UNU v UNV

• Jurisdiction: Singapore
• Judge: Wendy Yu
• Judgment Date: 27 August 2018
• Neutral Citation: [2018] SGFC 70
• Court: Family Court (Singapore)
• Docket Number: OSF No. 19 of 2018
• Year: 2018
• Published date: 08 September 2018
• Hearing Date: 04 April 2018,06 June 2018,02 May 2018
• Plaintiff Counsel: Mr Dhanwant Singh & Mr K V Sudeep Kumar (S K Kumar Law Practice LLP)
• Subject Matter: Dissolution of Marriage Within 3 Years,Section 94 of the Women's Charter
• Citation: [2018] SGFC 70

District Judge Wendy Yu: Introduction

This was an application by the Plaintiff Wife (“Wife”) for leave under Section 94 of the Women’s Charter (Cap.353) (“Women’s Charter”), to commence divorce proceedings against the Defendant Husband (“Husband”) notwithstanding that 3 years had not passed since the marriage was registered on 23 March 2016 (“Application”). The Husband has expressed his consent to the Wife’s application by filing an affidavit dated 14 March 2018.

The matter was first heard on 4 April 2018 when the counsel for the Wife (“WC”), Mr Dhanwant Singh, had agreed with me when I pointed out that there was a lack of documentary evidence¹ or particulars to support his client’s application and so WC requested for more time to support gather further documentary evidence. The hearing was adjourned to 2 May 2018 to give time to the Wife to file her supplementary affidavit by 25 April 2018. The supplementary affidavit was not filed by then, as directed by the Court. WC’s colleague, Mr Sudeep Kumar attended the hearing on behalf of WC on 2 May 2018 to ask for another adjournment as the supplementary affidavit was not ready. Even though I was of the view that ample time was already given to the Wife to file her supplementary affidavit, I had indulged WC and adjourned the hearing to 6 June 2018, but made it clear to WC that the supplementary affidavit must be filed by 30 May 2018. The Wife once again failed to comply with the timelines given by the Court and filed a supplemental Affidavit only on the day of hearing itself (6 June 2018). I heard the Application on 6 June 2018 taking into consideration the contents in the earlier Affidavit filed and the supplemental Affidavit as well. I dismissed the application, setting out my grounds briefly. On 16 June 2018, the Wife filed a Notice of Appeal against my decision.

Section 94 of the Women’s Charter and the Law

Section 94(1) of the Women’s Charter imposes a statutory restriction on the filing of a writ for divorce unless 3 years have passed since the date of the marriage. However, under Section 94(2) of the Women’s Charter, the Court may grant leave for a writ to be filed out of the 3 year period on the grounds that “the case is one of exceptional hardship suffered by the plaintiff or of exceptional depravity on the part of the defendant”.

Exceptional Hardship and Depravity

In hearing an application for leave under Section 94(2), a judge was only required to consider whether or not the allegations were such that if proved would amount to exceptional hardship or depravity (See the case of W v W [1966] 2 All ER 889 (“W v W”), applied by the Singapore Courts in Zhao Lu v Lee Yong Kwong Johnson [2007] SGDC 99).

In the case of Ng Kee Shee v Fu Gaofei [2005] SGHC 171 (“Ng Kee Shee”), the High Court observed at [23] that exceptional hardship “is something quite out of the ordinary and more than what an ordinary person should be reasonably asked to bear”. This sets a high bar for determining what amounts to “exceptional”. The intention of the prohibition under Section 94(1) against filing the Writ of divorce within 3 years of the marriage is to promote the sanctity of marriage and to ensure that parties do not rush into and out of marriage capriciously (at paragraph [21] of Ng Kee Shee). Given the high threshold, it is notable that most applications for leave under Section 94 have been unsuccessful.

Submissions at Hearing

Unfortunately, WC did not prepare any written submissions for the hearing, neither did he prepare any bundle of authorities in support of his client’s application. It was only when the Court asked WC if he had any authorities that he would like to cite in order to support his client’s application that WC cited the case of Ng Kee Shee. When WC was being asked on what were the facts of Ng Kee Shee that were similar to his client’s case which would persuade the Court that his client had suffered similar hardship, WC simply stated briefly that Ng Kee Shee also had “to do with a foreigner²”.

The alleged behaviour in Ng Kee Shee was certainly more “exceptional” than the case before this Court. From the night of the wedding, the wife in Ng Kee Shee had emotionally and physically distanced herself from the husband. Within 5 months, she had left the country without a word and did not even bother to leave a note to...