Family Law

Citation(2005) 6 SAL Ann Rev 259
Date01 December 2005
Published date01 December 2005
Legal effect of a decree nisi

13.1 The legal effect of a decree nisi of divorce was raised in Re Tan Meng Ling[2005] SGDC 155. The plaintiff and her first husband were married in 1981. She obtained a decree nisi of divorce on 8 September 2000. The plaintiff then married her second husband, James, on 28 December 2000. The decree nisi for the first marriage was made absolute on 9 January 2001. James petitioned the US Citizenship and Immigration Service for the plaintiff to migrate to the US as his spouse. The US authorities informed the couple that they were concerned with the date of the decree absolute for immigration purposes and were of the view that the plaintiff”s marriage to her first husband had not legally terminated when she married James. The plaintiff sought a declaration that, amongst others, a decree nisi operates as a decree of divorce and that upon the issue of a decree absolute, the date of the divorce is the date of the grant of the decree nisi.

13.2 The District Court declined to grant the declarations and held (at [26]) that:

The Decree Nisi marks the beginning of the formal end to parties” marriage to each other. In this sense parties” status in the period between the order of Decree Nisi and grant of Decree Absolute may be described as “conditionally divorced”. Notwithstanding this somewhat unsatisfactory description, this status is a statutory creation flowing from the two-step system put in place by Parliament. In law, the imposition of a minimum period before a Decree Absolute could be obtained was chiefly to permit the Attorney-General and / or interested persons to “show cause” if there be any grounds to object to the Decree Nisi being made absolute: s 97 of the [Women”s Charter (Cap 353, 1997 Rev Ed)]. In today”s family law practice, the process leading to grant of Decree Absolute is marked by applications to settle ancillary matters failing which leave of court is required to obtain a Decree Absolute …

Thus, a decree nisi does not legally terminate a marriage but allows practical arrangements to be made in contemplation of its ultimate termination when the decree is made absolute.

13.3 It has for some time been convenient for parties who wished to treat the grant of a decree nisi of divorce as legally terminating their marriage to cite Sivakolunthu Kumurasamy v Shanmugam Nagaiah[1987] SLR 182 (‘Sivakolunthu’) in support of that proposition. Re Tan Meng Ling clarifies that ‘[i]n finding that “a decree of divorce includes a Decree Nisi”, the Court of Appeal in Sivakolunthu was arresting any misperception that a Decree Nisi was not a binding decree’ (at [20]) but Sivakolunthu did not go further to hold that a decree nisi took effect as a divorce which terminated a marriage. Indeed, Sivakolunthu should not be taken out of context. In that case, the court was concerned with whether an order made under s 112 of the Women”s Charter (Cap 353, 1997 Rev Ed) was effective and binding when made upon a decree nisi of divorce. The court interpreted ‘a decree of divorce’ in s 112 to include a decree nisi. Thus, the court has jurisdiction to make an order of division of assets under s 112 when it grants a decree nisi of divorce. After all, a decree nisi has the effect of practically terminating the marriage but it does not legally terminate a marriage. Re Tan Meng Ling rightly clarifies that a marriage is not legally terminated until a decree absolute is granted. A divorce takes effect from the date of the grant of the decree absolute.

Section 94 restriction on divorce

13.4 In the District Court decision of Ng Kee Shee v Fu Gaofei[2005] SGDC 153, the husband”s application for leave to petition for a divorce within the first three years of marriage was dismissed. In this case, the parties registered their marriage in Singapore in October 2004 when the husband was 42 years old and the wife, Gaofei, was 21 years old. In January 2005, the wife, together with her good friend Qiongrui and Qiongrui”s cousin, Yuyin, left Singapore for China to celebrate the Chinese New Year with their families. The wife was to have returned to Singapore in March 2005 but neither she nor Qiongrui returned. The two husbands visited Yuyin who had returned and were told that their wives refused to return despite persuasion from their respective parents. The husband spoke to his wife on the telephone and was told that the marriage was over and that she wanted a divorce.

13.5 The husband sought leave to petition for a divorce, alleging that the wife had behaved abnormally from the start of the marriage. She had a very

close relationship with Qiongrui, evidenced by them holding hands and caressing each other in front of their respective husbands; having long telephone conversations late into the night; and staying overnight together at Yuyin”s home. She also avoided physical contact with him whenever possible, refused to wear her wedding band and refused to accompany the husband to the wet market although this was the only ‘chore’ required of her.

13.6 In order for the husband to succeed in his application for leave under s 94 of the Women”s Charter to present a divorce petition within the first three years of marriage, he had to show ‘exceptional hardship’ or ‘exceptional depravity’ on the part of his wife. The District Court was not persuaded by the husband”s submission that he was anxious to remarry and start a family and would have to continue working in his old age in order to provide for his children born to him in his forties. It dismissed the application for the following reasons (at [15]—[16]):

The aim of section 94 is to promote the sanctity of marriage and ensure that parties do not rush into and out of marriage without any thought of the consequences. … Parties were married for just 5 months. … there were no attempts at reconciliation here. The husband made no effort to go to China to persuade his wife to return, merely accepting her words over the telephone that she wanted a divorce. … some hardship is inevitable in the breakdown of a marriage. The crux is whether the hardship suffered is exceptional. In the present case, there is nothing exceptional. It was clear to me that the husband went into this marriage like it was a commercial transaction, with expectations of having a wife who would pander to his every need, having paid so much to the marriage agency for the arrangements and wedding. When reality fell short of his high expectations, he felt cheated and humiliated. While the wife is not blameless in this matter either, the husband had to some extent contributed to the situation he is in.

13.7 The husband of Qiongrui also sought leave to petition for divorce under s 94 in Toh Heng Leong v Lin Qiongrui[2005] SGDC 152. His application was also dismissed for similar, in fact nearly identical, reasons.

13.8 The husband of Gaofei appealed to the High Court. In Ng Kee Shee v Fu Gaofei[2005] 4 SLR 762 (‘Ng Kee Shee’), the High Court disagreed with the District Court and granted the husband leave to petition for divorce. It noted Yuyin”s evidence that the wives, whom she considered selfish and immature, felt that their marriages were mistakes and that they could not get used to living in Singapore and would never return to their husbands. The High Court sympathised with the husband and held that there was exceptional hardship (at [17]—[18], [21]—[22]):

I do find it somewhat disturbing that the district judge emphasised twice, almost derisively, that there was a rather big difference in the ages of the parties as seen in her statements, ‘The husband chose to contract a marriage with a girl more than 20 years his junior’ and ‘both married to men old enough to be their fathers’. … There was no evidence to indicate any coercion by the husband … The husband, therefore, had every reason to expect that both of them would want to get to know each other better gradually as the days passed.

However, it seemed that the wife was not only unwilling to make any effort towards this end after the wedding but was also constantly shutting all the doors in his face. … This was not a case of a new couple learning to adjust to each other. It was simply one of the wife unilaterally setting out all the rules of intimacy from the start, something that is the antithesis of intimacy. …

I agree with the pronouncement that the laudatory intention of s 94 is to promote sanctity of marriage and to ensure that parties do not rush into and out of marriage capriciously. Here, it was clearly the wife who had absolutely no regard for the union and who was the one who entered into the arranged marriage capriciously. To hold that the husband should nevertheless wait three years before seeking a divorce appears to be visiting the wrongs of the wife on him.

… I do not think it is fair to say that the husband entered the marriage ‘with expectations of having a wife who would pander to his every need’. The evidence did not justify such a statement.

13.9 This case exemplifies the difficulties faced by a court tasked with determining whether there is sufficient hardship which goes beyond the ‘ordinary’ hardship inevitable in all marital breakdowns. Suppose a spouse deserts the other spouse a few months after marriage, like the wife in Ng Kee Shee did by returning to China. Does such desertion constitute exceptional hardship to the spouse left behind? It is noted that s 95(3)(c) requires a continuous period of desertion of two years before irretrievable breakdown of marriage is proved. A spouse who is deserted by his spouse in his fourth year of marriage must still wait another two years before petitioning for a divorce using s 95(3)(c). What is the ‘exceptional’ hardship suffered by the husband in Ng Kee Shee when his wife deserted him? It is not difficult to see the trauma and hardship suffered by a party in the husband”s position. It is also not difficult to see the hardship suffered by numerous parties whose...

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