Wednesday, 19 June 2024

Cross-border divorce challenges, and Singapore’s unique approach

5 min read

By Josephine Chong and Kym Anstey

In this article, we look at cross-border divorce challenges, focusing on Singapore’s unique approach to ancillary matters post-foreign divorces, and the importance of final resolutions to mitigate future litigation risks

We have thus far explored various issues arising in global cross-border divorce proceedings. The high-profile divorce case between the owner of Laura Ashley and his former-Miss Malaysia wife incurred over GBP 5 million ($6.3 million) in legal fees, highlighting the lengths parties go to for jurisdictional advantages. We have discussed the Xanthopoulos v Rakshina case, where the UK courts ordered a financially affluent wife to bear the GBP 9 million ($11.4 million) legal costs, an order unlikely in Singapore. We have also explored the relocation of children post-divorce in expatriate-rich Singapore.

We have emphasised why commencing divorce proceedings in Singapore can lead to fair, efficient, and favourable outcomes. Yet, what happens if Singapore’s jurisdiction cannot be invoked initially or if proceedings are stayed? Can Singapore’s robust approach to ancillary matters be enjoyed?

The answer is yes. Singapore courts can address certain ancillary matters even after divorce proceedings in another jurisdiction. In this article, we focus on financial relief after a foreign divorce, outlining the criteria for recognition under Singapore law, and examine when a foreign divorce is recognised, the grounds, and its alignment with Singapore’s public policy. Factors like party citizenship, residency, and asset location are considered. 

Finally, we will highlight the importance of seeking a final resolution or an order to prevent future proceedings in other jurisdictions. A recent Court of Appeal decision illustrates the significance of finality.

Ultimately, divorce may not always mean the end, and understanding jurisdictional nuances is crucial. In cases involving significant assets, careful consideration of potential future litigation risks is essential.

Getting financial relief after a foreign divorce

Whilst it is clear that “[e]very marriage solemnised in Singapore…shall continue until dissolved…[including] by order of a court of competent jurisdiction”, thus preventing a party from then obtaining a second divorce in Singapore once one has been granted elsewhere, the Women’s Charter also provides a mechanism whereby divorced parties can subsequently apply to the Singapore courts for an order for financial relief, provided that the foreign divorce is one entitled to be recognised as valid under Singapore law and the Singapore court has jurisdiction to grant such relief.

If the application is successful, the applicant can enjoy any order for financial relief that the Singapore court would have been entitled to make had the divorce first been dealt with in Singapore, that is, the Singapore court can make determinations on issues of division of matrimonial assets, spousal maintenance, and child maintenance, and a successful party can enjoy the benefits of the Singapore legal system that we have already discussed in this series.

This then begs the question: when is a foreign divorce “entitled to be recognised as valid” under Singapore law, and under what circumstances would the Singapore courts deem it appropriate for them to make such orders for financial relief?

Broadly speaking, and based on the prevailing cases that have thus far been reported in Singapore, it appears that a foreign divorce is entitled to be recognised where it is established that: (a) the foreign divorce was granted by a court of either party’s domicile, and/or if there was a real and substantial connection between one party and the court which granted the foreign divorce, and (b) the foreign divorce decree is not contrary to Singapore’s public policy.

Whether or not part (a) is satisfied can be gleaned only from the specific facts of the case itself, considering factors such as the citizenship of both parties, their places of residency, and where the related assets are situated. 

As for part (b), evidence would need to be produced to show inter alia the grounds on which the foreign divorce was obtained, and how these grounds relate to those that Singapore law can recognise as valid for divorce here. 

Furthermore, as regards issues of public policy, the Singapore courts would likely need to see evidence that more than three years of marriage had elapsed before the foreign divorce decree was obtained, and that the foreign jurisdiction only allows for and recognises monogamous marriages as valid.

The Singapore court must then be satisfied that there is a “substantial ground” for a party to be making such an application. Again, the court will assess all the circumstances of the case, including parties’ connection to Singapore and to the jurisdiction in which the divorce was obtained, and whether any order has already been made by the foreign court and the extent to which that order has or is likely to be complied with. 

All in all, these factors must clearly show that it is appropriate for the Singapore courts to make such orders for financial relief, which in practice, would likely mean that the foreign divorce has either failed entirely to make an order like that sought by the applicant, has failed to sufficiently make such an order, or both. This would turn on the circumstances of each individual case and the jurisdiction in which the divorce was first obtained, and it is likely that expert opinion may need to be sought from a qualified lawyer in that jurisdiction for any matters relevant to that case.

It’s not over till it’s over

What, then is the point of jumping through all these hoops and potentially expending all these additional costs? Surely the whole purpose of going through divorce proceedings regardless of where it is around the world is that once decree nisi has been granted, parties are finally free and separate from each other, and that’s the end of that?

Whilst in some cases that is probably true, there are cases where the risk that ancillary matters can be opened up again, in a jurisdiction other than that in which the divorce was obtained, at some point in the future is too big to be ignored. How? In our experience, we have come across expert opinion from jurisdictions such as Vietnam which has stated that the Vietnamese courts are not able to make orders of an extra-territorial nature when dealing with the ancillary matters. In other words, try as you might, a Vietnamese court cannot make an order touching on matters outside Vietnam. This means that where there are matters related to jurisdictions other than Vietnam, for example, for related land in Singapore, a Vietnamese divorce may not be truly determinative of all ancillary matters between the parties.

This brings us to our next point—one of vital importance—the importance of seeking a final disposal of all ancillary matters or an order that will preclude the bringing of further proceedings relating to the marriage in other jurisdictions. The recent Singapore Court of Appeal decision, VEW v VEV illustrates this. 

In VEW v VEV, parties had commenced divorce proceedings in Singapore, and orders had been made on the ancillary matters in 2019: this inter alia included that a property in the UK (which was and had been solely owned by the husband prior to and throughout the marriage) was to be excluded from the pool of matrimonial assets and retained in the husband’s sole name. The wife made no attempt to appeal the Singapore court’s decision, and instead, applied to the UK courts for financial relief in respect of that UK property under Part III of the UK’s Matrimonial and Family Proceedings Act 1984  one year later. 

In response, the husband sought an anti-suit injunction in Singapore to prevent the wife from continuing with the English proceedings, arguing that it would, in essence, amount to a re-litigation of matters that had already been decided by the Singapore court for the UK property to be excluded from the matrimonial pool and to be retained in the husband’s sole name.

Putting aside the issues governing when anti-suit injunctions can be granted, for our purposes, the Court of Appeal had to consider whether allowing the Part III proceedings would offend Singapore’s public policy underpinning its Chapter 4A, bearing in mind that the whole basis of both statutory provisions was that there were instances, such as this one, where it might be appropriate for more than one jurisdiction to be involved when dealing with certain assets. 

The Court of Appeal recognised that there could arguably be an impact on Singapore’s public policy in ensuring the finality of its judgments, for example if the UK court had, as a condition of the wife being granted financial relief on the UK property under Part III, also been required to relinquish her claim to the matrimonial assets in Singapore, as in this instance, it would be tantamount to the UK court unjustifiably setting aside the Singapore court’s ancillary matters orders. 

However, given that in this case, the UK property was excluded from the pool of matrimonial assets, the question of division of that property had not even arisen in the Singapore divorce proceedings, and therefore dealing with this question in the UK proceedings instead could not then amount to “re-litigation”. Furthermore, there was no ‘condition’ imposed here as to the wife’s claim to the matrimonial assets in Singapore, therefore no such public policy issue was present based on the facts of this case. The anti-suit injunction was therefore set aside in Singapore, and wife allowed to proceed with the Part III UK proceedings.

In other words, whereas the husband had justifiably thought he had won in the Singapore court, the wife, thinking outside the box perhaps, chose not to appeal in the Singapore courts, and instead brought her claim in the UK courts. As we have seen from this series, it is for good reason that London is known as the divorce capital of the world, given the extent of claims possible under UK law.

Seeking final disposal of ancillary matters

Whilst we are not aware of what was ultimately decided by the UK courts in this case, we point out that in the UK case of Agbaje v Akkinoye-Agbaje, referred to in VEW v VEV, where it was acknowledged that both the wives in each case were in similar positions insofar as their claims to properties which were held in the husband’s sole names was unsuccessful in the original jurisdiction that divorce was granted but allowed in the UK. In the former case, the Supreme Court restored the UK High Court’s orders in respect of the wife’s claims under Part III. The wife was therefore able to enjoy financial relief in the UK, despite the divorce having been originally dealt with in Nigeria, and despite the protests of the husband who solely owned said property.

We conclude on this point: people often assume that once they have gone through a divorce, they know exactly what the end point is and once that end point is reached, they are completely rid of any obligations towards their former spouse. However, as we have shown, that isn’t necessarily the case: if a foreign court is unable to make extra-territorial orders, as seems to be the case in Vietnam, and either party can establish a sufficient nexus to a court that is willing to deal with ancillary matters post-divorce, such as in Singapore and the UK, one runs the risk that at some point in the future, they may find themselves the subject of further litigation in relation to a marriage they thought they had long left behind. 

Where this can cost multi-million dollars of future earnings and where significant inheritances are expected, as is the fortunate case of many Singaporeans, one has to very strongly consider whether this risk is too big to be ignored. How then, can such a risk be eliminated or at the very least, mitigated? That is a subject for another day.

Josephine Chong, LLB Hons 2nd Class, Upper Division, NUS Law (1989), Advocate & Solicitor Singapore, Josephine Chong LLC (www.josephinechongllc.com 

Kym AnsteyLLM Merit, London School of Economics (2018), LLB Hons 2nd Class, Upper Division, Durham University (2016), Advocate & Solicitor Singapore, Solicitor of the Senior Courts of England & Wales 

Views expressed in this opinion editorial are strictly of the authors/contributors and do not reflect that of Wealth&Society.Please note that the above is not to be construed as legal advice that can only be given upon knowledge of all circumstances. 



Keywords: Cross-border Divorce, Global Divorce Proceedings, Laura Ashley Divorce, Legal Fees, Jurisdictional Advantages, Xanthopoulos V Rakshina Case, Financially Affluent Wife, Singapore Divorce Proceedings, Fair Outcomes, Singapore Public Policy, Asset Location, Final Resolution, Court Of Appeal Decision, Jurisdictional Nuances, Mitigating Litigation Risks
Country: Singapore, UK, Vietnam, Nigeria
People: Josephine Chong, Kym Anstey
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