In a marriage, parties are generally expected to follow the Consortium. The Consortium establishes the right of companionship and association between two parties within a marriage. It comprises of the rights and obligations of the Husband and Wife, where non-compliance would be a breach of duty. One right/obligation includes living together, as both parties have a mutual duty to cohabit.
To get a divorce, parties must satisfy the ground of an Irretrievable Breakdown of Marriage. This can be proved through the following facts:-
- Adultery;
- Unreasonable behaviour;
- Desertion;
- Living Apart (3 years with consent); and
- Living Apart (4 years without consent).
Conditions to satisfy the fact of ‘Living Apart’
There are two conditions to satisfy the fact of ‘Living Apart’ to prove that a marriage had broken down irretrievably. They are as follows:-
- Fact of Separation (Factual Separation)
- Mental Attitude (Intention)
Factual Separation: Parties can be physically separated or living in the same residence but having a separate household.
Intention: A Party/Parties live apart by choice and not a necessity. There should exist an intention to bring the Consortium or Cohabitation to an end. In Leong Kwek Keong v Lee Ying Kuan [1990] 2 MLJ 276 (“Leong Kwek Keong”) at [14] and [15], “Separation” means more than physical separation, and involves the breakdown of the marital relationship. In Seah Cheng Hock v Lau Bian Chye [1969] 2 MLJ 239, Separation was caused by the Husband’s medical studies and there was no intention to end cohabitation. Thus, the petition was dismissed.
Period of Separation
In section 95(3)(d) of the Women’s Charter (“WCH”), parties living apart for three years where the defendant consents are indicative of a marriage having broken down irretrievably.
In section 95(3)(e) of the WCH, parties living apart for four years without the defendant’s consent is indicative of a marriage having broken down irretrievably.
With regards to s 95(3)(d) of the WCH, Plaintiff would need to show the Defendant’s consent being freely and rationally given. Parties must show that they had joint intentions (decision should not be unilateral).
Principal Problem: Proof
It is important to be clear that parties do not live in the same household.
In Leong Kwek Keong, it was clear that parties do not live in the same household. The Husband had left the matrimonial home and had expressly told the Wife that and refused to live with her by choice.
However, in Tan Lee Tiang v Chia Thuan Hwa [1994] 1 SLR 186, this fact was not proved as clearly. The parties both slept in the same bedroom but the Husband slept on the bed whilst the Wife and Children slept on the floor. There were no sexual relations between the two parties. They had no communication with each other and no community life, even taking dinner at separate timings. They ceased going out with the children as a family, and took them out separately. The Court held that the facts were insufficient to prove that there were 2 households. Although the absence of sexual relations was important, it was not decisive in determining that there was no consortium.
Where you might require more advice and consultancy about your case and the legal procedures, it is ideal to consult a lawyer for guidance and representation. Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Practice has represented numerous clients in a wide variety of matters over the years from traffic offences, family disputes to high-profile criminal cases. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.
