Family Law

Date01 December 2007
Published date01 December 2007
AuthorDebbie ONG LLB (Hons) (National University of Singapore), LLM (Cambridge); Associate Professor, Faculty of Law, National University of Singapore. Valerie THEAN MA (Cambridge), LLM (Harvard); Director, Legal Policy Division /Industry Development Division, Ministry of Law.
Conflict of laws
Stay of matrimonial proceedings; anti-suit injunction

14.1 In VH v VI[2008] 1 SLR 742, the petitioner wife, a French national, and the respondent husband, a Swedish national, married in 1993 in Sweden. They had two children and were permanent residents of Singapore. On 13 September 2005, the petitioner began divorce proceedings in Singapore alleging that the respondent had committed adultery. The respondent submitted to the jurisdiction of Singapore courts and participated in the Singapore proceedings. On 4 October 2006, the respondent started proceedings in Sweden. He filed an application to stay the Singapore proceedings on 28 November 2006. The petitioner applied to the Swedish courts to stay the Swedish proceedings but was refused a stay. Her appeals against the dismissal of the stay were also dismissed. She applied for an anti-suit injunction in Singapore on 3 May 2007. At the hearing on 8 May 2007, the High Court issued an interim injunction prohibiting the respondent from proceeding with the Swedish proceedings pending the hearing and disposal of the anti-suit application. In disregard of the order, the respondent applied on 15 May 2007 to the Swedish Courts to issue the divorce decree. The decree was issued on 26 June 2007.

14.2 The High Court applied the law on forum non conveniens in Spiliada Maritime Corp v Cansulex Ltd[1987] 1 AC 460, noting (VH v VI[2008] 1 SLR 742 at [29]) that:

The crucial question is not whether Sweden is the appropriate forum, but whether Sweden is the more appropriate forum than Singapore. It is clear that Singapore is an appropriate forum for the divorce proceedings.

14.3 The court dismissed the application for a stay of the Singapore proceedings, explaining (at [30]) that:

The main thrust of the respondent”s argument is that Sweden is a more appropriate forum because it allows his marriage to be dissolved on a fault-free basis, and that the ancillary matters such as the division of matrimonial property and the care and custody of and maintenance of the children can be settled more expeditiously than they can be accomplished in the Singapore proceedings, where they will not be heard till after the completion of the contested divorce application. It should be noted that Singapore law also allows for fault-free divorces based on separation. Apparently, the respondent”s circumstances do not constitute separation, and he has to bring his case to Sweden where fault-free divorces are more readily obtainable.

14.4 The implication made by the respondent seems to be that the fault-free divorce law of Sweden is more beneficial to him than the allegedly fault-based divorce law of Singapore. Some old questions are raised here: is the divorce law in Singapore ‘fault-based’ or ‘fault-free’? Is a fault-free divorce law necessarily superior to a fault-based system? Embarking on such comparative judgment on the divorce laws of two countries to determine the issue of forum non conveniens must be carried out with caution and the court rightly did not conclude that one system is necessarily better than the other (at [31]):

The argument overlooks the petitioner”s right to seek a divorce on any ground allowed by the laws of Singapore. In proceedings of a deeply personal nature as divorce, the ground may be as important as the conclusion. It cannot be said that Sweden is a more appropriate forum than Singapore because it allows easier fault-free divorces.

14.5 There is in theory only one ground of divorce in Singapore. Section 95 of the Women”s Charter provides that the sole ground for divorce is that ‘the marriage has irretrievably broken down’. However, this ground can only be proven by one of the five facts enumerated in s 95(3). Of these, three of the facts connote fault on the part of the defendant: adultery, unreasonable behaviour and desertion. In such a system, these ‘“facts” are in practice effectively the grounds for divorce, as in English law’ (see United Kingdom Law Commission, Facing the FutureA Discussion Paper on the Ground for Divorce (Law Com No 170, 1988) at para 4.4).

14.6 However, while the decision on the application for stay favoured the petitioner, the decision on the anti-suit injunction favoured the respondent. The marriage and parties were not unconnected with Sweden and the respondent would suffer real prejudice if he was prohibited from carrying on further with the proceedings which had progressed to an advanced stage.

14.7 The cumulative effect of the holdings is that the ongoing proceedings may continue in Singapore, but if the divorce has already been granted by the Swedish court, the Singapore court must first

determine whether the Swedish divorce is recognised in Singapore. If it is, then the Singapore court cannot grant a divorce as there is no longer a subsisting marriage to dissolve. Singapore was clearly the appropriate forum in this case but the final result is that the proceedings have been validly concluded in the Swedish courts and the wife can no longer obtain the matrimonial relief in the Singapore court. Since financial relief is ancillary to the matrimonial jurisdiction in Singapore, that is also not available to the wife. The lesson that can be learnt is that parties must make use of the law and procedures available to them without delay. Delays can affect one”s substantive rights.

Law governing validity of foreign prenuptial agreement and rights to matrimonial property

14.8 The High Court in TQ v TR[2007] 3 SLR 719 has recognised a foreign prenuptial agreement to be valid and effective. (The appeal was heard by the Court of Appeal in January 2008 but the written grounds of decision have not been published at the time of writing.) In this case, the wife was a Swedish national and the husband, a Dutch national. The parties met in London in 1988 and were married in 1991 in the Netherlands. Just a few weeks before the marriage, they had executed a prenuptial agreement before a notary public in the Netherlands. The agreement apparently provided that there was to be no community of marital property and each was to keep his or her own assets in the event of a divorce. On the issue of division of matrimonial assets, the court considered that (at [10]):

The main issue is whether the prenuptial agreement should be enforced. If that agreement is enforced, the petitioner will receive nothing by way of a division of the matrimonial assets. The prenuptial agreement was executed under Dutch law and the preliminary question I need to determine is the place of domicile of the parties. The law of the domicile, a concept that may be growing outdated, determines the issue of matrimonial assets.

14.9 This part of the judgment may suggest one of the following: that a matrimonial property agreement is governed by the law of the parties” domicile rather than the ‘proper law of the contract’, or that whether such an agreement ought to be enforced depends on the law of the parties” domicile. With respect, neither accurately reflects the present law.

14.10 The first task of the court faced with a foreign contract should have been to determine whether it is valid in accordance with the rules of conflict of laws. In this case, the court recognised and gave effect to the Dutch prenuptial agreement. The court may be read to have simply assumed that the prenuptial agreement was valid. However, it is unclear from the judgment how the court reached this position.

14.11 The law which governs a foreign contract is the ‘proper law’ of the contract, which is ‘the system of law by reference to which the contract was made, that is the law chosen by the parties or that with which the transaction had its closest and most real connection’ (Morris & McClean, The Conflict of Laws (London: Sweet & Maxwell Ltd, 5th Ed, 2000) at p 321). If the court in TQ v TR[2007] 3 SLR 719 had applied the proper law, it should have attempted to ascertain the express or implied choice of the parties. In the absence of such a choice, the court could have sought objective connecting factors, such as the parties” domiciles. It should have determined what the parties” domicile was in 1991, when the prenuptial agreement was made. However, the court determined that the wife was not domiciled in the Netherlands at the time of the divorce instead of ascertaining her domicile at the time of making the prenuptial agreement in the Netherlands. There is no evidence that the court applied any factors relevant to determining the proper law of the agreement. This judgment has been further analysed in Debbie Ong, ‘Prenuptial Agreements and Foreign Matrimonial Agreements: TQ v TR(2007) 19 SAcLJ 397.

14.12 In the absence of an agreement, the matrimonial domicile of the parties determines their rights to matrimonial property. For example, whether the community of matrimonial property system or the separation of ownership system applies to the spouses is determined by their matrimonial domicile. However, where there is an agreement, the proprietary incidents of marriage may be altered. The lex fori gives effect to the agreement in accordance with the proper law. It is not necessary or relevant at this stage what the domiciles of the parties are. The law of the domicile of the parties yields to the parties” agreement in accordance with the proper law. Whether the agreement ought to be given effect depends on the forum”s application of the Women”s Charter (Cap 353, 1997 Rev Ed). This issue on the court”s power to divide matrimonial assets under the Women”s Charter where there is also a prenuptial agreement is discussed below.

Section 94 time restriction on divorce

14.13 In Zhao Lu v Lee Yong Kwong Johnson[2007] SGDC 99 (‘Zhao Lu’), the parties were married in September 2005. Less than a year later, in July 2006, the plaintiff wife sought leave under s 94 of the Women”s Charter to file a writ for divorce. She made numerous allegations against the defendant...

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