Lee Mei-Chih v Chang Kuo-Yuan

Choo Han Teck J:

[1] This is an appeal against the District Judge’s decision dismissing Divorce Suit No 4945 of 2011 on the ground that the Singapore courts do not have jurisdiction to hear the matter. The plaintiff-appellant (wife) and the defendant-respondent (husband) are not Singaporean citizens. They are also not domiciled in Singapore. The plaintiff is a citizen of both Taiwan and New Zealand, while the defendant is a citizen of Taiwan. The parties were married in Taiwan in 1994 and the marriage was also registered in New Zealand in 1995. There is a child to the marriage, a 16-year old daughter, who was born in New Zealand. The daughter is a citizen of both Taiwan and New Zealand. She is currently residing in New Zealand and attends school there. The only matrimonial asset in Singapore is a condominium property located at Grange Road.

[2] Pursuant to s 93(1)(b) of the Women’s Charter (Cap 353, 1985 Rev Ed), the Singapore courts will have jurisdiction to hear the matter if either party to the marriage was “habitually resident in Singapore for a period of three years immediately preceding the commencement of the proceedings”. Since it is not disputed that the defendant was never habitually resident in Singapore, it falls on the plaintiff to prove that she was “habitually resident” in Singapore specifically from 14 October 2008 to 14 October 2011 (ie, the date that the divorce petition was filed) (“the Qualifying Period”).

[3] To understand what constitutes habitual residence, it is necessary for me to firstly briefly trace the development of s 5(4) of the English Domicile and Matrimonial Proceedings Act 1973, which is in pari materia with s 93(1)(b) of the Singapore Women’s Charter. Section 5(4) of the English Domicile and Matrimonial Proceedings Act 1973 provides as follows:

Before s 5(4) of the English Domicile and Matrimonial Proceedings Act 1973 was enacted, the governing law on this jurisdictional issue was as originally enacted in s 1 of the Law Reform (Miscellaneous Provisions) Act 1949 and re-enacted in s 18 of the Matrimonial Causes Act 1950 and s 40 of the Matrimonial Causes Act 1965:

[4] I agree with the view of Thorpe LJ in Ikimi v Ikimi [2001] EWCA Civ 873 at [21] to [23], that the change in the terminology from “ordinarily resident” to “habitually resident” in the English provisions was in effect merely cosmetic:

[5] Since the phrase “habitually resident” is for all intents and purposes the same as the phrase “ordinarily resident”, the principles in the leading case of R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 308 (“Nilish”) which discussed the meaning of the phrase “ordinarily resident” should therefore also apply to s 5(4) of the English Domicile and Matrimonial Proceedings Act 1973. Consequently, if they do, they should not have a different meaning to the words “habitually resident” in s 93(1)(b) of the Singapore Women’s Charter.

[6] As held by Lord Scarman in Nilish at p 341, the construction of the phrase “ordinarily resident” by the House of Lords in the tax cases of Levene v Inland Revenue Commissioners [1928] AC 217 (“Levene”) and Inland Revenue Commissioners v Lysaght [1928] AC 234 (“Lysaght”) were of general application and apply across the wide statutory field in which the phrases appear, unless the statutory framework requires a different meaning. Lord Scarman also approved the definition by Lord Denning MR “that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration” (at p 342). Lord Scarman continued that the significance of the verb “habitually” as used by Lord Denning MR is that it recalls two necessary features mentioned in Lysaght, namely residence adopted voluntarily and for settled purposes (at p342). To these two necessary features Lord Scarman returned, at p 344:

[7] Returning now to the facts of the present case, I find that the plaintiff was habitually resident in Singapore. There is firstly no doubt that the plaintiff’s residence in Singapore was voluntary. As for the element of settled purpose, the plaintiff’s pattern of always returning to Singapore whenever she travelled demonstrated a certain degree of settled purpose. I do, however, note that the plaintiff did not have more concrete settled purposes such as education, family or employment.

[8] However, the plaintiff has failed to establish the requisite degree of continuity of habitual residence throughout the Qualifying Period for the purposes of s 93(1)(b) of the Women’s Charter. There is no fixed period as to what constitutes a brief absence. That is a question of fact for the individual case, but it would be sensible and fair to say that holidays abroad would not break an otherwise habitual residence as some courts have held. However, the principle is not merely about “holidays” but any brief period (or several brief periods) when the claimant was away. In considering whether the time away had broken the “habitually resident” requirement, the court has to consider not just the reason for being away, but also the length of time spent away. In the present case, the plaintiff had travelled out of Singapore and stayed in Taiwan for about eight months from 2 August 2010 to 15 April 2011. She claimed that she went to defend herself in her divorce proceedings there. Given the extended length of the trip and the fact that the plaintiff had returned to her home country, the Taiwan trip could not have been said to be within the acceptable exceptions of holiday trips or business trips. Although the Taiwan trip was necessitated by circumstances beyond the plaintiff’s control and was brought about by the defendant’s actions in instituting the Taiwan divorce proceedings, this was ultimately irrelevant for the purposes of ascertaining the requisite degree of continuity of habitual residence under s 93(1)(b) of the Women’s Charter. To hold otherwise would mean that had the proceedings in Taiwan kept the plaintiff away from Singapore for say two out of the three-year period, she could still have qualified as having been habitually resident here. That would plainly go against the spirit of s 93(1)(b) of the Women’s Charter. In addition to the Taiwan trip, the plaintiff had also travelled to New Zealand for about four months from 29 January 2009 to 6 June 2009 to settle her daughter into her school there. As alluded to earlier, the plaintiff was, and still is a citizen of New Zealand as well. The plaintiff also made several other trips to other countries but I would place little weight on this fact because those trips were fairly short. In my view, the total of about 12 months extended absence for both the Taiwan and New Zealand trips was substantial when viewed against the backdrop of the mandatory three year Qualifying Period.