It should have been a simple affair. FK and BS, a Singaporean couple who had been together for eight years, applied to get married in 2015. They were young, in love, and eager to work their hardest to apply for a state-subsidized apartment, all in accordance with the “tried-and-tested Singaporean script of life”.
Except it wasn’t. During this period, FK (the husband in the couple) transitioned to female. At the time of their marriage solemnization, FK had formally changed her name to a female one, but had not undergone gender-affirming surgery nor changed the gender on her identity card, and so was still legally recognised as male. Eight months after their marriage, FK underwent gender-affirming surgery and updated her sex change on her identity card. Her sex change, however, came at a painfully hefty price: her marriage was revoked and deleted in February 2017 after the Registrar of Marriages concluded that the marriage, “while a heterosexual union at the time it occurred in 2015, had become a same-sex marriage”. FK and BS were also denied the public housing flat they were due to collect as a married couple after an arduous four-year wait. The case is now pending a hearing before a judge at the High Court, although a hearing date has not been set yet.
Singapore, regrettably enough, does not recognize same-sex marriage. However, some supporters of FK and BS suggest that their challenge of the revocation of their marriage could succeed, because the Women’s Charter in Singapore (which governs marriages) only states that marriages that did not take place between a man and a woman “at the date of the marriage” are void; on this view, there is “no statutory or regulatory requirement that the couple ‘must want to be and want to remain as man and woman in the marriage’”. Whether FS and BK will succeed before the courts is therefore a matter of statutory interpretation of s 12(1) of the Women’s Charter. This article argues that, as grave an injustice as it might be, s 12(1), properly constructed, rules out the continuing validity of FK and BS’s marriage. This article will first set out the rules governing statutory interpretation in Singapore, before applying those rules to s 12(1) of the Women’s Charter.
Under s 9A of the Interpretation Act, the Singaporean courts are directed to adopt a purposive approach to statutory interpretation.
S 9A provides:
Purposive interpretation of written law and use of extrinsic materials
9A.—(1) In the interpretation of a provision of a written law, an interpretation that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to an interpretation that would not promote that purpose or object.
(2) Subject to subsection (4), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material –
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
(b) to ascertain the meaning of the provision when –
(c) the provision is ambiguous or obscure; or
(d) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or unreasonable.
(3) Without limiting the generality of subsection (2), the material that may be considered in accordance with that subsection in the interpretation of a provision of a written law shall include –
(a) all matters not forming part of the written law that are set out in the document containing the text of the written law as printed by the Government Printer;
(b) any explanatory statement relating to the Bill containing the provision;
(c) the speech made in Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in Parliament;
(d) any relevant material in any official record of debates in Parliament;
(e) any treaty or other international agreement that is referred to in the written law; and
(f) any document that is declared by the written law to be a relevant document for the purposes of this section.
(4) In determining whether consideration should be given to any material in accordance with subsection (2), or in determining the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to –
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.
In the Court of Appeal case of Attorney-General v Ting Choon Meng, Andrew Phang JA summarised the principles relating to the purposive approach in statutory interpretation:
(a) The purposive interpretation of a statutory provision must be preferred to a literal interpretation that does not advance the underlying general or specific purpose or object of the enactment.
(b) The general object underlying the statute as a whole may be distinct from and hence, at times, might cast little light on the object of a given specific provision. This should therefore be separately considered in appropriate cases.
(c) A purposive interpretation simply requires one to approach the literal wording of a statutory provision bearing in mind the underlying purpose of that provision as reflected by and generally in harmony with the express wording of the legislation. It may therefore be coincident with a literal interpretation of the provision if the draftsman is successful in expressing Parliamentary intent through the express words chosen.
(d) The court may resort to extraneous material where this helps with the ascertainment of the meaning of the provision by shedding light on the objects and purpose of the statute as a whole, and where applicable, on the objects and purposes of the particular provision in question.
(e) Extraneous material can be used only in three specific ways: (1) to confirm the ordinary meaning deduced by the text of the provision and the context of the written law; (2) to ascertain the meaning of the text when the provision is ambiguous or obscure; or (3) to ascertain the meaning of the text where the ordinary meaning is absurd or unreasonable.
(f) The court must first determine the ordinary meaning of the provision in its context, namely the written law as a whole, which would often give sufficient indication of the objects and purposes of the written law, before evaluating whether recourse to the extraneous materials for either the confirmatory or clarificatory functions can be had.
(g) The court should bear in mind – both in determining whether consideration should be given to extraneous material and in determining the weight to be accorded to such material – the need to avoid prolonging legal proceedings without compensating advantage, and the desirability of persons being able to rely on the ordinary meaning of the text in its statutory context and purpose apart from extraneous materials, to understand Parliament’s enactments.
(h) In determining the weight to be placed on extraneous material, the court should further have regard to the clarity of the material and whether the statement is directed to the very point in dispute between the parties.
The Court of Appeal in Attorney-General v Ting Choon Meng further expressed that purposive interpretation of a legislative provision by the court entails three stages:
(a) First, ascertain the possible interpretations of the provision, having regard not just to the text of the provision but also to the context of that provision within the written law as a whole.
(b) Second, ascertain the legislative purpose or object of the statute.
(c) Third, compare the possible interpretations of the text against the purposes or objects of the statute.
This three-step approach to purposive interpretation of a statutory provision was affirmed in Tan Cheng Bock v Attorney-General.
The question is stake is: does s 12(1) allow for a marriage that was originally between parties of the opposite sex, but which evolved to become a same-sex marriage after solemnization, to retain its validity?
While the specific provision thought by some to militate in the couple’s favour is s 12(1), s 12(1) must be read in its relevant statutory context, so it is necessary to have regard to the other subsections of s 12.
S 12 provides, so far as is relevant:
Avoidance of marriages between persons of same sex
12.—(1) A marriage solemnized in Singapore or elsewhere between persons who, at the date of 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 purposes 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.
Without regard to any other provision, the literal meaning of s 12(1) is that BS and FK’s marriage remains valid. Support for this particular interpretation derives from the wording of s 12(1): a marriage shall be void if the parties are not male and female “at the date of marriage”. The provision is silent on the validity of marriages where the parties were respectively male and female at the date of marriage, but where the male party subsequently transitioned to female after marriage.
However, when read in its statutory context, s 12(1) poses several challenges for BS and FK.
First, s 12 concerns the “avoidance of marriages between persons of the same sex”, the ordinary meaning of which would imply that BS and FK’s marriage, being a marriage between two females presently, should be voided.
Second, Part IV of the Women’s Charter is titled the “Rights and Duties of Husband and Wife”. s 46 provides that:
Rights and duties
46.—(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.
It is salient that s 46(1) states that “upon the solemnization of marriage, the husband and the wife shall be mutually bound…” (emphasis added). The logical inference is that both parties shall continue to be husband and wife even after the solemnization of marriage. Moreover, the references to “the husband and the wife” in ss 46(2) and 46(4), as opposed to “a husband and a wife”, appear to rule out any marriage where the parties are not of the opposite sex, even where the marriage only became a same-sex one after solemnization.
Third and more broadly, the Women’s Charter exclusively refers to opposite-sex marriages. For example, s 69(1) states that:
Court may order maintenance of wife, incapacitated husband and children
69.—(1) The court may, on the application of a wife, and on due proof that her husband has neglected or refused to provide reasonable maintenance for her, order the husband to pay a monthly allowance or a lump sum for the maintenance of that wife.
S 69(1) exclusively contemplates the possibility that a wife may apply for maintenance from her husband, and not from her wife. There is no other provision in the Women’s Charter catering to situations where a spouse may seek maintenance from a spouse of the same sex. If same-sex marriages after solemnization are permitted, one would have to accept the far-fetched conclusion that Parliament had not considered the position of parties in same-sex marriages who wish to apply for maintenance.
In essence, when read “in [its] grammatical and ordinary sense and in [its] entire context, harmoniously with the scheme of the [Women’s Charter] as a whole”, the meaning of s 12 is: a marriage solemnized in Singapore or elsewhere between persons who, at the date of marriage and thereafter, are not respectively male and female shall be void.
The legislative object of s 12(1) confirms the conclusion that s 12(1) precludes the validity of BS and FK’s marriage.
S 12 concerns the “avoidance of marriages between persons of the same sex”. From the text alone, one can glean that the specific purpose of s 12 was to limit marriages to persons of the opposite sex. Parliament could not have intended to permit couples to circumvent this legal restriction by effectively recognizing the validity of marriages that assume their same-sex character after solemnization. To construe otherwise would defy common sense and do violence to the plain text of s 12.
Given that the ordinary meaning of s 12(1) based on its text, statutory context and underlying purpose demonstrates that s 12(1) does not recognize marriages such as BS and FK’s as valid, s 9A(2)(b) of the Interpretation Act would not apply to allow for consideration of extraneous material on the basis that the provision is ambiguous, obscure or absurd. In this instance, extraneous material may only be relied on to “confirm that the meaning of the provision is the ordinary meaning conveyed” in the statutory context and its purpose, as per s 9A(2)(a) of the Interpretation Act.
It should first be noted that extraneous material, such as Parliamentary debates and Ministerial speeches during the Second Reading of the Women’s Charter Bill, is of little usefulness or significance in determining the underlying purpose of s 12(1) of the Women’s Charter. Most of such extraneous material pertains to the general objectives of the Women’s Charter Bill, but says nothing in relation to the specific question of whether a marriage that was originally between persons of opposite sex but which became same-sex after solemnization remains valid. Where extraneous material addresses specific clauses of the Women’s Charter Bill, no mention of (then) clause 12(1) has been made. To this extent, the Parliamentary debates and Ministerial speeches during the Second Reading of the Women’s Charter Bill fail to shed light on the specific purpose behind s 12(1) and need not be considered.
However, even if such extraneous material were relevant in discerning the purpose of s 12(1), it lends little support to BS and FK’s case. The following extracts from the second reading of the Women’s Charter Bill to the First Session of the First Legislative Assembly of the State of Singapore on 6 April 1960 strongly illustrate that Parliament intended for marriages to persist as opposite-sex, even after solemnization:
Miss Chan Choy Siong (Delta): “The marriage system provides for monogamy to enable both the husband and the wife to enjoy equal status in their matrimonial life…”
The Parliamentary Secretary to the Minister for Health (Dr Sheng Nam Chin): “Mr Deputy Speaker, Sir, I rise in support of the principle of one man one wife as embodied in the Women’s Charter…”
Mrs Seow Peck Leng (Mountbatten): “Mr Speaker, Sir, the principle of one man one wife is an excellent one, and I wish to compliment the Minister for Labour and Law for his attempt to implement this principle through the Women’s Charter…”
The Women’s Charter was introduced as “a significant advance in social legislation for the protection of the rights of women”. Crucially, the Women’s Charter was intended to protect women’s rights in the context of opposite-sex marriages. The purpose of the Women’s Charter Bill was, inter alia, to “provide for monogamous marriages and for the solemnization… of such marriages…” at a time when polygamy was commonplace amongst the Chinese and women were relegated to second-class status in both the personal and political realms. Consequently, the only reasonable inference to be drawn to that the purpose of the Women’s Charter was to protect the rights of women and ensure equality between husband and wife, in the context of opposite-sex marriages. Presuming that the Women’s Charter is meant to be read as a coherent whole, the specific purpose of s 12(1) should be or complementary rather than contradictory to this general purpose of the Women’s Charter. Therefore, even assuming that extraneous material were relevant for discerning the purpose of s 12(1) (which it is not, since the aforementioned extraneous material only relates to the general purpose of the Women’s Charter Bill, rather than the specific purpose of clause 12(1)), such extraneous material, at best, only serves to confirm that the ordinary meaning of s 12(1) precludes the validity of marriages like BS and FK’s.
Finally, one must have regard to Section 9A(4)(a) of the Interpretation Act, which states that –
“(4) In determining whether consideration should be given to any material in accordance with subsection (2), or in determining the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to –
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law;…”
S 12(1) concerns the validity of marriages, an issue which hugely affects many Singaporeans. It is extremely desirable for laymen to be able to rely on the ordinary meaning of s 12(1) to know when and how their marriages may be deemed void. Had Parliament intended to recognize the validity of marriages that assume a same-sex nature only after solemnization, it is curious that Parliament would have chosen to forsake legal certainty for the common man by not drafting an explicit provision to that effect.
Tracing the historical background of the Women’s Charter, Leong notes that the Women’s Charter was borne out of the People Action’s Party promise to ensure the “equality of women with men in all spheres”. The Women’s Charter Bill, in recognizing “the one man one wife system of marriages” as “the recognised social order… in all progressive countries”, met with resounding support from both the Government and members of the Opposition. That “recognised social order” was intended to persist throughout the duration of a couple’s marriage, and regrettably continues to be so today. Couples like FK and BS deserve better from a country widely lauded as progressive – be that as it may, their relief will not be found in statute nor the courts.