Castello Ana Paula Costa Fusillier v Lobo Carlos Manuel Rosado

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 24 September 2003
• Neutral Citation: [2003] SGHC 219
• Date: 24 September 2003
• Subject Matter: Test to determine whether petitioner can reasonably be expected to live with spouse,Test to determine whether petitioner finds it intolerable to live with spouse,Family Law,Grounds for divorce,Behaviour,Whether behaviour towards other family members and outsiders relevant
• Docket Number: District Court Appeal No 46 of
• Published date: 30 June 2011
• Defendant Counsel: Chandra Mohan (Tan Rajah Cheah)
• Court: High Court (Singapore)
• Plaintiff Counsel: Luna Yap (Luna Yap & Co)

The background

1 Ana Paula Costa Fusillier Castello (the wife) the appellant, was married to Carlos Manuel Rosado Lobo (the husband) the respondent, on 4 April 1978 at the Singapore Marriage Registry; subsequently their marriage was registered in Portugal. Both are Portuguese nationals but have resided continuously in Singapore, the husband since October 1977 and the wife since February 1978. The wife is a housewife while the husband is a pilot with Singapore Airlines. They have two sons aged 20 and 18; the older son has been studying in Australia since 2001 while the younger boy is schooling in Singapore.

2 On 19 April 2002 the wife filed Divorce Petition No. 601422 (the Petition) in the Family Court praying for a divorce on the ground of the husband's unreasonable behaviour, which she particularised. On 13 May 2002 the husband filed an Answer and Cross-Petition to the Petition. He denied the wife's allegations set out in the Petition in particular that he had assaulted her or had mentally and physically abused her. He alleged that it was the wife whose behaviour/conduct was unreasonable, who did not discharge her wifely duties and showed no affection for him, who had refused to have conjugal relationship with him since 1993, and who failed to appreciate what he had done for her and the sons, especially his generosity with money. The husband cross-petitioned for a divorce and prayed inter alia for joint custody, care and control of the children.

3 I should add that after she had filed the Petition, the wife applied to court and obtained, an Expedited Order as well as a Personal Protection Order against the husband. She further applied and obtained a maintenance order against him, on 14 June 2002.

4 On 14 November 2002, the Family Court granted the wife and husband decrees nisi on their Petition and Cross-Petition respectively. The district judge ordered that the ancillary matters be dealt with in chambers at a later stage.

5 The wife was unhappy with the court's granting a decree nisi on the husband's Cross-Petition on the ground of her unreasonable behaviour and appealed to the High Court.

6 The wife's appeal came up for hearing before me on 12 May 2003; I dismissed the appeal and the wife being dissatisfied, has now filed a notice of appeal (in Civil Appeal no. 58 of 2003) against my decision.

The Cross-Petition

7 I can do no better than refer to the grounds of decision (paras 4 to 20) for the facts as found by the learned district judge, which prompted her to grant the husband's Cross-Petition.

8 The husband's main grievance against the wife was her refusal to have conjugal relationship with or show any affection or intimate closeness towards, him since 1995 to-date. For five (5) years prior thereto, the wife seldom had sex with the husband. He testified he found it extremely humiliating for her to deny him a normal married life, thereby causing him a great deal of emotional and mental trauma. Cross-examined, the husband testified he had tried (hundreds of times) since 1994, to have sex with the wife but she used all sorts of excuses to turn him down. As the marriage was the second for the husband, he did not want to go through another (unpleasant) divorce. He therefore decided he would sacrifice himself for the sake of the two (2) sons (over whom the couple had frequent quarrels/disagreements) until they were older and had left home. Although he did not press the issue of the lack of sexual relationship because of the children, the husband felt over time that the parties could no longer reconcile.

9 The wife did not deny the husband's allegation. Indeed, in her Answer to his Cross-Petition she admitted she had refused to have sex with him even though she knew he felt deprived. In her Answer and in her affidavit of evidence-in-chief, she gave various reasons for such refusal:-

(i) she alleged that the husband had assaulted her on or about 12 February 1994 (at Shaw Centre carpark) causing her to leave the matrimonial home with the sons and to stay away for 3 days. After that assault, she lost all respect and affection for the husband and could not bring herself to have sex with him. Although she returned to the matrimonial home, it was for the sake of the sons so as not to disrupt their lifestyle and studies, not because of the husband;

(ii) after the husband cut her personal allowance to $1,500/- (one of her complaints was that he was tight-fisted), she stopped conjugal relationships with him, as she realised he would not change. She could not bear to have him touch her; she had to have feelings for a person before she engaged in sex and had none for someone she felt had treated her badly.

She had however acknowledged (at N/E 2) that the husband maintained the family throughout the years. Other than refusing to have sex with the husband, the wife claimed she still cooked and washed for the husband (this was disputed by the husband).

10 The court below found the wife gave contradictory testimony in her re-examination when she said (at N/E 27):-

Q: What are your terms for going back?

A: Try to be husband and wife again, respectful.

while her counsel submitted that she returned to the matrimonial home to give the marriage another chance.

11 The district judge found (in para 13 of her grounds of decision):-

It would appear from the evidence that the wife wanted to keep the marriage but did not want to have sexual relationship with the husband. She perceived that she is not at fault and that she is justified in not having sexual relationship with him. The husband however was unhappy with not having sexual relationship and sought now to terminate the marriage. I am of the opinion that the behaviour of the wife was such that the husband cannot reasonably be expected to live with her.

12 The husband's other grounds in his Cross-Petition were, that the wife was violent, hot-tempered, extravagant, very cold and unfriendly towards him; she went to the extent of removing all or most of his photographs from the house. The marriage had become an empty shell. Often, he came home tired due to jet lag but the wife paid little attention to him. The husband also claimed that the wife disliked many of his friends, giving them the cold shoulder when they came to the house so much so that they did not bother to come again. The wife also disliked his father and his daughter from his first marriage; her behaviour towards them upset him. She was extravagant and obsessed with buying things which included having 200 pairs of shoes. He denied her allegations of violence on his part.

13 The wife denied she was hot tempered or violent and, that she had removed most of his photographs. If she was uncaring or showed him no affection, she was only doing to him what he did to her. She said she disliked only a couple of his friends in Portugal but had never turned away any of his friends in Singapore. She had nothing against her husband's daughter but she disliked his father as much as the father disliked her. She admitted having 100 pair of shoes in Singapore and 4 pairs in Portugal.

14 The court below looked at and applied the principles in, Wong Siew Boey v Lee Boon...