Divorce Proceedings by Habitual Residents – The Singapore Courts’ Jurisdiction

27 December 2012

Vincent Wong

With an unprecedented number of foreigners living in Singapore, the question of whether the Singapore courts have jurisdiction to hear divorce proceedings commenced by foreigners becomes increasingly important.

In what The Straits Times suggested to be a landmark judgment which “is also expected to be a reference point for future cases here that involve foreign couples seeking to divorce”, the High Court recently clarified the extent to which the Singapore courts have jurisdiction to hear divorce proceedings commenced by a “habitual resident”.

The case of Lee Mei-Chih v Chang Kuo-Yuan [2012] SGHC 180 involved divorce proceedings commenced by the plaintiff-wife (the Wife), who was a citizen of both Taiwan and New Zealand, against the defendant-husband (the Husband), who was a citizen of Taiwan and was never a resident in Singapore.

The High Court held that while the Wife was a habitual resident in Singapore, she had failed to establish the requisite degree of continuity for a period of 3 years as required under the relevant statutory provisions.
The Husband in this case was successfully represented by L Kuppanchetti and Vincent Wong of ATMD Bird & Bird LLP.

Briefly, the facts of the case are as follows:-

1. Both the Husband and Wife were not Singapore citizens and were also not domiciled in Singapore. The Wife was permitted to enter and remain in Singapore only on a 30-day social visit pass.

2. In 1994, the parties were married in Taiwan and the marriage was subsequently registered in New Zealand. 

3. There was a 16-year old child to the marriage who was born in New Zealand and she is a citizen of both Taiwan and New Zealand. At the time of the proceedings, the child was residing in New Zealand and was attending school there.

4. The only matrimonial asset in Singapore was a condominium property. 

5. On 14 October 2011, the Wife commenced divorce proceedings in Singapore seeking for the marriage to be dissolved based on the fact that the parties had lived apart for a continuous period of 4 years immediately preceding the filing of the writ.

6. The Husband filed an application (the “Application”) for a stay or dismissal of the divorce proceedings on the grounds that the Singapore courts do not have jurisdiction to hear the divorce or that the Singapore court is not the proper forum to hear the divorce based on the principle of forum non conveniens.

The Husband succeeded in both limbs of his Application at first instance. The District Court (Family Justice Division) dismissed the Wife’s divorce proceedings on the grounds that the Singapore courts have no jurisdiction to hear the same. The District Court also held that Taiwan was the more appropriate forum to hear the divorce proceedings than Singapore and would have granted a stay of the Wife’s proceedings in any case. The Wife appealed.
On appeal, the High Court upheld the District Court’s decision and dismissed the Wife’s appeal with costs. The High Court clarified the application of Section 93(1)(b) of the Women’s Charter (i.e., the provision relied on by the Wife) which accords the Singapore courts jurisdiction to hear proceedings for divorce only if either of the parties is “habitually resident in Singapore for a period of 3 years immediately preceding the commencement of the proceedings.” (the “Provision”). In particular, the High Court dealt with the meaning of “habitual residence” and the requirement of the 3-year period. 

Notwithstanding that the Wife’s presence in Singapore was by virtue of a 30-day social visit pass, the High Court found that she was habitually resident in Singapore. In doing so, the High Court applied the English case of R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 308 which held that the term “habitually” requires that an individual’s residence be adopted voluntarily and for settled purposes. In the present case, although the Plaintiff did not have concrete settled purposes such as education, family or employment, her pattern of always returning to Singapore whenever she travelled “demonstrated a certain degree of settled purpose”. The Wife’s residence in Singapore was also voluntary.    

However, the Wife had failed to establish the required degree of continuity of habitual residence throughout the 3 years immediately preceding the filing of the writ as required under the Provision. During such relevant period, the Wife had travelled out of Singapore for a total of 12 months. In deciding whether the time away had broken the period of “habitual residence”, the Court considered not only the reason for being away from Singapore but also the length of time spent away. In this case, the Wife had returned to Taiwan for a period of 8 months to defend herself in the divorce proceedings commenced by the Husband. Such an extended length of stay and the fact that the Wife had returned to her home country, could not fall within the acceptable exceptions of holidays or business trips. It was irrelevant that the trip was necessitated by circumstances beyond the Wife’s control. Otherwise, the Wife could have stayed in Taiwan for 2 out of the 3-year period and still have qualified as a habitual resident - a situation that the High Court felt would run contrary to the spirit of the Provision. Apart from the Taiwan trip, the Wife also returned to New Zealand (which she was a citizen of) for about 4 months to settle the child into her school there. The High Court was of the view that the total period of 12 months’ extended absence in both the Taiwan and New Zealand trips was substantial when viewed against the backdrop of the 3-year requirement under the Provision. The Wife’s divorce proceedings were accordingly dismissed on the basis that the Singapore courts had no jurisdiction to hear the same pursuant to the Provision.

This decision suggests that it is not necessary that foreign litigants possess any concrete settled purposes in Singapore (such as education, family or employment) for the Singapore courts to have jurisdiction over divorce proceedings between them. It is sufficient for a foreign litigant to demonstrate that he has resided in Singapore voluntarily for a period of 3 years immediately preceding the filing of the writ with a certain degree of settled purpose. In deciding whether a period of absence from Singapore breaks the continuity of residence, the length of and reason for the absence are relevant considerations.         

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