LWK Voidable Marriages

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    VOIDABLE

    MARRIAGES

    LEONG WAI KUM

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    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)

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    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

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    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

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    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.

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    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?

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    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?

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    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

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    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

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    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

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    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

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    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)

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    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

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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 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

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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

    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)

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    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

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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 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)

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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 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)

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