Sham Marriages - a personal encounter
When she walked into my office, she was quick to tell me that she had done no wrong. I recall her words to me that afternoon, “I really love him.”
With that, she gave me a quick rundown of how she met him, where they solemnized their marriage, what ceremony they went through and the few occasions they went out together as a couple. It was a marriage of about two years. She was from China and found employment here. She had a son from a previous marriage and was granted sole custody of him in the divorce.
She told me that her Singaporean husband was not staying with her. She and her son were residing in a rented apartment in Singapore. She was even giving him a monthly sum of S$250.00. This was deposited into his designated account. However, she told me that the money was to help her unemployed husband financially since “married couple share weal and woe together”.
To be honest, as I was listening to her case, I had to admit that her story felt a tad too scripted. You could say that I was not too convinced. After a while, she left my office and never returned. The consultation lasted for about half an hour. This happened about one year ago.
It must be duly noted that she came into my firm, M/s Hoh Law Corporation, because she was under police investigation for entering into a suspicious marital union, “marriage of convenience.”
Now, you need to know that when it comes to such marriages, love is the least of one’s concern or motivation. Couples get involved in sham marriages not for the purposes of settling down together. It is at all times, an arm’s length transaction where the closest thing the parties come to the consummation of the union is an exchange of payment for immigration advantages. If anything, it is a cover under the veil of a bogus union, to gain something in return for payment to another who has agreed to play along as the other willing spouse.
The main goal of entering into a marriage of convenience is to “obtain an immigration advantage”. In most cases, this immigration advantage has something to do with securing employment in a foreign country, which hopefully then translates into long term citizenship.
In Singapore alone, there were 170 people convicted of being involved in such marriages in 2014. This figure, however was down from 284 in 2013. This is indeed an encouraging sign, all thanks to the Immigration Act, which aims to cramp down on such “unholy matrimonies.” The imprisonment for those involved in such sham marriages ranges from 4 weeks to a few months, depending on how elaborate the scheme and cover-up was. Since the relevant section (Section 57(c)) in this Act came into force in December 2012, fewer people have been prepared to run the risk of being caught as a result of entering into such fraudulent relations.
The Immigration Act has cast her dragnet even further and wider to haul in all those who have arranged for such marriages with intent to thwart immigration measures and policies. In the case of Mehra Radhika vs. Public Prosecutor (2014) , Mehra was guilty of arranging a sham marriage between a local female citizen and a male Indian National named Gagandeep. She did this as a favor to her brother who had asked for her help. She was also hoping that the arranged marriage would make it easier for Gagandeep to secure a work permit in Singapore. She was therefore not paid for being their unwitting matchmaker.
From the perspective of all parties involved, it was an arrangement made in heaven. The local “spouse” that Mehra found for Gagandeep was promised a fee for participating in the scam. She was not required to fulfill any conjugal relations, and all she needed to do was to sponsor Gagandeep’s application for a Visit Pass to extend his stay in Singapore. As for Gagandeep, he got to stay in Singapore longer for the purposes of securing a work permit. In the end, it was a win-win situation for all parties, at least until the law caught up with them.
Mehra was initially sentenced to 8 months’ imprisonment for taking up the role of the arranger, but she appealed against the sentence and the appeal was heard before CJ Menon. CJ Menon reduced the sentence of Mehra from 8 months to 6 months because the whole arrangement was a rather straightforward one. It was not a syndicate operation or enterprise. Neither was it conducted with some continuity of a business. On the contrary, it was a one-off incident carried out by Mehra and there was no exploitation involved. Further, it was not done for personal gain as Mehra was not paid for it.
This case therefore highlights how serious the law regards sham marriages, even for agents who arrange for such sham marriages.
While the criminal law under the Immigration Act recognizes that marriages of convenience “create serious social and economic problems, undermine the integrity of the immigration system, and erode the sanctity of marriages,” the Women’s Charter (“WC”) however does not go so far with the legislative and social disapprobation. For the WC, a marriage is a marriage, even for sham ones. This is a gap that has been troubling Parliament.
In fact, for sham marriages or marriages of convenience, the WC in a recent case of Soon Ah See and another vs. Diao Yanmei (2016) had duly withheld her hand to condemn such an arrangement by refusing to declare such a union null and void.
In Diao Yanmei, the parties registered their marriage in October 2011. However, before the case came to trial, the “husband”, who was a Singaporean, had already passed away in August 2013. The Plaintiffs were the deceased’s twin sisters who were applying under the WC to declare the sham marriage void so that they, as the deceased’s nominees, would benefit from his CPF funds of S$170,000.00.
While one of the issues in the case is whether the deceased’s CPF nomination made in favor of the Plaintiffs is automatically revoked upon the subsequent marriage, what concerns us here is the approach the High Court Judge took when dealing with such dubious union under the WC.
I will deal with the deceased’s CPF funds at a later part of this article and trust me, the judgment on this issue is nothing short of sweet poetic justice.
Now, after hearing the evidence in the case, it was obvious to the Judge that the marriage was a sham. One of the telltale signs was the fact that the couple did not live together. This is the expected living arrangement between most couples since such illicit union was never about intimacy, but about keeping up with appearances.
Another sign was that the deceased’s loved ones like his mother and his twin sisters knew nothing about the marriage. Unsurprisingly, the deceased did not tell them about it. He even had a girlfriend at that time. In fact, the deceased’s friend testified in Court that the deceased even admitted to him that it was a sham marriage and he was paid S$4,000.00 and a monthly sum of S$400.00 for playing along.
In addition, Mdm Diao did not know rather basic personal details about the deceased. She fumbled and drew blanks under cross-examination when she was asked questions about the deceased’s family background, his favourite food, his allergy, and his highest educational level attained. She did not even know whether the deceased had served national service. The Judge then concluded with this: “At no point was there any genuine relationship between the deceased and the defendant (Mdm Diao).”
Yet, when it came to declaring the marriage void, the Judge was not prepared to do so. He wrote that “it cannot be opened to two individuals to enter into a marriage and then say, perhaps months or even years down the road, that the marriage is void all along merely because they did not have the requisite intention to enter into a genuine marriage.”
While the Judge was prepared to declare a marriage void between two individuals of the same sex, or when one of the parties lacks the requisite mental capacity, he was of the view that the WC could not vitiate sham marriages based solely on questionable intent, even if it were a façade to perpetuate certain illegal ends. The Judge cited various past cases locally and abroad in support of this interpretation. In other words, in modern vernacular, the couple’s drive, motivation or love for each other, or rather the complete absence of it, are all immaterial to the forming of a marital union under the It was apparent that marriage vows were taken by the court very seriously, whether in good or bad times, in honesty or otherwise.
However, the gap existent between the WC and the Immigration Act will soon be closed due to recent developments in Parliament. Parliament is mindful of the gap between how the Immigration Act and the WC each views sham marriages and as such, the Minister of Social and Family Development, Mr Tan Chuan-Jin, has introduced amendments to the WC that “have the effect of making sham marriages for immigration purposes void.” The amendments are said to take effect from 1 October 2016.
Further, there was also an issue in relation to how the CPF funds in Diao Yanmei was to be distributed.
In this case, the deceased had left a substantial CPF sum of S$170,000.00 behind. Before his marriage to Mdm Diao in 2011, he had made a CPF nomination in 2009 in favor of his twin sisters in equal shares.
As the Court drama unfolded between the deceased’s twin sisters and Mdm Diao, the former’s aim was to persuade the Court to declare the sham marriage void. In essence, a void marriage would mean that the deceased and Mdm Diao were never married in the first place. The logic is simple. No marriage means the CPF nomination will remain unrevoked and thereby valid in favor of the deceased’s twin sisters.
But as the Judge had refused to declare the marriage void under the WC, the twist to this court battle is that he was however prepared not to recognize the marriage under the CPF Act for the purpose of benefiting surviving family members. This means that the deceased’s twin sisters would benefit from the CPF funds notwithstanding that the sham marriage was still deemed valid under the WC.
The Judge was of the view that Parliamentary intention behind the CPF Act differs with that of the WC. The CPF Act was legislated to provide for the deceased’s immediate family members and according to the Judge, Mdm Diao was “by no stretch a member of the deceased’s immediate family”.
As there was no genuine marital relationship between the deceased and Mdm Diao, she cannot therefore be considered as an immediate family member. A scam union thus does not make for an authentic beneficiary under the CPF Act. The relevant extract from the judgment on this reads: “It follows that their marriage, while formally valid, is not the sort of marriage that falls within the meaning of “marriage” in s 25(5)(a) of the CPF Act.”
At this juncture, I know what you may be thinking. It is somehow disconcerting that while one Act (the WC) recognizes the marriage as valid, the other Act (the CPF Act) does not. And this is why the amendments to the WC in October this year is heartily welcome, notwithstanding that it has been four years in the making since the Immigration Act came into effect in 2012 to clamp down on such marriages.
In summary, this is the legal situation at the time of this case. A sham marriage contracted for the purpose of immigration advantages would invite penal consequences of a jail term and a fine. This is not restricted to parties to the marriage, but also to any person or persons who actively arrange for such unconscionable union.
However, under the WC, such marriages would not be considered as a void marriage. Marital relations, motives and the absence of love are therefore irrelevant to impugn its validity from its inception. But come this October, Parliament will amend the WC accordingly so that there will be a common thread that runs through the Immigration Act, the WC and the CPF Act. And this common thread is that these legislation will treat all such sham marriages as criminal, void and of no legal effect.
By then, nothing short of a proven genuine marital relationship will do to prevent a union from being regarded as a sham with all its legal consequences. Couples will have to walk their talk and talk their walk. And hopefully, love or some form of demonstrative marital commitment will then be the marital litmus test to weed out the fake marriages from those genuine ones.
By which time, let us hope that the marriage of convenience will not mutate into a different form of convenience, that is, the convenience of getting out of the union just because the parties find that it has become too inconvenient to stay together.
Advocate & Solicitor at Hoh Law Corporation
Written in January 2016