Family Law

AuthorDebbie ONG LLB (Hons) (National University of Singapore), LLM (Cambridge); Associate Professor, Faculty of Law, National University of Singapore.
Citation(2013) 14 SAL Ann Rev 358
Date01 December 2013
Published date01 December 2013

Stay of divorce proceedings

16.1 AZS v AZR[2013] 3 SLR 700 involved an appeal against the District Court's refusal for a stay of divorce proceedings. The parties and their son were French nationals. Prior to their marriage in 2000, the parties signed a prenuptial agreement in France. The agreement was not expressly governed by French law but made numerous references to the French Civil Code. The parties relocated to Singapore in 2006, and their son was born in Singapore in 2010. The family has resided in Singapore ever since, although they are not permanent residents. The husband currently holds an employment pass while the wife and the son hold dependant passes. Prior to the relocation to Singapore, they had lived in various countries due to the husband's job. The parties had no immovable property in Singapore and only possessed immovable property in France and China. The husband had filed for divorce in France in April 2012 and the wife commenced divorce proceedings in Singapore on 14 June 2012. Interim orders for custody and maintenance issues had already been made in Singapore, and the husband had agreed to abide by the orders.

16.2 The High Court held that the applicable test to determine if divorce proceedings should be stayed on the grounds of forum non conveniens is that enunciated in Spiliada Maritime Corp v Cansulex Ltd[1987] AC 460 (‘Spiliada’). Applying the test, it held that, looking at the various factors in totality, France was clearly the more appropriate forum to hear the matter. Weight should be attached to the location of the subject matters in dispute, which in the present case, mainly revolved around the prenuptial agreement. The husband argued that requests made to the French court to ‘mirror’ the Singapore orders on maintenance and custody would dispose of those issues, leaving only the division of matrimonial assets for adjudication by the French court. The wife conceded that the issues regarding the prenuptial agreement should be adjudicated in France, but argued custody arrangements and maintenance should be heard by the Singapore courts, as the parties were resident here. Further, as this case involved concurrent divorce proceedings in Singapore and France, the doctrine of lis alibi pendens was another factor in favour of a stay.

16.3 The case raises the question of how the court should balance all the factors in applying Spiliada. On the present facts, there were factors that substantially connected the case to both Singapore and France. While the prenuptial agreement may have been a major subject matter, other issues such as the custody and maintenance issues could be appropriately decided by the Singapore court, as the parties were residing in Singapore. The residence of the parties gave them a real and substantial connection to Singapore. Thus, it may be that the factors apart from lis alibi pendens do not undoubtedly point to France as the more clearly appropriate forum but the decision is better justified because there were concurrent proceedings in France and Singapore (a lis alibi pendens situation): the multiplicity of proceedings is a factor that favoured a stay.



16.4 In Re BJU to be called B[2013] SGHC 138, the appellants C and D were husband and wife respectively who appealed against the decision of the District Court which had refused to dispense with the consent of the father of the infant they had sought to adopt. At the time of their marriage, D had a six-year-old son named BJU from a previous relationship with the son's natural father E. E was currently serving a six-year prison sentence for a drug offence and was due to be released in about two years' time from the time of hearing. C and D had a son, F, of their own. C and D had changed BJU's name by deed poll to B so that his surname was the same as that of C and F. They applied to adopt B as their son. B's natural father, E, objected to the adoption and the court below took into account E's objection and refused the application by C and D for an adoption order and the dispensation of the consent of E. The High Court observed of the decision of the District Judge (at [4]):

She held that s 4(4)(a) (of the Adoption of Children Act) “requires proof of abandonment, neglect or ill-treatment” but that these were not proved in the present case. As to s 4(4)(c) the trial judge held, citing Hitchcock v WB and FEB and others[1952] 2 QB 561, that it could not be said that E was refusing his consent in the present case “whimsically or arbitrarily or not in good faith”. The judge also took into account the expressed desires of B but held that “the line between guardianship and adoption needs to be understood and respected. An adoption order will sever ties between father and child and [the court] was not satisfied that this would be in the long term interests of a child well into his teenage years”.

16.5 The High Court held (at [5]):

I have no disagreement with much of what the court held below save to say that the conduct of … E has come close to the neglect and abandonment requirement of s 4(4)(a), but I am satisfied that the circumstances of the case are well within s 4(4)(c). C and D have already been married for almost ten years and B is 15 years old. He has lived without E almost all through his growing years. I interviewed B and found him to be mature, intelligent, sensible, well-brought up, and above all, happy. He declared that he was perfectly happy with life as it has been for him with C and D. The formal adoption could only add the seal to that happiness. As the law stands, while E's position should not be disregarded, it is the welfare of the child that is paramount. E and D were never married, but even if E wants to have access to B, the Family Court might still grant him access although the prospect of a fulfilling relationship between them seems merely a hopeful one from the eyes of E. B has indicated politely that he is not keen to see E.

16.6 It is a little disconcerting that the consent of the father was dispensed with on the basis of s 4(4)(c) of the Adoption of Children Act (Cap 4, 2012 Rev Ed) without further explanation of how the facts of the present case fulfilled the requirements of that provision. Dispensation of the consent of a natural parent should not be made easily, for the legal effects of adoption are severe and permanent. The District Judge had rightly pointed out that ‘the line between guardianship and adoption needs to be understood and respected’. Section 4(4) of the Adoption of Children Act provides:

(4) An adoption order shall not be made except with the consent of every person or body who is a parent or guardian of the infant in respect of whom the application is made or who has the actual custody of the infant or who is liable to contribute to the support of the infant; but the court may dispense with any consent required by this subsection if the court is satisfied that the person whose consent is to be dispensed with –

(a) has abandoned, neglected, persistently ill-treated the infant or cannot be found and that reasonable notice of the application for an adoption order has been given to the parent or guardian where the parent or guardian can be found;

(b) is unfit by reason of any physical or mental incapacity to have the care and control of the infant, that the unfitness is likely to continue indefinitely and that reasonable notice of the application for an adoption order has been given to the parent or guardian; or

(c) ought, in the opinion of the court and in all the circumstances of the case to be dispensed with, notwithstanding that such person may have made suitable initial arrangements for the infant by placing the infant under the care of the authorities of a home for children and young persons, the protector under the Children and Young Persons Act (Cap. 38) or some other person.

16.7 In post-divorce families, it is common for one natural parent to have much less contact with the child than the other parent with care and control of her. D and E were never married and had ended their relationship. E had been serving a six-year prison sentence and was due for release in two years' time. He could not have had much contact with his son in the past four years. The fact that D and E are no longer in a subsisting relationship is not relevant for adoption purposes; post-divorce families also involve parents who are no longer in a relationship. The factors relied on by the High Court to support the dispensation of consent in fact only supported a custody decision, that is, it is in the welfare of B under those circumstances that custody, care and control be given to D and C. It is not difficult to accept that it is in B's welfare to award custody, care and control to D rather than E. Such a decision will enable B to continue being brought up in a stable and happy environment. E may or may not be given access to spend time with B, but that was not the issue in question. It is not uncommon for a child to remain a biological child of one parent while being fully integrated into a newly formed family with her step-parent and step-siblings. In fact, it is settled law that it is in the welfare of a child to support sustained access and involvement by the parent without care and control of the child. On the facts, it was in B's welfare to remain in the care and control of D. Whether his welfare demanded that the parent and child relationship between E and B should be permanently severed by an adoption order is quite another issue. It is respectfully submitted that the facts do not support such a blunt intervention.

16.8 Failure to keep the issues on adoption separate from custody gravely affects the welfare of the child. Once an adoption order is made, the child's relationship with her natural parent is permanently severed. An adoption order severs a relationship that did not require creation by a legal act but began as a...

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