Adp v Adq

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judgment Date: 19 January 2012
• Date: 19 January 2012
• Docket Number: Civil Appeal No 62 of 2011

[2012] SGCA 6

Court of Appeal

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

Tan Lee Meng J

Civil Appeal No 62 of 2011

ADP

Plaintiff

and

ADQ

Defendant

Tan Cheng Han SC (instructed), Lim Kim Hong and Rafidah Binte Abdul Wahid (Kim & Co) for the appellant

The respondent absent.

A v B (1868) LR 1 P&D 559 (refd)

Adams v Adams [1941] 1 KB 536 (refd)

ADP v ADQ [2009] SGDC 489 (refd)

De Reneville v De Reneville [1948] P 100 (refd)

Eaves, Re [1940] Ch 109 (refd)

Fowke v Fowke [1938] Ch 774 (refd)

George Hubert Powell v Viola M Cockburn [1977] 2 SCR 218 (refd)

Goh Nellie v Goh Lian Teck [2007] 1 SLR (R) 453; [2007] 1 SLR 453 (folld)

Joseph Mathew v Singh Chiranjeev [2010] 1 SLR 338 (refd)

L v C [2007] 3 HKLRD 819 (refd)

Lee Tat Development Pte Ltd v MCST Plan No 301 [2005] 3 SLR (R) 157; [2005] 3 SLR 157 (folld)

PP v Low Kok Heng [2007] 4 SLR (R) 183; [2007] 4 SLR 183 (refd)

Rampal v Rampal (No 2) [2002] Fam 85 (refd)

Ramsay v Ramsay (otherwise Beer) [1913] 108 LT 382 (refd)

Roberts, deceased, Re [1978] 1 WLR 653 (refd)

Ross Smith v Ross Smith [1963] AC 280 (refd)

Tan Ah Thee v Lim Soo Foong [2009] 3 SLR (R) 957; [2009] 3 SLR 957 (refd)

Wing Joo Loong Ginseng Hong (Singapore) Co Pte Ltd v Qinghai Xinyuan Foreign Trade Co Ltd [2009] 2 SLR (R) 814; [2009] 2 SLR 814 (refd)

Interpretation Act (Cap 1,2002 Rev Ed) s 9 A

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 57 r 18 (2)

Statutes (Miscellaneous Amendments) (No 2) Act 2005 (Act 42 of 2005)

Straits Settlements Divorce Ordinance 1910 (SS Ord No 25 of 1910) s 14

Straits Settlements Divorce (Amendment No 2) Ordinance 1941 (SS Ord No 25 of 1941) s 6

Women's Charter (Cap 47,1970 Rev Ed) ss 91, 107 (1)

Women's Charter (Cap 353, 1985 Rev Ed) s 106

Women's Charter (Cap 353,2009 Rev Ed) ss 105, 106, 112 (1) , 113 (b) (consd) ; ss 2, 69, 112, 113

Women's Charter (Amendment) Act 1980 (Act 26 of 1980)

Women's Charter (Amendment) Act 1996 (Act 30 of 1996)

Divorce Act (Act 4 of 1869) (India) s 19

Law Reform (Marriage and Divorce) Act 1976 (Act 164) (M'sia) ss 76, 77

Marriage Act 1835 (c 54) (UK)

Matrimonial Causes Act, RSO 1970, c 265 (Can) s 1

Matrimonial Causes Act 1857 (c 85) (UK)

Matrimonial Causes Act 1907 (c 12) (UK) ss 1, 1 (1)

Matrimonial Causes Act 1937 (c 57) (UK) s 7

Matrimonial Causes Act 1973 (c 18) (UK) ss 23, 24

Matrimonial Proceedings and Property Ordinance (Cap 192) (HK) s 6

Nullity of Marriage Act 1971 (c 44) (UK)

Family Law—Void marriage—Division of matrimonial assets—Husband and wife married at time when wife's prior marriage was subsisting—Marriage void due to bigamy—Whether court had power to order division of matrimonial assets in void marriage—Section 112 (1) Women's Charter (Cap 353, 2009 Rev Ed)

Family Law—Void marriage—Maintenance—Husband and wife married at time when wife's prior marriage was subsisting—Marriage void due to bigamy—Whether court had power to order maintenance in void marriage—Section 113 (b) Women's Charter (Cap 353, 2009 Rev Ed)

Res Judicata—Issue estoppel—Husband and wife married at time when wife's prior marriage was subsisting—Marriage void due to bigamy—Parties initially terminated marriage through divorce—Later realised that marriage was void—Sought rescission of decree nisi—In rescission proceedings husband sought declaration that marriage void—District judge refused declaration—One reason for refusing declaration was nullity more appropriate avenue because of availability of ancillary relief—Decision appealed to High Court—High Court dismissed appeal—In nullity proceedings issue of whether wife entitled to ancillary relief was raised—Whether issues of whether wife was entitled to maintenance or division of matrimonial assets were res judicata as between the parties

The appellant (‘the Appellant’) married the respondent (‘the Respondent’) at a time when the Appellant's prior marriage was subsisting. This meant that the parties' marriage was void due to bigamy.

The parties had initially sought to terminate their marriage through a divorce and had obtained a decree nisi. The parties later found out that their marriage was void. The Respondent then filed an application seeking, inter alia, to set aside the decree nisi and to declare that his marriage to the Appellant was void (‘the Rescission Proceedings’). The Appellant also took out a nullity petition. The district judge hearing the Rescission Proceedings (‘the first District Judge’) rescinded the decree nisi but she refused to grant a declaration for various reasons. One of her reasons was that an application for nullity was a more appropriate avenue because of the availability of ancillary relief in those proceedings. The first District Judge's decision was appealed to a High Court judge who dismissed the appeal.

The Family Court later declared in the nullity petition that the parties' marriage was void. The court then directed that ancillary matters were to be decided in a further hearing. At that hearing, another district judge ruled that the court did not have the power to order the payment of maintenance or the division of matrimonial assets because the judgment for nullity had been granted on the ground that the marriage was void.

The Appellant appealed that decision to the High Court. The High Court judge dismissed the appeal.

Three issues arose in the appeal:

1. (a) Were the issues of whether the court had jurisdiction to order maintenance and division of matrimonial assets in a void marriage res judicata as between the parties because they were decided by the first District Judge?

2. (b) Do Singapore courts have jurisdiction under s 112 of the Women's Charter (Cap 353, 2009 Rev Ed) (‘the Act’) to order the division of matrimonial assets in a void marriage?

3. (c) Do Singapore courts have jurisdiction under s 113 of the Act to order maintenance in a void marriage?

Held, allowing the appeal:

(1) There was no res judicata in respect of the second and third issues. Although the parties to the Rescission Proceedings and the present proceedings (an appeal against a Judge's determination on ancillary matters) were identical and the decisions of the first District Judge (and the High Court judge on appeal) were made by courts of competent jurisdiction, the other requirements for issue estoppel (viz, the need for a final and conclusive judgment on the merits of the issue allegedly estopped and the need for the subject matter of the two actions to be identical) were not satisfied. This was because, in the Rescission Proceedings, the first District Judge was asked to rescind the decree nisi and declare that the Hong Kong Marriage was void. She gave three reasons why it was inappropriate to grant a declaration. In explaining just one of her reasons, she expressed a view on the availability of ancillary relief. In contrast, the present proceedings raised squarely for decision the issue of whether ancillary relief is available. For the same reasons, the first District Judge (and the High Court judge on appeal) did not conclusively decide on the issues raised in this appeal. The first District Judge was merely expressing a view on the issues in order to bolster her conclusions on the matter that was before her (which was different from the subject matter of this appeal): at [21], [24], [25] and [26].

(2) The phrase ‘nullity of marriage’ in ss 112 and 113 of the Act encompassed both void and voidable marriages for the following reasons:

1. (a) The Judge seemed to take the view that there ought to be read into the phrase ‘nullity of marriage’ a reference only to a voidable(as opposed to a void) marriage. This was inconsistent with the manner in which the phrase ‘nullity of marriage’ had been utilised by the Singapore Parliament in the Act itself. Indeed, this very phrase constituted the heading which helmed the preceding chapter of Pt X of the Act, which related to both void and voidable marriages. If Parliament had intended the phrase ‘nullity of marriage’ in ss 112 and 113 of the Act to refer to voidable marriages only, it would have stated so expressly: at [30].

2. (b) When the Bill in which the legislative precursors to ss 112 and 113 were first introduced (via the Women's Charter (Amendment) Act 1980 (Act 26 of 1980) (‘the 1980 Amendment Act’)) was first presented to Parliament, both clauses concerned did not contain the phrase ‘nullity of marriage’. The respective provisions were based, as the Comparative Table attached to the Bill (ie, the Women's Charter (Amendment) Bill (Bill No 23/79) (‘the 1980 Bill’)) clearly stated, on the corresponding provisions in the Malaysian Law Reform (Marriage and Divorce) Act 1976 (Act 164 of 1976) (Malaysia) (‘the Malaysian Act’). The relevant provisions in the Malaysian Act did not contain the phrase ‘nullity of marriage’. It was therefore clear that the Malaysian Parliament intended to exclude nullity of marriage (whether involving void or voidable marriages) from the purview of the relevant provisions of the Malaysian Act. This was also the original intention which was embodied within the 1980 Bill in the Singapore context. By subsequently inserting the phrase ‘nullity of marriage’ into the corresponding provisions in the Act, the Singapore Parliament had to have not only intended to reverse its previous decision to adopt the Malaysian position but had to have also intended to include nullity of marriage in all its forms(viz, as encompassing both void as well as voidable marriages): at [34].

3. (c) The proceedings before the Select Committee, which took place between the promulgation of the 1980 Bill and the ultimate enactment of the 1980 Amendment Act by the Singapore Parliament, lent further support to the construction adopted of the phrase ‘nullity of marriage’ in both ss 112 and 113 of the Act. The transcript of the proceedings demonstrated that the committee had inserted the phrase...