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2.

Capacity to Marry
A. The Relevant Sections of the Womens Charter
Scope of Application

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.

S3 of the Womens
Charter

S3(4) No marriage between persons who are Muslims shall be


solemnized or registered under this Act
Void marriages
S5.(1) Every marriage contracted in Singapore or elsewhere
in contravention of section 4 shall be void.

(2) If any male person lawfully married under any law, religion,
custom or usage shall, during the continuance of that marriage,
contract a union with a woman, that woman shall have no right
of succession or inheritance on the death intestate of such male
person.

S5 of the Womens
Charter

(3) Nothing in this section shall affect the liability of any person
to pay such maintenance as may be directed to be paid by him
under any written law.
Avoidance of marriages where either party is under
minimum age

S9 A marriage solemnized in Singapore or elsewhere between


persons either of whom is below the age of 18 years shall be
void unless the solemnization of the marriage was authorised
by a special marriage licence granted by the Minister under
section 21.
Marriages
within
prohibited
marriage to relatives)

degrees

(essentially

S10.(1) A marriage solemnized 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.
(2) Notwithstanding subsection (1) and the First Schedule, the
Minister may, in his discretion, grant a licence under this section
for a marriage to be solemnized, notwithstanding the kindred or
affinity of the parties, if the Minister is satisfied that the
marriage is valid under the law, religion, custom or usage which

S9 of the Womens
Charter

S10 of the Womens


Charter

would have been applicable to the parties thereto if this Act had
not been enacted.
(3) A marriage solemnized under such a licence shall be valid.
Avoidance of marriages by subsisting prior marriage

S11 A marriage solemnized in Singapore or elsewhere


between persons either of whom, at the date of the marriage, is
married under any law, religion, custom or usage to any other
person shall be void.

S11 of the Womens


Charter

Avoidance of marriages between persons of same sex


S12.(1) A marriage solemnized in Singapore or elsewhere
between persons who, at the date of the marriage, are not
respectively male and female shall be void.
(2) It is hereby declared that, subject to sections 5, 9, 10, 11
and 22, a marriage solemnized 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
6
(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.

S12 of the Womens


Charter

(4) Nothing in subsection (2) shall validate any such marriage


which had been declared by the High Court before 1st May 1997
to be null and void on the ground that the parties were of the
same sex.

B. Common Law Connecting Factors

Domicile, Intended Matrimonial Home, Place of Celebration of Marriage


Presumption the Citizen is domiciled in Singapore
1

S3(5) For the purposes of this Act, a person who is a citizen of


Singapore shall be deemed, until the contrary is proved, to be
domiciled in Singapore

S3(5) of the Womens


Charter

Abolition of wifes dependent domicile

47.(1) Subject to subsection (2), the domicile of a married


woman as at any time on or after 1st June 1981 shall, instead of
being the same as her husbands by virtue only of marriage, be
ascertained by reference to the same factors as in the case of
any other individual capable of having an independent domicile.

S47(1) of the Womens


Charter

Recognition of marriages contracted in Embassies, etc.,


in Singapore subject to dual domicile rule of capacity

S183(2) A marriage contracted in any foreign Embassy, High


Commission or Consulate in Singapore shall be recognised as
valid for all purposes of the law of Singapore if all the following
requirements are satisfied
(b) each of the parties had, at the time of the marriage, capacity
to marry under the law of the country of his or her domicile or
under the law of the country of the intended domicile of the
parties after marriage; and
Determination of Persons domicile
Facts:
-

Largely omitted as it was not a family law issue


Issue was whether the deceased was domiciled in
England or Singapore.
Deceased had Singapore Citizenship, though arranged
for his 2 sons to avoid doing NS in Singapore

Held (on domicile):


Domicile of origin
-

[16] Everyone acquires at birth a domicile of origin; the


fathers domicile if he is legitimate and born within the
fathers lifetime, and the mothers if he is illegitimate or
born after the fathers death
[17] The domicile of origin stays with him until he
acquires a domicile of choice or of dependence. More
difficult to argue that someone had abandoned his
domicile of origin as opposed to abandoning his domicile
of choice. Secondly, if a person leaves the country of his
domicile of origin, intending never to return, he
continues to be domiciled there until he acquires a
domicile of choice in another country

Domicile of Choice
-

[19] A domicile of choice is acquired by the combination


of residence and intention of permanent or indefinite
residence, but not otherwise

S183(2) of the Womens


Charter

Peters Roger May v


Pinder Lillian Gek Lian
[2009[ 3 SLR(R) 765

[21] Where a persons intention is clear, any residence,


however short, suffices to establish a domicile of choice.
Thus an emigrants firm intention to live permanently in
a particular country, coupled with his arrival in that
country immediately confers on him a domicile of choice
in that country
[23] A person who intends to reside indefinitely in a
country may be domiciled there in spite of his envisaging
the possibility of returning one day to his native country
[24] Intention is the most difficult to prove however,
there is no definite test.

Application to the Facts Whether the deceased had acquired a


Singapore domicile of choice.
-

[26] Domicile of origin is clearly England.


[69] In determining whether a person has the requisite
intention to make his permanent home in a foreign
country, the court takes into consideration not only the
mode but also the place of residence. However, this
presumption is rebuttable. Indeed, one can hardly expect
that Pinder would have lived in Singapore for almost 45
years if local conditions did not conduce to his lifestyle.
[70] Action of making his sons escape NS suggests a lack
of allegiance on behalf of his sons, but does not
necessarily bespeak an intention to give up his residence
in Singapore. Allegiance must not be confused with
domicile.
[107] A persons domicile of origin, held in abeyance
when he created a domicile of choice, would revive when
the domicile of choice was abandoned.
[110] Likely that, late in life Pinder, formed an intention
to retire in England. However, it is not enough that there
was an intention to relinquish Singapore domicile. It has
also to be proved that Pinder actually gave up Singapore
residence
Thus, the deceased was domiciled in Singapore, having
acquired and never abandoned a Singapore domicile of
choice.

B. Choice of Law Rules - Domicile


3

Law of Place of Marriage Regulates formality Law of the


Forum Rule
Facts:
-

Parties attempted to form their marriage under the


marriage law of Thailand when they married within the
premises of the Thai embassy in Penang, Malaysia.

Arpinya
Rongchotiawattana v
Wee Oh Keng [1997] 3
SLR(R) 378

Held:
-

The parties had failed to comply with the formalities of


solemnization. The premises if the Thai embassy are
notionally part of Thailand.
Based on expert testimony on the law of Thailand of
solemnization, the court found that the parties had not
fulfilled the formalities.
The parties claim to have validly formed a marriage that
the court in Singapore should recognize failed.
The choice of law principle is that the law of the place
where a marriage is solemnized regulates the formalities
of solemnization.

Dual Domicile Rule Regulates Capacity to Marry


Facts:
-

Essentially Maria Hertogh married one Mansor Adabi,


when she was 13.
An Originating Summons prayed that the court declare
that marriage illegal,void, and of no effect, and that
Inche Mansor Adabi, the appellant, was not entitled to
the custody of the infant, and also for Inche Mansor
Adabi to deliver the infant into the care and custody of
the respondents.

Issues
- The principal grounds of appeal were (1) that the Court
had no jurisdiction to declare the marriage between the
female infant and Inche Mansor Adabi to be illegal and
void and of no effect
- (2) that the female infant was a Muslim in fact and in law
and that her marriage to Inche Mansor Adabi was valid.

Held:
- (1) omitted
- (2) that the female infant in this case was domiciled in
Holland and as there was no evidence that the domicile
of Mansor Adabi was Singapore, the law of Holland would
be applicable to determine the validity of the marriage;
- (3) that as the marriage would be void by the law of
Holland the appellant had not shown that there was a
valid marriage between him and the female infant and
therefore the custody of the infant was rightly given to
her parents.
- Under English law, which is applicable in the Colony, the
essential validity of a marriage is governed by the lex
domicilii of the parties, which is the determining factor in
deciding whether, apart from form, the marriage is good.
- If by such lex domicilii it is void ab initio , not merely

Re Maria Huberdina
Hertogh; Inche Mansor
Adabi v Adrianus Petrus
Hertogh & Anor
[1951] MLJ 164

voidable, because prohibited, it will be equally void in the


Colony. The marriage must be legal, according to the law
of the domicil of both the contracting parties, not merely
according to the law of the domicil of the husband.
It was not in dispute that the infant is a Dutch subject
and that her country of domicil is that of her father,
Holland; and it is clear from the evidence that, by the law
of Holland, a girl under the age of sixteen years, being a
Dutch subject, is prohibited from marrying unless the
Queen of Holland grants a dispensation lifting the
prohibition, and that is the position whatever the girl`s
religious beliefs may be. There is no suggestion that such
dispensation was ever asked for or obtained. The law of
Holland prohibits the marriage.
That being so, by the law of Holland the Marriage was
invalid, void ab initio . It follows, therefore, that the
marriage is invalid under the law of the Colony unless the
appellant could bring himself within the exception to the
general rule I have already mentioned, and to do this he
had to satisfy the Court that he was domiciled in the
Colony, which he failed to do.

Exception to the dual domicile rule:


"Exception 1. The validity of a marriage celebrated
in England between persons of whom the one has an
English, and the other a foreign, domicile is not affected
by any incapacity which, though existing under
the law of such foreign domicile, does not exist
under the law of England."

Facts:
-

The Appellant Moh married one Choe according to


Chinese customary rites in Penang in 1975.
Choe divorced his first wife in 1980, and Choe and Moh
continued to cohabit as husband and wife, but did not
legally solemnize their marriage in Singapore.
In 1986, Choe and Moh jointly purchased an apartment
and jointly applied to CPF to withdraw their savings.
There was a charge on the property created under S21(1)
of the CPF Act. Choe passed away, and Moh requested
for the duplicate lease of the property. Choes soh argued
that Choe and Moh were never legally married.

High Court:
- There was no valid marriage at the time when Choe and
Moh jointly applied for the withdrawal of their savings
- All moneys Choe withdrew and secured by the charge
ceased to be payable to the CPF upon his death
- CPF to pay Mohs costs, and to cancel the charge.
Held (SGCA):

Sottomayer v de Barros
(No 2) [1879] 5 PD 94

Moh Ah KiuvCentral
Provident Fund Board
and other appeals
[1992] SGCA 50

Moh could not prove her marriage to Choe on the basis of


a presumption of marriage based on long cohabitation
and reputation as husband and wife.
- [12] At the time of withdrawal of the moneys, they did
not go through any legally recognized form of ceremony
of marriage in Singapore or abroad.
[10] When Choe and Moh went through the Chinese
customary marriage in Penang, Choe was still legally
married to his first wife and had no legal capacity to
contract a marriage. Hence, the Chinese customary
marriage was in consequence, invalid and void. Also,
Choe and Moh were both Singapore citizens and were
domiciled in Singapore.
Determination of Persons Domicile
-

See above

Alternative to the Dual


Matrimonial Home Rule

Domicile

Rule

Intended

Essentially, this rule allows the court to choose to test a


partys capacity not by the law of the antenuptial
domicile, but by the law of the intended matrimonial
home.
Facts:
-

In 1951, the parties, and English woman and an Egyptian


man entered into a contract of polygamous marriage
according to Muslim law at the Egyptian Consultate in
Paris
Matrimonial home was Egypt
In 1959, the husband decided to move permanently to
England
Husband divorced wife in 1970 in a talaq divorce at the
Consultate General of the United Arab Republic in London
In divorce proceedings by the wife on the ground of
cruelty and a cross-prayer by the husband on the ground
of irretrievable break down, the issue was whether the
English court should recognize the talaq divorce.
That hinges on whether the Consultate General in
London was English or Egyptian territory and of course
whether the marriage itself was valid.

Intended matrimonial home test:


-

Accepted in several English cases prior and also applied


in Australia.

Held (On the validity of marriage):


-

Noted a continuing appreciation on the part of judges of


the courts that matrimonial residence is relevant

Peters Roger MayvPinder


Lillian Gek Lian
[2009] SGHC 90
Radwan v Radwan (No 2)
[1973] Fam 24

Miss Magson had the capacity to enter into a polygamous


union by virtue of her prenuptial decision to separate
herself from the land of her domicile and to make her life
with her husband in his country, where the
Mohammedan law of polygamous marriage was the
normal institution of marriage.

Evaluation:
-

LWK suggests that while the intended matrimonial rule


has not been discussed in Singapore, the Singapore
courts, having embraced the classic dual domicile rule,
should also view any alternative rule developed by the
common law as part of the law in Singapore.
Also, S183(2)(b) each of the parties had, at the time of
the marriage, capacity to marry under the law of the
country of his or her domicile or under the law of the
country of the intended domicile of the parties after
marriage;
Can possibly be read as incorporating the dual domicile
rule

D. Consistency with S3(1) of the Womens Charter

S3(1) Except as otherwise provided, this Act shall apply to all persons in Singapore and shall
also apply to all persons domiciled in Singapore.
-

Ideal if this provision of scope of application was interpreted to embrace the dual
domicile rule and the intended matrimonial hme rule
That is to say, these common law rules are incorporated within the WC
Contextual interpretation

LWK suggests that an ideal reading of S3(1) would be that the


WC prescriptions of capacity to marry apply to:

1. All persons domiciled in Singapore, whether they marry


in Singapore or outside Singapore.
2. In the alternative, where the application of (1) leads the
party/parties to lack capacity, all persons who by the
time they marry intend to set up matrimonial home in
Singapore
3. All persons who choose to marry in Singapore even
though they have no personal connection with
Singapore.
However, the above is subject to 2 problems.

S9A of the Interpretation


Act

Problem 1: Default Application


-

S3(1) provides that it determines the scope of application


except as otherwise provided
The provision thus applies by default, it must be asked,
therefore, whether the provisions of capacity to marry
have themselves provided for their own scope of
application.
If they have, S3(1) no longer applies.

Unhelpful Precedents in Singapore


-

Should be noted that these decisions preceded the


enactment of S9A of the Interpretation Act

Facts:
2

A 15 year old girl domiciled in Singapore went to


Malaysia to marry in 1974

SGHC:
-

Held that the then S9 of the WC applied to her through a


purposive reading, even though she left Singapore
temporarily, despite the provisio reading that it
regulated only a marriage purported to be solemnized
under this part of the Ordinance
The girl thus breached the minimum age requirement.

SGCA:
-

Unfortunately overturned the decision of the SGHC, with


the reasoning that the provision, being clear and
unambiguous, should be read literally.

Problem 2: In Singapore or Elsewhere


-

3
-

The backdrop that prompted the 1980 amendment was


the courts ambivalence in whether to adopt the
purposive reading of provisions of capacity to marry in
order to have them apply to Singaporean domicilaries
who marry outside Singapore.
The addition of this phrase was intended to emphasise
the continued application of the WC prescriptions of
capacity to marry to persons domiciled in Singapore who
leave Singapore temporarily to marry.

Optimal reading of in Singapore or Elsewhere


-

A literal reading of this phrase would cover a much


broader scope than intended (persons domiciled in
Singapore who leave Singapore temporarily to marry),
and cover all persons who marry in Singapore or
elsewhere.

Inderjit Singh v Jinder Pal

A contextual approach would demand that this phrase be


read subject to the scope of S3(1).

E. Capacity Requirement (1) Monogamy


Meaning of Monogamy:
-

Married Singaporean man cannot legally marry another


woman in Singapore or abroad.

Facts:
1

Male party who was still validly married attempted to


marry a second woman under the marriage laws of
Penang.

Held:
-

When Choe and Moh went through the Chinese


customary marriage in Penang, Choe was still legally
married to Lily Foong.
Therefore, Choe had no legal capacity to contract a
marriage.

Moh Ah KiuvCentral
Provident Fund Board
and other appeals
[1992] SGCA 50

Bigamy

The WC S6 afifrms that an attempt to marry in breach of the


prescription of marriage renders the marriage void. It is also a
commission of the offence of bigamy under S94 of the Penal
Code
First marriage under law that allows man to marry
polygamously
-

S4,5,6, and 11 of the WC leave unclear whether a man


who is regulated by the WC is prohibited from
contracting a first marriage under a foreign marriage law
that allows polygamy, i.e to enter a marriage that is de
facto monogamous and de jure potentially polygamous
Still an open issue, and it is possible that the WC
prohibits such a marriage. However LWK suggests that
there is little reason to prohibit a de facto monogamous
marriage, as long as it does not later turn polygamous.

Facts:
-

Hussain v Hussain (1983)


4 FLR 339
Parties married under a Muslim marriage law that
allowed a married man to marry 4 wives.
The male party was, at the time of the first marriage,
domiciled in England, that would not have allowed him to
exercise this privilege.

Held (English CA)


-

Preferred to characterize marriage not by the traditional


reference to the marriage law under which it was
solemnized, but rather, by reference to the marriage law
of the male partys antenuptial domicile.
More meaningful to characterize the mans marriage by
the law of the domicile, as it is this law that will regulate
his capacity to marry.
By this reference, the mans first de facto monogamous
marriage was characterized as monogamous, which
rendered it valid in England.

Evaluation:
-

This reasoning can be extended to Singapore law, and is


preferred over drawing the character of the marriage
from the law which the parties married under.
The WC should not go so far to prohibit a de facto
monogamous marriage, as under the WC, the man will
never be allowed to exercise his privilege.
If he is allowed to do so, it will only be until he ceases to
be domiciled in Singapore, in which case the law has no
interest in regulating his marriage anyway.

Facts:
-

Soniya Chataram Aswani


[1995] 2 SLR(R) 736
A Hindu man and woman underwent a marriage
ceremony performed by the male partys priest in
Singapore in 1992, when the only marriage law available
to all non-Muslims was that in the WC.
The ceremony was solemn and performed in a temple
before family and friends.
The couple then cohabited as man and wife for some 25
months.
The solemnization was flawed because (1) the ceremony
was not authorized by the issuance of a valid marriage
licence and (2) the priest who married them was not a
licenced marriage official.
The solemnization breached both aspects of S22(1)
The female party then sought a judgment of nullity, and
the counterargument was that it is not common for
parties to breach both prescriptions of S22(1).

Held:
-

High court dismissed the application for judgment of


nullity, in effect deciding that this marriage was not even
worthy of the status of a void marriage.
The court regarded the attempt to marry as having been
made under Hindu religious marriage law and described
it as an attempted polygamous Hindu marriage.

This was simply because it was the male partys Hindu


priest who conducted the ceremony and performed this
according to Hindu rites of marriage.
The Hindu religious marriage law was used to apply in
Singapore but was abolished by the enactment of the WC
in 1961

Evaluation:
-

Confuses the characterization of marriage, and LWK


suggests that it is wrong to use a marriage law which had
been abolished in Singapore to characterize the
marriage.
If the marriage law was to be characterized, it could only
be Singapore law under the WC, which is a monogamous
marriage law.
The male party was a Malaysian citizen working and
residing in Singapore, and it is likely that he would have
been determined as domiciled in Malaysia whose law
should also be monogamous in character.
The characterization of marriage should either be the law
of the forum or the dual domicile of the parties (which
Hussain v Hussain supports).

Conversion to Islam

(3) Notwithstanding subsection (2), sections 4, 5 and 6 shall


apply to any person who contracts 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.

S3(3) of the Womens


Charter

The WC S3(3) has settled the matter. The provision


clearly prohibits a Singaporean man who is already a
party to a monogamous marriage from claiming the
capacity to marry a women other than his existing wife
upon his conversion to Islam.

F. Capacity Requirement (2) Minimum Age


-

S9 of the WC provides that a person possesses capacity to marry only upon the age of 18
years. Below that age, the person lacks capacity to marry although the Minister may
exercise his discretion to waive the minimum age requirement.
Note: this minimum age requirement is different from that requiring a person below the
age of 21 years to obtain the consent, generally of her parents, to the marriage.
Where the former goes towards defining capacity to marry, the latter is a mere formality
of solemnization.
While breach of capacity results in a void marriage, breach of formality does not.

Avoidance of marriages where either party is under


minimum age
S9 A marriage solemnized in Singapore or elsewhere between
persons either of whom is below the age of 18 years shall be
void unless the solemnization of the marriage was authorised
by a special marriage licence granted by the Minister under
section 21.

S9 of the Womens
Charter

G. Capacity Requirement (3) Parties Not Too Closely


Related

Prohibited degrees of relationship may be understood to consist of relationships of blood


ties and relationships arising from marriage between ones relatives, i.e. affinity.
The WC is more conservative compared to other jurisdictions as these prohibited degrees
are relatively broad.
Marriages
within
prohibited
marriage to relatives)

degrees

(essentially

S10.(1) A marriage solemnized 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.
1

(2) Notwithstanding subsection (1) and the First Schedule, the


Minister may, in his discretion, grant a licence under this section
for a marriage to be solemnized, notwithstanding the kindred or
affinity of the parties, if the Minister is satisfied that the
marriage is valid under the law, religion, custom or usage which
would have been applicable to the parties thereto if this Act had
not been enacted.
(3) A marriage solemnized under such a licence shall be valid.
First Schedule:

2
3

Regulates the prohibited degrees of relationship

Half and Step Siblings:


-

Somewhat ambiguous whether the First Schedule allows


such marriages. There would be sound genetic
arguments to read the table purposively, if necessary, to
prohibit marriages between half siblings.
Prohibition of marriages between step siblings is also
desirable as long as the prohibitions based only on
affinity remain as they are

S10 of the Womens


Charter

Adopted Child:
4
-

There is also some ambiguity over the extent of


prohibition where the person is an adopted child.
S7(8) of the Adoption of Children Act provides that the
adopted child lacks capacity to marry the adopted parent
as well as other adoptive siblings.
Would appear sensible to read prohibitions based on
blood ties in relation to the adopted childs natural
family, but those ties based on relatives marriages may
be more sensibly read in relation to the adopted childs
adoptive family.
This is still an open question

H. Capacity Requirement (4) Parties of Different Sexes

Avoidance of marriages between persons of same sex


S12.(1) A marriage solemnized in Singapore or elsewhere
between persons who, at the date of the marriage, are not
respectively male and female shall be void.
(2) It is hereby declared that, subject to sections 5, 9, 10, 11
and 22, a marriage solemnized 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.
(4) Nothing in subsection (2) shall validate any such marriage
which had been declared by the High Court before 1st May 1997
to be null and void on the ground that the parties were of the

S12 of the Womens


Charter

same sex.
2

Facts:
-

Petitioner married the respondent in July 1990, under the


provisions of the WC. The respondent subsequently
admitted that he had been born a female and underwent
a sex-change operation in 1987
After the surgery, Eric Hiok registered his sex as male on
his Identity Card.
Petitioner said that she would not have married the
respondent had she known that he was not a man as she
wanted children.
In Oct 1990, petitioner filed for divorce and sought a
declaration that there had never been a marriage as the
respondent was biologically a female, and alternatively
that the marriage was to be annulled on the basis of nonconsumnation.

Held:
-

A persons sex is that at birth, therefore, sex reassignment does not change the sex of the person.
Followed the English High Court decision in Corbett v
Corbett
[46]-[47] The definition of monogamous marriage in s2 of
the Interpretation Act implied a legal impediment to
marriages of persons who were not of opposite biological
sex.
[48] An identity card is not sufficient to conclusively
establish the sex of a person in law for purposes of
contracting a valid marriage.
[56] Reassignment surgery did not result in the
acquisition of all the biological characteristics of the
other sex.

The Womens Charter


-

[48] The preamble to the Charter enacted in 1961


provides that the Act is to provide for monogamous
marriages and for the solemnisation and the registration
of such marriages etc. The Charter introduced the
traditional marriage or the voluntary union of one man
and one woman for all Singaporeans except Muslims.
[49] Marriages must be solemnised in accordance with
the requirements of the Charter. The jurisdiction of the
court for the dissolution of marriages is limited to
monogamous marriages or those marriages deemed to
be monogamous. The Legislature has made it clear that
in the case of non- Muslims, the marital contract, unlike
ordinary contracts, cannot be varied by the parties

Lim Ying v Hiok Kian


Ming Eric
[1991] SGHC 135

whatever may have been the position under customary


laws and usages. The state determines who may enter
an enforceable marriage contract and the legal rights
and duties that go with the marital status.
[62] A decree of nullity ordered, and the marriage void
ab initio by reason of the fact that the parties were both
female.

Evaluation:
-

Now overturned by S12(3)(b), which states that the sex


of the person after having undergone re-assignment
surgery is that which was assigned to.
S12 also states that the sex of a person is that at the
time of marriage, as shown on his/her identity card.
Thus, sex re-assignment surgery has now been given
legal effect.

Intersexual Couple
3

Decided that Corbett v Corbett ought not to continue to


apply, so that all relevant factors would be considered,
which include (i) chromosomal factors (ii) gonadal factors
(iii) genital factors (iv) psychological factors (v) hormonal
factors (vi) secondary sexual characteristics.

W v W [2001] Fam 111

Homosexual Couple
4
-

Marriage between a homosexual couple is not recognized


in Singapore.
LWK suggests that we ought not to blindly follow
developments in other countries just because it has
become more common for homosexual marriages to be
recognized.
However, an open question remains: quite apart from
allowing same sex marriages to be solemnized in
Singapore, will courts in Singapore recognize to a samesex marriage that was validly solemnized in a jurisdiction
that allows such marriage?

I. Capacity Requirement (5) Parties Not Both Muslim

This last prescription exists solely to maintain separation between Muslim and Non-Muslim
marriage laws in Singapore.
1

S3(4) No marriage between persons who are Muslims shall be


solemnized or registered under this Act

S3(4) of the Womens


Charter

Change of Expression by Legislative Draftsman


-

2
-

Somewhat unfortunate that the provision was changed. It


used to read no marriage both of the parties to which
are Muslims shall be solemnized or registered under this
act.
The old provission makes clear that the prohibition is
only of a marriage between 2 Muslim parties.
Suggested that it should continue to be read the same
way today.

Apply only to solemnization in Singapore


3

When 2 Singaporeans marry outside Singapore, there is


no need to impose this prescription as its purpose does
not arise in that context. The provision makes it clear
that its scope of application is limited only to marriage
under this act.

Muslim Partys Capacity to Marry


-

When a Muslim person marries a non-Muslim under the


WC, there is some uncertainty over the Muslim persons
capacity to marry.
Is it regulated by Muslim law or the WC?
LWK suggests that it should be possible to draw an
analogy from the intended matrimonial home rule, to
regard the parties who have formed a common intention
for their marriage to be regulated by the WC so that it
ought to be the WC that regulates the Muslim partys
capacity to marry.

E. Conflicts between Womens Charter and Muslim Law


2

Restriction on solemnization of marriage


96.(1) No marriage shall be solemnized under this Act unless
all the conditions necessary for the validity thereof, in
accordance with the Muslim law and the provisions of this Act,
are satisfied.
(2) No marriage shall be solemnized under this Act if the man to
be wedded is married to any person other than the other party
to the intended marriage, except
(a) by a Kadi; or
(b) with the written consent of a Kadi, by the wali of the woman
to be wedded.
(3) Before solemnizing a marriage or giving his written consent

AMLA S96

to the solemnization of a marriage under subsection (2), the


Kadi shall satisfy himself after inquiry that there is no lawful
obstacle according to the Muslim law or this Act to such
marriage.
(4) No marriage shall be solemnized under this Act if at the date
of the marriage either party is below the age of 18 years.