Case Summaries

UFN v UFM [2019] SGCA 54

SUPREME COURT OF SINGAPORE

9 October 2019

Case summary

UFN v UFM [2019] SGCA 54
Civil Appeal No 169 of 2018

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Decision of the Court of Appeal (delivered by Justice Debbie Ong):

Outcome: CoA explains the principles governing applications for financial relief consequential on foreign matrimonial proceedings under Chapter 4A of Part X of the Women’s Charter.

Introduction

1 This appeal is the first case concerning Ch 4A in Part X of the Women’s Charter (Cap 353, 2009 Rev Ed) (“Women’s Charter”) to reach the Court of Appeal. Chapter 4A (containing ss 121A–G) was introduced fairly recently in 2011, providing a new regime for the application for financial relief after a foreign divorce or nullity.

Background to the proceedings

2 The appellant (“the Husband”) and the respondent (“the Wife”) solemnised their marriage in Jakarta in 1995. They have three children: two daughters who are 22 and 18 years old, and a son who is ten years old. The parties and their children are all Permanent Residents of Singapore. At the time of the hearing, the Husband was residing in Singapore, while the Wife was residing in Indonesia with the children.

3 According to the Wife, the marriage broke down because the Husband began physically and mentally abusing her and their children. The Husband eventually faced criminal proceedings in Indonesia. On 23 July 2013, the West Jakarta District Court found the Husband guilty of “[d]omestic physical violence and violence against children for committing in an obscene action” and sentenced the Husband to a term of imprisonment of three years and six months, with a fine of IDR100m (approximately $9,750). The Husband’s appeal was dismissed on 9 January 2014 by the West Jakarta High Court, which enhanced his sentence to an imprisonment term of four years and six months. The Husband has not served his sentence.

4 The Wife filed for divorce in Indonesia during the ongoing criminal proceedings. On 5 June 2013, the West Jakarta District Court granted the divorce, ordered the Husband to pay monthly maintenance for the three children and declined to make any order in relation to “community property”. The Husband appealed to the Jakarta High Court, which dismissed the appeal on 5 May 2014 save for varying the monthly maintenance sum downwards. A further appeal to the Indonesian Supreme Court was dismissed on 27 August 2015.

5 On 21 October 2016, the Wife applied under s 121D of the Women’s Charter for leave to commence Ch 4A proceedings. She sought an order for the division of a property in Singapore, which she jointly owned with the Husband (hereinafter referred to as the “Seaview Property”). Her application was dismissed by the District Judge on 2 May 2017 on the sole ground that the Wife should have applied to the Indonesian courts for financial relief before applying for the same in Singapore. The Wife’s appeal was allowed by the Judicial Commissioner of the High Court (“the Judge”). Given that there was no Court of Appeal decision on the scope and application of the recently introduced provisions in Ch 4A, the Judge granted the Husband leave to appeal to the Court of Appeal.

The Court’s decision

6 An applicant must first obtain leave to apply for financial relief under Ch 4A of the Women’s Charter. The applicant must show that there is a foreign divorce, annulment or judicial separation recognised as valid in Singapore. He or she must also establish that the Singapore court has jurisdiction over the matter as required by s 121C. Next, the applicant must show “substantial ground for the making of an application”. “Substantial ground” is made out if it would prima facie be appropriate for the Singapore court to grant relief, having regard to the factors enumerated in s 121F and keeping in mind that the purpose of the leave application is to filter out hopeless, frivolous or unmeritorious cases. If leave is granted, the court will hear the application for financial relief under s 121G at the next stage; in doing so, the court must conclude, in all the circumstances, that it would be appropriate for the Singapore court to grant the relief, having regard to the s 121F factors (at [34]).

7 The Wife had obtained a valid divorce in the Indonesian courts. While the Husband denied this at the hearing before the Court of Appeal, he had accepted that there was a valid Indonesian divorce order in an affidavit and written submissions filed in the proceedings below (at [35]–[39]).

8 The Singapore courts have jurisdiction to grant financial relief. On the Husband’s latest position that he had been “active” in Singapore since June 2014, the one–year habitual residence requirement in s 121C was made out (at [40]–[42]).

9 It would prima facie be appropriate for a Singapore court to grant relief. The parties have a clear connection to Singapore. The Seaview Property is located in Singapore. The parties and their children are permanent residents of Singapore. The family was living in the Seaview Property from about 2009 to October 2012. The Husband had also deposed that he had been living in the Seaview property since 2013. These were sufficient to show that the Wife has substantial ground for making her application (at [45]).

10 It was not necessary for the Wife to show that Singapore is the more appropriate forum to grant financial relief (as compared to Indonesia). While it would in general be appropriate for a court to hear both the divorce and the ancillary matters, Ch 4A clearly envisages that there will be circumstances under which it would be appropriate for two jurisdictions to be involved. Such circumstances could relate to the fairness and practicality of any foreign relief obtained by or available to the applicant (at [47]).

11 An applicant is not required to exhaust foreign remedies before applying to the Singapore courts under Ch 4A. Thus, the fact that the Wife clearly had access to the Indonesian courts does not preclude the Singapore courts from granting relief. Further, the degree of scrutiny on the applicant’s reasons for not applying for relief in a foreign jurisdiction varies according to the parties’ connection to the jurisdiction in which she seeks relief. Since the parties have a clear connection to Singapore, it was not necessary to subject the Wife’s reasons for not applying to the Indonesian courts to particularly close scrutiny or to treat her application with undue suspicion at the leave stage. The appeal was therefore dismissed (at [49]; [57]).

12 The Court also expressed its view that serious consideration ought to be given to amending Rule 40 of the Family Justice Rules 2014 (S 813/2014) (“FJR”) to provide for applications for leave under s 121D to be heard ex parte. Under the current regime, an application for leave must be made by originating summons which, unless the court otherwise directs, must be served on the defendant at least five clear days before the date of the case conference or hearing. The defendant may be heard even without filing a memorandum of appearance: Rule 40 of the FJR. Thus both the application for leave and the subsequent application for substantive financial relief are heard inter partes (at [25] ).

13 The Court observed that the current regime is less than satisfactory. It requires the court to hear two rounds of arguments which add to costs and time required to dispose of the matter. In the Court’s view, the initial application for leave ought to be made on an ex parte basis, where the applicant must make proper and candid disclosure, establish that the jurisdictional hurdles are crossed and show that there is substantial ground for the making of the application. The Court emphasised that the defendant will, in any event, be entitled to make detailed submissions after the applicant applies for financial relief pursuant to the leave granted by the court. This would strike an appropriate balance between according fairness to both parties on the one hand and ensuring that applications are dealt with expeditiously on the other, bearing in mind that an expeditious resolution benefits not just the applicant but also the defendant (at [26]).

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

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