Family Law

• Citation: (2000) 1 SAL Ann Rev 180
• Published date: 01 December 2000
• Date: 01 December 2000

Divorce

Stay of divorce and custody proceedings

In Low Wing Hong v Kelso Sharon Leigh[2000] 1 SLR 173, the parties were married in Hong Kong in 1994 and had a son the following year. Problems subsequently developed in the marriage caused by the husband”s propensity to violence. In March 1998 the couple had an argument while on holiday in Australia. The wife, an Australian citizen, took out a protection order in the Australian Court and refused to return to Singapore with their son. She established a home with her son in her mother”s house in Australia. In August 1998, when informed by her husband that he intended to visit them, she feared that their son might be taken away and applied for a residency and custody order in October 1998. The husband filed the petition for divorce in December 1998 and applied for an interim custody order. The court had to decide whether Singapore or Australia was the more suitable forum in the circumstances.

The court applied the principles in De Dampiere v De Dampiere[1987] 2 WLR 1006 which clarified Lord Diplock”s speech in The Abidin Daver[1984] AC 398 and held that it was clear from the authorities that it had to examine all the facts of the case to decide which was the more appropriate forum to determine the case. The learned judge observed that the son was well settled in Australia, there was a temporary residence order in favour of his mother in Australia, it was the mother who first made the application for residency and that as the mother and child were physically in Australia, it would be much more convenient for the Australian Court to make and enforce the orders. Under the circumstances, the Brisbane Family Court was the more appropriate forum for the purpose of deciding on the issue of custody and residence. As such, it decided that the proceedings for custody should be stayed.

This case is significant as it has adopted De Dampiere which applied Spiliada principles (Spiliada Maritime Corp v Cansulex[1987] AC 460) governing commercial disputes to matrimonial disputes. De Dampiere was governed by the UK Statute ie the Domicile and Matrimonial Proceedings Act 1973, which provides that English proceedings may be stayed if it appears that the balance of fairness between the parties is such that it

would be appropriate for the proceedings in another jurisdiction to be disposed of before further steps are taken in the proceedings in England. Lord Templeton in De Dampiere held (at 1011) that the “common law test of justice as between plaintiff and defendant in commercial disputes corresponds to the statutory test of fairness as between husband and wife in matrimonial disputes”. Lord Goff of Chieveley was of the opinion that the forum non conveniens principle is “as desirable in cases arising under the statute as it is in cases arising under the inherent jurisdiction of the court” (at 1018). While it was clear from De Dampiere that in England the statutory test in matrimonial proceedings is similar to the Spiliada principles, the common law position in Singapore was less clear. Now, Low Wing Hong has applied the Spiliada principles to matrimonial proceedings in Singapore.

The court further held that the divorce proceedings should also be stayed. The judge noted that while the fact that the matrimonial assets were mostly in Singapore would tilt the balance in favour of the Singapore court, the other factors overwhelmed this factor. Further, it was important that the court hearing the divorce and ancillary matters should also consider the issue of custody. Besides, if there were problems with enforcement of orders, it would be the mother, who was seeking the stay, who would be saddled with the difficulties of enforcement.

It has been pointed out elsewhere (see Ong, “Financial Relief in Singapore After a Foreign Divorce”[1993] SJLS 431) that a “gap” in the law arises in cases where there are assets in Singapore and a foreign divorce has been obtained. This is because under private international law rules, generally only the court of the situs is competent to make in rem orders over immovable property (see Re Trepca Mines[1960] 1 WLR 1273). Further, short of evidence of how Australia would have dealt with property in Singapore, there is no assurance that a foreign court such as the Australian court would have jurisdiction to deal with immovable property outside its jurisdiction (see Torok v Torok[1973] 3 All ER 101). The Singapore court cannot subsequently exercise its powers to divide matrimonial assets under s 112 of the Women”s Charter (Cap 353, 1997 Ed) since the powers contained therein are ancillary to the court”s jurisdiction when granting divorce or nullity decrees. As the marriage would have been terminated by the foreign decree of divorce, the Singapore court can no longer grant a divorce and thereby exercise its powers to divide matrimonial assets. While it may be suggested in Low Wing Hong that the mother who wanted a stay was prepared to face the difficulty of enforcement of ancillary financial orders, the same could not be said of the husband who wanted the case heard in Singapore. It is unclear what the matrimonial assets in the case were and who owned the assets.

In Marilyn June Shearer v Michael Howard Shearer (Divorce Petition 3348/1999, unreported decision dated 5.7.2000), the parties who were both

New Zealand nationals, were married in New Zealand in 1981. They had lived in Singapore since 1987. Their daughter was born in 1986. The parties had lived apart since September 1998 and the petitioner wife commenced divorce proceedings in December 1999 on the ground that the marriage had broken down irretrievably due to the husband”s adultery. The respondent husband applied for a stay of proceedings in favour of proceedings to be commenced in New Zealand in September 2000. The court noted that the respondent did not dispute that the Singapore court had jurisdiction to hear the case but claimed that the New Zealand court was the more appropriate forum. The court held that the burden was on the respondent to prove that the New Zealand court was the competent and appropriate forum.

The respondent husband had four main arguments why New Zealand was the more appropriate forum:

1. (1) The husband claimed that a stay would be in the best interests of the child as she would be affected by the nature of the parties” divorce proceedings in Singapore. The divorce if sought in New Zealand would be based on a “neutral ground” of two years” separation and would spare the child the trauma of her parents” divorce based on the adulterous affair.

To this claim, the court remarked that the husband lacked consideration for the child”s best interests in the first place when he committed the adultery. His claim that the child should be spared details of the adulterous affair “does not hold water” as he had in fact introduced the co-respondent to the child and brought the child to stay with him and the co-respondent who cohabitated with him without considering that it would traumatize the child. The learned judge found that he was “merely relying on his claim that a no-fault divorce in New Zealand would be in favour of the child, to serve his own ends and selfish interests”. Further, the husband”s legal liability towards the child for maintenance upon a divorce in New Zealand would be NZ$750 per month, far less than what he was already paying. As such, it appeared less advantageous and not in the child”s interests for the divorce to be heard in New Zealand.

1. (2) The husband claimed that the New Zealand courts are better suited to evaluate and monitor the changing needs of the child, whom he alleged, planned to return to New Zealand.

The court observed that there was no clear evidence that the child intended to return to New Zealand.

1. (3) The respondent husband then alleged that the wife was “shopping for a forum” as the laws of New Zealand were less favourable to her, especially since she would not normally obtain maintenance as a wife in New Zealand. Further, she wanted child maintenance.

The court”s response to this allegation was that the same could be said of the husband, who was “shopping for a forum” more favourable to him; and under the circumstances. New Zealand laws were more favourable to him.

1. (4) The respondent also alleged that there was a double-storey property in New Zealand which would be better dealt with in the New Zealand courts.

The court held that this was not an obstacle to having the case heard here as the Reciprocal Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Ed) enabled a Singapore court order to be enforced outside its jurisdiction.

The court”s analysis of the factors led to the conclusion that Singapore was the more appropriate forum and it refused to stay the proceedings:

“The Respondent”s present application for stay of proceedings seem to be a delay tactic on his part to coerce the Petitioner to return to New Zealand to petition for a divorce there so that it would be more advantageous to him. The Petitioner”s hardship would only be aggravated if she is required to petition for a divorce in New Zealand when both the Respondent and she are currently living in Singapore … no proceedings can in any event he commenced in New Zealand until after September 2000 … Bearing in mind the sizeable number of expatriate families seeking to establish themselves in Singapore, the inevitable hardship that they might face if their cases are not heard in Singapore courts despite their having satisfied the statutory provision in s 93(1)(b). … unless there are very good reasons for doing so. the courts” inherent jurisdiction should not be exercised to override the express statutory provision in s 93(1)(b) of the Women”s Charter.”

Although authorities on stay of proceedings were not cited in the judgment, the court has rightly approached the issue by examining whether Singapore or New Zealand was the appropriate...