Foreign Elements in Matrimonial Proceedings

14 August 2017

Foo Soon Yien

The Singapore Courts will recognise divorce judgments made by foreign courts of competent jurisdiction in accordance with the rules of private international law of Singapore. Generally, there are three accepted bases for recognition.

1. Where the judgment was granted by a court of the domicile of one of the parties;  
2. Where the judgment was granted by a court which exercised jurisdiction on the same basis that the Singapore Courts would have exercised jurisdiction; or
3. Where there is a real and sufficient connection between the court which granted judgment and either party to the marriage.

Financial Relief Consequential on Foreign Divorce
Where a marriage has been terminated by a foreign decree, the Singapore Courts can rule on post-divorce issues such as division of matrimonial assets or spousal maintenance as though the foreign decree was granted in Singapore in certain circumstances. 

In order to obtain such financial relief: (i) one of the parties to the marriage must have been domiciled in Singapore on the date of application or habitually resident in Singapore for a continuous period of one year before the date of application; (ii) the Singapore Courts must grant permission to hear the application for financial relief, which it will do only if it takes the view that there are substantial grounds for making such an application; and (iii) Singapore must be the appropriate forum to grant the financial relief. 

The Courts will consider the following: 

1. the connection of parties to the marriage with (i) Singapore; and (ii) the country in which the marriage was dissolved;
2. any financial benefit which the applicant or a child received;
3. the financial relief given by an overseas order and the extent to which the order has been or is likely to be complied with;
4. any right of the applicant to apply for financial relief from the other party under the law of any foreign country, and the reason for any omission to exercise that right; 
5. the availability in Singapore of any matrimonial asset;
6. the extent to which any order is likely to be enforceable; and
7. the length of time since the divorce.

Where financial relief has already been made by a foreign court, the Singapore Courts will be cautious not to make any order that will allow a party to have another bite of the cherry or offend the fundamental rule of comity as between courts of competent jurisdiction. However, leave may be granted to hear an application for financial relief if the financial relief granted by the foreign court is inadequate.

Enforcement of Foreign Maintenance Orders 
Foreign maintenance orders can be enforced in Singapore as Singapore is party to reciprocal legislation – the Maintenance Orders (Facilities for Enforcement) Act (Cap 168) and Maintenance Orders (Reciprocal Enforcement) Act (Cap 169) – which enables persons in Singapore and reciprocating countries to enforce maintenance orders as though those orders were made locally. Parties may also apply to the Singapore Courts to vary or revoke foreign maintenance orders which have been registered by the Singapore Courts.

Where a country is not one included in either of the reciprocal legislations, an applicant cannot apply for enforcement proceedings, in Singapore, of the maintenance order made by the foreign court. In Ng Sui Wah Novina v Chandra Michael Setiawan [1992] 2 SLR(R) 111; [1992] 2 SLR 839; [1992] SGHC 129, the High Court held that the Plaintiff wife should have instead applied for enforcement proceedings in Indonesia rather than Singapore since it was the Indonesian court which had ordered the ex-husband to pay maintenance and Indonesia was not a reciprocating country. However, the applicant may be able to apply for a maintenance order from the Singapore Courts. See Financial Relief Consequential on Foreign Divorce above.

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Foo Soon Yien
Director, BR Law Corporation
[email protected]