William Cheng v Chai Mei Leng (mw)

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 09 April 1999
• Neutral Citation: [1999] SGCA 26
• Docket Number: Civil Appeal No 223 of 1998
• Date: 09 April 1999
• Published date: 19 September 2003
• Year: 1999
• Plaintiff Counsel: Kenneth Koh (Kenneth Koh & Co)
• Citation: [1999] SGCA 26
• Defendant Counsel: KS Chung (Chung & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Grounds for divorce,Whether court should investigate into husband's motive for divorce,Wife alleging upon divorce where grave financial hardship proved by wife financial hardship,Whether parties' conduct leading to breakdown of marriage relevant,Family Law,Wife's desire to grow old with husband together,Whether presumption of irretrievable breakdown of marriage rebutted,Parties living apart for four years

Judgment:

KARTHIGESU JA

(delivering the grounds of judgment of the court): The novelty of the divorce petition which gave rise to this appeal was the ground on which it was defended. The husband, the appellant herein, presented a divorce petition in January 1997 for the dissolution of his marriage to the respondent on the ground that the marriage had irretrievably broken down in that they had lived apart for a continuous period of at least four years immediately preceding the presentation of the petition. The wife respondent, whilst admitting that she and the appellant had lived apart for a continuous period of at least four years immediately preceding the presentation of the petition, contended that the appellant`s conduct, both before and after the date of separation on or about 20 May 1990 had been such, of which full particulars were given in the answer, that it would not be just and reasonable to make a decree of the dissolution of the marriage. In other words the appellant petitioned for the dissolution of his marriage to the respondent under s 95(3)(e) of the Women`s Charter (`the Charter`) and the wife purported to defend the petition under s 95(4) of the Charter.

2.The petition was heard in the Family Court and after a five-day trial the learned district judge, Mrs Koh Juat Jong, granted the appellant a decree nisi on 14 January 1998. In her grounds of decision she said that `taking into account all the circumstances of the case it was just and reasonable and that it was not wrong to grant the decree to dissolve the marriage`. The wife`s appeal to the High Court was heard by Judith Prakash J who allowed the appeal and set aside the decree nisi. In her grounds of decision she said that `the extraordinary circumstances of this case considered as a whole, including the conduct of the parties and that of the husband, in particular, made it unjust and unreasonable and wrong to dissolve the marriage`. We heard the husband`s appeal on 22 February 1999. We allowed the appeal and restored the decree nisi granted by the learned district judge. We now give our reasons.

3.Both the learned district judge and the learned judge of the High Court and both counsel for the parties in the Family Court, as well as in the High Court and indeed before us, founded themselves on the High Court decision of Cheong Kim Seah v Lim Poh Choo [1993] 1 SLR 172 . It is therefore necessary to examine the decision of Cheong Kim Seah v Lim Poh Choo which appears to be the only case which has considered s 95(4) of the Charter, which in that case was numbered s 88(4), before proceeding further.

4.Section 95(2) reads:

The court ... shall, so far as it reasonably can, inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances make it just and reasonable to do so, make a decree for its dissolution.

Section 95(3) in so far as it is relevant for this appeal reads:

The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more 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 presentation of the petition.

And s 95(4) reads:

In considering whether it would be just and reasonable to make a decree, the court shall consider all the circumstances, including the conduct of the parties and how the interests of any child or children of the marriage or of either party may be affected if the marriage is dissolved, and it may make a decree nisi subject to such terms and conditions as the court may think fit to attach; but if it should appear to the court that in all the circumstances it would be wrong to dissolve the marriage, the court shall dismiss the petition.

5.The court in Cheong Kim Seah v Lim Poh Choo in trying to understand ss 88(2) and (4) of the Charter (now ss 95(2) and (4)) referred to ss 1(3), (4) and 5 of the English Matrimonial Causes Act 1973, as it was then permitted to do, and noted the differences between the English legislation and the Charter. The learned judge at p 180 said this:

... But, the significant difference is that whereas s 1(3) and (4) of the Matrimonial Causes Act gives the court no discretion in the matter, except in the case of the `five years` separation`, the Charter by s 88(2) (now s 95(2)) clearly gives the court a discretion by the use of the words `if satisfied that the circumstances make it just and reasonable to do so`.

A further significant difference is that s 5 of the Matrimonial Causes Act is restricted in its application to the `five years` separation` ground whereas s 88(4) (now s 95(4)) of the Charter is not so restricted. It applies to all the grounds on which the court may hold that marriage has broken down irretrievably. Furthermore s 5 of the Matrimonial Causes Act specifically provides that the respondent `may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all circumstances be wrong to dissolve the marriage`, in which case `it shall dismiss the petition`. On the other hand, s 88(4) (now s 95(4)) of the Charter read with sub-s (2) does not specifically provide for such a defence but imposes a duty on the court to consider `whether it would be just and reasonable to make a decree (and) shall consider all the circumstances`, including, inter alia, the conduct of the parties and if it should appear wrong to dissolve the marriage in all the circumstances, `it shall dismiss the petition`. Notwithstanding the lack of specificity in the Singapore legislation ... that a respondent can oppose a petition on the general ground that it would be unjust and unreasonable to make a decree in all the circumstances including, inter alia, the conduct of the parties. In the result, the exercise of discretion by a Singapore court is wider in scope and ambit than that of an English court.

6.We do not disagree with the observations of the learned judge in Cheong Kim Seah v Lim Poh Choo except that we think that the learned judge was mistaken in thinking that s 5 of the Matrimonial Causes Act gives the judge a discretion to dismiss a husband`s petition presented on the ground of five years` separation where the `statutory defence` of grave financial or other hardship is raised by the respondent wife. It is clear from what Ormrod LJ said in Grenfell v Grenfell [1978] 1 All ER 561 at 565 that the question of grave financial or other hardship is decided as a question of fact having regard to all the evidence adduced by the parties and is not a matter of discretion. He said:

It is quite clear that the purpose of s 5 is to permit a party to a marriage to object to a decree being granted on the ground of five years` separation where dissolution of the marriage would result in grave financial or other hardship to that party. The only thing to be looked at is the dissolution of the marriage. The question is simply and solely: will the dissolution of this marriage cause grave financial or other hardship? ...

7.So also the learned judge in Cheong Kim Seah v Lim Poh Choo was mistaken by the words, if satisfied that the circumstances make it just and reasonable to do so , appearing in s 88(2) (now s 95(2)) into thinking that these words gave the court a discretion whether to grant a decree of dissolution of the marriage or not. These words are absent from the pari materia section of s 1(3) of the Matrimonial Causes Act which reads:

On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.

It is difficult to understand why those words are there in sub-s (2) but it is clear that the meaning that is to be given to those words is governed by sub-s (4). It is also clear that the wording of sub-s (4) does not import an element of discretion. What the court is required to do is to consider all the circumstances including the conduct of the parties, the interest of children, the effect of the dissolution of the marriage on the parties themselves and come to a conclusion, no doubt based on all the evidence, whether to grant an order nisi to dissolve the marriage or not. Parliament could not have intended that the dissolution of the marriage would depend on the discretion of the court.

8.`The significant difference` which the learned judge in Cheong Kim Seah v Lim Poh Choo noted between the Women`s Charter and the English Matrimonial Causes Act 1973 is that while s 5 of the Matrimonial Causes Act is restricted in its application to the `five years` separation` ground, s 88(4) (now s 95(4)) of the Charter is not so restricted. It applies to all the grounds on which the court may hold that the marriage has broken down irretrievably. Another way of putting it is that whilst s 5 of the Matrimonial Causes Act specifically provides that the respondent may oppose the grant of a decree on the ground that the dissolution of the marriage will result in grave financial or other hardship, s 88(4) (now s 95(4)) read with sub-s (2) does not specifically provide for such a defence but imposes a duty on the court to consider all the circumstances, including, inter alia, the conduct of the parties, and if it should appear wrong to dissolve the marriage in all the circumstances, `it shall dismiss the petition`. The judge in Cheong Kim Seah v Lim Poh Choo considered that notwithstanding the lack of specificity in the Singapore legislation a respondent could oppose a petition on the general ground that it would be unjust and unreasonable to make a decree in all the circumstances including, inter alia, the conduct of the parties. It is regrettable that in making this comparison the learned judge in Cheong Kim Seah v Lim Poh...