What are some of the concerns you might have when it comes to cross border divorce?
In a final part of the two part series, the practical concerns regarding where to divorce if you or your spouse is a foreigner are addressed.
What If My Spouse and I Do Not Agree on the Place to Divorce In?
Assuming your spouse has commenced divorce proceedings in Singapore against you, having satisfied the ‘habitually 3 years resident’ criteria covered in the previous article of this series, the question is whether if you agree to have your divorce heard in the Singapore courts. At this juncture, you have to remember that if you do not agree with your spouse’s decision to have the divorce in Singapore, you would want to seek legal counsel on what you should do in the situation. This is so that your response to your spouse’s steps in divorcing you here would not be taken by the Singapore courts as you having ‘begun the divorce proceedings and thereby submitting to the jurisdiction (i.e. authority) of the Singapore Court. This may jeopardise any further action that you might want to take in divorcing your spouse in another country’s court.
Alternatively, there are cases where a spouse, either unhappy with the direction the case is going in Singapore/in another country or believing that it is more strategic to divorce in Singapore/in another country, start another divorce proceeding while there are ongoing divorce proceedings in Singapore/in another country.
The term to stop a divorce proceeding commenced by your spouse in a Singapore court against you is called a ‘staying of proceedings’. Conversely, if you are filing a divorce against your spouse, you must bear in mind if your application could be successfully stayed by your spouse.
In the above, how does the Singapore Courts decide if Singapore is the better place for your divorce to proceed in?
In the case of AZS and another v AZR [2013] 3 SLR 70; [2013] SGHC 102, the court decided that the applicable test to determine if divorce proceedings should be stayed in Singapore on the grounds of forum non conveniens is the ‘Spiliada’ test that consist of two stages:
(a) 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.
(b) Stage two: If there is another forum which is prima facie 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.
The Spiliada test is a factors-based test and the weight that is to be placed on the various factors varies with the specific facts of your case.
Concurrent Divorce Proceedings in the Courts of Two Countries
The Court in AZS further commented that in a case of lis alibi pendens (i.e. where there are simultaneous proceedings elsewhere), this is an important factor to be considered under the forum non conveniens doctrine, as it raises issues of duplication of resources and conflicting judgments (Halsbury’s Laws of Singapore vol 6(2) (LexisNexis, 2009) (“Halsbury’s”) at para 75.094.
In such a case, the choice is between trial in Singapore plus trial abroad (if a stay is refused), and trial abroad (if the stay is granted) (Cheshire, North & Fawcett, Private International Law (Oxford University Press, 14th Ed, 2008) at p 55).
The weight to be given to the fact of existence of parallel proceedings depends on the circumstances of the case.
Some pertinent considerations include the degree of overlap of issues and parties and the degree to which the respective proceedings have been advanced; however, little or no weight will be given to foreign proceedings if they were commenced for strategic reasons, for example if they are started in Singapore in hopes of getting a better result when the same divorce proceedings in another country are almost completed (Halsbury’s at para 75.094).
Thus, the fact that there are existing proceedings in another jurisdiction can be a decisive but not an automatic factor in favour of a stay; all depends on the circumstances of the case.
Once again, the unique facts of your case are best determined by a legal counsel in advising on which forum is more appropriate.
What are the practical considerations that I should consider when getting divorced in Singapore?
Getting a divorce has been known to be the second most stressful situation on the Holmes and Rahe Stress Scale. If you are a foreign spouse in Singapore, being away from your networks of support in your home country makes it more difficult for you to face the pressures and unpredictability of a divorce proceeding.
As such, these are some of the practical considerations that you should consider when getting divorce in Singapore:
Finance: As a foreign spouse, do you have the necessary finance to fund a divorce litigation? You would have to check that the pass that you are on allows you to work in Singapore should you need to work to fund your stay in Singapore. If you are financially dependent on your spouse, an alternative would be seeking a maintenance order against your spouse.
Accommodation: If your spouse is abusive, are you able to secure your own accommodation for you and/or you and your children?
Access to Justice: If you are not a Singaporean or a Permanent Resident, you would not have any access to the Legal Aid Bureau in Singapore. The Legal Aid Bureau provides low cost legal representation where your case would be handled by a Legal Aid Legal Officer or an Assigned Solicitor (i.e. an external volunteer private lawyer). In a litigious divorce case, legal fees of $30,000.00 and above are common, not including the filing fees and other disbursements that you would have to bear on top of the legal fees. As a foreigner, you may be eligible to pro bono legal advice. However, it would be very difficult to find financial assistance to handle your case. For one, for any divorce case, even if you do it yourself, you would have to pay filing fees to submit your divorce documents to court. Secondly, if you are in financial crisis and facing a divorce suit filed by your spouse who is controlling the purse strings, finding a private lawyer to run your case can be quite costly as you pay private lawyer’s rate on top of filing fees and other administrative charges.
Issues in Conflict: Would your divorce involve issues of just matrimonial asset division, or would it also include issues of Custody, Care and Control and Access of your children as well as maintenance for yourself and your children? The needs of your children (if any) will be considered as part of the proceedings, therefore play a significant part in determining whether Singapore is a better forum to hold the divorce.
In summary, as a foreigner, you can commence your divorce in Singapore if you do meet the legal criteria. However, in all cases, it would be best to seek the legal counsel of a Singaporean Family Lawyer for a tailored opinion that suits your situation.
Have a question on cross border divorce?
If you have any questions regarding cross border divorce, you can get a Quick Consult with Chong Yue-En or with other lawyers. With Quick Consult, from a transparent, flat fee from $49, a lawyer will call you on the phone to give you legal advice.
This article is written by Chong Yue-En from DCMO Law Practice and edited by Elizabeth Tan from Asia Law Network.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.
