VOIDABLE MARRIAGES

LEONG WAI KUM

STATISTICS
Extremely few judgments of nullity are made in Singapore
2012 5,306 judgments of divorce under Womens Charter 344 judgments of nullity under Womens Charter (The 344 not separated into annulment for being void ab initio or only for being voidable) Of those annulled for voidable cause, no statistics on which of 6 causes in W Ch s 106 was proven When such statistic was provided (back in 1994) overwhelming 98% alleged non consummation. May be no different today In practical terms law of voidable marriages not very important (cf law of void marriages critical to identify most important among statutory prescriptions of formality and capacity to marry)

EFFECT OF COMPLIANCE/FAILURE OF LEGAL REQUIREMENTS OF FORMATION

Valid marriage Where full compliance of legal requirements

Voidable marriage Breach of 1 of 6 voidable causes

Void marriage

Breach of critical statutory prescriptions

Non-marriage

No formation, even, of contract of marriage

VOIDABLE CONCEPT IS AWKWARD

1 It is half-way house between valid and void marriage 2 Voidable is marriage that spouses can choose whether to make void or to leave to continue as valid 3 How can law of formation give such choice to spouses? 4 Earlier slide would be neater (and more rational) if no voidable 5 Statutory changes (each for good reason) now means, W Ch s 110(2), marriage is declared void only from date of judgment of nullity. Weird? What is status of marriage between solemnization and declaration of nullity? Can be either valid or void needs to be determined independently 6 Layman (even some lawyers) cannot appreciate legal difference between annulment of marriage for voidable cause with termination of marriage by divorce. Very significant difference in law; none in real life

TANG YUEN FONG v POH WEE LEE JERRY [1995] 2 SLR(R) 573
W sought annulment alleging marriage not consummated due to Hs wilful refusal. No particulars of Hs wilful refusal provided H did not defend Selvam J in SGHC: I dismissed the petition [despite absence of defence]. I drew the inference that the parties in this case by agreement were converting a case for divorce into one of nullity as the latter is speedier [no 3-year bar from date of solemnization to application] and carries no stigma.

CHUA AI HWA v LOW SUAN LOO

(1993) SGHC 127
W sought annulment (also) alleging marriage not consummated due to Hs wilful refusal. Also, no particulars of Hs conduct. H, also, did not defend Coomaraswamy J in SGHC: I dismissed the petition [despite absence of defence]. The real reason why the petitioner wanted an end to the marriage was the parties were incompatible and that she decided that each should go his or her own way. *Both cases decided at time application for judgment of nullity disposed of by SGHC Now, will be heard and resolved by Family Court Will Family Court judiciary (District Court level) be as careful or bold?

AWKWARDNESS AFFIRMED BY LAW COMMISSION OF ENGLAND AND WALES (1970)

[T]he two remedies [divorce and annulment for voidable cause] are in substance similar and the difference between them is really only a matter of form, in each case there is a marriage until the decree is made and that decree terminates the marriage but, in the case of nullity, the decree misleadingly declares the marriage to have never existed [as from time of judgment]

that being so, it is more logical [in voidable marriage] to terminate the marriage by a divorce which records the realities of the situation.
Despite this, Law Com did not recommend repeal of the law of voidable marriage

Mainly, because voidable marriage still makes sense within a Christian community
Should Singapore continue with this area of law?

HOW DID LAW DEVELOP TO THIS FORM?

Read summary in Principles of Family Law in Singapore (1997)

Ecclesiastical courts, enforcing canon law of marriage developed from tenets of Roman Catholic Church, used to readily annul marriage for failure of compliance of any requirement of formation of marriage
From 17th century, civil courts began to forbid some annulments Rules/impediments divided into 2: civil (annulments allowed) canonical (restricted annulment) In time, civil impediments form causes of void marriage while canonical impediments largely are causes of voidable marriage Modern law consolidated into (UK) Nullity of Marriage Act 1971

Singapore followed all these developments

Voidable marriage law in W Ch exactly like that in UK So, this area of law acknowledged as illogical (by Law Com) and regarded necessary to keep only in Christian (Roman Catholic) community

SUMMARY OF CONCEPT OF VOIDABLE MARRIAGE

For any of 6 causes, either spouse may choose whether to annul marriage or, alternatively, allow it to continue as valid marriage If one so chooses, marriage is declared void (ie formation gravely defective) but only from time of judgment No doubt part of law of formation of marriage but (to layman) appears, on the contrary, as if marriage were being terminated Only any H or W can avail law. S 106 read with s 104 affirms this SGHC in Tan Ah Thee (2009) confirmed this: Sons claims that fathers marriage voidable (even if provable) cannot succeed. Law open only to father and his 2nd W Of 6 causes in s 106, 1 is clearly of condition after solemnization: marriage not consummated due to wilful refusal to consummate There have been academic calls to abolish but does not seem likely in near future

S 106 (a) AND (b)

That marriage has not been consummated, if due to either of 2 causes, renders marriage voidable at choice of spouses Only these 2 causes suffice Eg if not consummated by the voluntary choice of the spouses, this marriage is not voidable

The 2 causes are owing to the incapacity of either party to consummate it or owing to the wilful refusal of the defendant to consummate it
NB difference: applicant can rely on own incapacity to consummate but allegation of wilful refusal must be of the other spouse

For either of these 2 causes, applicant must prove 2 facts:

- that marriage has not been consummated; and - that this is due to operative reason

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NON-CONSUMMATION DUE TO INCAPACITY

L v L [1956] HC of Colony of Singapore: non-consummation is failure of 1 complete act of sexual intercourse after solemnization of marriage Ie, that parties had sex before marriage is immaterial Ie, that parties stopped completely after 1 complete act of sexual intercourse is immaterial

Ie, that parties may be infertile is immaterial

Case also decides that incapacity can be alleged of either H or W. (It is not restricted to male impotence) But incapacity must be permanent and not easily curable

Naturally medical evidence can be useful. The Womens Charter (Matrimonial Proceedings) Rules allow for medical examination
Not clear if incapacity has to be proven from date of formation of marriage. Used to be how former provision read but s 106(a) equivocal on this point. Can be read either way

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NON-CONSUMMATION DUE TO WILFUL REFUSAL

Traditional evidence of wilful refusal is persistent rejection of requests for intimacy: LSJ v LKK [1992] SGHC, Tan Lan Eng [1994] SGHC Kwong Sin Hwa v Lau Lee Yen [1993] SGCA decided that it also can be proven by way of other spouses refusal to perform condition precedent before start of marital cohabitation Before solemnization, parties entered pre-nuptial agreement that they would not begin marital cohabitation until they had undergone Chinese ceremony of marriage. SGCA decided this is a perfectly valid agreement. After solemnization, female party refused to hold the Chinese ceremony SGCA decided this is good evidence of wilful refusal

LP Thean JA: It is not wrong for the court to give recognition to such agreement and to hold the party in default as having in effect wilfully refused to consummate the marriage.
(Uniquely local manifestation of wilful refusal)

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EITHER PARTY DID NOT VALIDLY CONSENT TO IT

Absence of valid consent by either party turned into voidable cause by (UK) Nullity of Marriage Act 1971 Note, applicant can rely on her own absence of consent Applicants allegation is: I may have participated in the solemnization but, for good reason, court should regard this was only apparent (not real) consent to be married to other party What constitutes good reason that undermines consent? S 106(c) provides in consequence of duress, mistake, mental disorder or otherwise Each of these should be understood narrowly Court must not allow party having second thoughts after solemnization to mask this as failure of consent. Court to carefully identify true instances of failure of consent

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ABSENCE OF CONSENT DUE TO MISTAKE

Well established by now that mistake to be operative must only be 1 of 2 things: - mistake of effect of the solemnization of marriage, or - mistake of the (whole) person one is marrying 1 If you can prove to the court that you thought you were acting in a play and not undergoing solemnization of marriage, you have a chance 2 If you can prove that a completely wrong person showed up at the solemnization (ie the two of you never met before the day), you also have a chance. Not enough to be mistaken about any one or more attributes (or qualities) of the person If cause were understood any more loosely, there may never be any valid formation of marriage

We are likely to be mistaken about some attribute(s) of other party

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ABSENCE OF CONSENT DOES NOT ALLOW ARGUMENT THAT MARRIAGE IS A SHAM

People marry for a range of objectives Law does choose between these. Ie no objective is wrong reason to marry Basis of sham marriage argument is that the marriage was for a wrong objective

Tan Ah Thee (2009) SGHC rejected sons argument

Sons argued that marriage solely so that 2nd W can control father and get to all his property Toh Seok Kheng v Huang Huiqun (2010) SGHC

Mothers argument that her sons marriage was solely to allow W privilege of immigration into Singapore. Also rejected by same J
J Prakash J in SGHC said there must be a different way to ensure immigration laws are not misused

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(Law subsequently amended so that immigration authorities can withhold residence status even after lawful marriage)

CANNOT ADD TO THE 6 CAUSES

Tan Ah Thee (2009) SGHC Argument that marriage is voidable because it was for an improper objective / or limited objective cannot be entertained S 106 fully sets out all the causes of a marriage being voidable No more causes can be added to these

Sham marriage is not a cause

To this extent, SGHC affirmed HL decision in Vervaeke v Smith [1983] where it was also claimed that the marriage was voidable because it was only for the limited purpose of immigration

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OTHER 3 CAUSES IN S 106 LESS SIGNIFICANT

S 106(d): That at formation of marriage either party was unfit of marriage because suffering from mental disorder S 106(e): That at formation of marriage, defendant was suffering from venereal disease in a communicable form S 106(f): That at formation of marriage defendant was pregnant by some person other than the plaintiff There is technical hindrance to proving s 106(f) Evidence Act s 114 conclusively presumes that, once child is born, the child is of the man who is married to the mother (Examine this more closely when study P-C relationship) There is proposal to amend s 114 but this has not yet happened

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BARS TO AWARD OF JUDGMENT

S 107(1): General bar (applicable to all causes) where defendant proves - plaintiff, knowing that she could bring proceedings, conducted herself to lead defendant reasonably to believe that she would not do so; and - it would now be unjust to award the judgment (This is of nature of estoppel by conduct) S 107(2) and (3): More limited bars applying only to selected causes

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EFFECT OF JUDGMENT OF ANNULMENT

S 110(2) added to W Ch by Act 42 of 2005: A judgment of nullity granted on the ground that a marriage is voidable shall operate to annul the marriage only as respects any time after the judgment has been made final, and the marriage shall be treated as if it had existed up to that time.

Effect of judgment is prospective only

This amendment adds to problems with whole concept Once judgment given, court empowered to make full range of ancillary orders Ss 112 (division of matrimonial assets, 113 (maintenance of former wife, 124 (custody and care and control of child) and 127 read with 68 (maintenance of child)

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EFFECT ON LEGITIMACY OF CHILD

Before 2005, Act 9 of 1967 had added what is now s 111(1): Where a marriage is annulled, any child who would have been the legitimate child of the parties to the marriage if it had been dissolved, instead of being annulled, shall be deemed to be their legitimate child, notwithstanding the annulment. (This one effect of s 110(1) has already been specifically provided for) Restriction any child who would have been the legitimate child of the parties to the marriage if it had been dissolved means that, where the voidable cause suggests the child is not child of the parties s 111(1) has nothing to offer the child

Assume, childs mothers marriage to man proven voidable because she was pregnant with another mans child
By literal reading of s 111(1) this child is not deemed legitimate child of mother and her husband. Instead, illegitimate child of mother and man whose child the mother was pregnant with at her marriage

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LEGITIMACY (CONTD)
Of course we must remember that finding by court that voidable cause existed was made in an application where child was not a party In theory of litigation/issue estoppel, not impossible for another court, upon hearing evidence from child, to come to a different finding Ie earlier courts finding suggests child is illegitimate but later court can legitimately find, to contrary, that child is deemed legitimate

(Complicated and happens very seldom well review this aspect of the law under study of P-C relationship)

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