NULLITY OF MARRIAGE Defective marriage Void Voidable Differences:- Explained by Lord Greene MR in the case of De Reneville v De Reneville: “A void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree of annulling it; a voidable marriage is one that has been treated by every court as a valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction”.

DIFFERENCES VOID MARRIAGE VOIDABLE MARRIAGE VALID MARRIAGE DOES NOT EXIST AT THE TIME OF THE SOLEMNIZATION OF THE MARRIAGE 2) DECISION AS TO WHETHER THE MAR IS VALID/ VOID CAN BE MADE AT THE TIME OF SOLEMNIZATION 3)THE VALIDITY MAY BE CHALLENGED AT ANYTIME DURING/AFTER THE LIFETIME OF THE PARTIES 4) MAY BE CHALLEGED BY EITHER PARTIES/THIRD PARTIES VOIDABLE MARRIAGE VALID MARRIAGE EXIST UNTIL ANNULLED BY A COURT 2) DECISION AS TO WHETHER THE MAR IS VALID/ VOID- ONLY AFTER AN EVENT HAS TAKEN PLACE SUBSEQUENT TO THE SOLEMNIZATION 3) VALIDITY MAY BE CHALLEGED ONLY DURING THE LIFETIME OF THE PARTIES 4) MAY BE CHALLENGED ONLY BY THE PARTIES TO THE MARRIAGE

Jurisdiction of the court Section 67 LRA (a)+(c) OR (b)+(c) Cases: Yong Fui Phin v Lim Tow Siew [1996] 3 MLJ 479. Court has no jurisdiction since there is nothing to show that both parties were resident in Malaysia at the time of the commencement of the proceeding. Jurisdiction of the court

Cheng Sun Chuen v Lee Chee Seng [1983] 2MLJ 371. It was established that after the passing of the LRA, the court cannot under section 67 of the Act grant a decree of nullity of marriage unless both the parties to the marriage reside in Malaysia at the time when the proceedings were commenced Other case: Ng Wee Whye v Wong Sook Heng [1978] 1 MLJ 100.

GROUNDS Void marriage Section 69 Section 75 (7) monogamous marriage b) age c) within prohibited relationship d) not respectively male and female Section 75 (7) adds another grounds i.e. S. 22(4) and s. 72. -It shows that section 69 is not exhaustive.

Voidable marriage Section 70 a ) Marriage was not consummated owing to the incapacity of the party to consummate it. A. Consummation There must be a sexual intercourse which is ordinary and complete.Thus, marriage is held to be consummated as soon as the parties have sexual intercourse after the solemnisation of the marriage.

1) Standard of s. intercourse which is legally recognised by law Case: D.E v A.G Dr. Lushington : “ In order to amount consummation, the intercourse must be ordinary, complete and not partial”. -H could not achieve full penetration because of a deformity of the wife’s vagina.

2) Sexual intercourse requires ability to achieve full penetration which must be more than transient in nature. W. v W. Evidence shows that , the husband even though was able to penetrate, but it was for a short while as his erection is quickly collapse. Brandon J.: “ Full and complete penetration is an essential ingredients to complete intercourse….I do not think that there is any authority which binds me to hold that any penetration however, transient, amount to consummation of marriage.” Therefore, nullity was granted.

3) The sterility of either party / the inability of the husband to ejaculate is irrelevant. R. v R. Even though there is no ejaculation, still it amount to consummation as long as it is full, complete and ordinary.

HOL: “The marriage has been consummated 4) Effect of using contraceptive sheath COWEN V COWEN (1945) COA: No consummation when the husband has worn contraceptive sheath / practice coitus interruptus. BAXTER V BAXTER (1947) HOL: “The marriage has been consummated notwithstanding the husband using a sheath.” - overruled Cowen v Cowen as to the usage of contraceptive sheath CACKET V CACKET (1950) Hodson J. “ Marriage was consummated by coitus interruptus”.

B) Incapacity to consummate a) Types of incapacity i) physical inability ii) psychological inability Maybe either general or as regards to the particular spouse only. L. V L.(1956) MLJ 145 Several attempts were made to consummate the marriage but failed since he cannot maintain an erection. Medical inspectors appointed by the court found that the husband was normal and was still capable to have a sex with another woman. Held: Void. Incapacity not merely based on physical inability but also psychological inability.

Psychological inability must amount to invincible repugnance not by merely unwillingness / reluctance. SINGH V SINGH Wife petitioned on the ground of inability to consummate (psychologically impotent). Held: Dismissed the petition as nothing of a psychiatric / sexual aversion on her part.

b) Incapacity must be incurable i.e. 1) Cannot be cured at all 2) Can be cured only through an operation but attended with danger which effect his /her life. 3) Refused to submit to an operation. Refer to Rule 26 of the Divorce and Matrimonial Proceedings Rules 1980 – medical inspector will be appointed. S. v S. – Where the court adjourned the case for further evidence from the result of the operation.

Burden of proof On the petitioner. Who can petition? Either party. HARTEN V HARTEN “ You can also petition for nullity due to your own incapacity”. To be a ground for nullity, the incapacity must have existed at the date of the marriage and not resulted from injury or accident which occurred subsequent to the marriage ( ie. before the consummation of the marriage)

70(b) that the marriage has not be consummated owing to the willful refusal of the respondent to consummate it. Willful refusal is not simply because a spouse refused to allow sexual intercourse to take place but refused to do so without just excuse. BAXTER V BAXTER L. Greene MR ; “A wife may refuse to allow intercourse for a considerable period of time because of nervous / coyness. Husband would then be expected to act as a reasonable man and take reasonable steps to help his wife to overcome her reluctance before he successfully petition for willful refusal by her”.

DREDGE V DREDGE The husband made an every effort to consummate the marriage but was refused by the wife. Then he sought a decree of nullity on the ground of willful refusal of his wife . Held : The wife had willfully refusal to consummate the marriage and that the petition was granted.

HORTON V HORTON “ Willful refusal connotes a settled and definite decision come to without just excuse and the whole story of the marriage must be looked at.” The whole history of the marriage may relates with any condition precedent to sexual intercourse. Thus, failure to bring about such condition may amount to willful refusal without just excuse. Eg: condition to undergo a religious/customary ceremony prior to the consummation of the marriage .

JODLA V JODLA RATHER V SHANMUGAM KAUR V SINGH TAN SIEW CHOON V TAN KAI HOI KWONG SIN HWA V LAU LEE YEN From the above cases, one of the ground that the court has considered as ‘just excuse’ is in the case the parties have agreed that the civil marriage will be followed by religious ceremony.

Thus, in such a situation it is ‘just excuse’ for not to consummate the marriage. However, if one of the parties reluctant or refuse to go through / arrange for the religious ceremony, as agreed, then it will amount to willful refusal ‘without just excuse’.

YONG FUI PHIN V LIM TOW SIEW At the time of the marriage registration, both parties mutually agreed that they would continue to live separately until a wedding ceremony under chinese custom was celebrated at a later date. P filed to nullify the marriage as the marriage was not consummated as they did’nt go through the customary marriage due to unforeseen circumstances. Held: The evidence merely showed that the marriage was not consummated as both parties did not go through the customary marriage due to unforeseen circumstances. It was therefore insufficient to establish that the marriage was not consummated without just excuse. - P had not shown that there was willful refusal to consummate

UNREPORTED CASE: James Foong J: “A marriage cannot be nullified on the ground of non-consummation because of religious or customary belief as it is not a condition in civil law marriage”

Section 70 ( c ) – either party did not validly consent to the marriage whether in consequence of :- 1) Duress 2) Mistake 3) Unsoundness of mind or otherwise

1) Duress -means – marriage was contracted out of fear or threats where the party was induced to enter into a marriage, which in the absence of such compulsion, the marriage would never been entered into.

Griffith v Griffith [1944] I. R 35 Haugh J: “duress begin from gentle form of pressure and end with physical violence accompanied by threats of death” Szechtar v Szechtar [1970] 3 All ER 905 Held: “if a formal consent has been brought by force, menace or duress – a yielding of the lips, not of the mind, it has no legal effect”

MOSS V MOSS There must be a voluntary consent of both parties…..It has been repeatedly stated that the marriage may be declared null on the ground of duress. H v H SZECHTER V SZECHTER BUCKLAND V BUCKLAND The cases illustrate an indirect duress caused by some external circumstances for which the petitioner is not himself responsible for it.

SCOTT V SEBRIGHT The case illustrates a direct duress / duress by the other party to a marriage. Differentiate between:- i) Disagreeable situation – a person enter into a marriage as a result of social obligation – marriage will not void as in the case of SINGH V SINGH ii) Real threat – marriage void.

2) Mistake i) As to identity of the other contracting party. RE C AND D Bell J : “Marriage void as there was a mistake as to the identity of the respondent. She thought she was marrying a male whereas in fact she was marrying a combination of both male and female”. The judgment of the case was followed in LIM YING V HIOK KIAN MING ERIC

ii) As to the nature of the ceremony and party did not appreciate that he was contracting a marriage. MEHTA V MEHTA [1954] All ER 60 The petitioner had mistakenly married the respondent in a ceremony which was thought to be a conversion ceremony VALIER V VALIER

3) Unsoundness of mind If a person did not know that he was entering into a marriage / unable to understand the nature of the contracts into which he was entering.

Section 70 (d) The decree shall not be pronounced solely because the party is mentally disordered person. It must be shown that the party is suffering from mental disorder to such a degree as to be unfit for marriage. RE ESTATE OF PARK Singleton J; “The correct test is whether he/she is capable of understanding the nature of the contract into which she /he was entering i.e. capable of appreciating that it involved the duties and responsibilities attached to the marriage”. BENNET V BENNET

Section 70 (e) Suffering from a veneral disease in a communicable form. Section 70 (f) The respondent was pregnant by some person other than the petitioner. STOCKER V STOCKER Section 70(e) (f) subject to section 71(2).

BARS TO RELIEF. Section 71 – refers to something that might prevent the court to grant the petition to nullify the marriage. The onus of proof is on the Respondent, but if he choose not to raise any of these bars, the court will grant the decrees if the ground has been made out.

Section 71(1) – must satisfy both (a) and (b). Case : W v W Married in 1941. Attempts by the husband to consummate the marriage were unsuccessful. On the suggestion of the husband the parties adopted a child. Then husband left the wife and later presented a petition on the ground of wife was unable to consummate the marriage COA: Evershed MR:- “ Has there been conduct here on the part of the husband of such character that the court must say that he has approbated the marriage and has affirmed its existence and validity so that it is inequitable and …also contrary to public policy, that his petition should be granted?”.

PETTIT V PETTIT The marriage was never been consummated owing to the husband’s incapacity. The husband then found another woman and applied for nullity of the ground of his impotency. The court refused to grant the petition as after such a long time of marriage, the wife had remained faithful even though she was deprived of sexual intercourse. It would therefore unfair and inequitable to grant the decree.

Consequences:- 1) Marriage - retrospective effect 2) Status – woman as a feme sole 3)Child – Section 75 - i) void - ii) voidable