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VOID AND VOIDABLE MARRIAGES
4 AREAS OF FAMILY PRACTICE: Law of Nullity Divorce Adoption & Custody (Children) Financial Provision (Maintenance & Division of Family Assets) 1. 1.1 LAW OF NULLITY Statutory Provisions Women’s Charter 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: introduced common marriage system and abolished customary marriages 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 Administration of Muslim Law Act (AMLA) Guardianship of Infants Act Adoption Act Matrimonial Proceedings Rules
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. 1.2 Application of Women’s Charter Section 3 (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
domicile of choice . until the contrary is proved.Part X (Divorce – AMLA with own separate provisions) .Domicile of choice acquired by: Residence Intention to live there indefinitely Joseph Wong Phui Lun v Year Loon Goit (2) Parts II to VI and Part X and sections 181 and 182 shall not apply to any person who is married under.Parts VII & VIII (Customary marriages) (3) Notwithstanding subsection (2). serious contract (s 22: solemnisation process required. sections 4. the provisions of the Muslim law or of any written law in Singapore or in Malaysia providing for the registration of Muslim marriages. or to any marriage solemnised or registered under. 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. s 9: 18 years and above) Monogamous (long title to Women’s Charter: ss 4-6) Subsists till death or divorce (s 7) . cannot be governed by the Charter But if only 1 of the parties is Muslim. possible to be registered under the Charter 1.Part VI (How marriages are formed) . (4) No marriage between persons who are Muslims shall be solemnised or registered under this Act. Person already married under the Charter cannot come under Muslim law later on.Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 2 of 18 - Evidential rule in Section 3(5) Women’s Charter – citizens of Singapore are deemed. to be domiciled in Singapore Domicile of origin v. Certain parts of the Charter are not applicable to persons married under Muslim law Example: .s.3 Marriage in the Women’s Charter Voluntary. domicile of dependence v. If 2 Muslim parties marry.s.
the foreign incapacity can be disregarded If a S’porean marries a Portuguese in Singapore and they are cousins. o H (domiciled in Eng) married first cousin W (domiciled in Portugal) in Eng.Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 3 of 18 Between man and woman (s 12: no homosexual marriages) Confers status (s 46 rights and obligations) Affected by defects (renders marriage void or voidable) Formation of marriage 2 aspects to validity of marriage: o Formal validity: comply with form/procedures o Essential validity: parties must have capacity to marry each other Conflict of laws apply where foreign elements exist (party foreign or marry in foreign jurisdiction) Breach of formal or capacity provisions: void marriage Dual domicile rule In re Maria Huberdina Hertogh Marriage of Maria and Muslim husband void as Dutch law prohibited parties under 16 to marry without Queen’s dispensation (Maria had a Dutch domicile) Exceptions to the dual domicile test Intended matrimonial home rule o Radwan v. Radwan (No. even if cousins marrying is prohibited in Portugal. the marriage is still valid o One of the parties must be domiciled in Singapore . De Barros o The validity of a marriage celebrated in Country A between persons one of whom is domiciled in Country A and the other a foreign domicile is not affected by any incapacity arising from the foreign domicile which has no equivalent in Country A. because under the Women’s Charter cousins marrying is not prohibited. and apply the capacity laws in that country Sottomayer v. Injustice might be caused to own subjects if foreign prohibition were imposed o The accepted exception was that where the marriage was in the forum and one party was domiciled in the forum. 2) Test asks where the parties intend to set up their matrimonial home. Portugese law prohibited first cousins from marrying unless there was Papal dispensation o Held: Marriage was valid.
5 .Thus. the annulment operates retrospectively Women’s Charter Petition for nullity of marriage: Section 104 Any husband or wife may file a writ claiming for a judgment of nullity in respect of his or her marriage. 1. there would be no defendant!) .Thus.Eg. Voidable Common law (a) Void: . issue of validity can be put in issue by an interested person even after the death of parties to the marriage .Only can be annulled during the lifetime of both parties . cannot be put in issue after 1 of the parties passes away (since then.They are regarded as the only persons with locus standi to put this in issue before the Courts .Complete nullity .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  1 All ER 56) .However if avoided during the lifetime of both parties.All void marriages are void ab initio – regarded as never having taken place .Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 4 of 18 o The foreign rule must have no counterpart in Singapore law o Marriage must be celebrated in Singapore 1. Action by brother regarding legitimacy of children (affects succession to deceased’s estate) (b) Voidable: .4 Common law rules as to conflict of law issues Formalities governed by law of the place where marriage was solemnized Capacity of parties governed by the law of the domicile of the parties Arpinya Rongchotiawattan v Wee Oh Keng Formal validity: governed by law of place of celebration of marriage Essential validity governed by ante-nuptial domiciliary laws of parties Void vs.Marriage regarded as valid until annulled .
only persons with the locus standi. any child who would have been the legitimate child of the parties to the marriage if it had been dissolved. notwithstanding the annulment. and can be so treated by both parties without the necessity of any judgment annulling it. (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. it shall grant a judgment of nullity. to bring proceedings for relief or declaration that marriage. are husband & wife (a) Effect of judgment of nullity: Section 110 (1) If the court finds that the plaintiff’s case has been proved. regardless of whether void or voidable. 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 (b) Legitimacy of children of annulled marriages: Section 111 (1) Where a marriage is annulled. . instead of being annulled. at the date of the judgment shall be deemed to be their legitimate child. and the marriage shall.Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 5 of 18 Suggests that under the Charter. both or either of the parties reasonably believed that the marriage was valid. presume that child born to a voidable marriage remains legitimate notwithstanding avoidance to marriage at a subsequent point in time (2) The child of a void marriage born on or after 2 nd May 1975 shall be deemed to be the legitimate child of his parents if. notwithstanding the judgment. at the date of such void marriage. a void marriage is one that will be regarded as never having taken place. Judgment of nullity of voidable marriages only Since. Presume reference here made to voidable marriages (see (2) below) Thus. be treated as if it had existed up to that time.
renders the marriage void. 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.7 Void Marriage – Grounds . (2) Every marriage shall be solemnised in the presence of at least 2 credible witnesses. 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.6 Requirements of a Valid marriage Section 22 (1) Every marriage solemnised in Singapore shall be void unless it is solemnised – (a) on the authority of a valid marriage licence issued by the Registrar or a valid special marriage licence granted by the Minister. etc. a notice of marriage must be filed ii.Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 6 of 18 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 1. and (b) by the Registrar or a person who has been granted a licence to solemnise marriages. (Better view: they do not render it void) (3) Marriages under customary or religious rites (barring Muslims) – Sections 14 & 15 Before such a marriage can be so contracted – i. Justices of the Peace. No marriage shall be solemnised unless the person solemnising the marriage is satisfied that both the parties to the marriage freely consent to the marriage. a marriage licence must be obtained 1.
or (b) where the marriage was celebrated outside Singapore. Included the word ‘only’ – shows intention to create an exhaustive list of grounds for a void marriage The grounds – i. 11. shall be incapable of contracting a valid marriage with any other person Indicates that prior to 15th September 1961. - Generally. that the marriage is invalid – (i) for lack of capacity. Muslim marriage under the Charter – section 3(4) (4) No marriage between persons who are Muslims shall be solemnised or registered under this Act. 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. person applying for marriage licence must file/ affirm statutory declaration.Marriage contracted under the Charter was a marriage where both parties are Muslims ii. must apply to Minister for “Special Marriage Licence” Under Section 17. 12 and 22. age of consent for marriage in Singapore = 18 years Below 18. 10. 9. 5. Polygamous marriages – section 5 or elsewhere in (1) Every marriage contracted in Singapore contravention of section 4 shall be void. or (ii) by the law of the place in which it was celebrated. polygamy was accepted iii. - - If married already. and must be of 21 years of age or above (inter alia) . .Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 7 of 18 Section 105 – Grounds on which marriage is void 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). Party under minimum age for marriage – section 9 A marriage solemnised in Singapore or elsewhere between persons either of whom is below the age of 18 years shall be void unless the solemnisation of the marriage was authorised by a special marriage licence granted by the Minister under section 21.
thus marriage is void . it is void under section 11. B is already married and B’s personal law allows for > 1 wife.False declaration does not affect the underlying validity of the marriage in question iv.Family Law Exam Notes VOID AND VOIDABLE MARRIAGES - Page 8 of 18 - Thus if the party is between 18 and 21 years. However.But if > 18 years.Since section 9 explicitly renders the marriage void where 1 of the parties is < 18 years. although it is A’s first marriage. 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.Example – A (Singaporean) has never been married. - - 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. shall be void. marriage is valid. custom or usage to any other person shall be void. Avoidance of marriages by subsisting prior marriage – Section 11 v. consent of parent(s) or guardian required If the marriage licence is issued. The Charter does not apply to B. *Why necessary since with section 5? . A now wants to marry B (non-Singaporean domiciliary) outside of Singapore. Thus. Marriages within prohibited degrees – Section 10 (1) A marriage is solemnised in Singapore or elsewhere between a man and any of the persons mentioned in the first column of the First Schedule. religion. or between a woman and any of the persons mentioned in the second column of that Schedule. A enters into a circumstance where B is already married. the marriage must take place within 1 month or the licence becomes void. A marriage solemnised in Singapore or elsewhere between persons either of whom is at the date of the marriage married under any law. Marriage between persons of the same sex – Section 12 . vi. since the Charter governs A as Singapore domiciliary. but false declaration will amount to criminal offence . (Section 21(3)) *What if a false declaration is made and the licence is in fact obtained? .Covers specific situations not covered by section 5 .
. Gender re-assignees excluded. - But legislation has altered the position today: section 12(2). the IC becomes prima facie evidence of gender (notwithstanding different gender in Birth Certificate) Section 12(4) is a saving provision for Lim v Hiok decisions Nothing in subsection (2) shall validate any such marriage which had been declared by the High Court before 1 st May 1997 to be null and void on the ground that the parties were of the same sex. 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. as a person’s gender is fixed at birth Lim Ying v Eric Hiok  1 SLR 184 *Held: Marriage under the Charter had to be a marriage between a male and a female respectively.Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 9 of 18 (1) A marriage solemnised in Singapore or elsewhere between persons who. 9. (3) (2) It is hereby declared that. the gender in the IC has no effect Under section 12(3). are not respectively male and female shall be void.K S Rajah JC in Lim v Hiok  1 SLR 184 held that gender re-assignment surgery is ineffective. at the date of the marriage. 201) shall be prima facie evidence of the sex of the party. 10. 11 and 22. 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? . - (4) In Lim v Hiok. a marriage solemnised 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. subject to sections 5. (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. Marriage solemnised in Singapore was not solemnised on the authority of a valid marriage licence – Section 22 vii.
Non consummation owing to incapacity 2. 1.Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 10 of 18 Licence must be issued by . Mental disorder 5. or invalid by the law of the place where it was celebrated – Section 105(b) viii. and . Non consummation owing to wilful refusal 3. Lack of consent 4. Pregnant by another man For (5) and (6).the Registrar of a valid special marriage licence granted by the Minister. VD 6.by the Registrar or a person who has been granted a licence to solemnise marriages by the Registrar (section 22(1)) (see above “Valid Marriages”) Party lacks capacity to marry. the petitioner has to be ignorant of these facts at the time of the marriage General bar to annulment o Section 107(1) WCh: where the Petitioner led the Respt to believe that he/she would not seek to annul marriage and it would be unjust to Respt to do so.8 Voidable Marriage – Grounds Section 106 A marriage which takes place after 1st June 1981 shall be voidable on the following grounds only… Voidable marriages are valid until annulled by judgment of nullity. Incapacity to consummate (a) that the marriage has not been consummated owing to the incapacity of either party to consummate it. i. Absence of natural sexual relations Consummation: . whereas void marriages (breach of formalities or lack of capacity) are void ab initio “Only”: suggests that the list of grounds on which marriage is voidable is exhaustive The grounds 1.
Medical evidence may be used as proof See Matrimonial Proceedings Rules (MPR) – on procedure 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. or where it is curable. not only impotence Cases show disability amounts to a “repugnant aversion to sexual relations”. ROC is ousted to that extent.Marriage is consummated by one act of complete sexual intercourse after solemnisation .Family Law Exam Notes VOID AND VOIDABLE MARRIAGES - Page 11 of 18 - - L v L: sexual intercourse which is ordinary and complete sexual intercourse .But probably arguable that it would not render marriage voidable under (a) since with section 12 ii. But where MPR rule does not exist. state of mind Note: “either” party (Baxter v Baxter  1 All ER 387) Incapacity includes physical and/or psychological disability. not natural – dicta in Corbet v Corbet . must link to ROC for relevant power • Rule 40(1) MPR: Plaintiff shall apply to the Registrar for the determination of the question as to whether Medical Inspectors should be appointed to examine the parties *What is considered “natural” sexual relations? . ability to procreate. (Horton v Horton  2 All ER 871) .Reconstructed organ regarded artificial. requires an operation with a material element of risk involved . prospective litigant asks for Third Party Discovery – under MPR.Irrelevant factors: pre-marital sex. recognised medically Physical disability: incurable. Wilful refusal to consummate (b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it.Note difference between civil marriage & customary/ religious ceremony .Decision to refuse without just cause *When is it justifiable to refuse? . ROC may well still apply • Eg. no such power.
(2) Considered a pre-marital agreement to postpone cohabitation until the celebration of the Chinese customary rites to be such an agreement. Followed by Rajah JC in Kwong Sin Hwa v Lau Lee Yen (Divorce No. 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. Ng Bee Hoon v Tan Heok Boon  2 SLR 112 Coomaraswamy J. held: (1) A pre-marital agreement which has the effect of limiting the full effects of marriage is void as against public policy. 332/92) Kwong Sin Hwa v. and yet be able to say that because the customary ceremony had not been performed. held: The respondent. Held: . they are not married (cannot live together or have sexual relations). .After solemnisation at the Registry. was in fact refusing to consummate the marriage as the parties had agreed that the customary rites were a precondition to marital cohabitation.Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 12 of 18 - Reason for refusal to consummate must be ‘reasonable’/ ‘proper’ (eg. prior to the solemnisation of the marriage at the Civil Marriage Registry. H refused to proceed with Chinese ceremony Choor Sing J. the respondent will then refuse to go through the customary ceremony despite requests by the petitioner to do so. to postpone the consummation of the marriage until the Chinese customary marriage rites have bee performed. Respt then subsequently refused to go through with the Chinese ceremony. had agreed that they would not consummate the marriage until after the Chinese customary rites. Prior to marriage. Lau Lee Yen  SLR (CA) Facts: Parties had married at ROM. Cf. (3) Giving effect to such an agreement would make a mockery of the law of marriage in Singapore – effect of allowing parties to consider themselves. Tan Siew Choon v Tan Kai Ho  2 MLJ 90 Facts: parties agreed that there would be no consummation until Chinese ceremony. Applt argued this was wilful refusal to consummate marriage.Petitioner & respondent will agree. .
Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 13 of 18 Not every pre-nuptial agreement regulating or even restricting the marital relations of husband and wife is void as against public policy. It is not wrong for the court to give recognition to such agreement and to hold the party in default as having in effect wilfully refused to consummate the marriage. A pre-nuptial agreement postponing the consummation of marriage until the celebration of a Chinese customary ceremony is not void and contrary to public policy or any provision of the Women’s Charter. 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. There is no allegation or evidence of the latter Therefore. not wilful refusal to consummate marriage.. the law does not forbid the parties to the marriage to regulate their married lives and also the incidents of the marriage. refusal by one of the parties to implement the agreement would amount to a wilful refusal to consummate the marriage. A pre-nuptial agreement to postpone consummation of marriage and the other incidents of marriage until the fulfilment of a later condition must be distinguished from one which enables the parties to evade their marital obligations altogether. 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. pleading refusal to undergo Chinese ceremony in itself is not sufficient Duty not to deceive the court: Heng Joo See v Ho Pol Ling . Tan Kim Hong Doris v Freddy Gunawan Court: what was pleaded was wilful refusal to go through Chinese ceremony. and accordingly. Cf. Tang Yuen Fong v Poh Wee Lee Jerry  3 SLR 359 Selvam J held: (1) Petition dismissed – Court must not act as a rubber stamp and grant the petition as a matter of course (2) For petition on the ground of wilful refusal to consummate. Here. The former can be properly upheld so long as it does not seek to enable the parties or either of them to negate or resile from their marriage. and is contrary to public policy. so long as such agreement does not seek to enable them to negate the marriage or resile from the marriage as the Brodie pre-nuptial agreement did. The latter if enforced would make a mockery of the law regulating marriages.
she answered . limb or liberty which causes will to be overborne would suffice: Singh v Kaur . even when parents give their consent for marriage of a minor. must include the consent of the persons who is marrying. mistake. unsoundness of mind or otherwise. Applt was abused.Objective test: vitiates consent where causes person with reasonable fortitude to succumb to it. Geetha d/o Mundri v Arivananthan s/o Retnam  2 SLR 422 Rajah JC held: . scolded and insulted by her brothers and family members. No valid consent to marry (c) that either party to the marriage did not validly consent to it.Value judgment on legitimacy of form of pressure Geetha d/o Mundri v.Task is to distinguish situations where society would expect P to stand up to threat from situations where society would allow P to submit to threat . .Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 14 of 18 iii. regardless of whether or not other people would under those circumstances . whether in the consequence of duress.Fear arisen from the very person responsible for the threat – not operative .Ultimately depends on circumstances.“Life. limb & liberty”: Sufficient duress vitiating cosent? .Subjective test: [TCH prefers] question of fact – did pressure on that particular individual diminish that person’s will to give rise to consent. Arivanathan s/o Retnam Facts: Petitioner was 20 years old when her parents married her off to Respt without asking her.Only thread to life.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. and slapped by them when she said she didn’t want to go through with the marriage. Leaves out persons with more than average timidity . .Vitiated consent and decree of nullity ordered Duress: *Objective of subjective test? . words used & pressure to bear .Disagreeable situations – should/ not constitute duress depends on circumstances of the case – possibility for very overwhelming circumstances to arise (Consider: Parents’ disapproval?) *Operative duress? .Consent for marriage. On the day of the solemnization.
she believed herself to be in an inescapable dilemma. even when parents give their consent for the marriage of a minor. apparently famous boxer Turns out that the man was neither ‘Michael Miller’ nor a boxer Petition to court for annulment Held: No annulment – since mistake as to attributes. The identity of Michael Miller was merely accidental *Mistake as to ceremony? Possible . she left her parent’s home and sought legal advice. the parties not only lived apart. as in other important contracts. When the petitioner stood before the Registrar of Marriages. whom she believed to be able to support her. C impersonates A and marries B. it follows that it cannot be given to the detriment of the minor by well-meaning parents Parents may invoke culture and tradition. the protection of his parent. B has not consented to marry C ..W willing to marry man physically before her. It must be proved that the will of one of the parties was overborne by fears of threats of force to life. influence and arrange marriages.Mistake as to identity. Held: The consent of third parties required in all cases involving minors is intended for the benefit of the minor. Duress is a coercion of the will so as to vitiate consent. but the consent for marriage. when asked if she was there of her own free will. (Accepted as sufficient duress: coercion of will by threat to life) Mistake: .Very technical at law . Once she got to 21. guardian or the law. A and B have never seen each other. but the petitioner also refused to talk to the respondent in the manner expected.Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 15 of 18 yes. It assumes that a minor needs. Therefore. She had to choose between marriage or possible assaults and abuse which would make it impossible for her to live in the family home Her protests were either ignored or rewarded with slaps. will vitiate consent . A proposes through correspondence. not attributes. and wanted to nullify the marriage. limb or liberty.Eg.C v C  NZLR 356 C v C  NZLR 356 Young lady wanted to marry ‘Michael Miller’. oppose a choice of a partner they think unsuitable. persuade. She still intended to marry that particular person . because her family members were there. must include the free consent of the person who is marrying. After the solemnization of the marriage.
In the Estate of Park . but mental state makes you unfit for marriage .Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 16 of 18 Vervaeke v Smith  1 AC 145 Intended to create sham marriage (M1) Wife married again (M2) without first obtaining a divorce Issue of whether M2 is void. See Mental Disorders and Treatment Act definition Cf. Venereal disease (e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form.‘Unfit for marriage’ – Test: is P capable of living in a married state and of carrying out ordinary duties and obligations of marriage? v. Mental disorder/ unfit for marriage (d) that at the time of the marriage either party.Show 2 things: (1) Within meaning of Mental Disorders & Treatment Act (2) As a result. though capable of giving a valid consent.May vitiate consent .Test: Was P capable of understanding the nature of the contract of marriage? .Bennett v Bennett . 178) of such kind or to such an extent as to be unfit for marriage. was suffering (whether continuously or intermittently) from mental disorder within the meaning of the Mental Disorders and Treatment Act (Cap. Unsoundness of mind vitiating consent Under (d). arose due to issue of succession of estate if M2 considered bigamous. . unfit for marriage .Be mentally capable of appreciating that it involves responsibilities normally attaching to marriage iv. assumes you can validly consent. then it is void and wife without rights of succession Wife’s argument – M1 = sham marriage Held: M2 is void ab initio Unsoundness of Mind: (as with criminal law) .
or wilful refusal) Implies that the rest of the grounds have a limitation to claim relief .Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 17 of 18 vi. or within 280 days after its dissolution. unless it can be shown that the parties to the marriage had no access to each other at any time when he could have begotten Solution: make application for annulment before the baby is born - 1. 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 courts that – (a) the plaintiff. and (b) it would be unjust to the defendant to grant the judgment. Not applicable to claims of annulment on the grounds of nonconsummation (whether incapable. shall be conclusive proof that he is the legitimate son of that man. (e) or (f) unless it is satisfied that proceedings were instituted within 3 years from the date of marriage. Difficulty here is with proof S 114 EA: the fact that any person was born during the continuance of a valid marriage between his mother and any man. (d). in proceedings instituted after 1st June 1981.9 Bars to Relief – Voidable marriage Section 107 (1) The Court shall not. the mother remaining unmarried. so conducted himself in relation to the defendant as to lead the defendant reasonably to believe that he would not seek to do so. Similar workings to ‘estoppel’ Unjust to go back on representation D v D  3 All ER 337. with knowledge that it was open to him to have the marriage avoided. Tan Lan Eng v Lim Swee Eng  1 SLR 65 (2) Without prejudice to subsection (1). Harthan v Harthan  2 All ER 639. Pregnancy per alium (f) that at the time of the marriage the respondent was pregnant by some person other than the petitioner. the court shall not grant a judgment of nullity on the grounds mentioned in section 106 (c).
only if petitioner was unaware of the presence of venereal disease or pregnancy of the respondent at the time of marriage 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)) Difference between marriage annulled and terminated: .Respondent = defendant .Decree nisi = interim judgment . 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 petitioner was.Decree nisi absolute = final judgment . ignorant of the facts alleged. at the time of the marriage.But voidable marriages more like terminated marriages: o Effects more similar to those of divorce o Some defects are supervening causes Effect of MPR 2005 .Cross-petition = counterclaim .Answer = defence .Nulllity (void marriages): Defect at inception of marriage.Family Law Exam Notes VOID AND VOIDABLE MARRIAGES Page 18 of 18 (3) Without prejudice to subsections (1) and (2). Reference only to grounds of venereal disease or pregnancy by some person other than the petitioner Ie. serious.Divorce: Supervening cause destroys marriage .Petitioner = plaintiff . prevents formation of valid marriage .
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