Family Law

Date01 December 2010
Citation(2010) 11 SAL Ann Rev 368
Published date01 December 2010
AuthorDebbie ONG LLB (Hons) (National University of Singapore), LLM (Cambridge); Associate Professor, Faculty of Law, National University of Singapore.

Stay of family proceedings

15.1 In ALJ v ALK [2010] SGHC 255 (‘ALJ v ALK’), the parties were US citizens and permanent residents of Singapore. They met in California in 2004 and came to Singapore in 2005. The parties were married in Singapore and had two children while in Singapore. The marriage deteriorated in 2007. The wife committed adultery with a third party. The parties physically removed the two children of the marriage from each other at various points after that. A child of the extra-marital union was born in 2008. The husband commenced divorce proceedings in Singapore in July 2008 alleging adultery on the part of the wife. The wife counterclaimed alleging unreasonable behaviour on the part of the husband. The husband sought a stay of the proceedings, arguing that the children should return with him to California so that the ancillary matters could be resolved in the Californian courts. He explained that he had no choice but to commence divorce proceedings in Singapore in the first place because the wife had refused to return to California with the children and argued that his only purpose in the Singapore proceedings was to gain custody of the children so he could apply to renew their passports and bring them back to California.

15.2 The High Court declined to stay the proceedings in Singapore and proceeded with the hearing on the ancillary matters. In order to succeed in an application for a stay of proceedings, the husband had to establish that California was not only an appropriate forum but that it was clearly a more appropriate forum than Singapore to hear the ancillary matters including issues pertaining to the children. The court applied Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and found that California was not clearly the more appropriate forum to resolve the ancillary matters. There were several connecting factors with Singapore: the husband had already progressed very far in the present divorce proceedings, the parties were married in Singapore and the children were born and raised here. While there were also some connecting factors with California, these factors were insufficient to warrant a stay of proceedings as they did not establish that California was clearly the more appropriate forum.

15.3 The High Court held that this was the established test for stay applications and has been affirmed many times by the Court of Appeal

in Singapore. ALJ v ALK continues to affirm the applicability of the Spiliada principles in matrimonial proceedings in Singapore.

15.4 In AFH v AFJ [2010] SGDC 342 (‘AFH v AFJ’), the plaintiff, a Singaporean, was married to the defendant, a US citizen, in 1999. At the time of the marriage, the plaintiff was expecting and subsequently gave birth to twin boys in Singapore in 2000. The family moved to the US in 2004. The marriage broke down and was subsequently annulled. In July 2008, the US court granted the plaintiff and defendant joint custody of the twins with a further order that the parties must obtain each other“s written permission or an order of court before either could take the children out of the US. The plaintiff had suspicions about the paternity of the twins and managed to procure a test which indicated that the defendant was not the biological father of the twins. In breach of the court order, the plaintiff left the US with the twins at the end of August 2009 apparently in search of the man she thought was likely to be the father of the twins. She managed to obtain a paternity test indicating that the man was likely to be the biological father of the twins. The defendant filed an application and was granted sole custody of the children by a US court, which also made a ‘search and retrieve order’, placing the plaintiff on INTERPOL“s ‘Wanted List’. Through his lawyer, the defendant also commenced proceedings in Singapore which sought to have custody granted to him and for the travel documents of the twins to be returned to him for the purpose of returning the twins to the US as ordered by the US Court. The plaintiff commenced proceedings in which she sought sole custody of the twins, a declaration that the man indicated in the paternity test is the natural father of the twins but that this man not be reflected as the biological father of the twins in their birth certificates. These were granted as consent orders in December 2009. The present District Court set aside the December 2009 orders, ordered that the applications on matters affecting the children be stayed on the ground that Singapore is not the appropriate forum to hear the issues raised, and that the children shall remain in Singapore pending the decision of the US courts with regards to custody, care and control of the children. The District Judge remarked that ‘quite apart from ethical concerns which this case throws up, to have kept (the defendant) in the dark about the hearing … in the Family Court … would be to allow for a display of contemptuous conduct on the part of (the plaintiff) which is not supportable in law and cannot be condoned’: AFH v AFJ at [19].

15.5 The District Court found that Singapore was not the appropriate forum to hear the issues relating to the children. The forum with which the children had greater connection - the US in this case - was the appropriate forum. The decision may be justified on the application of principles on forum non conveniens. It is consistent with the previous High Court decision in Re A (an infant) [2002] 1 SLR(R) 570

which held that a child“s welfare is most appropriately evaluated by the forum which is best equipped to determine what is in the best interests of the child. The country in which the children were most connected was best placed to decide what was in the children“s welfare.

15.6 The case was decided outside the regime of the Hague Convention on the Civil Aspects of International Child Abduction. Now that Singapore has acceded to this Convention, a case similar to AFH v AFJ (above, para 15.4) will be dealt with within the machinery of the Convention from 1 March 2011. A parent in the defendant“s position would have been able to make an application to the Central Authority for assistance. Upon an application under the newly enacted International Child Abduction Act (Act 27 of 2010) for the return of the children, the court will, unless there are exceptional circumstances, order their swift return to their country of residence. The court will apply the Convention principles and not common law principles of forum non conveniens nor domestic law principles governing the custody, care and control of children.

Void marriages

15.7 In (2009) SAL Ann Rev 314 at 316-320, paras 15.6-15.18, the case of Tan Ah Thee v Lim Soo Foong [2009] 3 SLR(R) 957 (‘Tan Ah Thee’) was reviewed. Tan Ah Thee was applied in Toh Seok Kheng v Huang Huiqun [2011] 1 SLR 737 (‘Toh Seok Kheng’) where the mother of the deceased applied for a declaration that the marriage entered into between the defendant Huang and her deceased son was a sham marriage and hence void. The deceased, despite being close to his family, entered into the marriage without informing his family of it. After the marriage, the deceased continued to live with his family and apart from the defendant, and did not disclose his marital status to his family. After the deceased“s unexpected demise, the defendant revealed to the family that she was his wife, to the shock and consternation of the family members. The High Court held that (Toh Seok Kheng at [12]-[13]):

In so far as the plaintiff was relying on there being a sham marriage as a ground to invalidate the marriage, the legal position is both clear and settled - the court cannot declare a marriage void on a ground other than those provided for in s 105 of the Women“s Charter … It was held in …“Tan Ah Thee“… that the grounds for holding a marriage to be void are exhausted by s 105 of the Charter. Those grounds do not include annulling a marriage because it was entered into pursuant to motives which some might consider improper and may therefore render it a sham marriage in their eyes. Nor do they include annulling a marriage in which spouses continue to conduct their respective lives as though they were unmarried. The law as it stands abstains from prescribing the “proper“ motives for marriage and does not allow the spouses“ private motives to undermine the validity of their marriage.

15.8 There are two different ways the law may treat a ‘sham’ marriage. It can take the position in Toh Seok Kheng, or in the alternative, it can hold that such an unauthentic marriage makes a mockery of the marriage institution and should be denied the status of a valid marriage. In the English case of Vervaeke v Smith [1982] 2 WLR 855 (‘Vervaeke’), the wife succeeded in obtaining a nullity decree in the Belgian court for her marriage to Smith as the marriage was contracted solely for the purpose of enabling her to acquire British nationality. Belgian law viewed such a marriage as an empty and void one, while the English court in Vervekae recognised this same marriage as valid as there is no room in marriage for mental reservations or private arrangements regarding the parties“ personal relationships where the parties have consented to the achievement of the married state and observed the necessary formalities.

15.9 Toh Seok Kheng adopts the English position. It leaves the other areas of law to regulate reprehensible behaviour that exploits the status of marriage for purposes of acquiring immigration benefits. The High Court in Toh Seok Kheng explained (at [15]-[16]):

[T]he plaintiff referred to some local cases (eg, Public Prosecutor v Ng Ai Hong [2007] SGDC 68) where the parties involved were convicted for corruption for entering into “sham marriages“ for the purposes of facilitating one party“s acquisition of immigration or residency benefits whilst the other party obtained monetary gratification in return … to show...

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