Annulment of Marriage

Annulment of Marriage

Introduction

Every married couple goes through tough phases, sometimes right after their marriage. Such couples might soon realize that their marriage is not working out even before three years since such marriage. But in Singapore, a divorce proceeding cannot be commenced sooner than three years from the date of marriage. In such circumstances, a marriage can be annulled.

Is Annulment the same as Divorce?

No, annulment is not the same as divorce.

A divorce dissolves a marriage without denying that the marriage took place. Parties who are successfully divorced are known as “divorcees”. There is only one ground for divorce that is the irretrievable breakdown of the marriage which can be proven through the grounds of adultery, unreasonable behavior, desertion, or separation.

On the other hand, annulment dissolves a marriage denying its entire existence. An annulment means that the couple was never married in the first place and declares that the marriage was null and void. The marital status of the parties after a successful annulment returns to “single”. One has to prove that the marriage was void or voidable to annul a marriage.

What is a Void Marriage?

Void marriages are those marriages that were never recognized under the law. This means that the marriage was invalid from the very start. Section 105 of the Women’s Charter mentions the grounds for marriages that are Void.

1) Marriages between two Muslims registered or solemnized under the Women’s Charter.

2) Marriages between people of the same gender unless one of them has undergone a sex reassignment procedure.

3) Marriages between certain types of relatives.

4) Marriages where either party is underaged.

5) Marriages that are not properly solemnized.

6) Marriages to people who are already legally married to another under any custom, law, religion, or usage.

What is a Voidable Marriage?

Voidable marriages are those marriages that are valid under the law until one party commences proceedings on some given grounds for the marriage to be annulled. Section 106 of the Women’s Charter mentions the grounds for marriages that are Voidable.

1) Due to the incapability of either party, the marriage has not been consummated.

2) Due to the willful refusal of either party, the marriage has not been consummated.

3) Due to duress, mistake, mental disorder, or any other reason, either party did not validly consent to the marriage.

4) While the marriage took place with valid consent, either party was suffering from a mental disorder to an extent that they were unfit for marriage.

5) Either party was suffering from a transmissible sexually-transmitted disease at the time of the marriage.

6) At the time of marriage, the wife was already pregnant by another man.

Conditions for Annulment of Marriage

Legal Status

One does not need to be a Singaporean for the annulment of a void or voidable marriage. However, the married couple should be living in Singapore at the time of commencement of the annulment proceedings.

Deadline

i. For marriages that can be categorized as Void, there is no deadline to apply for an annulment.

ii. For marriages that can be categorized as Voidable, the deadline to apply is within three years from the date of marriage. However, if the allegations are on the grounds that the marriage is unconsummated due to the inability of either party or willful refusal, then there is no deadline to apply for an annulment.

What do you need to do for the Annulment of Marriage?

If one is satisfied with the grounds for annulment of the marriage as well as the conditions required, then the following steps need to be followed.

1) Filing a Writ of Nullity – Either of the parties can file a Writ of Nullity to commence the annulment proceedings.

2) Submitting other Documents – Either party will need to submit a few more documents which are:
(a) Statement of Claim – Indicating the alleged grounds for annulment.
(b) Statement of Particulars – Backing your claims with the facts to prove them.
(c) Proposed/Agreed Parenting Plan – Stating the proposed or agreed arrangements for your child(ren).
(d) Proposed/Agreed Matrimonial Property Plan – Stating the proposed or agreed arrangements concerning HDB Flats.

3) Interim Judgment – After submitting all the required documents the Court may grant an interim judgment.

4) Settling Ancillary Matters – After the Court grants an interim judgment, the next step is to settle ancillary matters i.e, division of matrimonial assets, custody of the child(ren), and quantum of maintenance.

5) Judgment of Nullity – After the ancillary matters have been settled, the Court may grant the final Judgment of Nullity stating that the marriage is annulled successfully.

How much Time does the Entire Process Take?

If the other party does not challenge the claims for annulment, then the process would take 4 to 6 months for the Certificate of Nullity to be granted. The Applicant will be required to appear before the Court once.

However, if the other party contests the claims for annulment, the process would take longer to reach a conclusion depending on the complexity of the case.

What Happens When the Claims are Uncontested?

If the other party agrees with going for an annulment of the marriage, the procedure, in such circumstances, is relatively more straightforward. After the submission of the required documents the following steps are:

1) The other party will file a Memorandum of Appearance indicating that they are not contesting the annulment.
2) The applicant is required to sign the Affidavit of Evidence in Chief indicating that the documents filed prior are true and accurate.
3) The other party will sign a Draft Consent Order indicating that they have full agreement on the Ancillary Issues.
4) The applicant is required to attend an Open Court hearing and will be granted the annulment and an order-in-terms of the Draft Consent Order.
5) The Final judgment of Annulment will be received approximately 3 months after the hearing.

What Happens When the Claims are Contested?

If the other party challenges the claims for the annulment of marriage, the procedure takes much longer to reach a conclusion depending on the complexity of the case. Evidence needs to be put forth to back up all the claims by both the plaintiff and the defendant. Some defenses available to the other party are:

1) The plaintiff acted in a way that led the defendant to believe that the plaintiff did not want to avoid the marriage even though he knew that the marriage could have been avoided.

2) If the marriage was annulled, it would be unfair to the defendant.

3) For grounds relating to transmissible sexually-transmitted disease or the wife’s pregnancy by someone else, the plaintiff would need to show that he was ignorant of these facts at the time of the marriage.

4) For a few other grounds, the proceedings would be invalid if commenced after 3 years from the date of the marriage.

What Happens to the Child(ren) after Annulment?

Before the Final Judgment of Annulment is decided, the parents would need to settle the Ancillary Matters which involves the custody of the child(ren). As for the legitimacy status of the child(ren):

1) For Voidable Marriages – A child(ren) born out of Voidable marriages which are annulled is a legitimate child(ren).
2) For Void Marriages – A child(ren) born out of Void Marriages which are annulled is a legitimate child(ren) if, at the time of solemnization of the marriage, the parties believed that their marriage was valid.

What about HDB Flats?

HDB rules stipulate that the flat must be surrendered to HDB if the buyers of the flats fail to satisfy at least 5 years of stay before disposing of the flat. Thus, if the Writ of Nullity is filed within the first 3 years of marriage, it is probable that the HDB flat has to be surrendered.

What to do after Unsuccessful Annulment of Marriage?

In case the application for annulment of the marriage is not successful, the parties are left with two options.

i) In case of marriage for less than 3 years, one can apply for permission to file for divorce early by proving exceptional hardship or depravity.

ii) Parties can also sign a Deed of Separation to live apart from each other until 3 years of the marriage have passed and can then file for divorce.

Few Cases concerning Annulments

1) ADP v ADQ [2012] SGCA 6

In this case, the Court stated that there is a clear distinction between Void and Voidable marriages. In the case of a Void marriage, a third party, having an interest in the matter, can make out a case against the other party or parties relying on the fact that the marriage concerned was Void, to begin with. However, for Voidable marriages, only the spouses have the right to make out a case against the other party challenging their marriage to be annuled and can only do so during the lifetime of the other spouse.

2) Tan Ah Thee v Lim Soo Fong [2009] SGHC 101

In this case, the Court highlighted the fact that a third party cannot challenge the validity of a marriage in respect of Voidable grounds mentioned under Section 106 of the Women’s Charter. The judgment also stated that improper motives were not a ground for the annulment of marriage under section 105 of the Women’s Charter. The law does not allow for the identification of parties’ private motives to undermine the validity of the marriage. Even if such motives can be proved, it is irrelevant in considering whether the marriage is valid or not.

3) Kwong Sin Hwa v Lau Lee Yen [1993] SGCA 6

The Court, in this case, stated that not every pre-nuptial agreement that regulates and restricts marital relations between spouses is void and against public policy. Although the law does not forbid them to regulate their married lives and incidents of marriage, such agreements must not seek to allow them to negate or resile from the marriage. Even if the defendant refuses to undergo a lawful pre-condition to consummation previously agreed between the parties, a marriage may be dissolved on the ground of willful refusal to consummate.

4) Tang Yuen Fong v Poh Wee Lee Jerry [1995] SGHC 149

The wife filed a petition for a declaration of nullity on the grounds of willful refusal to consummate the marriage against the husband. The case was uncontested but the court found that the parties were trying to convert a case for divorce into one of annulment as the latter was speedier and carried no stigma. The Court emphasized that a petition for annulment or divorce was not merely a matter between the spouses and the interests of the State should also be given importance. Proper evidence was not provided to back up the claims of willful refusal to consummate and the Court refused to act as a “rubber stamp”, even in an uncontested case, and dismissed the petition.

5) LSJ v LKK [1992] SGHC 168

The petition was filed on the ground of willful refusal to consummate by the husband, even after several advances made by the wife. The husband made up excuses every time mainly stating his business. The Court stated that a spouse has a statutory duty to “co-operate” with each other including working together, collaborating, uniting, contributing, lending assistance, or acting in concert. The Court also stated that medical examination was not mandatory for a petition on the grounds of willful refusal to consummate as against impotency or incapacity. Satisfying all the requirements under the law, the petitioner was granted the decree of nullity.

6) Tan Lan Eng v Lim Swee Eng [1993] SGHC 258

The petitioner filed for divorce one year after the marriage but withdrew it after the husband agreed to consummate the marriage after the purchase of an HDB flat. Even after such a purchase, the husband refused to live with the wife in the flat and consummate the marriage. The questions before the court were whether the marriage was voidable, whether the purchase of the flat was a condition for consummation or solely a commercial interest, and whether the flat was a matrimonial asset. The Court found that the wife did not act in a way that led the husband to believe that she did not intend to annul the marriage even though he would not consummate it. The Court also concluded that the flat was a matrimonial asset and the proceeds were to be divided between the parties after the requirements for nullity were satisfied.

7) Chua Ai Hwa (mw) v Low Suan Loo [1993] SGHC 127

In this case, the wife and the husband after getting married purchased a flat in their joint name. Later, the wife filed a petition for annulment on the grounds of willful refusal to consummate based on merely one instance right after the marriage. The Court stated that such willful refusal should at least continue up to the date of the petition and not merely one refusal after marriage. The Court concluded that it was a “limited purpose” marriage, the purpose being the purchase of the flat, and also had no evidence to back up the claims made by the petitioner. The petition by the wife was dismissed.

8) K Sulochana a/p R Krishnan v Chandran s/o Sankunny Nair [1994] SGHC 19

The wife filed a petition for annulment on the grounds of willful refusal to consummate against the husband, who was a part of a religious Hindu group. According to the wife, after the registration of the marriage, a temple ceremony took place where the husband laid out some conditions to the wife for her to live with him. The wife accepted the conditions but after three months of living together, she moved out due to the intolerable behavior of the husband. The Court, after going through the evidence, concluded that the wife, at the time of the marriage, did act in a way that made the husband believe that she would not pursue annulment even though she could have avoided the marriage from the beginning. The petition was dismissed.