A joint petition for nullity based on agreed refusal to consummate the marriage is untenable under the relevant legal provisions.

Evrol Mariette Peters J:

The Factual Background

[1] This was a joint petition for nullity of marriage filed by both petitioners ("the Petitioners") on the premise of non-consummation as stipulated in s 70 the Law Reform (Marriage & Divorce) Act 1976 ("Law Reform (Marriage & Divorce) Act").

[2] The Petitioners had registered their marriage on 9 June 2022. They claimed that they had never lived as husband and wife, and soon after, made the joint decision to have their marriage annulled on the basis that they had no interest in remaining married to each other.

[3] In December 2022, the Petitioners filed a joint petition ("this Petition") seeking a nullity of their marriage. This Petition was dismissed for the following reasons.

Contentions, Evaluation, And Findings

[4] The first flaw I had noticed in this Petition was that there was no indication of which particular paragraph of s 70 of the Law Reform (Marriage & Divorce) Act that was relied upon.

[5] In my view, a petition for nullity under s 70 of the Law Reform (Marriage & Divorce) Act has to be specific and precise. In fact, Counsel appeared to be unsure of the applicable provision, and when questioned, he responded that he would seek to rely on both paragraphs (a) and (b) of s 70 of the Law Reform (Marriage & Divorce) Act. The uncertainly displayed by Counsel in itself spoke volumes of this Petition.

Whether There Was Evidence Of Incapacity Of Either Party To Consummate The Marriage

[6] Paragraph (a) of s 70 of the Law Reform (Marriage & Divorce) Act reads:

Section 70 - Grounds on which a marriage is voidable

A marriage which takes place after the appointed date shall be voidable on the following grounds only, that is to say:

(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it;

...

[Emphasis Added]

[7] A perusal of paragraph (a) of s 70 of the Law Reform (Marriage & Divorce) Act indicates that proof, that either party was incapable of consummating the marriage, is required.

[8] According to the case of L v. L , 1956 MarsdenLR 184 , the words "incapacity... to consummate" found in paragraph (a) of s 70 of the Law Reform (Marriage & Divorce) Act, refers to the 'inability to have sexual intercourse based on physical abnormality or psychological impotence'. A person who suffers from 'invincible repugnance to the act of intercourse with the other' may thus be regarded as incapable of consummating the marriage: see SY v. SY [1963] P 37.

[9] Be that as it may, the gist of paragraph (a) of s 70 of the Law Reform (Marriage & Divorce) Act is that there must be some element of psychological or sexual aversion.

[10] In the present case, a perusal of the Petition indicated that the Petitioners had consented to have the marriage annulled on the basis that they had both agreed not to consummate the marriage, and as such, to end it. The relevant parts of the Petition read as follows:

4. Kedua-dua Pempetisyen telah bersetuju sesama sendiri bahawa perkahwinan mereka sepatutnya dibatalkan dan mereka dengan relanya bersetuju ke atasnya kerana Pempetisyen Suami dan Pempetisven Isteri tidak berniat dan/ atau enggan melakukan sebarang persetubuhan untuk menyatukan perkahwinan (refusal to consummate the marriage).

...

7. Pempetisyen-pempetisyen bersetuju bahawa Perkahwinan tersebut dibatalkan seperti di dalam ss 68 dan 70 Akta Membaharui Undang-Undang (Perkahwinan dan Penceraian) 1976 sebab tidak mahu bersama lagi dan tidak berminat untuk melakukan persetubuhan untuk menyatukan perkahwinan (refusal to consummate the marriage).

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