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

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.

For expats considering getting a divorce there may be various considerations in deciding whether doing so in Singapore will be advantageous in terms of cost or placing you in a favourable position in the division of matrimonial assets. The following information seeks to address certain questions one may have in mind when deciding to file for divorce in Singapore.

Eligibility:

Not all divorce cases will be heard by the Singapore court. One must meet the following criteria:

1. Either spouse is domiciled in Singapore or habitually resident in Singapore for 3 or more years
2. You have been married for more than 3 years
3. You can show that the marriage has broken down irretrievably

Duration:a

Obtaining an Interim Judgment can take around 5 to 6 months following which there is a mandatory 3-month period before the Final Judgment can be granted.

Cost:

Whilst the complexity of the case can affect costs, you may stand to gain from favourable exchange rates. Furthermore, Singapore uses a fused legal system such that you will be charged only 1 set of legal fees compared to 2 sets in other countries (e.g. UK with the barristers and solicitors system). In contested cases, it should be noted that mediation is compulsory in Singapore which may prove to be more cost effective should mediation be successful between you and your spouse.

Matrimonial Assets:

Different countries have varying ways of dividing matrimonial assets. In Singapore, the ratio of division is determined by factors such as indirect and direct contributions to the accumulation of assets, the needs of parties involved, agreements made by parties involved and so on. Beyond determining if filing for divorce in Singapore will be favourable for you in terms of division of matrimonial assets, it is important to ensure that the divorce judgment obtained in Singapore can be enforced in countries where the assets are owned. It is therefore essential that you contact a good international divorce lawyer to work out such details.

If you need legal advice before proceeding to divorce, you should engage a family law specialist. GJC Law has highly experienced lawyers who have dealt with a wide range of divorce matters. Should you wish to schedule a free initial consultation with us, please contact GJC Law at 6337 0469, or email consult@gjclaw.com.sg.

We will study the recent 2014 Singapore Court of Appeal case of BDU v BDT.
This will give you some insight onto the basis upon which an order can be made to return a child from his abduction to a foreign country, and the basis upon which that order can be refused. Unfortunately, cross-border cases like these spanning multiple jurisdictions can be very complicated. As much as we have attempted to simplify and clarify the issues, it is best to get advice from a divorce lawyer, particularly on that specializes in expatriate and/or international divorce.

The proceedings involved a three-year-old child, [B], his Singaporean mother and his German father. This appeal was brought by the mother against the High Court’s decision allowing the application of the father under the International Child Abduction Act for the return of [B] to Germany on the basis that [B] had been wrongfully retained in Singapore by the mother.

The mother resisted the application, relying on the Hague Convention on the Civil Aspects of International Child Abduction. The mother contended that an order for [B]’s return to Germany would put [B] at grave risk of psychological harm or would otherwise be placed in an intolerable situation due to the separation of [B] from his mother. This impending separation was purportedly due to the mother’s inability, on medical (specifically, psychological) reasons, to return to Germany with [B] should a return order be made.

An independent court expert was appointed to assess the risk of physical and psychological harm to the mother (including any risk of suicide and/or self-harm). The expert diagnosed the mother with “Delusional Disorder”, opining that the “prognosis [was] poor”. It was noted that [B] was of a very young age and that the mother was his primary caregiver. Any physical separation of [B] from his mother would not have been in the best interests of [B].

The expert recommended that the mother start treatment in Singapore in order to achieve some symptom control, after which her care could be transferred to Germany. The mother undertook to follow the independent psychiatrist’s proposal. Whilst a sufficient period of time would need to be furnished to the mother to embark upon treatment, there had to nevertheless be a timely return of [B] to Germany together with the mother. The mother also agreed that she would consent to the father applying (on her behalf) to the German court seized of the matter to incorporate all her undertakings as an order of that court. These undertakings ensured that any problems of enforcement would be taken care of.

On the father’s part, he had to undertake to ensure that the mother’s return to Germany with [B] was one that would see her being placed on a level playing field with him, especially with respect to access to legal advice and representation. He was required to give the necessary undertakings with regard to the mother and the children’s travel to Germany, reasonable accommodation, maintenance and health care, as well as the mother’s legal representation in Germany. These undertakings would clear away unnecessary logistical and other obstacles and set the legal stage for the more efficient resolution by the German court of the substantive issues of custody and/or care and control of [B].

After a divorce judgment is granted, the second stage of divorce proceedings in Singapore family law will deal with ancillary matters. The court is empowered to make a variety of ancillary orders. In particular, the court will also make orders pertaining to the continual care of any children to the marriage. There are four main types of orders in this regard, namely: custody, care and control, access, as well as maintenance.

Custody relates to the residual upbringing of the child. In particular, it concerns the authority to make major decisions for the child, apart from his or her daily needs. The court may choose not to make a custody order, and instead leave it up to the parties to cooperate with each other for the wellbeing of their child. However, where the court chooses to make such an order, it is very likely that the order will be for joint custody as opposed to one of sole custody.

Care and Control relates to the party whom the child will continue living with. The party in question will have authority to make small daily decisions for the child. However, the party with care and control will still be expected to consult with the other party in making bigger decisions in the child’s life. The court will generally allow the parent who is better able to care for the child to have care and control.

Access Orders are typically granted to the parent without care and control of the child, if parties are unable to agree on reasonable access rights. The court will take into account the best interests of the child, and will generally try to ensure that the child gets to spend time with both parents and bond with them.

Maintenance Orders for children to the marriage are also available. This is because both parents bear the financial responsibility to maintain their child until he or she becomes an adult. This liability rests equally on both the father and the mother. The court can only make a maintenance order against a parent who has neglected to provide maintenance for the child. In making such an order, the court will take into account all circumstances of the case, with the most important factors being: (1) the financial needs of the child, and (2) the ability of the parent in question to meet such needs.

If you require advice on any of the above ancillary matters, you should engage a family law specialist. GJC Law has highly experienced lawyers who have dealt with a wide range of divorce matters. Should you wish to schedule a free initial consultation with us, please contact GJC Law at 6337 0469, or email consult@gjclaw.com.sg.