Andrew Phang Boon Leong JCA (delivering the judgment of the court):
Introduction and overview
The present appeal raises – in stark relief – the delicate process of balance that must be undertaken where potentially competing public policies are involved. On the one hand, there is the public policy embodied in (here, foreign) legislation intended to relieve the financial hardship that results despite the fact that a matrimonial order has been handed down in a foreign jurisdiction whilst there is, on the other, the (here, local) public policy in ensuring that finality is maintained in court decisions (in this case, in the context of the division of matrimonial assets). In this last-mentioned regard, there is an especial concern with regard to preventing court decisions being attacked and/or subverted by what is (in substance and effect) re-litigation of issues that have already been determined by the court itself. Indeed, this particular issue is, as we shall see, at the centre of the present appeal. Given, in particular, the aforementioned tension (and the technical as well as policy complexities as well as detail in analysis that they entail), it might conduce towards clarity if we summarise our reasons and decision right at the outset of the present judgment.
In essence, the matrimonial assets in the present case had been divided by the Singapore court between the parties following their divorce. However, one particular asset – real property (the “Property”) located in London (and which constituted the most valuable asset) – was held not to be a matrimonial asset and was therefore not part of the pool of matrimonial assets that was divided between the parties by the Singapore court.
The appellant wife (the “appellant”) subsequently brought a claim pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 (c 42) (UK) (the “MFPA”) for financial relief centring on the Property after an overseas (here, Singapore) divorce. The purpose of this claim provided for by the MFPA was to furnish financial relief in situations of need notwithstanding the fact that financial provision might have been provided pursuant to a prior overseas divorce by the relevant court in that particular jurisdiction.
At first blush, the subsequent claim for financial relief in the English court appears separate and distinct from the earlier proceedings related to the division of matrimonial assets in the Singapore court. However, it should be noted that the Property was – literally at least −involved in both sets of proceedings. The respondent husband (the “respondent”) sought an anti-suit injunction (“ASI”) to prevent the appellant from continuing with the English proceedings, arguing, amongst other things, that there would be a re-litigation of matters that had already been decided by the Singapore court. The issue that arises is whether or not re-litigation would in fact take place were the proceedings in the English court permitted to continue, given that both sets of proceedings had (as just mentioned) different purposes – the application in the English court being one for financial relief following a divorce in Singapore, and the proceedings in Singapore being for the division of matrimonial assets in the aforementioned divorce.
At this juncture, it is of the first importance to note that the answer to the issue just set out must surely be one of substance and not merely form - literal or descriptive similarities and/or differences ought not to be legally or normatively determinative in and of themselves. Hence, for example, notwithstanding the fact that an application for financial relief in the English court might appear to have a different purpose from the previous matrimonial proceedings in the Singapore court, if the former is, in substance, a re-litigation of the latter, then that would, in our view, be impermissible as it would undermine or subvert the public policy relating to the finality as well as integrity of the Singapore courts’ decisions in relation to matrimonial proceedings. In that event, an ASI might indeed be granted by the Singapore court in order to restrain proceedings that are initiated in England. What would constitute re-litigation would depend on the precise facts and circumstances of the case. However, in the present case, we are of the view that there has been no re-litigation inasmuch as the claim initiated by the appellant for financial relief pursuant to Part III did not engage the distribution of the Property in relation to matrimonial proceedings simply because the Property was not considered part of the pool of matrimonial assets in the first place.
What, then, of the argument that the Singapore courts, by holding that the Property was not part of the pool of matrimonial assets, had in fact rendered a decision with respect to the matrimonial proceedings and that, therefore, the claim initiated by the plaintiff for financial relief pursuant to Part III did constitute a re-litigation of this particular decision? Whilst a not unattractive argument, it is our view that the fact that the Property had not been considered part of the pool of matrimonial assets meant that not a single iota of the Property could, ex hypothesi, have been the subject matter of distribution to one or both of the parties pursuant to the matrimonial proceedings. Looked at in that light, the subsequent claim initiated by the appellant for financial relief pursuant to Part III and which centred on the Property could not be construed as a re-litigation of a matter that, ex hypothesi, was never before the Singapore court hearing the matrimonial proceedings in the first place. It is important to emphasise once again that the inquiry is one of substance and not form. As importantly, it is an inquiry that should not be preoccupied with fine distinctions. As we pointed out to the parties during oral submissions before us, had the appellant accepted – without argument – that the Property did not form part of the pool of matrimonial assets, she would clearly not have been precluded from initiating a claim pursuant to Part III simply because the Property would clearly not have been the subject of the matrimonial proceedings in the Singapore court. The fact that she did argue – albeit unsuccessfully – that the Property ought to form part of the pool of matrimonial assets should not, in our view, make a difference. Indeed, to insist on drawing such a difference would be to engage in an overly technical inquiry that would produce rather arbitrary results. Such flexibility as well as the eschewing of an overly technical approach towards the concept of re-litigation is also needful in light of the fact that by their very nature, both Part III and Chapter 4A of the Women’s Charter (Cap 353, 2009 Rev Ed) (the “Women’s Charter”) would – literally speaking – often involve a consideration of the same facts that were before the court concerned in respect of the foreign divorce proceedings.
More importantly, the court should – as far as it is possible – attempt to give effect to the underlying policy and spirit of these statutory provisions that do presuppose that there have been prior foreign matrimonial proceedings and whose purpose is nevertheless to provide financial relief where it is necessary to do so. In the context of the present appeal, the fact that the Property had not been the subject of any division by the Singapore courts as it was considered not to be within the pool of matrimonial assets that was to be divided between the parties renders it less likely – if at all – that the public policy of Singapore in relation to the division of matrimonial assets would be contravened, whilst simultaneously rendering it an eminently appropriate resource from which the financial hardship of the appellant could be alleviated provided that the appellant can make good her claim pursuant to the letter as well as spirit of Part III, thus giving effect to the policy and spirit underlying Part III.
In the circumstances, as there has been no re-litigation of any kind, we think that an ASI should not have been issued in the present case. The appeal is therefore allowed and the ASI is set aside. It is therefore not necessary for us to elaborate on the possible examples of situations where there has, in fact, been a re-litigation that might justify the grant of an ASI. It suffices for the present to note that we prefer the test that focuses on whether or not the party against whom an ASI is granted had acted in a vexatious or oppressive manner (as opposed to having acted in an unconscionable manner), and we do not accept the appellant’s counsel’s submission that the former test may be subsumed within the latter (see [69] below). We endorse the test laid down in the High Court decision of AQN v AQO [2015] 2 SLR 523 (“AQN v AQO”) (which counsel for the respondent had cited to us). Indeed, in addition to the fact that the concept of unconscionability is a specific legal term of art in the sphere of equity, it also manifests itself in different concepts and may itself be too vague and general in specific contexts even within that particular sphere (see, in particular, this court’s decision in BOM v BOK and another appeal [2019] 1 SLR 349 (“BOM v BOK”)). It bears emphasising that given our finding in the present appeal that there has been no re-litigation of any kind to begin with (the reasons for which we will elaborate upon below), there has, ex hypothesi, been no conduct that could be considered vexatious or oppressive.
As already mentioned, the above is a summary as well as overview of our reasons and decision. For completeness, we note that following the hearing before us on 18 January 2022, counsel for the appellant sent a letter to the court on 20 January 2022 (the “20 January 2022 Letter”) to address us on some of the questions raised during the hearing. In the court’s reply to counsel on 21 January...
