Foreign marriage jurisdiction
If you started divorce proceedings in Singapore, and your spouse started proceedings in a different country (or vice versa), the courts must then decide which country the divorce will take place in: this is known as the forum conveniens.
Spiliada test
The forum conveniens is decided upon by a two-stage test. This test was first created by Lord Goff, in the case of Spiliada Maritime Corp v Cansulex Ltd:
Stage one: The party seeking the stay (ie, the Husband) must show that there is another available forum that is clearly or distinctly more appropriate than Singapore to determine the dispute. The court will take into consideration connecting factors, such as factors affecting convenience or expense (eg, availability of witnesses), the law governing the transaction and the places where the parties reside or carry on business.
Stage two: If there is another forum which is more appropriate, the court will ordinarily grant a stay, unless there are special circumstances by reason of which justice requires that a stay should nevertheless be refused. At this stage, the burden shifts to the plaintiff to show such special circumstances.”
In stage one, it is the burden of the person who disagrees with the country to prove:
- What other country is a better place to decide the divorce
- Why the other country is better (by drawing ‘connecting factors’ between the divorcing parties and the ‘better’ country)
If the other party disagrees, the onus is on them to prove why there are special circumstances why the current country (and not the ‘better’ one) should be used.
Connecting Factors:
Below are some examples of ‘connecting factors’ that the court will take into account when disputing the forum conveniens:
- Who submitted divorce proceedings in their country first
- Which jurisdiction any prenuptials/court orders/other matters were decided in?
- What is the cost of bringing/accommodating expert witnesses into the country
- Which party will be more financially strained if the proceedings were carried out in the country not of their choosing?
- Where and how the marriage was registered and lived
- How the parties conducted their personal relationship as husband and wife
- Where is the child most comfortable?
- Where were the finances and assets held? (Where is the evidence located?)
- What was the Citizenship of the parties and the child?
- Which court is faster? (If its in best interests of child to have earlier determination)
- Intentions of the parties for moving proceedings elsewhere
- i.e. husband initially had no problems with Singapore court until he realized it was too slow for his taste
- Connections of the parties to the countries (i.e. by birth, domicile, citizenship, etc.)
- Also, whether the parties willingly severed their connection with any of the countries involved
The court places different emphasis on different factors – i.e. the nationality of the parties is of little significance, and the court prefers to look at where the parties chose to live, and where they consider home.
The intricacies of deciding forum conveniens can be difficult to grasp. Our Principal Partner and Matrimonial Law Specialist Ms Gloria James is able to advice on complicated jurisdictional cross-border matters. When family mediation fails, it is important to know which aspects of your family are important in the eyes of the court.
