On 17 May 2018, the Straits Times reported that the marriage between a man and women was annulled by the Registrar of Marriages (the “Registrar“) on the grounds that the man had – subsequent to the marriage – undergone gender re-assignment surgery (the “Report“). The Report may be found here.
According to the Report, the Registrar annulled the marriage on the grounds:-
“…that the couple had no intention of living as man and wife during their marriage, which runs counter to the Women’s Charter.“
Under Singapore law, the Women’s Charter (Cap. 353) (the “Charter“) is the primary legislation which addresses, amongst other things, the legality of a marriage, the grounds for divorce, the situations where a marriage is void and where a marriage is voidable.
The couple appealed to the High Court to overturn the Registrar’s decision, but dropped the case, with the High Court subsequently sealing the court file upon the application of the couple.
Consequently, the Registrar’s decision to annul the couple’s marriage remains upheld.
The facts are neatly summarised in the Report. Essentially, at the time the couple applied for their marriage to be registered, both the individuals were of a different gender. The Registrar had doubts about whether to register the marriage given “…the man’s appearance and name.“
However, upon the assurance of the man that he did not intend to undergo gender re-assignment surgery before the marriage date, the Registrar registered the marriage (the “Registration“). 6 months’ after the Registration, the man underwent gender re-assignment surgery and was thereafter registered with the Immigration and Checkpoints Authority as a female.
This is a curious case indeed, as under Chapter 3, Part X of the Charter – which addresses “NULLITY OF MARRIAGES” (bold in original) – a marriage is only void (and not voidable) if it falls within Section 105 of the Charter. Section 105 provides as follows:-
“Grounds on which marriage is void
105. A marriage which takes place after 1st June 1981 shall be void on the following grounds only:
(a) that it is not a valid marriage by virtue of sections 3(4), 5, 9, 10, 11, 12 and 22;
(aa) where the marriage was solemnized on or after the date of commencement of section 6 of the Women’s Charter (Amendment) Act 2016, that it is not a valid marriage by virtue of section 11A; or
(b) where the marriage was celebrated outside Singapore, that the marriage is invalid —
(i) for lack of capacity; or
(ii) by the law of the place in which it was celebrated.“
[bold in original; emphasis in underline]
In this author’s view, none of the situations contemplated by Sections 3(4), 5, 9, 11, 12 and/or 22 of the Charter apply based on the facts in the Report. Sections 105(aa) and 105(b) are equally inapplicable.
The only section which refers to gender re-assignment is Section 12 of the Charter, which provides:-
“Avoidance of marriages between persons of same sex
12.—(1) A marriage solemnized in Singapore or elsewhere between persons who, at the date of the marriage, are not respectively male and female shall be void.
(2) It is hereby declared that, subject to sections 5, 9, 10, 11 and 22, a marriage solemnized in Singapore or elsewhere between a person who has undergone a sex re-assignment procedure and any person of the opposite sex is and shall be deemed always to have been a valid marriage.
(3) For the purpose of this section —
(a) the sex of any party to a marriage as stated at the time of the marriage in his or her identity card issued under the National Registration Act (Cap. 201) shall be prima facie evidence of the sex of the party; and
(b) a person who has undergone a sex re-assignment procedure shall be identified as being of the sex to which the person has been re-assigned.
(4) Nothing in subsection (2) shall validate any such marriage which had been declared by the High Court before 1st May 1997 to be null and void on the ground that the parties were of the same sex.”
[bold in original; emphasis in underline and bold]
Section 12 of the Charter does not appear to void a marriage on the grounds that a party to the marriage subsequently changes gender. Section 12(1) of the Charter specifically voids marriages between people of the same sex at the date of the marriage.
Consequently, this section has no application to the present facts given that the gender reassignment of one of the parties occurred after the marriage was registered.
To the contrary, Section 12(2) of the Charter appears to expressly permit the registration of a marriage between two people, one of whom has previously undergone gender re-assignment surgery. That said, it could be argued – adopting a purposive reading of Section 12(2) of the Charter – that the section implicitly is intended to provide for marriage between male and female.
Such an interpretation is, however, quite a stretch in my view.
The Registrar’s Decision
In light of the express statutory provisions which presumably exhaustively provide for the grounds on which a marriage is void, the Registrar’s decision to annul the marriage is certainly questionable.
No broad power to annul a marriage appears vested in the Registrar within the text of the Charter and, consequently: “…that the couple had no intention of living as man and wife during their marriage, which runs counter to the Women’s Charter…” does not appear to have any statutory basis.
The consequence of the Registrar’s decision cannot be understated, given the implications it would have for the couple, not least their jeopardised application for a HDB flat (identified in the report).
However, as a matter of public policy, the decision is perhaps even more far reaching. In this author’s view, there at least exists a prima facie case that the decision to annul / void the marriage was an overreach of the Registrar’s powers.
The couple’s decision to drop the appeal against the Registrar’s decision – and consequently the sealing of the court file – is a pity indeed, as a decision of the High Court on this matter would have been welcomed, particularly as it would – assumably – consider the sections and arguments contemplated above.
For now though, it appears that the decision of the Registrar – although not a legal precedent in the sense of stare decisis – means that any subsisting registered marriage, where one party subsequently changes gender (and the other does not), is void.
This is not an acceptable situation, and given that judicial pronouncement on the matter will not be forthcoming with the withdrawal of the appeal, there should at least be legislative clarification.