WJK v WJL

• Jurisdiction: Singapore
• Judge: Darryl Soh
• Judgment Date: 22 December 2022
• Neutral Citation: [2022] SGFC 85
• Court: Family Court (Singapore)
• Docket Number: Originating Summons (Family) No. 27 of 2022
• Published date: 23 December 2022
• Year: 2022
• Hearing Date: 12 August 2022,28 June 2022
• Plaintiff Counsel: A Shahiran Anis bin Mohamed Ibrahum and Marcus Tai Kai Xuan (M/s Asia Law Corporation)
• Defendant Counsel: Tan Cheng Kiong (M/s CK Tan Law Corporation)
• Subject Matter: Family law,Ancillary powers of court,Financial relief consequential on foreign matrimonial proceedings,Leave
• Citation: [2022] SGFC 85

District Judge Darryl Soh: Introduction

This matter concerns the Plaintiff’s intention to apply for financial relief consequential on foreign matrimonial proceedings against the Defendant. Whilst the parties were divorced in 2014, I will refer to them in their prior capacities as the “Wife” and the “Husband” respectively and collectively as the “Parties” herein for ease of reference. Before the Wife can file her intended application, the Wife must first seek leave pursuant to s. 121D of the Women’s Charter 1961 (2020 Rev Ed) (“the Charter”). The Wife applied for leave by way of FC/OSF 27/2022 on 22 April 2022 (“the Application”) and I granted her leave on 12 August 2022 in respect of the Parties’ share in three immovable properties in Singapore. The Husband has since appealed. In these grounds, I set out my decision in detail.

Background

The Parties are both Indonesian citizens and they were married for about 22 years. They registered their marriage in Indonesia in 1992 and their marriage was dissolved in Indonesia in 2014. There are two children of the marriage, both of whom are Indonesian citizens and are already adults. The Parties have since remarried, with the Husband now married to a Singapore Permanent Resident.

The Parties were divorced on or around 26 November 2014 in Indonesia. The Wife did not participate in the proceedings at first instance that were commenced by the Husband, but she subsequently sought to appeal and have the decision reviewed by the superior courts (“Indonesia Divorce Proceedings”). In 2021, the Husband applied in HC/OS XXX/XXXX to the Singapore High Court (“Singapore High Court Proceedings”) for an order for the sale of three properties in Singapore co-owned between the Parties and the Husband’s brother. The Wife’s Application was commenced following directions issued in the Singapore High Court Proceedings. Given the relevance of both the Indonesia Divorce Proceedings and the Singapore High Court Proceedings (especially on the scope and context of the Application by the latter), I will elaborate on each of those proceedings.

Indonesia Divorce Proceedings

On 23 September 2014, the Husband commenced divorce proceedings against the Wife in Indonesia on account that he was treated unreasonably by the Wife during the course of the Parties’ marriage.¹ The divorce papers were served on the Wife, but she was absent during the Indonesian District Court proceedings.² That court heard oral evidence from the Husband and his witnesses, and subsequently dissolved the marriage on or around 26 November 2014.³ No submissions or orders were made in respect of the division of matrimonial assets.⁴ The Wife was subsequently notified of the court’s decree.⁵

On 13 April 2015, the Wife appealed against the divorce decree.⁶ She argued therein that she was not properly served with the divorce papers and the decree consequently ought to have been set aside. The appellate court disagreed with the Wife and dismissed her appeal on 22 September 2015. In those proceedings, no submissions or orders were made in respect of the division of matrimonial assets.⁷

On 20 October 2015, the Wife applied to the Indonesian High Court to intervene in separate litigation between the Husband’s father and the Husband pertaining to two Indonesian properties which she contended were matrimonial assets.⁸ She applied for the ownership of those properties to be determined. She had believed that those properties were ceded to the Husband’s father so as to be shielded from any division of matrimonial assets. The Indonesian High Court granted her application on or around 14 March 2016, but the Wife did not proceed with the substantive hearing as she was advised that doing so would have incurred additional legal costs (which she was not in a position to spend at the time) and could unravel the divorce decree, with the end result being that she would continue being married to the Husband.

There were other litigation concerning the Parties and members of the Husband’s family following the Parties’ divorce both in Indonesia and Singapore.⁹ Save for the Singapore High Court Proceedings that I will elaborate on next, I will touch on this in the context of the length of time between the 2014 divorce and the Wife’s Application in 2022. See below at [34] – [35].

Singapore High Court Proceedings

The Husband commenced the Singapore High Court Proceedings on 2 February 2021 against his brother for an order for the sale of three Singapore properties (“Three Material Singapore Properties” – these are distinguished from the three additional sold properties that the Wife also sought financial orders for at [39] below) co-owned between the Parties and the Husband’s brother. The Parties jointly held a 50% share in each of the said properties, with the Husband’s brother holding the other 50% share. Those properties are located in central Singapore and were of value.

The Husband contended that the Three Material Singapore Properties were never matrimonial properties.¹⁰ They were purchased as a “family investment” to benefit the Husband and his brother – for the avoidance of doubt, the reference to “family” refers to the Husband’s family – with joint investment funds from his late father, his brother and himself. The Husband emphasised that this investment was never intended to benefit the Wife and that the Wife did not contribute in cash or in kind towards the purchase of those properties. The Husband averred that the Wife’s name was included in the title “unintentionally” (a term which I am unsure what he intended to mean) as she insisted that her name should be put together with his as, at that time, she was still his wife. Further, when the Parties’ marriage was on the rocks and heading for a divorce, the Wife gave him powers of attorney for each property whereby he could act without reference to her.

The Wife was not initially involved in the Singapore High Court Proceedings. She subsequently came to know of the proceedings and intervened, during which she withdrew her powers of attorney in respect of the Three Material Singapore Properties. She indicated to the court that she would lay claim to her share over the Three Material Singapore Properties in matrimonial proceedings in Singapore.

The learned Justice Aedit Abdullah presided over the Singapore High Court Proceedings. On 18 March 2022, Justice Abdullah ordered the Three Material Singapore Properties to be sold and for the Husband’s brother to have conduct of the sale. Inter alia, Justice Abdullah directed for the proceeds of sale representing the share in dispute, i.e. 25%, between the Parties to be held in escrow pending the determination of the matrimonial property rights (if any) between the Husband and the Wife. The Wife was directed to file her matrimonial application within six weeks, failing which the amount in escrow is to be released to the Husband alone.

Wife’s Application

Following from the directions made in the Singapore High Court Proceedings, the Wife’s Application was filed on 22 April 2022 at the Family Justice Courts. She sought for leave, as required by s. 121D of the Charter, to file an application for financial relief consequential on foreign matrimonial proceedings against the Husband under s. 121B of the Charter.

Considering the circumstances and submissions made in respect of this case, it will be useful for me to first set out the applicable law governing the Wife’s Application before turning to the Parties’ respective cases and my decision. This will provide the necessary context of the adjudicated issues.

Applicable Law Governing the Application

An application for an order for financial relief consequential on foreign matrimonial proceedings and the requirement for leave of court to be first sought are set out in ss. 121B and 121D of the Charter respectively:

Applications for financial relief after overseas divorce, etc.

121B. Where — (a) a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in a foreign country; and (b) the divorce, annulment or judicial separation is entitled to be recognised as valid in Singapore under Singapore law,

either party to the marriage may apply to the court in the manner prescribed in the Family Justice Rules made under section 139 for an order for financial relief under this Chapter.

…

Leave of court required for applications for financial relief

121D.—(1) No application for an order for financial relief shall be made unless the leave of the court has been obtained in accordance with the Family Justice Rules made under section 139. (2) The court shall not grant leave unless it considers that there is substantial ground for the making of an application for such an order. (3) The court may grant leave under this section notwithstanding that an order has been made by a court of competent jurisdiction in a foreign country requiring the other party to the marriage to make any payment or transfer any matrimonial asset to the applicant or a child of the marriage. (4) Leave under this section may be granted subject to such conditions as the court thinks fit.

In addition, the court’s jurisdiction to hear an application for an order for financial relief is prescribed in s. 121C of the Charter:

Jurisdiction of court

121C. The court shall have jurisdiction to hear an application for an order for financial relief only if — (a) one of the parties to the marriage was domiciled in Singapore on the date of the application for leave under section 121D or was so domiciled on the date on which the divorce, annulment or judicial separation obtained in a foreign country took effect in that country; or (b) one of the parties to the marriage was habitually resident in Singapore for a continuous period of one year immediately preceding the date of the...