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Kwong Sin Hwa

v
Lau Lee Yen
[1993] SGCA 6
Court of Appeal Civil Appeal No 90 of 1992
L P Thean J, Warren L H Khoo J and S Rajendran J
20 January 1993
Contract Illegality and public policy Statutory illegality Pre-nuptial
agreement between parties intending to marry to consummate marriage only after
Chinese customary rites Refusal by wife to go through with customary rites
Whether pre-nuptial agreement not to consummate until after Chinese rites contrary
to Womens Charter and public policy Whether pre-nuptial agreement enforceable
Sections 22, 23(1) and 45 Womens Charter (Cap 353, 1985 Rev Ed)
Family Law Grounds of voidable marriage Non-consummation Pre-nuptial
agreement between parties intending to marry to consummate marriage only after
Chinese customary rites Refusal by wife to go through with customary rites Prenuptial agreement enforceable Whether refusal constitutes wilful refusal to
consummate marriage
Facts
This was an appeal from the decision of a judicial commissioner disallowing the
petition of a husband, the appellant, who had sought to annul his marriage on
the ground that his wife, the respondent, had wilfully refused to consummate the
marriage within the meaning of s 100(b) of the Womens Charter (Cap 353,
1985 Rev Ed) (the Charter). The husband and wife were married in Singapore
on 1 April 1991. They agreed before their marriage that they would only cohabit
and consummate the marriage after they celebrated the traditional Chinese
customary rites. Subsequently the respondent wife refused to go through with
the Chinese rites claiming that she felt that she should enter a nunnery and live a
religious life. The judicial commissioner dismissed the husbands petition on the
ground that their pre-nuptial agreement was contrary to public policy and ss 22,
23(1) and 45 of the Charter, and hence void.
Held, allowing the appeal:
The Charter provisions relied on by the judicial commissioner in voiding the
pre-nuptial agreement did not prohibit a married couple from undergoing a
ceremony according to customary rites and postponing the consummation of
the marriage until such customary rites had been performed. Such agreements
made between persons intending to become husband and wife were not illegal or
immoral or against public policy. Consequently, where such a pre-nuptial
agreement had been made and one of the parties after the marriage at the
registry refused to proceed with the religious or customary ceremony, he or she
had made it impossible for the marriage to be consummated as agreed. It was
not wrong for the court to give recognition to such agreement and to hold the

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party in default as having in effect wilfully refused to consummate the marriage:

at [25] to [30] and [38].
[Observation: The law did not forbid the parties to a marriage to regulate their
married lives and also the incidents of the marriage, so long as such agreement
did not seek to enable them to negate the marriage or resile from the marriage.
Only an agreement to negate the marriage or resile from the marriage which if
implemented and enforced would make a mockery of the law regulating
marriages was unquestionably against public policy and void: at [22] and [38].
In uncontested matrimonial causes, it was wrong for parties to assume that
the courts merely rubber stamp their petitions and grant the decree sought. Even
in such proceedings the material allegations must be proved to the satisfaction of
the court: at [39].]
Case(s) referred to
A v J [1989] Fam 63; [1989] 1 FLR 110 (folld)
Brodie v Brodie [1917] P 271; [19161917] All ER Rep 237 (distd)
Jodla v Jodla [1960] 1 WLR 236; [1960] 1 All ER 625 (folld)
Kaur v Singh [1972] 1 WLR 105; [1972] 1 All ER 292 (folld)
Morgan v Morgan [1959] P 92; [1959] 1 All ER 539 (refd)
Ng Bee Hoon v Tan Heok Boon [1992] 1 SLR(R) 335; [1992] 2 SLR 112 (not folld)
Tan Siew Choon v Tan Kai Ho [19711973] SLR(R) 761; [19691971] SLR 361
(folld)
Vervaeke v Smith [1983] 1 AC 145; [1982] 2 All ER 144 (refd)
Legislation referred to
Womens Charter (Cap 353, 1985 Rev Ed) ss 22, 23(1), 45 (consd);
ss 100(b), 181, 182
Suresh Kumar (Lam Kumar Ng & Naidu) for the appellant;
Respondent absent.
[Editorial note: This was an appeal from the decision of K S Rajah JC in the High
Court. See [1992] SGHC 204.]

20 January 1993

Judgment reserved.

L P Thean J (delivering the judgment of the court):

1
This was an appeal against the decision of K S Rajah JC in which he
dismissed the petition of the appellant for annulment of his marriage to the
respondent, which was founded on the ground of wilful refusal by the
respondent to consummate the marriage. Before us the respondent was not
present or represented. Having heard and considered the arguments
advanced on behalf of the appellant, we allowed the appeal and now give
our reasons.

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2
The appellant was at the material time, and presumably still is, a
hairstylist and a permanent resident of Singapore. He was lawfully married
to the respondent, then a factory worker and also a permanent resident of
Singapore, at the Registry of Marriages in Singapore on 1 April 1991. On
15 February 1992, the appellant filed a petition praying for nullity on the
ground that the respondent had wilfully refused to consummate the
marriage under s 100(b) of the Womens Charter (Cap 353). The petition
was duly served on the respondent who entered an appearance stating that
she did not wish to contest the petition. The petition was heard on 21 May
1992 and at the hearing the respondent appeared in court personally and
confirmed that she was not contesting the petition.
3
The appellant testified that prior to the marriage at the registry, the
parties had agreed that after the marriage they would continue to live
separately and there would be no cohabitation or consummation until after
the parties had performed and undergone the traditional Chinese
customary rites and set up a matrimonial home. Hence, after the marriage,
both parties lived separately at their respective addresses and had never
lived together as husband and wife. In May 1991 the appellant asked the
respondent to consummate the marriage; he asked her to have sexual
intercourse with him when she was in his house. The respondent refused,
stating that she came from a family with a traditional background and that
she wished to have customary rites performed before consummating the
marriage. The respondent, however, then refused to go through the Chinese
customary rites, giving financial problems as the reason and later saying
that she wanted to be a nun. The appellant further said that the respondent
told him that she had since childhood wanted to be a nun but shelved the
idea after meeting the appellant, and that after the marriage the respondent
was having nightmares and her only solace was prayer and a nunnery was
her place. For these reasons, the respondent had refused to undergo the
Chinese customary rites and by such conduct had refused to consummate
the marriage.
4
The learned judicial commissioner at the conclusion of the hearing
dismissed the petition. In his grounds of judgment he held that on the
evidence before him, he was not satisfied that there was credible evidence
on which he could find wilful refusal to consummate the marriage. He did
not say that he did not accept the evidence of the appellant or that the
appellant was not a truthful witness. It seems to us therefore that when he
said he was not satisfied that there was credible evidence of wilful refusal
he meant that there was no evidence sufficient in law to warrant a finding of
wilful refusal to consummate the marriage and not that the evidence given
by the appellant was not credible. This is tolerably clear from the manner in
which he dealt with the nature and validity of the pre-nuptial agreement
entered into by the parties.

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5
In arriving at his conclusion the learned judicial commissioner
followed the decision of P Coomaraswamy J in Ng Bee Hoon v Tan Heok
Boon [1992] 1 SLR(R) 335 and refused to follow the decision of Choor
Singh J in Tan Siew Choon v Tan Kai Ho [19711973] SLR(R) 761. The
learned judicial commissioner said:
The petition was clearly filed on the basis that the law was as stated by
Choor Singh J in Tan Siew Choon v Tan Kai Ho [19711973] SLR(R)
761, but no submission was made on the law. It is wrong to assume that
a court becomes a rubber stamp simply because the petition is not
contested.

6
There is a comprehensive statement of the law by P Coomaraswamy J
in Ng Bee Hoons case and it is not necessary for me to give reasons for not
following the decision in Tan Siew Choon v Tan Kai Ho, but I should,
however, like to set out the provisions Parliament made for the
solemnisation of marriages under customary rites by persons who wish to
do so without having to enter into a pre-nuptial agreement and run foul of
the provisions of the Womens Charter.
7
The learned judicial commissioner then went on to consider the
various provisions of the Womens Charter and in particular ss 181 and 182
and concluded thus:
Having regard to the provisions made by Parliament for persons to
continue to marry and to solemnize marriages under customary rites
there can be no valid reason for persons entering into pre-nuptial
agreements on the ground that a traditional marriage is preferred. I can
do no better than follow Punch Coomaraswamy J in Ng Bee Hoon v
Tan Heok Boon [1992] 1 SLR(R) 335 where the learned judge said:
it is contrary to the law as contained in s 45(1) of the Charter
and to public policy for parties married under the Charter to
blow hot and cold. They should not be enabled to say:
(a) we are lawfully married and all the incidents of
marriages to our advantage attached to us, like income tax
relief, constitution of a family unit to make us eligible to
purchase a Housing and Development Board flat, etc; but,
(b) as another ceremony which we agreed upon prior to
the solemnization at the Registry has not taken place, we
are not married and therefore cannot live together or have
sexual relations.
To enable them to blow hot and cold will make a mockery
of the law and of the marriage, the foundation of any
civilized society.
On the evidence adduced before me, I was not satisfied that there was
credible evidence on which I could find wilful refusal to consummate
the marriage. The petition was dismissed.

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8
We now turn to examine the two cases referred to by the learned
judicial commissioner, Tan Siew Choon v Tan Kai Ho and Ng Bee Hoon v
Tan Heok Boon ([5] supra). In the first case, the parties were married at the
Registry of Marriages in Singapore. They had agreed that the ceremony at
the registry was to be followed by another ceremony in accordance with the
Chinese custom and it was understood that there could be neither
cohabitation nor consummation of the marriage pending the Chinese
customary ceremony. The husband, however, made no attempt to arrange
for the Chinese customary marriage. The wife, after waiting for several
months, discovered that the husband was engaged to be married to another
girl. Several weeks later the husband informed the wife that his father
objected to the marriage. After this, the husband and wife parted company
and since then had never met. The wife petitioned for annulment of the
marriage on the ground of wilful refusal on the part of the husband to
consummate the marriage. Choor Singh J allowed the petition and granted
the decree. He said, at [7]:
I accept the petitioners evidence that the respondent knew his wifes
views on the matter that there would be no consummation until the
Chinese ceremony which was to follow the wedding at the Marriage
Registry. I accept the wifes evidence that she is fully prepared to live
with the respondent as man and wife in the fullest sense after the
Chinese ceremony has been performed. By his refusal to proceed with
the Chinese ceremony, the necessity for which was a pre-condition to
matrimonial cohabitation, the husband, in the particular
circumstances of this case, made it impossible for the wife with a good
conscience to live with him as husband and wife and this refusal or
failure to proceed with the Chinese ceremony was in this case a just
excuse for her to refuse sexual intercourse even if it had ever been
requested. There is no evidence that the husband ever requested
intercourse in terms, and in my opinion, on the facts, it is really
unnecessary to make a finding because even if he has requested
intercourse she nevertheless has a just excuse for refusing until there
has been a Chinese ceremony. By his refusal to proceed with such a
ceremony the husband put it out of the power of the wife to request
intercourse. She had suggested that they undergo a Chinese ceremony
and live in a room in her mothers house but there was no response to
this suggestion from the husband. This request was refused without
any just excuse on the part of [the] husband. On the facts of this case,
in my opinion, there was wilful refusal on the part of the husband [to]
consummate the marriage.

9
The learned judge also referred to the case of Jodla v Jodla [1960]
1 WLR 236; [1960] 1 All ER 625 and said that that case supported the view
he took.
10 In Ng Bee Hoon v Tan Heok Boon ([5] supra) the parties were married
at the Singapore Registry of Marriages. They had previously agreed that
they would only consummate the marriage after Chinese customary rites

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had taken place. Subsequent to the marriage the husband refused to go

through the Chinese customary ceremony and the wife thereupon
petitioned for annulment of the marriage claiming that the husband had
wilfully refused to consummate the marriage. No appearance was entered
by the husband and he did not appear at the hearing of the petition. The
petition was heard before P Coomaraswamy J who was not satisfied that a
case of wilful refusal to consummate the marriage had been made out on
the evidence adduced. He directed counsel for the petitioner to submit full
argument. Written argument was submitted and was supplemented by oral
argument. In a reserved judgment, the learned judge dismissed the petition.
The learned judge referred to three English cases, Jodla v Jodla ([9] supra),
Kaur v Singh [1972] 1 WLR 105; [1972] 1 All ER 292 and A v J [1989] 1 FLR
110; [1989] Fam 63 and distinguished those cases from the case before him,
holding that in those cases the post-registry marriage non-cohabitation or
non-consummation was not consequent upon a bilateral pre-nuptial
agreement between the couples married at a registry in England but laid
down by their church, religious faith or temple to which they belonged. He
then referred to Tan Siew Choon ([5] supra) and said that in that case it was
clear that if there was no consummation of the marriage it was the result of
a pre-nuptial agreement. He said, at [13][15]:
The learned judge [Choor Singh J] went on to state that the Roman
Catholic faith of the two Jodlas did not countenance matrimonial
relations till after a religious ceremony. No finding, however, was made
that any establishment or group or faith to which the parties in Tan
Siew Choon v Tan Kai Ho belonged did not countenance full
matrimonial relations before a Chinese customary rites ceremony.
A key element which provided the entire foundation for the decision in
Jodla ([9] supra) and the other two later English cases was absent in
Tan Siew Choon v Tan Kai Ho ([8] supra). I therefore do not regard
Tan Siew Choon v Tan Kai Ho as persuasive authority.
Further, and more importantly, s 45 and other provisions of the
Charter which, in my view, have a vital bearing on the issues were not
cited to the learned judge.

11 The learned judge then stated that in the English law an agreement by
the parties before marriage to separate and live apart after marriage is
contrary to public policy and void and he relied on the case of Brodie v
Brodie [1917] P 271; [19161917] All ER Rep 237 and said that that
statement of law was followed in Morgan v Morgan [1959] P 92; [1959]
1 All ER 539; [1959] 2 WLR 487. He examined the various provisions of the
Womens Charter, namely ss 22, 23(1) and 45(1). His conclusion on the
matter was as follows, at [35]:
The petition must fail. I briefly reiterate my reasons. In Jodla ([9]
supra) and the two subsequent English cases, the ceremony to take
place subsequent to and separate from the registry ceremony was not
the result of a pre-nuptial contract between the parties but was found

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by each respective court to be a non-consensual requirement laid down

by the religious group to which, in each case, the husband and wife
belonged. Public policy and s 45(1) make the type of agreement or
understanding of the parties on essential need of another ceremony
before married life can commence, unenforceable.

12 Before we express our views on Tan Siew Choon and Ng Bee Hoon, it
is convenient, first, to turn to the three English cases, Jodla v Jodla, Kaur v
Singh and A v J and examine the basis on which they were decided. Jodla v
Jodla was referred to by Choor Singh J in Tan Siew Choon and all the three
cases were referred to by P Coomaraswamy J in Ng Bee Hoon.
13 In Jodla v Jodla ([9] supra) both husband and wife were of Polish
nationality and members of the Roman Catholic church. The husband had
settled in England after the Second World War and met the wife in England
whilst the latter was on a visit to that country from Poland. The wife did not
wish to return to Poland and her visa was due to expire soon. They
discussed marriage and consulted a Roman Catholic priest who informed
them that no church wedding would be possible within the few days
remaining before the visa expired and suggested that they should be
married at a register office, and that as soon as is convenient after that they
should arrange a church ceremony. It was understood between the parties
that there could be neither cohabitation nor consummation of the marriage
pending the ceremony. Accordingly, the parties were married at the
Hendon register office, and after that they lived apart. Although the parties
met frequently at first, their marriage was never consummated and no
church ceremony took place. Subsequently, the parties gradually drifted
apart. The husband filed a petition asking for the marriage to be declared
null and void owing to the wifes wilful refusal to consummate the
marriage. The wife denied wilful refusal to consummate the marriage and
alleged that she had been willing to consummate it and in turn sought a
decree for nullity on the ground of the husbands wilful refusal to
consummate the marriage. The petition was heard before Hewson J. He
found that the wife would have been willing to consummate the marriage if
there had been a church ceremony and that the husband had refused to
proceed with the church ceremony and had therefore refused to
consummate the marriage. The learned judge at the commencement of his
judgment made the following finding, at 238:
In all the circumstances I find it quite impossible to believe that the
husband was unaware of the Roman Catholic view that marriage is a
sacrament in the church of which he is a professed member, and did
not countenance consummation even where there had been a register
office ceremony until there had also been a church ceremony. I am
further convinced that he well knew his wifes views on that matter,
that there would be no consummation until after such church
ceremony as the Roman Catholic church provides to follow a register
office wedding, and accept the wifes evidence that after the church

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service had been performed in accordance with the rites of the Roman
Catholic church, she was fully prepared to live with her husband as
man and wife in the fullest sense.

14

Later, he said at 239:

By his refusal to proceed with the church ceremony, the necessity for
which as a precondition to matrimonial cohabitation was understood
by both, the husband in the particular circumstances of this case, made
it impossible for the wife, with a good conscience, to live with him as
husband and wife, and this refusal, or this failure to proceed with the
church ceremony, was, in this case, a just excuse for her to refuse
sexual intercourse, even if it had ever been requested.
I will now turn to the other side of the picture. By his own refusal to
proceed with the church service, the husband put it out of the power of
the wife to request intercourse. He expressed no intention of ever
making it possible. She, as I have found, on several occasions requested
him to do something about the church service, after which she would
have been willing to have intercourse, and they would have lived
together as husband and wife in the fullest sense. Such requests in the
circumstances of this case, in my view, include an implied request for
intercourse, and to live wholly as husband and wife these requests
were refused without any reasonable or just cause on the part of the
husband.

15 Jodla v Jodla was followed and applied in Kaur v Singh ([10] supra).
There, the parties who were Sikhs were married at a register office. That was
an arranged marriage and the arrangement was made between the wifes
brothers and father on the one hand and the respondent husband on the
other. The husband had been living in England for some seven to ten years,
and the wife up to the time just before marriage had been living all her life
in Punjab. Pursuant to that arrangement the wife travelled to London, and
the husband and wife went through a ceremony of marriage at the
Hammersmith register office. In order fully to marry according to Sikh
religion and practice, it was necessary to have not only a civil ceremony in
the register office but also a Sikh religious ceremony in a Sikh temple. It was
the belief of all the parties concerned that the husband and wife should in
due course go through this Sikh ceremony. After the marriage, one of the
brothers of the wife did make tentative arrangements for a religious
ceremony to take place. However, no sign of any step by the husband in that
behalf was forthcoming, and so the brother or brothers on numerous
occasions approached him; but the husband procrastinated and gave
various excuses. Eventually, he told the wifes brothers that he had no
intention of arranging for the religious ceremony at all. Since the day of the
wedding ceremony at the register office, the husband and wife had never
met at all. The wife petitioned for a decree of nullity on the ground of wilful
refusal by the husband to consummate the marriage. The petition was
dismissed by the county court judge who distinguished the case before him

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from Jodla v Jodla ([9] supra). On appeal his decision was reversed.
Davies LJ, who delivered the main judgment of the court, held that the case
before the court was indistinguishable from Jodla v Jodla and that he could
not understand how that case was distinguished by the judge below. He
said, at 109:
I cannot understand that distinction. The facts of the present case are
as clear as they could be. This husband from the time of the register
office ceremony entirely failed and refused to arrange a religious
ceremony of marriage, and so failed to implement the marriage. I think
that it is clear that in failing to implement the marriage he wilfully
refused to consummate it.

16 In A v J ([10] supra), the husband and wife were Indians. Their

marriage was arranged in haste by their respective families due to
immigration factors in respect of the wife. The families agreed that the
couple should enter into a civil wedding at the register office to be followed
by a religious ceremony four months later. On these facts, it is helpful to set
out the following findings made by Lincoln J, at 111:
[T]he plan that finally emerged was that the couple should enter into a
civil marriage on 3 December 1985, preceded by an engagement party.
Both these events took place in the happiest circumstances, the civil
marriage taking place at a registry office. Gifts were exchanged
between the families. Up to this point the petitioner and the
respondent had shared each others company, but always with other
members of the family present.
It had been agreed between the families that the religious ceremony
should take place on 20 April 1986, an unusually long interval between
the civil and religious events. In the meantime, the petitioner had to
return to the USA to resume his work and he would make the
necessary arrangements for his wife to assume her proper place beside
him after the religious ceremony.
After the civil wedding the husband and wife spent a few days together
as the husband had to leave England for the United States.
Subsequently, shortly before the agreed date of the religious ceremony,
the wife informed the husband that she did not wish to go ahead with it
and wished to postpone it because she believed that the husband had
shown a lack of concern for her during the time they were together and
in his subsequent behaviour towards her. The husband apologized but
the wife refused to accept his apologies and to be reconciled with him.
She was adamant that the religious ceremony be postponed
indefinitely. The husband subsequently petitioned for nullity on the
ground of the wifes wilful refusal to consummate the marriage.

17 Lincoln J held that the wifes adamant insistence on an indefinite

postponement of the religious ceremony amounted to a wilful refusal to
consummate the marriage since a religious ceremony was for that couple an
essential condition of cohabitation. He said, at 113114:

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On these facts I have no doubt that if the respondent, who was, after all,
married to him, had accepted the petitioners apology and intimated
that she expected a reasonable amount of attention and concern from
her husband, he would have done his best to meet her requirements.
After all, they were married and the obligation to adjust to each other
and to accommodate each others faults and foibles was the greater,
since they had known each other for so short a time. The petitioner was
sincere in his apologies and sincere in his desire to share his life in the
USA with his wife. Her uncompromising refusal to accept his apologies
and to test whether he could change his spots by forgiving his past lack
of attention insensitive but not substantial, and engaging in a
reconciliation, her adamant insistence on an indefinite postponement
of the religious ceremony, these amounted to a wilful refusal to
consummate since a religious ceremony was for the couple an essential
condition of co-habitation.

18 As P Coomaraswamy J said, in each of these three cases the religious

faith of the parties concerned did not countenance any matrimonial
relation till after the religious ceremony. However, the fact remains that the
parties by reason of their religious faith had agreed or come to an
understanding, either expressly or impliedly, to go through first the civil
marriage at the register office and thereafter a religious ceremony and that
until the religious ceremony was performed they would not cohabit as man
and wife and consummate their marriage. The courts accepted the religious
requirement of the parties and their agreement or understanding not to
consummate the marriage until after the religious ceremony, and held that
the party, who had refused to go ahead or proceed with the religious
ceremony, had failed or refused to implement such agreement or
understanding and had thereby refused to consummate the marriage.
19 In our opinion, Tan Siew Choon and Ng Bee Hoon, in principle, are
indistinguishable from the three cases. The facts in these two cases were, of
course, not on all fours with those in the three English cases. Choor Singh J
in Tan Siew Choon ([5] supra) certainly did not find that the case before
him was distinguishable from Jodla v Jodla ([9] supra). If we may
respectfully say so, the learned judge in his judgment echoed the language
of Hewson J in Jodla v Jodla. To repeat what we have quoted earlier, Choor
Singh J said, at [7]:
I accept the petitioners evidence that the respondent knew his wifes
views on the matter that there would be no consummation until the
Chinese ceremony which was to follow the wedding at the Marriage
Registry. I accept the wifes evidence that she is fully prepared to live
with the respondent as man and wife in the fullest sense after the
Chinese ceremony has been performed. By his refusal to proceed with
the Chinese ceremony, the necessity for which was a precondition to
matrimonial cohabitation, the husband, in the particular
circumstances of this case, made it impossible for the wife with a good
conscience to live with him as husband and wife and this refusal or

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failure to proceed with the Chinese ceremony was in this case a just
excuse for her to refuse sexual intercourse even if it had ever been
requested.

20 True it is that in the instant case, and also in Tan Siew Choon and Ng
Bee Hoon, there was no evidence that the Chinese custom did not
countenance any matrimonial relation until after the Chinese customary
ceremony had been performed. In each case, the parties had agreed or come
to a definite understanding that after the marriage at the registry there
would be a ceremony according to the Chinese custom and only thereafter
would they cohabit and consummate the marriage. It seems to us that it
must be implicit in such agreement or understanding that it was their belief
that the Chinese custom did not countenance any marital relation until
after the ceremony had taken place and that they regarded that ceremony as
a precondition to their matrimonial cohabitation. We can see no difference,
in principle, between a belief founded on custom and a belief founded on
religion.
21 We now turn to Brodie v Brodie ([11] supra). That was a case in which
the wife petitioned for restitution of conjugal rights which was resisted by
the husband relying on an agreement signed before and signed also after
their marriage. Prior to the marriage the petitioner was expecting to be
delivered of a child by the respondent and she pressed him to marry her. He
agreed to do so, if and only if she would sign an agreement to separate after
the marriage. On the day before the marriage, she signed an agreement
which was to the effect that it should be lawful at all times for the husband
to live separate and apart from her as if he were unmarried and that she
should not require or endeavour to compel him to live with her. The parties
were married the following day and on that day they signed another
agreement which was endorsed on the earlier agreement confirming the
agreement they had made. The parties never lived together after the
marriage and four years later the wife petitioned for restitution of conjugal
rights. Horridge J held that the agreement was against public policy and
void and was therefore no answer to the petition. He said, at 273:
I find as a fact that the confirmatory agreement formed part of and was
in no way distinct from the agreement signed before the marriage, and
the two documents formed part of an agreement entered into before
the marriage for future separation. Such an agreement is void and
against public policy: see Cocksedge v Cocksedge (1844) 14 Sim 244, the
judgment of Rigby LJ in Marlborough v Marlborough [1901] 1 Ch 165,
171, and the judgment of Kennedy LJ in Wilson v Carnley [1908] 1 KB
729, 743. I therefore hold the plea of the respondent is no answer to the
petition. If the second agreement is to be treated as a confirmatory
agreement I think it was bad in law as being merely a confirmation of a
previous illegal and void agreement.

22 The Brodie pre-nuptial agreement is far different in nature and

character from the pre-nuptial agreement in Tan Siew Choon and the pre-

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nuptial agreement in this case. The Brodie pre-nuptial agreement was

intended to enable the husband to resile from the marriage and evade his
marital obligations altogether. That agreement if implemented and
enforced, would make a mockery of the law regulating marriages.
Obviously such an agreement is unquestionably against public policy and
void. We respectfully agree with Horridge J. On the other hand, the prenuptial agreement here and in Tan Siew Choon ([5] supra) was nothing of
that kind. The intention of the parties was to comply both with the law and
with the custom; if implemented, it was intended to fulfil the parties
marital obligations. The only effect on the relationship of the parties as
husband and wife was that it postponed their cohabitation and
consummation of the marriage. It was not intended to negate the marriage
or enable one or both parties to resile from the marriage. We do not see
how such pre-nuptial agreement can be regarded and treated on the same
footing as the Brodie pre-nuptial agreement.
23 We now turn to examine whether such pre-nuptial agreement is
contrary to any provisions of the Womens Charter. K S Rajah JC in his
grounds of judgment referred to ss 181 and 182. Section 181 relates to
marriages solemnised under any law, religion, custom or usage prior to the
commencement of the Womens Charter and provides that such marriages
shall be deemed to be registered under the provisions of the Womens
Charter. Under s 182 parties to a marriage which has been solemnised
under any law, religion, custom or usage may, if the marriage has not been
registered, apply to the Registrar of Marriages for registration of the
marriage and the Registrar may, on being satisfied as to the truth of the
statements contained in the application, register the marriage. The learned
judicial commissioner also referred to other provisions of the Womens
Charter and to the procedure to be followed by parties who wish to marry
under customary rites. He then said:
Having regard to the provisions made by Parliament for persons to
continue to marry and to solemnize marriages under customary rites
there can be no valid reason for persons entering into pre-nuptial
agreements on the ground that a traditional marriage is preferred.

24 That may well be so. But if the parties to the marriage agree or arrange
to have their marriage solemnised at the Registry of Marriages first and
thereafter to proceed to go through a ceremony according to Chinese
customary rites and further agree that they would consummate the
marriage only after the latter ceremony, surely such an agreement or
arrangement would not contravene either the spirit or the letter of these
provisions of the Womens Charter. Indeed, we would say that these
provisions give recognition to the possibility of such agreement or
arrangement being made by the parties.

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25 We now turn to other provisions of the Womens Charter, in so far as

they are of any relevance to the issue before us. The first is s 22 which
provides:
A marriage solemnized by the Registrar or any person licensed to
solemnize marriages may be solemnized according to such form and
ceremony as the Registrar or the person solemnizing the marriage sees
fit to adopt and in some part of the ceremony he shall request each of
the parties to the marriage to declare that he or she is willing to take the
other party as his or her wedded wife or husband, as the case may be.

26 Of course, after the solemnisation of their marriage at the registry, the

parties are wedded as husband and wife. It is unarguable to say otherwise. It
is equally unarguable for the parties in Jodla v Jodla ([9] supra), Kaur v
Singh ([10] supra) and A v J ([10] supra) after their respective marriages at
the register offices to say that they were not legally wedded as husbands and
wives. But, there is nothing in this section that prohibits parties to a
marriage from agreeing, whether before or after the marriage, that they
would also go through a further religious or customary ceremony and
would only consummate their marriage at a later date after that ceremony.
27

Next, we come to s 23 which, so far as material, provides:

(1) If the parties to any marriage contracted and solemnized under
this Act or under any previous written law relating to Christian or civil
marriages shall desire to add to the marriage so contracted and
solemnized the religious ceremony ordained or used by the church or
temple of which the parties or one of them are members or is a
member, it shall be competent for them to present themselves for that
purpose to a clergyman or minister or priest of such church or temple,
having given notice to that clergyman or minister or priest of their
intention to do so; and that clergyman or minister or priest, upon the
production of a certified copy of the certificate of the marriage, may, if
he sees fit, read or celebrate the marriage service of the church or
temple to which he belongs:
Provided that nothing in the reading or celebration of such service
shall be held to supersede or invalidate any marriage so previously
contracted and solemnized, nor shall such reading or celebration be
entered as a marriage in any register of marriages kept according to the
provisions of this Act.

28 This section is intended to clarify the position of a further ceremony

required by the church or temple of which either the husband or the wife or
both are members. The provision merely permits the parties after the
marriage to have a further service in the church or temple. Again, there is
nothing in this section which prohibits a married couple, who are not
members of any church or temple, from undergoing a ceremony according
to what they believe to be the customary rites and postponing the
consummation of their marriage until such customary rites have been
performed.

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We now turn to s 45 of the Womens Charter which is as follows:

(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.

30 We are unable to see how a pre-nuptial agreement, such as the one in

this case, postponing cohabitation of the parties as husband and wife and
consummation of their marriage can be said to militate against or
contravene any provision of this section. There is nothing inherently wrong
in the parties, who are about to be married, or are seriously contemplating
marriage, agreeing, if they so wish, on various matters which are to take
place after their marriage, eg where and when they would live as man and
wife, when they would have sexual relations and when, if at all, they would
have a child or children and how many children they would have. By parity
of reasoning, it is equally unobjectionable if the parties agree that they
would cohabit as man and wife and have sexual relations only after certain
customary rites are performed, provided always such customary rites are
not illegal, obscene, immoral or contrary to public policy. Again, there is
nothing inherently wrong for such parties to come to an agreement or
understanding pertaining to their marital relations with a view to their
complying with the law and also with the requirement of their church or
temple or their custom. We do not see how such agreement would detract
from any of their obligations under s 45.
31 We respectfully agree with what P Coomaraswamy J said on s 45 in
Ng Bee Hoon ([5] supra). He said, at [25][26]:
After the solemnisation of a marriage by the Registrar of Marriages (or
a person validly licensed to do so by the Minister or the Registrar), all
incidents of marriage follow without the requirement of any further
celebration, ceremony or other act by whatever name called.
That being so, it is contrary to the law for a married person to say that
another event must occur before either of the couple or the two can
regard themselves as properly and fully married.

32 However, that, with respect, was not what had been agreed upon by
the parties in these pre-nuptial agreements. The parties had never said that
they were not married. Nor had they said that they required a further
celebration or ceremony to render the marriage valid. Indeed they accepted
they were married. What they said was that having legally married, both
parties should then take steps to implement what they had earlier agreed, ie

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to undergo a Chinese customary ceremony, and thereafter live as husband

and wife. The petitioner in each case complained that the refusal of the
respondent to implement what they had agreed had made it impossible to
consummate the marriage.
33 We also respectfully agree with the learned judge on the following
passage of his judgment at [49]:
In my view, if a man and a woman (who are not barred from marrying
each other) exchange consents to marry with due formality before a
person lawfully authorised to solemnise a marriage under the Charter,
intending to acquire the status of married persons, it is immaterial that
they intend the marriage to take effect in some limited way or that one
or both of them may have been mistaken about, or unaware of, some of
the incidents of the status which they have created. To hold otherwise
would impair the effect of the whole system of law regulating marriages
in Singapore, and gravely diminish the value of the system of
registration of marriages on which so much depends. Marriage status
is of great public concern. It is intolerable for the law on marriage to
be played with by people who thought fit to go to the Registry and
subsequently, after some change of mind, to affirm that it was not a
marriage in the full sense because they did not so regard it.

34 If we may respectfully say so, that passage is a restatement of the

judicial pronouncements quoted by Lord Hailsham of St Marylebone LC in
his speech in Vervaeke v Smith [1983] 1 AC 145 at 151152; [1982] 2 All ER
144; [1982] 2 WLR 855. These pronouncements, however, were made by
the courts in those cases where the parties concerned sought to annul their
marriages on the ground that they had not truly consented to the marriages
because they were ignorant of the true nature of the ceremonies in question.
The pronouncements are therefore not quite apt in the instant case. This is
not a case where a party to the marriage has averred or alleged that he or she
intended the marriage to take effect in a limited way or that he or she had
been mistaken about or unaware of the incidents of the status the parties
have created.
35 P Coomaraswamy J is correct, if we may respectfully say so, in saying,
at [50]:
that the law does not prohibit a customary rites ceremony or a
religious ceremony after the solemnisation and registration of a
marriage under the Charter. Parties are free and at full liberty to have
such a ceremony after their marriage under the Charter. The point is
that the occurrence or non-occurrence of such a ceremony (whether
required or dictated by the religious affiliation or ethnic origin or by
prior or subsequent agreement of the parties or their parents) has no
effect in law on the marriage under the Charter. To that marriage the
status and all the incidents of marriage attach once the solemnisation
and registration have taken place under the Charter.

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36 However, it seems to us clear that a pre-nuptial agreement of the type

and character as in Tan Siew Choon ([5] supra) or this case does not seek to
make the occurrence or non-occurrence of a religious or customary
ceremony as having any effect in law on the marriage of the parties. That, as
we see it, was not the intention of the parties to the agreement. The
intention was to enable the parties to comply both with the law and custom
or religion.
37 Before we conclude we should mention briefly Morgan v Morgan
([11] supra), though that case is not strictly relevant. There, the parties went
through a ceremony pursuant to an agreement that they should live
together on the basis of companionship only. The husband was then 72
years of age and the wife was 59. After the marriage, they never lived
together; nor were sexual relations ever attempted. The husband
subsequently obtained medical advice to the effect that he was impotent at
the time of the ceremony. He thereupon petitioned for annulment of the
marriage on the ground of his incapacity. The petition was dismissed, and it
was held that his own impotence was not a factor in the marriage and that it
would be contrary to justice and public policy to permit him to plead his
own impotence having regard to the companionship agreement. It is
significant that the court in the circumstances of the case gave recognition
to the pre-nuptial companionship agreement and disallowed the relief
claimed by the husband. Mr Commissioner Latey QC who heard the case
said, at 101:
The whole pith of this case is the pre-marital companionship
agreement. In the ordinary case of a younger couple the agreement
itself would be void as against public policy, as held in Brodie v Brodie
and it would not avoid the marriage Many elderly and aged people
intermarry on the basis, implied or agreed upon, that they come
together merely for companionship and without any thought of sexual
relations. In some such cases, owing to advanced age or physical
infirmity, one or other of the spouses might be able to prove after the
marriage his or her impotence, without having had any thought of it
when the marriage was arranged or solemnized, and without putting it
to the test afterwards Having regard to their agreement I should say
that was an act, though pre-marital, which would bar the remedy.

38 It is clear to us that not every pre-nuptial agreement regulating or

even restricting the marital relations of the husband and wife is void and
against public policy. Needless to say, much 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. In
our opinion, the law does not forbid the parties to the marriage to regulate
their married lives and also the incidents of the marriage, so long as such
agreement does not seek to enable them to negate the marriage or resile
from the marriage as the Brodie ([11] supra) pre-nuptial agreement did. In
particular, the law does not forbid them to agree as to how they should live

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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 and only thereafter would they live as husband and
wife and consummate the marriage. Consequently, where such a prenuptial agreement has been made and one of the parties after the marriage
at the registry refuses to proceed with the religious or customary ceremony,
he or she, as the case may be, has made it impossible for the marriage to be
consummated as agreed. It is not wrong for the court to give recognition to
such agreement and to hold the party in default as having in effect wilfully
refused to consummate the marriage.
39 Lastly, we endorse the sentiment expressed both by
P Coomaraswamy J and K S Rajah JC 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.
Headnoted by Arvin Lee.