Re Tan Meng Ling

• Jurisdiction: Singapore
• Judge: May Loh
• Judgment Date: 18 July 2005
• Neutral Citation: [2005] SGDC 155
• Year: 2005
• Published date: 22 July 2005
• Citation: [2005] SGDC 155
• Plaintiff Counsel: Cheryl Yeo (Tay Lye and Ngaw Partnership)
• Court: District Court (Singapore)

18 July 2005

District Judge Mdm May Loh

Background

1 The plaintiff, one Tan Meng Ling, applied by ex-parte originating summons for six declarations relating to her marital status and divorce proceedings in the Family Court of Singapore (‘the Singapore courts’). The declarations are curiously worded and would be best explained by setting out the circumstances giving rise to the application. The first set of facts is with regard to divorce proceedings involving Mdm Tan and one Alan Bounaparte (‘Bounaparte’) and the next set of facts concern Mdm Tan’s marriage to an American citizen, one Jim A. James (‘James’).

2 Mdm Tan and Bounaparte were married in Singapore on 9 February 1981. The only child to the marriage was born on 2 February 1984. Mdm Tan moved out of the matrimonial home in October 1997 and petitioned for divorce in Divorce Petition No. 2195 of 2000 on 12 July 2000. Bounaparte entered appearance but did not contest the petition. A Decree Nisi was granted to Mdm Tan on 8 September 2000.

3 On 6 December 2000, Mdm Tan’s counsel contacted Bounaparte to confirm he had no objections to an application for the Decree Nisi Absolute to be issued. Her counsel then informed Mdm Tan that an application for the Decree Nisi Absolute had been made the next day on 8 December 2000. Mdm Tan married James in Ohio, U.S.A. on 28 December 2000.

4 In actual fact, an application for the Certificate Making the Decree Nisi Absolute (‘Decree Absolute’) was only properly filed on 3 January 2001. The Decree Absolute was issued on 9 January 2001.

5 Thereafter James petitioned the United State’s Citizenship and Immigration Service (USCIS) for Mdm Tan to migrate to the United States as his spouse. Although the immigration petition was initially approved, the approval was revoked after the petition was refererd to the American Consulate in Singapore. (The various American government departments involved in the petition and appeal process shall collectively be referred to as ‘the U.S. authorities’). James, as the plaintiff in Mdm Tan’s immigration petition, was informed by the U.S. authorities that they were concerned with the date of the Decree Absolute for immigration purposes and were of the view that Mdm Tan’s marriage to Bounaparte had not legally terminated when Mdm Tan married James. The latter appealed to the U.S. authorities against this decision and indicated that the matter was being referred to the Singapore courts. In reply to James’ notice of appeal, the U.S. authorities directed that James was to “submit the declaration he asserts he has requested (from the Singapore courts) which would state their determination under Singaporean law of the actual date that the beneficiary was permitted to remarry.” (Letter from U.S. authorities dated 22 October 2004 exhibited as ‘TML-4’ in plaintiff’s affidavit filed 12 November 2004).

Proceedings in the Singapore courts

6 Therefore it was to persuade the U.S. authorities that her marriage to Bounaparte had legally terminated when she married James on 28 December 2000, that Mdm Tan applied by ex-parte originating summons to the Family Court for:

“… … a declaration that:

(a) A Decree Nisi operates as a decree of divorce;

(b) On the facts of the present case, that the Respondent in Divorce Petition No. 2195 of 2000 i.e. Alan Bounaparte had consented to the granting of the Decree Nisi;

(c) On the facts of the present case, the time for Alan Bounaparte to have applied to rescind the Decree Nisi had expired as at the date of the Applicant’s marriage in Ohio to Jim A. James;

(d) On the facts of the present case, as at the date of the Ohio marriage between the Plaintiff and Jim A. James, Alan Bounaparte had consented to the extraction of the Certificate Making the Decree Nisi Absolute;

(e) On the facts of the present case, the Singapore marriage between the Plaintiff and Alan Bounaparte was effectively at an end as at the date of the Ohio marriage between the Plaintiff and Jim A. James; and

(f) Upon the issue of the Certificate Making the Decree Nisi Absolute, the date of the Plaintiff’s divorce is the date of the grant of the Decree Nisi i.e. 8 September 2000.”

7 On 6 Dec 04, I declined to grant the declarations sought and made no order on the application. Unfortunately Mdm Tan’s counsel, Ms Yeo, laboured under the mistaken impression that judgment had been reserved for some months after the 6 Dec 04 hearing. This was partly because, as recorded in the Notes of Evidence, I had expressed a possibility of releasing written grounds for my decision. The matter was not set straight until Ms Yeo wrote in and I saw her in May 05. In view of the unique arguments put forth and the the turn of events, I have obliged Ms Yeo’s request for written grounds.

The nature of the declarations

8 My view was that the application was fundamentally flawed on various points. Firstly, this was an application by originating summons. With reference to the Rules of Court on mode of beginning civil proceedings, Order 5 rule 4(2) reads:

“(2) Proceedings —

(a) in which the sole or principal question at issue is or is likely to be, one of the construction of any written law or of any instrument made under any written law, or of any deed, will, contract or other document, or some other question of law; or

(b) in which there is unlikely to be any substantial dispute of fact,

are appropriate to be begun by originating summons ... … .” (emphasis mine)

9 Mdm Tan had proceeded by mode of an ex-parte originating summons entitled ‘In the Matter of Divorce Petition No. 2195 of 2000’. No provision of law was identified. A divorce petition, in this case Mdm Tan’s against Bounaparte, does not qualify as a deed that requires construction. It cannot have been Mdm Tan’s case that the divorce petition was the document in question requiring construction, as the application was made ex-parte and Bounaparte was not served even though he was the respondent in the divorce petition.

10 Next, I turn to the wording of the declarations. Applying O.5 r 4(2), the factual scenarios presented in (b), (c), (d) and (e) of the application do not require any pronouncement by a court of law in Singapore. The declarations proposed under (b), (c), (d) and (e) are declarations of fact. In a proper application, the court’s role is to make a declaration or statement of law on facts that are not in dispute. The real issue in these scenarios is the application of U.S. immigration policy by U.S. authorities in the interpretation of these factual scenarios. (Unfortunately, it is clear from counsel’s unanswered e-mails to the U.S. authorities that there is no assurance of a successful immigration petition appeal even if these declarations were granted.) For the above reasons, no order was made on the application for declarations (b), (c), (d) and (e).

Plaintiff’s case for declaration (a) and declaration (f)

11 For ease of reference, these declarations read :

(a): ‘A Decree Nisi operates as a decree of divorce’; and,

(f): ‘Upon the issue of the Certificate Making the Decree Nisi Absolute, the date of the Plaintiff’s divorce is the date of the grant of the Decree Nisi i.e. 8 September 2000’

12 As noted above, the U.S. authorities held the view that Mdm Tan had married James when her ‘prior marriage’ to Bounaparte had not been formally terminated. The plaintiff’s approach was to tackle this problem on two fronts, reflected in the wording of declarations (a) and (f). Under declaration (a), Mdm Tan having obtained a Decree Nisi on 8 September 2000, her marriage to Bounaparte was formally terminated on 8 September 2000. In the alternative, declaration (f) sought to resolve the problem that Mdm Tan married James on a date before the grant of her Decree Absolute in her Bounaparte divorce proceedings. If allowed, declaration (f) meant the effect of the Decree Nisi was to date Mdm Tan’s divorce from Bounaparte to 8 September 2000, before her marriage to James.

13 The main thrust of the plaintiff’s case was that the Decree Nisi was a final decree of divorce that formally terminated a marriage in the Singapore courts. She relied on the Court of Appeal’s statement in Sivakolunthu Kumurasamy v Shanmugam Nagaiah & Anor (1988) 1 MLJ 341 that ‘a decree of divorce included a Decree Nisi’ and for the finding there that orders made on ancillary relief after issue of Decree Nisi but before grant of Decree Absolute were final and binding on parties. Ms Yeo submitted that this reflected the finality of the Decree Nisi. Counsel highlighted certain points made in Greer LJ’s dissenting judgment in the lower court hearing Fender v St John Mildmay (upheld on review by the Privy Council and followed by Sivakolunthu), namely: (1) the Decree Nisi/Decree Absolute system was necessary in the public interest to give an opportunity to the Queen’s Proctor or other persons to show cause why the decree should not be made absolute; (2) a Decree Nisi relieves both parties from their obligations to one another arising out of the marriage; (3) a Decree Nisi puts an end to the whole content of the marriage contract leaving only the technical bond; and, (4) the learned judge’s own observation that it was common knowledge that in the vast majority of cases Decree Nisi are in due course made absolute.

14 Counsel quoted Professor Leong Wai Kum writing in Halsbury’s Laws of Singapore (2001 ed.) Volume 11 Family Law at section 130.340 that the court in Sivakolunthu had found that the Decree Nisi of divorce effectively terminated the marriage and its only provisional character was the opportunity for cause to be shown as to why it should not be made absolute in which case the decree would be rescinded. Counsel also submitted that a Decree Nisi was a final decree in the sense that it was difficult to rescind a Decree Nisi: Yap Choon Wan v Chan Yong Shing (Divorce Petition No. 1238 of 2000, District Courts, unreported).

The Decree Absolute – what of it ?

15 The plaintiff’s contention that a Decree...