Ufm v Ufn

• Jurisdiction: Singapore
• Judge: Valerie Thean JC
• Judgment Date: 22 September 2017
• Court: High Court (Singapore)
• Docket Number: Originating Summons (Family) No 101 of 2016 (Registrar's Appeal No 10 of 2017)
• Date: 22 September 2017

UFM

and

UFN

[2017] SGHCF 22

Valerie Thean JC

Originating Summons (Family) No 101 of 2016 (Registrar's Appeal No 10 of 2017)

High Court (Family Division)

Family Law — Ancillary powers of court — Financial relief consequential on foreign matrimonial proceedings — Parties divorcing in Indonesia — Husband absconding to Singapore from criminal proceedings in Indonesia — Whether leave should be granted for wife to seek financial relief in Singapore — Whether doctrine of natural forum relevant — Whether wife had to first exhaust available remedies in Indonesia — Sections 121D and 121F Women's Charter (Cap 353, 2009 Rev Ed)

Held, allowing the appeal:

(1) Chapter 4A was a statutory regime, and therefore the proper approach to interpreting and applying Chapter 4A was to do so with careful attention to its text, in the light of its statutory purpose and the purpose of its component provisions. The analysis and determination of an application under Chapter 4A did not attract the application of any free-standing common law concepts or principles, such as the doctrine of natural forum. The history of Chapter 4A also made it clear that the doctrine of natural forum was not to apply as a free-standing principle in the Chapter 4A exercise. Moreover, Chapter 4A's very premise is that it may be appropriate for more than one forum to be involved, whereas the doctrine of natural forum assumes that there is only one appropriate forum: at [10] and [34] to [37].

(2) The statutory purpose of Chapter 4A was to provide financial relief consequent on foreign matrimonial proceedings for a party to those proceedings who had a genuine connection to Singapore and for whom seeking such relief from the other party in any foreign jurisdiction was unfair or impractical, or had led to an unfair or impractical remedy. The specific purpose of s 121F was to ensure that the court granted relief only if it would be appropriate for a Singapore court to do so. These purposes were borne out by the text, structure and history of Chapter 4A: at [11], [25], [29], [36] and [37].

(3) The requirement of substantial ground under s 121D of the Charter related to the entirety of the merits of the application. The two criteria for those merits were contained firstly in the provisions in the Charter expressly incorporated into Chapter 4A by s 121G concerning the circumstances in which ancillary relief should be granted; and secondly in s 121F, which required the court to consider whether it would be appropriate for the order for financial relief sought by the applicant to be made by a court in Singapore: at [15] and [16].

(4) Appropriateness under s 121F(1) was a multifaceted concept whose meaning was determined principally by the nine factors in s 121F(2). Factors (a) to (c) related to the degree of connection which the parties to the marriage had to Singapore. Factors (d) to (f) related to the fairness and practicality of any foreign relief obtained by or available to the applicant consequent on his foreign divorce. Factor (f) related to reason for the applicant's decision not to exercise an available right to apply for financial relief in any foreign jurisdiction. Factors (g) and (h) related to the enforceability of an order for financial relief. Factor (i) related to any lapse of time since the foreign divorce. Having paid close attention to the facts and weighed these factors carefully, the court had to decide whether it was appropriate for a court in Singapore to grant the relief sought by the applicant: at [17] to [24].

(5) Chapter 4A did not set out any rule that one had to exhaust all available remedies in the jurisdiction where one's foreign divorce was obtained before making a Chapter 4A application. On a plain reading, s 121F(2)(f) simply invited the court to assess whether the applicant had a good reason for choosing Singapore over any other jurisdiction in which he may have a right to obtain financial relief from the other party. In assessing that reason, the court had to be guided by the purpose of Chapter 4A and had therefore to consider, non-exhaustively, (a) any desire in the applicant to obtain an actual or perceived juridical advantage by commencing proceedings in Singapore; (b) the kind of financial relief which the applicant had a right to seek from the other party in any foreign jurisdiction; (c) the fairness and practicality of requiring the applicant to exercise such a right; and (d) where the applicant had lost such a right, the reason for that loss: at [59] to [61] and [73].

(6) The parties had a significant connection to Singapore. Their dispute over the validity and effect of their Indonesian pre-nuptial agreement was a matter the Singapore courts were competent to decide. The husband's fugitive status was proof of his disregard for the law and gave the wife reason to take the view that he was unlikely to comply with any Indonesian court order. There would also have been difficulties securing his attendance in court in Indonesia if any application she made there had to go to trial. It was therefore unfair and impractical to require her first to seek financial relief from him in Indonesia. This consideration outweighed any juridical advantage she might obtain by having the pre-nuptial agreement decided under Singapore law. In addition, the Seaview Property was available for enforcement in Singapore. It was therefore appropriate for the relief she sought to be granted by a Singapore court: at [43], [47], [56], [74] and [79].

(7) A court was empowered under s 121G(1) read with s 112 of the Charter to divide only part of the applicant's pool of matrimonial assets because s 112(1) said that the court may order the division or sale between the parties of “any matrimonial asset”. Nonetheless, the court had to be cautious in dividing matrimonial assets in piecemeal fashion in this case because doing so might prejudice the applicant's subsequent application to the Indonesian courts for relief out of the parties' Indonesian assets: at [83] and [84].

(8) The wife stated that she was seeking to divide the Seaview Property in resolution of all the claims the parties had on their matrimonial assets, among which the Seaview Property was the most valuable. She was also willing to undertake to relinquish to the remaining assets. This was a matter for the court charged with deciding the full merits of the application to consider in the light of further information on the entirety of the parties' assets: at [85].

[Observation: Chapter 4A may be regarded as representing a broader philosophy of diversifying the concept of appropriate forum in order to respond to the needs of justice presented by the varied consequences of familial breakdown in a globalised world. Thus, the Chapter 4A test for appropriate forum, embodied in s 121F, applied only to the specific ancillary context of financial relief. Issues of custody, on the other hand, were thought to demand their own set of considerations for the purpose of deciding questions of appropriate forum, considerations such as those defined by a child's habitual residence, subject to defined exceptions: at [36].]

Case(s) referred to

ABX v ABY [2014] 2 SLR 969 (refd)

Agbaje v Agbaje [2010] 1 AC 628 (folld)

AG v Ting Choon Meng [2017] 1 SLR 373 (folld)

AZS v AZR [2013] 3 SLR 700 (refd)

BDA v BDB [2013] 1 SLR 607 (refd)

Cai Xiao Mei v Zhang ShaoJi [2014] SGDC 132 (distd)

Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 (refd)

de Dampierre v de Dampierre [1988] AC 92 (refd)

Granatino v Radmacher [2011] 1 AC 534 (refd)

Harjit Kaur d/o Kulwant Singh v Saroop Singh a/l Amar Singh [2015] 4 SLR 1216 (refd)

JIO Minerals FZC v Mineral Enterprises Ltd [2011] 1 SLR 391 (refd)

N v N [1997] 1 FLR 900 (refd)

PP v Lee Sze Yong [2017] 3 SLR 533 (refd)

Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (refd)

Tan Cheng Bock v AG [2017] SGHC 160 (refd)

Tan Cheng Bock v AG [2017] 2 SLR 850, CA (refd)

TMO v TMP [2017] 1 SLR 585 (refd)

Torok v Torok [1973] 1 WLR 1066 (refd)

TQ v TR [2009] 2 SLR(R) 961; [2009] 2 SLR 961 (refd)

Traversa v Freddi [2011] 2 FLR 272 (refd)

Turczak v Turczak [1970] P 198 (refd)

UDA v UDB [2017] SGHCF 16 (refd)

Facts

The parties were Indonesian citizens and Singapore permanent residents who married in 1995. In July 2013, the husband was convicted in Indonesia of domestic abuse and sentenced to prison. He absconded to Singapore to evade his sentence and was now living here in a condominium referred to as the Seaview Property. In separate proceedings, the wife obtained a grant of divorce in Indonesia in June 2013, which was upheld by the Indonesian Supreme Court in August 2015. In October 2016, she applied under Chapter 4A of Pt X of the Women's Charter (“the Charter”) (Cap 353, 2009 Rev Ed) in Singapore for leave to apply for the Seaview Property to be sold and the proceeds of sale divided. As she did not seek ancillary relief in Indonesia despite being entitled to do so, the district judge was not satisfied that the Indonesian courts would be unable to deal with the Seaview Property and held that the wife had failed to show “substantial ground” for the making of her application under s 121D of the Charter to justify the granting of leave.

The wife appealed, arguing that it was “appropriate” within the meaning of s 121F of the Charter for a Singapore court to grant the relief she sought, and that she had therefore shown substantial ground under s 121D. She argued that the parties' marriage enjoyed a strong connection to Singapore. She also submitted that there was no rule that she had to exhaust her remedies in Indonesia before making a Chapter 4A application. And she argued that there was good reason for a Singapore court to grant relief as her husband by his fugitive status and by his failure to comply with his maintenance obligations had exhibited blatant disregard for the Indonesian courts and was unlikely to comply with any order they might...