1 Marriage

Lec 1 Marriage, Void & Voidable Marriages Family Law & Marriage in Singapore Two systems • 1. Muslim system Administration of Muslim Law Act governs Islamic law. need training - Syariah Court adjudicates, see website at www.syariahcourt.gov.sg • 2. Non-Muslim system Marriage under Women’s Charter  Main charter governing family law  1961 – women’s charter enacted – altered status of women in far reaching effects  why charter and not act – charter more than act. It gives rights to some institn. Gave eq status to women by introdn of monogamy. - Family issues adjudicated by Family Court, see Family Court of Singapore website at www.familycourtofsingapore.gov.sg  See rules/law etc here, very useful Legislation: - • Women’s Charter (Cap 353, 1997 ed)

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• Main statute governing non-Muslim family law (Muslims governed by separate system of Muslim Law but some issues can be adjudicated under Women’s Charter)

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• In force since 1961 o introduced common marriage system and abolished customary marriages o • Introduced monogamy and equal partnership of husband and wife in marriage

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• Provisions governed the spousal relationship, parent and child relationship and financial and property issues between family members.  A lot of provisions center ard marriage – not cohabitees  But fam violence – can involve three tier generation, otherwise is the nuclear family only ie parent child husband wife  stimes children must have married parents  where outside married - look at GIA • Guardianship of Infants Act (Cap 22, 1985 ed) (GIA)  impt where applications wrt children  whether or not parents married  also available to muslims – muslim law applies for formaton and termination of marriage

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where marriage subsisting, husb fails to maintain wife and child, muslim or non musim can apply under GIA • Adoption of Children Act (Cap 4, 1985 ed) • “MPR” - Women’s Charter (Matrimonial Proceedings) Rules 2005 (consolidates MPR 2003 effective April 2003); MPR 2005 apply to proceedings under Part X of the Act commenced on or after 1st April 2006.

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Family practice is very “customised”, need to use the correct forms, read the rules carefully, be guided by the substantive materials at the Family Court website. Law alone cannot resolve dispute s- use counselors, psychologists etc to help resolve fam disputes Rules very impt!!!!!!!! Read the rules carefully.

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Fam practice committee - “The Art of Family Lawyering” published by Law Society 2005.

NB: The law in this area is largely governed by the Women’s Charter (“the Charter”). Unless otherwise stated, statutory provisions contained herein shall refer to the Charter.

Application of Women’s Charter (Cap 353, 1997 ed) Section 3 – applicability (1) Except as otherwise provided, this Act shall apply to all persons in Singapore and shall also apply to all persons domiciled in Singapore.  

Marrying or divorcing in Singapore is governed by the Charter Applicable to all domiciled in Singapore: Includes those abroad but with domicile in Singapore Singapore citizens generally presumed to be domiciled in Singapore “Domiciled” – permanent home/ intention of staying for a long period of time (2) Parts II to VI and Part X and sections 181 and 182 shall not apply to any person who is married under, or to any marriage solemnised or registered under, the provisions of the Muslim law or of any written law in Singapore or in Malaysia providing for the registration of Muslim marriages.

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Certain parts of the Charter are not applicable to persons married under Muslim law Example: Part VI (How marriages are formed) Part X (Divorce – AMLA with own separate provisions) Parts VII & VIII (Customary marriages) (3) Notwithstanding subsection (2), sections 4, 5 and 6 shall apply to any person who contract or purports to contract any such marriage during the subsistence of a marriage registered or deemed to be registered under the provisions of this Act or which was contracted under a law providing that or in contemplation of which the marriage is monogamous.

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Person already married under the Charter cannot come under Muslim law later on. (4) No marriage between persons who are Muslims shall be solemnised or registered under this Act.

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If 2 Muslim parties marry, cannot be governed by the Charter But if only 1 of the parties is Muslim, possible to be registered under the Charter

Marriage - • What is Marriage? - • Marriage in the Women’s Charter:

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voluntary, serious contract (s22, solemnization process required, s 9, 18 yrs)

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cannot be privately made. Must go to registry and solemnized. It has a ublic character – a public institution. Three weeks notice for pple to object.

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monogamous (long title to W’s Ch, ss 4-6) • before 1961 men can take more than one wife. Woman party to polygamous marriage – two women in hhld • for eq partnership, can ony have one woman and one man – monogamy gives effect to tat status • implications of monogamy – no affairs etc

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till death or divorce (subsists till then, s 7) • permanent union

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between man and woman (s 12, no homosexual marriages)

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affected by defects (renders marriage void or voidable)

confers status (rights & obligations, s 46) • cannot contract out of this

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marriage must be formed according to law – must have capacity etc, must comply with formalities and have capacity to marry

REQUIREMENTS OF A VALID MARRIAGE Two Aspects to Validity of Marriage: - • Formal Validity – comply with form/procedures licence notice to marry - • Essential Validity – parties must have capacity to marry each other Breach of formal or capacity provisions => VOID MARRIAGE Conflict of laws apply where foreign elements exist (party foreign or marry in foreign jurisdiction) Sg – many such marriages Need to know whether capacity governed by other countries or sg – so need to choose approp law to givern the marriage Appies where there are foreign elements Eg two sg marry abroad Eg one sg marries foreigner in sg Common law conflict of Laws Rules

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See Arpinya Rongchotiawattan v Wee Oh Keng [1998] 1 SLR 520 - Most recent - on formatin of marriages - Rules n conflict accepted – case is auth for proposition that conflict rule accepted

Facts The testator Ang contracted three marriages. In 1937, while in China, he married the defendant Wee under customary rites. They married again in 1956 in Singapore, and their marriage was solemnized under the Civil Marriage Ordinance (Cap 38, 1955 Ed). In 1955, Ang went through a form of marriage in Bangkok with a Thai lady named Boonsri. Boonsri has remained in Bangkok throughout this time and Ang lived her for a period of time and visited Singapore and Malaysia from time to time. In 1979, Ang went through yet another form of marriage, this time with the plaintiff Arpinya. This marriage was certified to have been solemnized at the Thai Embassy at Penang according to the provisions of s 1449 of the Thail Civil and Commercial Code. Arpinya lived in Malaysia for a few years but as a visitor. Ang was domiciled in Malaysia before his 1955 marriage to Boonsri and remained so domiciled until his death in 1991. He was a citizen of Malaysia, having acquired the citizenship in the country of his adoption in 1960. Ang made a will in 1965, appointing Wee the sole executrix and gave all his property to her absolutely. When he died in 1991, the probate of the will was granted to Wee by the court. In the present action, Arpinya claimed the revocation of the grant of probate and other reliefs on the ground that Ang’s will which was made in 1965, had been revoked by his 1979 marriage to her. Held, dismissing the claim: (1) If a marriage was celebrated in accordance with a form required by the law of the country where the marriage was celebrated or a form recognised as sufficient by that law, then the marriage was valid as to form. It was only necessary to prove a common intention to form a permanent union as husband and secondary wife and the formation of the union by the man taking the woman as his secondary wife and the woman taking the man as her husband. On the evidence, both conditions were satisfied in so far as Boonsri was concerned. However, Thailand’s Civil and Commercial Code 1935 introduced monogamy into Thailand and a system of registration was put in place. All marriages in Thailand must be registered under the Code to be valid. An unregistered customary marriage did not exist in law in Thailand and that was the position in 1955. As no evidence of the 1955 marriage to Boonsri was adduced, the court declined to presume compliance with the form required. As such, the 1955 marriage was void. (2) As a general rule, the capacity to marry was governed by the law of each party’s antenuptial domicile. The testator was domiciled in Malaysia immediately before the 1955 marriage, but there was no evidence as to his capacity to marry under the law of Malaysia. If under that law, his capacity depended on the 1937 marriage, then he would have capacity to marry as the 1937 marriage was a potentially polygamous

marriage. However, the court had not evidence of Boonsri’s domicile or country of birth. On the evidence, the court held that Boonsri was domiciled in Thailand immediately before the 1955 marriage. Under Boonsri’s antenuptial domiciliary law of Thailand, Ang had no capacity to marry and as such, the 1955 marriage could not take place. (3) As no ground was alleged against the validity of the 1956 marriage, the court held it to be a valid marriage. If the 1956 marriage was valid, then under Malaysian law, Ang had no capacity to marry Arpinya in 1979. (4) The domiciliary law of Ang immediately after the celebration of the marriage governs the question whether such marriage revoked an earlier will. Under Malaysian law, it was not disputed that if the 1979 marriage was valid, it would have the effect of revoking Ang’s 1965 will. As the 1979 was held invalid, Ang’s will would not be revoked accordingly. Qn: Singapore woman married German man in Thailand, which law governs? Ans: Formal Validity - • Formal validity governed by law of place of celebration of marriage i.e. Thailand Essential/Capacity - • Essential Validity governed by ante-nuptial domiciliary laws of parties, ie, woman must have capacity according to Singapore law, man must have capacity according to German law. o – Dual Domicile Rule adopted in In re Maria Huberdina Hertogh [1951] MLJ 164

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Re Maria Hertogh - Marriage of Maria and Muslim husband void as Dutch law (Maria had a Dutch domicile) prohibited parties under 16 to marry without Queen’s dispensation.

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She was raised as muslim. They let her marry muslim man so that she no longer had custody under parets and cld not be brought back to Holland Found that maria domiciled in Holland. Taken back to Holland Judge felt that broad European education was better. But in fact at 13 she may have needed to stay in muslim community (later led tumultuous life backing Europe)

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Exception in Sottomayer v De Barros (1879) 5 PD 94 H (domiciled in England) married first cousin W (domiciled in Portugal) in England. Portuguese law prohibited first cousins from marrying unless had Papal dispensation

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The classic case is that of Re Maria Hertogh69. The child, who had a Dutch domicile of origin lived in Indonesia with her parents. When she was 4, the war broke out and she was abandoned by them. The Malay amah took the child in and raised her as her own – as a Muslim. Years later, when the girl was 14, her parent returned and sought custody. Maria in the meanwhile had married a young Malay. Having attained puberty, under Muslim law, she had the capacity o do so. But the question as to what her personal law was depended on her domicile. The Court of Appeal held that Maria, being a dependent had her father’s domicile which was Dutch and that under the law of Holland she did not have the capacity to marry as she was under 16. The short of it then was that though Maria had lived in Asia for as long as she could remember, regarding it as her home and though she had been educated in the Muslim way of life by persons whom she regarded as her family, she found that something as personal as her capacity to marry was determined by the law of faraway Holland – and that too only because of the technical rules of domicile.

Held: Marriage valid. “Injustice” might be caused to own subjects if imposed foreign prohibition Foreign incapacities or laws not as impt as own laws. Judge preferred own law. Case not said to be wrong – but exception. • => Accepted exception that where married in the forum and one party domiciled in forum, the foreign incapacity can be disregarded.

• Another alternative to dual domicile rule - popular rule for capacity: essential capacity is governed by law of the Intended Matrimonial Home

 first made popular in England by case  • Radwan v Radwan (No 2) [1973] Fam 35

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• H (domiciled in Egypt) married W (domiciled in England) in Egyptian consulate in Paris in polygamous form. Lived in Egypt first, subsequently came to England. W lacked capacity to enter into polygamous marriage.

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• Held: Intended Matrimonial Home was Egypt and Egyptian law applied. Marriage valid.

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Ie where you live immed after marriage will govern marriage. By vurtue of IMH rule.

Restricted application to capacity to contract polygamous marriages.

Understanding Domicile - • Domicile is one’s “home” – not same as where you were born, it is a legal concept of home - Definition of “Domicile”\

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“By domicile we mean home, the permanent home, and if you do not understand your permanent home, I’m afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it.” So stated Lord Cranworth as far back as in 1858 Whicker v Hume (1858) 7 H. L. Cas. 124 at 160

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Though the notion of a permanent home lies at the root of the concept of domicile, the two are by no means synonymous.12

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To put it in a nutshell, the acquisition of a domicile of choice requires not only residence in a territory subject to a distinct legal system,13 but also an intention by the propositus to remain there permanently.14 Essentially there are three kinds of domicile:15 domicile of origin; domicile of choice and domicile of dependency.

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At birth, every child acquires a domicile of origin. This is derived from the domicile of the father if the child is born legitimate or from that of the mother, if illegitimate or born posthumously to the father.

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It remains with the child as his domicile of dependency,16 so long as the respective parent’s domicile remains unchanged. Should that change, the child’s domicile of dependency would also change but leaving intact his domicile of origin. o Domicile of dependence same as parents o Where grow up and choose sg to be his home – at 21, can acq domnicile of choice. So Singapore o At 30, pack up and leave – spends mth in Australia, Europe etc. then killed.

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When the child attains full age the domicile of dependency converts to become a domicile of choice unless he, in exercise of his right, changes it by acquiring a new domicile of choice. o origin – domicile you are born with. Eg born in sg but father domiciled in philipines. You take on father’s domicile at pt of birth. Once determined this, can never change it. So Philippines. Mother if illegitimate • • Domicile of choice acquired by  Residence  Intention to live there indefinitely – how to prove intention. Courts say need to be cautious. Other evid reqd -> Domicile at pt of his death – not yet acqd new one and abandoned choice. So default domicile applies – this is domicile of origin.  Weak cocncept

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There are four general principles relating to domicile that must be borne in mind to understand the ambits of the concept of domicile.

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First, no person can be without a domicile at any point of time.17 As stated above, a domicile of choice can be abandoned and a new domicile of choice simultaneously acquired. In the event that a new domicile of choice is not acquired, the domicile of origin will revive to fill the gap.

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Secondly, no person can at any time have more than one domicile; at least not for the same purpose.18 This follows necessarily from the practical requirement that there must be a single definite legal system by which a given set of rights and obligations may be governed.

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Thirdly, an existing domicile is presumed to continue until it is proved that a new domicile has been acquired.19

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Lastly, the question of where a person is domiciled is to be determined according to the law of the forum.

• In Singapore, presumed domiciled in Singapore if citizen of Singapore (s3(5) W Ch) • Joseph Wong Phui Lun v Year Loon Goit [1978] 1 MLJ 236 11  mistress and children in sg  applied for PR in sg  has sold business in KL  => circumstantial evid tt reinforce intention  Judgement: • The domicile of origin of the parties in this case is Malaysia. The question before the court is whether the petitioner has acquired a domicile of choice in Singapore as at 19 January 1976 the date of the presentation of the petition. • Clear evidence is required to establish a change of domicile. In particular, to displace the domicile of origin in favour of the domicile of choice, the standard of proof goes beyond a mere balance of probabilities (per Sir Jocelyn Simon P in Henderson v Henderson [1965] 1 All ER 179 at p 181). • It is not in dispute that the petitioner has been residing in Singapore since 1968 and is still residing here. The petitioner has stated on oath that in 1969 he formed the intention to live in Singapore permanently. The authorities have held that the oath of the person whose domicile is in question as to his intention to change his domicile is not conclusive. The question for the court is whether upon a review of all the circumstances it gives credit to his evidence ( Wilson v Wilson (1869-75) 2-3 LRP & D 435). • It is not in dispute that the petitioner first came to reside in Singapore for the sole purpose of employment and it is clear that that is insufficient to acquire a domicile of choice. However, the intention to make the residence permanent need not be in existence at the time of first arrival in the country where the domicile of choice is alleged to be acquired. It may be, and often is, formed after residence has been continued for sometime. But as soon as that intention is formed then the acquisition of domicile of choice is completed and no subsequent change of mind, or doubts arising as to the wisdom of the termination, can by themselves affect the domicile so acquired. • In early 1968 he joined two Singapore clubs and in mid-1969 he resigned from two Kuala Lumpur clubs. In my view this is a relevant circumstance to be taken into consideration. • From mid-1969 the petitioner lived with his mistress in Singapore and he has three children by her. The first child was born on 9 July 1970 in Singapore and twin girls were born on 7 September 1971 also in Singapore. The petitioner`s association with the mistress is of special significance. It was not one of a passing fancy. It began according to him in 1969 although I think that it took place very much earlier, and he is still today living with her and the three children in Singapore.

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It is always material, in determining what is a man`s domicile, to consider where his wife and children live and have their permanent place of residence or where his establishment is kept (Platt v A-G of New South Wales (1877-1878) 3 AC 336). But where the marriage has broken down, as in this case, the residence of the wife loses its significance. The petitioner applied for and was granted permanent residence in Singapore in May 1970. In September 1970 he sold off his interest in the Kuala Lumpur partnership which meant that he ceased to be employed by the Arthur Young partnership in Singapore. He did not go elsewhere but remained in Singapore and joined his present firm in October 1970 and is now on its permanent staff. All these factors go a long way to support his contention that he formed the intention to remain permanently in Singapore around June 1969 after the May 1969 riots in Malaysia. It is true that the petitioner is still a Malaysian citizen but he has declared on oath that he contemplated applying for Singapore citizenship as soon as he qualifies for the minimum residential qualification of ten years, which will be in May 1980.

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Upon a review of all the circumstances I am satisfied that it has been proved on the part of the petitioner that he has acquired a domicile of choice in Singapore. I find that the domicile of the parties to this marriage is Singapore at the time when the petition is presented.

VOID MARRIAGES Formalities required under Women’s Charter: Applies to all who marry in Singapore Consequences of Breach of Provisions => void or voidable marriage

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• S105 Marriage void if invalid by virtue of ss 3(4), 5, 9, 10, 11, 12, 22 • S104: Either spouse can petition for judgment of nullity (Previously, “decree of nullity”) • Void whether or not judgment obtained

Grounds on which marriage is void 105. A marriage which takes place after 1st June 1981 shall be void on the following grounds only: (a) that it is not a valid marriage by virtue of sections 3 (4), 5, 9, 10, 11, 12 and 22; or (b) where the marriage was celebrated outside Singapore, that the marriage is invalid — (i) for lack of capacity; or (ii) by the law of the place in which it was celebrated. 

Included the word ‘only’ – shows intention to create an exhaustive list of grounds for a void marriage

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Capacity to Marry under Women’s Charter Applies to persons physically in Singapore and all persons domiciled in Singapore. If u married abroad where it is allowed ie you have capacity elsewhere, this dos not work – capacity is still governed by domiciliary law Party lacks capacity to marry, or invalid by the law of the place where it was celebrated – Section 105(b)

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Solemnization

WC Requirements for valid marriage 22. —(1) Every marriage solemnized in Singapore shall be void unless it is solemnized — (a) on the authority of a valid marriage licence issued by the Registrar or a valid special marriage licence granted by the Minister; and (b) by the Registrar or a person who has been granted a licence to solemnize marriages. (2) Every marriage shall be solemnized in the presence of at least 2 credible witnesses. (3) No marriage shall be solemnized unless the person solemnizing the marriage is satisfied that both the parties to the marriage freely consent to the marriage.      

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Only applicable to marriages solemnised in Singapore Only deals with procedure in Singapore Solemnisation by Registrar or person licensed to be a Registrar (by the Minister) – Includes priests, Justices of the Peace, etc. Non-registrars are generally designated the title of “Assistant Registrars of Marriage” Not clear if the absence of 2 credible witnesses or the failure of the solemniser to satisfy himself as to the free consent of the parties, renders the marriage void. (Better view: they do not render it void) Licence must be issued by the Registrar of a valid special marriage licence granted by the Minister; and by the Registrar or a person who has been granted a licence to solemnise marriages by the Registrar (section 22(1)) Monogamy • Ss4, 5, 6, 11

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• S3(3) protects first monogamous marriage from consequence of conversion to Islam (or Muslim H who chose first marriage under WCh) difficult qn – what if husband does? Woman can complain of bigamy If married already, cannot marry anyone else Note extraterritorial jurisdiction vis-à-vis own domiciliaries Section 4 provides that every person who on or after the 15 th September 1961 is lawfully married, shall be incapable of contracting a valid marriage with any other person Indicates that prior to 15th September 1961, polygamy was accepted Avoidance of marriages by subsisting prior marriage – Section 11

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*Why necessary since with section 5? Covers specific situations not covered by section 5 Example – A (Singaporean) has never been married. A now wants to marry B (non-Singaporean domiciliary) outside of Singapore. The Charter does not apply to B. However, B is already married and B’s personal law allows for > 1 wife. A enters into a circumstance where B is already married. Thus, since the Charter governs A as Singapore domiciliary, although it is A’s first marriage, it is void under section 11.

Disability to contract marriages 4. —(1) Every person who on 15th September 1961 is lawfully married under any law, religion, custom or usage to one or more spouses shall be incapable, during the continuance of that marriage or marriages of contracting a valid marriage under any law, religion, custom or usage with any person other than such spouse or spouses. (2) Every person who on 15th September 1961 is lawfully married under any law, religion, custom or usage to one or more spouses and who subsequently ceases to be married to that spouse or all the spouses shall, if he thereafter marries again, be incapable during the continuance of that marriage of contracting a valid marriage with any other person under any law, religion, custom or usage. (3) Every person who on 15th September 1961 is unmarried and who after that date marries under any law, religion, custom or usage shall be incapable during the continuance of that marriage of contracting a valid marriage with any other person under any law, religion, custom or usage. (4) Nothing in this section shall affect the operation of Part III in relation to marriages solemnized in Singapore after 15th September 1961. Void marriages 5. —(1) Every marriage contracted in Singapore or elsewhere in contravention of section 4 shall be void. (2) If any male person lawfully married under any law, religion, custom or usage shall, during the continuance of that marriage, contract a union with a woman, that woman shall have no right of succession or inheritance on the death intestate of such male person. (3) Nothing in this section shall affect the liability of any person to pay such maintenance as may be directed to be paid by him under any written law. Offence 6. Any person lawfully married under any law, religion, custom or usage who during the continuance of that marriage purports to contract a marriage in Singapore or elsewhere under any law, religion, custom or usage in contravention of section 4 shall be deemed to commit the offence of marrying again during the lifetime of the husband or wife, as the case may be, within the meaning of section 494 of the Penal Code (Cap. 224). Avoidance of marriages by subsisting prior marriage 11. A marriage solemnized in Singapore or elsewhere between persons either of whom is at the date of the marriage married under any law, religion, custom or usage to any other person shall be void. 4. Minimum Age of Marriage Avoidance of marriages where either party is under minimum age for marriage 9. A marriage solemnized in Singapore or elsewhere between persons either of whom is below the age of 18 years shall be void unless the solemnization of the marriage was authorised by a special marriage licence granted by the Minister under section 21

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• S9: Under age of 18 - marriage void– Proviso: But valid if permission given by way of special licence granted by Minister (a formality procedure can cloth person with capacity) (plus consent of parents) Generally, age of consent for marriage in Singapore = 18 years

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Below 18, must apply to Minister for “Special Marriage Licence” Under Section 17, person applying for marriage licence must file/ affirm statutory declaration, and must be of 21 years of age or above (inter alia) Thus if the party is between 18 and 21 years, the Registrar will not grant a licence unless with the consent of “the appropriate person mentioned in the Second Schedule” (Section 17(2)(b)(ii)) – that is, consent of parent(s) or guardian required If the marriage licence is issued, the marriage must take place within 1 month or the licence becomes void. (Section 21(3)) *What if a false declaration is made and the licence is in fact obtained? Since section 9 explicitly renders the marriage void where 1 of the parties is < 18 years, thus marriage is void But if > 18 years, marriage is valid, but false declaration will amount to criminal offence False declaration does not affect the underlying validity of the marriage in question Prohibited Degrees of Relationship • Section 10: Marriages between persons related in the ways listed in First Schedule of WC void – Proviso: Valid if permission given by way of special licence granted by Minister blood relations/ step-sibings/ in laws – because trying to prxt younger members of family See First Schedule – “Kindred and Affinity – Prohibited Degrees of Relationship” Biological & social reasons Depends on societal norms – changes over time! But a Minister’s licence would make is possible for a valid marriage to be contracted.

Marriages within prohibited degrees 10. —(1) A marriage solemnized in Singapore or elsewhere between a man and any of the persons mentioned in the first column of the First Schedule, or between a woman and any of the persons mentioned in the second column of that Schedule, shall be void. (2) Notwithstanding subsection (1) and the First Schedule, the Minister may, in his discretion, grant a licence under this section for a marriage to be solemnized, notwithstanding the kindred or affinity of the parties, if the Minister is satisfied that the marriage is valid under the law, religion, custom or usage which would have been applicable to the parties thereto if this Act had not been enacted. (3) A marriage solemnized under such a licence shall be valid. FIRST SCHEDULE Section 10 KINDRED AND AFFINITY PROHIBITED DEGREES OF RELATIONSHIP Mother.

Father.

Daughter.

Son.

Father’s mother.

Father’s father.

Mother’s mother.

Mother’s father.

Son’s daughter.

Son’s son.

Daughter’s daughter.

Daughter’s son.

Sister.

Brother.

Wife’s mother.

Husband’s father.

Wife’s daughter.

Husband’s son.

Father’s wife.

Mother’s husband.

Son’s wife.

Daughter’s husband.

Father’s father’s wife.

Father’s mother’s husband.

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7.

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Mother’s father’s wife.

Mother’s mother’s husband.

Wife’s father’s mother.

Husband’s father’s father.

Wife’s mother’s mother.

Husband’s mother’s father.

Wife’s son’s daughter.

Husband’s son’s son.

Wife’s daughter’s daughter.

Husband’s daughter’s son.

Son’s son’s wife.

Son’s daughter’s husband.

Daughter’s son’s wife.

Daughter’s daughter’s husband.

Father’s sister.

Father’s brother.

Mother’s sister.

Mother’s brother.

Brother’s daughter.

Brother’s son.

Sister’s daughter.

Sister’s son.

Muslim Marrying a Non-Muslim S 3(4) No marriage between persons who are Muslims shall be solemnized ... under this Act Marriage contracted under the Charter was a marriage where both parties are Muslims Parties to be Male & Female • Now, s12 W’s Ch. Must be marriage between male & female Definition of ‘male’ & ‘female’? Does medical gender re-assignment alters a person’s gender in the eyes of the law? Previously: Lim Ying v Eric Hiok [1992] 1 SLR 184

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K S Rajah JC in Lim v Hiok [1992] 1 SLR 184 held that gender re-assignment surgery is ineffective, as a person’s gender is fixed at birth

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H was transsexual who was born a female. W did not know of this, petitioned for nullity.

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Ct: requirement that parties be of different sexes a requirement of capacity to marry - breach renders marriage void [despite lack of express provision in Ch stating requirement *Held: Marriage under the Charter had to be a marriage between a male and a female respectively. Gender re-assignees excluded.

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Court accepted that she wanted children and they cldnt have children or consummate their marriage etc Eric hiok is a girl – born female and therefore female because of biological structure Reqt tt parties be of diff sex Cl defn of mrraige – bet man and woman

• S 12 inserted by 1996 Amendment; express requirement of different sexes • S 12 reverses Lim Ying, test of sex is administrative: sex stated in identity card prima facie evidence of party’s sex (recognizes newly reassigned sex) prev regitry used birth cert and IC, now just IC

Avoidance of marriages between persons of same sex 12. —(1) A marriage solemnized in Singapore or elsewhere between persons who, at the date of the marriage, are not respectively male and female shall be void. (2) It is hereby declared that, subject to sections 5, 9, 10, 11 and 22, a marriage solemnized in Singapore or elsewhere between a person who has undergone a sex re-assignment procedure and any person of the opposite sex is and shall be deemed always to have been a valid marriage. (3) For the purpose of this section — (a) the sex of any party to a marriage as stated at the time of the marriage in his or her identity card issued under the National Registration Act (Cap. 201) shall be prima facie evidence of the sex of the party; and

(b) a person who has undergone a sex re-assignment procedure shall be identified as being of the sex to which the person has been re-assigned. (4) Nothing in subsection (2) shall validate any such marriage which had been declared by the High Court before 1st May 1997 to be null and void on the ground that the parties were of the same sex.

8.

Marriages under customary or religious rites (barring Muslims) – Sections 14, 16, 17

Before such a marriage can be so contracted – i. a notice of marriage must be filed ii. a marriage licence must be obtained Notice of marriage 14. Whenever any persons desire to marry in Singapore, one of the parties to the intended marriage shall sign and give to the Registrar a notice in the prescribed form. Signature on notice by person unable to write or to understand English language 15. If the person giving the notice under section 14 is unable to write or is insufficiently acquainted with the English language, or both, then it shall be sufficient if he places his mark or cross thereon in the presence of some literate person who shall attest the same, which attestation shall be in the prescribed form. Notice to be filed and published 16. —(1) Upon receipt of a notice under section 14, the Registrar shall cause the notice to be filed serially by electronic media or other means. (2) The Registrar shall also cause a computer print-out or summary of all notices filed during the day to be displayed in an electronic terminal in a conspicuous place in his office and shall keep the same so displayed until he issues a marriage licence under section 17, or until 3 months shall have elapsed. Registrar to issue marriage licence on proof of conditions by statutory declaration 17. —(1) The Registrar shall, at any time after the expiration of 21 days and before the expiration of 3 months from the date of the notice and upon payment of the prescribed fee, issue a marriage licence in the prescribed form. (2) The Registrar shall not issue a marriage licence until he has been satisfied by statutory declaration made by each of the parties to the proposed marriage — (a) that one of the parties has been resident within Singapore for at least 15 days preceding the date of the notice; (b) that — (i) each of the parties is 21 years of age or above, or, if not, is divorced or is a widower or widow or has had his or her previous marriage declared null and void, as the case may be; or (ii) if either party is a minor who has not been previously married — the consent of the appropriate person mentioned in the Second Schedule has been given in writing, or has been dispensed with, or the consent of the High Court has been given in accordance with section 13; (c) that neither party is below the age of 18 years; (d) that there is no lawful impediment to the marriage; and (e) that neither of the parties to the intended marriage is married under any law, religion, custom or usage to any person other than the person with whom such marriage is proposed to be contracted. (3) If any party giving a notice of marriage or making a statutory declaration does not understand the English language, the Registrar shall, before issuing the marriage licence, ascertain whether that party is cognizant of the purport of the notice or declaration and, if not, shall interpret or cause to be interpreted the notice or declaration to that party into some language which he understands. Marriage to take place within 3 months 18. If the marriage does not take place within 3 months after the date of the notice, the notice and all proceedings consequent thereupon shall be void, and fresh notice shall be given before the parties can lawfully marry. Void vs. Voidable Common law (a) Void: All void marriages are void ab initio – regarded as never having taken place Complete nullity Thus, issue of validity can be put in issue by an interested person even after the death of parties to the marriage

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Eg. Action by brother regarding legitimacy of children (affects succession to deceased’s estate)

(b) Voidable: - Regarded as a valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction (De Reneville v De Reneville [1948] 1 All ER 56) Only can be annulled during the lifetime of both parties They are regarded as the only persons with locus standi to put this in issue before the Courts Marriage regarded as valid until annulled Thus, cannot be put in issue after 1 of the parties passes away (since then, there would be no defendant!) However if avoided during the lifetime of both parties, the annulment operates retrospectively VOIDABLE MARRIAGE (a) Petition for nullity of marriage: Section 104 Writ for nullity of marriage 104. Any husband or wife may file a writ claiming for a judgment of nullity in respect of his or her marriage.

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Suggests that under the Charter, regardless of whether void or voidable, only persons with the locus standi, to bring proceedings for relief or declaration that marriage, are husband & wife Defect in formation of marriage but less serious than defects rendering marriages void. Voidable marriages (s 106) are valid until annulled by judgment (previously “decree”!) of nullity, whereas void marriages (breach of formalities or lack of capacity) are void ab initio.

(b) Effect of nullity decree: Section 110 Effect of judgment of nullity in case of voidable marriage 110. —(1) If the court finds that the plaintiff’s case has been proved, it shall grant a judgment of nullity. (2) A judgment of nullity granted after 1st June 1981 on the ground that a marriage is voidable shall operate to annul the marriage only as respects any time after the judgment has been made final, and the marriage shall, notwithstanding the judgment, be treated as if it had existed up to that time.

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Decree of nullity of voidable marriages only Since, a void marriage is one that will be regarded as never having taken place, and can be so treated by both parties without the necessity of any decree annulling it. No longer operates retrospectively Effect of nullity on voidable marriages operates similarly as a divorce – since validity of marriage prior to nullity decree is not affected

(c) Legitimacy of children of annulled marriages: Section 111 Legitimacy of children of annulled marriages 111. —(1) Where a marriage is annulled, any child who would have been the legitimate child of the parties to the marriage if it had been dissolved, instead of being annulled, at the date of the judgment shall be deemed to be their legitimate child, notwithstanding the annulment. (2) The child of a void marriage born on or after 2nd May 1975 shall be deemed to be the legitimate child of his parents if, at the date of such void marriage, both or either of the parties reasonably believed that the marriage was valid.  

Presume reference here made to voidable marriages (see (2) below) Thus, presume that child born to a voidable marriage remains legitimate notwithstanding avoidance to marriage at a subsequent point in time

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Reference explicitly made to void marriages (explains implication in (1) above) Children born to void union not automatically illegitimate Depends on whether both or either of the parents reasonably believe marriage was valid

(d)

All grounds for avoiding a marriage are listed in s106 W’s Charter: a) Non-consummation due to incapacity of either party b) Non-consummation due to the wilful refusal of the respondent c) Either party did not consent to the marriage d) Either party at the time of the marriage was suffering from mental disorder such as to be unfit for marriage e) Respondent, at time of marriage, was suffering from VD f) Respondent, at the time of marriage, was pregnant by another man 1. Non-consummation: S 106 (a) and (b) – 90 percent of nullities use this.

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• Prove two things:  1. Non-consummation  2. Due to incapacity or wilful refusal • What is consummation? – to complete by sexual act

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• L v L [1956] MLJ 145 – sexual intercourse which is ordinary & complete sexual intercourse

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common sense view to be taken – penetration. But need not have conception eric hiok case – also interpreted this – must be natural and ord conception. This part of judgement shld be changed

• Marriage consummated by one act of complete sexual intercourse after solemnization. • Irrelevant: pre-marital sex, ability to procreate, state of mind  ie physical act  Rape does not constit adultery – that req mental element. But here merely physical act is relevant

i. s106(a) Due to incapacity of either party - • Medical evidence may be used as proof - • Medical inspectors may be appointed MPR R40 (r 25 of 2004 rules) Medical examination 40. —(1) In an action for nullity of marriage on the grounds of impotence or incapacity, the plaintiff shall, after a defence has been filed, or if no defence has been filed or appearance entered to the proceedings, after the expiration of the time allowed for filing a defence or entering an appearance, as the case may be, apply to the Registrar for the determination of the question as to whether Medical Inspectors should be appointed to examine the parties. (2) Upon any such application, the Registrar shall, if in the circumstances of the case he considers it expedient to do so, appoint a Medical Inspector or, if it appears to him necessary, 2 Medical Inspectors to examine the parties and to report to the court the result of the examination. (3) At the hearing of any such proceedings, the court may, if it thinks fit, appoint a Medical Inspector or 2 Medical Inspectors to examine any party who has not been examined or to examine further any party who has been examined. (4) The order, endorsed with notice of the time and place of the examination, shall be served upon the defendant, and service of the order shall be effected and proof of such service shall be given in the manner provided for by rules 11 and 13 in the case of service of a copy of a writ on a defendant. (5) Where the defendant has appeared by a solicitor, service may be effected on the solicitor in the manner provided for by rule 14. (6) The examination shall, if either party so requires, be held at the office of the Medical Inspector appointed or, as the case may be, of one of the Medical Inspectors appointed or at some other convenient place selected by him or them, and in every other case shall be held at such place as the Registrar shall direct. (7) The Medical Inspector or Inspectors shall call upon the solicitors for the parties to identify the parties to be examined by him or them, and after such identification, the parties and their solicitors shall sign their names and

the paper bearing such signatures shall be signed by the Medical Inspector or Inspectors and annexed to the report. (8) In an action for nullity of marriage on the ground that the marriage has not been consummated owing to the wilful refusal of the defendant to consummate the marriage, either party may apply for the appointment of Medical Inspectors to examine the parties. (9) Upon such application, the Registrar shall appoint a Medical Inspector or, if it appears to the Registrar to be necessary, 2 Medical Inspectors, and either of the parties shall be at liberty to submit himself for examination to the Medical Inspector or Inspectors so appointed. (10) Paragraphs (6) and (7) shall apply to any examination referred to in paragraph (9), and the Medical Inspector or Inspectors shall report to the court the result of any examination made by him or them. (11) Every report made pursuant to this rule shall be filed, and either party shall be entitled to be supplied with a copy thereof upon payment of the prescribed fee. -

Absence of natural sexual relations Note: “either” party (Baxter v Baxter [1974] 1 All ER 387) Incapacity includes physical and/or psychological disability, not only impotence Cases show disability amounts to a “repugnant aversion to sexual relations”, recognised medically Physical disability: incurable, or where it is curable, requires an operation with a material element of risk involved See Matrimonial Proceedings Rules (MPR) – on procedure

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Matrimonial Proceedings Rules (MPR) • Rules on procedure are fairly thin – not an exhaustive list of matrimonial proceedings • Rules of Court referred to • ROC provides that where MPR rule exists, ROC is ousted to that extent. But where MPR rule does not exist, ROC may well still apply • Eg. prospective litigant asks for Third Party Discovery – under MPR, no such power; must link to ROC for relevant power

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Rule 40 MPR: Petitioner can ask court to appoint medical examiner in proceedings for nullity claim, regarding non-consummation (to determine if it is a true claim/ not)

*What is considered “natural” sexual relations? - Reconstructed organ regarded artificial, not natural – dicta in Corbet v Corbet But probably arguable that it would not render marriage voidable under (a) since with section 12 ii. s106(b) Due to wilful refusal of Respondent - • wilful refusal - request and refusal.  No refusal without request

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 Must it be express or implied? • Horton v Horton: decision to refuse without just cause. if have reason then not refusal wifully  *When is it justifiable to refuse?  Note difference between civil marriage & customary/ religious ceremony  Reason for refusal to consummate must be ‘reasonable’/ ‘proper’ (eg. have not gone through the religious ceremony in church yet = sufficient reason to refuse consummation)  “Wilful”: bad faith/ refusal without good grounds  Law considers it against public policy not to fulfil conditions of marriage

Conflicting Case Law in Singapore Issue: Chinese customary rites of marriage. Petitioner & respondent will agree, prior to the solemnisation of the marriage at the Civil Marriage Registry, to postpone the consummation of the marriage until the Chinese customary marriage rites have bee performed. After solemnisation at the Registry, the respondent will then refuse to go through the customary ceremony despite requests by the petitioner to do so.

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• Tan Siew Choon v Tan Kai Ho [1973] 2 MLJ 9

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Parties agreed that there wd be no consummation until Chinese ceremony, H refused to proceed with Chinese ceremony.

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Ct: H wilfully refused to consummate marriage In the eyes of the law, once solemnization takes place, you are married. The respondent, was in fact refusing to consummate the marriage as the parties had agreed that the customary rites were a pre-condition to marital cohabitation

o

Cf. Ng Bee Hoon v Tan Heok Boon [1992] 2 SLR 112  Coomaraswamy J. held: A pre-marital agreement which has the effect of limiting the full effects of marriage is void as against public policy. Considered a pre-marital agreement to postpone cohabitation until the celebration of the Chinese customary rites to be such an agreement. Giving effect to such an agreement would make a mockery of the law of marriage in Singapore – effect of allowing parties to consider themselves, and yet be able to say that because the customary ceremony had not been performed, they are not married (cannot live together or have sexual relations).  Facts - The parties were married at the Registry of Marriages on 12 July 1990. They previously agreed that they would only consummate the marriage after Chinese customary rites were held. Subsequently the respondent Tan refused to go through the Chinese ceremony and the petitioner Ng claimed that this constituted wilful refusal to consummate the marriage within the meaning of s 100(b) of the Women’s Charter (Cap 353) (‘the Charter’) and sought a decree of nullity.  Held, dismissing the petition: - (1) Wilful refusal to consummate a marriage was not established simply from the evincing of an intention not to consummate. (2) After solemnization of a marriage by the Registrar of Marriages, all incidents of marriage followed without the requirement of any further celebration, ceremony or act. The only ceremony that counted at law in Singapore was the solemnization of a marriage by the Registrar or other licensed person. Section 23(1) of the Charter expressly precluded the subsequent ceremony from superseding or invalidating the Registry solemnization. - (3) In declaring without qualification, under s 22 of the Charter, to the person solemnizing the marriage that he or she was willing to take the other party as his or her wedded spouse, both parties thereby abandoned any pre-nuptial agreement that they shall not be man and wife till after a later Chinese customary rites ceremony. (4) No evidence was adduced nor was the court able to find that a custom existed to the effect that before Singaporeans of Chinese descent can consider themselves fully, properly and lawfully married, there must be a Registry marriage and a subsequent Chinese customary rites ceremony. Even if such a custom did exist, it would be contrary to public policy and to ss 23 and 45(1) of the Charter.

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Followed by Rajah JC in Kwong Sin Hwa v Lau Lee Yen (Divorce No. 332/92)

o

Tang Yuen Fong v Poh Wee Lee Jerry [1995] 3 SLR 359  Selvam J held:  Petition dismissed – Court must not Act as a rubber stamp and grant the petition as a matter of course

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For petition on the ground of wilful refusal to consummate, act of non-consummation alone was insufficient – non-consummation must be wilful and the petitioner must give particulars to show absence of just cause and of fault on the part of the petitioner. Here, petitioner failed to plead and prove that the husband had come to a settled and definite decision not to consummate the marriage without just excuse

o

• Kwong Sin Hwa v Lau Lee Yen [1993] 1 SLR 457 – landmark decision

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– Can wilfully refuse consummation by refusing to undergo condition to consummation ie if you refuse to proceed with Chinese rites u have agreed to, then you are refusing to consummate marriage Facts The parties were married in Singapore on 1 April 1991. They previously agreed that they would only cohabit and consummate the marriage after they celebrated the traditional Chinese customary rites. Subsequently the respondent Lau refused to go through with the Chinese ceremony. The appellant Kwong claimed that this refusal amounted to a wilful refusal to consummate the marriage within the meaning of s 100(b) of the Women’s Charter (Cap 353) (‘the Charter’), and accordingly sought a decree of nullity. His petition was dismissed on the ground that such agreements were void as against public policy and the Charter and Kwong appealed. Held, allowing the appeal: (1) A pre-nuptial agreement, such as this one, postponing cohabitation of the parties as husband and wife and consummation of their marriage did not contravene any provision of the Charter. There was nothing inherently wrong in the parties, who were about to be married, or were seriously contemplating marriage, agreeing, if they so wished, on various matters which were to take place after their marriage. By parity of reasoning, there was nothing objectionable if the parties agreed that they would cohabit as man and wife and have sexual relations only after certain customary rites were performed, provided always such customary rites were not illegal, obscene, immoral or contrary to public policy. (2) Not every pre-nuptial agreement regulating or even restricting the marital relations of the husband and wife was void and against public policy. The law did not forbid the parties to the marriage to regulate their married lives and also the incidents of the marriage, so long as such agreement did not seek to enable them to negate the marriage or resile from the marriage. (3) A pre-nuptial agreement postponing the consummation of marriage until the celebration of a Chinese customary ceremony was not void and contrary to public policy or any provision of the Women’s Charter, and accordingly, refusal by one of the parties to implement the agreement would amount to a wilful refusal to consummate the marriage.

• Non-consummation easy to allege, easy to fool the court??

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– condition that parties to go through Chinese rites before consummation was not unlawful

• Court requires proper pleadings and evidence:

• E.g pleading refusal to undergo Chinese ceremony in itself not sufficient:

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– Tan Kim Hong Doris v Freddy Gunawan [1992] SGHC 44 - Ct: what was pleaded was wilful refusal to go through Chinese ceremony (poor drafting!), not willful refusal to consummate marriage. No allegation or evidence of latter. Court said tht cannot be too lax, must plead properly. Need to amend it by saying that there was agreement that no consummation until ceremony

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• Duty not to deceive the court: Heng Joo See v Ho Pol Ling [1993] 3 SLR 850 26  granted and rescinded nullity decree  slipped out in evid tt there was sexual intercourse

o

Hard to prove non consummation! There may have been couples who deceived the court  but popular line of nullity because 1. clean record 2. divorces canot be done within 3 yrs unless prove certain facts

2. Lack of Consent i. Duress vitiating consent What amounts to duress vitiating consent? - Task: to distinguish situations where society would expect P to stand up to threat from situations where society would allow P to submit to threat. - • Singh v Kaur

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Ct [Ormrod J]: only threat to life, limb or liberty which causes will to be overborne would suffice. Boy pressurized into marriage he shld have stood up. He was threatned that wld not be given income, no van. Mere pressure. Not duress. • Hirani v Hirani 

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– Ct [Ormrod J]: uses Pao On for proposition that duress is coercion of the will, held consent vitiated.  Girl here. 19 yrs old. Wholly dependent on parents. Will overcome. • Geetha d/o Mundri v Arivananthan s/o Retnam [1992] 2 SLR 422

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– Accepted as sufficient duress: coercion of will by threat to life, limb or liberty – Here, girl was abused, scolded, slapped. Marriage void. Physical abuse here. But not clear whether hirani applies – where no physical slapping etc. Rajah JC held: • Consent for marriage, even when parents give their consent for marriage of a minor, must include the consent of the persons who is marrying. • Consent given by the petitioner was given when there was coercion of her will and fears of threats of force to her limbs and liberty. • Vitiated consent and decree of nullity ordered Facts • The petitioner Geetha was 20 years of age and lived with her parents who accepted a proposal of marriage without consulting her. When the respondent Ari came to the home, Geetha told her family that she did not like him and that she did not want to get married. Her capacity to assert her will was limited as she was dependent on her family. She went to the Registry of Marriages with her parents to give the required notice of marriage. Between 15 June 1991 and 26 June 1991, she was abused, insulted and scolded by her mother and elder brother, and slapped by her elder brother when she said she did not want to go through the solemnization of the marriage. On 26 June 1991, the marriage was solemnized. When asked by the Registrar of Marriages if she was willing to marry Ari, Geetha answered ‘Yes’ because of the presence of her father and other members of her family. Her parents gave their consent as required in cases involving minors. The parties lived separately after the solemnization as they agreed to undergo the customary marriage under Hindu rites before living as man and wife. Geetha never spoke freely to Ari during this time. On 22 October 1991, two days after she attained the age of 21, Geetha left her parents’ home, sought legal advice and made a police report that she was forced into the marriage and that she was staying with friends. The petition for nullity was filed on 16 December 1991 on the grounds that she did not freely consent to the marriage and that she did not validly consented to the marriage but was compelled to do so under duress. Held, allowing the petition: • (1) The consent of third parties was required in all cases involving minors to benefit of the minor. It assumed that a minor needed, as in other important contracts, the protection of his parent, guardian or the law. As such, it followed that it could not be given to the minor’s detriment by well-meaning parents. • (2) Parents may invoke culture and tradition, oppose a choice of a partner they thought unsuitable, persuade, influence and arrange marriages, but the consent for marriage, even when parents gave their consent for the marriage of a minor, must include the free consent of the person who was marrying.

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•

o

(3) Duress was a coercion of the will such as to vitiate consent. It must be proved that the will of one of the parties was overborne by fears of threats of force to life, limb or liberty. Here, Geetha persisted in telling her family she did not like Ari and did not wish to proceed with the marriage. When she said ‘Yes’ at the Registry of Marriages, she believed herself to be in an inescapable dilemma in that she had to choose between marriage and possible assaults and abuse. She feared being questioned by the police if she left home while she was a minor. (4) In this case, Geetha’s consent was given when there was coercion of her will and fears of threats of force to her limbs and liberty. It was a factor which vitiated her consent. The marriage was declared null and void.

– Rejected (insufficient duress where): mere mental oppression, psychological prison of family loyalty, parental concern, sibling responsibility…

Duress: Objective of subjective test? Objective test: vitiates consent where causes person with reasonable fortitude to succumb to it; Leaves out persons with more than average timidity Subjective test: [TCH prefers] question of fact – did pressure on that particular individual diminish that person’s will to give rise to consent, regardless of whether or not other people would under those circumstances “Life, limb & liberty”: Sufficient duress vitiating cosent? Disagreeable situations – should/ not constitute duress depends on circumstances of the case – possibility for very overwhelming circumstances to arise (Consider: Parents’ disapproval?) Operative duress? Fear arisen from the very person responsible for the threat – not operative Ultimately depends on circumstances, words used & pressure to bear Value judgment on legitimacy of form of pressure ii. Mistake vitiating consent o • Mistake as to:

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– Nature of ceremony of marriage – Identity of other party

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• Fraud which vitiates consent must be fraud that affects consent. • C v C [1942] NZLR 356

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– H told W he was Michael Miller, an Australian boxer and that he had ample means. He was NZlander and not boxer. Married using name Michael Miller, lived as H & W for 2 weeks, deserted W. Young lady wanted to marry ‘Michael Miller’, apparently famous boxer. Turns out that the man was neither ‘Michael Miller’ nor a boxer. Petition to court for annulment Held:

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No annulment – since mistake as to attributes. She still intended to marry that particular person – There was consent. W willing to marry man physically before her, whom she believed to be able to support her, identity of Michael Miller merely accidental. Merely that she was fooled. Expect much more caution in marriage. This was merely nistake as to his attributes and not to his identity. – E.g. of mistake of identity vitiating consent:

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– A & B have never seen each other. A proposes through correspondence. C impersonates A and marries B. B has not consented to marry C. What about Lim v Hiok in this situation? Here, there is a fundamental mistake since thought marrying a true male But query if gender is an identity of a mere attribute Mistake as to ceremony? Possible Vervaeke v Smith [1983] 1 AC 145

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Intended to create sham marriage (M1) Wife married again (M2) without first obtaining a divorce Issue of whether M2 is void, arose due to issue of succession of estate  if M2 considered bigamous, then it is void and wife without rights of succession Wife’s argument – M1 = sham marriage Held: M2 is void ab initio

• iii. Unsoundness of mind vitiating consent - • In the Estate of Park [1954] P 112

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– Test: Was P capable of understanding nature of contract of marriage? Be mentally capable of appreciating that it involves responsibilities normally attaching to marriage

3. Mental disorder such as to be unfit for marriage - • Bennett v Bennett [1969] 1 WLR 430

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– Show two things: 1. within meaning of Mental Disorders & Treatment Act 2. as a result, unfit for marriage “unfitted for marriage”: Test: Is P capable of living in a married state & of carrying out ordinary duties & obligations of Marriage? - Mental breakdowns but generally lucid and capable – stll ok

4. Venereal disease at time of marriage - AIDs ? Should be added to traditional VD. 5. Pregnant by someone else Difficulty here is with proof S114 Evidence Act: - The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. Solution: Petition before baby is born  Any child both during marriage is deemed to be their child – see the act section 114  As long as u cld have access to her at time of conception, then cannot petition anymore  So petition early Bars to nullity petitions Bars to relief where marriage is voidable 107. —(1) The court shall not, in proceedings instituted after 1st June 1981, grant a judgment of nullity on the ground that a marriage is voidable (whether the marriage took place before or after that date) if the defendant satisfies the court that — (a) the plaintiff, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the defendant as to lead the defendant reasonably to believe that he would not seek to do so; and (b) it would be unjust to the defendant to grant the judgment. (2) Without prejudice to subsection (1), the court shall not grant a judgment of nullity on the grounds mentioned in section 106 (c), (d), (e) or (f) unless it is satisfied that proceedings were instituted within 3 years from the date of the marriage. (3) Without prejudice to subsections (1) and (2), the court shall not grant a judgment of nullity on the grounds mentioned in section 106 (e) or (f) unless it is satisfied that the plaintiff was, at the time of the marriage, ignorant of the facts alleged. (4) Subsection (1) replaces, in relation to the grounds mentioned in section 106, any rule of law whereby a judgment may be refused by reason of approbation, ratification or lack of sincerity on the part of the plaintiff or on similar grounds. • i. S107(1)

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a. P, with knowledge that marriage could be avoided, led R reasonably to believe that he would not seek to avoid marriage & b. unjust to R to grant decree

• ii. Grounds c, d, e, f (consent, mental disorder, VD, pregnancy) must be instituted within 3 yrs from marriage  Not applicable to claims of annulment on the grounds of non-consummation (whether incapable, or wilful refusal)  Implies that the rest of the grounds have a limitation to claim relief • iii. Grounds e, f (VD, pregnancy) require P to be ignorant of fact at time of marriage - • Difference between Marriage annulled and terminated: - • Nullity (VOID marriages) : Defect at inception of marriage, serious; prevents formation of valid marriage - • Divorce: Supervening cause destroys marriage - • But VOIDABLE marriages more like terminated marriages:

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– Effects more similar to those of divorce – Some defects are supervening causes

NB: Query if court has a discretion to grant leave where 3 years have lapsed – position not clear (appear to be no such discretion (Manual)) Effect of MPR 2005 : - • Decree nisi = Interim judgment - • Decree nisi absolute = Final judgment - • Petitioner = Plaintiff - • Respondent = Defendant - • Answer = Defence - • Cross-Petition = Counterclaim