Article: Cross-border or international aspects in matrimonial and divorce law

Must two Singaporeans who marry in a foreign country register their marriage in Singapore? Can foreigners married in a foreign country divorce in Singapore? Can a foreigner apply for maintenance or child custody orders in Singapore post-divorce in a foreign court? Can divorce orders or related orders made by foreign courts be enforced in Singapore? As people become increasingly mobile, these are some issues which more frequently surface in matrimonial and divorce proceedings. This article examines some of these legal issues.

Can foreigners marry in Singapore?

The short answer is yes. However, where any party to the intended marriage is not a Singapore citizen or permanent resident (PR), at least one of the parties must have been physically present in Singapore for a period of at least 15 days preceding the date of the notice of marriage submitted to the Registrar of Marriages (ROM): section 17(2) of the Women’s Charter (Cap. 353). The other formality and essential (or capacity) validity requirements of a valid marriage under Singapore law will apply: sections 4, 5, 9, 10, 12, 17 and 22 of the Women’s Charter. Note that the Women’s Charter applies to marriages between non-Muslim persons or involving at least one non-Muslim person.

Which law applies if there are problems with the validity of a marriage?

The answer to this question can get complex. The starting point is that there are two types of validity requirements: (1) formal, or formality requirements; and (2) essential validity, or whether the parties to the marriage had capacity to marry.

Law of the Forum Determines Choice of Law Rules

The next step in the analysis is which forum (e.g. Singapore court or a foreign court) is hearing the matter concerning this issue. This is important because under conflicts of laws rules, the lex fori or law of the forum determines which choice of law rule applies to then point to the governing law applicable to the issue.

Formal Validity

If the forum is the Singapore court and Singapore law applies, then issues of formal validity are determined by the lex loci celebrationis, or the law of the place in which the marriage took place. So if the parties were married in Singapore, Singapore law governs the formal validity requirements: Arpinya Rongchotiawattana v Wee Oh Ken [1997] 3 SLR(R) 378.

There are some exceptions to this. Where the circumstances of the parties are such that no form of marriage is suitable for them under the place of marriage, then they would marry under the common law. The form required under common law is simply the exchange of vows in each other’s presence: Isaac Penhas v Tan Soo Eng [1953] MLJ 73. Other exceptions include where the law will presume a valid marriage from evidence of cohabitation and repute as husband and wife where compliance with certain forms of marriage would have been difficult for parties; and where the conflicts of laws doctrine of renvoi applies.

A further exception is where foreigners marry in a foreign Embassy, High Commission or Consulate physically located in Singapore. Section 183 of the Women’s Charter would apply. In such a case, the formal validity requirements of the marriage would be governed by the law of that foreign country. Note however that if either of the party is a citizen of, or is domiciled, in Singapore, both parties must have capacity to marry under the Women’s Charter (i.e. essential validity) in order to satisfy the formal validity requirements under the law of that foreign embassy’s country. This means, for instance, that insofar as Singapore prohibits same-sex marriages (section 12 of the Women’s Charter), a Singaporean cannot circumvent that prohibition by marrying in an embassy of a foreign country which permits such marriages.

Essential Validity

With regard to essential validity of a marriage, the “dual domicile rule” applies. This rule states that both parties to a marriage must have capacity to marry under the law of their respective pre-marriage domiciles: Arpinya Rongchotiawattana v Wee Oh Ken [1997] 3 SLR(R) 378; Re Maria Huberdina Hertogh; Inche Mansor Adabi v Adrianus Petrus Hertogh [1951] MLJ 164 (yes, the Maria Hertogh of the Singapore riots in 1950).

What is domicile? (Note that it’s not domicility. Try googling “domicility”. A lawyer used that word in her court papers, much to my colleagues’ and my amusement.) Domicile is a legal concept referring to the place where a person intends to permanently or indefinitely reside at. A person can have only one domicile for any purpose at any point in time. See Re Bhagwan Singh (deceased) [1964] MLJ 360 at 362; Peters Roger May v Pinder Lillian Gek Lian [2009] 3 SLR(R) 765. There are multiple concepts of domicile: domicile of origin, domicile of dependency (if the person is a minor or without mental capacity), and domicile of choice. Domicile of origin is the domicile you were born at. Domicile of dependency is the domicile of the father, or if the father has passed on then the domicile of the mother. Domicile of choice is a voluntary choice as to place of residence. The concept of domicile is questionable in the modern context. It can be problematic for global citizens who shuttle between countries and have no permanent roots in any one country. To arbitrarily tie them to one single country may be unfair. Nevertheless, absent a better alternative and judicial recognition of such a preferable alternative, we will have to content with domicile.

There is an exception to the “dual domicile rule”. Where parties married in the forum, one of the parties is domiciled in the forum, and the purported incapacity raised by the foreign party is found under the law of the domicile of that other party, such incapacity would not void the marriage: Sottomayer, Otherwise De Barros v De Barros (The Queen’s Proctor Intervening) (1879) 5 PD 94. There is good sense in this because there would otherwise be injustice caused to a party domiciled in the forum who married in the forum but subsequently finds that the marriage is apparently void but some lurking incapacity in the foreign party’s domicile.

However, parties who solemnised their marriage in Singapore under the Women’s Charter would in any event have to comply with the essential validity requirements in the Women’s Charter by virtue of section 17(d).

Marriages celebrated outside Singapore

People whose domicile is Singapore, even though they may be physically away from Singapore or married in a foreign country, would also find that their marriages are governed by the Women’s Charter because of section 3. Thus, while the solemnisation requirements in section 22 are inapplicable if the parties married in a foreign country, the essential validity requirements remain applicable.

Under section 105, even if a marriage was celebrated outside Singapore but is governed by the Women’s Charter, it could be invalid for lack of capacity or by the law of the place in which it was celebrated (for marriages after 1 June 1981).

Marriages governed by foreign law

So if one applies the choice of law rules discussed above and a foreign law applies to the marriage, section 108 provides that any matter affecting the validity of a marriage would fall to be determined (in accordance with the rules of private international law, i.e. conflicts of laws rules) by reference to the law of a country outside Singapore, nothing in section 105, 106 or 107 shall: (a) preclude the determination of the matter as aforesaid; or (b) require the application to the marriage of the grounds or bars to relief mentioned in those sections except so far as are applicable in accordance with those rules. Section 105 relates to grounds on which a marriage is void; section 106 relates to grounds on which a marriage is voidable (i.e. non-consummation, invalid consent, mental incapacity, party suffering from venereal disease in a communicable form at time of marriage, party was pregnant by some other person than the other party to marriage); section 107 relates to bars to relief where marriage is voidable.

In other words, if a foreign law governs the formation of the marriage, the foreign law applies to the issues of formation of marriage, whether the marriage is void or voidable.

Must Singaporeans who marry in a foreign country register their marriage in Singapore?

The answer to this seems a little dicey. A leading academic Debbie Ong opines that only marriages solemnised in Singapore but not solemnised by the Registrar of Marriages must be registered under the Women’s Charter by virtue of section 29: Debbie Ong, International Issues in Family Law in Singapore (Academy Publishing, 2015) at 107. She opines that section 29 cannot be read with section 182, which provides that parties to a marriage which has been solemnised under any law, religion, custom or usage may (voluntarily but not mandatorily) register their marriage with the Registrar. She argues that if section 182 is read with section 29, then all marriages which are not solemnised by the Registrar, whether solemnised in Singapore or anywhere else in the world, must be registered under the Women’s Charter.

I am not too certain whether her views on this is correct. My alternative analysis (which may not be altogether very different) would be as follows.

First, section 3(1) of the Act provides that it applies to “all persons in Singapore and shall also apply to all persons domiciled in Singapore”. Section 3(5) states that: “a person who is a citizen of Singapore shall be deemed, until the contrary is proved, to be domiciled in Singapore”. This means that the Women’s Charter applies to any Singapore resident or person who is domiciled in Singapore (and by default, this includes Singapore citizens). Any person who is not a Singapore resident or not domiciled in Singapore would not be caught by section 29 or section 182.

Second, section 29 would then apply to parties to a marriage not solemnised by the Registrar of Marriages (i.e. by the ROM in Singapore), and to whom the Women’s Charter applies, such that they must register their marriage with the ROM. So Singaporeans (whose permanent home is Singapore) solemnised their marriage in Bali, they are mandatorily required to register their marriage with the ROM. It should be noted that such registration must take place within one month of marriage (section 29(1)(a)). Failing to do so would be an offence and attract a penalty (sections 30, 34).

Third, section 182 must be read in the context of section 181. Section 181 provides that the validity of marriages solemnized under any law, religion, custom or usage prior to 15th September 1961 will not be affected by the Women’s Charter and shall be deemed to be registered under the Act. In other words, such marriages are an exception to section 29. However, such marriages may nevertheless still be actually (rather than deemed) registered with the ROM.

In sum, if the Women’s Charter applies to you, you should register your marriage with the ROM whether or not you solemnised your marriage in Singapore or elsewhere. This is unless your marriage falls within the category envisaged in section 181.

Can foreigners who married in a foreign country divorce in Singapore?

Yes, foreigners who married in a foreign country under a foreign law can commence divorce proceedings or other related proceedings (maintenance, child custody) in the Singapore courts. However, there are a few potential issues.

Personal or in personam jurisdiction

First, there is the threshold issue of the Singapore Court’s in personam or personal jurisdiction over the parties. Jurisdiction is the idea that the court has the legitimate authority to determine matters concerning the party in question. For instance, if an Indian national who has no relations with anything in or concerning Singapore at all is sued in the Singapore courts, there must be some good reason to grant the Singapore court the power to make binding judgments or orders against him. Personal jurisdiction comes about in two ways.

The first way is physical presence in the territorial jurisdiction or the party’s voluntary submission. This seems intuitively sound since the person is physically in Singapore and so should be subject to the Singapore courts. However it can be arbitrary. A person who happens to transit in Singapore would also be subject to the Singapore courts’ jurisdiction. Under the approach, one would have to serve the originating court process on the party in accordance with Order 10 of the Rules of Court.

The second way is the Order 11 (of the Rules of Court) jurisdiction or service of process out of Singapore. Under this approach, the claimant would have to apply to the court for leave to serve the originating process out of Singapore on the defendant pursuant to Order 11 of the Rules of Court (Cap. 322, R 5) (“ROC”). Three jurisdictional conditions must be satisfied before a court will grant leave under Order 11 of the ROC:-

first, a claimant must satisfy the court that he has a ‘good arguable case’ that the action came within any of the heads of jurisdiction under Order 11, rule 1 of the ROC;

secondly, the claimant must show that there is at least a serious issue to be tried on the merits of the case; and

thirdly, once the court is satisfied that it has jurisdiction over the defendant, it would then proceed to determine whether it should exercise its discretion to grant leave to serve the originating process out of jurisdiction. In the process of such determination, the court has to consider, among other things, whether Singapore is the natural forum or forum conveniens, i.e. the most appropriate forum, to adjudicate the claim. The factors to be considered in the determination of the forum conveniens include, but are not limited to: (i) the nature of the dispute; (ii) the legal and practical issues involved; and (iii) availability of witnesses and their evidence and expense.

Matrimonial jurisdiction

Second, there is a further jurisdictional issue. The Singapore court will only have matrimonial jurisdiction to hear the divorce proceeding if section 93 is satisfied. At least one of the parties to the marriage must be domiciled in Singapore or must have been habitually resident in Singapore for 3 years immediately preceding the commencement of the proceedings. Section 93 states:

93(1) Subject to subsection (2), the court shall have jurisdiction to hear proceedings for divorce, presumption of death and divorce, judicial separation or nullity of marriage only if either of the parties to the marriage is —

(a) domiciled in Singapore at the time of the commencement of the proceedings; or

(b) habitually resident in Singapore for a period of 3 years immediately preceding the commencement of the proceedings.

93(2)  In proceedings for nullity of marriage on the ground that the marriage is void or voidable, the court may, notwithstanding that the requirements in subsection (1) are not fulfilled, grant the relief sought where both parties to the marriage reside in Singapore at the time of the commencement of the proceedings.

This additional matrimonial jurisdiction requirement is to prevent forum-shoppers who have no real connection with Singapore from simply going to the Singapore courts to obtain divorces. In any case, such divorce orders (if such a matrimonial jurisdiction requirement was present) would probably not be recognised by other courts.

Stay of proceedings on basis of forum non conveniens

Third, assuming that personal jurisdiction and matrimonial jurisdiction requirements are satisfied, and the originating process for divorce or matrimonial proceedings have been served on the other party, the other party can nevertheless apply to stay the proceedings in the Singapore court by arguing forum non conveniens, i.e. that Singapore is not the appropriate forum to hear the matter, and that there is some other clearly or distinctly more appropriate forum which can more suitably hear the matter. The principles to be applied are the Spiliada principles set out in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460: JIO Minerals FZC v Mineral Enterprises Ltd [2011] 1 SLR 391. Factors which the courts will consider in determining the natural forum include: (i) the nature of the dispute; (ii) the legal and practical issues involved; (iii) availability of witnesses and their evidence and expense; (iv) whether the parties are able to obtain divorce in the alternative forum; (v) whether there are matrimonial properties in the foreign country; (vi) whether there are children of the marriage residing in the foreign country; (vii) where the marriage was largely lived out; (viii) domicile of the parties; (ix) whether there are foreign matrimonial proceedings commenced and which stage those proceedings are at; (x) the governing law of any pre-nuptial agreement: VH v VI [2008] 1 SLR(R) 742; Sharm Manzana v Alain Roger Leneveu [2003] SGDC 224; Mala Shukla v Jayant Amritanand Shukla [2002] 1 SLR(R) 920; Low Wing Hong v Kelso Sharon Leigh [1999] 3 SLR(R) 993; Shearer Marilyn June v Shearer Michael Howard [2000] SGDC 27; ALJ v ALK [2010] SGHC 255; Weschler Mouantri Andree Marie Louise v Mountri Karl-Michael [2009] SGHC 83; AZS v AZR [2013] 3 SLR 700.

In some cases, it may even be appropriate for a party to apply to the Singapore court for an anti-suit injunction to restrain the other party from commencing or continuing with matrimonial proceedings in a foreign court: VH v VI [2008] 1 SLR(R) 742.

Can the Singapore court hear matters concerning maintenance etc. after a divorce

The Singapore courts have the jurisdiction to grant financial relief after a divorce. Such jurisdiction is ancillary to the main jurisdiction over matrimonial proceedings.

What law governs the divorce of foreign persons who married in a foreign country?

The answer to this is unclear. However, it’s likely to be the lex fori or law of the forum.

Will the Singapore courts recognise foreign court divorce, nullity or separation orders?

 

Yes.  Common law conflicts of laws rules would apply to govern this matter. The Singapore courts will recognise an order made by a foreign court of a country which has sufficient connection with the parties to the marriage: Ho Ah Chye v Hsinchieh Hsu Irene [1994] 1 SLR(R) 485. Connections include, for instance, domicile, non-habitual residence, nationality, citizenship.

 

Other requirements are necessary for the recognition of a foreign court order. For instance, the foreign court must have competent jurisdiction; recognition of the foreign court order will not be manifestly contrary to Singapore’s public policy (notwithstanding that the legal basis for the foreign court order would not have sufficed under Singapore law).

 

 

Will the Singapore courts recognise foreign court orders on division of matrimonial assets?

 

Yes, if the order concerns movable property or chattel.

 

However, foreign court orders making determinations on ownership, title, possession of real estate or immovable property (as opposed to movable property or chattel) are not enforceable in Singapore.

 

This is because under conflicts of laws or private international law principles, only the court of the country in which the immovable property is situated has the competence to make in rem (i.e. binding on the property as opposed to in personam or the person) orders relating to immovable property.

 

Will the Singapore courts recognise foreign court orders on maintenance?

 

Yes. However, there are nuances to this. Further, the enforcement of such orders can be financially and time-consuming. A foreign court order on maintenance in three possible ways.

 

First, in theory, a foreign court order on maintenance is a judgment for money. It can be enforced through a common law debt action. A new suit has to be brought in the Singapore courts to enforce the foreign order. The substantive requirements (apart from jurisdictional requirements) for enforcement are that the foreign judgment must be a judgment that is:

a. pronounced by a court of competent jurisdiction;

b. final and conclusive as to a determination of rights, between the parties, notwithstanding that there may be an appeal;

c. made on the merits of the case (as opposed to procedure); and

d. for a fixed or ascertainable sum of money.

The foreign court of law must be internally competent and have had international jurisdiction over the party sought to be bound.  Whether the foreign court had international jurisdiction over the party is to be determined in the private international law sense according to the law of the forum. In other words, the Singapore court will apply Singapore conflict of laws principles to determine whether the foreign court had international jurisdiction. In general, such jurisdiction would typically be established over a party if the party was resident or present in the jurisdiction of the foreign court or had voluntarily submitted to the said jurisdiction.

 

However, foreign maintenance orders may not be “final and conclusive” as it is likely that the foreign maintenance order may be varied by a foreign court. If this is the case, the maintenance order cannot be enforced under this mode.

 

Second, a foreign judgment for money can be enforced by way of registration under the Reciprocal Enforcement of Commonwealth Judgments Act (RECJA) or Reciprocal Enforcement of Foreign Judgments Act (REFJA). The Singapore court would register the foreign judgment only if it thinks it just and convenient that the judgment be enforced in Singapore.

 

However, there is also the requirement of “final and conclusive” under the REFJA and the requirement that the foreign judgment is not being appealed against under the RECJA. Thus foreign maintenance orders may not be enforceable under this mode.

 

Third, foreign maintenance orders may be enforceable under the Maintenance Orders (Reciprocal Enforcement) Act (MOREA) or the Maintenance Orders (Facilities for Enforcement) Act (MOFEA). Thus, under the MOREA, maintenance orders made in the courts of the United Kingdom, Australia, Hong Kong SAR, New Zealand and the Province of Manitoba may be registered in the Singapore courts and enforceable as though it were a maintenance order made under the Women’s Charter. Under the MOFEA, maintenance orders made in the courts of Sri Lanka, Saint Vincent, Malaysia, Brunei Darussalam, Jersey, Guernsey, Cook Islands and Western Samoa, certain states of Australia, Hong Kong, Malawi, New Zealand, Zambia, India (except States of Jammu and Kashmir, and certain provinces and territories of Canada.

 

Can a Singapore court hear matters concerning division of matrimonial assets or maintenance for spouse or children after a foreign divorce?

 

Yes. The Singapore courts have the jurisdiction to hear such matters after a divorce, dissolution or nullity order made by a foreign court but recognised in the Singapore courts: section 121B, Chapter 4A of the Women’s Charter. This is notwithstanding that the foreign court order already addresses such issues: section 121D(3). A party to the marriage must apply for the Singapore Court’s leave to make such applications for financial relief: section 121D.

 

The jurisdictional requirement is that: (1) 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; (2) 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 application for leave under section 121D; or (3) one of the parties to the marriage was so resident for a continuous period of one year immediately preceding the date on which the divorce, annulment or judicial separation obtained in a foreign country took effect in that country.

 

Persons with “immediate financial need” may apply to the court for an interim order for maintenance even before the final hearing of the application for financial relief: section 121E.

 

However, in such applications, the issues of forum non conveniens or natural forum (discussed above) may arise: section 121F. A list of connecting factors which the court will consider are set out in section 121F(2).

 

Also, the court shall not grant leave to a party to make such an application for financial relief unless it considers there is “substantial ground” for the making of such an application: section 121D: c.f. Agbaje v Agbaje [2010] UKSC 13 at [33].

 

The applicable law governing such applications would be Singapore law: TQ v TR [2009] 2 SLR(R) 961.

 

While the Singapore court cannot make orders regarding the ownership, title or possession of foreign immovable property (as explained above), it can nevertheless make orders which take into account the value of the foreign property in determining the division of matrimonial assets: Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157.

 

Also, where there are pre-nuptial agreements concerning division of matrimonial assets, particularly if they are governed by foreign law, the Singapore court would take these into consideration in determining division of matrimonial assets pursuant to section 112(e): TQ v TR [2009] 2 SLR(R) 961 (CA). It appears that the Singapore courts would place significant weight on the fact that the pre-nuptial agreement is governed by foreign law: TQ v TR [2009] 2 SLR(R) 961 (CA) at [108]. This applies similarly to pre-nuptial or post-nuptial agreements concerning maintenance, albeit that such agreements must be approved by the Singapore court: section 116.

 

Can a Singapore court hear matters concerning child custody issues after a foreign divorce?

 

It is possible. The law on this appears to be the common law which is that the Singapore court can assume jurisdiction over the child where (i) the child is physically present in Singapore; (ii) the child is a citizen of Singapore; or (iii) the child is ordinarily resident in Singapore (prior to being taken out of the country).

 

The law governing the application would be Singapore law as the law of the forum. So a person would have to apply under section 5 of the Guardianship of Infants Act (Cap. 122) to the Singapore court for an order regarding custody, access, care and control and maintenance of a child.

 

However, as mentioned above, there may be issues of staying the Singapore proceedings on grounds of forum non conveniens or natural forum.

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