Q My marriage of more than 20 years is breaking down but I am still hoping to salvage the marriage and to avoid a divorce.
I believe a separation for a period of time would do us good.
As my husband has incurred credit-card debts of about $40,000, I do not want to be liable for his debts in the event he defaults in his payments.
As his pay is insufficient to pay all the money he owes, I have been helping him pay part of the debts monthly to the banks for a long time.
I have also paid for everything else - household expenses, our daughter’s school fees - as I earn more than him.
If I file for a legal separation, will this save me from having to pay his debts should our problems end in divorce?
Do the banks have the right to seize assets in our HDB flat, some of which were bought by me?
I intend to leave Singapore for a period of time but should my plan fall through and I have to stay put, what happens if after signing the separation papers, we still live together under the same roof?
Neither of us has any other place to live.
And if we decide to patch up after a few years, can we annul the separation?
A You are not legally liable for your husband’s debts unless you are a joint account holder or signed as a guarantor for his debts.
Therefore, you will not be liable for his credit-card debts whether you are married, separated or divorced.
Your husband’s creditors will not be able to sue you to claim monies which he owes them.
If a bank or any creditor of your husband obtains a judgment to recover monies owed to them, they can apply to seize and sell his assets.
This will include assets in his home.
If the assets were bought by you or belong to you - such as your laptop - you can file a claim at the Subordinate Courts.
You should bring along proof of ownership, such as receipts of your payment.
After signing a Deed of Separation, which is a written agreement by your husband and you to lead separate lives, you can still live together under the same roof.
However, you have to ensure that you lead separate households - that is, you cannot, for example, cook, do the laundry or buy groceries for each other.
The court will have to be satisfied that you have not lived with your husband like a normal married couple.
There must be separate households under the same roof.
If your husband and you decide to reconcile, you can simply end your separation by leading a life together as husband and wife.
Separation is a question of intention and actions by the parties involved.
There is no court application to formalise a separation.
However, it is advisable that parties enter into a Deed of Separation to set out clearly their intention to live apart and the starting date of such a separation.
It will also be advantageous to set out the agreed terms, if any, for the divorce as well.
The cost of a Deed of Separation will depend on the details of your agreement. It starts from $1,500.
You may look for a lawyer through the Law Society’s website www.lawsoc.org.sg or by calling it at 6538-2500.
Nicole LohLegal AssociateHarry Elias Partnership
Q A PRIVATE 28-seater bus reversed into my car which was parked.
Damage to the bus was negligible but my sedan’s bonnet and headlights had to be replaced. The cost was about $4,000.
I paid the $450 ‘excess’ on my insurance policy to get immediate repairs paid for by my insurer.
My intention was to claim this excess and loss of use against the other driver’s policy after my vehicle was repaired.
The other party’s insurer refused to pay unless the bus driver reported the accident to it.
The onus of making the other party report the accident to his insurer fell on me.
I made many attempts to contact him but without success. A registered letter to him was returned to me undelivered.
Six months after the accident, a letter from the other party’s insurer was forwarded to me via my lawyers claiming that as their client did not report the accident, a breach of the policy contract has occurred.
The insurer cancelled his policy and repudiated all liabilities.
Henceforth, any claims against him would have to be pursued through legal action.
My lawyers advised me not to pursue the case due to the costs involved. I am appalled at the options available to insurers so they can absolve themselves.
Are legal proceedings against him the only option I have now?
What measures are in place to prevent the other party from buying a new policy?
If insurers are allowed to repudiate liability in this manner, what protection is offered to people such as me?
A The advice I am giving here applies to claims involving property damage only.
A different set of rules apply when personal injury is involved.
I can empathise with your frustration but I think you have misunderstood the role of the various parties in accident matters.
First, your claim is always against the driver of the vehicle who caused the accident, commonly known as the ‘tortfeasor’ and not the insurance company.
It is up to the tortfeasor to refer the claim to his insurance company if he does not want to incur further expenses.
After all, that is the reason that the tortfeasor paid insurance premiums in the first place.
At other times, if the claim amount is not large, the tortfeasor may simply want to pay out of his own pocket so as to preserve his No Claim Bonus.
A contract of insurance exists between the tortfeasor and his insurance company.
In essence, this contract states that if certain conditions are complied with, the insurance company will make payments to third parties on behalf of the tortfeasor.
It is common ground in most insurance policies that if the tortfeasor was, say, driving under the influence of alcohol at the time of the accident, the insurance company can repudiate liability.
It would then be up to the tortfeasor to pay the damages out of his own pocket.
As there is a need to balance the needs of competing interests, I do not see the loophole that you say exists.
Coming to your specific questions:
Yes, legal proceedings are your only option.
However, as your insurance company has paid you for the repairs, they would in all probability commence proceedings to recover this from the tortfeasor.
You may want to request your insurance company to claim the excess and loss of use on your behalf as well.
Whether an insurance company is prepared to extend a fresh policy to the tortfeasor depends on its own risk values.
Usually, an applicant would have to declare whether his previous insurance company has ever repudiated his policy, or any application has been declined.
If so, the new insurance company may see this as a bad risk and decline to accept his application or accept the application subject to a higher premium.
Although you may seem to think so, insurers do not repudiate liability at the slightest technicality.
Consider a case where the damage claim is very large and if the insurance company attempts to repudiate liability, the tortfeasor will bring an action against the insurance company to seek an indemnity.
The courts will then have to determine whether the policy is engaged or not in the particular circumstances. So, as you can see, it is not easy for the insurance companies either.
Vijai ParwaniPrincipal Partner Parwani Co
Advice provided in this column is not meant as a substitute for comprehensive professional advice.
Source : Sunday Times - 26 Feb 2006