Adp v Adq

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

ADP

Plaintiff

and

ADQ

Defendant

[2012] SGCA 6

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

Tan Lee Meng J

Civil Appeal No 62 of 2011

Court of Appeal

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 The district judge hearing the Rescission Proceedings (‘the first District Judge’) rescinded the decree nisi but she refused to grant a declaration for various reasons.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 ‘nullity of marriage’ into the relevant clauses and had intended the phrase to allow the courts the discretion to order the division of matrimonial assets and maintenance in void marriages as well. During the third reading of the Bill, the amendments recommended by the Select Committee were accepted by Parliament without any debate. There was only an introductory speech. Although there is no express mention in that speech of the deliberations of the Select Committee concerning the introduction of the words ‘nullity of marriage’ in the relevant clauses, these deliberations were nevertheless valuable in furnishing the relevant background that confirmed the interpretation adopted with regard to the phrase ‘nullity of marriage’ in ss 112 and 113 of the Act. More importantly, it was both logical as well as reasonable to assume, in these circumstances, that the Singapore Parliament had to have accepted the changes proposed by the Select Committee: at [35], [44] and [45].

4. (d) Distinguishing between void and voidable marriages did havelegal significance, especially where third parties were concerned. In so far as voidmarriages were concerned, third parties who had a proper interest in the matter could rely on the fact that the marriage concerned was void in order to help make out their case against the other party or parties. Where, however, the marriage was only voidable, the right to raise the fact that the marriage concerned was voidable was personal to the parties only and could only be raised during the lifetime of the other spouse. However, the historical background to the law on nullity of marriages told us that, despite the difference in legal consequences between void and voidable marriages, there was in fact nothing in the origins of the concept of nullity of marriages that justified - in point of general principle and/or logic - the conclusion that, in construing s 112 of the Act, a division of matrimonial assets ought only to be effected in relation to voidable marriages, but not in relation to void marriages. The historical background to the law on nullity of marriages told us that the distinction between void and voidable marriages was historical and arose as a result of a tussle, so to speak, between the royal courts on the one hand and the ecclesiastical courts on the other: at [48] to [51] and [59].

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