Family Law

Date01 December 2012
Published date01 December 2012
AuthorDebbie ONG LLB (Hons) (National University of Singapore), LLM (Cambridge); Associate Professor, Faculty of Law, National University of Singapore.
Citation(2012) 13 SAL Ann Rev 299
Divorce: Matrimonial jurisdiction
Habitual residence

16.1 Section 93 of the Women's Charter (Cap 353, 2009 Rev Ed) provides:

(1) Subject to subsection (2), the court shall have jurisdiction to hear proceedings for divorce, presumption of death and divorce, judicial separation or nullity of marriage only if either of the parties to the marriage is —

(a) domiciled in Singapore at the time of the commencement of the proceedings; or

(b) habitually resident in Singapore for a period of 3 years immediately preceding the commencement of the proceedings.

16.2 Lee Mei-Chih v Chang Kuo-Yuan[2012] 4 SLR 1115 clarified the definition of ‘habitual residence’. In this case, the parties were not Singaporean citizens, nor were they domiciled in Singapore. The defendant husband was never habitually resident in Singapore. In order for the court to have jurisdiction over the matter, the plaintiff wife had to prove that she was ‘habitually resident’ in Singapore during the preceding three years. The High Court referred to English law for guidance and held that interpretations ascribed to ‘ordinary residence’ should equally apply to ‘habitual residence’. Ordinary or habitual residence requires voluntary residence and a settled purpose. There must also be a degree of continuity of habitual residence throughout the relevant period, apart from temporary or occasional absences. On the facts, while the plaintiff wife had voluntarily resided in Singapore with a settled purpose, she failed to establish the requisite degree of continuity in residence, having travelled out of Singapore for eight months to Taiwan and four months to New Zealand. The court thus had no jurisdiction over the matter.

16.3 The basis for such a requirement is to ‘meet the interests of the state and of those who genuinely “belong here”, without allowing access to our courts to transients, “forum-shoppers”, and others with no real connection with the country’: at [4], citing the UK Law Commission's Report on Jurisdiction in Matrimonial Causes (Law Com No 48, 1972). Prior to the 1996 Amendments to the Women's Charter, there was an additional requirement in the equivalent of the current s 93: the marriage had to be monogamous in character or deemed registered under the Women's Charter before the Singapore court had matrimonial jurisdiction over it. This requirement was dropped leaving only the connection of either party to Singapore by way of domicile or habitual residence. This remaining requirement is the gateway guardian that ensures the state has a sufficient interest in the parties and their marriage, and should not be interpreted too liberally.

Termination of marriage by decree nisi or death

16.4 The legal effect of a decree nisi of divorce or an interim judgment of divorce was clarified in Hou Wa Yi v Yap Kiat Cheong[2012] 2 SLR 995 (‘Hou Wa Yi’). In this case, the husband died after a decree nisi was granted. Probate was granted to the husband's executors, who applied to intervene and sought an order to make the decree nisi absolute. The High Court held, rightly, (at [5]) that:

The decree nisi is an inchoate order and, until it is made absolute, may be overtaken by the event of death. The proper reading of s 7 of the Women's Charter is that a marriage is dissolved on the occurrence of any of the three events stipulated in ss 7(a)–7(c). Death of a party to the marriage and a court order are two such events. The court order finally dissolving a marriage is the decree absolute and not the decree nisi because the decree nisi will not dissolve the marriage if the court has reasons not to grant the decree absolute, rare as that may be.

16.5 The often cited case on the legal consequences of a decree nisi of divorce, Sivakolunthu Kumarasamy v Shanmugam Nagaiah[1987] SLR(R) 702, had held that an order on division of assets made after a decree nisi of divorce was made could be enforced even where one party to the marriage had died before the decree was made absolute. A misconceived interpretation of this holding may be that a marriage is legally terminated by a decree nisi. It has been clarified in Hou Wa Yi (at [7]) that:

The court [in Sivakolunthu] only held that the decree nisi practically terminated the marriage. … [T]he issue before the court there was whether an order for the division of matrimonial assets made under … the Women's Charter … was valid and enforceable when made upon a decree nisi. …Sivakolunthu had to not be read out of context to stand for more than it actually did.

16.6 Thus, the marriage in Hou Wa Yi was terminated by the death of one party and not by a divorce. A decree nisi of divorce, now called an interim judgment of divorce, does not legally terminate a marriage. An important consequence of this is that a party who has obtained an interim judgment of divorce but not a final judgment remains married and has no capacity to marry until the judgment is made final. If a Singapore domiciliary under such circumstances marries another before a final judgment of divorce is obtained over the previous marriage, that marriage is void for breach of s 5 of the Women's Charter.

Custody of children

Care and control

16.7 In AWN v AWO[2012] SGHC 228 (‘AWN v AWO’), the husband applied, under the Guardianship of Infants Act (Cap 122, 1985 Rev Ed), for the sole custody, care and control of his three-year old son. The District Judge had read a social welfare report by the Family Welfare Service of the then Ministry of Community Development, Youth and Sports and was of the view that in light of the tender years of the child and the fact that he was attached to his mother, care and control should be granted to the wife, with access to the husband. One of the many contentions of the husband was that the courts are wrong in adopting a default rule which invariably gives care and control of young children to the mother. The High Court made it a point to correct this view (at [4]):

The husband is mistaken in taking the view that any such default rule exists. In matters like the present, it is the welfare of the child that is of paramount consideration. … While the courts have recognised the maternal bond as one factor to consider in deciding such matters, this does not mean that there is an operating presumption in favour of the mothers in such proceedings.

16.8 Whether there is such a presumption in favour of a mother of a young child could be a tad controversial since the Court of Appeal's decision in Soon Peck Wah v Woon Che Chye[1997] 3 SLR(R) 430 (‘Soon Peck Wah’) (at [45]), which famously extolled the mother's love for her child, conspicuously leaving out a father's love:

All other things being equal, a very important factor to bear in mind was that we were dealing with an extremely young infant. We felt that the maternal bond between the natural mother and the infant was a pivotal consideration here. … We have heard of the story of the mother who fought a tiger with her bare hands to save her child from the ferocious beast. Such is the love and sacrifice of the maternal instinct. … This court would be doing a disservice to justice and humanity if it turned a blind eye to the most fundamental bond of mankind – between a mother and her child, by taking the child away from the mother.

16.9 From this holding, it is not completely ludicrous to suggest that

Soon Peck Wah states a rebuttable starting position which favours the mother, where all other things are equal, as caregiver and custodian of young children. This is despite the court's caution (at [45]) that:

… We should not be mistaken as reviving the old presumption of “maternal custody” of all young infants. It is only a natural conclusion that, by reason of very tender, young age, the infant would be most dependent on his mother for his physical and psychological needs.

16.10 Practically, the holding in Soon Peck Wah can effectively give rise to a presumption in the limited circumstances where all other things are equal between the parents. In fact, numerous cases citing Soon Peck Wah have applied it when granting care to mothers.

16.11 The law should not hold on to any presumptions based solely on gender. The welfare of a child requires the court to consider every relevant factor. Parent and child relationships are different and even complicated in families which have broken down. One approach that will restrict the effect of favouring a parent based on gender is in finding that things are not equal between the parents; even a minor factor could tilt the balance. Another is to focus on the Court of Appeal's caution that it was not reviving the old presumption of ‘maternal custody’ and was merely highlighting one of many factors relevant to a child's welfare. Soon Peck Wah was not cited in AWN v AWO.

Relocation: Taking the children out of the jurisdiction of Singapore

16.12 In last year's review, a note was made on the issue of relocation. Section 126(3) of the Women's Charter provides that ‘where an order for custody is in force, no person shall take the child who is the subject of the custody order out of Singapore except with the written consent of both parents or the leave of court’. Section 126(4) of the Women's Charter makes an exception in cases where the child is taken out of Singapore for less than one month. The other parent's consent is required before the child may be relocated out of Singapore and where there is none, the court's leave is required.

16.13 In AZB v AYZ[2012] 3 SLR 627 (‘AZB v AYZ’), the husband was a wealthy Malaysian businessman and the wife was an American residing in Singapore. The wife was a homemaker and the primary caregiver of the couple's nine-year old daughter. The marriage became a turbulent one ‘marked by verbal abuse and bullying on the husband's part which, coupled with the increasing sense of alienation and isolation felt by the wife, eventually led to the breakdown of the marriage’: AZB v AYZ at...

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