Plan:

Annulment = void or voidable marriage

Void as shown in Tan Ah Thee only limited to grounds under s105(exhaustive)

Voidable- show never consummate marriage 106(a) (b)

Legal memo

Step 1:Understand the question

Step 2: Read the facts

Step 3: Conduct your research

Step 4: Review the law

False oath, etc., for procuring marriage

37. Any person who for the purpose of procuring any marriage
under this Act intentionally makes any false declaration or signs any
false notice or certificate required by this Act shall be guilty of an
offence and shall be liable on conviction to a fine not exceeding
$3,000 or to imprisonment for a term not exceeding 3 years or to both.
False allegation in caveat
38.—(1) Any person who enters a caveat against the issue by the
Registrar of a marriage licence and makes any false representation in
or in support of the caveat knowing or believing such representation to
be false or not having reason to believe it to be true shall be guilty of
an offence and shall be liable on conviction to a fine not exceeding
$3,000 or to imprisonment for a term not exceeding 3 years or to both.
(2) Any person who enters a caveat against the issue of a marriage
licence and pretends or falsely represents himself to be a person whose
consent to the marriage is required by law knowing or believing such
pretence or representation to be false or not believing it to be true shall
be guilty of an offence and shall be liable on conviction to a fine not
exceeding $3,000 or to imprisonment for a term not exceeding 3 years
or to both.
Section 48 Conciliation officers
Section 49 Duty of judge to consider possibility of reconciliation
Section 50 Court may refer parties for mediation or to attend counselling
Part X Divorce
Section 94:Restriction of filing of writ for divorce during first 3 years of marriage

(2) The court may, upon application being made in accordance with
the Rules of Court, allow a writ to be filed before 3 years have passed
on the ground that the case is one of exceptional hardship suffered by
the plaintiff or of exceptional depravity on the part of the defendant,
but if it appears to the court at the hearing of the proceedings that the
plaintiff obtained leave to file the writ by any misrepresentation or
concealment of the nature of the case, the court may, if it grants an
interim judgment, do so subject to the condition that no application to
make the judgment final shall be made until after the expiration of 3
years from the date of the marriage, or may dismiss the proceedings
without prejudice to any proceedings which may be brought after the
expiration of the said 3 years upon the same, or substantially the same,
facts as those proved in support of the proceedings so dismissed.

Section 95: Irretrievable breakdown of marriage to be sole ground for

Divorce

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.

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.
Step 5: review the issue & the facts and apply the law
Step 6: draft an outline
Annulment of marriage:legal procedure that dissolves a marriage entirely and erases the marriage
from existence, different from divorce

Ng Kee Shee
Section 94(2) (restriction on filing of writ for divorce during first 3 year of marriage)- exceptional
hardship existing to divorce before lapse of 3 years from date of marriage
Procedural posture:judge found nothing exceptional about behavior of the wife and no exceptional
hardship suffered by the husband, dismissed the application.
Holding:Allowed the appeal, clearly showed exceptional hardship and amounted to unreasonable
behaviour on the part of the wife
Facts:
Marriage and departure: Husband aged 42, wife aged 21, got married. After marriage, wife went
overseas to Hainan Island. Had not returned to Singapore for more than 2 months. Had not made any
telephone call to the husband, despite husband several reminder before departure to call him every 4
or 5 days. Did not attempt to contact him in any way eg writing. Wife no intention of returning to
Singapore shown by taking all her valuable items clothes and jewellery, leaving inexpensive items.
Wanted divorce: Wife’s friend said wife rather die than obey her parents than go back to SG. Husband
talked to wife over phone, wife told him their marriage was over, wanted a divorce, willing to sign
any document to obtain a divorce.
Wife’s abnormal behaviour: wife refused to let him hold her hand, rebuff any attempt by hium to
place his arm over her shoulders, no hugging or kissing, refused to have sex until 3 rd day after
solemnisation. When had sex, she was unresponsive. Permitted to have sex once a week and sleep as
far as possible from him, placing a bolster in between them. On one occasion, wife refused to get into
husband car and when he insisted she ran towards the highway as if to commit suicide. Wife only
calmed down after husband relented.
Husband anxiety: husband past 40 anxious to settle down to start a family thereby approached
marriage agency, spent a lot of money and trouble to marry the wife, felt cheated humiliated and
repressed, wanted badly to be free again to be able to date and look for another life partner.
Considered marriage hopeless, made no attempt at reconciliation.
Yuyin(wife friend) account: Wife would stay at her flat despite she gotten married and her exhortation
to return to their husband. On Hainan Isalnd, wife said she would rather die than return to husband.
When husband attempted to contact the wife, refused to speak to him and give contact number. Wife
sister informed friend that she cried bitterly when paretns persudaded her to return to SG. Friend of
the impression that wife felt her marriage was a mistake. Agreed that their marriage was hopeless and
the wife was selfish and immature.
Reasoning:
Voluntary: No evidence to indicate coercion by the husband on the wife or family to get married,
husband had reason to expect both of them would want to get to know each other gradually over time
Wife’s attitude was hurting to the husband: Wife was unwilling to make any effort to get to know the
husband better: Difference between feeling shy at being touched and telling one’s spouse to literally
stay out of one’s face together. Wife unilaterally setting out all the rules of intimacy from the start,
something that is the antithesis of intimacy
Wife’s stony silence when she left overseas and refused to speak to him was hurtful”hit him in the
face like a piece of cold hard rock” :wife made up mind to leave without writing a short note to say
marriage was a mistake and should divorce, refused to speak to him when he called or communicate
with him in any way, threat to commit suicide if she had return to his side
Husband age(time is not on his side) : longer he had to wait for divorce, longer he would have to
remain in gainful employment if he wanted to provide financially for his child. His marital status also
would diminish his chances of him finding a life partner
While s94 is to promote sanctity of marriage, wife absolutely no regard for the union and who was
the one who entered the arranged marriage capriciously. Was the one who abandoned him and
avow over and over never coming back .On the other hand, husband was serious about the marriage
and would like to have his wife back. Nothing to reconcile in this situation.
All these occurred to the husband within 5 months + wife unreasonable behaviour = hardship is
essentially exceptional.

Possible rule: Exceptional hardship is suffered when one party unilaterally set out all the rules of
intimacy from the start, made no effort to get to know their partner, leave overseas for a prolonged
period of time refusing to communicate with their partner and say they rather die than do go back ,
with all these events playing out within a few months.

Tan Ah Thee
Voidable marriage- wife exercised undue influence to procure marriage/ wife married husband to gain
share in husband’s estate/ husband and wife never consummated marriage/ wife exercised undue
influence over husband to procure husband
Voidable S106(a) , marriage void because procured by actual or presumed undue influence S106(c)
lack of valid consent, sham marriage
Holding:Dismissed plaintiff appeal and allowing defendant’s appeal
Section 104: Only parties to the marriage may have access to such jurisdiction and seek a judgement
of nullity [28]
Reasoning:

Whether deceased had capacity to consummate the marriage, voidable under s106(a)

Difference between void and voidable

Void marriage is one that will be regarded by every court in any case as never having taken place,
without the necessity of any decree annulling it, voidable marriage is one that will be regarded by
every court as a valid subsisting marriage until decree annulling it has been prounounced[22]

Non-consummation is a ground for voidable marriage under s106, but not a ground for finding a
marriage void under s105. Even if strangers to a marriage like the plainitffs, may utilise the court’s
matrimonial jurisdiction to obtain a judgement of nullity, this will not help the plaintiff’s cause at all.
This is because, pursuant to s100(2) of the Charter, a judgement of nullity in respect of a
voidable marriage only operates from the time the judgement is made final. Thus, the deceased’s
wife immediately prior to his death, qualified as his spouse within the meaning of s7 of ISA, would
still be entitled to her half share of the deceased’s estate (30)
Whether there was lack of valid consent by the deceased
Plaintiffs argued that deceased had never validly consented to the marriage between himself and the
defendant, claimed that the marriage was procured by the actual or presumed undue influence of the
defendant over the deceased. Hence, marriage should be declared void.(32)
Lack of consent is under the Charter a ground on which a marriage may be found voidable provided
for by s106(c) [33]
Court held that s105 which sets out the grounds on which a marriage is void is an all exhaustive
provision and no marriage in Singapore which has been solemnised after 1 June 1981 can be declared
void on the basis of any matter which is not included in or referred to by s 105.
Plaintiffs tried to argue that the courts jurisdiction to declare a marriage void is not limited to the
grounds provided in s 105 of the charter . Court did not accept this contention for 2 reasons. (37)_
First, in respect of the assertion that lack of consent can render a marriage void despite the provision
that makes it voidable, it is clear that the jurisdiction of the court cannot be used to override a
statutory rule that deals with the exact situation at hand, except, perhaps in the most exceptional cases.
Second, the Charter is a complete code of law of civil marriage in Singapore and marriages celebrated
in Singapore cannot therefore be declared void on any ground that is not reflected in s 105 thereof.

Sham Marriage
Plaintiff’s argument is that the marriage was a sham marriage and hence against public policy. This
was because the defendant’s sole or predominant motive in causing the marriage to be registered was
to revoke the will made by the deceased prior to the marriage. As such the marriage should be
declared void. In short, court found plaintiff argument was once again on a ground other than those
provided for in s105 of the charter,contradicts s105 which states thte grounds listed therein to be
exlcuisve. Hence, the argument must fail for this reason alone. [54]
The law desists from identifying what are the “proper” motives of marriage and does not allow the
parties’ private motives to undermine the validity of the marriage(56)
Accordingly, the defendant’s reasons for entering into the marriage, even if they can be proved, are
ireelevant in considering whether the marriage is valid or not. In my judgement, this argument of a
sham marriage is obviously unsustainable.

CvC
About what constitutes valid consent

Fraudulent impersonation of another person is a ground for avoiding a marriage procured

Facts: Petitioner met a man who represented himself as an Australian featherweight boxer, Michael
Miller, with ample income and good prospects. Spoke of having $2000 in Austrlia and discussed with
her what amount would be necessary for them to set up home. Respondent was however not that
person, was a New Zealander of a different name. When they got married, petitioner still believed that
the respondent was Michael Miller and was married under that name. She thereafter found out that he
was not Michael Miller.
Held:Petition for the nullity of marriage was dismissed
Reasoning
this is a case of real consent although induced by fraud, and not a case of no consent or absence of
consent. The petitioner truly consented to marry the human being to whom she was married by the
Registrar. (pg 3)
It is true that he was married under the name of Michael Miller, the Australian boxer, whereas in truth
he is Samuel Henry Coley, a New Zealander, not a boxer at all, and a person of very different fortune
from the person he represented himself to be, of no fortune at all really. But I am also satisfied that
Michael Miller, as a human being, meant really nothing to this lady. What she was interested in was
the man before her, the man who, after this very rapid courtship, proposed marriage to her, and
she accepted that human being because she believed, on his fraudulent representations, that his
position as to fortune and his prospects were ample for starting her in a good way in the married state
(pg 3)
The point was that she was willing to marry this man whom she believed to be able to support her,
and the identity of Michael Miller in the matter was merely accidental. (pg 4)

If he is capable of consent, and has consented, the law does not ask how the consent has been
induced. (pg 3)

Rule: What counts as valid consent: If one party consented to marry the human being to whom he/she
was married by the Registrar, that counts as valid consent despite the consent being induced by
fraud.

If party A consented to marry the human being before him/ her, even if that consent was induced by
fraud, it does not affect the validity of a marriage.

But they state a case of no true consent: Suppose A proposes marriage to B by correspondence,
never having seen B before, but really on what A knows about B's family circumstances and so on, or
perhaps A has not seen B for very many years, and that proposal is accepted,
and then on the day of the marriage C fraudulently personates B, and gets away with it, because A
does not know the present personal appearance of B (in this case no consent because A amibition
was to marry the person who he claimed he was)
DvD
Unconsummated marriage(incapacity or wilful refusal to consummate the marriage)
defences
Facts:
The marriage in this case was in fact celebrated on 3 September 1966, the husband being then 21
and the wife being 28 years of age. The husband said that he knew before the adoption of his remedy
in nullity but that if he took nullity proceedings he would have to give up his ministry, which would
have deprived him of his job and his livelihood. He was anxious to salvage his ministry. By adopting
the children he did not feel that he was doing anybody any harm. His wife loved them, they loved the
husband and the wife, and by agreeing to adopt them he felt that he was giving them security.In the
summer of 1975 the husband had been suffering from extreme sexual frustration. Fell in love with
another woman. He finally decided to leave his wife and the two foster children, and set up home as
man and wife with the other lady, which he did late in February or early March 1976. They set up
home together with her two children, and they have lived together ever since. She and her husband
were subsequently divorced on the ground of irretrievable breakdown, evidenced by two years'
separation and consent.

Held:
(i) In so far as the concept of public policy formed part of the common law rule relating to
approbation, ratification and lack of sincerity, it was not, following the abrogation of the rule by s 3(4)
of the 1971 Act, a relevant consideration under the statutory bar contained in s 3(1) of that Act, and
the replacement of the latter subsection by s 13(1) of the 1973 Act did not revive the rule
(ii) The bar set out in s 13(1) of the 1973 Act, which was absolute and not discretionary, related
wholly to conduct inter partes, and the only relevant considerations were the conduct of one party
towards the other and the possibility of injustice to the respondent. Those considerations were
conjunctive, and therefore, although the husband's conduct in agreeing to the adoption of the children
while knowing that he could have the marriage avoided would otherwise have been a bar, there was
no injustice to the wife giving rise to a bar, since (a) she was content for the decree of nullity to be
pronounced and (b) even if a decree was granted, no estoppel could be maintained against her, other
than her wilful refusal to consummate the marriage, in any subsequent proceedings for custody,
financial provision or transfer of property. Accordingly a decree of nullity would be pronounced

Reasoning:
Husband was capable of consuming the marriage, and although the wife was virgo intacta, the
marriage was never consummated despite attempts by the husband(pg3) Evidence showed that the
wife had a physical impediment to consummation, which could have been cured by a comparatively
common operation. The wife refused to undergo this operation, although requested to do so by the
husband. (pg3) October 1973, By then there were difficulties in the marriage. The husband was
frustrated by the wife's continued refusal to consummate. (pg 3)

Decree of nullity of marriage

2 limbs of the statutory bar: (a) the conduct of one party towards the other, and
(b) the absence of injustice to the respondent Both limbs have to be satisfied(pg6)

First limb satisfied: he knew before adoption that it was open to him to have the marriage avoided,
and by agreeing to adoption, in my judgment, so conducted himself in relation to his wife as to
lead her to believe that he would not seek to do so. So I am satisfied as to the first limb of the
statutory bar (pg6)

Second limb not satisfied, not unjust to the wife to grant the decree : Although by her answer the wife
raised the conduct of the husband towards her, she does not now seek to pursue it. She is content for
the decree of nullity to be pronounced. She has wilfully refused to consummate this marriage. If a
decree of nullity is granted, she has the
same rights to apply for custody, financial provision, and transfer of property, as she would have on a
decree for divorce. In any such subsequent proceedings, no estoppel can be maintained against her,
except that she wilfully refused to consummate the marriage. (pg6)
Rule: A court would not grant a decree of nullity on the ground that the marriage was voidable if the
party satisfied 2 conditions: first, that the spouse with knowledge that it was open to him to have the
marriage voided conducted himself in relation to the party as to lead the party to believe that he
would not seek to do so. Second, that it would be unjust to the respondent to grant the decree.

Harthan v Harthan
Nulity because of impotent spouse

Held:Appeal allowed and a decree nisi granted on the ground of impotence

Facts: Couple was married. No doubt that the marriage has never been consummated. At the time of
cereomony, evidence shows that he had no experience in sexual matters. Spouses occupied separate
rooms. Such attempts as the husband made to consummate the marriage failed entirely as he was
unable even to obtain an erection. Tried tablets to stimulate him .Saw very little of each other
between 1940 to march 1946. Still occupied separate rooms when they stayed with each other.
During that time the husband said that he made three or four further attempts to consummate the
marriage and that on several occasions he succeeded in obtaining an erection. By that time she
wanted to have nothing to do with the sex side of marriage. She said we had gone so many years
without it and she was not going to start now with me.” Dr Miller said that he found the husband
physically normal apart from some under-development of the testicles, but that on examination semen
was found to be markedly deficient in sperms but that it was extremely improbable that
he could become a father.

Court: of the opinion that contention of marriage not consummated owing to wilful refusal of the wife to
consummate it fails. he would at most have proved that the marriage had not been consummated
owing to his own impotence, accepted as a fact both by himself and the wife for over twenty-one
years, coupled with the wife's expressed unwillingness, which seems to me not unreasonable in the
circumstances, to make trial whether the husband's belated hope that he had become
potent in the twenty-second year of the marriage was well founded

Where the incapacity results from a physical or temperamental condition, for which the sufferer is not
responsible, he cannot be debarred from the remedy on the ground that he has defaulted in his
obligations. There may of course be circumstances which will bar the impotent spouse. he or she
entered into marriage knowing the defect, the other spouse would indeed be entitled to complain, and
to plead the suppressio veri in bar of the action.(pg 15)

Rule:Provided that there are no circumstances which bar him or her, eg, knowledge of the defect at
the date of the marriage, an impotent spouse is entitled to petition for a decree of nullity, and the right
to do so is not conditional on the repudiation of the marriage by the other spouse.

Horton vs Horton
Wilful refusal
Husband claimed non-consummation of marriage due to wilful refusal by the wife

held, that the husband had failed to prove that the marriage had not been consummated owing to the
wilful refusal of the wife as required by s 7(1)(a).
Facts: First attempt to consummate the marriage appears to have been made in November, and this
attempt was unsuccessful owing to the fact that the husband failed to penetrate. No other attempt was
made. Letter from wife, saying she practically asked the husband for sexual intercourse thrice, big
injustice done to her
The husband gave evidence that on one night at any rate he spoke to her about having sexual
intercourse and stated that she informed him that she had talked matters over with her mother and
that on account of what had happened on the previous occasion the thought of further intercourse
was obnoxious to her.(pg3)
A husband cannot, in my view, having refused his wife proper intercourse, suddenly turn round and
say: “Now I want it, and, if you do not give it to me, I am going to ask for a decree of nullity on the
ground of non-consummation. (pg4)

Wilful refusal def: The words connote, I think, a settled and definite decision come to without just
excuse In determining whether there has been such a refusal, the judge should have regard to the
whole history of the marriage. (pg 4)

if consummation of the marriage has been delayed and thereafter an unsuccessful attempt at
consummation has been made, that either of the spouses may be reluctant and hesitant about a new
attempt. In the present case the wife sought the advice of her parents and her spiritual advisers as to
the course she should take. It would appear from the correspondence that her parents advised that
her husband should see a doctor, and that her spiritual advisers, by whose advice she was willing to
be guided, were anxious to remedy the difficulty which had arisen. (why there is an excuse in this
case)