TMO v TMP

• Jurisdiction: Singapore
• Judge: Debbie Ong JC
• Judgment Date: 01 April 2016
• Neutral Citation: [2016] SGHCF 5
• Plaintiff Counsel: Mohamed Ibrahim s/o Mohamed Yakub (Achievers LLC)
• Docket Number: District Court Appeal from the Family Courts No 124 of 2015
• Date: 01 April 2016
• Hearing Date: 06 January 2016,18 March 2016
• Subject Matter: Family Law-Financial relief after foreign divorce-Chapter 4A of the Women's Charter,Family law,Jurisdiction and Power of the High Court and Syariah Court
• Published date: 01 March 2017
• Citation: [2016] SGHCF 5
• Defendant Counsel: the Respondent in person (absent).
• Court: High Court (Singapore)
• Year: 2016

Debbie Ong JC: Brief Facts

In the present case, the Appellant and Respondent were married under Muslim law. Their marriage was dissolved by a divorce granted by the Johor Court, allegedly without the Appellant’s knowledge. The Appellant subsequently sought financial relief in the Singapore Syariah Court. The Appellant’s counsel informed this court that the Syariah Court had indicated that the application for the division of assets ought to be pursued in the Civil Courts as the Syariah Court could not grant that relief. He submitted that s 52 of the Administration of Muslim Law Act (Cap 3, 2009 Rev Ed) (“AMLA”) does not provide for the division of assets where the marriage was not dissolved by the Syariah Court.

Having failed to obtain an order for the division of assets at the Syariah Court, the Appellant made an application under Chapter 4A of Part X of the Women’s Charter (Cap 353, 2009 Rev Ed) (“WC”), for leave to apply for a division of assets after a foreign divorce. Chapter 4A of Part X of the WC, which was introduced in 2011 (by virtue of the Women’s Charter (Amendment) Act 2011 (Act 2 of 2011)), extended the powers in ss 112, 113 and 127 of the WC to marriages which have been dissolved, annulled, or where the parties to a marriage have been legally separated by means of judicial or other proceedings in a foreign country recognised as valid under Singapore law. Prior to 2011, where a marriage has been terminated by a foreign decree, the Singapore court could not deal with the post-divorce issues such as division of matrimonial assets or maintenance for the former spouse (see Harjit Kaur d/o Kulwant Singh v Saroop Singh a/l Amar Singh [2015] 4 SLR 1216 at [1] and [2]).

The District Judge granted leave required by s 121D (under Chapter 4A) of the WC but held that it had no jurisdiction to hear the substantive matter under s 121G. S 121G(1) of the WC provides:

(1) On an application by a party to a marriage for an order for financial relief, the court may make any one or more of the orders which it could have made under section 112, 113 or 127(1) in the like manner as if a decree of divorce, nullity or judicial separation in respect of the marriage had been granted in Singapore.

Issue in this appeal

The issue in this appeal was whether the District Judge was correct in finding that there was no jurisdiction to hear the application under s 121G of the WC.

Jurisdiction of the High Court and Syariah Court General

Section 17(a) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) provides that:

… the civil jurisdiction of the High Court shall include … jurisdiction under any written law relating to divorce and matrimonial causes …

Section 17A(1) of the SCJA excepts from the jurisdiction of the High Court, the hearing of certain matters which come under the jurisdiction of the Syariah Court:

(1) Notwithstanding sections 16 and 17, the High Court shall have no jurisdiction to hear and try any civil proceedings involving matters which come within the jurisdiction of the Syariah Court under section 35(2)(a), (b) or (c) of the Administration of Muslim Law Act (Cap. 3) in which all the parties are Muslims or where the parties were married under the provisions of the Muslim law.

It is noted that s 17A SCJA was introduced in 1999 pursuant to amendments to the AMLA and the SCJA (through the Administration of Muslim Law (Amendment) Act 1999 (Act 20 of 1999)) (“1999 Amendments”) to provide for concurrent jurisdiction over specified matters. Prior to these amendments, s 16(2) of the Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) (“SCJA (1985)”) explicitly stated that the High Court had no jurisdiction to try any civil proceedings coming within the jurisdiction of the Syariah Court:

Notwithstanding subsection (1), the High Court shall have no jurisdiction to hear and try any civil proceeding which comes within the jurisdiction of the Syariah Court constituted under the Administration of Muslim Law Act.

The approach the courts took then, pursuant to s 16(2) of the SCJA (1985), was that any matter which did not fall within the jurisdiction of the Syariah Court would be within the jurisdiction of the High Court. In Madiah bte Atan v Samsudin bin Surin [1998] 2 SLR(R) 327 (“Madiah”), the Court of Appeal held that a divorce registered by a kadi was valid and did not require any further applications to the Syariah Court. It therefore “oust[ed] the jurisdiction of the Syariah Court when it [came] to the disposition or division of property” (Madiah at [28]). The Court of Appeal concluded that only the High Court had jurisdiction to hear the application (Madiah at [36]).

The former s 16(2) was repealed in the 1999 Amendments at the same time that s 17A was inserted into the SCJA. Nevertheless, while it is apparent from the Parliamentary debates that the amendments would not dilute or remove the powers of the Syariah Court, there was no intention for the High Court’s jurisdiction to be limited beyond what is statutorily prescribed. This aspect of the decision in Madiah remains relevant in the present provisions – the High Court has jurisdiction over divorce and matrimonial matters that are not within s 17A(1) of the SCJA. This is consistent with the view espoused by Professor Leong Wai Kum that “non-Muslim law is general while Muslim law is the exception” (Leong Wai Kum, Elements of Family Law in Singapore (LexisNexis, 2nd Ed, 2013) (“Elements of Family Law”) at p 736).

Concurrent jurisdiction

Section 17A(2)-(3) of the SCJA, which were also added as part of the 1999 Amendments, now provides that:

(2) Notwithstanding that such matters come within the jurisdiction of the Syariah Court under section 35(2)(d) or (e), 51 or 52(3)(c) or (d) of the Administration of Muslim Law Act, the High Court shall have jurisdiction as is vested in it by any written law to hear and try any civil proceedings involving matters relating to — (a) maintenance for any wife or child; (b) custody of any child; and (c) disposition or division of property on divorce.

(3) Where civil proceedings involving any matter referred to in subsection (2)(b) or (c) and involving parties who are Muslims or were married under the provisions of the Muslim law are commenced in the High Court, the High Court shall stay the civil proceedings — (a) involving any matter referred to in subsection (2)(b) or (c), if the civil proceedings are commenced on or after the commencement of proceedings for divorce in the Syariah Court or after the making of a decree or order for divorce by the Syariah Court or on or after the registration of any divorce under section 102 of the Administration of Muslim Law Act (Cap. 3) between the same parties, unless a Syariah Court commencement certificate in respect of the civil proceedings has been filed with the High Court; (b) involving any matter referred to in subsection (2)(b), if proceedings for divorce are commenced in the Syariah Court or a decree or order for divorce is made by the Syariah Court or a divorce is registered under section 102 of the Administration of Muslim Law Act between the same parties after the commencement of the civil proceedings, unless a Syariah Court continuation certificate in respect of the civil proceedings has been filed with the High Court.

It is noted that...