Grounds for Annulling a Non-Muslim Marriage in Singapore

22 June 2023

Foo Soon Yien

Most marriages in Singapore are terminated by divorce under the Women’s Charter. However, marriages can also be terminated by annulment. Under the Women’s Charter, an annulment can take place on grounds that it is void under Section 105 or voidable under Section 106.

A marriage is void only on the grounds stated in Section 105 of the Women’s Charter read with the relevant provisions in the Women’s Charter as follows:

• it was a marriage between Muslims but solemnised under the Women’s Charter (section 3(4));
• it is not a monogamous marriage (section 5);
• either party was under minimum age and the statutory requirements were not conformed to (section 9);
• the marriage was between persons with familial relationship as stated in the First Schedule of the Women’s Charter (section 10);
• either party has a subsisting marriage (section 11);
• it is a same-sex marriage (section 12);
• the statutory requirements for marriage were not adhered to (section 22); or
• it is a marriage of convenience (section 11A).

A marriage is voidable on one or more of the following grounds stated in Section 106 of the Women’s Charter:

• the marriage has not been consummated owing to the incapacity of either party to consummate it;
• the marriage has not been consummated owing to the wilful refusal of the defendant to consummate it;
• either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, mental disorder or otherwise;
• 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 Health (Care and Treatment) Act 2008 of such a kind or to such an extent as to be unfit for marriage;
• at the time of the marriage the defendant was suffering from venereal disease in a communicable form; or
• at the time of the marriage the defendant was pregnant by some person other than the plaintiff.

Incapacity of Consummation

The most common ground that couples rely on to annul a marriage is incapacity or wilful refusal of one party to consummate the marriage.

Consummation here refers to the “ordinary and complete act of sexual intercourse”, as stated in the case of L v L [1956] MLJ 145.

An incapacity to consummate is not restricted to physical incapacity, but could also be psychological repugnance towards the act of sexual intercourse. The incapacity must be permanent and incurable.

Wilful Refusal to Consummate
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Typically, this happens when one party’s conduct makes it almost impossible for the other party to engage in ordinary and complete sexual intercourse.

For instance, in Kwong Sin Hwa v Lau Lee Yen [1993] 1 SLR(R) 90, the parties solemnised their marriage but the wife imposed a condition for the marriage to be consummated only when the parties have gone through Chinese rites. Subsequently, the wife refused to undergo the Chinese rites to formalise the marriage. The Court held that a refusal to undergo a pre-condition to the consummation is equivalent to wilfully refusing to consummate the marriage.

Parties should however be cautioned against trying to lie to the Court that the marriage has not been consummated. In Heng Joo See v Ho Pol Ling [1993] SGHC 201, the Court had granted a judgement of nullity on the basis that the husband wilfully refused to consummate the marriage. However, before ancillary matters were dealt with, the Court found out that parties had already consummated the marriage. The Court eventually rescinded the judgement of nullity on the basis of its inherent jurisdiction.
 
Other grounds for rendering a marriage voidable

There are other less common circumstances when a marriage is rendered voidable, such as when either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, mental disorder under Section 106(c) of the Women’s Charter.

The threshold for failure of valid consent is very high and must be sufficient enough to render the apparent consent given for the marriage null.

An example of when a marriage was annulled on the ground of failure of valid consent due to duress is in the case of Geetha d/o Mundri v Arivananthan s/o Retnam [1992] 1 SLR(R) 326, where the petitioner sought a nullity on the grounds that she did not freely consent to the marriage and only did so under duress. She was only 20 years old at the time of the marriage and her parents did not discuss with her before arranging the marriage with her. She also alleged that her mother and older brother “abused insulted and scolded” her into participating in the solemnization.

The Court allowed the petitioner to nullify the marriage. It held that for duress to be proven, the will of one of the parties has been overborne by genuine and reasonably held fear caused by threat of immediate danger.

It is to be noted that for the vitiating factors of duress, mistake or mental disorder to render the marriage voidable under Section 106(c), the vitiating factors must be so severe that it undermines the consent for the marriage completely. It is insufficient for the vitiating factors merely reduces the consent partially.

For instance, in Lim Ying v Hiok Kian Ming Eric [1991] SGHC 135, the petitioner’s application for a judgement of nullity on the ground of mistake as to the gender of the respondent. The respondent had been born a female but underwent a sex-change operation subsequently. The petitioner only knew about this fact after the marriage. As such, the Court held that the petitioner, not knowing the medical condition of the respondent, was mistaken so that the consent she apparently gave at marriage was not real, since she would have not have consented had she known that the respondent has undergone a sex-change operation.

Differences Between Void and Voidable Marriages

For both void and voidable marriages, the result is that the marriage is annulled Conceptually however, the two types of marriages are different and the parties which can apply for a judgement of nullity are also different.

A marriage that is void ab initio is grievously flawed at formation due to the failure to follow statutory requirements. A party to a void marriage, or even any interested third party, can apply for a judgement to declare this marriage void. However, even without such declaration, the marriage remains void.

For instance, in Moh Ah Kiu v Central Provident Fund Board [1992] SGCA 50, the Central Provident Fund (“CPF”) Board sought a declaration that the marriage between the appellant and a third party was valid as the parties did not purport to have their union legally solemnised in Singapore. The High Court declared that there was no valid and subsisting marriage between the parties at the time they made applications to the CPF Board to withdraw their CPF monies. This was upheld on appeal by the Court of Appeal.

On the other hand, a voidable marriage remains valid until a party to the marriage chooses to render the marriage void by seeking a judgement of nullity from the Court. Further, only parties to a marriage can seek a judgement of nullity for a voidable marriage. Section 110(2) of the Women’s Charter also states that the marriage is treated as existing until after the judgement of nullity is made final.

​For instance, in Tan Ah Thee and another v Lim Soo Foong [2009] SGHC 101, the plaintiffs, who were children of the deceased’s first wife, argued, inter alia, that the marriage between the deceased and his second wife was rendered voidable. The plaintiff argued that this was because deceased did not have capacity to consummate the marriage or in the alternative, did not give valid consent to the marriage as the defendant had allegedly placed the plaintiff under presumed undue influence. The Court held that even if the marriage was voidable, only parties to a marriage could seek a judgement of nullity.