Cheong Kim Seah v Lim Poh Choo

• Jurisdiction: Singapore
• Judgment Date: 31 August 1992
• Date: 31 August 1992
• Docket Number: Divorce Petition No 360 of 1992
• Court: High Court (Singapore)

Cheong Kim Seah

Plaintiff

and

Lim Poh Choo

Defendant

[1992] SGHC 231

M Karthigesu J

Divorce Petition No 360 of 1992

High Court

Family Law–Grounds for divorce–Irretrievable breakdown–Statutory defence pleaded–Whether just and reasonable to make a decree in the circumstances–Whether respondent's particulars scandalous and clearly intended to embarrass petitioner–Whether particulars should be struck out–Section 88 (4) Women's Charter (Cap 353, 1985 Rev Ed)–Family Law–Divorce–Whether solicitor had authority to act for petitioner–Whether petitioner had mental capacity to instruct solicitor–Whether respondent's plea of petitioner's incapacity was a proper course to challenge solicitor's authority–Proper course to stay or dismiss the petition–Respondent in abuse of process of court

The petitioner's ground for divorce was that his marriage to the respondent has irretrievably broken down since he has lived apart from the respondent continuously for a period of four years from 8 February 1988 when he left the matrimonial home to the date on which he presented his petition. The respondent's answer admitted that both the petitioner and the respondent had been living “separate and apart” since 8 February 1988 but averred that the petitioner “at all material times did not possess the capacity and did not and/or was not able to form the necessary intention to divorce the respondent”, of which particulars were given. The respondent further pleaded by her answer that she still loved and cared for the petitioner, that she had been providing the necessary emotional support throughout their marriage and that she had been at all material times and was still ready and willing to effect a reconciliation with the petitioner. Accordingly she maintained that it would not be “just and reasonable” to grant a decree of divorce and that “in all [the] circumstances it would be wrong to dissolve the marriage”.

The petitioner contended that the respondent's answer should be struck out on the ground that: (a) the respondent by raising the petitioner's mental state though short of saying he was of unsound mind was in effect denying the authority of his solicitors to bring this petition for divorce and that that was not an issue which it was competent for the respondent to raise at the trial; and (b) save for the admission that the petitioner and the respondent have lived apart and separate since 8 February 1988 the rest of the answer disclosed no reasonable defence, was scandalous, frivolous or vexatious, intended to embarrass or delay a fair trial and was an abuse of the process of the court.

The assistant registrar dismissed the petitioner's application to strike out the respondent's answer pursuant to O 18 r 19 of the Rules of the Supreme Court 1970 (“the RSC”) and/or under the inherent jurisdiction of the court. The petitioner appealed. The issues here were: (a) whether the “unsoundness of mind” of the petitioner and the authority of the petitioner's solicitors to act for him were issues which could competently be raised at the trial of these proceedings; and (b) whether it was an abuse of the process of the court to raise them as issues.

Held, allowing the appeal:

(1) Although these were matrimonial proceedings under the Women's Charter (Cap 353, 1985 Rev Ed) (“the Charter”) and was subject to the Matrimonial Proceedings Rules 1981 the application was sustainable under the RSC by reason of r 2 of the Matrimonial Proceedings Rules 1981 and the inherent jurisdiction of the court: at [1].

(2) There were set rules and procedures to be followed where a defendant, or a respondent as in this case, had a bona fide basis to challenge the authority of the plaintiff's or petitioner's solicitors to have conduct of the matter on account of a genuine doubt as to the mental capacity of the plaintiff or petitioner to instruct his solicitor in the matter. Hence, the proper course for the respondent to have taken, if she genuinely believed that the petitioner “did not possess the capacity and did not and/or was not able to form the necessary intention to divorce the respondent” was for her, by a substantive application, supported by credible evidence, including medical evidence, to have applied for a stay or a dismissal of the petition and not to have pleaded his incapacity as a defence to the petition. By doing so, the respondent was in abuse of the process of the court, and at least of so much of the answer as averred to the mental incapacity of the petitioner ought to be struck out: at [21] and [23].

(3) The differences between the provisions in the Charter and the Matrimonial Causes Act 1973 (c 18) (UK) were material to the extent that a Singapore court must approach with caution English cases which had pronounced on the irretrievable breakdown of the marriage on the ground that the parties had lived apart for a continuous period of at least five years (four years by the Charter) immediately preceding the presentation of the petition. Accordingly, caution had to be exercised in the Singapore context with regard to the statutory defence provided by s 88 (4) of the Charter. The statutory defence was that it would not be just and reasonable to make a decree as in all the circumstances, including the conduct of the parties, it would be wrong to dissolve the marriage: at [29] and [31].

(4) The statutory defence was no good without particulars. Even if the earlier stated particulars were repeated they would not only be irrelevant in the light of the admission made by the respondent in her answer but they were clearly intended to embarrass the petitioner and were an abuse of the process of the court. They, together with the statutory defence, ought to be struck out. Even if they were proved they could not amount to showing that “in all the circumstances it would be wrong to dissolve the marriage” on the ground prayed for by the petitioner. The particulars were no more than mere allegations of the petitioner's supposed “immature behaviour” and “inferiority complex”. Further, the allegation that the petitioner had received psychiatric treatment for 20 of the 25 years of his marriage to the respondent for his “erratic behaviour”, even if proved, would not make it “just and reasonable” for refusing a decree. This particular was scandalous and clearly intended to embarrass the petitioner. In view of the admission by the respondent that she and the petitioner had lived “separate and apart” for four years immediately preceding the petition, it would not be just and reasonable to conduct an inquiry into the petitioner's behaviour alleged by the respondent. Even if such an inquiry were conducted and the earlier stated particulars to the advantage of the respondent, were impliedly taken as the particulars of the statutory defence and were proved they would not amount to showing that “in all the circumstances it would be wrong to dissolve the marriage”: at [37] to [39].

(5) It followed that the bare assertion of the statutory defence provided by s 88 (4) of the Charter and even if the earlier stated particulars were impliedly repeated as particulars to object to the dissolution of the marriage on the ground that it would not be just and reasonable in all the circumstances to do could serve no purpose. Paragraph 3 of the answer should be struck out: at [47].

(6) A respondent's desire to maintain a marriage when the fact of separation was proved or admitted, thus raising the presumption that the marriage has irretrievably broken down could not be rebutted by professions of love and care and assertions that she provided emotional support throughout the marriage. Nor could it support the statutory defence provided by s 88 (4) of the Charter having regard to the policy and philosophy of the legislation. Paragraph 2 of the answer was a meaningless averment and ought to be struck out. Further, in Divorce Petition No 729 of 1989 the court did provide for a period for a reconciliation to be effected and it was not achieved: at [49].

(7) Accordingly, the whole of the respondent's answer except for the first sentence of para 1 of the respondent's answer should be struck out: at [52].

Chapman v Chapman [1972] 1 WLR 1544; [1972] 3 All ER 1089 (distd)

Grenfell v Grenfell [1977] 3 WLR 738; [1978] 1 All ER 561 (folld)

J (orse B) (by her next friend) v J [1953] P 186; [1953] 1 WLR 36; [1952] 2 All ER 1129 (folld)

Moses v Moses [1965-1967] SLR (R) 797; [1965-1968] SLR 694 (folld)

Parsons v Parsons [1975] 1 WLR 1272; [1975] 3 All ER 344 (distd)

Richmond v Branson & Son [1914] 1 Ch 968 (folld)

Russian Commercial and Industrial Bank v Comptoir d'Escompte de Mulhouse [1925] AC 112 (folld)

Wong Phui Lun Joseph v Yeoh Loon Goit [1977-1978] SLR (R) 305; [1978-1979] SLR 252 (folld)

Rules of the Supreme Court1970, TheO 18r 19

Women's Charter 1961 (Act 18 of 1961)

Women's Charter (Amendment) Act1967 (Act 9 of1967)

Women's Charter (Cap 353, 1985 Rev Ed)s 88 (4) (consd);ss 85,88 (2),88 (3)

Women's Charter (Matrimonial Proceedings) Rules 1981 (S232/1981)r 2

Matrimonial Causes Act1973 (c 18) (UK)ss 1 (3),1 (4),5

Raj Singam and Randolph Khoo (Drew & Napier) for the petitioner

Tan Hin Tat (Sim Hill Tan & Wong) for the respondent.

Judgment reserved.

M Karthigesu J

1 This appeal arises from the dismissal by the assistant registrar on 11 May 1992 of the petitioner's application to strike out the respondent's answer pursuant to O 18 r 19 of the Rules of the Supreme Court 1970 (“the RSC”) and/or under the inherent jurisdiction of the court. Although these are matrimonial proceedings under the Women's Charter (Cap 353) (“the Charter”) and are subject to the Matrimonial Proceedings Rules 1981 the application is sustainable under the RSC by reason of r 2 of the Matrimonial Proceedings Rules 1981. It is also sustainable under the inherent jurisdiction of the court.

2 The petitioner's ground for divorce is that his marriage to the...