Hou Wa Yi v Yap Kiat Cheong (Yap Chai Ling and another, interveners)

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 27 March 2012
• Neutral Citation: [2012] SGHC 66
• Court: High Court (Singapore)
• Hearing Date: 12 March 2012
• Docket Number: Divorce No 2201 of 2005 (RAS No 182 of 2011)
• Plaintiff Counsel: Koh Tien Hua (Harry Elias Partnership LLP)
• Defendant Counsel: Dorothy Chai Li Li (Tan Leroy & Chandra)
• Subject Matter: Family Law,Divorce,Decree absolute and decree nisi,Death of party to marriage after decree nisi and before decree absolute,Whether court has power to make decree nisi absolute after death of party to the marriage,Section 7 Women's Charter (Cap 353, 1997 Rev Ed)
• Published date: 02 April 2012

Choo Han Teck J:

This is an appeal by the executors of Yap Kiat Cheong (“Yap”). The executors are also Yap’s niece and nephew. Yap married Hou Wa Yi (“Hou”), a Chinese national, on 30 September 1992. Hou filed for divorce and was granted a decree nisi on 26 September 2006. The ancillary matters were concluded on 5 November 2009 and Hou being dissatisfied appealed against the District Court’s ancillary matters orders. Yap died on 8 February 2011. The appeal was adjourned part-heard by Justice Philip Pillai on 22 March 2011.

Probate was granted on 29 March 2011. The appellants were appointed as executors under a will made by Yap on 26 January 2002. They applied to intervene and sought an order to make the decree nisi absolute. The district judge dismissed the application on the ground that s 7 of the Women’s Charter (Cap 353, 1997 Rev Ed) (“the Women’s Charter”) specifically provides — 7. Every marriage solemnized in Singapore after 15 September 1961, other than a marriage which is void under the provisions of this Act, shall continue until dissolved — (a) by the death of one of the parties; (b) by order of a court of competent jurisdiction; or (c) by a declaration made by a court of competent jurisdiction that the marriage is null and void. Yap’s death thus dissolved the marriage and the court no longer had the jurisdiction or power to make the decree nisi absolute. This appeal thus raises this sole issue: does the court have the power to make absolute a decree nisi after the death of one of the parties to the divorce proceedings?

There is no reported case in Singapore on this point but the issue was raised in the English case of Stanhope v Stanhope (1886) 11 PD 103 (“Stanhope”). In that case, the husband died after the decree nisi was granted and before it was made absolute. The husband’s executor subsequently applied for the decree nisi to be made absolute. The Court of Appeal held that the executor could not revive the suit for the purpose of applying to make the decree nisi absolute. Bowen LJ held at 108:

A man can no more be divorced after his death than he can after his death be married or sentenced to death. Marriage is a union of husband and wife for their joint lives unless it be dissolved sooner, and the Court cannot dissolve a union which has already been determined.

Stanhope was applied by the English Court of Appeal in In re Seaford, Decd [1968] 1 P 53 (“Seaford”) and the Malaysian court in Suci...