VZJ v VZK

• Jurisdiction: Singapore
• Judge: Eugene Tay
• Judgment Date: 17 January 2022
• Neutral Citation: [2022] SGFC 6
• Court: Family Court (Singapore)
• Docket Number: Divorce No 3804 of 2020
• Published date: 26 January 2022
• Year: 2022
• Hearing Date: 12 May 2021,17 June 2021,18 June 2021,13 October 2021
• Plaintiff Counsel: Ms Aye Cheng Shone / Ms Natasha Choo Sen Yew (M/S A C Shone & Co)
• Defendant Counsel: The Defendant in person.
• Subject Matter: Family Law,Divorce,Separation
• Citation: [2022] SGFC 6

District Judge Eugene Tay: Introduction

This is the Defendant husband’s appeal against my decision to grant Interim Judgment for Divorce on 13 October 2021.

Background facts and proceedings

Parties were married on x December 2012 in Singapore. They have one child of the marriage, a boy named B born on x October 2013 (“the Child”). The Plaintiff is a banker, while the Defendant is a lawyer.

On 2 September 2020, the Plaintiff wife commenced divorce proceedings based on the fact that the marriage had broken down irretrievably in that parties had lived apart for a continuous period of at least 4 years preceding the filing of the Writ for Divorce¹.

The Defendant contested the divorce and filed his Defence on 1 October 2020. The Plaintiff filed her Reply on 15 October 2020. The matter was then fixed for mediation, but no resolution was reached. Parties subsequently filed their respective Affidavits-of-Evidence-in-Chief on 29 March 2021 and the matter was fixed for trial.

On 21 April 2021, the Plaintiff, through her solicitors, filed a summons seeking leave for her to give evidence by live video-link from Hong Kong SAR (“Hong Kong”) at the contested divorce trial, pursuant to section 62A of the Evidence Act (1997) Ed., read with paragraph 108A of the Family Justice Courts Practice Directions. I heard this summons on 27 April 2021 and granted the Plaintiff’s application.

The trial itself took place over 3 half-days on 12 May 2021, 17 June 2021 and 18 June 2021. In the course of the trial, leave was separately granted for the Defendant to amend certain dates in the Defence², as well as for the Plaintiff to amend one word in the Reply³. After the trial, parties were directed to file and serve written submissions.

On 23 July 2021, the Plaintiff file a summons seeking leave to amend one word in the Statement of Particulars⁴. The Defendant resisted this application and filed his Reply affidavit on 17 August 2021. I heard this summons on 9 September 2021 and granted the Plaintiff’s application.

On 13 October 2021, I delivered my decision for the contested divorce and granted Interim Judgment on the Plaintiff’s claim. I also directed parties to file and serve their respective Affidavits of Assets and Means by 8 December 2021 and fixed the case for a case conference on 15 December 2021. In addition, after hearing parties on costs, I ordered the Defendant to pay the Plaintiff costs fixed at $7,500.00 (all-in).

On 26 October 2021, the Defendant filed a Notice of Appeal against the whole of my decision. The grounds for my decision are set out below.

The Parties’ Cases

The Plaintiff’s case is essentially that she has lived separate and apart from the Defendant for a continuous period of 4 years, from and since July 2016, by physically moving to and relocating to Hong Kong with the Child⁵.

The Defendant denied the Plaintiff’s claim. He basically claimed that separation never occurred between the parties⁶, and that the marriage was always subsisting during the alleged separation⁷.

The Law

It is trite law that under section 95(1) of the Women’s Charter (“WC”), the only ground for divorce is that the marriage has irretrievably broken down. Section 95(3) goes on to state that:

“The court hearing any proceedings for divorce shall not hold a marriage to have broken down irretrievably unless the plaintiff satisfies the Court of one of the following facts: … (e) 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 order to establish that the parties have lived apart pursuant to section 95(3)(e) of the WC, 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. (UOU v UOV [2018] SGFC 82 (“UOU”) at [10])

It is clear that “living separately” means more than just physical separation. Both physical and mental elements must be satisfied. In Deepak Govindran Kirpalani v Rita Kishinchand Bhojwani [2006] SGDC 173, the District Judge stated at [15] and [16]) as follows: “15 The phrase “lived apart” has been the subject of a comprehensive explanation by the High Court. In Leong Kwek Leong v Lee Ying Kuan, [1992] 2 M.L.J. 276, Chan Sek Keong J (as he then was) stated:

“It is to be noted that Section 88(3)(e) uses the expression “lived apart” whilst Section 88(7) uses the expression “living with each other”. In the context of that section, one must be the antithesis of the other. Now, Section 88(7) provides that references in the section to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household. It follows therefore that the expression “living apart” must also mean “not living in the same household. In Santos v Santos [1972] Fam 247, The Court of Appeal, after reviewing the English and Commonwealth cases, held that the expression “living apart” in Section 2(1)(d) of the Divorce Reform Act 1969 did not mean merely physical separation or physically not living under the same roof, but imported the additional element of an intention to terminate the consortium … I respectfully adopt this view.”

16 The above quotation shows that 2 elements must be satisfied before the Court will find that parties have lived apart for 4 years. Firstly, the parties must not have been living in the same household. I shall refer to this as the physical requirement. Secondly, the party filing for divorce must have the intention to terminate the marriage. I shall refer to this as the mental requirement. Such a twofold requirement is a pre-requisite. Many Singaporeans work and live overseas. Not all of them may want to uproot the family to a foreign country. A more common arrangement is that while one spouse is located overseas, the other stays in Singapore to look after the children. If the phrase “lived apart” is construed as mere physical separation, every spouse who works overseas for more than 4 years would have the immediate right of divorce under Section 95(3)(e) upon his return to the family in Singapore. Therefore, the 95(3)(e) should be interpreted that both the physical and mental elements must be satisfied.”

In Leong Kwek Leong v Lee Ying Kuan [1990] SGHC 8, Chan Sek Keong J (as he then was) held at [14] and [15] as follows: “14 The current legal position in Australia is that the Australian courts have now accepted that the expression “separated and thereafter lived separately and apart” in s 48(2) of the Family Law Act 1975 involves the notion of the continuous breakdown of the marriage relationship, and not merely physical separation: see Dickey Family Law 1985 at p 160. The classic statement of what constitutes separation for the purpose of the Australian statute is to be found in the judgment of Watson J in The Marriage of Todd (No 2) (1976) 25 FLR 260 at 262 where his Honour said:

‘Separation’ means more than physical separation – it involves the breakdown of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in private and public relationships, and the nurture and support of the children of the marriage.

15 In my view, the above statement of the law applies equally to the concept of living apart and living in the same household under s 88(3) or s 88(7) of the Charter.”

Chan Sek Keong J (as he then was) further noted at [16] as follows: “16 In Santos v Santos, the Court of Appeal also held that one party alone could bring about a separation or a living apart if he intended it to be or his or her attitude of mind was so, and further, this unilateral element need not be communicated to the other party.”

Finally, the marital relationship does not end as long as both spouses bona fide recognize it as subsisting (Tulk v Tulk (1907) VLR 64 at [65-66], cited in Tan Lee Tiang v Chia Thuan Hwa [1993] SGHC 256 at [28]). In this regard, a relevant question was whether the Plaintiff’s conduct was consistent with a continuing recognition of the marriage (UOU at [18]).

Decision Parties have lived in separate households such that there has been a physical separation

Firstly, having considered the evidence, I find that the Plaintiff had been living physically separate from the Defendant from and since July 2016 by relocating to Hong Kong for work, while the Defendant remained in Singapore. The Plaintiff’s evidence on this is unequivocal, as can be seen from her affidavit where she stated that she had since July 2016 left the Defendant physically when she relocated to Hong Kong⁸, as well as her testimony during cross-examination as follows⁹: Q: Okay. So, my question is, am I correct to say you never communicated your decision to separate from me on or around July 2016? Would I be correct to say that? A: No, I’ve communicated to you, VZK, that I will be relocating to Hong Kong for work. So, I’ve communicated to you that, of course, there will be a separation.

After the Plaintiff had relocated Hong Kong in July 2016, the Defendant would at times make trips to Hong Kong and the Plaintiff would on occasions make trips back to Singapore. However, I do not think this would necessarily undermine or negate any...