Yap Chai Ling and another v Hou Wa Yi

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng JC
• Judgment Date: 12 November 2015
• Neutral Citation: [2015] SGHC 296
• Date: 12 November 2015
• Docket Number: Originating Summons (Family) No 330 of 2013 (Registrar’s Appeal (State Courts) No 110 of 2014)
• Published date: 12 July 2016
• Plaintiff Counsel: Koh Tien Hua (Harry Elias Partnership LLP)
• Hearing Date: 04 November 2014,28 November 2014,02 March 2015
• Defendant Counsel: Dorothy Chai Li Li (Dorothy Chai Law Practice)
• Court: High Court (Singapore)
• Subject Matter: Recognition of foreign divorce judgment,Divorce,Family law,Decree absolute and decree nisi,Conflict of laws

Hoo Sheau Peng JC: Introduction

In the appeal before me, the central dispute was whether a decree nisi obtained in an uncontested divorce petition should be set aside (with the consequential setting aside of orders on ancillary matters) on the application of the late husband’s personal representatives based on facts (particularly facts about a prior foreign divorce judgment) which were known to the parties to the marriage but not raised by them at the time of the divorce hearing.

The appellants, Yap Chai Ling and Yap Swee Jit (“the appellants”), are the personal representatives of the late Yap Kiat Cheong (“the Husband”). The respondent, Hou Wa Yi, was his wife (“the Wife”). For convenience, I will refer to the Husband and the Wife collectively as “the Parties”.

On 20 May 2005, the Wife filed Divorce Petition No 2201 of 2005/B (“D 2201/2005”) in the District Court, seeking a dissolution of the Parties’ marriage. On 26 September 2006, a decree nisi was granted on an uncontested basis (“the Decree Nisi”). Three years later, several orders were made in respect of the ancillary matters (“the Ancillary Orders”). The Wife appealed against the Ancillary Orders. Before her appeal could be dealt with in the High Court, the Husband passed away on 8 February 2011.

On 22 July 2013, the appellants filed Originating Summons (Family) No 330 of 2013 (“the application below” or “OSF 330/2013”), seeking, inter alia, an order to set aside the Decree Nisi and, consequentially, to set aside the Ancillary Orders. District Judge Tan Peck Cheng (“the DJ”) dismissed the application on 12 May 2014 and set out the grounds of her decision in Yap Chai Ling and another v Hou Wa Yi [2014] SGDC 299 (“the GD”). The appellants appealed to this court.

On 2 March 2015, I dismissed the appeal. On 21 August 2015, the Court of Appeal granted leave for the appellants to appeal against the decision. The appellants filed the appeal on 3 September 2015. Thus, I now provide my detailed reasons.

Background Facts

I begin with the rather convoluted history of the case. On 21 August 1991, the Husband, a Singapore citizen, and the Wife, a Chinese national, registered their marriage in Shanghai (“the Shanghai marriage”) after which they moved to Singapore. The Husband tried to apply for the marriage to be registered in Singapore. It soon transpired that, at the time of the Shanghai marriage, he was still legally married to his previous wife. He had married his previous wife in Singapore on 28 September 1959 in accordance with Chinese customary rites but had only obtained a decree nisi (and not a decree absolute) in respect of this marriage, before he purported to marry the Wife. For this reason, the Husband was charged for bigamy in January 1992 and the Wife was deported.

Later, the charge for bigamy was dropped as it appeared that the Husband had thought that a grant of a decree nisi was sufficient to dissolve a marriage. On 1 June 1992, the High Court granted the decree absolute in respect of his previous marriage, facilitating the return of the Wife to Singapore. The Parties then solemnised and registered their marriage in Singapore on 30 September 1992 (“the Singapore marriage”) after which they made their home in Singapore.

Unfortunately, the marriage broke down. From July 2000 onwards, the Parties began living in separate rooms. On 25 April 2001, the Husband commenced Divorce Petition No 601380 of 2001 (“D 601380/2001”) to seek the dissolution of the marriage on the basis of the Wife’s unreasonable behaviour. This petition was contested by the Wife. The Husband withdrew D 601380/2001 on 27 November 2001 on the understanding that they would proceed to divorce on an uncontested basis. In November 2002, the Wife left Singapore and returned to Shanghai, where she made her home.

Divorce proceedings in Shanghai

On 13 July 2004, the Husband commenced divorce proceedings in the Min Xing District People’s Court in Shanghai (“the Shanghai court of first instance”) on the basis that he and the Wife had lived separate lives since July 2000. The Wife contested the proceedings on the basis that the Shanghai marriage was null and void from the outset since the Husband was still legally married to his previous wife at the time it was registered. She also contended that divorce proceedings should be taken up in Singapore instead of Shanghai. On 24 March 2004, the Shanghai court of first instance ruled against the Wife and granted the divorce (“the Shanghai divorce judgment”). While the court agreed that the Shanghai marriage was not valid at its inception, it held that the Shanghai marriage became valid from 1 June 1992, when the High Court of Singapore granted the Husband a decree absolute in respect of his marriage with his previous wife.

The Wife then appealed to the Shanghai No 1 Intermediate People’s Court (“the Shanghai appellate court”), canvassing the same argument on appeal, viz, that the Shanghai marriage was null and void to begin with so there was no marriage to dissolve. In response, the Husband adopted the reasoning of the Shanghai court of first instance and argued that, by reason of the grant of the decree absolute on 1 June 1992, “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 appellate court upheld the decision of the Shanghai court of first instance and likewise held that the Shanghai marriage, while invalid at its inception, became valid from the time of the grant of the decree absolute on 1 June 1992.

It is notable that, both at first instance and on appeal, the Parties stated that they did not want the Shanghai courts to divide the matrimonial assets. However, sometime later, the Husband applied separately to the Chinese courts for a division of the matrimonial assets. On 11 June 2006, the Chinese courts ordered a division of the Parties’ Chinese assets only (leaving the assets in Singapore untouched).

Divorce proceedings in Singapore

On 20 May 2005, the Wife filed D 2201/2005. She cited the Husband’s unreasonable behaviour as the premise for her claim that there had been an irretrievable breakdown of the marriage. On 27 January 2006, the Husband responded by filing Summons No 1348/2006/G to strike out the divorce petition. The summons was subsequently withdrawn. A year later, on 15 June 2006, the Wife amended the petition by deleting the reference to the Husband’s behaviour and citing the fact that the parties had lived apart for a continuous period of at least four years prior to the filing of the petition as the basis for the divorce. Following the amendment, the divorce proceeded on an uncontested basis and the Decree Nisi was granted on 26 September 2006.

When the parties attended before a district judge for the hearing of the ancillary matters on 17 December 2007, the court raised concerns over the effect of the Shanghai divorce judgment. Thereafter, the Husband proceeded to file (and subsequently withdraw) two successive applications for declarations that the Shanghai divorce judgment had dissolved the marriage and that D 2201/2005 should therefore be struck out and the Decree Nisi rescinded on the basis that there had never been any subsisting marriage for the Singapore court to dissolve. The first application was an originating summons filed on 2 June 2008 in the High Court and withdrawn on 30 September 2008. The second was a summons filed in D 2201/2005 itself, which was withdrawn on 3 April 2009.

The withdrawal of the two applications paved the way for the ancillary matters to be heard. During the hearing on the ancillary matters, the District Court was informed that the Parties had agreed that the Chinese properties had been dealt with by the Shanghai courts and that no further orders should be made for their division in Singapore. On this premise, the District Court proceeded to give certain orders as to the division of the Parties’ Singapore assets. Soon after, the Husband requested for leave to present further arguments to the effect that a shophouse (worth $1.7m) should be excluded from the pool of matrimonial assets because the Wife had previously agreed to this. On 19 November 2009, this request was granted and the District Court accepted the Husband’s argument, varying the ancillary orders to exclude the shophouse from the pool of matrimonial assets. This is the form the Ancillary Orders presently take. Without going into too much detail, the Ancillary Orders pertained to the division of property, shares, and several sums of money in bank accounts. The Wife was awarded $62,176.87, representing her share of the matrimonial assets, and a lump sum maintenance of $14,400. This added up to a total sum of approximately $76,576. Dissatisfied, the Wife appealed the Ancillary Orders in Registrar’s Appeal (State Courts) No 149/2009/C (“RAS 149/2009”).

Events following the Husband’s death

On 8 February 2011, while RAS 149/2009 remained pending, the Husband passed away. On 22 March 2011, RAS 149/2009 was adjourned sine die. In his will dated 26 January 2002 (“the Will”), the Husband left the bulk of his estate comprising, inter alia, two properties (including the Parties’ matrimonial home) and the monies in his Central Provident Fund account to the first and second appellants, who were his niece and nephew respectively. The Wife received $1,000 under the Will. I pause here to observe that the Will antedated the Ancillary Orders, which is why many provisions were made for the distribution of assets which were subsequently ordered to be divided under the Ancillary Orders. The appellants were named as the executors of his estate, and were granted letters of probate on 29 March 2011.

On 3 June 2011, the appellants applied to have the Decree Nisi made absolute. This was refused by the District Court on 27 September 2011 on the...