If a Jewish person and a Chinese person wish to get married in a predominantly non-Christian colony of the British Empire, is there any reason at common law why they should need to engage the services of a vicar or priest to solemnise their match? That was the issue in the case of Isaac Penhas v Tan Soo Eng [1953] AC 304 which the Judicial Committee of the Privy Council had to decide on an appeal from Singapore.  

The case carries some uncomfortable echoes of British colonial history, going back to a Royal Charter of 1826 under which, the law report notes, the common law of England was in force in Singapore, whose inhabitants were entitled to the exercise of their religions, manners and customs. The charter followed the establishment of the Straits Settlements as a colony, comprising Singapore, Malacca and Penang. 

By the time of the marriage in question, which took place in 1937, the law report notes, 'there was nothing manners or customs of Jews or Chinese domiciled in Singapore which prevented them from contracting a common law monogamous marriage' and the evidence indicated that that was indeed what Abraham Penhas and Tan Soo Eng had intended to contract, 'and not a Chinese polygamous marriage'. (There was some discussion in the argument - but no evidence - as to whether the Jewish husband would even have been entitled to contract a Chinese polygamous marriage, which was only tolerated in the colony on a customary basis.)

After their marriage the parties lived together as man and wife and had two children (who were baptized by a Christian pastor). But then came World War II. The report records that the husband was 'murdered by the Japanese, shortly after the fall of Singapore in February, 1942'. That rather tendentious way of putting it is perhaps an example of history being written by the victors. However one describes the misfortunes of war, the problem for the courts was 'Whether the petitioner Tan Soo Eng is or is not the lawful widow of Abraham Penhas'. That issue was ordered to be tried in a petition by the respondent for letters of administration of the estate, against which the appellant, the deceased’s brother Isaac, executor of a 1936 will predating the marriage, had entered a caveat. Presumably, the widow hoped to benefit for herself and their children from the husband’s estate. 

The Board affirmed the decision of the courts below that the marriage was valid at common law. They observed, by way of obiter dicta, that 

'In a country such as Singapore, where priests were few and where there was no true parochial system, and where the vast majority were not Christians, it was neither convenient nor necessary that two persons such as the parties to the marriage in the present case should be required to call in an episcopally ordained priest to effect a marriage.'

The reference in that case to polygamy brings to mind the foundational case of Hyde v Hyde (and Woodmansee) (1866) LR 1 P & D 130, in which Sir James Wilde, the Judge Ordinary (equivalent to the current President of the Family Division) provided what was until recent times the classic definition of marriage under English law: 'marriage, as understood in Christendom,' he declared, 'may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others'. Accordingly, a polygamous Mormon marriage entered into by the parties in the state of Utah would not be recognised in the English court for the purpose of a petition of divorce based on alleged adultery. The implication in Penhas v Tan was that a Chinese polygamous marriage would have been recognised as valid in Singapore, where it would not have been in England, following Hyde v Hyde.

The legal recognition of a religious wedding ceremony as a valid marriage continues to cause problems in the present day, as the case of Akhter v Khan (Attorney General intervening) [2020] EWCA Civ 122; [2020] 2 WLR 1183 demonstrates. Nasreen Akhter and Mohammed Shabaz Khan had gone through a traditional Islamic wedding ceremony, known as a Nikah, but failed to undergo the necessary civil registration process afterwards. The judge granted a decree of nullity, holding that the parties had entered into a void marriage rather than a wholly invalid one. But earlier this year the Court of Appeal reversed that decision, holding that under current legislation (Matrimonial Causes Act 1973, read in conjunction with the Marriage Act 1949) the Nikah ceremony did not create even a void marriage for the purposes of entitling the parties to a decree of nullity. This was a far cry from the indulgence offered back in Singapore under colonial rule in the 1950s. Moreover, Akhter’s case is hardly unique: a Channel 4 documentary, The Truth About Muslim Marriage, first broadcast in 2017, reported on a survey of 900 women who had been through a Nikah but had not had a civil ceremony or registration under the Marriage Act 1949. Aina Khan, a family lawyer and specialist in Islamic law, has founded the Register Our Marriage campaign with a petition to change the law.

The historic idea of marriage as a contract, enforceable at law, has led the courts in the past to become involved in claims by one party to a restoration by the other of their 'conjugal rights'. The precise nature of these rights (or their lack of fulfilment) is not always spelt out in the law reports, however, and in one high Victorian case (later overruled by the House of Lords) the Judge Ordinary resolved that the subject matter of the case was too indecent for public consumption, and that he must hear it “in Camerâ”. (I have no idea why the word camera had to wear a little cap on the end of it - a lens cap perhaps, all the better to keep proceedings thankfully oscura.) 

Why the secrecy? We may never know.  The case in question, reported anonymously as A v A (Hearing in private: Conjugal rights) (1875) LR 3 PD 230 concerned a claim by the wife for restitution of conjugal rights. In response to that, the law report tells us, the husband 'set up a charge of cruelty, and prayed for a judicial separation. The cruelty alleged was the writing a letter charging the respondent with unnatural practices.'

Faced with such a barrage of euphemism, it is tempting to read between the lines, and speculate as to what exactly the wife’s letter was accusing the errant husband of doing. My assumption is that, just as annulment cases were often based on impotence or frigidity, conjugal rights cases were often based on one or other party’s homosexuality.

In the more recent case of Wells v Wells [1954] 1 WLR 1390 there was no question of any of that sort of thing. The problem, instead, was whether by sleeping with his wife soon after she had confessed to committing adultery with another man, by whom she was now pregnant, the husband had condoned her transgression, thus depriving himself of any defence to a claim by her, when he later walked out, to the restoration of her conjugal rights. Lord Goddard, giving the main judgment in the Court of Appeal, said that “although she may have no affection for him and he none for her, the court is bound to grant a decree” ordering the husband to go back and live with her. Such was the power of the court and society to compel the performance of the marital vows, by what in contract law would be termed specific performance (and something from which artistic engagements, for example, were exempted: see Lumley v Wagner (1852) 1 De GM & G 604).

The whole issue of 'condonation', the cancelling of marital offences, and the complicated rules which often forced divorcing couples to game the system to get their decree, should perhaps await discussion another time. As LP Hartley wrote, 'the past is a foreign country, they do things differently there'; and matrimonial law, with its hybridisation of ecclesiastical and temporal laws, is no different.

Written by Paul Magrath