Case Note: CLARITY IN THE LAW OF VALID, VOID AND VOIDABLE NON-MUSLIM MARRIAGES
| Citation | (2009) 21 SAcLJ 575 |
| Date | 01 December 2009 |
| Published date | 01 December 2009 |
| Author | LEONG Wai Kum LLB (Hons) (University of Malaya), LLM (Harvard University); Professor, Faculty of Law, National University of Singapore. |
Tan Ah Thee (administrators of the estate of Tan Kiam Poh (alias Tan Gna Chua), deceased) v Lim Soo Foong [2009] SGHC 101
The High Court has decided that the provisions in the Women’s Charter regulating the solemnisation of marriages are clear as to whether the resulting marriage is completely valid, completely void or voidable and as to the actions the two parties and strangers are entitled to take in any event. The decision is noteworthy.
1 The area of family law that demands clarity more than other areas is regulation of the solemnisation of marriage. No one should be left in any doubt as to whether he or she has become validly married. Having complied with the critical statutory requirements of solemnisation, no stranger should be able successfully to allege that there remains a problem that taints the validity of the marriage. It is somewhat worrying that so many fundamental principles needed to be clarified by the High Court, on appeal, in this application by strangers to the marriage under the Women’s Charter1 for a declaration of its invalidity.
2 Tan Kiam Poh, deceased by the time of the application, married Mdm Koh with whom he had six children, which marriage was apparently loving until it was ended by Mdm Koh’s death in 1994. The plaintiffs are two of these children. It was during their mother’s wake
that it was revealed that the deceased had previously had an extramarital relationship with the defendant who gave birth to their son.
3 The defendant and son re-established their relationship with the deceased. They moved in to live with him. They systematically controlled him and his property and gradually shut the plaintiffs and siblings out.
4 The plaintiffs alleged that on 11 March 1996 the defendant, with the help of a lawyer, caused a marriage to be solemnised between herself and the deceased. He was then 81 years old, wheel-chair bound and suffering from Parkinson’s Disease. On or about 5 January 2000, the defendant’s son caused the deceased to execute a will which made provision for the defendant and himself to the total exclusion of the plaintiffs and siblings. The deceased died on 25 July 2000 at the age of 85.
5 The plaintiffs commenced proceedings for, inter alia, a declaration that the will executed around 5 January 2000 was invalid. The High Court made this declaration and ordered that the deceased’s estate should, instead, be distributed according to the provisions of the Intestate Succession Act,2 by s 7, r 2 of which the defendant (as the surviving widow) would succeed to one-half of the estate. The plaintiffs applied for and were granted Letters of Administration on 17 January 2008.
6 The present action was begun by the plaintiffs praying for the following reliefs:
(a) A declaration that there was no valid and subsisting marriage between the deceased and the defendant; and
(b) Further and/or in the alternative, a declaration that the marriage between the deceased and the defendant is null and void.
7 The plaintiff’s statement of claim alleged three bases for the declaration of invalidity of marriage: (a) the marriage was voidable under s 106(a) of the Women’s Charter as it was never consummated; (b) the marriage was void because it was procured by the actual or presumed undue influence of the defendant over the deceased and (c) the marriage ought to be found void for being a sham marriage against public policy as the defendant’s sole or predominant motive in registering the marriage was to revoke the deceased’s will.
8 The defendant applied to strike out the plaintiffs’ writ of summons and statement of claim on the basis that the statement of claim disclosed no reasonable cause of action.3
9 The assistant registrar heard both parties. She struck out the claim of the marriage being voidable for non-consummation as she was of the view that only the parties to the voidable marriage may seek to avoid it. She, however, refused to strike out the other two bases for the claim that the marriage was void. Both parties appealed. The plaintiffs appealed against the first part of the assistant registrar’s decision while the defendant sought to strike out the whole of the plaintiffs’ action.
10 Judith Prakash J, in the appeal to the High Court, dismissed the plaintiffs’ appeal and allowed the defendant’s. The result was that the plaintiffs’ statement of claim was struck out and their claim that their deceased father’s marriage with the defendant was null and void was dismissed with costs. None of the three bases they alleged constituted a reasonable basis for the marriage to be declared null and void. Their father did leave the defendant his widow and she would, under the law of intestate succession, succeed to half of his estate. Mdm Koh’s children thus won about half of their court adventures. They earlier succeeded in invalidating their father’s will that would have shut them out completely but they did not now succeed in invalidating his marriage. That meant their father left a lawful surviving widow, who would take half his estate, and a surviving legitimated son,4 who (by s 7, r 3 of the Intestate Succession Act) would share the other half of the estate with them as the deceased’s lawful children by his deceased first lawful wife.
11 This note discusses Judith Prakash J’s decisions on the law of solemnisation of marriage. There are few decisions on this vital area within the family law in Singapore so the learned judge’s is worthy of note. Indeed, the learned judge clarified several fundamental principles.
12 Judith Prakash J began her judgment with a broad pronouncement that has been repeated as the theme of her decisions, thus:5
In my judgment, the Charter provides a complete code on the law applicable to marriages in Singapore apart only from Muslim marriages which have their own separate regime. Accordingly, the status of any non-Muslim marriage that has been celebrated in Singapore has to be judged solely in accordance with the provisions of the Charter and there is no room for the court to apply any other standard. This is clear from the history of matrimonial legislation in Singapore and from the way in which the Charter itself has developed. In this connection, the preamble to the Charter is relevant. It declares that the purposes of this legislation are, among other things, ‘to provide for monogamous marriages and for the solemnization and registration of such marriages’ and ‘to amend and consolidate the law relating to divorce’. Thus, the intention was to cover every aspect of a monogamous marriage solemnized in Singapore.
13 It is submitted that, not only is the learned judge correct in her pronouncement for reasons discussed below, it rightly puts into question a previous decision of the High Court in 1992 which suggested that there was also a personal Hindu marriage law in Singapore.
14 Judith Prakash J made reference to the process of enactment and the declaration of purpose within the long title to the Women’s Charter to support her view that it is a code of marriage law for all non-Muslim Singaporeans. The author has traced the development of family law in Singapore from the creation of our legal system by the celebrated Second Charter of Justice 1826 to the 1959 review of the unsatisfactory state of having separate marriage laws for each ethnic and religious sector of the population that led to the Legislative Assembly enacting the Women’s Charter.6 She has described the historical process as “to abolish the marriage laws existing then and substitute them with the unitary monogamous marriage law [that] was, essentially, taken from the Civil Marriage Ordinance”.7 In elaboration she observed:8
The Women’s Charter now regulates all non-Muslim persons in Singapore in the formation of marriage and the relationship between spouses. It also regulates all persons, non-Muslim and Muslim alike, in the relationship between parents and children and the economic
relationship of members in a subsisting marriage. The Women’s Charter is supplemented by other statutes that regulate aspects of parent-child relationship. In regulating all aspects of marriage and family life of non-Muslim persons and some aspects of family life of Muslim persons in Singapore, the Women’s Charter is the primary family statute in Singapore.
15 Apart from the long title that Judith Prakash J cited, one may also take note of s 3 that expressly proclaims the reach of the Women’s Charter over all persons in Singapore except for selected provisions within it that do not apply to persons who are Muslim or who have married under Muslim law thus:
(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 [on solemnization of marriage] and Part X [on termination of marriage and ancillary applications] and sections 181 [deemed registration of marriage] and 182 [voluntary registration of marriage] shall not apply to any person who is married under, or to any marriage solemnized or registered under, the provisions of the Muslim law or of any written law in Singapore or Malaysia providing for the registration of Muslim marriages.
16 Of the import of these provisions, the author has observed:9
The non-Muslim family law [centred in the Women’s Charter] is generally applicable to all persons in Singapore. Only those who are entitled to the privilege of being regulated by Muslim law are, in those areas where there is differentiated Muslim law, exempted from regulation by the non-Muslim law.
17 There are at least two implications of the Women’s Charter...
To continue reading
Request your trial