Case Update: Haniszah bte Atan v Zainordin bin Mohd [2016] SGHCF 5 – financial relief-post divorce denied

Significance: Singapore High Court held that a person who has been divorced in a foreign court and was married under Muslim Law cannot, under the present wording of the Women’s Charter and the Supreme Court of Judicature Act, apply to either the civil courts or the syariah courts for financial relief post-divorce.

Prior to 2011, where a marriage has been terminated by a foreign decree, the Singapore court could not deal with the post-divorce issues such as division of matrimonial assets or maintenance for the former spouse. After the Women’s Charter (Amendment) Act 2011 (Act 2 of 2011), a person may make an application under Chapter 4A of Part X of the Women’s Charter (Cap 353, 2009 Rev Ed) (“WC”) for leave to apply for a division of assets after a foreign divorce. Chapter 4A of Part X of the WC, extended the powers in ss 112, 113 and 127 of the WC to marriages which have been dissolved, annulled, or where the parties to a marriage have been legally separated by means of judicial or other proceedings in a foreign country recognised as valid under Singapore law: at [2].

The District Judge granted leave required by s 121D (under Chapter 4A) of the WC but held that it had no jurisdiction to hear the substantive matter under s 121G of the WC: at [3].

Prior to amendments to the AMLA and the SCJA (through the Administration of Muslim Law (Amendment) Act 1999 (Act 20 of 1999)) which introduced s 17A SCJA in 1999, s 16(2) of the Supreme Court of Judicature Act (Cap 322, 1987 Rev Ed) (“SCJA (1987)”) explicitly stated that the High Court had no jurisdiction to try any civil proceedings coming within the jurisdiction of the Syariah Court: at [6]. Any matter which did not fall within the jurisdiction of the Syariah Court would be within the jurisdiction of the High Court. In Madiah bte Atan v Samsudin bin Surin [1998] 2 SLR(R) 327: at [7].

Notwithstanding the 1999 Amendments to the SCJA, the position remains that the High Court has jurisdiction over divorce and matrimonial matters that are not within s 17A(1) of the SCJA: at [8].

Debbie Ong J.C. held that this case is not a case which falls under s 17A(1) of the SCJA in which the High Court does not have jurisdiction. This is because it is not a matter that falls within the jurisdiction of the Syariah Court under s 35(a), (b) or (c) of the AMLA. Neither is this a case which falls within s 17A(2) of the SCJA, which would require a certificate from the Syariah Court under s 17A(3) before the High Court can exercise concurrent jurisdiction with the Syariah Court. This is because the divorce was granted by the Johor Court and not the Syariah Court: at [11].

However, under s 3(2) of the WC, parties married under Muslim law (such as in the present case) are not governed by Part X of the WC. The matter in the present case thus does not fall under s 17A(2) of the SCJA. S 3(2) of the WC precludes the Appellant’s application under s 121G of the WC, and also precludes an application under s 112 for the division of assets: at [14]-[15].

Whether the current lacuna in which the Appellant is unable to obtain a division order in both courts ought to be plugged, and if so, ought to be addressed as a provision in the AMLA or the SCJA, is a matter for Parliament to decide: at [18].

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