UOU v UOV

• Jurisdiction: Singapore
• Judge: Tan Shin Yi
• Judgment Date: 19 September 2018
• Neutral Citation: [2018] SGFC 82
• Court: Family Court (Singapore)
• Docket Number: Divorce No. 125 of 2016
• Published date: 27 September 2018
• Year: 2018
• Hearing Date: 05 October 2017,02 October 2017
• Plaintiff Counsel: Ms Wendy Han (M/S Wendy Han & Co)
• Defendant Counsel: Defendant-in-Person.
• Subject Matter: contested divorce,separation
• Citation: [2018] SGFC 82

District Judge Tan Shin Yi: Background Facts

The parties were married in Vietnam on 11 April 1998 and they have one child, a daughter aged 16 years at the time of hearing. The wife (“the Wife”) first commenced divorce proceedings against the husband (“the Husband”) in 2014 vide Divorce Suit D4327/2014, but these proceedings were withdrawn in January 2015.

On 11 January 2016, the Wife commenced the current divorce proceedings against the Husband. Her Statement of Claim was initially based on the fact that the marriage had broken down irretrievably in that the Husband had behaved in such a way that she could not reasonably be expected to live with him. On 24 August 2016, pursuant to both parties’ consent, leave was granted by the Court to amend the Wife’s Statement of Claim and Statement of Particulars, such that the ground for divorce was based on the fact of 4 years’ separation instead.

On 30 August 2016, the amended pleadings were filed, reflecting the Wife’s case that the marriage had broken down irretrievably in that the parties had lived apart for a continuous period of at least 4 years immediately preceding the filing of the Writ for Divorce. The Husband filed a Defence to contest the Wife’s case as he did not agree to the dissolution of the marriage.

The Husband was initially represented by solicitors assigned by the Legal Aid Bureau; however, his solicitors discharged themselves in April 2017. The Husband then represented himself. I heard the contested divorce over a tranche of seven days from August to November 2017 and reserved judgment. On 16 January 2018, I dismissed the Wife’s Writ for Divorce.

The Wife, being dissatisfied with my decision, filed a Notice of Appeal on 19 January 2018. These are the reasons for my decision.

The Alleged Separation

The Wife’s case was that she had formed the intention to end the marriage sometime in 2009, and that the parties had commenced living separately from 2009 onwards¹. The Wife averred the following:- That from 2008 to 23 December 2011, the parties and their daughter slept in the master bedroom with the Wife and daughter sleeping on a mattress on the floor and the Husband sleeping on the bed²; From 23 December 2011 to-date, the Wife started to sleep in the extension room of the flat with the daughter; while the Husband remained in the master bedroom³; Parties have not engaged in sexual relations since 2008/2009⁴; Since 2009, the Wife had stopped cooking for the Husband, buying food for him and parties had stopped having their meals together⁵; Since 2009, the parties had stopped going on outings and celebrating festive occasions together⁶; Since December 2011, the Wife stopped cleaning the Husband’s room and she also stopped doing any washing or ironing for the Husband since 2000/2001⁷; and Since 2009/2010, the parties stopped attending church together and the Wife started attending a different church in 2012/2013⁸.

The Husband disputed that the parties had been living separate and apart since 2009, and averred the following:- The parties had sexual relations on 7 February 2016⁹; The parties still attended the same church together until 2016¹⁰; The parties had on several occasions in 2016 shared meals together and the Wife had also cooked for the Husband in 2016¹¹; The Husband often assisted the Wife to heat up her food and store uneaten food in the refrigerator¹², and the parties often shared the food, ingredients, medicines, utensils and cutlery in the kitchen¹³; The parties still celebrated festive and special occasions together, such as their wedding anniversary on National Day, as well as Chinese New Year and New Year’s Day¹⁴; The parties had their “rough times” through the marriage but often made up thereafter¹⁵; and The parties shared the monthly mortgage payments for the matrimonial flat until 2012, in that the Wife paid for the instalments via deductions from her CPF account while the Husband gave her cash payments for the instalments¹⁶.

The Law

It is trite law that section 95(1) of the Women’s Charter only provides one ground for divorce, and that is the irretrievable breakdown of the marriage. Section 95(3) then goes on to state that the “court hearing any proceedings for divorce shall not hold the marriage to have broken down irretrievably unless the plaintiff satisfies the court of one or more of the following facts: that the defendant has committed adultery and the plaintiff finds it intolerable to live with the defendant; that the defendant has behaved in such a way that the plaintiff cannot reasonably be expected to live with the defendant; that the defendant has deserted the plaintiff for a continuous period of at least 2 years immediately preceding the filing of the writ; that the parties to the marriage have lived apart for a continuous period of at least 3 years immediately preceding the filing of the writ and the defendant consents to a judgment being granted; that the parties to the marriage have lived apart for a continuous period of at least 4 years immediately preceding the filing of the writ.

In the present case, the Wife’s case is that the parties have lived apart for a continuous period of at least 4 years immediately preceding the filing of the writ, and she would have to prove her case on a balance of probabilities. As the Writ was filed on 11 January 2016, the relevant date of separation would have been from 10 January 2012 to 10 January 2016, at the very latest. The Wife claimed that since 2009, she and the Husband had been leading separate lives and she formed the intention to divorce the Husband.

In order to establish that the parties have lived apart pursuant to section 95(3)(e) of the Women’s Charter, it is necessary to show that during the period alleged, the parties have lived in separate households such that there has been a physical separation; the separating party had the intention to terminate the marriage; and there was a loss of consortium.

Physical separation

In Tan Lee Tiang v Chia Thuan Hwa [1993] 3 SLR (R) 335, it was held that “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 the children”.

KS Rajah JC (as he then was) found that the then-section 88 of the Women’s Charter required the Court to apply both an objective and a subjective standard. The subjective standard required the Court to consider the content of the marital relationship of each couple. The objective standard required the Court to consider whether it is just and reasonable in all the circumstances and whether it would be wrong to dissolve the marriage. The fact of living apart is crucial where the parties rely on having lived apart for three or four years. It is ultimately a question of fact and degree and it is for a judge looking at all the variable components, some present, some absent, to find as a fact whether there has been a “living apart”.

Mental element of separation

In Leong Kwek Keong v. Lee Ying Kuan [1990] 1 SLR (R) 112, Chan Sek Keong J (as he then was) stated that separation could occur even where only one spouse formed the intention to sever or not to resume the marital relationship and acted on that intention, or alternatively acted as if the marital relationship had been severed (taken from the judgment of Watson J in The Marriage of Todd (No 2) (1976) 25 FLR 260). Chan J also referred to Santos v Santos [1982] Fam 247, where the Court of Appeal held that one party alone could bring about a separation or a living apart if he intended it to be or if his attitude of mind was so, and further, this unilateral element need not be communicated to the other party. The problem was one of proof in cases where the court has to decide whether the relevant party had such an intention, and this would require careful examination by the first instance judge and special caution may need to be taken.

Chan J found that even though the petitioner husband in Leong Kwek Keong had left the matrimonial home, he continued to do the things which he normally had done before he left: he returned every weekday after work to the matrimonial home, had dinner with the family and supervised his daughters’ homework, continued to have sexual intercourse with his wife, fetched his wife home from work on Saturdays and took her out for lunch etc. As a result, Chan J concluded that except for the fact that the petitioner did not sleep in the flat, he was carrying on a “normal domestic life”.

Loss of consortium

Consortium is the legal right of husband and wife to companionship and conjugal intercourse with each other. Section 46(1) of the Women’s Charter sets out the rights and duties of a husband and wife, that: “upon the solemnization of marriage, the husband and the wife shall be mutually bound to co-operate with each other in safeguarding the interests of the union and in caring and providing for the children.”

As stated in Tan Lee Tiang v Chia Thuan Hwa [1993] 3 SLR (R) 335, sexual intercourse was not the sole basis of a marriage so that its absence was not decisive in determining that there was no consortium vitae. In Santos v Santos, Sachs LJ referred to the termination or absence of consortium as the absence of something “which is fundamental to the state of marriage”. Chan J also referred to separation as involving the breakdown of the marital relationship (the consortium vitae).

The present case

The Wife claimed that in 2009, she decided that she “had had enough of the marriage”¹⁷ and went to stay in a women’s shelter for about one month, then rented a room near the matrimonial flat for three months. However, she eventually moved back into the matrimonial flat. In April 2010, she...