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Family Law Exam Notes Page 1 of 18

VOID AND VOIDABLE MARRIAGES

VOID AND VOIDABLE MARRIAGES

4 AREAS OF FAMILY PRACTICE:


 Law of Nullity
 Divorce
 Adoption & Custody (Children)
 Financial Provision (Maintenance & Division of Family Assets)

1. LAW OF NULLITY

1.1 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
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VOID AND VOIDABLE MARRIAGES

- Evidential rule in Section 3(5) Women’s Charter – citizens of


Singapore are deemed, until the contrary is proved, to be
domiciled in Singapore
- Domicile of origin v.s. domicile of dependence v.s. domicile of
choice
- 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, 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.

 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

1.3 Marriage in the Women’s Charter


 Voluntary, serious contract (s 22: solemnisation process
required; s 9: 18 years and above)
 Monogamous (long title to Women’s Charter: ss 4-6)
 Subsists till death or divorce (s 7)
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VOID AND VOIDABLE MARRIAGES

 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. 2)
 Test asks where the parties intend to set up their
matrimonial home, and apply the capacity laws in
that country
 Sottomayer v. 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.
o H (domiciled in Eng) married first cousin W (domiciled in
Portugal) in Eng. Portugese law prohibited first cousins
from marrying unless there was Papal dispensation
o Held:
 Marriage was valid. 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,
the foreign incapacity can be disregarded
 If a S’porean marries a Portuguese in Singapore and they are
cousins, because under the Women’s Charter cousins marrying
is not prohibited, even if cousins marrying is prohibited in
Portugal, the marriage is still valid
o One of the parties must be domiciled in Singapore
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VOID AND VOIDABLE MARRIAGES

o The foreign rule must have no counterpart in Singapore


law
o Marriage must be celebrated in Singapore

1.4 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

1.5 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
- 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

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.
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VOID AND VOIDABLE MARRIAGES

 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

(a) Effect of judgment of nullity:

Section 110

(1) If the court finds that the plaintiff’s case has been proved, it shall
grant a judgment of nullity.

 Judgment 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 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, and the
marriage shall, notwithstanding the judgment, be treated as if it had
existed up to that time.

 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, 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.

 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

(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, at the date of
such void marriage, both or either of the parties reasonably
believed that the marriage was valid.
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VOID AND VOIDABLE MARRIAGES

 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

1.6 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; and
(b) by the Registrar or a person who has been granted a licence to
solemnise marriages.

(2) Every marriage shall be solemnised in the presence of at least 2


credible witnesses.

(3) 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.

 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)

Marriages under customary or religious rites (barring Muslims) –


Sections 14 & 15
Before such a marriage can be so contracted –
i. a notice of marriage must be filed
ii. a marriage licence must be obtained

1.7 Void Marriage – Grounds


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VOID AND VOIDABLE MARRIAGES

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), 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

 The grounds –

i. Muslim marriage under the Charter – section 3(4)

(4) No marriage between persons who are Muslims shall be


solemnised or registered under this Act.

- Marriage contracted under the Charter was a marriage


where both parties are Muslims

ii. Polygamous marriages – section 5

(1) Every marriage contracted in Singapore or elsewhere in


contravention of section 4 shall be void.

- 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

iii. 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.

- Generally, age of consent for marriage in Singapore = 18 years


- 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)
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VOID AND VOIDABLE MARRIAGES

- 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

iv. 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, or between a woman and any of the persons
mentioned in the second column of that Schedule, shall be void.

- 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.

v. Avoidance of marriages by subsisting prior marriage


– Section 11

A marriage solemnised 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.

*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.

vi. Marriage between persons of the same sex – Section


12
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VOID AND VOIDABLE MARRIAGES

(1) A marriage solemnised in Singapore or elsewhere between


persons who, at the date of the marriage, are not respectively male
and female shall be void.

- 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?
- 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

Lim Ying v Eric Hiok [1992] 1 SLR 184


*Held:
Marriage under the Charter had to be a marriage between a male and
a female respectively. Gender re-assignees excluded.

- But legislation has altered the position today: section 12(2), (3)

(2) It is hereby declared that, subject to sections 5, 9, 10, 11 and 22, 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.

(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.

- In Lim v Hiok, the gender in the IC has no effect


- Under section 12(3), 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

(4) 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.

vii. Marriage solemnised in Singapore was not


solemnised on the authority of a valid marriage licence –
Section 22
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VOID AND VOIDABLE MARRIAGES

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))
(see above “Valid Marriages”)

viii. Party lacks capacity to marry, or invalid by the law of


the place where it was celebrated – Section 105(b)

1.8 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, 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. Non consummation owing to incapacity
2. Non consummation owing to wilful refusal
3. Lack of consent
4. Mental disorder
5. VD
6. Pregnant by another man
 For (5) and (6), 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.

i. Incapacity to consummate

(a) that the marriage has not been consummated owing to the
incapacity of either party to consummate it;

- Absence of natural sexual relations


- Consummation:
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VOID AND VOIDABLE MARRIAGES

- L v L: sexual intercourse which is ordinary and complete


sexual intercourse
- Marriage is consummated by one act of complete sexual
intercourse after solemnisation
- Irrelevant factors: pre-marital sex, ability to procreate,
state of mind
- 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
- 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, 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
• 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?


- 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. Wilful refusal to consummate

(b) that the marriage has not been consummated owing to the wilful
refusal of the respondent to consummate it;

(Horton v Horton [1974] 2 All ER 871)


- Decision to refuse without just cause

*When is it justifiable to refuse?


- Note difference between civil marriage & customary/ religious
ceremony
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VOID AND VOIDABLE MARRIAGES

- 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.

Tan Siew Choon v Tan Kai Ho [1973] 2 MLJ 90


Facts: parties agreed that there would be no consummation until
Chinese ceremony. H refused to proceed with Chinese ceremony

Choor Sing J. held:


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.

Cf. Ng Bee Hoon v Tan Heok Boon [1992] 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.
(2) Considered a pre-marital agreement to postpone
cohabitation until the celebration of the Chinese customary rites
to be such an agreement.
(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, 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).
Followed by Rajah JC in Kwong Sin Hwa v Lau Lee Yen (Divorce
No. 332/92)

Kwong Sin Hwa v. Lau Lee Yen [1993] SLR (CA)


Facts: Parties had married at ROM. Prior to marriage, had agreed that they
would not consummate the marriage until after the Chinese customary rites.
Respt then subsequently refused to go through with the Chinese ceremony.
Applt argued this was wilful refusal to consummate marriage.
Held:
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VOID AND VOIDABLE MARRIAGES

 Not every pre-nuptial agreement regulating or even restricting the


marital relations of husband and wife is void as against public policy.
 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.
 The latter if enforced would make a mockery of the law regulating
marriages, and is contrary to public policy.
 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.
 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, and
accordingly, refusal by one of the parties to implement the agreement
would amount to a wilful refusal to consummate the marriage.
 the law does not forbid the parties to the marriage to regulate their
married lives and also the incidents of the marriage, 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.
 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.

Tang Yuen Fong v Poh Wee Lee Jerry [1995] 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, 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.

Cf.,
Tan Kim Hong Doris v Freddy Gunawan
Court: what was pleaded was wilful refusal to go through Chinese ceremony,
not wilful refusal to consummate marriage. There is no allegation or evidence
of the latter

Therefore, pleading refusal to undergo Chinese ceremony in itself is not


sufficient

Duty not to deceive the court: Heng Joo See v Ho Pol Ling
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VOID AND VOIDABLE MARRIAGES

iii. No valid consent to marry

(c) that either party to the marriage did not validly consent to it, whether
in the consequence of duress, mistake, unsoundness of mind or
otherwise;

Geetha d/o Mundri v Arivananthan s/o Retnam [1992] 2 SLR


422
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

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?
- Only thread to life, limb or liberty which causes will to be
overborne would suffice: Singh v Kaur
- 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
- 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

Geetha d/o Mundri v. Arivanathan s/o Retnam


Facts: Petitioner was 20 years old when her parents married her off to Respt
without asking her. Applt was abused, scolded and insulted by her brothers
and family members, and slapped by them when she said she didn’t want to
go through with the marriage. On the day of the solemnization, she answered
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VOID AND VOIDABLE MARRIAGES

yes, when asked if she was there of her own free will, because her family
members were there. After the solemnization of the marriage, the parties not
only lived apart, but the petitioner also refused to talk to the respondent in the
manner expected. Once she got to 21, she left her parent’s home and sought
legal advice, and wanted to nullify the marriage.
Held:
 The consent of third parties required in all cases involving minors is
intended for the benefit of the minor. It assumes that a minor needs, as
in other important contracts, the protection of his parent, guardian or
the law.
 Therefore, it follows that it cannot be given to the detriment of the minor
by well-meaning parents
 Parents may invoke culture and tradition, oppose a choice of a partner
they think unsuitable, persuade, influence and arrange marriages, but
the consent for marriage, even when parents give their consent for the
marriage of a minor, must include the free consent of the person who is
marrying.
 Duress is a coercion of the will so 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.
 When the petitioner stood before the Registrar of Marriages, she
believed herself to be in an inescapable dilemma.
 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.

(Accepted as sufficient duress: coercion of will by threat to life)

Mistake:
- Very technical at law
- Mistake as to identity, not attributes, will vitiate consent
- Eg., A and B have never seen each other. A proposes
through correspondence. C impersonates A and marries B.
B has not consented to marry C
- C v C [1942] NZLR 356

C v C [1942] NZLR 356


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:
No annulment – since mistake as to attributes. She still intended to
marry that particular person
- W willing to marry man physically before her, whom she
believed to be able to support her. The identity of Michael Miller
was merely accidental

*Mistake as to ceremony? Possible


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Vervaeke v Smith [1983] 1 AC 145


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

Unsoundness of Mind: (as with criminal law)


- May vitiate consent
- In the Estate of Park
- Test: Was P capable of understanding the nature of the
contract of marriage?
- Be mentally capable of appreciating that it involves
responsibilities normally attaching to marriage

iv. Mental disorder/ unfit for marriage

(d) that at the time of the marriage either party, though capable of
giving a valid consent, was suffering (whether continuously or
intermittently) from mental disorder within the meaning of the
Mental Disorders and Treatment Act (Cap. 178) of such kind or to
such an extent as to be unfit for marriage;

- See Mental Disorders and Treatment Act definition


- Cf. Unsoundness of mind vitiating consent
- Under (d), assumes you can validly consent, but mental state
makes you unfit for marriage
- Bennett v Bennett
- Show 2 things:
- (1) Within meaning of Mental Disorders &
Treatment Act
- (2) As a result, unfit for marriage
- ‘Unfit for marriage’ – Test: is P capable of living in a married
state and of carrying out ordinary duties and obligations of
marriage?

v. Venereal disease

(e) that at the time of the marriage the respondent was suffering from
venereal disease in a communicable form;
Family Law Exam Notes Page 17 of 18
VOID AND VOIDABLE MARRIAGES

vi. Pregnancy per alium

(f) that at the time of the marriage the respondent was pregnant by
some person other than the petitioner.

- 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, 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 begotten

- Solution: make application for annulment before the baby is born

1.9 Bars to Relief – Voidable marriage

Section 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 courts 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.

 Similar workings to ‘estoppel’


 Unjust to go back on representation
 D v D [1979] 3 All ER 337; Harthan v Harthan [1948] 2 All ER
639; Tan Lan Eng v Lim Swee Eng [1994] 1 SLR 65

(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 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
Family Law Exam Notes Page 18 of 18
VOID AND VOIDABLE MARRIAGES

(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 petitioner was, at the time of
the marriage, ignorant of the facts alleged.

 Reference only to grounds of venereal disease or pregnancy by


some person other than the petitioner
 Ie. 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:


- Nulllity (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:
o Effects more similar to those of divorce
o Some defects are supervening causes

Effect of MPR 2005


- Decree nisi = interim judgment
- Decree nisi absolute = final judgment
- Petitioner = plaintiff
- Respondent = defendant
- Answer = defence
- Cross-petition = counterclaim