Family Law

Citation(2001) 2 SAL Ann Rev 226
Published date01 December 2001
AuthorDEBBIE ONG SIEW LING LLB (NUS), LLM (Cantab), Advocate & Solicitor (Singapore) Associate Professor, Faculty of Law, National University of Singapore VALERIE THEAN MA (Cantab), LLM (Harv), District Judge, Subordinate Courts
Date01 December 2001
Living apart

13.1 In Chandran s/o S R Kanan v Jayalalitha d/o Nagalingam (Divorce Petition 3427/1999, DC, unreported judgment dated 26.2.2001), the husband petitioned for divorce based on four years” separation. The parties did not live in the same house since mid-December 1995 but the court found that the husband continued have a sexual relationship with the wife even after 1995. As such, the court held that the parties were not living apart as one of the important ingredients of consortium, sexual relationship, had not been terminated. Further, the husband lacked the intention to terminate the consortium as he continued to engage in sexual intercourse with his wife.

13.2 The case reiterates what is required to constitute “living apart” under s 95 of the Women”s Charter (Cap 353, 1997 Ed). There must be both physical separation with no consortium as well as the mental intention to end consortium. It is insufficient that parties live in two separate physical residences when in fact, they continue to carry on a marital relationship. Several cases in the past have already made the requirement clear: see Tan Tee Liang v Chia Thuan Hwa[1994] 1 SLR 186; Leong Kwek Keong v Lee Ying Kuan[1990] SLR 228.

Rescission of decree nisi

13.3 In Yap Choon Wan v Chan Yong Shing (Divorce Petition 1238/2000, DC, unreported judgment dated 11.6.2001), the wife filed a divorce petition based on the unreasonable behaviour of the husband. The husband filed a Memorandum of Appearance stating that he did not intend to answer the Petition but wished to be heard on ancillary issues. A decree nisi was granted without contest from the husband. The husband then sought a rescission of the decree nisi and leave to file an Answer, alleging that the wife still loved him. He alleged that he had tried to reconcile with his wife and did not do anything in order not to provoke her or jeopardise the reconciliation. The court rightly refused a rescission. The husband had, with legal advice and full knowledge of the proceedings, made the

decision not to contest the Petition. The decree nisi was a crucial order to dissolve the marriage and it made no sense to have allowed the decree to be granted without contest in order to salvage the marriage.

13.4 The case illustrates the finality of a decree nisi. The Women”s Charter provides for the power to rescind the decree nisi under certain circumstances provided in ss 97, 99, 109 and 136. Beyond these provisions, the court also has an inherent power to rescind decrees but it is likely that only a superior court possesses such powers (see Leong, Principles of Family Law in Singapore (1997 Ed)). A decree nisi should be nearly as “final” as a decree absolute except for the circumstances in ss 97, 99 and 136 where it can be rescinded (see Sivakolunthu Kumarasamy v Shanmugam Nagaiah[1987] SLR 182 on the effect of a decree nisi).

Custody and access
Encouraging joint parenting despite acrimony?

13.5 It has been pointed out in last year”s Family Law chapter of the Annual Review(2000) SAL Ann Rev 180 at 184—186 that the modern approach in determining children”s issues, which is consistent with that in England and Australia, is to encourage joint parenting.

13.6 The Court of Appeal decision in Chan Teck Hock David v Leong Mei Chuan[2002] 1 SLR 177 adopted the spirit of this approach. In this case, the wife/mother was given custody, care and control of the parties” three children, aged 16, 12 and 11 years. The husband/father sought an order that his consent be sought as to “i) whether a child should be sent overseas for education and ii) the course which the child should pursue and the institution of study”. The judge below felt that in view of the acrimony between the parties, it was “unrealistic to compel the wife to consult and seek the prior consent of the husband on the children”s education. That would be a recipe for disaster.” (see Leong Mei Chuan v David Chan Teck Hock (Divorce Petition 3777/1997, RAS 720013 and 720014/2000, HC, unreported judgment dated 25.4.2001) at para 10). The Court of Appeal disagreed with this view and granted the father the right to be consulted on the children”s further education. It held (at 183):

“[T]he interest of the children demands that both parents should be involved in determining what is best for them in that regard. While as between the parties there is bitterness, it does not necessarily follow that this would spill over in determining the educational needs of the children. The court should not decree an arrangement which gives an impression to a child that either the father or mother does not care about his welfare. As we have no doubt that both parents have and will continue to have the children”s interest at heart, we do not think that there would be any insurmountable difficulties. In the unlikely event that an impasse should arise, the assistance of the court could always be sought.”

13.7 This is an excellent summary of the argument for joint parenting. While the case involved joint parenting only with respect to the children”s further education, the same argument can be made with respect to the few important aspects of the child”s life such as education, religion and major medical decisions. It has been argued elsewhere (see Ong, “Parents and Custody Orders — A New Approach”[1999] SJLS 205) that joint custody gives both parents control over these few major aspects of the child”s life and it is possible for parties to cooperate in these areas, even if there is acrimony at the time of the divorce proceedings.

13.8 Chan Teck Hock David is significant because joint consultation was required in the matter of the children”s education even when there was bitterness and acrimony in the parties” relationship. It should cause future courts to think over the possibility of joint parenting or joint custody even when there is evidence of acrimony. It is only to be expected that when a marriage breaks down and parties dispute over various matters that there will be some acrimony between them at the time of the divorce proceedings. A number of cases in the past year has not been as forward-looking as the Court of Appeal in Chan Teck Hock David and have avoided joint custody because of the parties” acrimony. These cases may be seen as exceptions to the norm in that where the court is satisfied on evidence of the particular case that the parents are unable to cooperate even in the future, joint custody may be unsuitable.

13.9 In Lim Gwek Quee v Cunningham Peter William (Divorce Petition 2399/1999, DC, unreported judgment dated 10.9.2001), the undisputed facts from the particulars in the divorce petition showed that the parties had frequent quarrels over the upbringing of their only son. The court granted sole custody, care and control of the child to the wife with reasonable access to the husband as this would reduce acrimony between the parties. In Ow Eng Yen v Robertson David Maitland (Divorce Petition 2916/2000, DC, unreported judgment dated 1.6.2001), joint custody was not ordered because both parties had two very distinct views in the upbringing of the child and such an order would escalate the acrimony between them. Similarly, in Huang Min Min v Yu Chuan Hsian (Divorce Petition 1162/1997, DC, unreported judgment dated 13.1.2001) and Ho Li Yan v Lim Andy @ Lim Chung Hua (Divorce Petition 3593/2000, DC, unreported judgment dated 30.8.2001) joint custody was not ordered because of the acrimony of the parties.

13.10 A compromise position somewhat similar to that in Chan Teck Hock David was taken in Teo Ooi Leng Irene v Han Teck Soo (Divorce Petition 3535/1999, DC, unreported decision dated 30.4.2001). In this case, the court ordered that the wife shall have the custody, care and control of the three children provided that issues relating to religion and formal education of the children shall be decided jointly and...

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