Tan Lan Eng v Lim Swee Eng

JudgeK S Rajah JC
Judgment Date29 October 1993
Neutral Citation[1993] SGHC 258
Citation[1993] SGHC 258
Defendant CounselRespondent in person
Published date19 September 2003
Plaintiff CounselWilliam Poh (KK Yap & Pnrs)
Date29 October 1993
Docket NumberDivorce Petition No 844 of 1993
CourtHigh Court (Singapore)
Subject MatterWhether there was collusion,Wilful refusal to consummate marriage,Non-consummation,Family Law,Grounds of voidable marriage,ss 101(1)(a), (1)(b) & 185(2) Women's Charter (Cap 353),Post-nuptial agreement to consummate marriage only after buying HDB flat,Effect of collusion on petition
Mallal`s Digest This is a petition for divorce based on the ground that the marriage is voidable because the respondent has refused to consummate the marriage. The petitioner prayed for the marriage to be declared null and void. There is also a prayer for the flat purchased to be sold in the open market and for the distribution of its proceeds. At the end of the hearing, I ordered a decree of nullity to be made absolute in one month and delivered a short oral judgment. Fuller reasons are given for that decision.

On 1 August 1991, the petitioner married the respondent at the Registry of Marriages. After the solemnization of the marriage, the petitioner lived with her parents at Blk 105 Towner Road #07-398 Singapore 1232 and the respondent lived with his parents at Blk 727 Yishun St 71 #05-99 Singapore 2776. The petitioner is an insurance agent and the respondent a technician.

A divorce petition was filed on 14 July 1992 by the petitioner but the petition was withdrawn on 4 November 1992 when it came up for hearing. The first petition was filed after the petitioner, in the hope that the marriage would be consummated, went on a holiday to Kuantan with the respondent and stayed at Coral Beach Hotel. The respondent gave various excuses.

The petitioner had, on various occasions, orally requested and placed herself in a position where the respondent should have consummated the marriage. She made no less than six attempts to consummate the marriage but the respondent refused to do so without assigning any good reasons.

The respondent refuses and persists in his refusal to consummate the marriage or cohabit with the petitioner. The petitioner`s evidence is that the previous divorce petition was withdrawn on the objection of her parents and to appease her parents after the respondent had agreed to consummate the marriage. The respondent was also under pressure from his parents. The respondent finally agreed to consummate the marriage provided a HDB flat was first purchased. It was a condition for consummation imposed on the petitioner by the respondent, after the marriage and after attempts to consummate the marriage had failed.

The petitioner and the respondent entered into an agreement to purchase a resale flat at Blk 166 Yishun Ring Road #04-743 Singapore 2776 on 13 December 1993, more than a year after the marriage but soon after the divorce petition was withdrawn in November. The HDB gave approval for the purchase of the flat in February 1993 and possession of the flat was given to the petitioner and the respondent in March 1993. The petitioner suggested to the respondent on numerous occasions that they move into the flat but the respondent refused to do so. The petitioner occupies the flat. The petitioner says she has been forced to file the divorce petition as she is anxious not to waste her youth by remaining married to the respondent who will not consummate the marriage.

The question before me was whether the marriage was voidable on the ground that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it.

Refusal of nullity decree

The Women`s Charter (Cap 353) requires the court not to grant a decree of nullity on the ground that the marriage is voidable where there is evidence that the petitioner with knowledge that it was open to her to have the marriage avoided, so conducted herself in relation to the respondent as to lead the respondent reasonably to believe that she would not seek to do so, and that it would be unjust to the respondent to grant the decree. (See ss 101(1)(a) and (b) and 185(2).)

Approbation, ratification or lack of sincerity on the part of the petitioner or similar grounds must be considered.
A decree of nullity on the ground that a marriage is voidable can only be pronounced by a court if the court is satisfied that the petitioner`s case has been proved. The decree of nullity then operates to annul the marriage only as respects any time after the decree has been made absolute, and the marriage notwithstanding the decree will be treated as if it had existed up to that time. (See s 104 of the Women`s Charter.) The marriage took place in August 1991. The first petition was filed on 14 July 1992 before the flat was purchased.

The second petition was served on the respondent.
There is, however, no memorandum of appearance and the petitioner has filed a certificate of non-appearance. The prayer is for the flat to be sold on the open market and the net proceeds after reimbursement of the withdrawal together with interests to both the petitioner and the respondent`s CPF account being divided equally between the petitioner and the respondent. A profit may be made. Whether it is a commercial arrangement is for the court determining the ancillary matter to decide. I have to only ask the question whether the respondent made the purchase of a flat a condition and whether the petitioner went along with it hoping the marriage would be consummated.

In Kwong Sin Hwa v Lau Lee Yen ,1 the Court of Appeal considered an appeal where a petition for divorce on the ground of wilful refusal was dismissed.
It was a pre-nuptial agreement to go through customary rites. LP Thean J (as he then was) who delivered the judgment of the court said (at p 465):

We now turn to examine whether such pre-nuptial agreement is contrary to any provisions of the Women`s Charter. KS Rajah JC in his grounds of judgment referred to ss 181 and 182. ... He then said:

`Having regard to the provisions made by Parliament for persons to continue to marry and to solemnize marriages under customary rites there can be no valid reason for persons entering into pre-nuptial agreements on the ground that a traditional marriage is preferred.`

That may well be so. But if the parties to the marriage agree or arrange to
...

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1 cases
  • TQ v TR
    • Singapore
    • Court of Appeal (Singapore)
    • February 3, 2009
    ...Pre-nuptial Agreement) [1999] 2 FLR 745 (refd) NG v KR (Pre-nuptial contract) [2008] EWHC 1532 (refd) Tan Lan Eng v Lim Swee Eng [1993] 3 SLR (R) 347; [1994] 1 SLR 65 (refd) Tan Siew Eng v Ng Meng Hin [2003] 3 SLR (R) 474; [2003] 3 SLR 474 (refd) Wee Ah Lian v Teo Siak Weng [1992] 1 SLR (R)......

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