TAP v TAQ

• Jurisdiction: Singapore
• Judge: Colin Tan
• Judgment Date: 24 March 2015
• Neutral Citation: [2015] SGFC 30
• Court: Family Court (Singapore)
• Docket Number: Originating Summons No 79 of 2014
• Published date: 18 June 2015
• Year: 2015
• Hearing Date: 03 December 2014,14 October 2014
• Plaintiff Counsel: Mr Yeo Soon Keong (M/s Quahe Woo & Palmer LLC)
• Defendant Counsel: Mr Kenneth Au-Yong Kok Keong (M/s Ramdas & Wong)
• Subject Matter: Matrimonial assets,division
• Citation: [2015] SGFC 30

District Judge Colin Tan: Background

Both parties were from China. The Plaintiff husband came to Singapore in 2001 and the Defendant wife came to Singapore in 2004, and they were married at the Chinese Embassy in Singapore in 2004.

Subsequently, the Plaintiff husband initiated divorce proceedings in China and in 2013 the China court granted the parties a divorce order.

The China court also made orders in respect of the parties’ two children and their maintenance.

The Plaintiff husband then filed the current application; he sought an order from the Singapore court for sale of the parties’ matrimonial flat and for the sale proceeds to be divided between the parties in the proportion of 90% to him and 10% to the Defendant wife.

The China divorce

The Plaintiff exhibited a translation of a China “Civil Judgement” (“the China Divorce Order”) in respect of the parties’ divorce in his supporting affidavit¹.

The China Divorce Order contained orders in respect of the following ancillary matters: “custody and care” of the parties’ two children; and maintenance for the two children.

However, in respect of the parties’ matrimonial assets, the China Divorce Order stated as follows:

“With regard to the properties registered under the names of both parties, since both parties were unable to provide evidence, the Court shall not deal with the matter; both parties may consult and discuss with each other separately or resolve through litigation.”²

It was therefore clear from the plain words of the China Divorce Order that the reason why the China court had not made any orders in respect of the parties’ matrimonial flat was that the parties had not produced the necessary evidence when they went before the China court.

Application for leave

As this was an application under Chapter 4A of the Women’s Charter, leave of court had to be obtained first.

At a hearing on 18th July 2014, the Defendant’s Counsel’s position was that he was not objecting to the application for leave.

After considering the submissions from the Plaintiff’s Counsel, I accepted that there were sufficient grounds for granting leave to apply for an order under Chapter 4A. Directions were therefore given for the filing of affidavits and the substantive application for the sale of the flat and division of the sale proceeds was fixed to be heard at a later date.

Application for sale of the flat and division of sale proceeds

The Plaintiff’s position was that the Defendant should transfer her share of the matrimonial flat to him and that he would pay her 10% of the net value of the said flat after deducting the CPF monies paid by him towards the flat as well as accrued interest³.

Based on the figures in the Plaintiff’s affidavit, the flat was worth $460,000 and the Plaintiff’s proposal was that he would pay the Defendant $28,377 (i.e. 10% of $460,000 minus outstanding loan of $17,560 minus $5,825 minus Plaintiff’s CPF contribution of $152,843) for her share of the said flat⁴.

The Plaintiff’s proposal effectively meant that the Defendant would only get about 6% of the value of the matrimonial flat.

The law

Section 121B of the Women’s Charter provides that where a marriage has been dissolved in a foreign country, a party may apply to the court for an order for financial relief (e.g. an order for division of matrimonial assets).

Section 121D of the Women’s Charter provides that no application shall be made unless leave of court has first been obtained.

Section 121F(1) of the Women’s Charter, which applies only after leave of court has been granted, states:

“Duty of court to consider whether Singapore is appropriate forum for application

(1) Before making an order for financial relief, the court shall consider whether in all the circumstances of the case, it would be appropriate for such an order to be made by a court in Singapore, and if the court is not satisfied that it would be appropriate, the court shall dismiss the application.”

Section 121F(2)(f) of the Women’s Charter specifies that the court shall, in particular, have regard to: “(f) 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 omitted to exercise that right, the reason for that omission;”

In Cai Xiao Mei v Zhang ShaoJi [2014] SGDC 132, District Judge Cheryl Koh stated:

“No cherry-picking of different matrimonial claims to be heard in different forums

32 First, Chapter 4A of Part X of the Women’s Charter is not intended to undermine established principles under the doctrine of natural forum, including the principle that the forum that is most appropriate to hear the matrimonial proceedings should indeed hear the case, and generally such a forum should also hear all ancillary matters relating to the termination of the marriage as the court: Low Wing Hong Alvin v Kelso Sharon Leigh [2001] 1 SLR 173 at [20]–[21]; C v D [2002] SGHC 98 at [57]. A party cannot choose to litigate particular claims for relief in foreign matrimonial proceedings (e.g., division of assets) and litigate remaining claims (e.g., maintenance) in concurrent matrimonial proceedings in Singapore; if a party feels that Singapore is the more appropriate forum to hear the matter, then the party has to apply for a stay of the foreign proceedings and pursue his/her claims in Singapore. Authorities such as BDA v BDB [2012] SGHC 209 and ALJ v ALK [2010] SGHC 255 set out the principles to be applied in deciding whether Singapore or the foreign country is the appropriate jurisdiction for the matrimonial proceedings. Chapter 4A of Part X of the Women’s Charter does not alter these principles. 33 The true injustice which Chapter 4A of Part X is intended to redress is where an applicant has had no real opportunity to pursue financial claims on foreign divorce, or where no or inadequate financial provision has been provided by a foreign court (Agbaje v Agbaje at [71]), in situations where there are sufficient connections with Singapore. It does not confer upon an applicant a right (which does not exist under the doctrine of natural forum) to choose not to fully participate in foreign proceedings, in the anticipation that he/she could cherry-pick particular claims for Singapore to adjudicate under the guise of Chapter 4A of Part X. It would turn the doctrine of natural forum on its head. 34 Taking the Plaintiff’s argument to its logical conclusion, it would mean that a party would be entitled to select a foreign jurisdiction (to which he/she has the requisite connecting factors) to hear the divorce, cherry-pick particular claims for matrimonial relief to be heard in that jurisdiction and thereafter forum-shop in Singapore (to which he/she also has sufficient connecting factors and of which the governing matrimonial law is possibly more favourable) to litigate the remaining claims for matrimonial relief under Chapter 4A of Part X. This would amount to duplicity of proceedings and an abuse of process across international legal systems. It is not the redress which Chapter 4A of Part X is intended to provide. 35 Indeed, the English legal regime (rightly so) required a party to have taken a good part of the foreign proceedings, used local remedies and done his/her best to seek reasonable financial provision where the divorce had taken place, before the English courts would exercise its discretion to grant financial relief. Likewise, one of the factors which section 121F of the Women’s Charter requires the Singapore court to consider, in determining whether it is appropriate for grant an order for financial relief, is “(f) 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 omitted to exercise that right, the reason for that omission.” A deliberate omission by an applicant to pursue particular matrimonial claims in a foreign divorce because he/she feels that Singapore is the more appropriate forum,...