8/13/2019 LWK Voidable Marriages
1/21
VOIDABLE
MARRIAGES
LEONG WAI KUM
1
8/13/2019 LWK Voidable Marriages
2/21
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
(cflaw of void marriages critical to identify most important among
statutory prescriptions of formality and capacity to marry)
2
8/13/2019 LWK Voidable Marriages
3/21
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 3
8/13/2019 LWK Voidable Marriages
4/21
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 4
8/13/2019 LWK Voidable Marriages
5/21
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 defendSelvam 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.
5
8/13/2019 LWK Voidable Marriages
6/21
CHUA AI HWA v LOW SUAN LOO
(1993) SGHC 127
W sought annulment (also) alleging marriage not consummated dueto Hs wilful refusal. Also, no particulars of Hs conduct. H, also, didnot defend
Coomaraswamy J in SGHC:
I dismissed the petition [despite absence of defence].
The real reason why the petitioner wanted an end to the marriagewas the parties were incompatible and that she decided that eachshould go his or her own way.
*Both cases decided at time application for judgment of nullitydisposed of by SGHC
Now, will be heard and resolved by Family Court
Will Family Court judiciary (District Court level) be as careful or bold?
6
8/13/2019 LWK Voidable Marriages
7/21
AWKWARDNESS AFFIRMED BY LAW
COMMISSION OF ENGLAND AND WALES (1970)
[T]he two remedies [divorce and annulment for voidable cause] arein substance similar and the difference between them is really only amatter of form, in each case there is a marriage until the decree ismade and that decree terminates the marriage
but, in the case of nullity, the decree misleadingly declares themarriage to have never existed [as from time of judgment]
that being so, it is more logical [in voidable marriage] to terminatethe marriage by a divorce which records the realities of the situation.
Despite this, Law Com did not recommend repeal of the law ofvoidable marriage
Mainly, because voidable marriage still makes sense within aChristian community
Should Singapore continue with this area of law?
7
8/13/2019 LWK Voidable Marriages
8/21
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 tenetsof Roman Catholic Church,used to readily annul marriage for failure ofcompliance of any requirement of formation of marriage
From 17thcentury, 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 canonicalimpediments largely are causes of voidable marriage
Modern law consolidated into (UK) Nullity of Marriage Act 1971Singapore 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 regardednecessary to keep only in Christian (Roman Catholic) community
8
8/13/2019 LWK Voidable Marriages
9/21
SUMMARY OF CONCEPT OF
VOIDABLE MARRIAGE
For any of 6 causes, either spouse may choose whether to annul marriageor, alternatively, allow it to continue as valid marriage
If one so chooses, marriage is declared void (ie formation gravelydefective) but only from time of judgment
No doubt part of law of formation of marriage but (to layman) appears, onthe 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 fathersmarriage voidable (even if provable) cannot succeed. Law open only tofather and his 2ndW
Of 6 causes in s 106, 1 is clearly of condition after solemnization: marriagenot consummated due to wilful refusal to consummate
There have been academic calls to abolish but does not seem likely in nearfuture
9
8/13/2019 LWK Voidable Marriages
10/21
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 consummateit or owing to the wilful refusal of the defendant to consummate it
NB difference: applicant can rely on own incapacity to consummate butallegation 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
10
8/13/2019 LWK Voidable Marriages
11/21
NON-CONSUMMATION DUE TO
INCAPACITY
L v L [1956] HC of Colony of Singapore: non-consummation is failure of 1complete 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 isnot 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 ofmarriage. Used to be how former provision read but s 106(a) equivocal onthis point. Can be read either way
11
8/13/2019 LWK Voidable Marriages
12/21
NON-CONSUMMATION DUE TO
WILFUL REFUSAL
Traditional evidence of wilful refusal is persistent rejection of requests forintimacy: LSJ v LKK [1992] SGHC, Tan Lan Eng [1994] SGHC
Kwong Sin Hwa v Lau Lee Yen [1993] SGCA decided that it also can beproven by way of other spouses refusal to perform condition precedent
before start of marital cohabitationBefore solemnization, parties entered pre-nuptial agreement that theywould not begin marital cohabitation until they had undergone Chineseceremony 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 suchagreement and to hold the party in default as having in effect wilfully refusedto consummate the marriage.
(Uniquely local manifestation of wilful refusal)
12
8/13/2019 LWK Voidable Marriages
13/21
EITHER PARTY DID NOT VALIDLY
CONSENTTO 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 13
8/13/2019 LWK Voidable Marriages
14/21
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 playand not undergoing solemnization of marriage, you have a chance
2 If you can prove that a completely wrong person showed up at the
solemnization (iethe 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
14
8/13/2019 LWK Voidable Marriages
15/21
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
objectiveTan Ah Thee (2009) SGHC rejected sons argument
Sons argued that marriage solely so that 2ndW can control father and get toall his property
Toh Seok Kheng v Huang Huiqun (2010) SGHC
Mothers argument that her sons marriage was solely to allow W privilege ofimmigration into Singapore. Also rejected by same J
J Prakash J in SGHC said there must be a different way to ensureimmigration laws are not misused
(Law subsequently amended so that immigration authorities can withholdresidence status even after lawful marriage)
15
8/13/2019 LWK Voidable Marriages
16/21
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 voidableNo 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 voidablebecause it was only for the limited purpose of immigration
16
8/13/2019 LWK Voidable Marriages
17/21
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
17
8/13/2019 LWK Voidable Marriages
18/21
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
18
8/13/2019 LWK Voidable Marriages
19/21
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 ordersSs 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)
19
8/13/2019 LWK Voidable Marriages
20/21
8/13/2019 LWK Voidable Marriages
21/21
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 differentfinding
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 seldomwell review this aspect
of the law under study of P-C relationship)
21