PRE-MARITAL AGREEMENTS AND WILFUL REFUSAL TO CONSUMMATE

• Citation: (1992) 4 SAcLJ 162
• Date: 01 December 1992
• Published date: 01 December 1992

Ng Bee Hoon v. Tan Heok Boon 1

In recent years, the High Court in Singapore has seen an increasing number of petitions for nullity of marriage based on non-consummation. Non-consummation owing to incapacity and wilful refusal are both grounds on which a marriage is voidable in Singapore.2 There have been cases in Singapore3 and elsewhere4 establishing that the failure on the part of the respondent to bring about a condition precedent to consummation that had been agreed to before marriage, amounts to wilful refusal to consummate. The recent judgment of Mr Justice Coomaraswamy in Ng Bee Hoon v. Tan Heok Boon, however, now casts doubt on the validity of such a principle in Singapore.

In Ng Bee Hoon v. Tan Heok Boon, the wife brought a petition for nullity against her husband on the ground that the marriage had not been consummated owing to his wilful refusal. In her petition she stated that it was agreed between both of them that the marriage at the Singapore Marriage Registry would be followed by another ceremony of marriage to be conducted according to Chinese customary rites. It was understood between the parties that there would not be either cohabitation or consummation of the marriage pending the Chinese ceremony. Despite the wife’s requests to the respondent husband to go through the Chinese customary ceremony he refused to do so and it was contended that the refusal evinced an intention not to consummate the marriage thus satisfying the requirements of section 100(b) of the Women’s Charter.

His Honour adopted a two-pronged approach in rejecting the argument. First, he held that an agreement by spouses before marriage that the marriage should take effect in some limited way5 is contrary to public policy and therefore void. Accordingly, no effect could be given to such an agreement even if it is true that there is a custom among the Chinese that

they are fully and properly married only after the customary ceremony.6 In his Honour’s view:

“if a man and a woman … exchange consents to marry with due formality before a person lawfully authorised to solemnise a marriage under the Women’s Charter, 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 … Marriage status is of very great consequence and the enforcement of the marriage laws is a matter of great public concern. It is intolerable for the law on marriage to be played with by people who thought fit to go to the Registry and subsequently, after some change of mind, to affirm that it was not a marriage in the full sense because they did not so regard it.”

While the proposition enunciated by the learned judge is clearly correct as a matter of law, it is respectfully submitted that his Honour erred in the manner in which he applied the principle to the case at hand. It is true that generally speaking, private arrangements between spouses to limit their personal relationships are against public policy and his Honour quite correctly refers to the English authorities on this point.7Ng Bee Hoon v. Tan Heok Boon is now authority that such a proposition is equally true in Singapore as well and this is an important contribution to the understanding of Family Law in Singapore. Two observations on the proposition, however, must be made. First, there is authority that not all pre-marital agreements to abstain from sexual intercourse during marriage are against public policy. Where the parties are relatively young, such an agreement would clearly be void as against public policy.8 Thus in Brodie v. Brodie9 the existence of such an agreement was no defence to a petition for restitution of conjugal rights. Similarly, such an agreement should generally afford no defence to a petition for nullity on the ground that the respondent spouse has wilfully refused to consummate the marriage. Where the parties are elderly, however, and agree to marry for companionship without any thought of sexual relations, which was the case in Morgan v. Morgan (otherwise Ransom),10 such an agreement is not against public policy and may operate as a bar to preclude the petitioning spouse

from obtaining a decree of nullity on the ground of non-consummation.11 Even in the case of a relatively young couple, such an agreement is also capable of operating as a bar against the granting of a decree of nullity as was the case in Scott v. Scott (otherwise Fone).12

The second and more important observation in the context of this casenote is that the proposition was not directly relevant to the resolution of the case and accordingly provided no authority for the view that a pre-marital agreement to postpone consummation until the fulfilment of a condition is against public policy. This is because his Honour failed to draw a distinction between an agreement that the marriage should only take effect in a limited way and an agreement that the marriage should take effect fully upon the fulfilment of a condition precedent. All the cases cited by Coomaraswamy J. for the proposition that it is contrary to public policy for the parties to enter into a pre-marital agreement to live separate and apart after marriage, were cases dealing with the former situation and not the latter. In Brodie v. Brodie13 the agreement provided that it should be lawful for the respondent at all times to live separate and apart from the petitioner as if he were unmarried. In Morgan v. Morgan14 the parties married for companionship only and the petitioner husband knew that the wife did not want sexual relations during marriage. Similarly in Vervaeke v. Smith15 the petitioner entered into the marriage with the main purpose of obtaining British nationality and a British passport so that she could carry on her trade of a prostitute without fear of deportation. She parted immediately with her husband after the ceremony and later claimed that the marriage was a nullity because the parties did not intend the full consequences of married life. It was held that the marriage was perfectly valid under English law.

The fact situation before Coomaraswamy J. was a different one. There was no agreement between the parties that they would not live together as man and wife, nor was it established that they entered into the marriage with the sole or dominant purpose of obtaining a HDB flat, or to aid in the acquisition of Singapore permanent resident status or citizenship. The only agreement was that cohabitation and consummation would be postponed until the happening of a condition precedent, the condition in the present case being the celebration of the Chinese customary rites. After the fulfilment of the condition precedent, the parties would then live fully as

husband and wife. That such an agreement is not necessarily against public policy is clear from a number of cases from various jurisdictions.16 The leading case is Jodla v. Jodla (otherwise Czarnotnska)17 where the parties were married at an English register office. As the parties were Roman Catholics, it was understood that consummation of the marriage would only follow upon the church ceremony. The marriage was never consummated. The wife had, on various occasions, requested the husband to do something about the church service, but these requests were refused without just cause on his part. Hewson J. considered that such requests included an implied request for intercourse and since they were refused without just cause, the husband had wilfully refused to consummate the marriage. In addition, the judge held that by his refusal, he made it impossible for his wife to live with him as a married couple. Thus even if the husband had requested intercourse, the wife would have had just cause to refuse.18

It is quite clear, therefore, that agreements to postpone consummation and cohabitation are not necessarily against public policy. The important question is whether all such agreements should be given effect to or whether there should there be certain qualifications. It is submitted that on this crucial question rests the correctness of Coomaraswamy J.’s judgment in Ng Bee Hoon v. Tan Heok Boon. His Honour distinguished cases such as Jodla v. Jodla on the following basis:19

“Having examined the authorities, I have come to certain conclusions. In each Jodla, Kaur v. Singh and in the later case of A v. J… 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...