Expats facing divorce in Singapore must consider a number of unique questions and issues particular to their international status. As international divorce lawyers who regularly work with expats, we want to help you better understand your rights and challenges. Below, we discuss the most critical legal issues expats face when considering divorce in Singapore.

Grounds for Divorce
Singaporean courts take divorce very seriously. Anyone seeking a divorce in Singapore, whether expat or not, must have valid grounds to end the marriage. At a minimum, you must demonstrate that you have been married at least three years and the marriage has irretrievably broken down. Indicators of a marital breakdown include:

• adultery
• unreasonable behavior
• desertion for at least two years
• separation for at least three consecutive years and both parties consent to the divorce
• separation for at least four consecutive years

If you have been married for less than three years, the Court may nonetheless grant permission to divorce if you can show that the marriage is an exceptional hardship.

Residency Issues
For a Singapore court to have jurisdiction over your divorce, one party to the marriage must be a Singapore Citizen, “domiciled” in Singapore, or have habitually resided in Singapore for three consecutive years before applying for divorce.

“Domiciled” is a complex legal term but it essentially means that if you have or intend to live in Singapore permanently or indefinitely. If you’ve lived in Singapore for less than three years, but can prove your intent to be domiciled in the country, the Court may find that you meet the residency requirement. Proof of being (or intending to be) domiciled in Singapore includes having a Singapore-based job, having Singapore Permanent Residency, having applied for Singapore Citizenship, or having otherwise cut ties with your home country.

Jurisdiction Issues
Even if you meet all of the above requirements, a Singapore court still may not have jurisdiction over your divorce. If you’re an expat, you might file for divorce in Singapore, your home country, or another relevant country. But under the legal doctrine of forum non conveniens, only the most appropriate court will have the legal authority to preside over your divorce.

For example, if a person files for divorce in Singapore but their spouse argues that divorcing in Hong Kong is more appropriate, the Singapore court must decide whether to proceed with the proceeding. In such circumstances, the court will examine which forum has the most real and substantial connection with the dispute and the parties. These might include where the parties live, where they work, where they own property, or where their children live.

If the court determines that Hong Kong is the most appropriate form, it will issue a “stay of jurisdiction.” A stay prevents the divorce from proceeding before the court issuing the stay–in this example, Singapore.

Overseas assets
Expat couple seeking divorce in Singapore also must consider how to handle any overseas matrimonial assets. Singapore courts will divide all matrimonial assets, whether in Singapore or abroad, between the parties. Once the court has decided how to distribute these assets, it will issue a court order.

However, an overseas court may refuse to enforce a Singapore order concerning property in its jurisdiction. In such cases, the Singapore court may order one spouse to keep the overseas property, but give the equivalent share in liquid assets to their spouse.

Cross-border issues relating to children
Some expat parents believe that it’s in their child’s best interest to take them out of Singapore to live in their home country. But under Singapore law and the rules of the Hague Convention, it’s a criminal offense to remove your children from a country without permission from the other parent. Any parent who does so risks arrest for child abduction.

As international divorce lawyers, we understand the reality of this risk and the serious emotional trauma abduction can cause. If you’re concerned that your spouse will attempt to remove your child from the country, a qualified Singapore divorce lawyer help you obtain a court order to prevent this from happening as well as help you apply for interim custody, care and control over your child.

With more foreigners working and living in Singapore, and more Singaporeans living abroad as shown by statistics, it does not come to surprise that there are also more mixed marriages registered In this regard, there are a growing number of family law proceedings involving cross-jurisdictional legal issues. Clients in that situation often approach our office to seek legal advice when divorce proceedings or proceedings on divorce ancillary matters such as maintenance for a spouse or child are commenced outside of Singapore. Most cases involve stay applications to be made on the basis of forum non conveniens, which will be explained below.

On a related note, a team of lawyers from our firm was involved in the landmark decision of TGT v TGU [2015] SGHCF 10 which was an appeal decided by Foo Tuat Yien JC in the High Court on 22nd October 2015. The case is still relevant today and dealt with stay applications on the basis of forum non conveniens. In that case, our divorce lawyers had successfully appealed against a district judge’s refusal to stay the other parent’s application for maintenance of their son in Singapore.

What is a “stay of proceedings” and “forum non conveniens”?
In short, a “stay of proceedings” is a ruling by a court to cease further legal proceedings while forum non conveniens means “jurisdiction not agreeing”, which is a legal doctrine whereby a court declines to hear the case as that court is of the opinion that there is another court in another country more suited to decide the case.

Summary of TGT v TGU [2015] SGHCF 10
A brief summary of the decision of TGT v TGU [2015] SGHCF 10 is provided below. The doctrines in the case are complex, and our Divorce Lawyers would be able to better advise you on the unique facts of your case.

Facts of Case
The appellant in this case was the father, who was employed and a resident of Singapore, which were his only connecting factor to Singapore. The respondent in this case was the mother, who was both a citizen of and residing in in Hong Kong with the child at the time the case was decided. The mother in this case wanted to commence maintenance proceedings for the child in Singapore. The trial judge before had decided that a stay of proceedings in Singapore would deprive the mother a right of action in maintenance against the father, as Singapore law regarded the child’s welfare as the paramount consideration as compared to the Hong Kong jurisdiction. Thus, the trial judge declined to grant a stay in proceedings in Singapore, and the result was that the mother was not prevented from carrying out maintenance proceedings against the father in Singapore.

Summary of Legal Principles
We have provided a brief summary of the legal principles which were decided on appeal by the High Court:-

1. Whether the country in question, Hong Kong, was an available forum for maintenance proceedings;
The High Court stated that a foreign court will be available if it has competent jurisdiction, which should be approached in a practical manner, and as such, the forum in Hong Kong was available.

2. Whether the country in question, Hong Kong, is more appropriate than Singapore for trial;
To decide whether the forum in Hong Kong or Singapore was more appropriate for trial, the High Court determined which forum had the most real and substantial connection with the dispute and parties, and evaluated the inconveniences and expenses the parties would face if each forum was used. The High Court stated that the parties had begun their relationship in Hong Kong, and had their child in Hong Kong, who continues to live there. Additionally, the Court stated that the mother who was in Hong Kong had stated before that she could not afford to travel to Singapore. Thus, it was concluded that Hong Kong had the more appropriate forum for trial than Singapore.

3. Whether a stay should be refused to prevent denial of substantial justice.
The High Court balanced various factors in deciding whether or not a stay would deny parties of substantial justice. In considering various factors, the Court clarified that it should not be required to weigh the quality of justice or the justice of the systems of law available under the Singapore and Hong Kong family justice regimes. The Court decided in this case that if the proceedings in Singapore are stayed, there would not be denial of substantial justice to the parties.

Conclusion
The Court concluded in our client’s favour that Hong Kong was a more appropriate forum to determine the issue of maintenance for the child, and granted a stay of the mother’s maintenance application in Singapore. This case does not mean that in every similar scenario, the courts in Hong Kong would always be the more appropriate forum. Each case is unique and may result in a different outcome. The law in this area is complex, and our Specialist Divorce Lawyers are highly trained in cross-jurisdictional family law proceedings to assist you if you require legal advice on such matters.

Clients who seek advice from our International Divorce Lawyers regarding the permanent removal of their children from Singapore usually come into the office looking flustered, desperate, and helpless at what to do due to uncertainty and pressures that they face from their spouse or ex-spouse who wants to permanently remove their child from Singapore.

In many cases, clients experience this due to their existing acrimonious relationship with their spouse or ex-spouse.

We understand from experience that most clients are worried about the welfare of the child, are anxious that they would never see their child again, and that their spouses or ex-spouses will permanently terminate communication between them and the child when they leave Singapore. These concerns are real and traumatic, and this article sheds some light on general steps that can be taken by you, to reduce the likelihood of that from happening.

1. If your child has not been removed from Singapore yet

1. Talk to your spouse or ex-spouse;
   You can discuss and negotiate with your spouse or ex-spouse regarding your terms for taking the child out from Singapore. In your negotiation, you can discuss and agree on terms for the child to leave Singapore temporarily. However, in the event that you and your spouse or ex-spouse have an acrimonious relationship, he or she does not want to talk to you about the matter, and is adamant about leaving Singapore with the child permanently, you can refer to the steps and procedures below with the guidance of our Expat Divorce Lawyers.
2. Talk to our International Divorce Lawyers
   If you are worried that your spouse or ex-spouse is going to remove your child from Singapore permanently, it is possible to make an application for an injunction to prevent the removal of the child from Singapore. This injunction order is a judicial order that can restrain your spouse or ex-spouse from removing the child from Singapore. There are certain criteria that you would need to meet before you can bring such an application to Court. If the Court grants the order for an injunction, failure to comply is punishable as contempt.

Concurrent with an application for an injunction to prevent the removal of the child from Singapore, you can make an application for interim custody, care and control over your child.

If the Family Justice Courts grants an injunction order, you can then make an application to the Immigration and Checkpoints Authority (ICA) to prevent your child from being taken out of Singapore by providing an undertaking.

Our Specialist Divorce Lawyers are able to assist you in making an application for an injunction to prevent the removal of the child from Singapore. Our lawyers can also advise you on your application for interim custody, care and control over your child, and assist you with procedural issues regarding filing an undertaking with the ICA within tight timelines.

2. If your child has been removed from Singapore and is living overseas

You may be in a situation where your child has been removed from Singapore by your spouse or ex-spouse for some time, and you are unable to communicate with your child. In this case, you can bring an application to Court for an order for the child’s return to Singapore. There are procedural criteria to be met before you can make an application, such as that your child has to be under the age of 16 years old, and you have sufficient interest in the matter. The Court also considers various complex legal principles in determining whether it should order the return of the child.

If you decide to make an application for the return of your child brought to another country, you may face multiple hurdles along the way which can be distressing. The application for the return of the child to his or her habitual residence can be challenged by your spouse or ex-spouse on multiple grounds. In most instances, the Court will consider the best interests of the child in deciding what orders, if any, would be made.

Parental alienation from a child is common in family proceedings, and we understand that the process of obtaining an order for the return of the child can be exhausting and daunting. Our Divorce Lawyers will be able to assist you in making an application to the Family Justice Courts, and will be able to guide you through various legal hurdles that you may face when you make an application for the return of your child to Singapore.

A parent’s love for his/her child knows no boundaries. Parents act in a way they think is for the best interest of the child even if that means bringing the child out of Singapore, for a holiday or for good.

Local laws entail that the consent of the other parent has to be given first in order to remove a child from of Singapore. Failure to do so could amount to child abduction. Our International Divorce Lawyers can assist in obtaining a court order to prevent a parent from removing a child from Singapore.

Even with a Court Order, our clients share with us their fears of their spouse removing their child from Singapore. These are valid fears and we understand that time is of the essence in such situations.

In this article, we will be sharing steps to be taken to prevent the removal of a child.

1. Sign and submit to Court two (2) documents: –

a. An Undertaking; and
b. The Court Order.

• These documents can be submitted via a system known as ‘E-litigation’.
• When in doubt, our Specialist Divorce Lawyers can assist in the administrative procedure to ensure an expedient process to give you a peace of mind.

2. Send the above mentioned documents in 1(a) and (b) to the Immigration and Checkpoints Authority (“ICA”) through email.

• These documents have to be sent to the relevant ICA email address and during the ICA’s working hours.
• When in doubt, please do not hesitate to contact our Singapore Divorce Lawyers who can provide further assistance to ensure a speedy and efficient process for your ease of mind.

Compliance with the above mentioned requirements in 1 and 2 is very important. Failure to comply may result in the ICA not providing the necessary assistance.

Our Specialist International Divorce Lawyers can help to ensure that the entire process of preventing child removal is seamless and speedy as possible to help them feel more secure.

Q: If I obtained a divorce through matrimonial proceedings in a different country, is it still possible for me to apply to the Singapore Family Justice Court for financial relief?

A: Yes, you can, if you meet the statutory requirements. The same applies if you obtained a judicial separation or annulment overseas.

In the past, the Singapore court’s power to divide matrimonial assets was linked to its matrimonial jurisdiction to grant divorce, meaning that only parties who had divorced locally could apply for financial relief. However, in 2011 the Women’s Charter was amended so that the court now has jurisdiction to grant financial relief even over foreign divorces.

Should you find yourself in one of the following situations, our divorce lawyers at Gloria-James Civetta & Co can advise and assist you in filing an application under section 121B of the Women’s Charter.

1. A foreign court has granted your divorce, but no orders for financial relief were made.
2. A foreign court has granted your divorce and has already issued orders for financial relief.

The requirements are set out by Chapter 4A of the Women’s Charter:

First, parties must satisfy the jurisdictional basis in section 121C. Either you or the other party to your divorce must have been domiciled in Singapore on the date that you apply for leave (more below) or the date when the divorce took place.

Second, you must take out an application for leave in accordance with section 121D. The court will not grant leave unless it finds that there is ‘substantial ground’ for making such an application. This will be determined by assessing the applicant’s prospects of success.

What counts as ‘substantial ground’? In the case of Harjit Kaur d/o Kulwant Singh v Saroop Singh a/l Amar Singh [2015] 4 SLR 1216, a Malaysian court had previously issued financial relief orders concerning the sale and division of proceeds of the couple’s HDB property in Singapore. The wife later filed an application under s 121B to have the sale proceeds divided by the Singapore court. However, the Singapore court found that the Malaysian orders were not inadequate or unfair, and therefore there was no ‘substantial ground’ on which leave should be granted.

The court stated that the applicant must show a ‘solid’ or ‘substantial’ case, which is stronger than a mere ‘good arguable case’ or a ‘serious issue’. But a ‘solid’ case does not need to be one with over 50% chance of success.

Even if there is a substantial or solid case to be made out, the court will consider all the circumstances before deciding whether to grant leave. For instance, where no foreign orders were made for financial relief, the court may refuse leave where it might provide a party with an additional advantage rather than mitigating a disadvantage. After all, there can be many reasons why the foreign court did not grant financial relief – such as where the parties had a prenuptial agreement that would have been upheld in the overseas jurisdiction, and the applicant is now trying to get out of it by applying for leave in Singapore.

Where foreign orders have already been issued, the Singapore courts are wary of making orders that allow parties to get a ‘second bite of the cherry’ by effectively re-litigating the same case. Another concern is that litigants may attempt to use s 121B as a means of ‘forum shopping’ in search of a better outcome. However, relief may be granted where the original award was inadequate.

An application for leave under s 121D must be made in accordance with the Family Justice Rules 2014, by way of an Originating Summons accompanied by a supporting affidavit. At Gloria James-Civetta & Co, our lawyers can help you navigate each step of the process.

Third, it must be appropriate for a Singapore court to make an order for financial relief. The court will consider the factors set out in s.121F, including the parties’ connection to Singapore and any other foreign countries, as well as the financial benefits that the applicant and any child of the marriage has received under foreign law. If the court concludes that Singapore is not the appropriate forum for this matter, it may dismiss the application.

If the above conditions are fulfilled, the court may make any financial orders it sees fit under s.121G, with the same options available to it as if the marriage had been terminated in Singapore.

RELATED ARTICLE: Financial Relief Available upon Divorce in Singapore

The Singapore Courts give regard to an international divorce. Prior to amendments to the Women’s Charter in 2011, Singapore courts had no authority to deal with post-divorce matters related to a foreign decree. Where a foreign order concerned maintenance, that maintenance order could be enforced in Singapore though a Singapore divorce lawyer by registering under the Maintenance Orders (Facilities for Enforcement) Act (“MO(FE)A”).

However, changes to the Women’s Charter via the introduction of Chapter 4A now allows for a party to a foreign order to seek ancillary relief in Singapore courts. A financial relief order in a foreign jurisdiction does not preclude an application to the Singapore Courts. Chapter 4A, which is modelled around the approach taken by the UK, equips the court with the power to deal with post-divorce issues arising from a foreign divorce.

It should be noted that although the courts now have the power to grant a financial relief order or re-consider an existing order granted elsewhere, the Singapore courts are mindful of not making a decision in haste. Consideration is given to showing unity towards orders that are made by competent foreign jurisdiction. As such, the threshold to be satisfied is rather high. Power by the Singapore courts may only be exercised where no relief was made by the courts or the relief granted in a foreign jurisdiction was inadequate or not a fair one.

There are three requirements which need to be established by an applicant seeking relief in Singapore:

1. Parties must satisfy the jurisdictional basis (s.121C)
2. Leave of the court is required and can only be granted where there is “substantial ground” for the application (s.121D)
3. Singapore must be the appropriate forum to grant financial relief (s.121F)

If an applicant manages to establish the 3 necessary requirements, the courts may make an order as if the decree nullity or judicial separation was obtained in Singapore.

Foreigners who seek to apply for divorce in Singapore have to first overcome the issue of conflict of laws, before Singapore courts are willing to hear the case.

The issue of whether the marriage laws of the home country of the foreign couple should apply, or whether the marriage laws of Singapore should apply, is the conflict of laws.

In such a situation, the guiding principle is forum non conveniens, where it has to be determined which country is the more appropriate forum to hear the dispute. Under this principle, at least one of the parties has to have a sufficient connection to Singapore.

Does the foreign couple have sufficient connection to Singapore?

There are two ways a foreigner may prove that he/she has sufficient connection to Singapore.

First, through proving that your domicile is in Singapore at the time of the commencement of the divorce proceedings in Singapore, whether by origin, dependence or choice. Second, through proving that you are a habitual resident in Singapore for a period of 3 years immediately preceding the commencement of the proceedings.

There are two ongoing procedures, one in Singapore and one in another country. What happens now?

When proceedings have begun in a court (any jurisdiction), a court will ordinarily refuse to stay the proceedings here unless it can be shown clearly and distinctly that there is a more appropriate forum elsewhere. Even so, the other party who wishes to continue proceedings in that country, can still show that he/she would be deprived of substantial justice if the proceedings were stayed.

If you need legal advice before proceeding to divorce, you should engage a family law specialist.

At GJC Law, we have highly experienced matrimonial lawyers who deal with a wide range of expat divorce matters. Should you wish to schedule a free initial consultation with Ms James, please contact GJC Law at 6337 0469 or email her directly at gloria@gjclaw.com.sg

In today’s highly globalised world, it is not uncommon for individuals of different nationalities to get married in one country, make pre-nuptial agreements, then move to another country to settle down. However when divorce suddenly comes into the picture in a foreign country, will the court still consider these pre-nuptial agreements?

Singapore traditionally does not have the practice of enforcing pre-nuptial agreements. However, pre-nuptial agreements are not generally void on the basis of being contrary to public policy and the Singapore Court of Appeal holds that it will normally enforce foreign pre-nuptial agreements, taking them into account very seriously in International divorce cases.

An important point to note is that the validity of a contract (this including pre-nuptial agreements) is determined by a system of law called the “proper law of the contract” which is dependent on whether the parties to the agreement have expressly chosen a governing law. Pre-nuptial agreements that are definitively governed by foreign law and entered into by foreign nationals are generally conferred special significance by courts.

However, should the pre-nuptial agreement/terms be in conflict with legislative policy embodied within the Women’s Charter, the court may decline to uphold the agreement. It can be seen that any pre-nuptial agreement must still withstand the court’s scrutiny and it would be most advisable to consult an experienced international divorce lawyer on the details of your particular case.

Whilst undergoing International divorce, you may face confusion in dealing with issues regarding your children —can I bring them for visitation overseas? Or perhaps even move overseas permanently with them?

Firstly it is important to note that removing your child from the country without permission from the other parent is a criminal offence under the Hague Convention on Civil Aspects of International Child Abduction to which Singapore is a signatory. Permission must be granted by the court for international child relocation or travel in such international divorce cases.

How likely is it for an application for international relocation to succeed?

Courts have sometimes relied on the fact that the country to which the child is to be relocated has yet to sign the Hague Convention as reason to reject such applications. However it has also been established that the foreign nation’s Hague Convention status whilst remaining a pertinent factor is not a dispositive factor. Beyond the foreign nation’s Hague Convention status, another key aspect is whether the foreign country will effectively enforce the orders of Singapore court. It is advisable to obtain appropriate orders in the foreign nations or enter contractual agreements that are definitively enforceable in foreign nations.

How likely is it for an application for international travel to succeed?

One main issue considered is the extent to which the parent taking the child for international travel is a likely child abductor. Factors indicating such a tendency would include whether the parent has previously abducted the child or attempted to do so, engaged in activities that indicate planned abduction (e.g. selling of residential property, resignation from employment). Whether or not the country has signed the Hague Convention whilst not dispositive remains a highly relevant factor. It is advisable to consult a good international divorce lawyer depending on the context of your case.

Can my child/children refuse to return after international travel?

Under Article 13 of the Hague Abduction Convention the child need not be returned if the child objects to being returned and has attained age and degree of maturity at which it is appropriate to take account of its views. Therefore it is possible that if the child is old enough, he/she may successfully oppose a return should the taking parent create attractive conditions in the new country or instill fear of going back.

What can be done to ensure I can visit my child as the non-traveling parent should international travel be permitted?

In the provision of visitation order, the use of language that makes it easier for the foreign court to make a quick ruling in a Hague case in favour of the left behind parent is possible. The visitation order may for example include provision that the non-traveling parent has specified custody rights over the child or a representation by the taking parent that he/she will return the child no later than a specified date. However it must be noted that such an order will not bind foreign courts and the extent to which it has influence in foreign court is variable. It is advisable to consult a lawyer experienced in international divorce cases.