Azs v Azr

• Jurisdiction: Singapore
• Judgment Date: 09 May 2013
• Date: 09 May 2013
• Docket Number: Divorce No 3090 of 2012 (Registrar's Appeal Subordinate Courts No 212 of 2012)
• Court: High Court (Singapore)

AZS and another

Plaintiff

and

AZR

Defendant

[2013] SGHC 102

Andrew Ang J

Divorce No 3090 of 2012 (Registrar's Appeal Subordinate Courts No 212 of 2012)

High Court

Civil Procedure—Stay of proceedings—Forum non conveniens—French parties who married and signed pre-nuptial agreement in France now resident in Singapore—Divorce petitions filed in Singapore and France—Whether divorce petition in Singapore ought to be stayed—Whether France was clearly or distinctly more appropriate forum than Singapore—Whether any special circumstances warranting refusal of stay

The appellant husband (‘the Husband’) and the respondent wife (‘the Wife’) were married in France in 2000. Prior to their marriage, the parties signed a pre-nuptial agreement in France that made numerous references to the French Civil Code. They relocated to Singapore in 2006 after having lived in various countries due to the Husband's work. A son was born to them in Singapore in 2010; the parties and the son are all French nationals. The Husband currently held an employment pass in Singapore while the Wife and the son held dependant passes. They had no immovable property in Singapore and only possessed immovable property in France and China.

The Husband commenced divorce proceedings in France in April 2012. The wife filed for divorce in Singapore in June 2012. Interim orders on maintenance and custody arrangements were then made by the Singapore courts pending the ancillary matters hearing.

The District Court dismissed the Husband's application for a stay of the Singapore proceedings on the ground of forum non conveniens. The Husband appealed.

Held, allowing the appeal:

(1) The main subject matter in dispute was the pre-nuptial agreement. The Husband stated that he had asked the French court to ‘mirror’ the Singapore interim orders and not to take jurisdiction over the son, leaving only the division of matrimonial assets to be adjudicated in France. The French court hearing the divorce had issued a non-reconciliation order (‘the French NRO’), stating that the Singapore interim order on maintenance would be provisionally upheld and that the French court would not take jurisdiction over custody and maintenance issues vis-à-vis the son. While the parties were mostly in agreement on the custody arrangement, the Wife was contesting the validity and voluntariness of the pre-nuptial agreement: at [7], [8] and [17] to [19].

(2) Looking at the various factors in totality, France was clearly the more appropriate forum. Although the parties' residence in Singapore favoured the hearing of custody and maintenance matters in Singapore, the other factors in favour of France as the appropriate forum were overwhelming. Adjudication on the pre-nuptial agreement would likely require proof of French law and the calling of witnesses in France. The parties had immovable property in France but not Singapore. The Wife had also apparently submitted to the jurisdiction of the French court and its application of French law to the divorce in the French NRO proceedings. The doctrine of lis alibi pendens thus came into play as another factor in favour of a stay as the Wife seemed to be pursuing concurrent divorce proceedings in both France and Singapore: at [20] to [23].

(3) There were no special circumstances warranting refusal of a stay. As stated by the Husband, the Wife was not prejudiced by the divorce proceedings taking place in France given that she was represented by French counsel, had the benefit of translation services and also given the Husband's undertaking to bear part of her litigation expenses: at [26] and [27].

BDA v BDB [2013] 1 SLR 607 (folld)

Eng Liat Kiang v Eng Bak Hern [1995] 2 SLR (R) 851; [1995] 3 SLR 97 (folld)

Low Wing Hong Alvin v Kelso Sharon Leigh [1999] 3 SLR (R) 993; [2001] 1 SLR 173 (folld)

Mala Shukla v Jayant Amritanand Shukla [2002] 1 SLR (R) 920; [2002] 3 SLR 295 (folld)

Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (folld)

TQ v TR [2009] 2 SLR (R) 961; [2009] 2 SLR 961 (refd)

VH v VI [2008] 1 SLR (R) 742; [2008] 1 SLR 742 (folld)

Gulab Sobhraj and Low Wan Kwong Michael (Crossbows LLP) for the defendant/appellant

Ferlin Jayatissa and Bernard Chiu (Lexcompass LLC) for the plaintiff/respondent.

Andrew Ang J

Introduction

1 This was an appeal by the defendant husband (‘the Husband’) against the district court's decision to dismiss the Husband's application for a stay of divorce proceedings filed by the plaintiff wife (‘the Wife’) on 26 June 2011 on the ground of forum non conveniens. After hearing the parties, I allowed the appeal on 12 April 2013. I now give the grounds for my decision.

Material facts

2 The parties were married in France in 2000. The parties and their son are French nationals, the Wife having become a French national in 2006. The Husband and the son also have Swedish nationality.

3 The parties presently reside in Singapore, although they are not permanent residents. The Husband currently holds an employment pass in Singapore while the Wife and the son hold dependant passes. Before the parties relocated to Singapore in 2006, they had lived in several different countries where the Husband worked. Of all these countries, the parties have stayed in Singapore for the longest period of time. The son was born in Singapore in 2010 and has resided in Singapore ever since, with a few visits to Paris and Beijing (China).

4 Prior to their marriage, the parties signed a pre-nuptial agreement in France. This pre-nuptial agreement was not expressly governed by French law, but made numerous references to the French Civil Code. Significantly, the pre-nuptial agreement provided for the maintenance of separate property by each spouse, ie, each spouse was entitled to keep the property that he or she subsequently acquired. It was not disputed that the parties had no immovable property in Singapore; they only possessed immovable property in France and China.

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