This article examines the element of separation in a divorce.
Separation Anxiety: Living Separate and Apart, Living Together Yet Living Apart – When is a Separation a Separation for Purposes of Divorce?
Introduction
Section 95 of the Women’s Charter (Cap 353) sets out the sole ground for divorce in Singapore; namely that the marriage has broken down irretrievably. The applying party relies on one or more of five facts as set out in s 95 to prove this irretrievable breakdown.
This article deals with the last two facts: the fact that the parties to a marriage have lived separate and apart from one another for a period of either three years or four years immediately preceding the presentation of the writ for divorce.
The difference in the last two facts is that the reliance on a separation period of three years requires the consent of the other party. This pre-supposes that parties have an agreement to present a writ on this fact.
Consent for Three Years Separation
Consent by the other party for purposes of the fact of three years separation is in a written form. There is no format prescribed in the Matrimonial Proceedings Rules (“MPR”). However, r 17 of the MPR allows the consent of the other party to be contained in the Memorandum of Appearance (“MOA”) filed after being served with a writ for divorce on this fact.1 The consent in the MOA is, therefore, sufficient for purposes of r 17 of the MPR.
As a matter of practice, counsel have filed a Notice of Consent, adopting the words set out in Form 18.2
In the event that the applying party does not obtain consent of the spouse to present the writ on the fact of three years of separation, then the applying party must wait out another year of separation before relying on the fact of four years separation.
Principles of Law Applicable When Presenting a Writ for Divorce on the Fact of Separation
In presenting a writ on this fact, there are considerations to be taken into account. Some of these considerations are:
1. The fact of physical separation for the requisite number of years is not enough.
2. Intention of the separating party – the mental element is crucial. Living apart involves both a physical element as well as a mental element.
3. Physical separation must be accompanied by a loss of consortium.
4. Desertion is not separation.
5. You can stay under the same roof but maintain different households.
6. There cannot be resumption of cohabitation for periods that exceed six months during the period of separation.
7. It must be just and reasonable to grant the divorce, taking into account all the factors of the case including the interest of the children.
These considerations are discussed further in this article.
Physical Separation Not Enough
The fact of actual physical separation is not enough to present a writ on this fact.
In Seah Cheng HockvLau Biau Chin[1969-1971] SLR 283 ("Seah Cheng Hock") the husband was studying in Ireland whilst the wife remained behind. A disagreement arose as to the date of separation. The Court held that the date of separation could not be the date in which the husband left to study in Ireland. At that point in time, the parties were separated physically by virtue of their circumstances. The husband was in Ireland for his studies. There was no intention on the husband’s part to leave the wife when he first went away for his studies.
In Leong Kwek Keong vLee Ying Kuan[1990] SLR 228 ("Leng Kwek Keng") the Court held that the husband was only living apart from the wife in the very narrow sense of the word in that he made a deliberate choice not to sleep at home. Other than that, his entire conduct and actions were consistent with a husband who treated the marriage as if it was still alive: he had sexual intercourse with his wife, he stayed for dinner, he used the family car and in fact, he spent all his free waking hours with the wife and/or the children. The Court did not accept the date of separation propounded by the husband.
Intention of the Separating Party –The Mental Element
There is a mental element which must be proven for the Court to determine if the separation was one of choice rather than of circumstances. This is commonly referred to as the intention of the party seeking separation.
It was this lack of intention that disbarred the husband in Seah Cheng Hock’s case (supra) from relying on the date he left the wife to study in Ireland as the effective date of separation. The Court held that he did not intend to separate from his wife when the husband first left her to study in Ireland. It therefore follows that parties may be separated geographically but not legally separated. The commencement date of the separation for purposes of these two facts must be supported with a physical separation as well as a “mental separation”.
Living apart thus involves both a physical and mental element. In relation to separation, the question is whether there is any community of life between the partners. If not, they are deemed to be living apart. In relation to the mental element, the case of SantosvSantos [1972] Fam 247 held that living apart commenced when one party recognised that the marriage was at an end, rather than living apart by force or circumstances. The Courts in Singapore accepted this principle in deciding the effective date of separation in the case of Leong Kwek Keong.
Desertion or Separation
The one factor that turns separation into desertion is the deserting spouse’s frame of mind. The applying spouse must satisfy the Court that the deserting spouse intended to bring the matrimonial union permanently to an end.3 The deserting spouse’s desertion must also run for a continuous period of two years and is likely to continue to the onset of proceedings to dissolve the marriage. However, if the deserting spouse left because of some form of behaviour on the part of the other spouse, this can give rise to “constructive desertion”.4
Hence, an agreed separation cannot give rise to desertion on the part of the spouse who has left.
Physical Separation Must be Accompanied with a Loss of Consortium
Applying the principles of the cases above, it follows that there must be a loss of consortium. Consortium is the legal right of husband and wife to companionship and conjugal intercourse with each other. The rights and duties of a husband and wife are set out in s 46 of the Women’s Charter:
Upon the solemnization of marriage, the husband and the wife shall be mutually bound to co-operate with each other in safe guarding the interests of the union and in caring and providing for the children.
In the cited case of Leong Kwek Keong(supra) although the husband refused to sleep at home, his entire conduct for a year after that did not vitiate the consortium. In fact, he continued to do everything he was doing before he left home. The Court held that his actions and conduct did not show that he sincerely intended to put an end to the marriage as he behaved as if the married state continued.
Staying Under One Roof but Not in the Same Household
In s 95(8) of the Women’s Charter Cap 353, references in s 95 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 that parties may continue to share the same physical residence but not the same household if relying on the fact of separation under the same roof.
The question is one of fact.
To determine if parties still share the same household, the Court will examine the conduct of the parties to see if there is a loss of consortium and a total breakdown in the marital relationship.
This was examined in Tan Lee TiangvChia Thuan Hwa[1994] 1 SLR 186 in which the parties continued to live under the same roof whilst alleging separation. The High Court made a finding that the husband and the wife “were still co-operating with each other in caring and providing for the children and that they lived under the same roof and slept in the same bedroom because the marriage was subsisting”. The Court was not satisfied that the parties had maintained separate households so as to satisfy the concept of legal separation.
Parties Must Not Resume Cohabitation for Periods that Exceed Six Months
The fact of separation must be continuous.
However, in order to promote reconciliation, the Court would ignore any period of resumed cohabitation if for a period of six months or less.5
Not Just and Reasonable to Grant the Divorce
Section 95(2) of the Women’s Charter states that the Court shall, so far as it reasonably can, inquire into the facts alleged as causing the breakdown of the marriage and if satisfied that the circumstances make it just and reasonable to do so, grant an interim judgment dissolving the marriage.
Interest of the children
Section 95(4) provides that in considering whether it would be just and reasonable to grant an interim judgment dissolving the marriage, the Court shall consider all the circumstances including the conduct of the parties and how the interests of any of the child(ren) of the marriage may be affected by the dissolution of the marriage.
The Court can grant the interim judgment subject to such terms and conditions as it deems fit.
Applying the Legal Principles to Your Statement of Particulars
Having examined the legal principles in this area, it is clear that there are requirements that your client has to satisfy in order to present a claim on this fact.
Here are some matters to consider when taking instructions and in drafting the Statement of Particulars (“SOP”) in support of the claim of separation as the fact causing the breakdown of marriage:
1. Before filing a claim on three years’ separation, do ascertain if the other party will consent to the writ. If so, do have him/her execute a formal Consent. Otherwise, do ensure that you have filed the appropriate MOA in Form 18.
2. Do ascertain the date (month/year) of physical separation and do state the date in the SOP.
3. If either party left the matrimonial home, do state the different respective addresses maintained by the parties during the period of separation.
4. Do ascertain and state in the SOP the date (month/year) in which either party formed the intention to live separate and apart from the other.
5. Do set out the background or factual matrix leading to the parties forming the intention to separate and then the date of separation.
6. If parties continue to share the same physical residence but in separate households, do set out how they conducted their respective lives free from consortium.
7. Do conclude by setting out the fact that parties have not resumed cohabitation or consortium during the period of separation and do plead that reconciliation is no longer possible and that it would be just and reasonable for the marriage to be dissolved.
If you keep the legal principles in mind when taking instructions from a client who intends to rely on the fact of separation as the cause of the breakdown of the marriage, all anxiety in presenting a writ on this claim will be laid to rest.
► District Judge Jen Koh
Subordinate Courts (Family and Juvenile Division)
Notes
1 Form 18 of the MPR
2 The consent can be withdrawn at any time before the Court makes final the interim judgment.
3 Langv Lang[1955] AC 402
4 See for example, case ofLang v Lang(supra) where the husband who expelled his wife from his constant abuse of her was found to be the one in desertion.
5 Section 95(7) of the Women’s Charter Cap 353