Tan Lee Tiang v Chia Thuan Hwa

• Judge: K S Rajah JC
• Judgment Date: 27 October 1993
• Neutral Citation: [1993] SGHC 256
• Citation: [1993] SGHC 256
• Defendant Counsel: Lim Yee Kai (KK Yap & Pnrs)
• Published date: 19 September 2003
• Plaintiff Counsel: Mok Wing Chee (Chung & Fong)
• Date: 27 October 1993
• Docket Number: Divorce Petition No 1439 of 1993
• Court: High Court (Singapore)
• Subject Matter: Question of proof,Grounds for divorce,Words and Phrases,Effect of s 45 of Women's Charter,s 88(3)(d) & (e) Women's Charter (Cap 353),Irretrievable breakdown,Petition under s 88(3)(d) of the Women's Charter (Cap 353),Parties living under same roof but claiming to lead separate lives and running different households,When 'living apart' commences,Whether facts proved parties were 'living apart',Significance of parties staying with each other and caring and providing for children,Parties living apart for a continuous period of at least three years immediately preceding the presentation of the petition,Evidence of consortium,ss 45, 88(4), 106 & 121 Women's Charter (Cap 353),Subjective and objective standards to be applied by court under s 88 of Women's Charter,Divorce,'Living apart',Family Law

This is an appeal against my decision dismissing the petition for divorce on the ground that the marriage had broken down irretrievably as the parties had lived apart for a period of three years and the respondent had given his consent. The petitioner married the respondent at the Singapore Registry of Marriages on 6 January 1983. After the marriage, the petitioner and the respondent lived and cohabited at diverse addresses and lastly at 10A Dix Road, Singapore 1954.

The petitioner is a sales executive and the respondent is a businessman. There are two children. The children are six and four years old respectively. There were no other proceedings in respect of the marriage. The marriage was said to have broken down irretrievably as the parties had lived apart for a continuous period of at least three years immediately preceding the presentation of the petition from early 1990. The respondent`s consent to a decree nisi being granted was given.

Separate households in one bedroom

The particulars of living apart were to the effect that although the parties had been living under the same roof they had, in fact, been leading separate lives and running different households.

The parties slept in the same bedroom but according to the petitioner did not share the same bed. The respondent slept on the bed. The petitioner and the children slept on the floor in the same bedroom. The parties, it was claimed, ceased to have marital relations about three years ago, had ceased to communicate with each other for three years and there was absolutely no community life.

The respondent would have his dinner with his parents, with whom the parties were residing. The petitioner would take her dinner alone later in the evening. The parties had ceased to go out together with the children as a family and took the children out separately. In November 1992 the petitioner left the respondent. She said she did so as she was unable to tolerate living with the respondent. The petition was filed on 18 June 1993.

The children were four and six and in the nature of things would have been closer to the mother and the mother closer to them. The prayers, however, were for the respondent to be granted custody and:

(1) the petitioner be allowed overnight access on alternate weekends from Saturday morning at 10.30am to Sunday evening at 5pm; and

(2) the petitioner be allowed weekday access including overnight access if the following day is a public holiday and during the school vacation for up to half the number of weekdays in a month.

Notwithstanding the prayers for access and custody, I was satisfied that it would be a painful parting for the petitioner.

The respondent gave his consent to the effect that they had lived apart for a continuous period of at least three years immediately preceding the presentation of the petition, ie since sometime in early 1990. In the statement as to the arrangements for the children, the petitioner said that the children were residing with the respondent at 10A Dix Road, Singapore 1954 but the petitioner and the respondent supported the children financially. The uncontested petition was heard for some 15 minutes as I wanted to satisfy myself that the parties had in fact lived separate and apart as separate households, so that the parties could be found as a fact to have lived apart for a period of three years.

The petitioner is a sales executive and is contributing to the maintenance of her children and no doubt did so when, according to her, she slept on the floor with her children. All that the respondent had to do was to roll off his bed to be with his wife and children. Husbands and wives not having their meals together after a tiff or quarrel is part and parcel of married life. Taking turns on the bed, floor or sofa or at the dining table can only add up to living apart if it is clear that the parties at some point became separate households and were not co-operating with each other and safeguarding the interests of the marriage and caring and providing for children.

In Santos v Santos ,1 the Court of Appeal considered a wife`s undefended petition on the basis of two years` separation and her husband`s consent. The judge dismissed the petition because, on three occasions since the separation, the wife had stayed with her husband for a short while. The wife appealed. The Court of Appeal considered the meaning of `living apart`. Sachs LJ delivering the judgment of the whole court said (at p 248):

... a very important issue as to the meaning of the words `living apart` ... Does this relate simply and solely to physically not living under the same roof, or does it import an additional element which has been referred to in various terms - `absence of consortium`, `termination of consortium`, or an `attitude of mind` - phrases intended to convey either the fact or realization of the fact that there is absent something which is fundamental to the state of marriage. ...

It is unfortunately by no means plain what exactly the legislature had in mind when enacting this subsection - nor even what is its general objective. Three points on its phraseology are however to be noted. First, it does not use the word `house`, which relates to something physical, but `household`, which has an abstract meaning. Secondly, that the words `living with each other in the same household` should be construed as a single phrase. Thirdly, it specifically refrains from using some simple language referring to physical separation which would achieve the result ... On the contrary, use is again made of words with a well-settled matrimonial meaning - `living together`, a phrase which is simply the antithesis of living apart, and `household`, a word which essentially refers to people held together by a particular kind of tie, even if temporarily ... Whatever the object of this subsection, the combination of the first and third points makes it plain that it does not produce the result which has been urged on behalf of the wife. ... Therefore `living apart` ... is a state of affairs to establish which it is in the vast generality of cases arising under those heads necessary to prove something more than that the husband and wife are physically separated. For the purposes of that vast generality, it is sufficient to say that the relevant state of affairs does not exist whilst both parties recognize the marriage as subsisting. ...

Under the Matrimonial Causes Act 1973 [GB], the court hearing a petition for divorce must not hold the marriage to be broken down irretrievably unless the petitioner satisfies the court of one or more of the facts set out therein. One of the facts that must be proved to the satisfaction of the court is that the parties to the marriage had lived apart for a continuous period of at least two years immediately preceding the presentation of the petition or for a continuous period of five years.

The duty of the court under the Matrimonial Causes Act 1973 is to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent and grant a decree when it is satisfied that the marriage had broken down.

There is no requirement under s 1 of the Matrimonial Causes Act 1973 for the court to consider all the circumstances, including the conduct of the parties to the marriage and the interests of those parties and of any children, and whether it would be, in all the circumstances, wrong to dissolve the marriage except in the case of a petition for divorce where the petitioner alleges five years` separation and the respondent opposes the grant of a decree on the ground that the dissolution of the marriage would result in grave financial or other hardship and that it would, in all the circumstances, be wrong to dissolve the marriage. (See s 5 of the Matrimonial Causes Act 1973).

There are supplemental provisions as to facts raising presumption of breakdown in the Matrimonial Causes Act 1973 for the purposes of s 1(2)(d) and (2)(e) of the Matrimonial Causes Act 1973 of the United Kingdom which reads:

(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as `two years` separation`) and the respondent consents to a decree being granted;

(e) that the parties to the marriage have lived apart for a continuous period of at...