Ho Ah Chye v Hsinchieh Hsu Irene

• Jurisdiction: Singapore
• Judge: K S Rajah JC
• Judgment Date: 25 February 1994
• Neutral Citation: [1994] SGHC 44
• Docket Number: Divorce Petition No 2335 of 1992
• Date: 25 February 1994
• Year: 1994
• Published date: 19 September 2003
• Plaintiff Counsel: Mok Wing Chee (Chung & Fong)
• Citation: [1994] SGHC 44
• Defendant Counsel: Respondent in person
• Court: High Court (Singapore)
• Subject Matter: Divorce,Whether against public policy,Recognition,Foreign decree,Family Law,ss 28, 86, 106 & 181 Women's Charter (Cap 353),Whether domicile of parties relevant

Cur Adv Vult

This uncontested petition raises important questions of law:

(1) The legal effect of registration in Singapore under s 182 of the Women`s Charter (Cap 353) of a marriage contracted in another jurisdiction.

(2) The legal consequences and effects of such a marriage being dissolved in America.

Facts

The petitioner, Ho Ah Chye a Singapore citizen, was a student in America and domiciled in Singapore when he married the respondent, a Taiwanese national, at the Civil Marriage Registry in New Jersey, United States of America, on 9 September 1980.

Registration

On 28 October 1980, the marriage was registered at the Registry of Marriages, Singapore, under the provisions of s 182 of the Women`s Charter which provides for the voluntary registration of marriages solemnized under any law, religion, custom or usage.

Section 182 reads:

(1) Notwithstanding section 181 the parties to a marriage which has been solemnized under any law, religion, custom or usage may, if the marriage has not been registered, apply to the Registrar in the prescribed form for the registration of the marriage.

The Registrar registered the marriage under the provisions of s 28 of the Women`s Charter which provides:

(1) The parties to a marriage which is not solemnized by the Registrar shall -

(a) appear before a Deputy Registrar within one month of the marriage;

(b) produce to the Deputy Registrar such evidence of the marriage either oral or documentary as the Deputy Registrar may require;

(c) furnish such particulars as may be required by the Deputy Registrar for the due registration of the marriage; and

(d) apply in the prescribed form for the registration of the marriage to be effected.

The Registrar of Marriages, Singapore, on being satisfied that the marriage solemnized in New Jersey USA was not void, issued a certificate of marriage. The certificate states that the marriage was solemnized at the Civil Marriage Registry in New Jersey and that it is a certificate of marriage issued pursuant to s 182, the then s 167 of the Women`s Charter (Cap 47, 1970 Ed) which reads:

(1) Notwithstanding the provisions of section 166 of this Act the parties to a marriage which has been solemnized under any law, religion, custom or usage may, if such marriage has not been registered, apply to the Registrar in the prescribed form for the registration of such marriage.

The petitioner is a businessman and is residing presently at 235 Rangoon Road, Singapore. The respondent is a programme analyst and is now residing at 17519 Thornlake Avenue Artesia, CA 90701, California, United States of America. The petitioner and respondent lived at various addresses and, lastly, at 235 Rangoon Road, Singapore after the marriage, but the duration of the stay in Singapore is not known. There are no children to the marriage.

Power of attorney

On 30 January 1987, the respondent executed a power of attorney which was a valid and irrevocable power for a period of six years from 30 January 1987. After leaving Singapore, the respondent wanted her application for a Housing & Development Board (`HDB`) apartment, and all affairs relating thereto, to be properly attended to during her absence. She, therefore, appointed the petitioner, her husband, as her true and lawful attorney in her name for the purposes of attending to the application and to do the various acts set out in the power of attorney which included entering into an agreement for the sale and purchase of the flat and raising and borrowing money in her name from the HDB, mortgaging her estate, signing applications and appropriate documents, accepting the keys to the apartment and paying and discharging such fees and payment as may be required by HDB for the appropriate disposal of her applicaton and so on.

The power of attorney was executed before a notary public in California, Los Angeles County on 30 January 1987, and was deposited in the Registry of the Supreme Court, Singapore, under s 48 of the Conveyancing and Law of Property Act (Cap 61) on 5 February 1987.

American divorce

On 18 March 1987, the petitioner received a letter from the respondent`s solicitors which reads as follows:

18 March 1987

Via air mail

Mr Ah Chye Ho

237 Rangoon Road

Singapore 0821

Republic of Singapore

Re: Dissolution of marriage

Our File No 86-1168

Dear Mr Ho,

My office represents your wife in her dissolution of marriage litigation. She is not asking for any money or property from you; she merely wants to obtain a divorce.

Enclosed are the following items:

(1) a copy of the summons and petition;

(2) original and one copy of notice and acknowledgement of receipt; and

(3) original and one copy of appearance, stipulation and waivers.

Please sign the original of the notice and acknowledgement of receipt and appearance, stipulation and waivers forms where marked with an `x`. Return the signed documents to me in the enclosed envelope, and keep the copies for your records. After the court enters a judgment of dissolution of marriage, I will send you a copy.

Very truly yours,

-sgd-

Stephen Scott King

for the firm

SSK/sm

Enclosures

cc: Ms Irene Hsu

The petitioner acknowledged receipt of the summons, the petition, blank confidential counselling statement and blank responsive declaration. He signed the documents to show that he was making a general appearance and that the parties stipulate that the American divorce proceedings may be tried as an uncontested matter, that the parties waive their rights to notice of trial, findings of fact and conclusions of law, motion for new trial, the right to appeal, and that the matter may be tried by a commissioner sitting as a temporary judge. He also agreed that the petitioner have her former name (Irene Hsu) restored to her and declared that there was no community property nor quasi-community property owned by the parties, and that each party waives his or her right to receive spousal support from the other party. The petition for dissolution of the marriage states that the parties, who were married on 9 September 1980, separated on 15 March 1986, and that the period between marriage and separation was five years and seven months. The respondent did not require confirmation of assets.

The parties made a declaration stating that there are no community or quasi-community assets and obligations subject to disposition by the court in the proceedings notwithstanding the application for the HDB flat. The petition for the dissolution of the marriage was based on irreconcilable differences, a ground not available under the Women`s Charter.

The declarations were made by the parties under penalty of perjury under the laws of the State of California that the declarations were true and correct on 9 January 1987 when the power of attorney was signed before the notary public.

The respondent in her confidential counselling statement (marriage) said that she understood that conciliation services were available to her through the court but did not desire counselling.

The court was supplied with a copy of the completed income and expense declaration and property declaration on the ground that a copy of request to enter into default including any attachments had already been mailed by the respondent`s attorney to the petitioner. Judgment was entered on 4 August 1987. A notice of entry of judgment and the dissolution of marriage on the ground of irreconcilable differences was posted to the petitioner and produced.

An application was made on 27 May 1987 to the Superior Court of California, County Court of Los Angeles to enter the default of the respondent who had failed to respond to the petition.

The petitioner did not consult any solicitor when he signed the documents and sent them back to the respondent but there is no dispute over the fact that the judgment was entered for the dissolution of the American marriage and that the American marriage was dissolved on the ground that there were irreconcilable differences with the petitioner`s consent.

Singapore divorce

On 12 September 1992, the petitioner filed a petition for divorce and prayed for the dissolution of the marriage on the ground that his marriage had irretrievably broken down by reason of the fact that the petitioner and the respondent had lived apart for a continuous period of at least four years immediately preceding the presentation of the petition, namely, from 15 March 1986, and the petitioner prayed:

(1) for the dissolution of his marriage;

(2) that the respondent be ordered to transfer to the petitioner absolutely such part of her interest in the property known as Blk 101 Bishan Street 12 #23-286, Singapore, without any consideration, and, in default of the respondent executing all necessary documents to give effect to the said transfer, the Registrar of the Supreme Court be hereby authorized to execute all such documents in the name for and on behalf of the respondent.

The petition came up for hearing before me as an uncontested petition on 8 April 1993 and I asked counsel whether there was an existing marriage before me that I could dissolve. Counsel relied on the word `registered` in s 86(1)(a) which reads:

(86) (1) Subject to subsection (2), the court shall have jurisdiction to entertain proceedings for divorce, presumption of death and divorce, judicial separation or nullity of marriage only if -

(a) the marriage has been registered under this Act, or is deemed to be registered under this Act, or was solemnized under a law which expressly or impliedly provides that the marriage shall be monogamous; and

(b) either of the parties to the marriage is -

(i) domiciled in Singapore at the commencement of the proceedings; or

(ii) habitually resident in Singapore for a period of 3 years immediately preceding the commencement of...