TMO v TMP

JurisdictionSingapore
JudgeSundaresh Menon CJ
Judgment Date21 February 2017
Neutral Citation[2017] SGCA 14
Plaintiff CounselMohamed Ibrahim and Sri Balan s/o Krishnan (ACHIEVERS LLC)
Date21 February 2017
Docket NumberCivil Appeal No 75 of 2016
Hearing Date30 November 2016
Subject MatterFamily Law,Muslims,Issues within jurisdiction of civil court
Published date25 February 2017
CourtCourt of Appeal (Singapore)
Citation[2017] SGCA 14
Year2017
Sundaresh Menon CJ (delivering the judgment of the court): Introduction

This is an appeal against the decision of the judicial commissioner (“the Judge”) declining to grant the appellant-wife (“the Wife”) financial relief under s 121G, Chapter 4A of Part X of the Women’s Charter (Cap 353, 2009 Rev Ed). The Judge’s decision was reported as TMO v TMP [2016] 2 SLR 1198 (“the GD”). At the heart of this appeal lies the question of whether parties to a Muslim marriage whose marriage has been dissolved by an order of a foreign court, in this case a court in Johor Bahru, Malaysia (“Johor”), may seek financial relief consequential upon the divorce from the Singapore court.

Background

The facts before us are straightforward. The Wife and the respondent-husband (“the Husband”) were married on 13 February 1998 under Muslim law at the Registry of Muslim Marriages in Singapore. The parties have two children, aged nine and 13, who were both born in Singapore.

In 2008, the family relocated to Johor. A few years later, the Husband applied for a divorce in Johor. The Wife alleges that she learnt about this development for the first time on 30 March 2012 when she received a Johor court order dated 20 March 2012 granting interim custody of their children to the Husband. According to the Wife, she did not respond to the custody application as she harboured hopes of reconciling with the Husband.

On 10 April 2012, the Johor Sharia Subordinate Court granted a dissolution of the parties’ marriage. The Wife alleges that the divorce was obtained without her knowledge and that she only became aware of it when her lawyer in Johor performed a search two weeks later. Each party has since remarried.

Subsequently, the Wife brought contempt proceedings against the Husband in the Johor Sharia High Court for non-compliance with a court order dated 15 October 2012. Unfortunately, that order was not in evidence in the proceedings below and the basis for the contempt proceedings remains unclear to us. In any event, on 26 February 2013, the Johor Sharia High Court sentenced the Husband to 14 days’ imprisonment for contempt of court. During his incarceration, the Wife was given custody of their two children.

On 26 September 2012 (before the contempt proceedings were heard), the Wife applied to the Singapore Syariah Court for ancillary relief (subsequent references to the “Syariah Court” refer to the Singapore Syariah Court). She sought, amongst other things, (a) nafkah iddah (maintenance of the Wife); (b) mutaah (a consolatory gift); and (c) division of matrimonial assets. The Husband attended the first two Pre-Trial Conferences (“PTCs”) on 30 January and 16 April 2013, but was absent from the hearing that was held on 21 August 2013. After the hearing, the Syariah Court granted nafkah iddah in the sum of $1,500 for three months and mutaah in the sum of $41,347 and further ordered that these sums be paid from the Husband’s share of the net sale proceeds of the matrimonial flat. The Syariah Court, however, refused to grant any order for the division of the matrimonial assets. It considered that pursuant to s 52(3) of the Administration of Muslim Law Act (Cap 3, 2009 Rev Ed) (“AMLA”), such orders could only be made by the Syariah Court where the divorce proceedings were before the Syariah Court and the divorce decree was made by it. As orders for nafkah iddah and mutaah under ss 51(2) and 52(2) of the AMLA are not subject to the same conditions prescribed in s 52(3), the Syariah Court could make those orders.

The Wife then filed an application before the Family Justice Courts under Chapter 4A (Financial Relief Consequential on Foreign Matrimonial Proceedings) of the Women’s Charter for the division of the matrimonial assets. The proceedings were first heard in the Family Courts before a District Judge (“the District Judge”), whose decision was issued as TGX v TGY [2015] SGFC 134 (“the District Judge’s GD”). The Husband did not participate in the proceedings (see the District Judge’s GD at [4]). The matrimonial assets in respect of which the Wife sought division were: A five-room HDB flat at Yishun (“the HDB Flat”); A flat in Johor; The rental yield generated from the rental of the HDB Flat between June 2008 and December 2012; The sale proceeds of another property in Johor; and The Husband’s CPF balance of $209,933.36 as at 4 September 2013. According to the Wife, the total value of the matrimonial assets to be divided amounted to $1,079,249.36.

The Wife’s application was brought pursuant to s 121G of the Women’s Charter. This is found at Chapter 4A in Part X of the Women’s Charter. Chapter 4A was introduced by way of legislation in 2011 in order to provide an avenue for those whose marriages had been dissolved by an order of a foreign court to seek relief in respect of ancillary matters before a Singapore court. Specifically, s 121G provides as follows:

Orders for financial relief

121G. —(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.

(2) Sections 112(2) to (10), 114 to 121 and 127(2) shall apply, with the necessary modifications, and as appropriate, to an order made under subsection (1).

(3) Upon the court making a secured order under subsection (1) or at any time thereafter, the court may make any order which the court could have made if the secured order had been made under section 112, 115 or 127.

The question for the court below was whether Chapter 4A and more particularly, s 121G of the Women’s Charter was applicable to Muslim marriages that had been dissolved by a foreign Syariah court. The District Judge dismissed the Wife’s application because she considered that s 3(2) of the Women’s Charter precluded the application of Part X of the Women’s Charter (within which Chapter 4A falls) to a Muslim marriage registered in Singapore (see the District Judge’s GD at [35]). Furthermore, she held that ss 17A(2) and (3) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”), which vest jurisdiction over certain aspects of matrimonial proceedings affecting Muslim marriages in the civil courts concurrently with the Syariah Court, did not apply because the Syariah Court had held that it would only have the jurisdiction to make an order for the disposition of property under s 52(3) of the AMLA if the divorce proceedings had been filed in the Syariah Court and the decree had been made by the Syariah Court (see the District Judge’s GD at [44]–[45]). As noted above, the divorce decree in this case had been made by a foreign Syariah court. The District Judge therefore concluded that the Family Courts had no jurisdiction to grant the reliefs that the Wife was seeking (see the District Judge’s GD at [46]). The District Judge noted, however, that the Wife had at least two alternative recourses which she had not exhausted: (1) she could set aside the Malaysian divorce decree and then file for divorce in the Syariah Court in the course of which she could make the necessary application for the orders she sought; or (2) she could commence proceedings in the Malaysian courts for the necessary ancillary orders since the divorce had been granted by the Johor court (see the District Judge’s GD at [38]).

Dissatisfied with the District Judge’s decision, the Wife appealed to the High Court.

Decision below

The allocation to the relevant courts of jurisdiction over these matters is dealt with in part by s 17A of the SCJA. The Judge held that s 17A(1) of the SCJA excluded the jurisdiction of the High Court in respect of matters that came within the jurisdiction of the Syariah Court pursuant to certain provisions of the AMLA. However, she went on to hold that where the jurisdiction of the High Court has not been excluded in this way, the High Court retains its general jurisdiction over divorce and matrimonial matters (see the GD at [8]). Section 17A(2) in turn provides that the High Court has concurrent jurisdiction with the Syariah Court over certain matters, but its application is subject to the satisfaction of the conditions in s 17A(3) (see the GD at [10]). The Judge first concluded that the present case was not one where the jurisdiction of the High Court had been excluded pursuant to s 17A(1) of the SCJA. She then went on to consider whether the matter could come within the ambit of s 17A(2) of the SCJA, which, as we have noted, is concerned with jurisdiction that is concurrent with that of the Syariah Court. The Judge concluded that s 17A(2) did not apply first, because she considered it to be clearly the case that the Syariah Court did not have jurisdiction in this context; and second because to be applicable, a certificate from the Syariah Court under s 17A(3) would be required and this had not been obtained (see the GD at [11]).

The Judge considered that the High Court did have jurisdiction under s 17(a) of the SCJA (see the GD at [5] and [12]) and that this jurisdiction had not been excluded by s 17A(1). Nevertheless, she held that the High Court had no power to grant relief under s 121G of the Women’s Charter because s 3(2) of the Women’s Charter precluded the application of that power to situations where the divorcing parties had been married under Muslim law (as the present parties were). Nor did she consider that s 17A(8) of the SCJA could assist the Wife because that is expressly limited to the exercise of the High Court’s jurisdiction or powers under s 17A(2)(c) of the SCJA, which as noted at [11] above, was found not to apply in the present case. In any event, s 17A(8) of the SCJA would only allow for s 112 of the Women’s Charter to apply and not s 121G of the Women’s Charter (see the GD at...

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