Desertion for 2 Years
In Singapore, the only ground on which one can get a divorce is when the relationship between spouses has “irretrievably broken down”. An “irretrievable breakdown of marriage” can be proven on a (1) on fault or a (2) no fault basis on the part of one or both spouses. Under the first limb, you may be able to get out of your marriage if you are able to show that “your spouse has deserted you for a continuous period of at least 2 years immediately preceding the filing of the writ”.
Under section 92 of the Singapore’s Women’s Charter, “desertion” refers to a situation where your spouse has abandoned you against your wishes.
Where spouses cohabit for less than 6 months in the middle of their separation, their cohabitation will not terminate desertion (section 95(7) of the Singapore’s Women’s Charter). This is to encourage attempts at reconciliation between parties. However, the 6 months (or less) also cannot be counted as part of the period where the parties lived separately.
The Law on “Desertion”
If you are relying on proving desertion to get out of a marriage, it is important for you to set out the date of desertion and ensure that the facts pleaded in your Statement of Particulars (SOP) sufficiently prove the fact of desertion.
As in the case of Perry v Perry, the fact of desertion can be proven if you are able to show the court that (1) you are living separately from your spouse and that (2) your deserting spouse possessed the intention to desert you.
“Living Separately” involves both a physical separation and mental attitude averse to cohabitation on the part of one or both spouses. The courts must have regard to all the surrounding circumstances, including the conduct of the parties and where necessary, the purposes for which physical separation took place before it can come to a definitive conclusion as to the exact date (if there is any) that spouses commenced to live separately (Seah Cheng Hock v Lau Biau Chin).
The plaintiff also must show that the defendant had an “Intention to Desert”. An agreed separation cannot give rise to an allegation of desertion (Goh Soo Toon). This is unless despite both spouses initially consenting to separate, one spouse later communicates the desire to resume cohabitation, but the other spouse rejects the offer. In such an instance, the other spouse will be considered to have the intention to desert.
As in Seah Cheng Hock, where a couple were physically living apart because of the husband’s studies in a foreign country and not because they wanted to bring the matrimonial consortium to a permanent end, the period of physical separation cannot be considered as “living separately” for the purposes of divorce as there was no intention to desert at the commencement of physical separation.
If you are the party who has left but you want to bring a case for desertion, you may prove constructive desertion instead of actual desertion. The practical difference between actual desertion and constructive desertion is reflected in the differences in circumstances.
As in the case of Seah Cheng Hock, citing the UK case of Buchler v Buchler, to prove constructive desertion, you must show the court that your spouse has been guilty of conduct that ‘drove you away’ from the matrimonial home and that your spouse had done so with the intention of bringing the matrimonial consortium to an end.
Your spouse’s conduct must be of such gravity and so clearly established to prove that there was an equivalence of your expulsion from your matrimonial home. When conduct equivalent to an expulsion is proven, the necessary intention that of your spouse to bring the matrimonial consortium to an end is readily inferred (Sicken v Sickert).
Lastly, in instances of desertion, the issue is always one of fact and it is important that your Statement of Particulars (SOP) reflect the circumstances of the desertion taking into account the applicable law. We can help you with drafting your SOP.