USE v USF

CourtFamily Court (Singapore)
JudgeToh Wee San
Judgment Date15 January 2019
Neutral Citation[2019] SGFC 8
Citation[2019] SGFC 8
Docket NumberD5458 of 2017
Hearing Date13 September 2018,09 October 2018
Plaintiff CounselPC: Mr Sankar S/O Saminathan (Sterling Law Corporation)
Defendant CounselDC: Ms Remya Aravamuthan (Remya A Law Practice)
Subject Matterancillary matters,Stay of divorce proceeding in Singapore
Published date22 January 2019
District Judge Toh Wee San:

This is the plaintiff husband (H)’s appeal against my decision to grant the defendant wife (W)’s application to stay H’s divorce application in Singapore, pending the outcome of W’s divorce proceeding in India. I explain my decision below.

Background

Parties are citizens of India and permanent residents of Singapore. At the time of the hearing, H was about 39 years old and working in Singapore. W was 36 years old and residing in India with the children. Both were post-graduates and well educated. They married in India in May 2008 and have two daughters aged about 8 and 5 years old. Un-fortunately parties’ marriage was on the rocks. W and the children left H and went back to India in 2015. H agreed to the separate living arrangement in India but discovered subsequently that W had a male lover in India, though this was denied by W.

W and the children have resided in India for close to 3 years when H commenced divorce in Singapore. H called W to return to Singapore with the children to see the children. W agreed but when she landed in Singapore, the divorce papers were served on her at the airport taking her by surprise. W’s former counsels attempted to settle the matter but failed.

W filed her Memorandum of Appearance to inform of her intent to defend the action and filed her papers eventually. H also filed his papers. Meanwhile both parties also filed summons regarding interim care, control and access to the children and these have been dealt with. While these were happening, W had returned to India with the children. W commenced actions in India without notifying H. Her action included maintenance for W, injunction against H to visit the children and divorce in the Indian courts. W then applied to the Singapore courts to grant leave for her to withdraw all her divorce papers filed in Singapore and strike out H’s divorce papers in Singapore. Alternatively, she asked for the stay application and also to stay all their interim applications based on forum non conveniens.

The Law

Both sides agreed that the applicable legal test is the “Spiliada” test1 (the test). Stage one of the test requires the applicant for the stay to show that there is another available forum that is clearly or distinctly more appropriate than Singapore to determine the dispute. The court will consider connecting factors such as factors affecting convenience or expense (e.g. availability of witnesses), the law governing the transaction and places where the parties reside or carry on businesses etc. If there is another forum prima facie more appropriate, the court will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless be refused. At this stage, the burden shifts to the objecting party to show such special circumstances. It was emphasized that the mere fact that the plaintiff has a legitimate personal or juridical advantage in proceedings in SG is not decisive, regard must be had to the interest of all the parties and the ends of justice.

Parties’ case in brief

W’s case was basically she has satisfied the test by showing that India was a more appropriate forum. Hence the burden is on H to show that there were special circumstances to reject the stay and H had failed to do so.

W argued that the divorce papers were served on her at the Singapore airport as a surprise, after she was “tricked” by H to return to Singapore. After that her counsel attempted to settle the matter but to no avail. She served her papers in due course and so did H. H filed and she also filed, in reply to H, interim summons over children issues. How-ever parties have no financial issues for determination and the key contention is over children issues. Parties do not own joint properties in Singapore and the Statement of Claim did not set out any properties for division. Hence there is no need for the proceeding to be heard in the Singapore Courts to determine the division of financial assets. As the children have been residing in India and the childcare arrangements are in India, the Indian court is best placed to culturally assess and evaluate those issues. Similarly, maintenance orders can be obtained in India as the courts are better able to determine the living expenses of W and the children based on the cost of living in India.

W also highlighted that she is unable to carry on with the divorce in Singapore as she cannot attend the hearings (i.e. the contested divorce) and she wanted to save money for the children. W argued that it will not be in the children’s interest to continue the divorce in Singapore as stability of the children’s routine and lives are important.

H did not agree with the stay application. I understand H’s case to be W had not shown that India rather than Singapore was a more appropriate forum to resolve the dispute. PC further argued at the 11th hour that even if W had shown that India was a more appropriate forum, she had submitted to the Singapore court’s jurisdiction under rule 325 of the Family Justice Rules. The latter was a valid reason to reject the stay application.

H’s case was he had been in Singapore since 2010 and intended to stay on. H said his children were keen to live and study in Singapore and he started proceedings in Singapore so as to get care and control of his children to also stay on in Singapore. It was disputed by parties re who would be a more suited care giver...

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