The entire post is taken from here
In the past week, there was a report of a woman who purportedly “married” a transsexual, whom she did not know had undergone sex change surgery.
MyPaper reports in “Wife didn’t know he was a she” (28 May 2014):
AFTER seven years of dating and two of marriage, a woman discovered that her husband was a transsexual only after she sought an annulment.
Chai Woon Wuy, 50, a tuition teacher, and Chua Soo Fong, 47, a finance manager, met online in 2002, Lianhe Wanbao reported. After dating for seven years, they were married in 2009.
Ms Chua applied to annul the marriage in February 2011 on the grounds that Mr Chai refused to consummate the marriage, according to court documents.
An interim judgment was made in her favour, but Mr Chai applied to have it set aside. Eventually, the marriage was declared void by the High Court due to the fact that it was not between a man and a woman.
The couple are still engaged in a court battle to split their matrimonial assets.
Ms Chua claimed in her submission that she never knew her husband used to be a woman, until she received the interim judgment to annul their marriage.
Mr Chai claimed that he told her before they got married that he could not consummate the marriage, or have children with her.
It was unclear whether he told her he had undergone a sex-change operation.
In March 2009, they bought a condominium in Jurong West together. They have been tussling over the apartment, estimated to be worth $1.3 million.
Ms Chua said that Mr Chai insisted he be named the co-owner of the property as a condition for marrying her. She also said he had been borrowing money from her while they were dating.
He said that he had contributed towards the payments for the apartment, but Ms Chua said the money was meant to go towards repaying the loans he took from her.
The judge ordered that the unit be sold and the proceeds be split, with 70 per cent going to Ms Chua and 30 per cent to Mr Chai, based on their purported contributions to the purchase of the property.
Unhappy with this verdict, Mr Chai has filed an appeal.
The factual accuracy of the report of the judge’s decision is unclear. It may be necessary to obtain the grounds of the judge’s decision in order to make a more objective assessment.
Nevertheless, on the assumption that these are accurate, the judgment of the court seems to be wrong in law.
Under section 106 of the Women’s Charter (Cap. 353, 2009 Rev. Ed. Sing.), non-consummation of the marriage – whether owing to the incapacity of either party to consummate it or due to the wilful refusal of the defendant to consummate it – renders the marriage voidable. Marriage is also voidable if either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, mental disorder or otherwise. The marriage would have been voidable on any of these grounds. The court could have voided the marriage on any of these grounds.
However, supposing that the report is accurate that “the marriage was declared void by the High Court due to the fact that it was not between a man and a woman”, it would seem that the court has made a mistake.
Section 12 of the Charter 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.
Therefore, a woman who has undergone a sex change procedure is legally recognised as a man within the meaning of the Charter.
(Nevertheless, I reserve comment about the desirability of such a framework, an issue which may merit further discussion some other time.)