District Judge Cheryl Koh:
Introduction
This is the Plaintiff’s application filed pursuant to Section 121D of the Women’s Charter (Cap. 353, Rev. Ed. 2009) (the “Women’s Charter”) for leave to file an application for financial relief after a foreign divorce. On 5 February 2014, I dismissed the Plaintiff’s application with costs. The Plaintiff has filed an appeal against the whole of my decision.
Background Facts
Parties
The Plaintiff is a 48 year old housewife and a citizen of the People’s Republic of China (“China”) and a Singapore Permanent Resident. The Defendant is a 49 year old businessman and also a citizen of China and a Singapore Permanent Resident. On 29 September 1987, parties registered their marriage in Shuidong, Guangdong Province, China. Parties have two children from the marriage, namely, Zhang Leixin, a 25 year old male who is currently working for the Defendant, and Zhang Shenhua, a 19 year old female who is currently studying in Nanyang Polytechnic in Singapore. The Plaintiff’s evidence is that she moved from China to Singapore in 2002 with the children, whilst the Defendant had remained in China to take care of his businesses and occasionally returned to Singapore to visit them. Shortly after arriving in Singapore, they bought and moved into a home in Singapore known as 39 Marine Parade #12-02 Parkway View Singapore 449265 (the “Singapore Property”).
Agreements relating to divorce, custody of children, maintenance and division of matrimonial assets
The Defendant’s evidence is that prior to 13 July 2010, he had one day noticed the Plaintiff furtively messaging on her handphone. He then snatched her handphone from her and discovered from the messages that she was having an affair with their driver. The Plaintiff sought his forgiveness but said she wanted a divorce from him. On 13 July 2010, parties entered into a divorce settlement agreement and two property division agreements, the salient terms of which are as follows:- clause 1 of the divorce settlement agreement states that the Plaintiff and the Defendant would mutually divorce each other and that the divorce proceedings would be commenced and completed in the Civil Affairs Bureau in China; clause 2 of the divorce settlement agreement provides that the custody of the children of the marriage would be given to the Defendant and that he would be solely responsible for the maintenance of the children in perpetuity; clause 3 of the divorce settlement agreement states that all the assets of the marriage including landed property, cars, shares in companies, bonds debentures, loans and deposits would be given to the Defendant. In return for this arrangement, the Defendant would be responsible for all the debts and liabilities incurred by parties and the Plaintiff would not be responsible for the same; clause 5 of the 1st property division agreement states that if there are any disputes arising between parties, the parties willing submit the same to the Maonan Court for adjudication; clause 3(2) of the 1st property division agreement provides that the ownership of the property located at No. 201, Block 34, Tianjing Shanzhuang, Longgang District, Shenzhen City (the “China Apartment”) shall be transferred from the Plaintiff’s name into the Defendant’s name; clause 3(1) of the 1st property division agreement provides that the shop at 1st floor, Zhonghangyuan, Zhenhua Road, Futian District, Shenzhen City (“the China Shop”) shall be transferred from the Plaintiff’s name into the Defendant’s name and clause 3(1) of the 2nd property division agreement provided that the China Shop would be given to the son Zhang Lexin; clause 6 of the 2nd property division agreement provided that the Plaintiff agreed to give up her claims in respect of the property located at 39 Marine Parade Road #12-02 Singapore (the “Singapore property”) and give it to their son.
The Plaintiff’s evidence is that she did not commit any adultery and it was in fact the Defendant who had been keeping a second wife for more than 10 years. The Defendant saw her messages exchanged with a male friend and became angry with her but did not mention divorce. On 15 July 2010, the Defendant used physical violence on her and forced her to sign the Agreements. The Agreements were therefore signed under duress and are void and invalid.
Matrimonial proceedings in China
The Defendant’s evidence is that the Plaintiff avoided him after signing the Agreements and he even came to Singapore to look for her but she refused to see him. On 28 October 2010, the Plaintiff filed for divorce in the People’s Court of Maonan District, Maoming City, Guangdong Province in China (the “Maonan Court”). Under a divorce order dated 30 June 2011 made in the Plaintiff’s absence, the Maonan Court ordered that: the divorce between parties was granted; the Defendant was to raise the two children of the marriage, Zhang Leixin and Zhang Shenghua, on his own; the Defendant was to be given the China Shop and the Plaintiff to be given the China Apartment; and the Defendant was to be responsible for the joint debts incurred by parties during the course of the marriage, (the “China Divorce Order”).
The Plaintiff’s evidence is that the China Divorce Order was obtained by the Defendant without her knowledge and in her absence. The China Shop was originally held in her sole name and valued at 9,730,000.00 yuan (about S$1,917,577.00). Up to December 2012, she had been receiving rental from the China Shop of about 97,000.00 yuan (about S$19,124.00). 80% of the interest in the China Apartment was originally held in her name and valued at 137,062.00 yuan (about S$27,012.00). She only learnt of the divorce proceedings in China when in December 2012 she stopped receiving rental from the China Shop and discovered that the Defendant had transferred the China Shop to his sole name pursuant to the China Divorce Order.
Subsequent to the China Divorce Order, protracted proceedings took place in China, a summary of which is provided as follows: on 25 January 2013, the Plaintiff successfully applied for an injunction to stop the Defendant from dealing with the China Shop; on 4 February 2014, the Plaintiff applied for the orders relating to the property under the China Divorce Order to be set aside; on 1 March 2013, the Plaintiff successfully obtained an order for the retrial of orders 2, 3, 4 and 5 of the China Divorce Order (which relate to the issue of the children, the China Shop, the China Apartment and parties’ debts); on 21 March 2013, the Defendant applied to the Maonan Court for a determination of the distribution of the net sale proceeds of 39 Marine Parade Road #12-02 Singapore and that the rest of the matrimonial assets in Singapore. In this regard, the Plaintiff acknowledges that the Defendant did submit an application to include this additional claim but that the application has not been processed and not served on her or her Chinese lawyer. She further understands from her Chinese lawyer that under procedural laws of China, a re-trial cannot include additional claims but may only deal with the scope of the original application; on 11 April 2013, the Plaintiff applied to the Maonan Court to object to the jurisdiction of the Maonan Court. On 28 April 2013, the Plaintiff successfully obtained an order quashing orders 2, 3, 4 and 5 of the China Divorce Order and transferring the matter from the Maonan Court to the Shenzhen City court for disposal. The Defendant’s appeal against this decision was dismissed; on 11 April 2013, the Plaintiff separately applied to the Shenzhen City court to set aside the Agreements on the basis that signatures to the said Agreements were obtained by the use of physical violence and to divide the matrimonial assets. By way of a judgment dated 20 August 2013, the Shenzhen City court dismissed her application and upheld the validity of the Division of Matrimonial Agreements. The Plaintiff is appealing the decision.
Proceedings in Singapore
On 15 February 2013, the Plaintiff filed the present application in Singapore for leave to apply for financial relief in Singapore, for interim maintenance and for an injunction.
At a pre-trial conference on 17 April 2014, the pre-trial conference judge indicated to parties that they should focus on the issue of whether leave under section 121D of the Women’s Charter should be granted, further the applications for interim maintenance and injunction should be dealt with separately from the leave application. As such, parties proceeded strictly on the issue of leave under section 121D of the Women’s Charter before this Court.
The law
Chapter 4A of Part X of the Women’s Charter
Chapter 4A of Part X (Sections 121A to 121G) of the Women’s Charter set out the provisions in relation to financial relief in Singapore consequential on foreign matrimonial proceedings. These provisions were recently enacted via the Women’s Charter (Amendment) Act 2011 (No. 2 of 2011).
Under the doctrine of natural forum, the Singapore courts will stay matrimonial proceedings commenced in Singapore if there is a clearly more appropriate forum available elsewhere. Matrimonial proceedings that are stayed in favour of foreign proceedings are only suspended, and the jurisdiction may be revived if the stay is lifted for any reason. However, that jurisdiction can no longer exist once a foreign status decree is obtained and is recognised in Singapore, so that there is no longer a marriage for the Singapore court to deal with. In that event, the Singapore court will have no power to grant ancillary orders such as maintenance and division of matrimonial assets.
With the new Chapter 4A of Part X of the Women’s Charter, however, those made vulnerable by foreign matrimonial proceedings and who have a relevant connection with Singapore may nonetheless seek financial relief in Singapore....
