Main Page WEB HOST Mission Raffles Group Law Practice Contact Web Host Food for Tort Red Herring 1 Wife & Mother Red Herring 2 Autism Red Herring 3 The Long March BlueWhale GENES & generation SAY HIPPOPOTAMUS also accessible through singaporelawraffles.com raffleslaw.com   Are pre-nuptial agreements valid Not every pre-nuptial agreement regulating or restricting the marital relations of the husband and wife is void and against public policy. In England (Morgan v Morgan), a 72 year old man married a 59 year old woman pursuant to a pre-nuptial agreement that they would live together for companionship only. After the marriage, they never attempted sexual relations. The husband obtained medical evidence to prove that he was impotent at the time of the marriage and petitioned for annulment of the marriage on the ground of his incapacity. The court dismissed his application. The pre-nuptial agreement was recognised by the court. In another English case (Brodie v Brodie). A woman was pregnant and her friend agreed to marry her only if she would sign an agreement to separate after the marriage. The court held that the pre-nuptial agreement was against public policy and void. Whether a pre-nuptial agreement is void depends on the relevant circumstances and in particular, the nature of the agreement, the intention of the parties and the objective the agreement was designed to achieve.   See a Case A couple married at the Singapore Registry of Marriages in April 1991. They had previously agreed that they would only cohabit and consummate the marriage only after they had celebrated the traditional Chinese customary rites. Subsequently the wife refused to go through with the Chinese ceremony. The husband claimed that this refusal amounted to a wilful refusal to consummate the marriage and sought a decree of nullity. The law does not forbid a man and a woman to agree as to how they should live and conduct themselves as husband and wife, when and where they would commence to live as husband and wife, when they would consummate their marriage, when they would have a child or children and how many children they would have.

Such agreements made between husband and wife are not illegal or immoral or against public policy.

In particular, the law does not forbid parties to make a pre-nuptial agreement to the effect that after the marriage at the Registry of Marriages they would go through a religious or customary ceremony before they would cohabit and consummate the marriage. The intention of the parties was to comply both with the law and with Chinese, Malay or Indian custom. Indeed, the law does not prohibit a couple, who are not members of any church or temple, from wanting to undergo certain religious rites and postponing the consu mmation of their marriage until the rites have been performed.

Consequently, where such a pre-nuptial agreement has been made and one of the parties after the marriage at the registry refuses to proceed with the religious or customary ceremony, and the marriage was not consummated, the court would recognise such agreement and declare that one party had refused to consummate the marriage. Such a pre-nuptial agreement would not contravene either the spirit or the letter of these provisions of the Women's Charter.

In conclusion, pre-nuptial agreements are not forbidden so long as they do not seek to negate the marriage.

 

A case where petition for nullity fails

The petition was presented in a standard fashion as many such petitions are presented. It said that the parties had agreed not to consummate their marriage until they had gone through a ceremony of marriage according to Chinese customary rights. There were no discussions regarding where they would cohabit and consummate the marriage. After the marriage, the parties lived separately without consummating it. Their relationship deteriorated.

The court dismissed the petition. It decided that the parties were converting a case for divorce into one of nullity as nullity is speedier and carries no stigma.

 

In an English case, the House of Lords commented that the court must not, especially in a petition for nullity of marriage, act as a rubber stamp and grant the petition. The court must be vigilant to ensure that parties do not circumvent the requirements of a petition for divorce and avoid its stigma by filing a "consent" petition for nullity.

The Singapore court is also opposed to the practice of rubber stamping uncontested petitions for nullity. The Court of Appeal has stated that in uncontested matrimonial causes, it is wrong for parties to assume that the courts merely rubber stamp their petitions and grant the decree sought. It must be remembered that even in such proceedings the material allegations must be proved to the satisfaction of the court.

In a petition for nullity, the fact of non-consummation itself is insufficient, there must be willful refusal by the husband and to demonstrate such willfulness the wife must give full particulars to show that there was no fault on her part, she did not cause it and had offered everything required of her.

 

A case where petition for nullity succeeds

After the marriage in August 1991, the wife and husband lived separately with their respective parents. The couple purchased a HDB flat and the wife requested the husband on numerous occasions that they move into the flat but he refused to do so. The wife had made no less than six attempts to consummate the marriage but the husband refused to do so.

A wife petitioned to nullify the marriage due to non-consummation and for the flat to be sold and the net proceeds (after repayment to CPF) to be divided equally between them. The court granted a decree of nullity and approved the sale of the flat.

The decree of nullity operates to annul the marriage only as respects any time after the decree has been made absolute, and the marriage notwithstanding the decree will be treated as if it had existed up to that time and assets acquired are treated as matrimonial asset.

 

Section 45 of the Women's Charter (1) Upon the solemnization of marriage, the husband and the wife shall be mutually bound to co-operate with each other in safeguarding the interests of the union and in caring and providing for the children. (2) The husband and the wife shall have the right separately to engage in any trade or profession or in social activities. (3) The wife shall have the right to use her own surname and name separately. (4) The husband and the wife shall have equal rights in the running of the matrimonial household.

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