Lee Mei-Chih v Chang Kuo-Yuan

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 03 September 2012
• Neutral Citation: [2012] SGHC 180
• Court: High Court (Singapore)
• Docket Number: Divorce No 4945 of 2011 (RAS No 56 of 2012)
• Year: 2012
• Published date: 05 September 2012
• Hearing Date: 25 July 2012
• Plaintiff Counsel: Sim Bock Eng and Lam Shen Lin (WongPartnership LLP)
• Defendant Counsel: L Kuppanchetti and Wong Kum Fu Vincent (ATMD Bird & Bird LLP)
• Subject Matter: Family Law,Matrimonial Proceedings,Jurisdiction
• Citation: [2012] SGHC 180

Choo Han Teck J:

This is an appeal against the District Judge’s decision dismissing Divorce Suit No 4945 of 2011 on the ground that the Singapore courts do not have jurisdiction to hear the matter. The plaintiff-appellant (wife) and the defendant-respondent (husband) are not Singaporean citizens. They are also not domiciled in Singapore. The plaintiff is a citizen of both Taiwan and New Zealand, while the defendant is a citizen of Taiwan. The parties were married in Taiwan in 1994 and the marriage was also registered in New Zealand in 1995. There is a child to the marriage, a 16-year old daughter, who was born in New Zealand. The daughter is a citizen of both Taiwan and New Zealand. She is currently residing in New Zealand and attends school there. The only matrimonial asset in Singapore is a condominium property located at Grange Road.

Pursuant to s 93(1)(b) of the Women’s Charter (Cap 353, 1985 Rev Ed), the Singapore courts will have jurisdiction to hear the matter if either party to the marriage was “habitually resident in Singapore for a period of three years immediately preceding the commencement of the proceedings”. Since it is not disputed that the defendant was never habitually resident in Singapore, it falls on the plaintiff to prove that she was “habitually resident” in Singapore specifically from 14 October 2008 to 14 October 2011 (ie, the date that the divorce petition was filed) (“the Qualifying Period”).

To understand what constitutes habitual residence, it is necessary for me to firstly briefly trace the development of s 5(4) of the English Domicile and Matrimonial Proceedings Act 1973, which is in pari materia with s 93(1)(b) of the Singapore Women’s Charter. Section 5(4) of the English Domicile and Matrimonial Proceedings Act 1973 provides as follows: (4) The court shall have jurisdiction to entertain proceedings for death to be presumed and a marriage to be dissolved if (and only if) the petitioner — (a) is domiciled in England and Wales on the date when the proceedings are begun; or (b) was habitually resident in England and Wales throughout the period of one year ending with that date.

[emphasis added]

Before s 5(4) of the English Domicile and Matrimonial Proceedings Act 1973 was enacted, the governing law on this jurisdictional issue was as originally enacted in s 1 of the Law Reform (Miscellaneous Provisions) Act 1949 and re-enacted in s 18 of the Matrimonial Causes Act 1950 and s 40 of the Matrimonial Causes Act 1965:

1.— The High Court in England shall have jurisdiction in proceedings by a wife for divorce, notwithstanding that the husband is not domiciled in England, if –

(a) the wife is resident in England and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings; (b) the husband is not domiciled in any other part of the United Kingdom ...

[emphasis added]

I agree with the view of Thorpe LJ in Ikimi v Ikimi [2001] EWCA Civ 873 at [21] to [23], that the change in the terminology from “ordinarily resident” to “habitually resident” in the English provisions was in effect merely cosmetic: 21 In the late 1960s the court's jurisdiction in divorce still depended largely upon the domicile of the husband. How to further extend it was the subject of the Law Commission's Report on Jurisdiction in Matrimonial Causes (1972) (Law Com No 48). In introducing the problem the report drew attention to the increase of cases with a foreign element resulting from greater international mobility. The report defined the task thus:

"The job of law reform is therefore to formulate bases of jurisdiction which meet the interests of the state and of those who genuinely 'belong here', without allowing access to our courts to transients,...