AQN v AQO

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 27 January 2015
• Neutral Citation: [2015] SGHC 19
• Plaintiff Counsel: Edmund Jerome Kronenburg and Christina Teo (Braddell Brothers LLP)
• Docket Number: Divorce Suit No 63 of 2010 (Registrar’s Appeals from the State Courts Nos 48, 49 and 50 of 2014)
• Date: 27 January 2015
• Hearing Date: 26 January 2015,03 November 2014,03 July 2014,30 April 2014,08 May 2014
• Subject Matter: Restraint of foreign proceedings,Access,Natural forum,Conflicts of laws,Family law,Care and control,Custody
• Published date: 28 January 2015
• Citation: [2015] SGHC 19
• Defendant Counsel: Khoo Boo Teck Randolph and Johnson Loo (Drew & Napier LLC)
• Court: High Court (Singapore)
• Year: 2015

Choo Han Teck J:

The husband in these registrar’s appeals and the related divorce suit is a wealthy businessman and the son of an influential tycoon who ran one of Malaysia’s biggest state-owned companies. He is a Singapore citizen. The wife, a homemaker, is an American citizen. Previously, she worked as an institutional equities broker in New York, United States of America (“USA”). Their daughter, now 11 years old, was born in March 2003. She now lives in Oak Brooks, Illinois, USA since June 2012 with her mother after the Singapore High Court affirmed the District Court’s decision to allow the daughter to relocate there.

The parties married in New York on 12 November 1999. Before marriage, the parties executed a prenuptial agreement on 29 November 1999 in New York. That prenuptial agreement states, inter alia, that if the parties divorce, neither shall receive maintenance from the other or any distribution from the other party’s property. The prenuptial agreement also provides that it is governed by New York law. After marrying, the parties left New York and have not returned ever since. During the marriage, the parties lived mainly in Malaysia, California and Singapore.

On 8 January 2010, the wife filed a writ of divorce in Singapore and sought ancillary relief. The husband commenced proceedings in New York on 13 May 2010 for an order that the wife be restrained from alleged breaches of the terms of the prenuptial agreement. The husband says that the wife, by seeking a final award of maintenance and distribution of property (including those owned by the husband in New York) in Singapore divorce proceedings, is in breach of the terms of the prenuptial agreement. The interim judgment for divorce was granted on 23 August 2011 by the Singapore District Court on the ground of the husband’s unreasonable behaviour.

The wife applied for interrogatories and for discovery for ancillary hearings. These applications were stood down as the husband applied for the Singapore hearing on ancillary matters, as well as all discovery and interrogatories, to be proceeded with only after the final determination of the New York action. The wife in turn, applied for an anti-suit injunction restraining the husband from proceeding with the New York action. The husband also applied for matters relating to the care, custody and control of the child to be transferred to the Illinois courts. The District Judge denied the husband’s applications, and granted the wife an interim anti-suit injunction restraining the husband from continuing with the New York action until the final judgment for divorce in Singapore is given. The husband appealed the District Judge’s decision by way of three registrar’s appeals. They are: RAS 48/2014, the husband’s appeal for ancillary matters in Singapore to be held in abeyance until the conclusion of the New York action; RAS 49/2014, the husband’s appeal for interim anti-suit injunction restraining the husband from continuing with the New York action until the final judgment for divorce in Singapore is given; and RAS 50/2014, the husband’s appeal for matters relating to the care, custody and control of the child to be transferred to the Illinois courts.

I heard the appeals and dismissed them. I now give my reasons.

I start with RAS 48/2014. The husband commenced the New York action on 13 May 2010 for an order that the wife be restrained from alleged breaches of the terms of the prenuptial agreement. He says that the wife, by seeking a final award of maintenance and distribution of property (including those owned by the husband in New York) in Singapore divorce proceedings, is in breach of the terms of the prenuptial agreement. In April 2011, the wife filed a motion to dismiss the husband’s application in the Supreme Court of New York on the ground that New York lacked jurisdiction over the matter. The court dismissed the husband’s application on 16 December 2011, holding that although New York has jurisdiction, Singapore is the appropriate forum as (1) it hears the divorce action and (2) is better placed to consider the terms of the prenuptial agreement.

The husband then sought leave in the Supreme Court of New York to reargue the matter after the wife challenged the validity of the prenuptial agreement in Singapore on the ground of fraud and/or misrepresentation. The wife alleges that the husband failed to disclose the full value of his assets and means at the time of the signing of the prenuptial agreement. Leave was granted, and on 23 May 2012, the Supreme Court of New York reversed its earlier decision. The court held that the wife’s allegations raise factual issues that are not easily adjudicated in Singapore as the witnesses and documents relevant to the creation and validity of the prenuptial agreement are located in New York.

The wife filed a motion for leave to reinstate the court’s ruling of 16 December 2011. On 27 February 2013, the Supreme Court of New York dismissed the wife’s motion. But on 21 May 2013, the court modified and amended its order sua sponte and granted the wife’s motion to reinstate the court’s ruling of 16 December 2011 dismissing the action on the ground of forum non conveniens. This decision is without prejudice to any contract claims the husband may have after the divorce action in Singapore is concluded. The court found that it was an error to address the issue of the validity of the prenuptial agreement in New York as the harm caused by the continued delay of the divorce action in Singapore outweighs any inconvenience arising from the presence of witnesses and documents in New York. The court observed that a prenuptial agreement travels with the parties and upon divorce, the court with jurisdiction over the divorce action will decide any issues concerning the prenuptial agreement.

The husband appealed the order of 21 May 2013 and the wife filed a motion to dismiss the husband’s appeal. The wife’s motion was denied by the Appellate Division of the Supreme Court of New York on 21 January 2014. As a result, the husband’s appeal, at least at the time I heard the registrars’ appeals, proceeds.

The husband’s lawyers have made it clear that the husband is not seeking to transfer jurisdiction for the ancillary matters to the New York courts, but is merely asking for the ancillary matters to be determined after the New York action has been completed as the ancillary matters involve the enforcement and validity of the prenuptial agreement. In this regard, the husband submits the following: First, the Singapore court cannot determine the necessity of the discovery and interrogatories made for the ancillary hearing without first determining the validity of the prenuptial agreement. In this regard, the validity of the prenuptial agreement is already a question before the New York court. Second, having the Singapore court decide the validity of the prenuptial agreement will go against the following rules on conflict of laws: The rule against duplicitous proceedings as there would be hearings in both New York and Singapore. There is therefore a real possibility of inconsistent judgments from both New York and Singapore; The rule that, where the matter involves a dispute on New York law, it is better for the New York court to determine the dispute on its own laws (as a question of law) rather than have the Singapore court determine it as a question of fact; and The rule on forum non conveniens. The husband submits that Singapore is clearly not the appropriate forum to try the wife’s allegations of fraud/misrepresentation in determining the validity of the prenuptial agreement for two reasons: (1) the place where the alleged fraud/misrepresentation is prima facie the natural forum to hear the claim; and (2) the relevant documents and witnesses are in New York. Third, having the Singapore court decide the validity of the prenuptial agreement will prejudice the husband. The husband’s lawyers assert that (1) the allegations of fraud/misrepresentation “are allowed to remain” in the divorce action; (2) the wife is allowed to “fish” for evidence through discovery and the interrogatories to substantiate her allegations; and (3) even if the Singapore court is of the view that the ancillary matters need to be expedited so that the parties can move on with their lives, it should not be done at the husband’s expense; according to the husband’s lawyers, the husband will lose his “juridical advantages” if the Singapore courts decide on validity of the prenuptial agreement. Specifically, the husband’s lawyers contend that Singapore might not give the same effect to an prenuptial agreement as New York might. New York contracts, including prenuptial agreements are, according to the husband’s lawyers, accorded a “presumption of legality” where parties will be held to their bargain, except in “extraordinary circumstances” such as fraud. This is because New York has a strong public policy favouring the validity of contacts. Whereas in Singapore, prenuptial agreements do not enjoy such a “presumption of legality”. Instead, prenuptial agreements are only subject to the overall scrutiny of the Singapore courts. Fourth, the Singapore court is not ahead of the New York court in relation to the stage of proceedings in determining the wife’s allegation of fraud/misrepresentation. The interim judgment for divorce and the various interlocutory applications/appeals in the divorce suit do not relate to the wife’s allegations. In the result, the Singapore court is no closer than the New York court in determining the wife’s allegation of fraud and/or misrepresentation.

I reject the arguments made by the husband’s lawyers.

First, the determination of the validity of the prenuptial agreement cannot precede the discovery and interrogatories. The discovery and interrogatories will help determine if the husband has under-declared his assets and means....