Professional Documents
Culture Documents
1. LAW OF NULLITY
Women’s Charter
Main statute governing non-Muslim family law (Muslims
governed by separate system of Muslim law but some issues
can be adjudicated under Women’s Charter
In force since 1961: introduced common marriage system
and abolished customary marriages
Introduced monogamy and equal partnership of husband
and wife in marriage
Provisions governed the spousal relationship, parent and
child relationship and financial and property issues between
family members
Administration of Muslim Law Act (AMLA)
Guardianship of Infants Act
Adoption Act
Matrimonial Proceedings Rules
NB: The law in this area is largely governed by the Women’s Charter
(“the Charter”). Unless otherwise stated, statutory provisions contained
herein shall refer to the Charter.
Section 3
(1) Except as otherwise provided, this Act shall apply to all persons in
Singapore and shall also apply to all persons domiciled in
Singapore.
(2) Parts II to VI and Part X and sections 181 and 182 shall not apply to
any person who is married under, or to any marriage solemnised or
registered under, the provisions of the Muslim law or of any written
law in Singapore or in Malaysia providing for the registration of
Muslim marriages.
Formation of marriage
2 aspects to validity of marriage:
o Formal validity: comply with form/procedures
o Essential validity: parties must have capacity to marry each
other
Conflict of laws apply where foreign elements exist (party foreign or
marry in foreign jurisdiction)
Breach of formal or capacity provisions: void marriage
Common law
(a) Void:
- All void marriages are void ab initio – regarded as never having
taken place
- Complete nullity
- Thus, issue of validity can be put in issue by an interested
person even after the death of parties to the marriage
- Eg. Action by brother regarding legitimacy of children (affects
succession to deceased’s estate)
(b) Voidable:
- Regarded as a valid subsisting marriage until a decree annulling
it has been pronounced by a court of competent jurisdiction (De
Reneville v De Reneville [1948] 1 All ER 56)
- Only can be annulled during the lifetime of both parties
- They are regarded as the only persons with locus standi to put
this in issue before the Courts
- Marriage regarded as valid until annulled
- Thus, cannot be put in issue after 1 of the parties passes away
(since then, there would be no defendant!)
- However if avoided during the lifetime of both parties, the
annulment operates retrospectively
Women’s Charter
Petition for nullity of marriage:
Section 104
Any husband or wife may file a writ claiming for a judgment of nullity in
respect of his or her marriage.
Family Law Exam Notes Page 5 of 18
VOID AND VOIDABLE MARRIAGES
Section 110
(1) If the court finds that the plaintiff’s case has been proved, it shall
grant a judgment of nullity.
(2) A judgment of nullity granted after 1st June 1981 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, notwithstanding the judgment, be treated as if it had
existed up to that time.
Section 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, at the date of the judgment
shall be deemed to be their legitimate child, notwithstanding the
annulment.
(2) The child of a void marriage born on or after 2 nd May 1975 shall be
deemed to be the legitimate child of his parents if, at the date of
such void marriage, both or either of the parties reasonably
believed that the marriage was valid.
Family Law Exam Notes Page 6 of 18
VOID AND VOIDABLE MARRIAGES
Section 22
A marriage which takes place after 1st June 1981 shall be void on the
following grounds only:
(a) that it is not a valid marriage by virtue of sections 3(4), 5, 9, 10, 11,
12 and 22; or
(b) where the marriage was celebrated outside Singapore, that the
marriage is invalid –
(i) for lack of capacity; or
(ii) by the law of the place in which it was celebrated.
The grounds –
- But legislation has altered the position today: section 12(2), (3)
(4) Nothing in subsection (2) shall validate any such marriage which
had been declared by the High Court before 1 st May 1997 to be null
and void on the ground that the parties were of the same sex.
Section 106
A marriage which takes place after 1st June 1981 shall be voidable on
the following grounds only…
i. Incapacity to consummate
(a) that the marriage has not been consummated owing to the
incapacity of either party to consummate it;
(b) that the marriage has not been consummated owing to the wilful
refusal of the respondent to consummate it;
Tang Yuen Fong v Poh Wee Lee Jerry [1995] 3 SLR 359
Selvam J held:
(1) Petition dismissed – Court must not act as a rubber stamp and
grant the petition as a matter of course
(2) For petition on the ground of wilful refusal to consummate, act of
non-consummation alone was insufficient – non-consummation
must be wilful and the petitioner must give particulars to show
absence of just cause and of fault on the part of the petitioner.
Here, petitioner failed to plead and prove that the husband had
come to a settled and definite decision not to consummate the
marriage without just excuse.
Cf.,
Tan Kim Hong Doris v Freddy Gunawan
Court: what was pleaded was wilful refusal to go through Chinese ceremony,
not wilful refusal to consummate marriage. There is no allegation or evidence
of the latter
Duty not to deceive the court: Heng Joo See v Ho Pol Ling
Family Law Exam Notes Page 14 of 18
VOID AND VOIDABLE MARRIAGES
(c) that either party to the marriage did not validly consent to it, whether
in the consequence of duress, mistake, unsoundness of mind or
otherwise;
Duress:
*Objective of subjective test?
- Objective test: vitiates consent where causes person with
reasonable fortitude to succumb to it; Leaves out persons with
more than average timidity
- Subjective test: [TCH prefers] question of fact – did pressure on
that particular individual diminish that person’s will to give rise to
consent, regardless of whether or not other people would under
those circumstances
- “Life, limb & liberty”: Sufficient duress vitiating cosent?
- Only thread to life, limb or liberty which causes will to be
overborne would suffice: Singh v Kaur
- Task is to distinguish situations where society would
expect P to stand up to threat from situations where society
would allow P to submit to threat
- Disagreeable situations – should/ not constitute duress depends
on circumstances of the case – possibility for very overwhelming
circumstances to arise (Consider: Parents’ disapproval?)
*Operative duress?
- Fear arisen from the very person responsible for the threat – not
operative
- Ultimately depends on circumstances, words used & pressure to
bear
- Value judgment on legitimacy of form of pressure
yes, when asked if she was there of her own free will, because her family
members were there. After the solemnization of the marriage, the parties not
only lived apart, but the petitioner also refused to talk to the respondent in the
manner expected. Once she got to 21, she left her parent’s home and sought
legal advice, and wanted to nullify the marriage.
Held:
The consent of third parties required in all cases involving minors is
intended for the benefit of the minor. It assumes that a minor needs, as
in other important contracts, the protection of his parent, guardian or
the law.
Therefore, it follows that it cannot be given to the detriment of the minor
by well-meaning parents
Parents may invoke culture and tradition, oppose a choice of a partner
they think unsuitable, persuade, influence and arrange marriages, but
the consent for marriage, even when parents give their consent for the
marriage of a minor, must include the free consent of the person who is
marrying.
Duress is a coercion of the will so as to vitiate consent.
It must be proved that the will of one of the parties was overborne by
fears of threats of force to life, limb or liberty.
When the petitioner stood before the Registrar of Marriages, she
believed herself to be in an inescapable dilemma.
She had to choose between marriage or possible assaults and abuse
which would make it impossible for her to live in the family home
Her protests were either ignored or rewarded with slaps.
Mistake:
- Very technical at law
- Mistake as to identity, not attributes, will vitiate consent
- Eg., A and B have never seen each other. A proposes
through correspondence. C impersonates A and marries B.
B has not consented to marry C
- C v C [1942] NZLR 356
(d) that at the time of the marriage either party, though capable of
giving a valid consent, was suffering (whether continuously or
intermittently) from mental disorder within the meaning of the
Mental Disorders and Treatment Act (Cap. 178) of such kind or to
such an extent as to be unfit for marriage;
v. Venereal disease
(e) that at the time of the marriage the respondent was suffering from
venereal disease in a communicable form;
Family Law Exam Notes Page 17 of 18
VOID AND VOIDABLE MARRIAGES
(f) that at the time of the marriage the respondent was pregnant by
some person other than the petitioner.
Section 107
(1) The Court shall not, in proceedings instituted after 1st June 1981,
grant a judgment of nullity on the ground that a marriage is voidable
(whether the marriage took place before or after that date) if the
defendant satisfies the courts that –
(a) the plaintiff, with knowledge that it was open to him to have the
marriage avoided, so conducted himself in relation to the defendant
as to lead the defendant reasonably to believe that he would not
seek to do so; and
(b) it would be unjust to the defendant to grant the judgment.
(2) Without prejudice to subsection (1), the court shall not grant a
judgment of nullity on the grounds mentioned in section 106 (c), (d),
(e) or (f) unless it is satisfied that proceedings were instituted within
3 years from the date of marriage.
(3) Without prejudice to subsections (1) and (2), the court shall not
grant a judgment of nullity on the grounds mentioned in section 106
(e) or (f) unless it is satisfied that the petitioner was, at the time of
the marriage, ignorant of the facts alleged.