Family Law
| Date | 01 December 2006 |
| Published date | 01 December 2006 |
| Citation | (2006) 7 SAL Ann Rev 257 |
| Author | Debbie ONG LLB (Hons) (National University of Singapore), LLM (Cambridge); Associate Professor, Faculty of Law, National University of Singapore. Valerie THEAN MA (Cambridge), LLM (Harvard); Senior State Counsel, Attorney General’s Chambers. |
14.1 A plaintiff seeking a divorce under s 95 of the Women”s Charter (Cap 353, 1997 Rev Ed) may rely, amongst other things, on the fact that the parties have ‘lived apart’ for a number of years to prove the irretrievable breakdown of marriage. There are two dimensions in the concept of ‘living apart’: the physical and the mental.
14.2 The Subordinate Courts case of Deepak Govindran Kirpalani v Rita Kishinchand Bhojwani[2006] SGDC 173 reiterates that there must be a mental element that turns the physical separation into the ‘living apart’ that is required by s 95(3). In this case, the parties were married in 1985. The wife lived with the husband in Nigeria from 1985 to 1993 after which she moved to Singapore with their son to live with her parents. The parties spent various periods of time together during the years 1994 to 2005. The husband commenced divorce proceedings, relying on the fact that the parties had lived apart for more than four years to prove the irretrievable breakdown of the marriage. The court dismissed the divorce petition, as the husband had failed to prove that they had ‘lived apart’ for four years. It held that while the physical requirement of living apart had been satisfied, there was no intention to terminate the marriage. The court found that the husband had formed the intention to terminate the marriage only around January 2005. There was evidence that he was actively trying to improve or salvage the marriage in 2003 right up to early 2005. As he had not given up hope in his marriage and was trying to save it, he did not intend to terminate it and the years of physical separation were not sufficiently clothed with the requisite mental element to constitute ‘[living] apart’ under s 95(3)(e).
14.3 While this case rightly reinforces the need for parties to prove the mental element in order for the separation to constitute ‘[living] apart’ for the purposes of s 95(3), it may have gone too far in requiring an intention to terminate the marriage, which includes giving up all hopes of salvaging the marriage. The requisite mental element is that the parties must live in separate households by choice and not due to necessity. For example, parties cannot rely on the period of time that they have lived physically apart due to one party being posted to another country for work purposes. However, if parties choose to live apart by choice, attempts by either party to salvage the marriage do not of themselves cause the living apart to lack the mental element. Section 95(7) contemplates that parties may resume living together, perhaps with a view to salvaging the marriage, but, if that period does not exceed six months, the fact of living together does not prejudice the plaintiff”s case in relying on the fact of living apart.
14.4 It is possible for a couple to undergo two marriages under different systems of law. Supppose their marriage is dissolved under one of these systems of law, does the marriage contracted under the other system still subsist? In Noor Azizan bte Colony v Tan Lip Chin)[2006] 3 SLR 707 (‘Noor Azizan’), a Muslim woman married a non-Muslim man under the Women”s Charter. The man subsequently became a Muslim and the couple went through a Muslim ceremony at the Registry of Muslim Marriages. The marriage broke down and the Syariah Court issued a decree dissolving their marriage. The woman sought a declaration that the marriage contracted under the Women”s Charter has been dissolved and applied for the record of marriage to be expunged from the records at the Registry of Marriages. The High Court held that the question of expunging the records of the Registry of Marriages did not arise as there had been a valid marriage, and that the marriage relationship been been validly dissolved by the Syariah Court order. The High Court noted (at [5]):
That there is only one marriage relationship even though a husband and wife may undergo two or more marriage ceremonies has often been stressed.
The High Court explained at [10]—[11]:
Section 7 of the Women”s Charter … envisages that a marriage under the Charter may be dissolved by our own civil courts as well as by other courts of competent jurisdiction. …
… There is no reason why the Syariah Court … should not be allowed to do what a competent foreign court may in relation to the dissolution of a marriage under the Women”s Charter.
14.5 Quoting from Leong Wai Kum, Principles of Family Law in Singapore (Butterworths Asia, 1997) at p 254, it would be ‘irrational to read section 7 of the Women”s Charter to permit a decree of a foreign court to have effect but not one from a court of our own judicial system.’ As the Syariah Court acted within its jurisdiction in the present case when it dissolved the parties” marriage, its order effectively dissolved the entire marriage relationship between the parties. The High Court declared that the parties were no longer married under Muslim law or under the Women”s Charter.
14.6 The argument against this view taken by the High Court is that the two separate systems of law in Singapore ought to be kept independent and distinct from each other. Thus, a Muslim decree dissolves only the parties” Muslim marriage and is not intended to affect the Women”s Charter marriage. Unlike foreign decrees which are intended to dissolve the marriage relationship arising out of one marriage contracted under the Women”s Charter, there were two separate marriage contracts under two systems in Noor Azizan. This case has determined that even under these circumstances, there is only one marriage relationship which is entirely dissolved by an order of one system of law.
14.7 In last year”s review (see Debbie Ong & Valerie Thean, ‘Family Law’(2005) 6 SAL Ann Rev 259 at para 13.16), it was suggested that:
It is expected that with the application of CX v CY [(minor: custody and access)[2005] 3 SLR 690], sole custody orders will only be granted under exceptional circumstances.
However, in LV v LW (divorce: ancillary matters)[2006] SGHC 50 (‘LV v LW (HC’), the mother was given sole custody of the children. The father had relied on CX v CY in his appeal for joint custody of the children, but the High Court held (at [10]) that:
In that case [CX v CY], however, a joint custody order was made because the excluded spouse appeared to have been denied every right to the young, four-year-old child. In the present case, the respondent had been given the
right of reasonable access, and, more importantly, the children here are much older and all of them appear to be highly intelligent. The judge below had interviewed each of the children individually before he made his decision to give custody, care and control to the petitioner. I was not inclined to vary an order so made and, therefore, dismissed the respondent”s appeal on this issue.
14.8 The District Court in LV v LW[2005] SGDC 259 (‘LV v LW (DC’) had awarded sole custody of the four children to the mother. One of the reasons relied on (at [16]) was that:
[I]t is trite law that joint custody is feasible only if both parents can cooperate. The evidence here showed an absent father. Despite their state of affairs, the children had thrived under the upbringing of Petitioner. To introduce the element of joint custody at this stage could, in my view, jeopardize the children”s welfare.
14.9 On the contrary, it is no longer trite law that joint custody is feasible only if parents can co-operate. The Court of Appeal in CX v CY (at [24]) rejected this view, which was taken earlier in Ho Quee Neo Helen v Lim Pui Heng[1972—1974] SLR 249 (‘Helen Ho’):
Helen Ho was decided more than 30 years ago, and in our view, it has been given too much weight not only by practitioners but also by subsequent judicial decisions. To our minds, the notion that joint custody should only be made where there is a reasonable prospect that the parties will cooperate is no longer appropriate in this day and age. Instead, we felt that in line with the outlook that parental responsibility is for life, the time was right for us to expressly endorse the concept of joint parenting. We believe that, generally, joint or no custody orders should be made, with sole custody orders being an exception to the rule.
14.10 The district judge in LV v LW (DC) understandably applied the law prior to the Court of Appeal”s decision in CX v CY since that judgment was dated 19 July 2005, while the District Court”s order on sole custody...
To continue reading
Request your trial