TGX v TGY

• Judge: Geraldine Kang
• Judgment Date: 21 October 2015
• Neutral Citation: [2015] SGFC 134
• Citation: [2015] SGFC 134
• Court: Family Court (Singapore)
• Published date: 03 November 2015
• Docket Number: OSF 136 2014
• Plaintiff Counsel: P/C: Mr Mohd Ibrahim (Achievers LLC)
• Defendant Counsel: Defendant in Person
• Subject Matter: Financial relief
• Hearing Date: 27 November 2014,31 October 2014,04 June 2015,02 July 2015,09 July 2015,08 January 2015

District Judge Geraldine Kang: Brief Background

Parties were married on 13 February 1998 at the Registry of Muslim Marriages in Singapore, and they have 2 children borne to them. For ease of reference, parties shall be referred to as “wife” and “husband” in these written grounds of decision.

Parties were divorced on 10 April 2012 by the Mahkamah Rendah Syariah, Johor Bahru, Malaysia.

According to the wife she had moved to Johor, Malaysia at the direction of the husband as this was only to further his intention of divorcing her in Malaysia. The wife returned to Singapore in 2012. At the time of the hearings before me, the wife and the 2 children were residing in Singapore¹. The wife had also since remarried.

The wife filed the present application on 8 April 2014 in the Family Justice Courts, seeking an order for financial relief under Chapter 4A of the Women’s Charter. Throughout the proceedings, the husband did not enter an appearance nor participate in the proceedings before me.

On 9 July 2015, I delivered and decision and dismissed the application in its entirety. The wife’s counsel wrote in on 15 July 2015 seeking a request to make further arguments before myself, which I declined to hear as there had been multiple delays and adjournments in the matter. For completeness, I would add that repeated adjournments had to be made in this case – largely due to counsel not having prepared the relevant docs such as the certified English translated copies of the foreign orders, valuations of the respective properties sought to be dealt with, CPF statements.

In addition, the counsel was seeking oral leave to amend the originating summons which I had heard and delivered my decision, thus I did not think this was legally appropriate or justified.

The wife has since appealed against my decision and I shall now set forth my reasons for the dismissal.

Divorce proceedings in Malaysian Courts

It appeared that the husband had commenced divorce proceedings in Johor, Malaysia for which the wife did not participate in entirely. The divorce in Malaysia was made final on 10 April 2012 by the Mahkamah Rendah Syariah Court in Johor Bahru, Malaysia (“Malaysian Courts”).

According to the wife, she came to know of this divorce only after her Malaysian lawyers did a search in the Malaysian Courts. The wife further claimed ignorance of any interim custody orders in relation to the 2 children made by the Malaysian courts until sometime around 30 March 2012.²

Order(s) made by the Malaysian Courts

Whilst the Malaysian Court orders were submitted in evidence, no English translations were provided at the onset. Directions had to be given for supplemental affidavits to be filed including the translated versions of the Malaysian court order(s). Based on the Affidavit of Translation dated 14 November 2014, it would appear that 3 orders / judgements were made in Malaysia:- 20 March 2012 – Ex-parte interim order for custody filed by the husband. 10 April 2012 – Certificate of Divorce filed by the husband, 26 February 2013 – Contempt proceedings filed by the wife.

I will now briefly deal with each of these translated orders.

The order dated 20 March 2012 was one which dealt with “Temporary Custody Rights” of their 2 children. The wife did not participate in this application, and the husband was awarded temporary custody rights pending a Permanent Custody Order. In this same order, it was expressly stated that the wife had the right to waive or modify any part of the order.

The Certificate of Divorce was dated 10 April 2012 (but registered on 17 August 2012).

The wife was represented by Malaysian lawyers as at the contempt hearing of 26 February 2013. The husband was sentenced to 14 days imprisonment for contempt of court and non-compliance with an order dated 15 October 2012³. During the husband’s incarceration, the wife was to have custody of the 2 children.

Proceedings in Syariah Court, Singapore

The wife then proceeded to apply to the Singapore Syariah Court for ancillary relief on 26 September 2012. Orders were made by the Singapore Syariah Court on 28 October 2013 for the wife’s iddah and mutaah only but declined to make further orders in respect of parties’ matrimonial assets.

Proceedings in Family Justice Courts, Singapore

According to the wife’s counsel (who had also represented her in the Singapore Syariah Court), she was directed to come to the Family Justice Courts for the division of the matrimonial assets (in Singapore and Malaysia). This was the essence of the hearing before me.

The wife sought the division of the matrimonial assets of the parties: - A 5-room HDB flat at Blk xxx Singapore xxx (“Singapore Property”); A flat in Johor, Malaysia at xxx (“Malaysian Property”); Rental proceeds of the Singapore Property; Sale proceeds of another Malaysian property at xxx; (2nd Malaysian Property”). Husband’s CPF monies.

Repeated absence of the Defendant

As stated earlier, the husband did not participate in the proceedings before me entirely, despite notice having been properly served on him. For the avoidance of doubt, the fact that he was not present before me did not preclude me from making orders against him if there were merits to the application.

The Law – Financial Relief

Prior to 2011, the Singapore Courts did not have the jurisdiction to deal with post-divorce matters such as division of matrimonial assets or maintenance for the ex-spouse, in situations where a marriage has been terminated by a foreign court.

This lacuna has since been filled by Parliament – the Women’s Charter was amended and the new Section 121B provided that where parties to a marriage have been legally separated by means of judicial or other proceedings in a foreign country, this would be recognised in Singapore as valid proceedings; and such parties may apply for financial relief under these new laws.

In the case of Harjit Kaur d/o Kulwant Singh v Saroop Singh a/l Amar Singh [2015] SGHCF 5 (“Harjit Kaur d/o Kulwant Singh v Saroop Singh a/l Amar Singh”), the learned JC Debbie Ong succinctly sets out the genesis and background of the development of the law in this area.

Facts of Harjit Kaur d/o Kulwant Singh v Saroop Singh a/l Amar Singh

The Appellant-wife and Respondent-husband married under civil laws in Malaysia in 1995. They had no children. They were married for 19 years before the marriage broke down. The Respondent-husband commenced civil divorce proceedings in Malaysia. The Malaysian court granted a decree nisi which was made absolute on 4 March 2014. On the same day, the Malaysian court made consent orders on financial issues, including the sale of their property in Singapore and maintenance for the Appellant-wife (“the Malaysian Order”).

Whilst the property was sold, there was a dispute between the parties as to the release of the sale proceeds. The Appellant-wife then filed an application for leave to commence proceedings for financial relief under Section 121B of the Women’s Charter, to have the sale proceeds divided by the Singapore Courts. Leave was declined by the District Courts and the Appellant-wife filed an appeal against that decision. The appeal was dismissed by the High Court.

In dismissing the appeal, JC Debbie Ong reiterated that the purpose of requiring leave under section 121D is to serve as a “filter mechanism” and to prevent...