand
Melanija Jančić
Assistant Professor, Faculty of European Legal and Political Studies, Educons
University, Novi Sad, Serbia
Katharina Kaesling
Research Coordinator, Center for Advanced Study ‘Law as Culture’, University
of Bonn, Germany
Hyunjin Kim
Professor of Private Law, Faculty of Law, Inha University School of Law,
Incheon, South Korea
Xia Li
Professor of Law and Director of the Center of Family Law and Feminist
Legal Theory, Law School, East China University of Political Science and Law,
Shanghai, China
Yarni Loi
District Judge, Family Justice Courts, Singapore
John Y-Luluaki
Professor of Law, School of Law, University of Papua New Guinea, Port Moresby,
Papua New Guinea
Ledina Mandija
Lecturer in Civil Procedural Law and Head of the Public Law Department,
Faculty of Law, European University of Tirana (UET), Albania
Najma Moosa
Professor of Private Law, Faculty of Law, University of the Western Cape (UWC),
South Africa
Jamil Ddamulira Mujuzi
Professor of Law, Faculty of Law, University of the Western Cape, South Africa
Marie Nordvik
Doctoral Candidate and Lecturer in Children’s Rights and Welfare Law,
Department of Law, Umeå University, Sweden; Institute of Child Welfare and
Social Work, Arctic University of Norway
Khin Khin Oo
Professor, Department of Law, University of Mandalay, Myanmar

xvi Intersentia
 List of Contributors

Rute Teixeira Pedro

Assistant Professor, Law Faculty and Researcher, Centre for Legal and Economic
Research (Centro de Investigação Jurídico-Económica (CIJE)), University of
Porto, Portugal
Antonio Jorge Pereira Júnior
Professor of the Law Postgraduate Program, University of Fortaleza, Brazil
Elizabeth Perry
Doctoral Candidate and Lecturer in Comparative Family Law, Comparative Law
and European Union Law, Department of Law, Umeå University, Sweden
Grant T. Riethmuller
Judge, Federal Circuit Court of Australia (Melbourne Registry), Australia
Shi Lei
Lecturer, Civil and Commercial Law School, Southwest University of Political
Science and Law, Chongqing, China
Sala Sihombing
Family and General Mediator, Hong Kong; Non-Practising Solicitor in England
and Wales and Hong Kong; Adjunct Lecturer, University of Hong Kong
Julia Sloth-Nielsen
Professor, Faculty of Law, University of the Western Cape (UWC), South Africa;
Professor of Children’s Rights in the Developing World, University of Leiden,
The Netherlands
Tone Sverdrup
Professor of Law, Department of Private Law, University of Oslo, Norway
Anna Sylwestrzak
Professor of Law, Faculty of Law and Administration, Department of Civil Law,
University of Gdańsk, Poland
Sylvia Tan
Principal Court Family Specialist, Counselling and Psychological Services
Division, Family Justice Courts, Singapore
Fumio Tokotani
Professor of Law, Osaka School of International Public Policy, Japan
Anne-Sophie Vandenbosch
Doctoral Student, Faculty of Law and Criminology, Vrije Universiteit Brussel
(Free University of Brussels), Belgium
Mary Welstead
CAP Fellow, Harvard Law School, Harvard University, Massachusetts, United
States of America; Visiting Professor in Family Law, University of Buckingham,
England, United Kingdom

Intersentia xvii
 MYANMAR
MARRIAGE UNDER MYANMAR
CUSTOMARY LAW*

Khin Khin Oo

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358
2. Nature and Sources of Myanmar Customary Law . . . . . . . . . . . . . . . . . . . . . 358
3. Subjects of Myanmar Customary Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360
4. Nature of Marriage under Myanmar Customary Law . . . . . . . . . . . . . . . . . . 361
5. Essentials of Valid Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362
6. Marriageable Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
7. Consent and Capacity of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
8. Proof of Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
9. Shift from Polygamous to Monogamous Marriage . . . . . . . . . . . . . . . . . . . . 367
10. Special Marriage Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
11. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372

Résumé

Le droit coutumier de Myanmar tire ses origines des coutumes ancestrales du

peuple birman et il s’applique à tous les bouddhistes du Myanmar en tant que
loi personnelle des citoyens du pays. Ce droit concerne essentiellement les
affaires familiales, comme le mariage, le divorce, le droit successoral et les droits
matrimoniaux. En vertu du droit coutumier, le mariage est une institution civile et
n’a aucun lien avec la religion. Ce chapitre propose un aperçu du droit du mariage
en droit coutumier myanmarais.

* This is the modified version of the author’s previous work, ‘Some Incidents of Marriage under
Myanmar Customary Law’ (2012) X (11) Journal of the Myanmar Academy of Arts and Science
135–153.

Intersentia 357
 Myanmar

1. INTRODUCTION

Every citizen of a country has the right to freely follow one’s customs, culture and
traditions and profess the religion of their choice subject to certain limitations.
These fundamental rights are expressly declared by the respective constitutions.
The Myanmar Constitution of 2008 clearly recognises the citizens’ right to
freely develop the literature, culture, arts, customs and traditions they cherish.
The Myanmar Laws Act 1898 vests force and validity in customary law if it is
necessary to decide any question regarding succession, inheritance, marriage
or caste, or any religious usage or institution – the Buddhist Law in cases where
the parties are Buddhists, the Muhammadan Law in cases where the parties
are Muhammadan,1 the Hindu Law2 in cases where the parties are Hindus.3
However, this law naturally states nothing about the law applicable to Christians,
as most family law matters for Christians are regulated by enacted laws, such
as the Christian Marriage Act, Succession Act and Divorce Act. Family laws in
Myanmar, therefore, can be grouped as four major different family laws, namely,
Myanmar customary law (for Myanmar Buddhists), principles of Hindu law
(for Hindus)4, Mohammedan law (for Muslims), and various family statutes
applicable to Christians (for Christians). This chapter will discuss marriage
under Myanmar Customary law.

2. NATURE AND SOURCES OF MYANMAR

CUSTOMARY LAW

Before beginning the main discussion of the marriage systems of Myanmar’s

people, it is essential to discuss the nature of Myanmar customary law and its
sources. Myanmar customary law has applied to all Buddhists in Myanmar
as their personal law since the ancient times of Myanmar kings;5 and it may

1 Mohammedan Law includes Islamic personal laws and the family law principles applied by
Muslims residing in Myanmar.
2 Hindu Law means Hindu personal law and the principles of Hindu law applied to Hindus
residing in Myanmar. Manipuris living in Myanmar are not subject to the Myanmar
customary law, but to Hindu family law. Questions of inheritance are to be decided by the
principles of Hindu Law. Ma Saw Tin v. Sayar Sin, 1956 BLR 89; U Kan Hla v. Daw Yin and
one other, 1983 Civil Appeal Case No. 9 (Supreme Court of Mandalay).
3 Myanmar Laws Act 1898, s. 13(1).
4 Manipuris living in Myanmar, are not subject to the Myanmar customary law. They are
subject to the Hindu customary law.
5 Daw Thike v. Cyoung Ah Lin, 1951 BLR (SC) 133; Chan Eu Ghee v. Mrs. Iris Maung Sein, 1953,
BLR (HC) 294.

358 Intersentia
 Marriage under Myanmar Customary Law

primarily be gathered from the Dhammathats,6 thus standing on its own legal
system.7
Myanmar, formerly known as Burma, was formed as one of the provinces
of British India after the three Anglo-Myanmar Wars in 1825, 1852 and 1885.
After the annexation of Myanmar by the British Government, many principles
of British common law were initiated and introduced to establish a uniform
system of laws throughout the country. The impact of British law, however, has
not much affected the ancient Myanmar customary law.8

Where in any suit or proceeding in Myanmar, it is necessary for any court to decide
any question regarding succession, inheritance, marriage or caste, or any religious
usage or institution,

(a) the Buddhist Law in cases where the parties are Buddhists,
(b) …
(c) …

shall form the rule of decision except in so far as such law has, by legislative enactment,
been altered or abolished or is opposed to any custom having the force of Law.9

The ‘Buddhist Law’ mentioned in section 13(1) of the Myanmar Laws Act, as
it was mistakenly called by English writers, is unconnected with Buddhism.10
It has nothing to do with religion at all. Actually the Buddhist Law specified in
section 13(1) had meant the customary law of Myanmar’s people who profess the
Buddhist faith. The term ‘Myanmar customary law’, which was introduced by the
Myanmar eminent jurist U Mya Sein in his famous work on Myanmar customary
law, was first used in the Ma Tin Hla v. Daw Gauk and two others case decided by
the full bench of the Supreme Court in 1969.11 After that case, the correct title of
Myanmar customary law, instead of Burmese Buddhist Law, has been uniformly
acknowledged and accepted by Myanmar courts and legal scholars too.
The Dhammathats, ‘legal rules and legal principles relating to marriage,
divorce, partition, succession, inheritance and adoption etc.’,12 are a primary

6 The Dhammathats are composed of legal rules and legal principles relating to marriage,
divorce, partition, succession, inheritance and adoption, etc.
7 Tin Aung Aye, ‘Myanmar Customary Law and Culture’, in Interpretation of Statute Law and
Treaty, Yangon, Cho Tay Than Publishing House, 2004, 1st ed., at p. 42: ‘But they are not
codes of law in the strict sense and there is wide variance among them in content and quality.’
Maung Maung, Law and Custom in Burma and the Burmese Family, The Hague, Martinus
Nijhoff, 1963, at p. 9.
8 Kyaw Sein, ‘A Brief Legal History of Myanmar’ (1999) 1(2) Law Journal 164.
9 Myanmar Laws Act 1898, s.13(1).
10 Nartar Ce v. Aaphoo Ce, 1969 BLR 106; see also Mya Thein, ‘Hindu Influence on Burmese
Customary Law’ (1980) 1(1) University Law Journal 154.
11 Ma Tin Hla v. Daw Gauk and 2, 1969 BLR 107.
12 Maung Maung, above n. 7, at p. 9.

Intersentia 359
 Myanmar

source of Myanmar customary law. However, there are three other sources of
law which are more important than Dhammathats in some respects, as some
of the Dhammathats have fallen behind the changing situations of the present
Myanmar social environment as time moves on. There are altogether four
sources of present-day Myanmar customary law. These are the Dhammathats,
case law, the doctrine of binding precedents and legislation.
In the case of Limchimneo (alias) Daw Kyin Nyun v. Limgeoksoo (alias)
Mutu,13 it was laid down that Myanmar customary law can be gathered from
the Dhammathats which are compatible with the current social environment
of Myanmar society, from the decided cases and the prevailing customs and
practices of Myanmar.
Judicial precedents constitute the third, and today, the most important source
of Myanmar customary law. The judicial recognition of current customary law
beyond the Dhammathats and the need to incorporate them in judicial decisions
were expressed by the then Chief Court in both Daw Kyi Kyi v. Mrs. Mary Wain
and Daw Khin Mya Mar (alias) Mar Mar v. U Nyunt Hlaing cases.14
Some of the cases must solve mixed question of law and facts. If there were
no provisions upon those questions or there were gaps in them, they were filled
by legislation. For example, the Registration of Kittima Adoptions Act of 1939,
Myanmar Buddhist Women Special Marriage Law of 2015 and the Monogamy
Law of 2015 are the major statutes concerned with Myanmar family law matters.
The legislation strengthens the customary law principles which are either
inadequate or obsolete for the needs of current Myanmar society. If there were a
conflict between the legislation and the customary law, the former prevails over
the latter.15
The British conception of ‘justice, equity and good conscience’, which was
embodied in section 13(3) of the Myanmar Laws Act has been continued as a
basis of the Myanmar legal system, especially in the field of Myanmar customary
law ‘where there is no any other enactment or where there is any case not
provided by section 13(1)’.16

3. SUBJECTS OF MYANMAR CUSTOMARY LAW

A Buddhist in Myanmar, irrespective of what his/her nationality is, and

irrespective of where he/she came from, is prima facie governed by the

13 Limchimneo (alias) Daw Kyin Nyun v. Limgeoksoo (alias) Mutu, 1956 BLR (HC) 248.
14 Daw Kyi Kyi v. Mrs. Mary Wain, 1971 BLR (CC) 52; and Daw Khin Mya Mar (alias) Mar Mar
v. U Nyunt Hlaing, 1972 First Civil Appeal No. 38.
15 Ma Kway v. Ma Mi Lay, 6 Ran 682; Ma Tin Hla v. Daw Gauk and 2, above n. 11; Ma Woung
Shwe Linn v. Union of Myanmar, 1970 BLR 22.
16 The Myanmar Laws Act 1898. The Myanmar Code (1955), Vol. 1 at p. 9.

360 Intersentia
 Marriage under Myanmar Customary Law

customary law of Myanmar.17 Therefore, in order to decide if a person is to be

a subject of Myanmar customary law, the sole criterion is whether he or she
is a Buddhist in Myanmar. In this respect, the term Buddhist is a wider term
covering not only Bamar, a majority of whom are Buddhists,18 but also other
nationalities, such as Rakhine, Kayin, Kayah, Kachin, Chin and Shan nationals,
who may or may not be Buddhists. Therefore, in deciding disputes relating to
marriage, divorce, inheritance, partition and family matters of the national races
of Myanmar, Myanmar customary law is applicable with the one condition that
due consideration and understanding of the prevailing local customs of their
own should be given.19 When and where necessary, respective local customary
laws and traditions, as the dominant laws to which the parties are subject, should
be more carefully weighed and considered in the context of their own local
traditions and customs.20
In principle, Buddhists who are living and staying in Myanmar are
permanently governed by Myanmar customary law. If they do not want to be
governed by Myanmar customary law, it must be proved:

1. that they have special custom having the force of law in Myanmar;
2. that their custom is opposed to Myanmar customary laws; and
3. that their custom is just and fair.21

If they cannot prove the above-mentioned facts, all Buddhists domiciled (having
permanent residence) in Myanmar, irrespective of their race or nationality, shall
be governed by Myanmar customary law.22

4. NATURE OF MARRIAGE UNDER MYANMAR

CUSTOMARY LAW

Marriage under Myanmar customary law is ‘a civil institution into which the
Buddhist religious element enters not at all’.23 The Myanmar word for marriage
is ein-daung-pyu, meaning setting up a house. In 1965, the full bench of

17 Daw Thaik v. C.Young Lin, 1951 BLR (SC)133.

18 Buddhism is practiced by 87.9%, Christianity by 6.2%, Islam by 4.3% and Hinduism
by 0.5% respectively. Some profess animism and worship nats (spiritual deities) according
to their traditional beliefs. The 2014 Myanmar Population and Housing Census, <www.dop.
gov.mm>.
19 Ma Shwe Yin v. Mg Ba Tin, 1 Ran. 343. U San Thein v. Mg Khine, 1965 BLR (CC) 554.
20 Nar Citi v. Ah Phyu Si, 1969 BLR 155.
21 Ma Shwe Yin v. Mg Ba Tin, above n. 19; Ma Yin Mya v. Tan Yaik Pu: 5 Ran. 406; Lin Kar Gim
v. Mrs. Iris Mg Sein: 1955 BLR (SC) 15; Tan Swee Kyu v. Chan Chain Kyan: 1947 Ran.107; Daw
Thaik v. C. Yong Lin, above n. 17; Tan Ma Shwe Zin v. Khu Khu Ching: 1939 Ran. 548.
22 Daw Thike v. Cyoung Ah Lin, above n. 5; Lim Kar Gim vs. Mrs Iris Maung Sein, above n. 21.
23 Maung Maung, above n. 7, p. 54.

Intersentia 361
 Myanmar

Myanmar Supreme Court observed marriages under Myanmar customary law

as ‘delicate and important social matters’. Although the most important element
of Myanmar Buddhist marriage is consensual contract, it is not in the nature
of a commercial contract, referring to the Contract Act, but in the nature of a
social and civil contract according to Myanmar customary law as well as the
Contract Act. This means the result would be just to parties in the case, and
would be acceptable to the society to which they belong.24
Both men and women enjoy equal rights in all aspects of legal, social and
cultural matters.25 This is the most peculiar nature of Myanmar marriage.
Myanmar marriage creates the status of husband and wife as tenants in common26
by acquiring the right to share the family property, determine the questions of
legitimacy, succession and inheritance, and imposes a liability on the husband to
maintain his wife and children and to remain faithful to his wife.

5. ESSENTIALS OF VALID MARRIAGE

Although the Dhammathats, the primary source of Myanmar customary law,

do not specify the essential conditions of the contract of marriage, certain
requirements are prescribed by customs to constitute a valid marriage. They are
as follows:

1. The man should attain puberty.

2. The woman should be single and at least 20 years of age, a widow, a divorcee,
or a single person under 20 years of age who has obtained her parents’ or
guardians’ consent.
3. The parties must give their mutual and free consent to become husband and
wife presently.
4. The parties must be mentally competent to contract as tested by section 12
of the Contract Act.
5. Neither party to the marriage may have an existing valid marriage as
prescribed by the Monogamous Law of 2015.
6. The parties must live together as husband and wife publicly. In the absence
of direct proof, marriage may be inferred from conduct of the parties or
established by reputation.

At one time, there needed to be consummation to constitute a valid marriage. By

referring to old Dhammathats, it was decided that if there were no cohabitation

24 Maung Ko Gyi v. Daw Ohn Khin, 1965 BLR 913.

25 Ma Hla Aung v. Ma Aye, SJ 219.
26 U Pe v. U Maung Maung Kha, 10 Ran 261, PC; Ma Htwe v. Ma Tin Oo, 1953 BLR (HC) 29;
Ma Ohn Kyi v. Daw Hnin New, 1953 BLR (HC) 332.

362 Intersentia
 Marriage under Myanmar Customary Law

or consummation after the marriage, the marriage tie will not exist between
these parties.27 In 1972, however, the Chief Court held in the case of Daw Khin
Mya Mar (alias) Mar Mar v. U Nyunt Hlaing that Myanmar customary law is
changing and old Dhammathats which are not in line with the present situation
should not be followed. Under Myanmar customary law, to constitute a valid
marriage all that is essential is mutual consent, and not consummation. When
both parties, with their mutual consent and, where needed, the consent of the
parents from both sides, have gone through the marriage ceremony, there is a
valid marriage under Myanmar customary law.28

6. MARRIAGEABLE AGE

The Dhammathats suggest that parents should give their sons or daughters in
marriage when they reach the age of 15 or 16, so the customary age for marriage
was 15 or 16. They do not fix an age limit below which a young man cannot
marry a girl of his choice without his parents’ consent. In the past, there were
various judicial decisions regarding that matter. In 1928, it was decided in the
case of Mg Thein Mg v. Ma Saw that a Myanmar Buddhist boy of any age can
enter into a valid marriage without the consent of his parents or guardians once
he attains puberty, i.e. is physically competent to marry.29
With respect to the marriageable age of a girl, Dhammathats enjoin upon
parents and guardians the necessity to marry minors before the completion of
their sixteenth year so as to prevent their falling into sin. Manugye Dhamma
permits an unmarried woman above the age of 20 years to marry a man of her
choice. There were different and rather arbitrary decisions in different cases. This
point was set at rest by a full bench decision of the Rangoon High Court in
Ma Aye Sein v. Maung Hla Min, which declared that, except in the case of widows
or divorcees, a girl under 20 years of age cannot contract a valid marriage without
the consent, either express or implied, of her parents or guardians.30 This case is
still in force and there is no other current leading case on this point.
Marriageable age is set when a girl may marry without parental consent, and
a lower age is set when she may marry subject to parental consent. By referring
to section 4 of the Myanmar Buddhist Women’s Special Marriage Law, it could
be said that the minimum statutory marriageable age for the girl is 18 years of
age with parental consent.
Section 375 of the Penal Code provides that a man is said to commit rape
if he has sexual intercourse with a woman who is under 16 years of age with

27 Ma Hla Me v. Maung Hla Baw, 8 Ran 425.

28 Daw Khin Mya Mar (alias) Mar Mar v. U Nyunt Hlaing, 1972 First Civil Appeal Case No. 38.
29 Mg Thein Mg v. Ma Saw, 6 Ran 340.
30 Ma Aye Sein v. Maung Hla Mi, 3 Ran 455.

Intersentia 363
 Myanmar

or without her consent. Section 361 of the Penal Code further provides that
whoever takes or entices any female under 18 years of age out of the keeping
of the lawful guardian of such minor is said to kidnap such minor from lawful
guardianship.
Therefore, the marriage of a minor girl who is under 16 with or without
parental consent is totally prohibited by the Penal Code and Myanmar customary
law. If a girl, who is older than 16 but not yet 18, marries a man without her
parents’ consent, that man may still be charged criminally for kidnapping such
a minor under the Penal Code. But in the case of a woman who has attained the
age of 18 but is not yet 20 and who enters into a contract of marriage without the
consent of her parents or guardians, such a woman cannot enjoy the matrimonial
proprietary rights conferred by the customary law until she reaches the age of 20.

7. CONSENT AND CAPACITY OF THE PARTIES

The most important element of the Myanmar Buddhist marriage, which is

commonly described as a consensual contract, is consent.31 Marriage depends
upon the fact that the parties must give their mutual and free consent to become
husband and wife presently.32 Consent must be free and voluntarily. Consent
is said to be free when it is not caused by coercion or undue influence, fraud,
misrepresentation or mistake under section 14 of the Contract Act.
In the early days, parents’ consent and agreement played the principal role
in the marriage. Today, the vital consent on which a marriage must be founded
is that of the parties themselves. The Maung Sein Nyunt v. Ma Aye Kyi case
clearly pointed out that no longer can a father or mother give away an unwilling
minor daughter into marriage. If the consent given by the man and the woman
is not free, the marriage will not be valid and binding on them.33 However, the
consent of the parents or guardian is still essential to the validity of marriage of
a minor girl. The minor’s incapacity to enter into a contract of marriage must be
supplemented by the consent of her parents or guardian.

8. PROOF OF MARRIAGE

Proof of marriage is one of the difficult problems in Myanmar customary law

because no ceremony is legally necessary in order to constitute a valid marriage

31 Maung Maung, above n. 7, at p. 54.

32 Maung Tun Aung v. Ma E Kyi 14 Ran 215 (FB) 227; Ma Pwa Kywe v. Maung Hmat Gyi 1938
Ran 667 (672); and Ma Aye Thwe v. U Tha Yin, AIR 1941 Ran 179.
33 Maung Sein Nyunt v. Ma Aye Kyi, 1962 BLR 404.

364 Intersentia
 Marriage under Myanmar Customary Law

between two Myanmar Buddhists. The Ma Aye Mi v. Ma Kyi Kyi case decided
that no ceremony was required in order to constitute a valid marriage, all that
is necessary being the consent of both parties.34 The Ma Kyin Mya v. Maung
Sit Han case also held that if any ceremony takes place, it is evidence of the
intent and no more than evidence whereby the fact of mutual agreement can be
proved. The ceremony itself is not a means of creating the marriage tie. In the
present state of society almost no marriage is contracted without some sort of
show, entertainment or ceremony, or without the knowledge of the people of the
locality where the parties reside.35
It is popular among the young people of Myanmar to go to a judge or
magistrate and sign affidavits in the presence of a few friends and elders stating
their competence and intention to marry. Maung Kyi v. Ma Ohn Myint36 held
that even though there are no prescribed rules or procedures to make such
an affidavit of marriage, it is a valid marriage if the couples have attained the
requisite age and have taken an oath before the court to be married with mutual
consent. Affidavits for marriage show the competency and mutual consent of
parties and become documentary evidence having legal sanctity. Hence, the
Supreme Court directed that in making affidavits for marriage, it is necessary for
the judge to determine whether or not each party has attained the marriageable
age, whether or not either party has an existing valid marriage and whether or
not both parties have freely consented to the marriage. In making affidavits for
a marriage contract, all essentials of a valid marriage shall be considered by
Myanmar customary law itself. This is the trend of marriage today.
In the absence of direct proof, such as holding a marriage ceremony or
making affidavits of marriage, mutual consent may be inferred from the conduct
of the parties or established by reputation.
The opinion of S. Anamalay Pillay v. Po Lan states that when a man and a
woman have openly lived together as husband and wife for many years in the
same house and they have been regarded as such by their friends and relations
who have seen them do so, a presumption arises that the couple intended a valid
union.37 U Tun Yin v. Maung Ba Han decided that where there is a dispute and
where marital status must be determined from repute and the conduct of the
parties themselves, the conduct of the neighbours and friends, who treated them
as though they were husband and wife, can be admissible as evidence from which
the status is to be inferred. A bare statement by a witness that certain couples are
husband and wife is not evidence of repute.38

34 Ma Aye Mi v. Ma Kyi Kyi, 1948 BLR 625.

35 Ma Kyin Mya v. Maung Sit Han, 1937 Ran 103.
36 Maung Kyi v. Ma Ohn Myint, 1968 First Civil Appeal Case No. 61.
37 S. Anamalay Pillay v. Po Lan, 3 LBR 228.
38 U Tun Yin v. Maung Ba Han, 1949 BLR 443 (HC).

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 Myanmar

Where a man has a wife and visits another woman with whom he never
goes out in public or associates with his relatives and friends, such a woman
cannot claim to be a wife.39 In the case of Maung Maung v. Ma Sein Kyi, it was
held that cohabitation means living in a conjugal relationship, not a clandestine
arrangement. There must be an open avowal of the married status: going together
to the pagoda and the monastery and eating together in public are conduct of
such nature. Conduct must lead friends, neighbours and relatives to accept the
parties as husband and wife.40
In the case of U Pu Lay v. Daw Chit,41 U Pu Lay applied for the dissolution
of marriage on the ground that they lived together as husband and wife in
the same house for over 20 years at Tuntay Township. But the respondent
Daw Chit argued that their relationship was not that of husband and wife; she
treated U Pu Lay with respect because he was much older than she was, though
she admitted their living in the same house. The Central Court held that the
mere fact of living together for 20 years in the same house did not constitute
a valid marriage. There were no other sufficient circumstances indicating that
they were related as husband and wife. In order to constitute a valid marriage
under Myanmar customary law, the parties must publicly live together as
husband and wife. Therefore, in the absence of a valid marriage there could
be no divorce.
In the case of Daw Chit Chit v. Daw Sann Yin,42 Daw Chit Chit claimed a share
in the estate of the deceased U Thet Htun on the ground that she was his widow
also. The burden of proving marriage lay on her. There needed to be clear and
unequivocal recognition of her status as such. Whether U Thet Htun and Daw
Chit Chit lived together and admitted their status, whether they behaved towards
each other as husband and wife, whether they visited relatives and friends in
each other’s company, whether they went together to places of worship, whether
they acted jointly in making or taking conveyances of property, whether she
had good character and a decent life position, whether on the death of U Thet
Htun, she behaved like a widow at the funeral, and their other similar conduct
indicated were taken into consideration and indicated that they were not related
as husband and wife under Myanmar customary law. Accordingly, the Court
decided that the status of husband and wife had not been established between
deceased U Thet Htun and Daw Chit Chit under Myanmar customary law.

39 Ma Kyin Mya v. Maung Sit Han, above n. 35.

40 Maung Maung v. Ma Sein Kyi, 1940 Ran 562.
41 U Pu Lay v. Daw Chit, 1976 BLR 41.
42 Daw Chit Chit v. Daw Sann Yin, 1990 First Civil Appeal Case No. 32 (Supreme Court of
Mandalay).

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 Marriage under Myanmar Customary Law

9. SHIFT FROM POLYGAMOUS TO MONOGAMOUS

MARRIAGE

The practice of polygamy was recognised by the Dhammathats and was legal in
Myanmar until 2015 and enactment of the Monogamy Law. The position and
status of Myanmar married women before and after the enactment of the said
law will briefly be examined here.
Customarily, a Myanmar Buddhist husband can have more than one wife at
any given time if he can maintain both in a good condition of life. Designating
wives who hold equal status as first wife and second wife was more precise and
correct than old usages of ma ya-kyi (superior wife) and ma ya-nge (inferior
wife). Judicial decisions also recognised the status of first wife and second wife if
a man married more than one wife, especially in the case of a Myanmar Buddhist
woman who married a non-Buddhist man. With the Chief Court’s decision in
the case of Daw Kyi Kyi v. Mrs. Mary Wain in 1971, as a consequence of the
legal reorganisation of polygamy, the second wife had the same status as the
first wife and the two women occupied identical positions, both in respect of
personal rights and in respect of ownership of property in the family. They are
ma ya paying (parallel wives) known as the first wife and second wife, sharing
their husband’s estate equally.43
Apart from the lawful wife or wives under the polygamous marriage of
Myanmar customary law, a husband might also enter into and maintain conjugal
relations with a woman whose position falls short of that of a lawful wife. If
a Myanmar Buddhist married husband secretly lived together with another
woman, letting her know of his existing legal marriage, that other woman could
not be said to be the second wife holding an equal status with the first wife
under Myanmar customary law.44 The same concept was applied in the case of
Daw Chit Chit v. Daw Sann Yin in 1990, which has already been elaborated and
discussed in section 8.
Thus polygamy was permitted by the customary law.45 However, polygamy
was not a popular institution as there was the changing trend of Myanmar
social customs and marriage systems. Indeed, today taking a second wife during
the lifetime of first wife without her consent ordinarily constitutes a serious
matrimonial fault, and the courts have recognised in many different cases that ‘if
a Myanmar Buddhist husband takes a second wife without his first wife’s consent,
she has a right to divorce him’.46 It was apparent that the idea of polygamy in the

43 Daw Kyi Kyi v. Mrs. Mary Wain, above n. 14.

44 Maung Tha Dun v. Ma Thein Yin, 1 Ran 1, Ma Thein Nwe v. Maung Kha, 7 Ran 451.
45 Ma Wun Di v. Ma Khin, 4 LBR 175; Ma Thein Yin v. Maung Tha Dun, 2 Ran 62.
46 U Ba Kyiv v. Daw Mya Yee, 1982 Second Civil Appeal Case No. 66 (Supreme Court of
Mandalay).

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 Myanmar

Dhammathats was obsolete and no longer consonant with present-day Myanmar

social custom.
Several proposals were submitted to the Parliament to abolish the polygamy
system and to adopt a monogamy system. Only in 2015 did the new system of
marriage shift from polygamous marriage to monogamous marriage through
enactment of the new Monogamy Law.47 This Monogamy Law aims to help
facilitate pleasant wedded life between husband and wife with each being loyal;
by preventing women from becoming unlawful wives; by preventing possible
matrimonial faults as a result of practising polygamy; and by raising the morale
and morality of man and woman.48

10. SPECIAL MARRIAGE LAWS

Although Myanmar Laws Act section 13 vests force and validity in respective
enumerated personal laws in Myanmar, there is no provision for mixed marriages
between the parties who are subject to different personal laws. Still, Myanmar
customary law itself contains no prohibition forbidding mixed marriage between
a Myanmar Buddhist and a person of another race or religion. Therefore, in the
case of mixed marriages between Buddhists and non-Buddhists, conflicts have
occurred in the choice of law between Myanmar customary law and the non-
Buddhist spouse’s family law. The courts have frequently been called upon to
decide the validity of mixed marriages, especially when questions arising from
divorce or succession are involved.
For a mixed marriage of a Muslim man to a Buddhist woman, no marriage
is legally possible between them without the woman’s conversion to Islam. In
such a case, Myanmar wives lose all matrimonial rights conferred on them by
Myanmar customary law, including such rights as divorce, adoption, succession
and inheritance; and they are to be governed by Islamic law only. The same
situation also happens in respect of a marriage between a Hindu man and a
Buddhist woman. According to the Christian Marriage Act, a legal marriage
between a Myanmar woman and a Christian could be contracted either by
means of a Christian religious ceremony or by civil contract before a Registrar.
Under this Act, conversion is not necessary but her marriage is governed by
the Christian Marriage Act for marriage matters and the Succession Act for
succession matters, not by Myanmar customary law. In mixed marriages between
Myanmar Buddhist women and non-Buddhist husbands, therefore, Myanmar
women are in a worse position.

47 Monogamy Law, Pyidaungsu Hluttaw Law No. 54 of 2015.

48 Monogamy Law, s. 4.

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 Marriage under Myanmar Customary Law

The Christian Marriage Act, Special Marriage Act 1872, the Buddhist
Women’s Special Marriage and Succession Act of 1954 (repealed law) and the
new Myanmar Buddhist Women’s Special Marriage Law of 2015 are important
statutes providing a legal form of marriage between Buddhist and non-Buddhist.
The first two enactments provided possible forms and procedures by which valid
marriages could be contracted between persons who professed the Buddhist
faith and those who did not. The repealed law of Buddhist Women’s Special
Marriage and Succession Act of 1954 and the new Myanmar Buddhist Women’s
Special Marriage Law of 2015 confer the legal status of wife, legitimacy of their
children and any other matrimonial rights under Myanmar customary law upon
Myanmar Buddhist women whose spouses are non-Buddhists.
The brief discussion on marriage under these four marriage laws will be
highlighted.
A Christian can contract a valid marriage with a non-Christian according
to the Christian Marriage Act. If a Myanmar Buddhist man marries a non-
Buddhist woman, the governing law to legalise their marriage is not Myanmar
customary law but either the Christian Marriage Act or the Special Marriage Act.
In the case of U Aye Hlaing v. Daw Nartarlyar (alias) Daw Buthee,49 it was held
that the Christian Marriage Act lays down a series of rules and procedures to
constitute a valid marriage. The parties intending to marry under the said Act
shall be solemnised in accordance with its respective provisions. The marriage
may be performed either in a religious ceremony or at the Registrar’s Office.
Cohabitation between a Myanmar Buddhist husband and Christian wife without
having formal solemnisation shall not constitute a valid marriage.
The Special Marriage Act of 1872 was amended in 1923 to provide a form
of marriage for non-Buddhists and Buddhists, and to legalise certain marriages
the validity of which is doubtful. When a Buddhist man or woman married a
non-Buddhist under the said two Acts, their marriage is a special marriage and
falls outside Myanmar customary law, to be governed in questions of divorce
by the Divorce Act and in questions of succession by the Succession Act. He or
she loses the right to adopt a child. Therefore, although these two Acts make it
possible for Buddhists and non-Buddhists to marry, such marriages take the
families outside the pale of Myanmar customary law.
The Buddhist Women’s Special Marriage and Succession Act was passed by
Parliament in 1954 to protect the interests of Buddhist women who married
non-Buddhists. Principles of Myanmar customary law relating to succession,
divorce and adoption are applicable to this couple under the 1954 Act. The Act
sought to make Myanmar customary law territorial and not personal.

49 U Aye Hlaing v. Daw Nartarlyar (alias) Daw Buthee, 1977 First Civil Appeal Case No. 28,
Supreme Court of Mandalay.

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 Myanmar

In Daw Saw v. E.M. S Mac Tung’s Estates,50 a Myanmar Buddhist wife applied
for a succession certificate regarding a property of a deceased Muslim. The father
of the deceased filed a rival application for a succession certificate. The deceased
and the Myanmar Buddhist wife had lived as husband and wife since 1926. The
father of the deceased contended that Islamic Law would apply to the partition
of property. The Chief Court did not accept the contention and pointed out that
the Buddhist Women’s Special Marriage and Succession Act 1954 was passed for
protection of the rights of Myanmar woman. The wife of the deceased had the
full right to inherit the property of deceased. Therefore a succession certificate
must be issued to the wife.
The equitable nature of Myanmar customary law can be found in Daw Ah
Mar v. Daw Hla Tint & seven others case.51 Under the Buddhist Women’s Special
Marriage and Succession Act, a Myanmar Buddhist wife, Daw Ma Ma Lay, could
inherit the estate of a deceased Muslim husband, U Ba Thien. If Daw Ma Ma Lay
passed away, their children would inherit. Under Myanmar customary law, there
are no provisions prohibiting the right of inheritance of a deceased Buddhist’s
estate to his or her non-Buddhist children. Therefore, the non-Buddhist son
could inherit the estate of deceased Myanmar Buddhist mother Daw Ma Ma Lay.
Though the Act gives protection to all Buddhist women who enter into union
with non-Buddhist residents in the country, the Supreme Court and the Attorney
General Office’s strictly directed and prohibited their subordinate offices not to
sign affidavits for marriage between a Myanmar Buddhist woman and an alien
from any foreign country.
The 1954 Act was replaced by the new enactment of the Myanmar Buddhist
Women Special Marriage Law of 2015 in order to provide better protection
for Myanmar Buddhist women married to non-Buddhists. The new Myanmar
Buddhist Women’s Special Marriage Law and the Monogamy Law will be
discussed here as both laws are connected with and have made improvements to
marriage principles under Myanmar customary law.
The Myanmar Buddhist Women’s Special Marriage Law guarantees equal
enjoyment of and effective protection of matrimonial rights with respect to
marriage, divorce, partition and guardianship of children that arise from the
marriage between Myanmar Buddhist woman and a non-Buddhist man.52 This
law is applicable to every Buddhist woman and her non-Buddhist husband
whatever his personal law. Disputes concerning marriage, divorce, partition,
succession and guardianship of children of Myanmar Buddhist women and non-
Buddhist men shall be decided in accordance with this law.53

50 Daw Saw v. E.M. S Mac Tung’s Estates, 1966 BLR, 81.

51 Daw Ah Mar v. Daw Hla Tint & seven others, 2003 MLR 161.
52 Preamble to the Myanmar Buddhist Women’s Special Marriage Law.
53 Ibid, s. 2(a).

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Under this law, marriageable age for both sexes is higher than the previously
repealed law, for now both parties to marriage must have reached the
age of 18.54 Under the repealed law, the non-Buddhist man needed to attain
puberty and the Buddhist woman must have reached the age of 14 in order to
enter into a valid marriage contract. Another important change is the provision
that ‘[n]either party has an existing valid marriage’.55 The other essential
elements in connection with competence to marry and with obtaining parents’
or guardian’s consent are the same as under Myanmar customary law.56
No existing valid marriage on the part of husband is a new requirement due
to the recent institution of Myanmar’s monogamous marriage system under
the Monogamy Law of 2015. Section 5(c) of the Buddhist Women’s Special
Marriage and Succession Act, 1954 (repealed law) required the fact that only the
woman must not have an existing valid marriage, since principles of Myanmar
customary law then allowed only polygamy, not polyandry. The Monogamy Law
makes a careful shift from polygamous marriage to monogamous marriage with
the insertion of sections 5 to 10 by connecting the Monogamy Law, the Myanmar
Buddhist Women’s Special Marriage Law and Myanmar customary law. Subject
to the provisions of this law, man and woman may legally enter into a marriage in
accordance with either any existing law, or any religion or any custom to which
they are subjects.57 However, after the enactment of this Monogamy Law, every
marriage between a man and a woman shall be monogamous, without affecting
the validity of polygamous marriage made before the enactment of this law.58
In addition, intermarriage between Buddhists or mixed marriage between a
non-Buddhist man and a Buddhist woman shall be legitimate if intermarriage is
consistent with Myanmar customary law as well as with the Myanmar Buddhist
Women’s Special Marriage Law.59 In other words, all marriages contracted within
the Union of Myanmar are governed by the Monogamy Law whether or not the
parties to the marriage are Buddhists.
Chapter 3 of the Myanmar Buddhist Women’s Special Marriage Law details
the formalities to constitute a valid marriage. The marriage certificate, which is
conclusive proof of such marriage, will be issued by the Registrar after fulfilling
the conditions laid down by the said chapter. Sections 21 and 23 deal with legal
presumptions. Section 21 provides that where a non-Buddhist man makes
a promise to marry a Buddhist woman, such promise shall be deemed to be
a promise to marry made under this law. Section 22 further states that where a
non-Buddhist man and a Buddhist woman live together in such a manner as if

54 Ibid, s. 4.
55 Myanmar Buddhist Women’s Special Marriage Law, 2015, s. 4(d) and (e).
56 Ibid, s. 4(a)–(c).
57 Monogamy Law, s. 5.
58 Ibid, ss. 6 and 10.
59 Myanmar Buddhist Women’s Special Marriage Law, ss. 7 and 8.

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 Myanmar

they are husband and wife in accordance with Myanmar customary law, they shall
be deemed to be lawfully married under this law from the time they started to live
together as such. Incidents and issues arising from marriages performed under
this law or presumed by it, such as issues arising from marriage or ownership
of matrimonial property, shall be governed by the Myanmar customary law.60
The new Special Marriage Law has penal provisions for those who violate any
provisions made under section 19 to 20 of chapter 4 under the title of ‘ Terms
and conditions for the non-Buddhist man’. There were no such penal provisions
under the repealed Special Marriage Act of 1945.

11. CONCLUSION

This chapter has briefly discussed the marriage system under Myanmar
customary law. Myanmar customary law has been greatly improved by judicial
decisions and new enactments which may be the most important source of
present-day Myanmar customary law. Most recently, in 2015, the Pyidaungsu
Hluttaw enacted two important laws for marriage, namely, the Myanmar
Buddhist Women’s Special Marriage Law of 2015 and the Monogamy Law of
2015.61 However, since Myanmar customary law is neither written nor codified
law in a strict sense, there is a need to develop more and refine further the
legal doctrines of Myanmar customary law. It has been proposed by Myanmar
legal scholars to establish a statutory marriage system based on the fine and
well-established customary marriage system in order to remove uncertainty, to
facilitate the proving of the validity of marriage, and to settle the issues arising
from entitlement to marital property. In this regard, it is worth mentioning the
obiter dictum of the late Chief Judge Dr. Maung Maung of the then Chief Court
in Daw Kyi Kyi v. Mrs. Mary Wain, 1971 B.L.R. (C.C)52:

As matters concerning marriage are social matters, it is necessary for the legislative
authorities to seriously consider whether or not legislative enactments need to be
made in order to make uniform marriage laws applying to all persons resident in the
country regardless of the personal religion and personal laws of such persons. The
mixtures of religion and marriage, the use of personal religion and personal law in
deciding matters concerning marriage is no longer in accord with the times.

60 Ibid, ss. 24–31.

61 There are actually four new statutes in 2015 relating to marriage either directly or indirectly.
These laws are: (1) the Myanmar Buddhist Women’s Special Marriage Law; (2) the
Monogamy Law; (3) the Religious Conversion Law, and (4) the Control of Population Law.
These are collectively and popularly known as the Race and Religion Protection Laws. For
present purposes, however, the Myanmar Buddhist Women’s Special Marriage Law and the
Monogamy Law are the only ones to have been discussed in this chapter.

372 Intersentia