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Capacity to Marry
A. The Relevant Sections of the Womens Charter
Scope of Application
S3 of the Womens
Charter
(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
degrees
(essentially
S9 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
Domicile of Choice
-
Arpinya
Rongchotiawattana v
Wee Oh Keng [1997] 3
SLR(R) 378
Held:
-
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
Facts:
-
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
See above
Domicile
Rule
Intended
Evaluation:
-
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
Facts:
2
SGHC:
-
SGCA:
-
3
-
Facts:
1
Held:
-
Moh Ah KiuvCentral
Provident Fund Board
and other appeals
[1992] SGCA 50
Bigamy
Facts:
-
Evaluation:
-
Facts:
-
Held:
-
Evaluation:
-
Conversion to Islam
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.
S9 of the Womens
Charter
degrees
(essentially
2
3
Adopted Child:
4
-
same sex.
2
Facts:
-
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.
Evaluation:
-
Intersexual Couple
3
Homosexual Couple
4
-
This last prescription exists solely to maintain separation between Muslim and Non-Muslim
marriage laws in Singapore.
1
2
-
AMLA S96