Ng Bee Hoon v Tan Heok Boon

• Jurisdiction: Singapore
• Judge: Punch Coomaraswamy J
• Judgment Date: 27 February 1992
• Neutral Citation: [1992] SGHC 41
• Docket Number: Divorce No 2614 of 1991
• Date: 27 February 1992
• Year: 1992
• Published date: 19 September 2003
• Plaintiff Counsel: Cheong Chuh Feng (Low Yeap & Co)
• Citation: [1992] SGHC 41
• Defendant Counsel: Respondent not represented nor present
• Court: High Court (Singapore)
• Subject Matter: Family Law,Respondent's refusal to go through with ceremony,Marriage,Wilful refusal to consummate marriage,ss 22, 23(1), 45(1), 85 & 100(b) Women's Charter (Cap 353),Whether agreement that parties not to regard themselves as properly and fully married until after Chinese customary ceremony void as against public policy and Women's Charter,Whether constitutes wilful refusal to consummate marriage,Nullity,Pre-nuptial agreement,Marriage to be consummated only after Chinese customary ceremony

Cur Adv Vult

This is a petition for nullity brought by the petitioner/wife against the respondent/husband based on s 100(b) of the Women`s Charter (Cap 353) (`the Charter`). This section provides that `a marriage shall be voidable on the ... [ground] ... that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it`.

The parties were married and their marriage solemnized and registered under the provisions of the Charter at the Singapore Registry of Marriages (`the Registry`) on 12 July 1990. The petitioner claims they did not cohabit at all and on 27 September 1991 she presented this petition which was served on the husband. On 7 November 1991 he filed his acknowledgement of service. No memorandum of appearance was filed and he did not appear at any hearing.

When the wife gave evidence, she verified the facts in her amended petition, para 10 of which pleaded:

The said marriage has not been consummated owing to the wilful refusal of the respondent to consummate it.

Particulars

It was agreed between the petitioner and the respondent that the said marriage at the Singapore Marriage Registry was to be followed by another ceremony of marriage to be conducted according to the Chinese customary rites (hereinafter referred to as `the Chinese ceremony`). It was understood between the parties that there could not be either cohabitation or consummation of the marriage pending the Chinese ceremony.

The petitioner has on a number of occasions requested the respondent to go through the Chinese ceremony but to date he has refused to do so.

By the respondent`s conduct as aforesaid he has evinced an intention not to consummate the said marriage.

The wife`s case therefore was that by pre-nuptial agreement between the parties, the Registry marriage:

(a) was to be followed by another marriage ceremony under Chinese customary rites; and

(b) there was to be no cohabitation or consummation until after the customary marriage ceremony.

Further, by refusing to undergo a Chinese ceremony the husband had thereby evinced an intention not to consummate the marriage. This was contended to be enough to satisfy the requirements of s 100(b) of the Charter.

When the matter first came before me, on what appeared in the petition, I drew counsel`s attention to certain matters. They were:

(a) the Registry ceremony-cum-solemnization-cum-registration was, by specific agreement of the parties, not a true or full marriage or union bringing to them all the incidents of the union;

(b) whether such an agreement was contrary to public policy and therefore void; and

(c) whether such an agreement was contrary to or made void by the express provisions of the Charter, in particular, s 45(1).

I had, at first hearing, told the petitioner`s counsel that I would hear full oral submissions and she could, if she wanted to, send in a written submission. I had her written submission and it was supplemented by oral argument.

Miss Cheong submitted that the agreement of the parties that neither cohabitation nor consummation was to take place till after a Chinese customary rites ceremony was a valid and enforceable agreement, not being one contrary to public policy. Such an agreement merely postponed the occurrence of sexual intercourse between the parties. Such an agreement was recognized and given effect in the local case of Tan Siew Choon v Tan Kai Ho [1973] 2 MLJ 9

In the English cases of Jodla v Jodla [1960] 1 All ER 625[1960] 1 WLR 236 and Kaur v Singh [1972] 1 All ER 292[1972] 1 WLR 105 the non-occurrence of a subsequent religious ceremony was the reason one party did not consummate the marriage and the court granted in each case a decree for nullity. The learned judge in Tan Siew Choon `s case1 followed Jodla [1960] 1 All ER 625[1960] 1 WLR 236

It was further argued that I should take judicial notice of and give effect to custom.

Having examined the authorities, I have come to certain conclusions. In Jodla [1960] 1 All ER 625[1960] 1 WLR 236 Kaur v Singh [1972] 1 All ER 292[1972] 1 WLR 105 and in the later case of A v J [1989] 1 FLR 110[1989] Fam Law 63 the post-registry marriage non-cohabitation or non-consummation was not consequent upon a bilateral pre-nuptial agreement between the couple married at a registry in England, but laid down by the church, religious faith or temple to which the parties belonged. Hewson J in Jodla [1960] 1 All ER 625[1960] 1 WLR 236 said at p 626C that he was satisfied that `each of them being a professed Roman Catholic well knew that consummation could only follow after a church ceremony`. In Kaur v Singh [1972] 1 All ER 292[1972] 1 WLR 105 Davies LJ, in a judgment in which the other two appeal judges agreed, said (at p 293G): `It is beyond question that in order fully to marry according to Sikh religion and practice it is necessary to have not only a civil ceremony in a register office but also a Sikh religious ceremony in a Sikh temple.` In A v J [1989] 1 FLR 110[1989] Fam Law 63 Anthony Lincoln J, following Kaur v Singh [1972] 1 All ER 292[1972] 1 WLR 105 found that a religious ceremony was an essential condition of cohabitation. He appears to have assumed that the requirements for Hindus were identical to those of Sikhs, as on this point he specifically referred to Kaur v Singh [1972] 1 All ER 292[1972] 1 WLR 105

I now turn to the only reported Singapore case of Tan Siew Choon [1973] 2 MLJ 9 The learned judge made a finding that the parties had agreed before the Registry solemnization that this solemnization was to be followed by another ceremony conducted according to Chinese customary rites and that there was to be no cohabitation or consummation till after this Chinese ceremony. He described this ceremony as a `pre-condition` to marital cohabitation. It is clear that if there was no consummation, it was the result of a pre-nuptial agreement.

The learned judge went on to state that the Roman Catholic faith of the two Jodlas did not countenance matrimonial relations till after a religious ceremony. No finding, however, was made that any establishment or group or faith to which the parties in Tan Siew Choon v Tan Kai Ho [1973] 2 MLJ 9 belonged did not countenance full matrimonial relations before a Chinese customary rites ceremony.

A key element which provided the entire foundation for the decision in Jodla [1960] 1 All ER 625[1960] 1 WLR 236 and the other two later English cases was absent in Tan Siew Choon v Tan Kai Ho [1973] 2 MLJ 9 I therefore do not regard Tan Siew Choon v Tan Kai Ho [1973] 2 MLJ 9 as persuasive authority.

Further, and more importantly, s 45 and other provisions of the Charter which, in my view, have a vital bearing on the issues were not cited to the learned judge.

Divorce, nullity and matrimonial causes are dealt with in ss 84 to 139 forming Part IX of the Charter. Section 85 provides:

Subject to the provisions of this Part, the court shall in all suits and proceedings hereunder act and give relief on principles which in the opinion of the court are, as nearly as possible, conformable to the principles on which the High Court of Justice in England acts and gives reliefs in matrimonial proceedings.

There is no question of the application of the expressio unius rule to make a judge ignore other parts of the Charter. The opening words, `Subject to the provisions of this Part` clearly mean `Subject to there being no contrary or conflicting provisions in this Part`.

In English law, an agreement by the parties before marriage to separate and live apart after marriage is contrary to public policy and void. This is stated by Horridge J in Brodie v Brodie

5 and he cites a string of authorities for saying so. This statement of the law was followed by Mr Commissioner Latey in Morgan v Morgan [1959] P 92[1959] 1 All ER 539[1959] 2 WLR 487 at p 101.

The views expressed by Mr Horridge J and Mr Commissioner Latey were approved in the House of Lords case of Vervaeke v Smith & Ors [1983] AC 145[1982] 2 All ER 144[1982] 2 WLR 855 In this case, Lord Hailsham also approved the judgment of Ormrod J8 (as he then was) in earlier litigation concerning the same marriage. I quote Lord Hailsham (at pp 151H-152B-E):

According to Ormrod J, `... if the parties exchange consents to marry with due formality, intending to acquire the status of married persons, it is immaterial that they intend the marriage to take effect in some limited way or that one or both of them may have been mistaken about or unaware of some of the incidents of the status which they have created. To hold otherwise would impair the effect of the whole system of law regulating marriages in this country, and gravely diminish the value of the system of registration of marriages upon which so much depends in a modern community. Lord Merrivale in Kelly v Kelly (1932) 49 TLR 99 at p 101 said: `In a country like ours, where the marriage status is of very great consequence and where the enforcement of the marriage laws is a matter of great public concern, it would be intolerable if the marriage of law could be played with by people who thought fit to go to a register office and subsequently, after some change of mind, to affirm that it was not a marriage because they did not so regard it.`

Lord Hailsham followed this quotation with: `There has been no serious dispute before your Lordships that the above statement is a correct statement of English law.` He then approved the...