VH v VI and Another

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 17 December 2007
• Neutral Citation: [2007] SGHC 221
• Date: 17 December 2007
• Subject Matter: Conflict of Laws,Whether ends of justice served by granting anti-suit injunction,Civil Procedure,Stay of proceedings,Whether costs should be awarded to successful party that disregarded interim injunction,Anti-suit injunction,Forum non conveniens,Whether Singapore proceedings should be stayed in favour of Swedish proceedings at a more advanced stage,Natural forum,Divorce,Family Law,Whether Sweden more appropriate forum than Singapore because it provided easier fault-free divorces,Anti-suit injunctions to be issued with caution,Concurrent divorce proceedings in Singapore and Sweden,Costs,Injunctions
• Docket Number: Divorce Petition No 4042 of 2005 Summonses Nos 6355 and 6708 of 2007)
• Published date: 24 December 2007
• Defendant Counsel: Bernice Loo (Allen & Gledhill),Koh Tien Hua (Harry Elias Partnership)
• Court: High Court (Singapore)
• Plaintiff Counsel: Niko Isaac (Tito Isaac & Co)

[EDITORIAL NOTE: The details of this judgment have been changed to comply with the Children and Young Persons Act and/or the Women's Charter]

17 December 2007 Judgment reserved.

Kan Ting Chiu J:

Background

1 The petitioner, a French national, married the respondent, a Swedish national, in July 1993 in Sweden. They are permanent residents of Singapore and reside here with their two infant children who were born in Singapore and Indonesia. The respondent runs his own business, after a successful career with a multi-national corporation, and the petitioner was a lecturer in French.

2 The marriage has broken down and the relationship between them is acrimonious. On 13 September 2005, the petitioner commenced divorce proceedings here (“the Singapore proceedings”) against the respondent on the ground, inter alia, that the marriage had broken down irretrievably because the respondent committed adultery with the co-respondent named in the petition. The petitioner was able to file the petition in Singapore because s 93(2) of the Women’s Charter (Cap 353 1997, Rev Ed) gives the Singapore courts jurisdiction when one of the parties has been habitually resident in Singapore at the commencement of the proceedings.

3 The respondent submitted to the jurisdiction of the Singapore courts when the divorce petition was served on him. He had filed his answer to the petition on 18 October 2005 and has filed several interlocutory applications. The Singapore proceedings have not progressed very far, and have not been fixed for hearing. On 28 November 2006, he filed an application to stay the Singapore proceedings pending the determination of divorce proceedings before the Stockholm City Court, Stockholm, Sweden (“the Swedish proceedings”). This application was dismissed on 9 March 2007 and comes before me on appeal.

4 The respondent had filed the Swedish proceedings on 4 October 2006. The petitioner had applied to the Swedish District Court to stay the Swedish proceedings because of the ongoing Singapore proceedings. The application was heard by the Swedish court on 9 January 2007. The court dismissed the petitioner’s application to stay the proceedings and ordered a reconsideration period of six months, after which the respondent could request for a Divorce Decree to be issued. The appeal against the dismissal was likewise dismissed on 26 April 2007 by the Swedish High Court. An application to the Swedish Royal Court of Appeal for leave to appeal was dismissed on 4 July 2007.

5 On 15 May 2007, the respondent applied for a Divorce Decree to be issued, and it was issued on 26 June 2007, dissolving the marriage.

6 The petitioner having failed to stay the Swedish proceedings in Sweden, applied for an anti-suit injunction in the Singapore proceedings to restrain the respondent from continuing with the Swedish proceedings. The application was filed on 3 May 2007 and came on for hearing before me on 8 May 2007, i.e. the day before the expiration of the six-month reconsideration period, on an urgent basis.

7 It was evident that neither the parties nor the court were prepared, or had the time for a full hearing of the application on 8 May 2007. In the circumstances, I ordered that the respondent was to file his affidavit in reply to the application by 29 May 2007 and that the application be fixed for hearing by the Registry after 29 May 2007. To preserve the situation, I also issued an interim injunction prohibiting the respondent from proceeding with the Swedish proceedings pending the hearing and disposal of the application for the anti-suit injunction.

8 The respondent disregarded the order. He applied on 15 May 2007 to the Swedish Courts to issue the Divorce Decree, and it was issued on 26 June 2007.

9 When the parties came before me again on 12 July 2007, the situation was that there were the ongoing Singapore proceedings which were in a relatively early stage, and the Swedish proceedings which had progressed substantially.

10 The two issues to be addressed in the hearing before me are whether the Singapore proceedings should be stayed, and whether there should be an anti-suit injunction.

11 There is a common element in both applications. They both refer to the forum in which a dispute is to be determined. In an application for a stay order on the ground of forum non conveniens, the applicant seeks to stay existing proceedings in the jurisdiction where the application is made, on the basis that the dispute should be resolved in another jurisdiction instead.

12 In an application for an anti-suit injunction, the applicant seeks to restrain another party from commencing or continuing with proceedings in another jurisdiction on the ground that the dispute should be determined in the jurisdiction where the application is made.

13 The tests for these applications are set in different terms, i.e. the existence of a more appropriate forum for a stay order, and the furtherance of the ends of justice for an anti-suit injunction. It would be interesting to examine the similarities and differences between them. However, it is not necessary, and I will not do it in this judgment, and will deal with each application and its test separately.

The respondent’s stay application

14 The respondent’s application was made in rather exceptional circumstances. He did not do anything to stay the proceedings when they commenced in September 2005. He filed his answer, and attended mediation hearings in the course of the Singapore proceedings.

15 He did not commence divorce proceedings in Sweden till October 2006. It was only in November 2006, 13 months into the Singapore proceedings, that he applied for them to be stayed pending the Swedish proceedings.

16 Why did the respondent engage in the Singapore proceedings for so long before applying for a stay? In his affidavit filed on 10 July 2007, he explained:

56. I will now explain why I filed the Swedish divorce proceedings only in October 2006 and not earlier. It was not done out of an intention to thwart the Singapore divorce proceedings or to deprive the Petitioner of a divorce and fair resolution of the ancillary matters, which is what the Petitioner has accused me of. To the contrary, it was done in the best interests of both the Petitioner and me, and in the children’s best interests. (Emphasis added)

57. It was my intention all along to try to settle the divorce and ancillary matters amicably and expeditiously. As I mentioned earlier, one example of such intention was when I offered, in my Answer, to have the divorce granted on the basis of my “unreasonable” behaviour.

58. I understood that the Singapore Court offered mediation services in divorce cases. I had great faith that the Singapore Court would be able to convince the Petitioner and help us both settle the matter without the need for protracted, painful and costly litigation.

59. Hence, I asked my solicitors to quickly get mediation dates fixed. I agreed to take part in the mediation sessions and, only in this sense, to continue with the Singapore proceedings. In other words, I agreed to continue with the Singapore proceedings only so as to participate in the mediation sessions, in the hope that it would lead to a speedy and amicable settlement.

and he recounted that he and the petitioner attended at mediation services between February and June 2006, although the petitioner had informed him in March 2006 that she intended to withdraw from the mediation services.

17 The respondent’s explanation and conduct show that he has submitted to the jurisdiction and had hoped that the Singapore proceedings would lead to a speedy and amicable settlement.

18 He is represented by counsel throughout the Singapore proceedings. He must have known that he could institute divorce proceedings in Sweden or seek an order that any divorce proceedings to dissolve the marriage should be instituted in Sweden, and he could apply to stay the Singapore proceedings. He did not do that at the outset because he decided at that time that Singapore was a proper forum for the divorce proceedings. It was only when no speedy and amicable settlement was reached that he decided to commence the Swedish proceedings.

19 He went on to explain in his affidavit:

71. I had been advised that, under Swedish divorce laws, the Petitioner would not be prejudiced in any way. In fact, under Swedish law, the Petitioner would get a very fair “deal”. (Emphasis added)

72. For example, in Sweden, the divorce would be granted within months, on a no-fault basis. After all, a divorce was what the Petitioner and I both want.

73. The Petitioner and I would have joint custody of the children. We have already both agreed to this. In any event, I understand this is also likely to be the position the Singapore Court would take.

74. The Petitioner is entitled to ask for maintenance for herself. The Petitioner and I are entitled to ask for maintenance for the children.

75. Both parents are obliged to maintain the children. I understand this is the same under Singapore law.

76. Under Swedish law, the Petitioner is entitled to 50% of the matrimonial assets. This is what the Petitioner has always wanted. In fact, as I understand it, under Singapore law, it is likely that the Petitioner will get less than 50% of the matrimonial assets as she did not make any financial contribution to acquire them.

77. My Swedish solicitor, Ms Sophie Paulsson, is filing an affidavit in support of the Swedish position on divorce laws, and explaining the relevant Swedish legislation.

78. Hence, the Swedish divorce process is fair to both the Petitioner and me. (Emphasis added)

79. Clearly, the Swedish divorce process is also in the children’s best interests. Their parents would not have to air their dirty laundry in public and sling mud at each other in order to get a divorce. The children would be protected, vis a vis the joint custody order, and maintenance would be provided for them.

80. It was for all these...