Arpinya Rongchotiawattana v Wee Oh Keng

• Jurisdiction: Singapore
• Judge: Lim Teong Qwee JC
• Judgment Date: 29 October 1997
• Neutral Citation: [1997] SGHC 275
• Docket Number: Suit No 297 of 1993
• Date: 29 October 1997
• Published date: 19 September 2003
• Year: 1997
• Plaintiff Counsel: Thio Ying Ying and Willy Tay (Kelvin Chia Partnership)
• Citation: [1997] SGHC 275
• Defendant Counsel: Tan Kok Quan SC and Raymond Wong (Lee & Lee)
• Court: High Court (Singapore)
• Subject Matter: Proof of common intention to form permanent union,Choice of law,Conflict of laws,Revocation,Validity of marriage,Whether subsequent marriage in Malaysia in 1979 valid,1955 marriage in Thailand invalid under law of antenuptial domicile -Whether subsequent marriage in 1956 in Singapore valid,Customary marriage,Validity of form of marriage -Place of celebration,Requirements for validity,Whether parties had capacity under law of antenuptial domicile,Succession and Wills,Whether will revoked by subsequent marriage of testator,Whether marriage valid as to form,Secondary wife,Whether unregistered customary marriage valid under Thai law,Conflict of Laws,Form of marriage,Capacity governed by law of domicile,Domicile,Failure to register marriage as required under Thai law,Capacity to marry,Whether party concerned had capacity to marry under law of domicile,Family Law,Domiciliary law of testator after celebration of marriage applicable,Marriage,Whether presumption of compliance with form required,Formation of union

Judgment:

LIM TEONG QWEE JC

In 1965 Ang Toon Chew (testator) made a will by which he appointed the defendant the sole executrix and gave `all [his] property moveable and immoveable and of any nature or kind whatsoever and wheresoever situate which [he] may be possessed of or entitled to at [his] death` to her absolutely. He died on 15 July 1991 and probate of the will was granted to the defendant by this court.

2.The defendant and the testator were married in 1937 in China in accordance with Chinese custom. It is not disputed that this was a valid marriage and I shall refer to it as the `1937 marriage`. In 1956 they were married again to each other this time in Singapore. This marriage was solemnized under the Civil Marriage Ordinance (Cap 38, 1955 Ed) (Civil Marriage Ordinance) then in force and the marriage was duly registered. Although the validity of this marriage is disputed I shall for convenience refer to it as the `1956 marriage`. The testator had six children from the 1937 marriage. The defendant has for some years resided in Singapore and she is a Singapore citizen.

3.In 1955 the testator went through a form of marriage in Bangkok, Thailand with a Thai lady called Boonsri. Although the validity of this marriage is disputed I shall again for convenience refer to it as the `1955 marriage`. The testator had three children from the 1955 marriage. Boonsri has remained in Bangkok since the event. The testator lived with her in Bangkok for a period of time and visited Singapore and Malaysia from time to time. He had business interests in Thailand, Singapore and Malaysia.

4.In 1979 the testator went through yet another form of marriage. This time it was with the plaintiff in Penang, Malaysia. There is before me a document in Chinese (which I shall refer to as the `1979 marriage certificate`) certifying that a marriage between the testator and the plaintiff was solemnized at the Thai Embassy at Penang. There is another document in Thai and English issued by a registrar at the Royal Thai Consulate-General at Penang certifying that the testator and the plaintiff had registered their marriage in accordance with the provisions of s 1449 of the Civil and Commercial Code (of Thailand). Again for convenience I shall refer to this marriage as the `1979 marriage` although its validity is in dispute. There are no children from the 1979 marriage. The plaintiff lived in Malaysia for a few years but as a visitor to the country and there are before me documents signed by the testator in relation to his appeal to the authorities to allow her to live in Malaysia.

5.It was agreed between the parties that the testator was domiciled in Malaysia before the 1955 marriage (to Boonsri) and remained so domiciled until his death in 1991. He was a citizen of Malaysia having acquired citizenship in the country of his adoption in 1960.

6.In this action the plaintiff claims revocation of the grant of probate and other reliefs on the ground that the will made in 1965 had been revoked by the 1979 marriage of the testator to the plaintiff. I dismissed the claim.

7. Plaintiff`s case

The plaintiff`s case is that she is one of the lawful widows of the testator. She concedes that the defendant is also another of the lawful widows but only by virtue of the 1937 marriage and not the 1956 marriage. The 1937 marriage was a potentially polygamous marriage. The 1955 marriage to Boonsri was also a potentially polygamous marriage and was a valid marriage. The 1956 marriage to the defendant under the Civil Marriage Ordinance was accordingly invalid. The 1979 marriage to the plaintiff was a valid marriage and the 1965 will was thereby revoked. I should add that the case as pleaded is that the 1979 marriage was celebrated in Penang, Malaysia and not at the Thai Embassy as stated in the 1979 marriage certificate.

8. Defendant`s case

The defendant`s case is that the 1979 marriage in Malaysia was not a valid marriage. The 1955 marriage was invalid and if it was invalid then the 1956 marriage was a valid monogamous marriage. If the 1955 marriage was valid then the 1956 marriage would be invalid but the 1955 marriage in Thailand was also a monogamous marriage. Whether the 1955 marriage was valid or not the testator lacked capacity to marry when he purported to effect the 1979 marriage and such marriage was invalid. The 1965 will was accordingly not revoked by any subsequent marriage.

9. 1955 marriage

The parties proceeded on the assumption that the formal validity of the marriage in Thailand is governed by the law of Thailand as to form. Dicey & Morris, The Conflict of Laws (12th Ed) at p 639 puts it this way:

A marriage is formally valid when (and only when) any one of the following conditions as to the form of celebration is complied with (that is to say):

(1) if the marriage is celebrated in accordance with a form required or ( semble ) recognised as sufficient by the law of the country where the marriage was celebrated;

Four other conditions are given but I think the first condition represents the position in Singapore and I would respectfully adopt it. If a marriage is celebrated in accordance with a form required by the law of the country where the marriage is celebrated or a form recognised as sufficient by that law then the marriage is valid as to form.

10.Pramote Ekvanichchai said in his affidavit that he was employed by the testator in one of his companies in Thailand for about 24 years from 1953. He had known Boonsri even before then. He said that the testator and Boonsri were married in about 1955. He said a Chinese customary marriage was performed. There was a wedding dinner and a large number of guests were present. Photographs were taken and in copies of some of those photographs produced in court the testator and Boonsri wore clothes usually associated with a wedding. They lived together for a time in Thailand and had three children. Pramote Ekvanichchai lived with them for about eight months. He accompanied the testator at business and social functions and Boonsri was present at public functions in Thailand. He said that the testator held Boonsri out as his wife to his business associates and his employees. He was not cross-examined on his evidence.

11.Boonsri had a Chinese name and entries in a house registration document produced in court stated that both her parents were Chinese. No evidence was adduced as to the customs of Chinese in Thailand and I assume that they are not different from the customs of Chinese in Singapore in regard to the form of marriage that will be sufficient to bestow upon Boonsri the status of a secondary wife. It is only necessary to prove a common intention to form a permanent union as husband and secondary wife and the formation of the union by the man taking the woman as his secondary wife and the woman taking the man as her husband. See Re Lee Gee Chong Deceased; Tay Geok Yap & Ors v Tan Lian Cheow [1965] 1 MLJ 102 . On the evidence before me I find that both conditions were satisfied but that is not to say that the 1955 marriage was for that reason formally valid.

12.Dr Pairojana Kampusiri an assistant professor and head of the civil law department at the faculty of law of Thammasat University in Thailand said in his affidavit that on the assumption that the 1955 marriage was registered the marriage would be valid. He produced selected sections of the Civil & Commercial Code of 1935, 1976 and 1990. Section 1449 of the 1935 Code provides (in the English translation): `Marriage under this Code shall be valid upon registration being made.` He also referred to a paper entitled Family Law of Thailand published in The Legal System of Thailand by The 7th Lawasia Conference 1981 in which Wimolsiri Jamnarnwej an assistant professor at the faculty of law of Chulalongkorn University in Thailand said that registration of marriage was required to validate a marriage. She referred to s 1457 of the 1976 Code but the 1935 Code would have been in force at the time of celebration of the 1955 marriage. Under cross-examination Dr Pairojana Kampusiri said:

Q: After 1934. CCC enacted. All...