UFN v UFM and another matter

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 09 October 2019
• Neutral Citation: [2019] SGCA 54
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 169 of 2018 and Summons No 72 of 2019
• Published date: 12 October 2019
• Year: 2019
• Hearing Date: 09 July 2019
• Plaintiff Counsel: The appellant in Civil Appeal No 168 of 2018 and respondent in Summons No 72 of 2019 in person
• Defendant Counsel: Nakoorsha AK, Suang Wijaya and Johannes Hadi (Eugene Thuraisingam LLP)
• Subject Matter: Family Law,Ancillary powers of court,Financial relief consequential on foreign matrimonial proceedings
• Citation: [2019] SGCA 54

Debbie Ong J (delivering the grounds of decision of the court): Introduction

This appeal is the first case concerning Ch 4A in Part X of the Women’s Charter (Cap 353, 2009 Rev Ed) (“Women’s Charter”) to reach this Court. Chapter 4A (containing ss 121A–G) was introduced fairly recently in 2011, providing a new regime for the application for financial relief after a foreign divorce or nullity. Up until then, there existed a “gap” in the law in cases where a foreign divorce had been obtained and there were matrimonial assets situated in Singapore. This gap arose because the Singapore court could no longer grant a divorce and exercise its ancillary powers to divide matrimonial assets or order maintenance for the spouse where a marriage had been terminated by a foreign judgment. However, by the Women’s Charter (Amendment) Act 2011 (Act 2 of 2011) the court’s powers in ss 112, 113 and 127 of the Women’s Charter were extended to marriages which have been dissolved, annulled, or where the parties to a marriage have been legally separated by judicial or other proceedings under the law of a foreign country recognised as valid in Singapore. The then Minister for Community Development, Youth and Sports explained that (Singapore Parliamentary Debates, Official Report (10 January 2001), vol 87 at cols 2048–2049 (Dr Vivian Balakrishnan, Minister for Community Development, Youth and Sports):

… with the increasing number of Singaporeans working and residing overseas and increasing marriages between locals and foreigners, this proposed provision will help those who are made vulnerable by foreign divorces and who have a relevant connection to Singapore to seek relief…. With this new Chapter, the courts here will be able to make orders on matrimonial assets in Singapore and the maintenance for divorces that were obtained in foreign courts. This will plug an existing gap.

As this case raised several issues relating to the interpretation of the recently introduced provisions, we issue these written grounds to explain our decision.

Background facts

The appellant (“the Husband”) and the respondent (“the Wife”) solemnised their marriage in Jakarta in 1995. They have three children: two daughters who are 22 and 18 years old, and a son who is ten years old. The parties and their children are all Permanent Residents of Singapore. At the time of the hearing, the Husband was residing in Singapore, while the Wife was residing in Indonesia with the children.

According to the Wife, the marriage broke down because the Husband began physically and mentally abusing her and their children. The Husband eventually faced criminal proceedings in Indonesia. On 23 July 2013, the West Jakarta District Court found the Husband guilty of “[d]omestic physical violence and violence against children for committing in an obscene action” and sentenced the Husband to a term of imprisonment of three years and six months, with a fine of IDR100m (approximately $9,750). The Husband’s appeal was dismissed on 9 January 2014 by the West Jakarta High Court, which enhanced his sentence to an imprisonment term of four years and six months. The Husband has not served his sentence.

The Wife filed for divorce in Indonesia during the ongoing criminal proceedings. On 5 June 2013, the West Jakarta District Court made the following orders: The parties were legally divorced with effect from 5th June 2013. The Wife shall have custody of the three children to the marriage. The Husband shall pay monthly maintenance for the three children at IDR50m. The marital attachment to the “community property” requested by the Wife is refused.

The Husband appealed to the Jakarta High Court, which dismissed the appeal on 5 May 2014 save for varying the monthly maintenance sum downwards to IDR22.5m (approximately $2,300). A further appeal to the Indonesian Supreme Court was dismissed on 27 August 2015.

From the foregoing, it is clear that the District Court’s order on the marital property (see [5(d)] above) was not disturbed on appeal. Counsel for the Wife explained at the hearing below that the purpose of attachment is to free the assets and is a prelude to the division of assets. This explanation was not challenged by the counsel for the Husband.

As the request for marital attachment is of some importance to the current appeal, we set out the translation of the detailed order in full:

Considering, that the fifth and sixth prayer for relief is a request for levying marital attachment to the community property, but there is no adequate reason to levy the marital attachment and it is in fact, the attachment requested by the [Wife] has been executed by the Bailiff, therefore the fifth and sixth prayer for relief must be rejected.

The Wife’s Indonesian lawyer explained that the West Jakarta District Court declined to levy the marital attachment because:

… the divorce proceedings were not the appropriate occasion to rule on the community property between [the parties]. This was because the community property would be governed by the Prenuptial Agreement, to the extent that the Prenuptial Agreement was valid. The validity or effect of the Prenuptial Agreement was not before the West Jakarta District Court. The District Court Divorce Case only concerned the divorce between [the parties], not the validity of the prenuptial Agreement.

The Wife maintained that the Husband had not fully complied with the Indonesian court’s directions for him to pay maintenance for the children. She had also not taken any further step in the Indonesian courts.

On 21 October 2016, the Wife applied under s 121D of the Women’s Charter for leave to commence Ch 4A proceedings. She sought an order for the division of a property in Singapore, which she jointly owned with the Husband (hereinafter referred to as the “Seaview Property”). Her application was dismissed by the District Judge (“the District Judge”) on 2 May 2017 on the sole ground that the Wife should have applied to the Indonesian courts for financial relief before applying for the same in Singapore.

The Wife’s appeal was allowed by the Judicial Commissioner of the High Court (“the Judge”). The Judge held that the doctrine of natural forum does not apply to a determination under Ch 4A. The Wife thus need not show that Singapore is the more appropriate forum. The Judge then held that s 121D, which requires the applicant to show “substantial ground” for her application for financial relief, relates to the entirety of the merits of the application. That in turn requires the court to consider the nine factors enumerated under s 121F, which relate to the appropriateness of granting financial relief. Contrary to the position adopted by the District Judge, she also held that Ch 4A does not set out any rule that an applicant had to exhaust all available remedies in the jurisdiction in which the foreign divorce was obtained before making a Ch 4A application in Singapore. Instead, she emphasised that s 121F(2)(f) simply invites the court to assess whether the applicant had a good reason for choosing Singapore over any other jurisdiction in which he or she may have a right to obtain financial relief from the other party. Applying the factors in s 121F to the facts, the Judge observed that the parties have a significant connection to Singapore. She also held that given the Husband’s non-compliance with Indonesian court orders, it would be unfair and impractical to require the Wife to first seek financial relief from him in Indonesia. In addition, any order affecting the Seaview Property given by the Singapore court may be enforced in Singapore. It is therefore appropriate for the relief sought to be granted by a Singapore court. Accordingly, the Judge allowed the appeal and granted the Wife leave to make her application. Given that there was no Court of Appeal decision on the scope and application of the recently introduced provisions in Ch 4A, the Judge granted the Husband leave to appeal to this Court.

The parties’ submissions

The Husband, who was self-represented in this appeal, raised many grounds of appeal in his appellant’s case, which we summarise as follows: The Singapore courts have no jurisdiction because he has been domiciled or habitually resident for less than three years in Singapore. The proceedings should not be heard in Singapore because there is a valid pre-nuptial agreement that is governed by Indonesian law. Leave should not be granted because the Wife did not apply for financial relief in Indonesia, which shows that she is forum shopping. He had complied with the maintenance orders made in Indonesia ([6] above) and had in fact paid three times of what he was required to under those orders. His criminal convictions were a “hoax”. The Wife breached an “oath” given before the Judge that she would not lay claim to assets in Indonesia if the Singapore Courts were to divide the Seaview Property. He is not a fugitive, as evidenced by the stamps on his passports showing that he has been travelling to Indonesia and a certificate from what appears to be a local authority in West Jakarta stating that he has been domiciled there since 2012. His mother and his sisters have a claim to the Seaview Property.

At the hearing before us, he stated that his principal submission was that the Wife had not obtained a divorce in Indonesia. He claimed that the Indonesian court orders obtained by the Wife were “fake”.

The Wife essentially sought to defend the Judge’s decision. In response to the Husband’s allegations in relation to the Seaview Property, she submitted that: the Husband’s mother does not own the property; if the property were meant to be a gift to the Husband, he had integrated it into the pool of assets; no express, resulting or constructive trust of the Seaview Property arises in favour of the Husband’s mother; and if proceeds from a previous gifted property were...