RECENT DEVELOPMENTS IN THE LAW OF MARRIAGE AND DIVORCE
| Date | 01 December 1993 |
| Author | LEONG WAI KUM |
| Published date | 01 December 1993 |
| Citation | (1993) 5 SAcLJ 290 |
This article discusses recent developments in the law of marriage and divorce in Singapore.1 The law is contained in the Women’s Charter2 which was last amended in 1980 vide Amendment Act 26/1980. Since 1990 there have been several significant decisions in this area.3
The Court of Appeal in Moh Ah Kiu v CPF Board4 has reaffirmed that there can be no valid polygamous Chinese customary marriage solemnized in 1975 between two Singapore domiciliaries one of whom was already party to an existing monogamous marriage. This is true even if this Chinese customary marriage took place in Penang which, at that time, did permit the solemnization of polygamous Chinese customary marriages.
Choe Inn Hock had properly married Lily Foong in Singapore under the Straits Settlements Christian Marriage Ordinance in 1960. This marriage was, thus, a valid monogamous union.5 They lived separately from 1970 but did not yet divorce at the time of his next marriage. In 1975 a Chinese customary marriage was celebrated between Choe and Moh Ah Kiu in Penang following which they returned to Singapore and cohabited until his death. Choe and Lily Foong were subsequently divorced in 1980. Choe and Moh did not take further steps to have their union legalised after his divorce from Lily Foong. The question of the validity of the Penang marriage came about when, after Choe’s death, the Central Provident Fund Board applied inter alia for a declaration as to the validity of this Chinese customary marriage while Moh applied for the CPF’s charge on Choe’s CPF savings to be withdrawn. The actions were heard together. The High Court decided inter alia that there was no valid marriage between Moh and the deceased. Moh appealed against this. The Court of Appeal dismissed the appeal holding that Choe and Moh were plainly not married.
There can be no doubt that this decision is correct. We need only review the argument attempted by counsel for Moh to appreciate its shortcoming. Justice L. P. Thean summarised the argument thus:6
Counsel … relied on the fact that Choe and Moh had cohabited as man and wife throughout the period from 1975 to 1987 and had thereby acquired the reputation of being husband and wife. In support, there were filed multiple affidavits by friends and relatives of Choe and Moh all deposing to the fact that Choe and Moh had lived together as husband and wife and had been known to be and accepted by them as husband and wife. Moh also affirmed an affidavit deposing to her long cohabitation with Choe as his wife and produced various documents to establish her repute as such. On the basis of the massive affidavit evidence, counsel … submitted that a presumption that Choe and Moh were married had arisen, that there was no evidence to the contrary and there was nothing to challenge such presumption. Relying on that presumption, he contended that Moh had proved the existence of a valid marriage with Choe on the material date and cited numerous English authorities in support.
The fallacy of this argument lies in its disregard of the principle that a valid marriage results only when it is properly formed by two persons with full capacity to marry each other. The requirements of solemnization of marriage and the requirements of capacity to marry are separate and both have to be fulfilled in order for a valid marriage to result. In trying to discover what the law is as to either of these we need, first, to look to the Women’s Charter as this is the marriage law for all non-Muslim Singapore domiciliaries and, then, where the Act is silent (for instance, as to the manner of solemnizing a Chinese customary marriage in Penang and the proof thereof) to other relevant law including the law of the place of formation of the alleged marriage.
Counsel’s argument amounts only to this. The alleged Chinese customary marriage was solemnized in Penang in 1975. Although the intended spouses were Singapore domiciliaries and bound by the Women’s Charter, the Act is silent on the formalities of such Penang marriage. It is fair to assume that the law of Penang in this regard in 1975 was similar to that in pre-1961 Singapore as both Singapore and Penang were part of the Straits Settlements. By such law a Chinese customary marriage could be proved to have been solemnized either by the performance of the proper rites of marriage,7 or by the presumption of the formation of marriage from evidence of long
cohabitation and the repute of marriage,8 or, even, by proof of their mutual intention to marry and the effecting of such intention.9 The evidence produced proved the solemnization of the marriage in Penang in 1975 by way of the Ngai Lau Shia“presumption of marriage”.
The problem is that this evidence in no way proves the capacity of the two persons to marry each other. Without proof of such capacity to marry, counsel’s argument is incomplete: there might have been a valid solemnization but this is only one half of the equation towards a valid marriage.
The capacity of the two Singapore domiciliaries to marry, in 1975, was dictated by the Women’s Charter sections 4(1) and 5(1) of which read:
Every person who … is lawfully married … shall be incapable, during the continuance of such marriage … of contracting a valid marriage … with any person other than such spouse ….
Every marriage contracted in contravention of the provisions of section 4 of this Act shall be void.
The effect of these is that, as long as the male party remained the spouse of his first wife, he lacked the capacity to marry the female party or anyone else. As Thean J. rightfully said:10
We find it unnecessary to consider the authorities and decide whether the presumption of marriage based on long cohabitation and repute applies in Singapore in the face of stringent and clear statutory authorities … : see ss 4(1), 5(1), 11, 21 and 23 of the Charter. It is sufficient to say that in this case, on the facts, we do not see how Moh can successfully maintain that on that presumption she has proved that a valid marriage subsisted between her and Choe on the material date. … we would be shutting our eyes to the reality of the situation … when plainly they were not legally married.
This decision has not added anything new to the law. It is, however, a strong reminder of the basic principle that the formation of marriage consists in the conjunction of proper solemnization and full capacity to marry each other on the part of the two parties.
The High Court in Lim Ying v Hiok Kian Ming Eric11 decided that a female transsexual who went through an operation to acquire more male physical features could not marry as a male.
The facts were unusual and, somewhat, unfortunate. Eric Hiok was born a girl. She was, however, a female transsexual i.e. a girl who felt, genuinely and with medical certification, that she was really a male trapped inside a female body.12 About three years before her marriage she underwent a sex-change operation to acquire male sex organs. The operation involved amputating her female sex organs and creating male ones in their place. Her female sex chromosomes, however, remain unchanged; there is no procedure available to alter chromosomes. To maintain the pastiche of maleness (physical and muscle structure, voice and amount of body hair etc) she would have to ingest male hormones all her life. After the operation, she had her name changed to Eric Hiok and this was recorded into her Identity Card together with a change in her notation of sex to “male”. Eric Hiok then proceeded to marry Lim Ying at the Registry of Marriages. Lim Ying claimed to have been unaware of Eric Hiok’s transsexualism and sex-change operation. The Registry marriage was uneventful as the fact of the sex-change was never made known since the Registry, at that time, only required parties to produce their I.C.s.
Four months after the Registry marriage, Lim Ying presented a petition seeking a decree of nullity. She claimed (1) the marriage was void ab initio as Eric Hiok remained a female and the marriage between two women was void under the Act; and/or (2) the marriage was voidable at her option as it was never consummated due to Eric Hiok’s incapacity. Eric Hiok did not defend the petition.
The High Court granted Lim Ying the decree of nullity she sought holding that the marriage was indeed void ab initio. Judicial Commissioner K.S. Rajah gave alternative reasons for his decision. (1) His Honour agreed that Eric Hiok remained a female despite the sex-change and the notation of “male” in his I.C. and that a marriage between two women was a breach of the requirements of the Act so as to make the marriage void. (2) His Honour also decided that, since Lim Ying did not know of Eric Hiok’s transsexualism and sex-change operation, the consent to the marriage she gave was not real consent and the marriage licence was made invalid for this reason. His Honour did not decide on the claim of non-consummation due to incapacity.
This decision has been analysed at some length in my earlier article13 and a note by my colleague Tan Cheng Han14 but, because of its importance, several points are worth noting here.
In holding that Eric Hiok was still a female and the marriage was void, several decisions novel to Singapore have been made, (i) That there is a requirement in the Act that the two parties to the marriage must be of different sexes. This is significant as there is no specific provision for this anywhere in the Act although many provisions can easily be said to have been written on this premise. (ii) That breach of this requirement makes the marriage void ab initio. This is significant because this requirement does not appear anywhere in the Act; in particular it is not included within section 99 which sets out the grounds on which a petition for nullity...
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