TAR v TAS

• Jurisdiction: Singapore
• Judge: Kimberly Scully
• Judgment Date: 06 March 2015
• Neutral Citation: [2015] SGFC 23
• Court: Family Court (Singapore)
• Docket Number: D4001 of 2014
• Published date: 31 July 2015
• Year: 2015
• Hearing Date: 10 November 2014,15 December 2014,05 January 2015
• Plaintiff Counsel: Ms Simran Kaur Toor and Ms Agatha Marie Low (M/s WongPartnership LLP)
• Defendant Counsel: Mr Kesavan Nair and Ms Melissa Leong (M/s Genesis Law Corporation)
• Subject Matter: Catch Words: Family Law,Divorce-Stay of Proceedings-Forum Non Conveniens
• Citation: [2015] SGFC 23

District Judge Kimberly Scully: Introduction

These grounds of decision relate to the Defendant Husband’s application to stay divorce proceedings commenced by the Plaintiff Wife in Singapore pursuant to Section 95(3)(b) of the Women’s Charter, namely that the Defendant has behaved in such a way that the Plaintiff could not reasonable be expected to live with the Defendant. The Defendant’s application was premised on forum non conveniens, namely that Singapore was not the natural or appropriate forum for the divorce proceedings, and that Nigeria was clearly the more appropriate forum for such an action. Both parties were legally represented in the proceedings before me.

After considering affidavits filed by both parties, the counsels’ submissions and the circumstances of this case, I dismissed the Defendant’s application for stay of proceedings. The Defendant appealed my decision to dismiss his application for stay of proceedings, for which I now provide the reasons for my decision.

Background The Parties’ Married Life

The Defendant is a British citizen, and the Plaintiff is an Indian national. The parties’ married life up to the filing of the Divorce Writ progressed in the following manner: the Plaintiff and the Defendant met in Nigeria. At that time, both parties had family members living in Nigeria. By the time of these proceedings, the Plaintiff’s parents have left Nigeria. The Defendant’s parents continue to reside there and run a family business. Parties met and got engaged in Nigeria on 3 February 2008. They were subsequently married in India on 18 April 2008. The Defendant had been living and working in the UK prior to their engagement, and therefore the Plaintiff joined him there in May 2008. The only child to the marriage (hereinafter referred to as the “Child”) was born in the UK on 16 May 2009, and is a British citizen. According to the affidavits, there was subsequently a breakdown in the marriage, with allegations of family violence made by the Plaintiff against the Defendant in the UK. There was also a brief period during which the Plaintiff and Child lived separate from the Defendant in the UK. Sometime in December 2010, the Plaintiff received a job offer in Singapore. Accepting the job offer, the Plaintiff and Child moved to Singapore on 16 January 2011. At the time, the Child was slight more than a year old. Since January 2011, the Plaintiff has been working in Singapore and continues to hold a Singapore Employment Pass during the course of proceedings before me, and the child continues to be educated in an international school. Since January 2011, the Defendant has travelled from the UK to Singapore to visit the child. The Defendant continued to work in the UK until June 2011 when he joined his parents in Nigeria, and is now assisting in the family business.

E-mail correspondence regarding divorce

There were discussions between the parties through e-mail correspondence on how to go about their divorce and the ancillary matters. Parties now disagree on the intent and implications of the e-mail correspondence. I managed to glean the following from the four e-mails disclosed to the court: the Defendant sent an e-mail on 26 July 2014 to the Plaintiff, stating he wished for parties to have an amicable divorce. On 29 July 2014, the Plaintiff replied asking for time to gather her thoughts and reply to him. Therefore, she sent an e-mail on 8 August 2014, stating that she would like to separate from the Defendant “in the most amicable manner as possible”, updated the Defendant on the Child’s progress in school, suggested she have sole custody, care and control with liberal access to the Defendant, and maintenance. On 15 August 2014, the Defendant replied that he wanted to “share legal custody” of the child, and made his proposals regarding maintenance¹.

Commencement of Court Proceedings in Nigeria and Singapore

On 19 August 2014, the Defendant commenced divorce proceedings in Nigeria. On 27 August 2014, the Plaintiff commenced Singapore proceedings. On 1 September 2014, the Defendant sent an e-mail to the Plaintiff informing her that he had commenced Nigerian proceedings. On 8 September 2014, the Defendant was served with the Singapore divorce papers. Pursuant to a court order for substituted service granted by the Lagos High Court on 11 November 2014, the Defendant attempted service of the Nigerian divorce papers on the Plaintiff on 3 December 2014.

At the time of hearing before me, both the Nigerian and Singapore proceedings had not passed the initial stage. Counsel for the Plaintiff informed this court at the hearing that Plaintiff is seeking advice on the validity of the service of Nigerian proceedings on her, and may be disputing it².

Stay on ground of forum non conveniens

The Court of Appeal has affirmed that the principles stated in the English case of Spiliada Maritime Corporation v Cansulex Ltd³ (“Spiliada”) apply to stay of proceedings in Singapore on the ground of forum non conveniens. These principles have been applied to matrimonial cases and are summarised in the case of VH v VI⁴, concerning concurrent divorce proceedings in Singapore and Sweden⁵: The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action. In general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay. If the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country. The burden resting on the defendant is not just to show that the forum of the action is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the forum of the action. The “natural forum” is that with which the action had the most real and substantial connection. So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expenses (such as availability of witnesses), but also other factors such as the law governing the relevant transaction. If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay. If however, the court concludes at that stage that there is some other available forum, which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that stay should nevertheless not be granted.”

The first stage of the Spiliada test is for the Defendant to prove that Singapore is not the natural or appropriate forum, and that Nigeria is clearly and distinctly the more appropriate forum. If the Defendant satisfies these requirements, the court will then need to consider the second stage, namely whether justice requires that a stay nevertheless be refused.

Is Singapore not the natural or appropriate forum for parties’ divorce proceedings? Is Nigeria clearly and distinctly the more appropriate forum?

In summary, Counsel for the Defendant submitted that Singapore is not the natural or appropriate forum given that the Plaintiff’s presence (and therefore the Child’s presence) in Singapore is transient, there are no matrimonial assets in Singapore, and a stay should be granted in favour of Nigerian proceedings, which were commenced first in time. If the Singapore proceedings were to continue, it would result in an untenable outcome of possibility conflicting decisions on the same subject matter in different jurisdictions.

In summary, Counsel for the Plaintiff submitted that the Defendant had failed to fulfil the principles stated in Spiliada case. Although the competence and availability of Nigeria as a forum for the marital proceedings was not disputed, Counsel for the Plaintiff’s submitted that the Defendant failed to prove Nigeria is clearly the more appropriate forum with a real and substantial connection to the parties’ dispute. The only connection was that the Defendant and his parents lived in Nigeria, and this was insufficient. Furthermore, the Defendant was wrong to label the Plaintiff’s presence in Singapore as transient, when she has been working in Singapore since January 2011 and intends to continue to do so.

In considering their arguments on each factor, and whether the Defendant has satisfied the first stage of the Spiliada test, I bore in mind that the value to be placed on each factor that must be weighed will vary depending on the particular factual matrix and circumstances of the case⁶.

Residence of the Parties

Counsel for the Defendant submitted that in terms of party’s respective residence, the Defendant has been living and working with his parents in Nigeria since June 2011. The Plaintiff has been working in Singapore only under an employment pass and her presence is transient. She is here because of work and can leave at any time, and relies on the Plaintiff’s LinkedIn Profile, which states that the Plaintiff is able to work in the UK. Counsel has also suggested that the Plaintiff and Child have stayed in three different residences thus far, and her current residence is rental accommodation. She can always move and work in another country, and therefore Singapore should not be considered her place of residence.

Counsel for the Plaintiff raised the following points in her written and oral submissions. First, she submitted that Singapore, being the habitual...