Harjit Kaur d/o Kulwant Singh v Saroop Singh a/l Amar Singh

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Debbie Ong JC
• Judgment Date: 20 July 2015
• Neutral Citation: [2015] SGHCF 5
• Citation: [2015] SGHCF 5
• Docket Number: Registrar’s Appeal from the Family Courts No 15 of 2015
• Subject Matter: Conflict of Laws-Jurisdiction,Family Law-Financial relief after foreign divorce-Chapter 4A of the Women's Charter
• Defendant Counsel: Seenivasan Lalita (Virginia Quek Lalita & Partners)
• Plaintiff Counsel: Lee Ee Yang (Characterist LLC)
• Date: 20 July 2015
• Hearing Date: 24 April 2015,14 April 2015
• Published date: 28 July 2015

Debbie Ong JC: Introduction

Prior to 2011, where a marriage has been terminated by a foreign decree, the Singapore court could not deal with the post-divorce issues such as division of matrimonial assets or maintenance for the former spouse. This was because the powers of the court to divide matrimonial assets under s 112 of the Women’s Charter (Cap 353, 2009 Rev Ed) and to order maintenance under s 113 of the Women’s Charter were “ancillary” to its jurisdiction to grant a divorce, nullity or judicial separation. This was a significant lacuna in the law (see Debbie Ong, “Financial Relief in Singapore after a Foreign Divorce” [1993] Sing JLS 431).

Today, this lacuna has been addressed by statutory changes to the Women’s Charter. In 2009, the Law Reform Committee of the Singapore Academy of Law, in its report entitled Report of the Law Reform Committee on Ancillary Orders after Foreign Divorce or Annulment (July 2009) (“LRC Report”) recommended statutory changes to provide for the gap in this area. The recommendations were accepted. The Women’s Charter (Amendment) Act 2011 (Act 2 of 2011) extended the powers in ss 112, 113 and 127 of the Women’s Charter to marriages which have been dissolved, annulled, or where the parties to a marriage have been legally separated by means of judicial or other proceedings in a foreign country recognised as valid under Singapore law. The new s 121B of the Women’s Charter provides that parties in such situations may apply for financial relief under the new Chapter 4A of the Women’s Charter. The void has been filled by these provisions.

The present case was an appeal against the decision of the district judge (“the District Judge”) to dismiss an application for leave to apply for financial relief consequential on foreign matrimonial proceedings under s 121B of the Women’s Charter. I heard the appeal in April 2015 and dismissed it. As this appeal involved new provisions recently added to the Women’s Charter, I write these grounds of decision to explain how the provisions applied to the present case and my reasons for dismissing the appeal.

Facts

The appellant wife, referred to here as “the Appellant”, and the respondent husband, referred to here as “the Respondent”, married in Ipoh, Malaysia on 28 January 1995. They had no children. Their marriage subsequently broke down and the Respondent commenced divorce proceedings in Malaysia. The Malaysian court granted a decree nisi which was made absolute on 4 March 2014. On the same day, the Malaysian court made consent orders on financial issues reached by the agreement of the parties (“the Malaysian Order”). The orders were as follows: 1) the [Respondent] to transfer his undivided ½ share of the matrimonial property a Double Storey Terrace House known as No. 39, Jalan Indah 17/2, Taman Bukit Indah, 81200 Johor Bahru, Johor to the [Appellant] with no encumbrances after fully paying and discharging the existing charge on the said property. The transfer fees to be borne by the [Appellant]. 2) the [Respondent] and [Appellant] to sell the property in Singapore known as Block 461, Clementi Avenue 3, #06-608 Singapore (hereinafter referred to as the Singapore property) and the [Appellant] to execute all documents relating thereto. 3) the [Respondent] to pay the [Appellant] a sum of RM250,000-00 upon selling the said Singapore Property. 4) the [Appellant] to transfer her undivided ½ share of the property known as No. 23, Jalan Sila Harimau 1/3, Bandar Selesa Jaya, Skudai, Johor to the [Respondent] and the transfer fees to be borne by the [Respondent]. 5) in the interim the [Respondent] to pay a sum of SGD 750-00 a month to the [Appellant] as maintenance from the month of April 2014 until the tenants move out of the said Singapore property. 6) the [Respondent] to pay a sum of RM 1,000-00 to the [Appellant] as maintenance from the date of the tenants move out of the said Singapore property until full and final payment of RM 250,000-00 to the [Appellant].

The Singapore property was sold sometime in mid-2014, and there was a dispute between the parties over the release of the sale proceeds.

The Appellant filed an application under s 121B of the Women’s Charter to have the sale proceeds of the Singapore property divided by the Singapore court. The District Judge declined to grant leave for the Appellant to commence proceedings for financial relief as she had found that the Appellant had “not proven that there [were] substantial grounds for leave to be granted” (at p 22 of the District Judge’s grounds of decision (“GD”)).

The Appellant filed an appeal, and the matter came before me. I was informed, at the hearing before me, that the sale proceeds were held by the Respondent’s solicitors as stakeholders. It turned out that the parties had obtained an order earlier in April 2015 that the sale proceeds were not to be released pending the outcome of this appeal.

The parties’ arguments

The Appellant submitted that there was substantial ground for leave to be granted under s 121D of the Women’s Charter essentially because the Malaysian court had not ordered the division of the sale proceeds for the Singapore property. Counsel contended that the Malaysian Order could not have dealt with the sale proceeds from the Singapore property as “it is trite law that only the court where the immovable property is situated is competent to make in rem orders over immovable property” (at paras 22−27 of the Appellant’s Case). Further, it was argued that the terms of the Malaysian Order showed that the Appellant “had been inadequately provided for” and that they did not “deal with how the sale proceeds of the Singapore Property were to be distributed” (at paras 28−40 of the Appellant’s Case).

The Respondent argued, on the other hand, that the Appellant was attempting to get more out of the pool of matrimonial assets even though she had previously consented to the division of the matrimonial assets in the Malaysian Order. Counsel submitted that the Malaysian court was fully competent to deal with the matrimonial assets both in Malaysia and in Singapore. It was further submitted that the application was without merit and it is nothing more than the Appellant’s attempt to take a second bite at the cherry.

Financial relief consequential on foreign matrimonial proceedings under Chapter 4A of the Women’s Charter

The main objective of the new Chapter 4A of the Women’s Charter is to provide the court with powers to grant financial relief even though the marriage has been terminated by foreign matrimonial proceedings and there was no relief available or the relief granted by the foreign court was inadequate or not a fair one. It closes up the gap left by the ancillary character of post-divorce financial reliefs which resulted in the Singapore court having no power to grant them. If the foreign court has made some provision, the Singapore court ought to be cautious not to reopen the case and hastily adjudge the foreign order to be unfair. Due respect for comity of nations is important in this context, and the court should also be aware of the possibility that the applicant may be trying to get a second bite of the cherry.

Chapter 4A sets out the following regime for the application of financial relief after a foreign divorce, nullity or judicial separation. First, parties must satisfy the jurisdictional basis in s 121C. Next, leave of the...