FLP 2 - Nullity and Divorce PDF

**Takeaways** - Nullity refers to marriages that are void or voidable, with specific grounds for each. - Divorce requires the irretrievable breakdown of the marriage as the sole ground, with six facts that can prove this. - Evidence is required to prove adultery, unreasonable behavi...

**Takeaways** - Nullity refers to marriages that are void or voidable, with specific grounds for each. - Divorce requires the irretrievable breakdown of the marriage as the sole ground, with six facts that can prove this. - Evidence is required to prove adultery, unreasonable behavior, desertion, and separation. - The court must also be satisfied that it is just and reasonable to grant the divorce. - The interests of any children and the possibility of reconciliation may be considered in granting a divorce. Andrew Yip (00:00.728) Welcome back to the Family Law module. This lecture will be on the substantive topics of the law of nullity and that of divorce. Andrew Yip (00:15.36) In particular, in the first part of the lecture, we will discuss void and voidable marriages that allow parties to obtain a judgment of nullity. In the second part, we will discuss the sole ground of divorce being the irretrievable breakdown of the marriage and the six facts that parties may rely on to prove this irretrievable breakdown of the marriage. Now firstly, for void marriages, The legislative provision is found at section 105 of the Women\'s Charter, which states that a marriage is void if it is invalid by virtue of the stipulated section. So these are specified on the slide here. You will see that the first six that are listed relate to the party\'s capacity to marry, capacity to marry the other under the Women\'s Charter. For example, Section 3 subsection 4 says that the parties cannot both be Muslim. If they are, then their marriage cannot be solemnized or registered under the Women\'s Charter. The Women\'s Charter only recognizes monogamous marriages. So pursuant to section 5 and section 11, any party who has a subsisting prior marriage does not have the capacity to marry another. You must be above 18 to be married. under section 9, parties below 18 years are prohibited from entering into a marriage without a special marriage license. You also cannot marry someone closely related to you. So section 10 relates to marriages within prohibited degrees. Section 11A, this was fairly new, added fairly recently. It applies to marriages only after 1st of October 2016. Now, you cannot marry someone for purposes of assisting the other to obtain an immigration advantage or to receive an inducement for entering into the marriage of convenience. Section 12, you cannot marry someone of the same sex. And the last one under section 13 relates more to the formal validity of the marriage. In other words, Andrew Yip (02:36.64) It is not that the parties do not have the capacity to marry, but they did not fulfil the statutory prescriptions of solemnisation of the marriage. You are encouraged to read these sections to better understand the specific grounds on which a marriage is void. Under Section 104 of the Women\'s Charter, either spouse in a void marriage can seek a judgment of nullity. And you should also note that in the case of void marriage, the marriage is void whether or not such a judgment is obtained. Moving on to voidable marriages. The grounds on which a marriage is voidable are all set out in Section 106 of the Women\'s Charter. Now this is an exhaustive list. Voidable marriages are valid unless and until they are annulled by a judgment of nullity. This is where they are different from void marriages, right? Because I told you earlier under section 105 of the Women\'s Charter, void marriages, are void ab initio. In other words, they are void regardless and from the beginning. So do read the case of Tan -A -Ti in order to understand the effects of a voidable marriage. Andrew Yip (03:58.606) What are the grounds for voiding a marriage under section 106 of the Women\'s Charter? There are five grounds and these are listed under section 106 on this slide. The first one is the non -consummation due to incapacity of either party. Second, non -consummation due to the willful refusal of the defendant. Thirdly, either party did not consent to the marriage due to either mistake, duress or unsoundness of mind. Fourth, either party at the time of the marriage was suffering from mental disorder such as to be unfit for marriage. Fifth, the defendant at the time of the marriage was suffering from venereal disease and the plaintiff must be ignorant of this fact. And finally, the defendant at the time of the marriage was pregnant by another man and again the plaintiff must be ignorant of this There are also bars to a judgment of nullity contained in Section 107 of the Women\'s Charter. Please do read the section to understand the circumstances under which the court may not grant the judgment of nullity, notwithstanding that one of the grounds in Section 106 were satisfied. The more common ground relied on by parties, I would say, tends to be the willful refusal to consummate a marriage. But it is generally not shown in a direct way. So the case of Kuang Sin Hua and Lao Lian demonstrates this. The facts of this case are such that the parties had agreed that they would go through Chinese customary rights before they would consummate the marriage. And this was a condition or a precondition of their marriage. Subsequently, the defendant willfully refused to consummate or was found by the court to have satisfied the provision of having willfully refused consummation because the party refused to undergo the Chinese customary rights, which was a precondition to the consummation. Andrew Yip (06:02.422) Notwithstanding that it is a common ground, can it be said that non -consummation is something that is quite easy to allege and parties can therefore collude by alleging this ground and try and fool the court? Refer to the case of Heng Ju -si and Ho Po -ling, in which the court rescinded an interim judgment, which was then known as a decree nai sai. when it discovered upon further examination of the parties that the applicant or the petitioner, as they called it at the time, had earlier deceived the court in alleging that there was non -consummation. Now, this case reminds us of our duty not to deceive the court in order to make out this ground and do also warn your clients of the consequences of such a deception. Andrew Yip (07:01.454) I also want to talk a bit about the lack of consent ground under subsection C of section 106, which is seen as another somewhat common ground parties may rely on. This provision has been clarified in the case of Tanati, which stated that mistake vitiating the consent may not necessarily be grounds for annulling the marriage. In particular, sham marriages may still be valid. And the fact that there was an improper motive for the marriage is not a ground for annulling the marriage under the Women\'s Charter. However, this must also now be understood in light of the fairly new Section 11A that I mentioned earlier, which deals with avoidance of marriages of convenience. Andrew Yip (07:50.222) Okay, let\'s move on now to the second part of this lecture relating to divorce. The court\'s matrimonial jurisdiction is found in section 93 of the Women\'s Charter and it requires either party to have either been domiciled in Singapore or have been habitually resident in Singapore for a continuous period of three years immediately preceding the commencement of proceedings. Do note that this jurisdictional requirement only applies in the case of divorce and does not apply in the case of nullity, insofar as it is sufficient for the purposes of commencing proceedings for nullity as long as both parties reside in Singapore. As for the meaning of domicile, how is that different from residence? Domicile is when you treat Singapore as being your permanent home. So you may therefore be habitually resident in Singapore, but this would not be of your Andrew Yip (08:52.43) Now under section 3 subsection 5 of the Women\'s Charter, there is a provision which states that for the purposes of the Women\'s Charter, a person who is a citizen of Singapore shall be deemed until the contrary is proven to be domiciled in Singapore. So this makes it generally easier in the case of parties who are Singapore citizens to rely on the deeming provision for the purposes of showing Domicile can also be a domicile of origin. So for this, you will look at paragraph 13 of this case, Peter Rogers May and Pinder Lilian Gek Lian, for an explanation. So it says, all persons must have a domicile. On birth, a person is affixed with a domicile of origin. The father\'s domicile, if he\'s legitimate and born within the father\'s lifetime, or the mother\'s domicile, if he\'s illegitimate. or born after the father\'s death. This domicile of origin prevails until a person acquires a new domicile of choice or dependence. Andrew Yip (10:05.41) This case of Peter Rogers May also dealt with the question of a domicile of choice. And the High Court there stated that there were two requirements for the finding of a domicile of choice. Firstly, there was a voluntary residence in a particular country as an inhabitant rather than being just a mere casual visitor. And secondly, the intention to remain indefinitely for an unlimited period of time. and for this there should be physical presence. The length of residence may not be important, but it does serve as evidence of intention to reside permanently or indefinitely. Andrew Yip (10:49.6) On the other alternate jurisdictional requirement of habitual residence, the High Court decision of Li Meiqi and Chang Kuo Yan is instructive. There it was held that the phrase habitual residence is the same as the ordinarily resident. A person must be habitually and normally resident in a country apart from temporarily or occasional absences of long or short duration. habitually is taken to mean it must be voluntarily accepted and there must be a degree of settled purpose which may be general or specific. There, in this case, the court had to consider whether time spent away from the country broke the three -year continuum. And the court held that a total of 12 months extended absence for overseas trips were held to be substantial despite legitimate reasons given by the party. And as a result of this, the requirement of habitual residence was not fulfilled. Now, you must also note that there is a time restriction to presenting a writ for divorce within the first three years of the date of marriage. Section 94, subsection 1 of the Women\'s Charter states that no writ for divorce shall be presented to the court unless, at the date of filing the writ, three years have passed since the date of the marriage. There is, however, an exception to this bar. If the party can show that this is a case of one of exceptional hardship suffered by the plaintiff or one of exceptional depravity on the part of the defendant. Andrew Yip (12:37.25) The case of Ng Kyi Shi and Phu Khao Phe dealt with the question of how one is to show exceptional hardship. Now in that case, the husband showed that the wife had abandoned him a short few months after the marriage. He gave examples of the wife\'s abnormal behaviour while she was with him, such as trying to run away from him, refusing any form of intimacy with him. She threatened suicide if she had to return to him. and she simply refused to adjust to the marriage. The lower court had held that the hardship suffered by the husband was not exceptional enough and that the wife\'s behaviour was justified on the facts of this case. The lower court also held that the aim of Section 94 is to promote the sanctity of marriage and ensure that parties do not rush in and out of marriage without any thought of the consequences. The court would allow the purpose of this section to be defeated just because the parties felt that there was no hope of reconciliation. However, on appeal, the High Court determined that there was exceptional hardship suffered by the husband. And the High Court made these comments at paragraphs 21 and 23. So the court agreed that the laudatory intention of Section 94 is to promote sanctity of marriage. But here it was clearly the wife who had absolutely no regard for the union, who entered into the arranged marriage capriciously. To hold that the husband should nevertheless wait three years before seeking a divorce appears to be visiting the wrongs of the wife on him. And further, exceptional hardship is something quite out of the ordinary and more than what an ordinary person should reasonably be asked to bear. Andrew Yip (14:37.71) For a case where the wife succeeded in proving exceptional depravity, refer to the judgment of Tan Chiu Kui, Jen, and Tan Chi Keong John. There, the family court said that having sexual intercourse with different women and filming the ex for future viewing would push the case across the boundary to perversity and depravity. Being involved with 16 different women in the space of two years makes the case exceptional. I come now to the ground for divorce. Under section 95 subsection 2, you should first note that there are three matters that the court has to be satisfied of before it can grant the divorce. But I would like you to focus on the ones in bold. First point is that there really is only one ground of marriage, and that is that the marriage has irretrievably broken down. This is the primary requirement. As a secondary requirement, the Court must additionally be satisfied that it is just and reasonable to grant the divorce having regard to all relevant circumstances, including the conduct of the parties and how a divorce would affect the parties and any child of the marriage. Andrew Yip (16:02.702) Since the 2022 amendments, there are a total of six facts one may rely on to prove irretrievable breakdown. Firstly, that of adultery having been committed by the respondent. Secondly, the respondent having behaved in such a way that is unreasonable for the applicant to live with him or her. Thirdly, there has been a desertion of a continuous period of two years. there has been a separation or living apart by the parties of three years with the consent of the other party to the divorce. Fifth, parties have been living apart or living separately for four years, in which case consent of the other party is not required. And finally, the new fact that was added by the 2022 amendments, that the parties agree that the marriage has irretrievably broken I start with the fact of adultery. In order to prove this fact, two things have to be shown. Firstly, that the respondent has committed adultery, and secondly, that the applicant finds it intolerable to live with the respondent. The act of adultery involves consensual intercourse. So then what kind of evidence will be sufficient or necessary in order to show this fact? The case of Tan Ming -hok and Tay Mui -kiao may help us to understand this. So firstly, the identity of the person with whom adultery is committed must be identified if this is known to the applicant. This is also provided for in the rules. Secondly, if such adultery is admitted and accepted by the respondent, then that can be conclusive of the fact of adultery. But if this is not the case, then you would require further evidence of adultery. And this is usually by testimony of a private investigator. In a case where there have been indications of adultery being committed, but there is no documented evidence, then an applicant can still assert that there has been what we call improper association and rely on this improper association for purposes of another possible fact. Andrew Yip (18:22.424) to prove a divorce that of unreasonable behavior. Andrew Yip (18:29.644) I would add that generally speaking, adultery as a fact is difficult from an evidential point of view. Often the evidence of a private investigator would assist, but this tends to be, at best, circumstantial and also expensive. The other way is for the applicant to prove that there is an inclination on the part of the respondent to commit adultery and that there was an opportunity for him or her to do so. In practice, for uncontested divorces, the allegations would in themselves be sufficient if there is no contest. But where the proceedings are contested, then a report of a private investigator or other kinds of evidence would become important. Now, in reality, the parties may continue to live together after the applicant discovers the Respondent\'s Act of Adultery. If the period of living together does not exceed six months in total, this period may be disregarded in determining whether the applicant finds it intolerable to live with the Respondent. However, if the parties continue to live together for more than six months, despite the applicant knowing about the respondent\'s adultery, then the applicant may no longer rely on that act of adultery for purposes of the divorce. So this is a bar in a way in section 95A subsection 2 to relying on the effect of adultery. This does not, prevent the applicant from relying on subsequent new adulterous acts for this purpose. Andrew Yip (20:13.73) We now move on to that second fact, that of unreasonable behavior. Although this is used as a shorthand to describe this fact, the unreasonableness in this ground actually does not describe the respondent\'s behavior. It, in fact, qualifies the expectation or the reasonable expectation that the applicant would continue to live with the defendant. In the case of Wong Siu Boy and Lee Boon Fat, the court held as follows. Whether the applicant finds it intolerable to live with the respondent is a substantive question. Whether his attitude or her attitude is reasonable in this is irrelevant. Whether the applicant can reasonably be expected to live with the respondent is an objective test, but the court will look at the personalities of the individuals before it to determine if this test is satisfied. The court can also take into account the cumulative effect of different types of behaviour on the applicant. Such behaviour can be active behaviour or passive behaviour, such as neglect or indifference. Further, the behaviour complained of need not be confined to the applicant, but must have relevance to the marriage. For example, terms of the respondents\' behaviour, say to the children of the marriage or to other parties who are close to the marriage. Andrew Yip (21:51.458) The applicant must therefore show two things. Firstly, establish the respondent\'s certain behaviour. And secondly, that such behaviour makes it unreasonable to expect the applicant to live with the respondent. What sort of behaviour would constitute such certain behaviour? It may be through the proof of family violence or chronic financial irresponsibility, or it could be accumulative behaviour of various different sorts of behaviour over the years. You want to note that just like with adultery, there is a bar with respect to unreasonable behaviour. This is found in section 95A subsection 3. This section says that if there is a period of living together of no more than six months in total, this is to be disregarded in considering whether the applicant could reasonably be expected to live with the respondent. However, if parties had continued to live together for more than a period of six months, and certain behaviour is now being complained by the applicant, it is possible for the respondent to argue that such behaviour did not constitute behaviour which could reasonably be considered unreasonable for the applicant to live with. We now come to the third fact, that of desertion. Desertion implies an abandonment against the wish of the person charging To prove this, the applicant must show that the respondent had deserted the applicant for at least two years. The respondent must have left without the applicant\'s consent. Now, desertion can be actual desertion or constructive desertion. And this would require the proof of the conduct or the actual fact of desertion, as well as an intention to desert. The intention to desert may be inferred from Andrew Yip (23:47.406) conduct of separation where the circumstances make it appropriate to do so. It must also be proven that the deserting spouse had the intention to bring the marital union to an end, as well as the deserting spouse must have had the capacity to form an intention to desert. Finally, there must be no reasonable cause for the separation between the parties. This, in fact, therefore requires a showing of two elements. a physical living apart or separation and an intention to desert on the part of the deserting spouse. For example, if the separation was due to reasons like overseas posting or a job or overseas studies, then the court may come to the conclusion that there was in fact no intention to desert. Andrew Yip (24:45.654) Now the fact of separation or living apart. This sometimes is considered to be a fairly common ground, especially where parties find that they would prefer a more amicable route to divorce and where there is actually no fault finding. The downside, of course, is that there is a waiting period before the parties can file for a divorce. For this fact, if the living apart is for three years, then the respondent will have to consent to the divorce as well. Otherwise, if there has been living apart for four years or more, then there is no consent required from the respondent to the divorce. The concept of separation or living apart under section 95A subsections D and E requires a separation of households and a mental element of separation. In other words, the separation should be by choice and not by one of necessity. I earlier raised the example in the previous slides about a spouse who is working overseas. similarly here, a husband who is working overseas is separated from his wife by choice and would not therefore have the requisite intention to end the marital union. What constitutes living apart can also cover a situation where parties are living under the same roof but living apart by sleeping in separate bedrooms and keeping separate households. On this note, you want to take a look at section 95A, subsection 7 of the Women\'s which defines the term living together as living together in the same household. Andrew Yip (26:29.57) The case of Leung Kwet Kiong and Lee Ying Kuan dealt with what living apart actually means. There, the High Court stated that living apart does not mean merely physical separation of physically not living under the same household. It also imported an additional element of an intention to terminate consortium. In the case of Tan Li Tiang and Chia Tuan Hua, The parties tried to persuade the court that while they were physically living under the same roof, they were operating separate households. While the High Court accepted that it is possible to live apart under the same roof on the fax, the court found that the parties continued to share consortium and continued to cooperate in the caregiving of the children. Andrew Yip (27:23.854) The latest fact to be introduced in section 95A, which came into effect on 1st July 2024, is that of divorce by mutual agreement. There must be a written agreement between the parties stating the reasons leading the parties to conclude that their marriage has irretrievably broken down, the efforts that the parties have made to reconcile, and the consideration the parties have given to the arrangements to be made in respect of their financial affairs and any child of the marriage. The Court will not accept the agreement if it considers that there remains a reasonable possibility that the parties might reconcile. We have just covered the six facts by which the sole ground of irretrievable breakdown of marriage can be proven. You\'ll recall that there was a secondary requirement before the divorce may be granted, that the court is satisfied that it is just and reasonable to grant the divorce. The case of William Cheng and Chai Mei Ling, which was decided under the old sections 95, subsection 2 and 95 subsection 4, before the 2022 amendments, had considered the meaning of these words just and reasonable. The court held that these provisions were applicable only for the most extreme of cases, where notwithstanding that the marriage had irretrievably broken down for one or more of facts, the five facts at the time, it would still be wrong to dissolve the marriage having regard to all the circumstances, including the conduct of the parties, and how the interests of any child or children of the marriage or of either party may be affected if the marriage is dissolved. Andrew Yip (29:15.756) In this regard, it is interesting to note the issue of the interests of children. There is no case law as far as this provision is concerned, but Professor Leong Wai Kham, a learned academic, has opined that it is exceptionally possible that the court may conceivably refuse to grant a judgment where, for example, a child may respond particularly badly to the parents ending the marriage, and in such a case, the court may delay in making of the final judgement until the child is prepared well enough to handle the inevitable trauma. It of course remains to be seen whether such an argument can possibly be made and would succeed. Lastly, the desire to reconcile. It is sometimes argued that divorce, being a unilateral decision on the part of one party, must necessarily be tempered by the fact that the other party might be interested in effecting a reconciliation. The case of William Cheng deals with the relevance of a unilateral desire of one spouse to make a further attempt at reconciliation. In such a situation, the Court of Appeal said for all practical purposes. This is not a good enough reason to withhold a judgement for divorce. In the case of Cheong Kim Siah and Lim Poh Chu, the husband had shown that the parties had been living apart for four years. The court here found that the fact of the respondent\'s desire to maintain the marriage and her professions of love and care and assertions that she had provided emotional support throughout the marriage were not sufficient to rebut the presumption that the marriage had irretrievably broken Andrew Yip (31:07.556) We have come to the end of this lecture on nullity and divorce. And we will see you in the next lecture. A written agreement for divorce by mutual agreement must include{{c1::reasons for irretrievable breakdown}},{{c1::efforts}} for reconciliation, and{{c1::arrangements}} for financial matters and children. Statutory limitation A {{c1::three-year limitation}} is imposed on divorce writ presentation according to {{c2::Section 94(1) WC }}. W (21 y/o, from China) married H (24 y/o). W left for China within months, never returned - H succeeded on appeal under s 94, WC for leave to be granted to present a divorce petition before {{c3::three years had passed from the date of the marriage to W}}. Foo Teck Kuan v Chan Yoke Han - Spouse did not conceal her adultery in any way -- wife brought lover to the matrimonial home and into her bedroom, even when the husband was in the flat. This is subject to the court's discretion by virtue of the word "may" in s 94(2), WC The five grounds listed under section 106 of the Women\'s Charter for voiding a marriage include {{c1::Non-consummation}} due to {{c2::incapacity}}, {{c2::willful refusal}}, lack of {{c2::consent}}, {{c2::Mental}} unfitness, and {{c2::Venereal disease}} or {{c2::pregnancy}} by another. Grounds for avoiding marriage under Section 106 WC related to consummation include{{c1::Non-consummation}} due to {{c2::incapacity}}, {{c2::wilful refusal}} of the defendant,lack of {{c2::consent}} due to mistake,duress, or{{c2::unsoundness of mind}}.