UFN v UFM and another matter

[2] As this case raised several issues relating to the interpretation of the recently introduced provisions, we issue these written grounds to explain our decision.

[3] 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.

[5] The Wife filed for divorce in Indonesia during the ongoing criminal proceedings. On 5 June 2013, the West Jakarta District Court made the following orders:

(a) The parties were legally divorced with effect from 5th June 2013.

(b) The Wife shall have custody of the three children to the marriage.

(c) The Husband shall pay monthly maintenance for the three children at IDR50m.

(d) The marital attachment to the “community property” requested by the Wife is refused.

[9] The Wife’s Indonesian lawyer explained that the West Jakarta District Court declined to levy the marital attachment because:

[10] The Wife maintained that the Husband had not fully complied with the Indonesian court’s directions for him to pay maintenance for the children. She had also not taken any further step in the Indonesian courts.

[13] The Husband, who was self-represented in this appeal, raised many grounds of appeal in his appellant’s case, which we summarise as follows:

(a) The Singapore courts have no jurisdiction because he has been domiciled or habitually resident for less than three years in Singapore.

(b) The proceedings should not be heard in Singapore because there is a valid pre-nuptial agreement that is governed by Indonesian law.

(c) Leave should not be granted because the Wife did not apply for financial relief in Indonesia, which shows that she is forum shopping.

(d) He had complied with the maintenance orders made in Indonesia ([6] above) and had in fact paid three times of what he was required to under those orders.

(e) His criminal convictions were a “hoax”.

(f) The Wife breached an “oath” given before the Judge that she would not lay claim to assets in Indonesia if the Singapore Courts were to divide the Seaview Property.

(g) He is not a fugitive, as evidenced by the stamps on his passports showing that he has been travelling to Indonesia and a certificate from what appears to be a local authority in West Jakarta stating that he has been domiciled there since 2012.

(h) His mother and his sisters have a claim to the Seaview Property.

[14] At the hearing before us, he stated that his principal submission was that the Wife had not obtained a divorce in Indonesia. He claimed that the Indonesian court orders obtained by the Wife were “fake”.

[15] The Wife essentially sought to defend the Judge’s decision. In response to the Husband’s allegations in relation to the Seaview Property, she submitted that:

(a) the Husband’s mother does not own the property;

(b) if the property were meant to be a gift to the Husband, he had integrated it into the pool of assets;

(c) no express, resulting or constructive trust of the Seaview Property arises in favour of the Husband’s mother; and

(d) if proceeds from a previous gifted property were used for its purchase, the registration of the Seaview Property in both parties’ names is sufficient to render it a matrimonial asset.

[16] As for the pre-nuptial agreement, she submitted that it was procured without due consideration on her part and is therefore void under Indonesian law. In any case the agreement does not cover the Seaview Property because it is concerned only with preventing the community of property which the parties owned separately (the Seaview Property is held by the parties as joint tenants). She also pointed out that the Husband’s evidence on the length and consistency of his presence in Singapore and the extent to which he had complied with the Indonesian orders on maintenance were inconsistent.

[17] Applications for financial relief under Ch 4A comprise two stages. At the first stage, an applicant must obtain the leave of the court. Only when leave is obtained will he or she be able to make a substantive application for financial relief at the second stage.

[18] First, the applicant must show that there is a foreign divorce, annulment or judicial separation that is entitled to be recognised as valid in Singapore under Singapore law:

[19] The recognition of foreign matrimonial proceedings is governed by the common law. The court will recognise foreign judgments made in other jurisdictions in accordance with rules of private international law. An established rule on the recognition of foreign divorces in Singapore is that a foreign judgment of divorce will be recognised as valid if it is granted by a court of either party’s domicile: Debbie Ong, International Issues in Family Law in Singapore (Academy Publishing, 2015) (“International Issues in Family Law”) at paras 5.47 and 5.53, cited with approval by this Court in Yap Chai Ling and another v Hou Wai Yi [2016] 4 SLR 581 at [49]. Recognition may however be withheld if such recognition would be contrary to public policy: Ho Ah Chye v Hsinchieh Hsu Irene [1994] 1 SLR(R) 485 at [53] and [68(g)].

[20] Second, the applicant must show that the Singapore court has jurisdiction over the matter as required by s 121C:

(4) Leave under this section may be granted subject to such conditions as the court thinks fit.

[22] However, the provision does not define “substantial ground”.

[23] The term “substantial ground” also appears in Part III of the English Matrimonial and Family Proceedings Act (c 42) (UK), on which Ch 4A was modelled after. It has been interpreted by the UK Supreme Court to mean a threshold that is “not high”, but higher than “serious issue to be tried” or “good arguable case”: Agbaje v Agbaje [2010] 1 AC 628 (“Agbaje”) at [33].

[24] The court should interpret a statutory provision in a way that gives effect to the intent and will of Parliament: s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed). In seeking to draw out the legislative purpose behind a provision, primacy should be accorded to the text of the provision and its statutory context over any extraneous material: Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 at [43]. Thus, in interpreting the term “substantial ground”, regard must be had to the entire statutory regime in Ch 4A and in particular to the fact that the proceedings take place in two stages: the application for leave and the substantive application.

[25] 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 Family Justice Rules 2014 (S 813/2014) (“FJR”). Thus both the application for leave and the subsequent application for substantive financial relief are heard inter partes.

[27] Our view above is consistent with the Law Reform Committee’s proposal for leave be heard ex parte: Law Reform Committee, Singapore Academy of Law, Report of the Law Reform Committee on Ancillary Orders after Foreign Divorce or Annulment (July 2009) (“LRC Report”) at para 65. We note too that leave applications in the equivalent English regime are heard ex parte: Agbaje at [3]. The Law Reform Committee also recommended that challenges to leave granted ex parte be restricted to only those on jurisdictional grounds (ie, under s 121C of the Women’s Charter). The Law Reform Committee provided an elaboration of this recommendation at para 67:

[28] We are of the view that serious consideration ought to be given to amending Rule 40 of the FJR to provide for applications for leave under s 121D to be heard ex parte. In such an ex parte application, the applicant’s burden is to establish that there is a valid foreign divorce, annulment or judicial separation, the Singapore court has jurisdiction and that there is substantial ground for the application to be made in Singapore.

[32] Our views are consistent with the views of the High Court in Harjit Kaur d/o Kulwant Singh v Saroop Singh a/l Amar Singh [2015] 4 SLR 1216 (“Harjit Kaur”), where the court held at [20] that leave should not be granted if it is clear that Singapore is not the appropriate forum, having regard to the factors in s 121F. We emphasise however that it is not incumbent on the court in ex parte applications for leave to consider each and every one of the factors and weigh them separately. Rather, the court must apply its mind to these statutory signposts towards the ultimate determination of whether, prima facie, Singapore is an appropriate forum for the application.

[34] To sum up, an applicant must first obtain leave to apply for financial relief under Ch 4A. 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 s 121F factors 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 that it would be appropriate for the Singapore court to grant the relief, having regard to the s 121F factors. We add that if our view that the initial application should be made ex parte were accepted, then at the inter partes hearing, when the court embarks on the actual determination of the matter, the respondent would have due opportunity to address the court on all aspects of the matter.

[35] We now turn to the facts of this case, beginning with the enquiry of whether the Wife had obtained a valid divorce in the Indonesian courts. This was not an issue in the proceedings below. However, at the hearing before us, the Husband confirmed that his main submission was that there was no divorce in Indonesia. The Husband also stated in his appellant’s case that the Indonesian divorce proceedings were “fake” in that “the divorce paper[s] had been issued, NOT to me nor my legal representatives but to someone unknown who is not my legal representative”, and that he and his lawyers “had question[ed] the validity [of the documents] from the very beginning when at all material times the Indonesian Court had clearly recorded the new counsel”.

[38] As the Husband had taken a considered position in the proceedings below, we observed that this was a change in his position at the appeal before us. At the hearing, the Husband was unable to offer any explanation for his change of position. We also noted that the Husband had tendered an affidavit filed by a person who claimed to be an Indonesian lawyer. That person echoed the Husband’s assertion that the Indonesian “divorce paper” was “fake”. We were, however, not able to derive any assistance from this affidavit because it was written incoherently and the rather inflammatory opinions expressed therein were not supported by any objective evidence.

[40] The Husband claimed that the Singapore courts have no jurisdiction to grant financial relief because he has been living in Jakarta since 2012 and “started being active in Singapore only on the 23rd of June 2014”, which was less than three years before the Wife filed her application in October 2016. He relied on s 93(1)(b) of the Women’s Charter, which provides:

[41] Section 93(1)(b) does not apply here because the Wife is not seeking a divorce. Instead, the Wife is seeking financial relief and the applicable provision is s 121C, where the specific requirement is habitual residence of one year, not three years:

[42] We found the Husband’s assertion that he had been living in Jakarta since 2012 quite incredible. It contradicts his evidence that he has been unable to return to Jakarta since 2013. Further, the Husband’s latest position is that he has been “active” in Singapore since June 2014. We found that the one-year habitual residence requirement is made out and the Singapore court has jurisdiction to grant the financial relief sought.

[43] The Judge helpfully classified the factors enumerated in s 121F of the Women’s Charter into several broad groups:

(a) The degree of connection which the parties to the marriage have to Singapore or to any other jurisdiction: ss 121F(2)(a)- to (c).

(e) Any lapse of time since the foreign divorce: s 121F(2)(i).

[44] We broadly agree with the Judge’s analysis of these factors, but do not think it necessary to go into the level of detail she did for the analysis at this stage of the proceedings (ie, leave of court). As we explained above (at [29]), the court should not hear detailed substantive arguments at the leave stage and only needs to find that it would be prima facie appropriate for a Singapore court to grant relief. On this basis, given the indisputable fact that the property in question is situated in Singapore as well as the parties’ connections to Singapore as Singapore Permanent Residents, it would be prima facie appropriate for a Singapore court to grant relief. However, because of the way this case proceeded in the courts below, we will in this instance examine the parties’ arguments in detail.

[45] We begin by analysing the parties’ connections to Singapore. In our judgment, 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, in our judgment, were sufficient to show that the Wife has substantial ground for making her application.

[46] In addition, the Wife tendered a letter dated 18 February 2012 written by a reverend of a Singapore church recommending that the parties’ eldest daughter be enrolled into a secondary school in Singapore. The reverend also wrote that the parties’ family had been parishioners of the church since 1991. He related how the family had recently returned from Jakarta and noted that the Husband and his eldest daughter were preparing to be involved in various church ministries. The Husband had also filed an affidavit expressing his wish for his children to live in Singapore:

[47] All these show that the parties have a real connection to Singapore. In this regard, we agreed with the Judge that 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, a consideration to which we now turn.

[51] One possible way to overcome this difficulty would be for the Indonesian courts to grant the Wife a larger share of the Indonesian assets after accounting for the Wife’s share of the Seaview Property. The Singapore courts have adopted this approach: International Issues in Family Law at para 6.34. But even this may not be a satisfactory solution here because the Husband had blatantly disregarded Indonesian court orders in both the criminal and divorce proceedings.

[52] This brings us to the Husband’s criminal conviction, which he maintained was a “hoax”. His conviction was affirmed on appeal by the Jakarta High Court. We were unable to accept his submission on this point.

[53] The Husband also relied on stamps on his passport showing that he had been travelling in and out of Indonesia to prove that he was not a fugitive. However, the stamps only indicate that the Husband had been travelling to and from Batam after his convictions. While Batam is part of Indonesia, it is some distance from Jakarta, where the Husband was convicted. We did not find this argument of any significance.

[54] Finally, the Husband, in an effort to show that he was not “on the run” tendered a certificate which on its face appears to have been issued by a local authority in West Jakarta. The Husband submitted that he had:

The certificate states:

[55] We found this certificate unreliable for two reasons. First, it is only found in the Husband’s appellant’s case but not in any of his affidavits. Second, the content is contradicted by the Husband’s criminal conviction and his earlier evidence that as a result of his conviction, he has been unable to return to Jakarta to visit his family: see [42] above.

[58] We briefly deal with the remaining issues arising out of this appeal.

[59] The Husband repeatedly emphasised in his appellant’s case that the Wife’s motive in applying for financial relief in Singapore was to sidestep a pre-nuptial agreement which the parties signed in Indonesia on 6 June 1995. This agreement is relevant because s 121F(d) compels to the court to consider any financial benefit which an applicant or a child of the marriage is likely to receive under a pre-nuptial agreement. However, it appears from a plain reading of the translated text that the agreement covers only property held solely by the Husband or the Wife:

[60] Thus, on its face, the pre-nuptial agreement does not cover the Seaview Property, which is held by the parties as joint tenants. We were therefore of the view that at this stage, the pre-nuptial agreement did not preclude the Wife from applying for financial relief. The proper interpretation of the pre-nuptial agreement and the circumstances under which the agreement was signed can be addressed more fully at the second stage of the proceedings after leave is granted.

[62] The Husband also accused the Wife of breaching her “oath” to the Judge that she would not lay claim to the Indonesian assets if the Singapore courts decide to divide the Seaview Property. He relied on an affidavit in which the Wife listed properties which she and the Husband own in Indonesia. However, the Wife was only specifying the Indonesian properties which the parties own, the value of which are relevant to any future division of the Seaview Property. It is not apparent from the face of the affidavit that the Wife is seeking a division of the Indonesian properties. The Husband also exhibited photographs showing “a group of trespassers who claimed to have been instructed by my wife’s lawyer … taking surveys and measurements” at one of the Indonesian properties referred to in her affidavit (the “Liberty Movie Theater”). The photographs show men taking measurements outside a building. They do not take the Husband very far. There is nothing objective linking the men in the photographs to the Wife and nothing which shows that the building being measured is indeed the Liberty Movie Theatre. Even if the Husband’s assertion were correct, the men taking measurements could have been carrying out work necessary for valuing the property, which would be required in the event that the Seaview Property were divided in satisfaction of the Wife’s claim to all matrimonial assets in Singapore and Indonesia.