LOCAL DEVELOPMENTS ON FOREIGN MARRIAGES AND DIVORCES:

• Citation: (1994) 6 SAcLJ 458
• Date: 01 December 1994
• Published date: 01 December 1994
• Author: DEBBIE ONG SIEW LING

Ho Ah Chye v Hsinchieh Hsu Irene 1;

Asha Maudgil v Suresh Kumar Gosain 2

1. INTRODUCTION

Local cases on the validity of foreign marriages and recognition of foreign divorces have been few and far between. Happily, there are now recent cases which deal with the following areas: 1) the registration of foreign marriages under the Women’s Charter and 2) the recognition of foreign divorces in Singapore.

2. REGISTRATION OF FOREIGN MARRIAGES

In the case of Ho Ah Chye v Hsinchieh Hsu Irene3 the petitioner, Ho, a Singapore citizen, married the respondent, Hsu, a Taiwanese national, in the Civil Marriage Registry of New Jersey, United States of America in September 1980. The couple then registered their marriage at the Singapore Registry of Marriages in October 1980. The marriage was registered under section 167 (presently section 182) of the Women’s Charter4. The parties obtained an American divorce in 1987. In 1992, the petitioner filed a petition for divorce in Singapore. The petitioner’s case was that since the marriage was registered under the Charter, the court had jurisdiction to grant a decree of divorce; the petitioner having satisfied the conditions set out in section 86(1)5 of the Charter. Rajah JC considered first the legal effect of the registration of the foreign marriage in Singapore. He accepted that the American marriage was duly registered under section 28 read with section 182 of the Charter. His honour held that “The parties to a marriage can apply for voluntary registration of their marriage. The registrar is given wide powers to register a marriage but s32 of the Charter makes it plain that the registrar and registration of the marriage are not the ultimate

judges as to the validity of the marriage.”6 In other words, the fact that the marriage was registered under the Charter does not necessarily mean that the court will always be able to grant a divorce. In order to grant a divorce decree, there must first be a valid and subsisting marriage which the court can dissolve. Where a marriage has been the subject of a foreign divorce, the court cannot grant any decree if it recognizes the foreign divorce which has already terminated the marriage.

A few comments may be made with respect to this issue. First, it is noted that the learned judge accepted that the marriage was properly registered under the provisions of section 28 read with section 167 (presently section 182) of the Charter.

Section 182 provides:

1. (1) Notwithstanding section 181 the parties to a marriage which has been solemnized under any law, religion, custom or usage may, if the marriage has not been registered, apply to the Registrar in the prescribed form for the registration of the marriage.

Section 28 provides:

1. (1) The parties to a marriage which is not solemnized by the Registrar shall —

   1. (a) appear before a deputy registrar within one month of the marriage;

   2. (b) produce to the deputy registrar such evidence of the marriage either oral or documentary as the Deputy Registrar may require;

   3. (c) furnish such particulars as may be required by the Deputy Registrar for the due registration of the marriage; and

   4. (d) apply in the prescribed form for the registration of the marriage to be effected.

Section 33 provides:

1. (1) Any person who, being required by section 28 to appear before a Deputy Registrar, omits to do so within the prescribed time shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 or to imprisonment for a term not exceeding one year or to both.

Section 33 reinforces the mandatory nature of registration required by section 28. Parties whose marriages are not soleminized by the Registrar must register their marriage in accordance with section 28, failure of which

results in a penalty. Section 28 cannot be read with section 182, which is concerned with the voluntary registration of marriages. If the two sections are read together, then the effect is that all marriages which are not solemnized by the Registrar, whether solemnized in Singapore or anywhere else in the world, must be registered under the Charter in accordance with section 28. The proper interpretation to be given to section 28 is that it requires all marriages solemnized in Singapore which are not solemnized by the Registrar to be registered under the Charter.

Secondly, by accepting that the Registrar has wide powers to register a marriage, even a foreign marriage contracted in America in 1980, Rajah JC has placed a wide interpretation on the scope of section 182. Associate Professor Leong Wai Kum discusses the ambiguities of section 182 in her book, Family Law In Singapore7. She observes that the marginal notes to section 182 and the opening words which make reference to section 181 could suggest that registration is restricted to marriages solemnized under any religion or custom prior to the commencement of the Charter in 1961. She submits that “the proper breadth of section 182 can be reached only by considering whether the marriage should attract the matrimonial jurisdiction of our High Court”8. Section 182 should therefore be read as limited to the voluntary registration of pre-1961 local marriages, both monogamous and polygamous, and post-1961 monogamous marriages, since it is unlikely that the Legislature intended to allow parties to polygamous marriages solemnized abroad after the commencement of the Charter to petition our High Court for any matrimonial relief.

An even narrower reading of the section was taken by the court in the case of Asha Maudgil v Suresh Kumar Gosain9. In this case, the plaintiff wife and defendant husband married in Secunderabad in India in April 1970. Their marriage was subsequently registered under section 182 of the Women’s Charter in June 1990. Judicial Commissioner TQ Lim held that the marriage was not registrable under section 182. He observed that the words “Notwithstanding section 181” in section 182 made it very clear that only marriages which under section 181 would be deemed to be registered may be registered under section 182, for “otherwise those words would be deprived of any meaning at all.”10 Since section 181 provided only for marriages solemnized prior to the commencement of the Women’s Charter on 15 September 1961 to be deemed registered under the Charter, the Secunderabad marriage could not be registered under the Act. His honour then noted that this issue of registration was irrelevant to the case at hand,

since he was satisfied that the Secunderabad marriage was valid even if not registered in Singapore11.

It follows from Lim JC’s interpretation of section 182 that no foreign marriage solemnized abroad after 15 September 1961 may be registered in Singapore. Lim JC has limited the scope of section 182 to the voluntary registration of pre-1961 marriages. This reading of the section is probably consistent with the Legislature’s intention to require or at least permit registration of pre-1961 local marriages. Such a reading of section 182 may not affect the position of parties to post-1961 foreign monogamous marriages who wish to petition our High Court for matrimonial relief under section 86 of the Charter because under section 86 of the Charter, the court also has jurisdiction over marriages “solemnized under a law which expressly or impliedly provides that the marriage shall be monogamous”12. However, it will affect parties to foreign monogamous marriages who wish to register their marriages for reasons other than that of attracting the matrimonial jurisdiction of the court. Parties may want the assurance that their foreign marriage is recorded and accepted as valid by the Singapore Registry of Marriages, and a Singapore certificate of marriage...