WDK v WDL

• Jurisdiction: Singapore
• Judge: Tan Shin Yi
• Judgment Date: 18 May 2022
• Neutral Citation: [2022] SGFC 42
• Court: Family Court (Singapore)
• Hearing Date: 24 August 2021,13 October 2021,17 November 2021,28 December 2021,06 January 2022
• Docket Number: FC/OSF 41/2021
• Plaintiff Counsel: Ms Chong Xin Yi (M/s Gloria James-Civetta & Co)
• Defendant Counsel: Defendant in Person.
• Subject Matter: financial relief,foreign divorce,substantial ground
• Published date: 26 May 2022

District Judge Tan Shin Yi: BACKGROUND

This is the Applicant Husband’s (“the Husband”) application for financial relief pursuant to section 121G of the Women’s Charter (“the Charter”). Leave for this application was granted on 23 September 2020, pursuant to section 121D of the Charter, in FC/OSF 58/2020.

In his application, the Husband sought orders for (i) the sale of the parties’ matrimonial flat in Singapore (“the Flat”); (ii) sole conduct of sale; and (iii) the net sale proceeds, after payment of the outstanding mortgage loan and refund of the parties’ Central Provident Fund (CPF) monies, to be divided 68-32 in favour of himself. The Husband also sought an order that he be paid the sum of $95,350 from the Respondent Wife’s (“the Wife’s”) share of the sale proceeds, being the monies paid by the Husband towards the Flat’s conservancy fees and property tax and the Wife’s share of their daughter’s expenses.

After hearing the parties, I made the following orders on 28 December 2021: Subject to the Housing and Development Board’s (HDB) approval, the Flat shall be sold in the open market within the period of 12 months from the date of this order. The net sale proceeds after deduction of the outstanding loan and refund to both parties’ CPF accounts of the monies utilized for the purchase of Flat with accrued interest, shall be divided as follows: the sum of $18,271 to be paid to the Wife and the rest to be paid to the Husband. The parties are to share the costs and expenses of sale in the proportion 35-65 with the Husband bearing the greater share. Both parties shall have joint conduct of sale of the matrimonial flat. The Registrar of the Family Justice Courts under section 31 of the Family Justice Act is authorized to execute, sign or indorse all necessary documents relating to the sale of the flat on behalf of either party should either party fail to do so within fourteen (14) days of written request being made to the party. Liberty to apply.

I then invited parties to make submissions on costs. On 6 January 2022, I ordered that the Wife is to pay costs of the application fixed at $4,000 to the Husband.

The Wife has appealed against the whole of my decision, including costs.

Proceedings in Germany and India

The parties were married in India in 2004 and have a daughter, A, who was aged 13 at the time of hearing. The family originally resided in Singapore until 2014, when they relocated to Germany for the Husband’s work. It is not disputed that in early 2015, the Wife left Germany alone and returned to Singapore. She has been residing here ever since, while the Husband and A continue to reside in Germany.

After the Wife left Germany, the Husband obtained an order from a German court dated March 2015, granting the Father “parental care” of A¹. In 2018, the Husband filed for divorce in Germany and the divorce was granted on 3 May 2019². The Wife was notified of the German divorce proceedings but did not contest the same. She claimed that she “refused to submit to the jurisdiction” ³ of the German court as she believed that the German court “lacked jurisdiction” over the parties. However, the Wife did not file any application in the German courts to set aside the divorce granted. Instead, in May 2020, she filed a suit in the family court in India for (i) a declaration that the German divorce decree was “null and void”; and (ii) an anti-suit injunction to restrain the Husband from filing any suit against her in any foreign court including Singapore. The Husband filed a counter-claim in the Indian proceedings.

On 18 October 2021, the Family Courts in New Delhi granted an order restraining the Husband from pursuing the issue of child maintenance in the Singapore courts until further orders. As at the date of hearing before me, the Husband stated that he was seeking review/clarification of the said order.

THE LAW

The applicable law is Chapter 4A of the Charter, which deals with financial relief consequential on foreign matrimonial proceedings. As provided in section 121A(2), this Chapter applies only to proceedings, decrees, orders or judgments given on or after June 2011. In the present case, the divorce was granted in Germany in May 2019 and Chapter 4A prima facie applies.

Section 121B of the Charter provides that where a marriage has been dissolved in a foreign country; and the divorce is entitled to be recognized as valid in Singapore under Singapore law, either party may then apply for an order for financial relief. Under section 121C, the Singapore court has the jurisdiction to hear an application for an order for financial relief if one of the parties to the marriage was either domiciled in Singapore on the date of application for leave, or habitually resident in Singapore for a continuous period of one year immediately preceding the date of application for leave.

In the present case, there is no dispute that the court has jurisdiction to hear this application as the Wife has been habitually resident in Singapore for the past 6 years. The disputed issue appears to be whether the divorce granted in Germany is one that is recognised as valid in Singapore.

Is the German divorce a valid divorce within section 121B of the Charter?

Before a party can apply for financial relief consequential to foreign divorce proceedings, he/she must seek leave of court to do so. In UFN v. UFM and another matter [2019] 2 SLR 650, the Court of Appeal opined that rule 40 of the Family Justice Rules (FJR) should be amended to provide for such applications for leave (pursuant to section 121D) to be heard ex parte. At the time, such leave applications were heard inter partes. Rule 40 of the FJR was subsequently amended in November 2019 to provide that applications for leave under section 121D were to be heard ex parte.

In the present case, the ex parte application for leave was filed in July 2020 under the amended FJR. Leave was granted in September 2020. The Court of Appeal in UFN v. UFM had held that it is the applicant’s burden in the ex parte application for leave to establish that (i) there is a valid foreign divorce; (ii) the Singapore court has jurisdiction; and (iii) there is substantial ground for the application to be made in Singapore. This approach was also affirmed in the subsequent case of VEW v. VEV [2022] SGCA 34.

The Wife claimed repeatedly that the German divorce was granted in error and was “invalid”. However, the evidence showed that the Wife was notified of the German divorce proceedings in 2018 and had confirmed that she was aware of the petition for divorce. She had also stated that she would not contest the divorce in Germany as “only courts in India have jurisdiction to decide”⁴ any petition for divorce between herself and the Husband. In my view, even though the legality of the German divorce is still being questioned in the court in India, this should not detract from the separate issue of whether the German divorce is recognised in Singapore. The relevant question here is not whether the Indian courts recognise the German divorce as a valid one, but whether the Singapore court recognises the German divorce, in order for Chapter 4A of the Charter to apply.

The Singapore court will generally recognise foreign divorces granted by a court of competent jurisdiction, in accordance with the rules of private international law⁵. Section 108 of the Charter also makes it clear that the rules of private international law apply in Singapore. In Yap Chai Ling and another v. Hou Wa Yi [2016] 4 SLR 581, the Court of Appeal found that recognising the foreign divorce would only require the Singapore courts to recognise that there was effectively a subsisting marriage between the parties at the date of the said divorce judgment⁶. Recognition may be withheld if such recognition was contrary to public policy.

Further the Court also recognised that, in line with Asha Maudgil v. Suresh Kumar Gosain [1994] 2 SLR (R) 427, it is sufficient that a foreign decree of divorce is granted by a court of either party’s domicile. This was also accepted by the Court of Appeal in UFN v. UFM. The High Court in Ho Ah Chye v. Hsinchieh Hsu Irene [1994] 1 SLR (R) 485 went even further and accepted that a foreign divorce could be recognized as long as there was a real and substantial connection between one party and the court which granted the divorce: “what entitles a Singapore court to assume jurisdiction must be equally effective in the case of a foreign court”⁷. In the present case, it is not disputed that the parties’ marriage was validly subsisting at the time the German court granted the divorce. It cannot be denied that Germany is the place of domicile of, or has a very real and substantial connection to, the Husband as parties moved to Germany in 2014 and the Husband and daughter continue to reside there.

The Wife is also not arguing that the recognition of the German divorce is contrary to public policy - her argument appears to be that the German divorce was not validly granted as only the court in India can grant a valid divorce between the parties. The Wife also referred to India as her “forum of choice”⁸ and submitted that since she and the Husband are both Hindus and had married in India under the Hindu Marriage Act (HMA), there is an “implied agreement for exclusive jurisdiction of Indian Courts” and the HMA “does not recognise any foreign court as a court of competent jurisdiction”⁹. The Wife also cited the case of Spiliada to argue that the family court in India is the more appropriate forum, “having closest and most real connection with the dispute”¹⁰.

This is not a case where the issue to be determined is whether Singapore, rather than India, is the appropriate forum for a divorce to be granted. The divorce was already granted in Germany in 2019. The relevant issue here is simply whether the German divorce is one entitled to be recognised as...