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)
• 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)
• 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
• 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
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.
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.
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.
(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.
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.
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.
Marriage
- • What is Marriage?
- • Marriage in the Women’s Charter:
voluntary, serious contract (s22, solemnization process required, s 9, 18 yrs)
• 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.
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
till death or divorce (subsists till then, s 7)
• permanent union
between man and woman (s 12, no homosexual marriages)
confers status (rights & obligations, s 46)
• cannot contract out of this
affected by defects (renders marriage void or voidable)
• marriage must be formed according to law – must have capacity etc, must comply with
formalities and have capacity to marry
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
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
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.
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)
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.
o • 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
o • Radwan v Radwan (No 2) [1973] Fam 35
• 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.
• Held: Intended Matrimonial Home was Egypt and Egyptian law applied. Marriage valid.
• 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”\
“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
Though the notion of a permanent home lies at the root of the concept of domicile, the two are by
no means synonymous.12
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
o Essentially there are three kinds of domicile:15 domicile of origin; domicile of choice and domicile of
dependency.
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.
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.
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
o There are four general principles relating to domicile that must be borne in mind to understand the ambits of
the concept of domicile.
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.
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.
Thirdly, an existing domicile is presumed to continue until it is proved that a new domicile has
been acquired.19
Lastly, the question of where a person is domiciled is to be determined according to the law of the
forum.
VOID MARRIAGES
Included the word ‘only’ – shows intention to create an exhaustive list of grounds for a void marriage
2. 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.
3. Monogamy
- • Ss4, 5, 6, 11
- • 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
*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.
FIRST SCHEDULE
Section 10
8. Marriages under customary or religious rites (barring Muslims) – Sections 14, 16, 17
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.
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
- 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
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.
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.
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.
Section 111
(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
o 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
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
– condition that parties to go through Chinese rites before consummation was not unlawful
– 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.
- • 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
o – 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
• i. S107(1)
- 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
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))