Family Law

Citation(2002) 3 SAL Ann Rev 224
AuthorDEBBIE ONG SIEW LING LLB (NUS), LLM (Cantab), Advocate & Solicitor (Singapore) Associate Professor, Faculty of Law, National University of Singapore VALERIE THEAN MA (Cantab), LLM (Harv), District Judge, Subordinate Courts of Singapore
Publication Date01 December 2002
Date01 December 2002
Conflict of laws: stay of divorce and custody proceedings

13.1 In Mala Shukla v Jayant Amritanand Shukla[2002] 3 SLR 295, the petitioner wife allegedly learnt of the husband”s adultery in mid-1999, whereupon she left for India with the two children. The two children have resided in India since 1999. The couple reached a settlement on custody and financial matters and filed for a joint petition for divorce by mutual consent in October 1999. The wife subsequently applied to withdraw her consent alleging that the settlement was made under duress, coercion and undue influence. The husband applied to file another petition and directions to compel the wife to sign the petition. The High Court in India dismissed the husband”s application and the husband appealed to the Supreme Court of India in respect of that decision. The wife presented a divorce petition in Singapore in September 2000 while the husband applied for a stay of those proceedings. The Singapore High Court granted a stay of the proceedings. It applied PT Hutan Domas Raya v Yue Xiu Enterprises (Holdings) Ltd[2001] 2 SLR 49 where the Spiliada principles (see Spiliada Maritime Corp v Cansulex[1987] AC 460) were adopted and held that the right approach was to await the outcome of the Supreme Court appeal, which decision was likely to affect the divorce petition filed in India. Whether the settlement was unfair or involuntarily entered into should be determined by the Indian courts. The court observed that the wife could obtain a divorce in India, there were properties in India, not all of the husband”s bank accounts were located in Singapore and the children were residing in India. India emerged as the most appropriate forum to decide on any divorce petitions and ancillary matters. Further, the court held that there was insufficient reason to refuse a stay even if it was assumed that the wife could get a quicker hearing and better deal in Singapore.

13.2 This case adopts the commercial Spiliada principles in a matrimonial dispute, just as the earlier case of Low Wing Hong v Kelso Sharon Leigh[2000] 1 SLR 173 had done (see (2000) SAL Ann Rev 180 at pp 180—181). Worthy of

note is the treatment of the wife”s arguments that even if India was determined to be the most appropriate forum at the first stage of the enquiry, the court could still refuse a stay as there were legitimate personal or juridical advantages for her in Singapore. First, she could obtain a faster hearing in Singapore; second, Indian law does not recognise a wife”s contribution as homemaker and does not provide for equal division of matrimonial assets and third, orders of Indian courts on assets outside India cannot be enforced outside India. Woo Bih Li JC (as he then was) remarked (at [60]) that “Singapore law does not provide for equal division of matrimonial assets as such. It all depends on the facts”. He also observed that Indian court orders for maintenance could be enforced outside India. The learned judge held that even if it was assumed that the wife could get a quicker hearing and a possibly better deal in the division of matrimonial assets, these were insufficient to refuse a stay. It will be interesting to see what degree of substantive advantage and injustice must be shown in such matrimonial cases to succeed in the second stage of the Spiliada enquiry.

13.3 In Re A (an infant) (No 2)[2002] 2 SLR 137, the main issue was whether Singapore or France would be the more suitable forum to decide the questions of custody and access to the parties” seven-year-old child. The child was born in Paris in 1994. The family lived in France until 1998, when they moved to Singapore. On 14 June 2000, the mother initiated proceedings under the Guardianship of Infants Act (Cap 122, 1985 Ed) seeking custody, care and control of the daughter in Singapore. The next day, the father started proceedings under the same Act seeking interim custody of the daughter. The father had also filed for divorce and various orders relating to the daughter in France at about the same time. The French court ordered as an interim measure, inter alia, that both parents exercise parental authority in common, that the daughter remained at the mother”s place of residence and that the father shall have fortnightly access to the daughter. The mother left Singapore with the daughter in August 2000 for employment in England and had been living in London since. The application for a stay of all proceedings in Singapore in favour of proceedings commenced in the French court was successful in the district court. The husband appealed and argued that the Singapore court should decide the question of interim custody as all the evidence was available in Singapore and the best interests of the daughter required an early determination of the custody issues.

13.4 Lai Kew Chai J held (at [4]):

“The central question … is this: which was the more suitable or appropriate tribunal to resolve the issues between the parties. The burden of proof was upon the wife to show that the French court was the more suitable or appropriate tribunal. In the context of the guardianship of a child, and the related issues of custody, care and control, it seemed to me that we had to take into account a host of factors and determine

which forum would more effectively evaluate the best interests of the child, in terms of a tribunal”s understanding of and affinity to the cultural background, value systems, social norms and other societal circumstances relevant to the best way in which the child is to be brought up.”

13.5 Applying these considerations, the court held that a child”s welfare is most appropriately evaluated by the forum which is best equipped to determine what is best for the child in all material respects ranging from its health care, education, moral and spiritual and other relevant needs. The French court emerged as pre-eminently more appropriate here: the child was living in London with the mother at the material time; the father had obtained overnight access and had exercised it by bringing her to France to be with his extended family. Further, the father had chosen to have the issues of custody and access determined by the French court thereby affirming the positive imperatives of having the French court decide the future of a child of a French couple with the closest links with France than with any other country in the world. Moreover, medical and welfare reports would be available to the court from experts appointed to assist the court in France. Finally, no injustice would arise if questions of custody and related issues were left to the French court to determine (even if “proceedings in France (took) an inordinately long time to be heard”). The French court had decided that the maternal home in London provided by the mother was sufficient and provided the “structuring” necessary for the child. On the other hand, if a stay was not ordered, the proceedings would continue in Singapore and that process could have further destabilised the daughter.

13.6 The court referred to De Dampierre v De Dampierre[1988] AC 92, which had been applied earlier in Low Wing Hong v Kelso Sharon Leigh (supra). It illustrates that in applying De Dampierre and the Spiliada principles to issues relating to a child, the central question is which forum would be the most appropriate one to effectively evaluate the best interests of the child. It seems that the enquiry may end there and the parties” possible legitimate personal or juridical advantages may not make any difference once that first question has been determined. Given that the paramount consideration is the welfare of the child, even the parties” interests are subject to the child”s. Thus it would be difficult to envisage a case where, having identified a forum that is the most appropriate one to evaluate what is best for a child, another forum is chosen because of a party”s legitimate personal or juridical advantages in the latter forum. The case reflects the same approach taken in respect of all issues concerning children, whether or not they involve issues of conflict of laws, reinforcing the principle that the child”s welfare is paramount and prevails over other interests.

13.7 Mala”s case was applied in the subordinate court decision of Prapavathi d/o N Balabaskaran v Manjini Balamurugan (Divorce Petition 604466/2001, DC, unreported decision dated 4.9.2002). In this case, the respondent similarly sought a stay of divorce proceedings pending proceedings in India. The court thought that there was a preponderance of “neutral factors” compared to the positive factors connecting the parties to either Singapore or India. It held that the lis alibi pendens factor was decisive in indicating that India was the more appropriate forum: the progress of the Indian proceedings in this case was even more advanced than that in Mala”s case. Prapavathi”s judgment usefully summarises the principles of forum non conveniens and lis alibi pendens applicable in Singapore.

Section 94: Three-year bar to divorce

13.8 In Wong Pee Wei v Ho Soo Hua Anna Laurene (Originating Summons 650076/2002, DC, unreported decision dated 13.9.2002), the parties were married in April 2001 and had a daughter in October 2001. In 2002, the husband sought leave of court to present a divorce petition before three years had passed since the date of the marriage for the following reasons (at [9]):

(a) the marriage was doomed to fail from day one. Parties had never lived together and fought when they met. They were destroying and would continue to destroy each other as long as they stay married;

(b) both parties were young and both parties agreed that the marriage could not be salvaged. They should therefore not be shackled by a marriage and be allowed to pursue their own happiness;

(c) if the divorce was not allowed, the ancillary matters such as the custody of the child and the disposition of the matrimonial home...

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