Yap Chai Ling and another v Hou Wa Yi

• Judge: Chao Hick Tin JA
• Judgment Date: 05 July 2016
• Neutral Citation: [2016] SGCA 39
• Plaintiff Counsel: Koh Tien Hua and Yoon Min Joo (Harry Elias Partnership LLP)
• Hearing Date: 13 May 2016
• Docket Number: Civil Appeal No 172 of 2015
• Published date: 15 November 2017
• Citation: [2016] SGCA 39
• Subject Matter: Conflict of laws,Res judicata,Recognition of foreign divorce judgment,Decree absolute and decree nisi,Issue estoppel,Divorce,Family law
• Court: Court of Three Judges (Singapore)
• Defendant Counsel: Dorothy Chai Li Li (Dorothy Chai Law Practice)
• Year: 2016

Andrew Phang Boon Leong JA (delivering the judgment of the court): Introduction

This is an unus ual and unfortunate case, notwithstanding the important point of law that arises. It is unusual because a decree nisi (“the Decree Nisi”) issued by a Singapore court pursuant to an uncontested divorce petition is now sought to be rendered a nullity in circumstances where the husband has already passed away. It is unfortunate, not only because of the husband’s death, but also because there appears to be a high degree of animosity and acrimony between the parties. This may, in part at least, explain why the proceedings have been so vigorously prosecuted from the district court right up to this court despite the relatively small amount that is actually at stake.

The applicants (“the Appellants”), who are seeking, inter alia, a declaration that the Decree Nisi is null and void, are the executors of the husband’s (“the Husband”) estate and are the beneficiaries of the bulk of this estate under the Husband’s will dated 26 January 2002 (“the Will”). If the Appellants are successful in this appeal (and their application), the wife (“the Respondent”) will receive only what she is entitled to under the Will and will receive nothing from the ancillary orders that were made pursuant to the Decree Nisi (which the Respondent has also appealed against (see Hou Wa Yi v Yap Kiat Cheong [2009] SGDC 464 and below at [21])).

Against this backdrop, the issue which arises in this appeal is whether the Decree Nisi is a nullity on the basis that the marriage between the parties had, at the time the Decree Nisi was issued, already been dissolved by a prior divorce judgment issued by the Shanghai court (“the Shanghai divorce judgment”). This issue raises an important point of law as to whether or not the Shanghai divorce judgment is against public policy and should therefore not be recognised by the Singapore courts. If the Shanghai divorce judgment is recognised by the Singapore courts, the Decree Nisi would be a nullity and consequently, the Respondent would not be entitled to receive her share of the matrimonial assets pursuant to the ancillary orders made by the Singapore court on the back of the grant of the Decree Nisi.

We should pause to note – as we did at the outset of oral submissions before this court – that the issue with respect to recognition of the Shanghai divorce judgment is one of two main strings to the Appellants’ legal bow. The other main string is in the Appellants’ argument that the Decree Nisi had been granted contrary to relevant facts which, in turn, cast doubt on the factual basis for the grant of the Decree Nisi (ie, that the Husband and the Respondent had lived apart for four years before the filing of the divorce petition). As we intimated to counsel during oral submissions before us, we are of the view that both the District Judge (“the DJ”) and the High Court judge (“the Judge”) were correct in rejecting this argument and we therefore do not say anymore on this, save to make brief references where relevant. We are thus left with the first string which raises the question of whether the Shanghai divorce judgment is against public policy and should accordingly not be recognised in Singapore (which we will hereafter refer to as “Issue 1”).

However, as we mentioned during oral submissions to counsel for the Appellants, Mr Koh Tien Hua (“Mr Koh”), even if we were to hold that the Shanghai divorce judgment ought to be recognised (contrary to the views of both the DJ and the Judge), this would not necessarily conclude the appeal in favour of his clients. There is a further issue, which the Judge had also alluded to, which is whether, on the assumption that the Appellants are acting as the Husband’s personal representatives, they are (due to the Husband’s actions which would be attributed to them as his personal representatives) guilty of an abuse of process of the court under the well-established doctrine of extended res judicata and are, as a result, barred from raising the Shanghai divorce judgment as part of their case (we will hereafter refer to this as “Issue 2”).

When faced with the difficulties with his clients’ case arising from Issue 2, Mr Koh then argued at the oral hearing – contrary to what was stated in the original application and what he had maintained in the proceedings below – that the Appellants should be considered as having brought the application for declaratory relief in their personal capacities so that any actions by the Husband could not be attributed to them (we will hereafter refer to this as “Issue 3”).

Before proceeding to consider each of these issues seriatim, we set out in more detail the facts and background as well as the respective decisions of the DJ and the Judge in the courts below.

The facts The marriage

On 21 August 1991, the Husband, a Singapore citizen, married the Respondent, a Chinese national, and registered their marriage in Shanghai (“the Shanghai Ceremony”). The married couple subsequently moved to Singapore.

The Husband then applied for the marriage to be registered in Singapore. He had, however, overlooked the fact that at the time of his marriage to the Respondent in Shanghai, he was still legally married to his previous wife. The Husband married his previous wife in Singapore on 28 September 1959. At the time of the Shanghai Ceremony, he had only obtained a decree nisi (as opposed to a decree absolute) in respect of his previous marriage. For this, he was charged with bigamy in January 1992 and the Respondent was deported. The charge was later dropped.

On 1 June 1992, a decree absolute was granted dissolving the Husband’s previous marriage in Singapore. This paved the way for the Respondent’s return to Singapore. The Husband and the Respondent then solemnized and registered their marriage in Singapore on 30 September 1992 (“the Singapore Ceremony”). They lived in Singapore thereafter.

The divorce proceedings

Unfortunately, the marriage broke down. From July 2000 onwards, the Husband and the Respondent began living in separate rooms. On 25 April 2001, the Husband commenced, in Singapore, Divorce Petition No 601380 of 2001 seeking a dissolution of the marriage due to the Respondent’s unreasonable behaviour. This petition was contested by the Respondent and the Husband subsequently withdrew it on the understanding that they would proceed with the divorce on an uncontested basis. In November 2002, the Respondent left Singapore and returned to Shanghai for good.

The Shanghai divorce proceedings

On 13 July 2004, the Husband commenced divorce proceedings in the Min Xing District People’s Court in Shanghai (“Shanghai first instance court”). The Respondent contested the proceedings on the basis that the marriage in Shanghai was null and void since the Husband was still legally married to his previous wife at the time of the Shanghai Ceremony. In addition, she took the position that divorce proceedings should be commenced in Singapore instead of Shanghai.

On 24 March 2004, the Shanghai first instance court ruled against the Respondent and granted the divorce (ie, the Shanghai divorce judgment). The court agreed with the Respondent that the marriage was not valid at its inception but held that it became valid from 1 June 1992, when the Husband obtained the decree absolute in respect of his previous marriage in Singapore.

Dissatisfied, the Respondent appealed against the Shanghai divorce judgment. On appeal, the Respondent argued substantially the same points while the Husband adopted the reasoning of the court below. She argued that by reason of the decree absolute, “the situation causing the marriage to be void was no longer in existence, thus the marriage registration of both parties in Shanghai had become a valid marriage”.

On 20 June 2005, the Shanghai No 1 Intermediate People’s Court (“the Shanghai appellate court”) dismissed the appeal. The Shanghai appellate court explained that the marriage law “stipulates that the People’s Court shall not grant an application for a declaration that a marriage is void when the situation causing the marriage to be void is no longer in existence at the time of the application”. Thus, the Shanghai appellate court held that the marriage in Shanghai, while invalid at its inception, became valid from 1 June 1992 when the decree absolute was granted in Singapore.

Both at first instance and on appeal, the Husband and the Respondent stated that they did not want the Shanghai courts to divide the matrimonial assets. At a separate point in time afterwards, the Husband applied to the Chinese courts for division of the matrimonial assets. On 11 June 2006, the Chinese courts ordered a division of the Chinese assets only, leaving the Singapore assets untouched.

Singapore divorce proceedings

On 20 May 2005, the Respondent filed Divorce Petition No 2201 of 2005 (“D 2201”), citing the Husband’s unreasonable behaviour as the reason for the irretrievable breakdown of the marriage. The Husband responded by filing a summons to strike out D 2201 but subsequently withdrew it. One year later, the Respondent amended the petition by deleting the reference to the Husband’s unreasonable behaviour. This time, she cited as the basis for the divorce the fact that she and the Husband had lived apart for a continuous period of at least four years prior to the filing of D 2201. Following this, the matter proceeded on an uncontested basis and the court granted the Decree Nisi on 29 September 2006.

When the parties attended before a district judge for the hearing of the ancillary matters on 17 December 2007, the judge raised concerns over the effect of the Shanghai divorce judgment.

The Husband then filed two successive applications for a declaration that the Shanghai divorce judgment had dissolved the marriage and that D 2201 should therefore be struck out...