Family Law

Date01 December 2003
Published date01 December 2003
AuthorDEBBIE ONG LLB (National University of Singapore), LLM (Cambridge), Associate Professor, Faculty of Law, National University of Singapore. VALERIE THEAN MA (Cambridge), LLM (Harvard) District Judge, Subordinate Courts of Singapore.
Citation(2003) 4 SAL Ann Rev 243
Conflict of laws
Stay of proceedings

13.1 The cases on stay of proceedings and the court”s jurisdiction in matrimonial proceedings under s 93(1)(b) of the Women”s Charter (Cap 353, 1997 Rev Ed) (‘the Charter’) have followed the approach taken in the recent local cases of Re A (an infant)[2002] 2 SLR 137, Mala Shukla v Jayant Amritanand Shukla[2002] 3 SLR 295 and Low Wing Hong Alvin v Kelso Sharon Leigh[2001] 1 SLR 173. The principles in Spiliada Maritime Corporation v Cansulex Ltd (‘The Spiliada’)[1987] AC 460 were applied in these cases.

13.2 In CV v CW[2003] SGDC 25, the parties were Indonesian citizens and were divorced in Indonesia in 2001. The daughter had been studying in Singapore since 1997 and held a student pass while the mother as her custodian held a long term pass for herself. The father sought an order for access to the daughter during the school holidays and for leave to take her out of Singapore during the holidays. The mother applied for a stay of the proceedings in Singapore as there was an appeal pending in the Supreme Court of Jakarta involving the same subject matter. The court applied the principles governing forum non conveniens in De Dampierre v De Dampierre[1988] AC 92 (which applied The Spliliada principles to matrimonial cases) and granted a stay of the proceedings. The court found that the daughter”s cultural and social affinity lay in Indonesia, the father had submitted to the jurisdiction of the Indonesian courts and the proceedings in the Indonesian courts had reached a very advanced stage. Even if a quicker hearing and a better deal could be obtained in Singapore, applying Mala Shukla v Jayant Amritanand Shukla (para 13.1 supra), it was not a sufficient reason to avoid a stay.

13.3 In Sharm Manzana v Leneveu Alain Roger[2003] SGDC 224, the parties were married in Singapore in 1997. The wife petitioned for divorce in 2002. After divorce proceedings were commenced, the husband applied for a

stay, alleging that France was the more appropriate forum. The court applied the principles in The Spiliada, noting that recent decisions in Singapore have adopted the same approach. It held that the husband had failed to show that France was clearly and distinctly the more appropriate forum for the divorce proceedings to be heard. It thought that the main force of the husband”s arguments was that the parties had signed a pre-nuptial agreement that referred, inter alia, to French law provisions and that French law would apply, and that the husband was a French citizen. In contrast, there were more factors connecting the case to Singapore. The wife was domiciled in Singapore and a citizen of Singapore, the parties both lived and worked in Singapore for a significant period during and before the marriage, and the marriage was lived out largely in Singapore.

13.4 In Womersley Helen Diane v Womersley Nigel Maurice[2003] SGDC 186, the parties, both citizens of the UK, married in England in 1984 and lived in Singapore from 1996 to 2001. In 2001, the wife moved to England while the husband moved to Indonesia. When the wife petitioned for divorce in 2002, the husband argued that the court had no jurisdiction over the matter and alternatively, that Singapore was not an appropriate forum to hear the case. He filed for divorce in England in 2003. The Singapore court held that it had no jurisdiction to hear the divorce as neither of the parties was domiciled nor habitually resident for three years in Singapore at the material time. The phrase ‘habitually resident’ is the same as ‘ordinarily resident’. The court rejected the wife”s argument that in considering the period of habitual residence of three years, account should be taken of the circumstances under which she left Singapore and that the court should therefore have regard to that fact that she would have stayed in Singapore if the husband had provided maintenance. The court rightly held that the wife must fulfil a three-year period of residence, counting back from the filing date of the divorce petition. It also held that the reason for leaving Singapore before the three-year period was irrelevant. Thus, a three-year period of physical residence is required to establish sufficient connection to Singapore. As long as there is a continuous period of residence for three years from the filing date of divorce, temporary absences for overseas holidays or business trips will not break the state of residence.

13.5 The court in Womersley v Womersley also held that even if the Singapore court had jurisdiction, England would have been the more appropriate forum to hear the case. It referred to Prapavathi d/o N Balabaskaran v Manjini Balamurugan[2002] SGDC 354 which has set out the principles governing the stay of proceedings and adopted the approaches exemplified by Low Wing Hong Alvin v Kelso Sharon Leigh[2001] 1 SLR 173 and Mala Shukla v Jayant Amritanand Shukla (para 13.1 supra).

Unreasonable behaviour

13.6 In Castello Ana Paula Costa Fusillier v Lobo Carlos Manuel Rosado[2003] 4 SLR 331 the wife petitioned for divorce based on the husband”s unreasonable behaviour. The husband filed a cross-petition. The subordinate court granted a divorce on their respective petition and cross-petition. The wife appealed against the granting of the decree based on the husband”s cross-petition. The High Court applied Wong Siew Boey v Lee Boon Fatt[1994] 2 SLR 115 (‘Wong Siew Boey’) which held that in determining whether the petitioner could reasonably be expected to live with the respondent, the court should use an objective test but should have regard to the personalities of the individuals before it in the light of the history of the marriage and their relationship. It quoted from Wong Siew Boey (at 336, [14]):

The behaviour is not confined to behaviour towards the [petitioner]: the behaviour may have regard to the marriage although it is towards other members of the family or towards outsiders. Any and all behaviour may be taken into account, including omissions, where it has reference to the marriage.

13.7 The High Court remarked that the court below had had the advantage of seeing the couple”s demeanour and was in the best position to assess the veracity of the couple. The husband had alleged that the wife refused to have sex with him even though she knew he felt deprived, and that she was violent, hot-tempered, extravagant, cold and unfriendly towards him. The court below preferred the husband”s testimony and the appellate court should be slow to intervene with the findings. The High Court opined, from a reading of the affidavits, that the wife”s behaviour was indeed unreasonable and dismissed her appeal. The wife did not deny the husband”s allegation that she refused to have sex with him despite being aware that he felt deprived. She expected to be well maintained by the husband but would not reciprocate in carrying out her role as his wife.

13.8 This case also illustrates Wong Siew Boey”s principle that behaviour is not confined to behaviour towards the petitioner. The High Court observed that the wife came across as an unreasonable person who, despite acknowledging that the husband”s complaints were valid, was not prepared to accept that the behaviour entitled him to a divorce and consequently appealed against the subordinate court”s decision. When the High Court dismissed her appeal, she was furious and filed a notice of appeal against that decision. Lai Siu Chiu J looked at the conduct of the wife after the decree nisi was granted in reinforcing her view that the wife was an unreasonable person. It is not clear whether Wong Siew Boey”s principle extends to such post-divorce behaviour. It may be preferable, in principle, to confine behaviour to any

relevant behaviour during the marriage since s 95 of the Charter is premised on conduct during marriage which has caused or is evidence of an irretrievable breakdown of marriage. In the case, there was sufficient evidence of unreasonable behaviour during marriage which justified a decree on the husband”s cross-petition.

Custody of children
Joint, sole or no custody order?

13.9 A few subordinate court decisions upheld the increasing trend towards joint parenting, ordering joint custody, but an overwhelming number awarded sole custody to one parent. Against this background, the landmark High Court decision of Re G (guardianship of an infant)[2004] 1 SLR 229, is warmly welcomed (see Ong, ‘Making No Custody Order: Re G (Guardianship of an infant)[2003] Sing JLS 583).

13.10 In Re G (guardianship of an infant), both parents agreed that the mother should have care and control of their young child K, who was less than two years of age. The mother sought sole custody while the father sought joint custody. The mother alleged, inter alia, that the father denied he was the child”s father, failed to ferry her to the hospital for the child”s delivery, showed no interest in the child, kept late nights and had an affair with another woman. The father denied the allegations and alleged instead that it was the mother who had tried to keep the child away from him. The district judge relied on the cases of Jussa v Jussa[1972] 2 All ER 600 and Ho Quee Neo Helen v Lim Pui Heng[1972—1974] SLR 249 and held that as the parties had an acrimonious relationship and could not cooperate in matters relating to the child, the mother should have sole custody of K.

13.11 On appeal, the High Court set aside the district judge”s order on custody and held (at [8]) that:

While it is true that a joint custody order may be unrealistic where the parents of a child have an acrimonious relationship, it does not always follow that the alternative in such a situation is to grant sole custody of the child to one parent. Where there is no immediate or pressing need for the question of custody to be settled, one should seriously consider whether an order for sole custody is in the best interest of a child, who should...

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