Family Law

Citation(2019) 20 SAL Ann Rev 477
Date01 December 2019
Published date01 December 2019

16.1 Two salient trends emerge from the decisions issued by the Singapore courts in 2019. First, cases with international elements are featured increasingly, with the Court of Appeal adjudicating its first case on financial relief consequential on foreign divorces and the High Court releasing a decision on sham marriages to obtain an immigration advantage. It is evident that the law is evolving to cater to the needs of a changing community in Singapore. There is a recognition of the increase in the number of Singapore citizens working abroad and marrying non-Singaporeans, which has prompted certain legislative changes that seek to provide appropriate remedies and effectively deal with new situations that arise. Secondly, there have also been decisions by the Family Justice Courts on the division of matrimonial assets and in particular, the applicability of the structured approach set out in ANJ v ANK1 (“AND”) to long marriages. In connection with this, there have been judicial and academic pushes towards equal division in long marriages. This edition of the review will also cover cases involving child issues, maintenance, and procedure.

I. International aspects of family law
A. Financial relief consequential on foreign divorces

16.2 In 2019, the Court of Appeal issued its first decision on financial relief consequential to foreign divorces. Chapter 4A of Pt X of the Women's Charter2 (“Chapter 4A”) allows Singapore courts to make orders on financial ancillary matters that arise from divorces granted by foreign courts. Chapter 4A was enacted by the Women's Charter (Amendment) Act 20113 to fill an existing lacuna in the law. Previously, the Singapore

courts did not have the power under s 112 of the Women's Charter to make financial ancillary orders pursuant to foreign divorces.

16.3 In UFN v UFM4 (“UFN”), the Court of Appeal commented on the need for the expanded power of the Singapore courts under Chapter 4A due to the increasing number of Singaporeans working and residing overseas and the increasing marriages between locals and foreigners. The Court of Appeal referred to the speech of the then Minister for Community Development, Youth and Sports, Dr Vivian Balakrishnan. Dr Balakrishnan had highlighted that Chapter 4A would help the groups of people who are made vulnerable by foreign divorces and who have a relevant connection to Singapore seek relief.5

16.4 The wife in UFN applied for leave of the court to obtain an order for financial relief under Chapter 4A to divide a property in the parties' joint names in Singapore. The wife had been granted a divorce by the Indonesian Supreme Court, and the husband was ordered to pay monthly maintenance for the children.6 The husband had also been convicted of domestic physical violence against the wife and the children, with the West Jakarta High Court sentencing him to an imprisonment term of four years and six months. At the time of the decision, the husband had not served his sentence.7

16.5 The Court of Appeal provided useful clarification on the operation of the provisions in Chapter 4A. It granted leave to the wife to apply for division of the jointly owned property in Singapore, and held that applications for financial relief under Chapter 4A comprise two stages. The first stage requires the applicant to obtain leave of the court. After leave is granted, the applicant may then proceed to the second stage, where he is able to make a substantive application for financial relief.8

16.6 Under the provisions of the Women's Charter, an applicant for leave would have to show that there was a foreign divorce, annulment or judicial separation recognised as valid in Singapore under s 121B of the Women's Charter. The applicant must also show that the Singapore court has jurisdiction over the matter under s 121C, and that there is “substantial ground for the making of an application” under s 121D(2). The Court of Appeal made clear that “substantial ground” is established if it would prima facie be appropriate for the Singapore court to grant

relief, having regard to the factors set out in s 121F and bearing in mind the purpose of the leave mechanism.9

16.7 A view expressed by the Court of Appeal was that the first stage involving the application of leave ought to be heard on an ex parte basis as opposed to inter partes. At the time of the hearing, the Family Justice Rules 201410 (“Family Justice Rules”) stipulated that unless the court otherwise directs, the originating summons for leave and the supporting affidavit must be served on the defendant at least five clear days before the date of the case conference or hearing.11 This would lead to a defendant mounting two rounds of possibly duplicative arguments at both the leave and substantive hearing stages relating to matters of foreign matrimonial proceedings, jurisdiction and the factors set out in s 121F of the Women's Charter on whether Singapore is an appropriate forum for the application for financial relief.12 Such a process would invariably add to both the parties' and Judiciary's cost and time in resolving an application for financial relief under Chapter 4A.13 The Parliament has since responded to the suggestions by the Court of Appeal in UFN. By way of the Family Justice (Amendment No 3) Rules 201914 that came into force on 29 November 2019, the procedure for the seeking of leave at the first stage of Chapter 4A proceedings has been amended to an ex parte one.

16.8 At the stage of the initial application for leave, an applicant must make proper and candid disclosure, establish that the jurisdictional hurdles are crossed, and show that there is substantial ground for the making of the application. The approach put forward by the Court of Appeal strikes an appropriate balance between according fairness to both parties on the one hand and, on the other hand, ensuring that applications are dealt with expeditiously.15

16.9 Previously, in Harjit Kaur d/o Kulwant Singh v Saroop Singh a/l Amar Singh,16 Debbie Ong JC (as she then was) had expounded on the purpose of the leave mechanism to serve as a filter to sieve out unmeritorious cases. The leave mechanism was to be considered in light of the objective of Chapter 4A to alleviate injustice where one or both parties are sufficiently connected to Singapore, yet had no real opportunity

to pursue financial relief in foreign matrimonial proceedings, or where no or inadequate provision had been provided by the foreign court.17

16.10 Bearing this in mind, the court must consider the factors in s 121F of the Women's Charter and determine whether prima facie, Singapore is an appropriate forum for the application.18 The threshold is not meant to be a high one, which is clear from the manner in which the factors in s 121F were applied by the Court of Appeal in UFN19 in granting the wife leave to apply for financial relief. In finding that it is prima facie appropriate for a Singapore court to grant the applicant financial relief in UFN, the Court of Appeal placed due weight on the fact that the property that was the subject of the application was in Singapore and that the parties had a real connection to Singapore. The parties and the children were permanent residents of Singapore, and the family had been living in the property for several years.20

16.11 The Court of Appeal also considered the extent to which the Indonesian divorce order was fair and practical and the wife's reasons for not obtaining foreign relief. It was found that the emphasis ought to be on the applicant's reasons for not applying for or exhausting foreign remedies before applying to the Singapore courts under Chapter 4A. The degree of scrutiny on these reasons would vary according to the parties' connection to the jurisdiction in which the applicant seeks relief.21 This formulation is a sensible one, as the more connected an applicant is to Singapore, the less likely that he or she will pursue financial relief in a foreign court and bear the risk of enforcement of the foreign court order in Singapore.

16.12 Once leave has been granted, the applicant may proceed to the second stage of the Chapter 4A proceedings and apply for substantive financial relief. Before making an order for financial relief, the Singapore court will have to analyse the factors in s 121F in detail, and consider whether it would be appropriate for the Singapore court to grant the relief.22 At this stage, the defendant is entitled to make substantive arguments on the full merits of the case.23

16.13 Under s 121G of the Women's Charter, the Singapore courts “may make any one or more of the orders which it could have made under s 112, 113, or 127(1) in the like manner as if a decree of divorce, nullity or judicial separation in respect of the marriage had been granted in Singapore”. The objective of Chapter 4A is to mitigate disadvantage and not to give an extra advantage.24 However, it is conceivable that there may be litigants who attempt to use any perceived or concrete differences in the various family law regimes to gain a jurisdictional advantage in the financial aspects of matrimonial proceedings. For example, one may envisage a situation where the parties are domiciled in the UK but have a connection to Singapore. Given the distinctive approaches towards the treatment of prenuptial agreements in these jurisdictions, a party may adopt a litigation strategy of obtaining a divorce in the English Courts yet seek an order for division of matrimonial assets from the Singapore courts.25

16.14 Section 121F(2)(f) of the Women's Charter is especially relevant with regard to minimising such strategic treatment of Chapter 4A by parties that are connected to more than one jurisdiction. It states that the court shall have regard to:

… any right which the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any foreign country and if the applicant has...

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