LOCAL DEVELOPMENTS ON FOREIGN MARRIAGES AND DIVORCES: Ho Ah Chye v Hsinchieh Hsu Irene 1 ; Asha Maudgil v Suresh Kumar Gosain 2

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1 458 Singapore Academy of Law Journal (1994) LOCAL DEVELOPMENTS ON FOREIGN MARRIAGES AND DIVORCES: Ho Ah Chye v Hsinchieh Hsu Irene 1 ; Asha Maudgil v Suresh Kumar Gosain 2 1. INTRODUCTION Local cases on the validity of foreign marriages and recognition of foreign divorces have been few and far between. Happily, there are now recent cases which deal with the following areas: 1) the registration of foreign marriages under the Women s Charter and 2) the recognition of foreign divorces in Singapore. 2. REGISTRATION OF FOREIGN MARRIAGES In the case of Ho Ah Chye v Hsinchieh Hsu Irene 3 the petitioner, Ho, a Singapore citizen, married the respondent, Hsu, a Taiwanese national, in the Civil Marriage Registry of New Jersey, United States of America in September The couple then registered their marriage at the Singapore Registry of Marriages in October The marriage was registered under section 167 (presently section 182) of the Women s Charter 4. The parties obtained an American divorce in In 1992, the petitioner filed a petition for divorce in Singapore. The petitioner s case was that since the marriage was registered under the Charter, the court had jurisdiction to grant a decree of divorce; the petitioner having satisfied the conditions set out in section 86(1) 5 of the Charter. Rajah JC considered first the legal effect of the registration of the foreign marriage in Singapore. He accepted that the American marriage was duly registered under section 28 read with section 182 of the Charter. His honour held that The parties to a marriage can apply for voluntary registration of their marriage. The registrar is given wide powers to register a marriage but s32 of the Charter makes it plain that the registrar and registration of the marriage are not the ultimate [1994] 2 SLR 316. [1994] 2 SLR 709. supra, note 1. Cap 353, 1985 rev ed. Section 86 of the Women s Charter (Cap 353) provides: (1) Subject to subsection (2), the court shall have jurisdiction to entertain proceedings for divorce, judicial separation or nullity of marriage only if (a) the marriage has been registered under this Act, or is deemed registered under this Act, or was solemnized under a law which expressly or impliedly provides that the marriage shall be monogamous; and (b) either of the parties to the marriage is (i) domiciled in Singapore at the commencement of the proceedings or (ii) habitually resident in Singapore for a period of 3 years immediately preceding the commencement of the proceedings.

2 6 S.Ac.L.J. Notes and Comments 459 judges as to the validity of the marriage. 6 In other words, the fact that the marriage was registered under the Charter does not necessarily mean that the court will always be able to grant a divorce. In order to grant a divorce decree, there must first be a valid and subsisting marriage which the court can dissolve. Where a marriage has been the subject of a foreign divorce, the court cannot grant any decree if it recognizes the foreign divorce which has already terminated the marriage. A few comments may be made with respect to this issue. First, it is noted that the learned judge accepted that the marriage was properly registered under the provisions of section 28 read with section 167 (presently section 182) of the Charter. Section 182 provides: (1) Notwithstanding section 181 the parties to a marriage which has been solemnized under any law, religion, custom or usage may, if the marriage has not been registered, apply to the Registrar in the prescribed form for the registration of the marriage. Section 28 provides: (1) The parties to a marriage which is not solemnized by the Registrar shall (a) (b) (c) (d) Section 33 provides: appear before a deputy registrar within one month of the marriage; produce to the deputy registrar such evidence of the marriage either oral or documentary as the Deputy Registrar may require; furnish such particulars as may be required by the Deputy Registrar for the due registration of the marriage; and apply in the prescribed form for the registration of the marriage to be effected. (1) Any person who, being required by section 28 to appear before a Deputy Registrar, omits to do so within the prescribed time shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $1,000 or to imprisonment for a term not exceeding one year or to both. Section 33 reinforces the mandatory nature of registration required by section 28. Parties whose marriages are not soleminized by the Registrar must register their marriage in accordance with section 28, failure of which 6 supra, note 1, at

3 460 Singapore Academy of Law Journal (1994) results in a penalty. Section 28 cannot be read with section 182, which is concerned with the voluntary registration of marriages. If the two sections are read together, then the effect is that all marriages which are not solemnized by the Registrar, whether solemnized in Singapore or anywhere else in the world, must be registered under the Charter in accordance with section 28. The proper interpretation to be given to section 28 is that it requires all marriages solemnized in Singapore which are not solemnized by the Registrar to be registered under the Charter. Secondly, by accepting that the Registrar has wide powers to register a marriage, even a foreign marriage contracted in America in 1980, Rajah JC has placed a wide interpretation on the scope of section 182. Associate Professor Leong Wai Kum discusses the ambiguities of section 182 in her book, Family Law In Singapore 7. She observes that the marginal notes to section 182 and the opening words which make reference to section 181 could suggest that registration is restricted to marriages solemnized under any religion or custom prior to the commencement of the Charter in She submits that the proper breadth of section 182 can be reached only by considering whether the marriage should attract the matrimonial jurisdiction of our High Court 8. Section 182 should therefore be read as limited to the voluntary registration of pre-1961 local marriages, both monogamous and polygamous, and post-1961 monogamous marriages, since it is unlikely that the Legislature intended to allow parties to polygamous marriages solemnized abroad after the commencement of the Charter to petition our High Court for any matrimonial relief. An even narrower reading of the section was taken by the court in the case of Asha Maudgil v Suresh Kumar Gosain 9. In this case, the plaintiff wife and defendant husband married in Secunderabad in India in April Their marriage was subsequently registered under section 182 of the Women s Charter in June Judicial Commissioner TQ Lim held that the marriage was not registrable under section 182. He observed that the words Notwithstanding section 181 in section 182 made it very clear that only marriages which under section 181 would be deemed to be registered may be registered under section 182, for otherwise those words would be deprived of any meaning at all. 10 Since section 181 provided only for marriages solemnized prior to the commencement of the Women s Charter on 15 September 1961 to be deemed registered under the Charter, the Secunderabad marriage could not be registered under the Act. His honour then noted that this issue of registration was irrelevant to the case at hand, Leong Wai Kum, Family Law In Singapore (1990), at supra, note 7 at 37. supra, note 2. supra, note 2 at 711.

4 6 S.Ac.L.J. Notes and Comments 461 since he was satisfied that the Secunderabad marriage was valid even if not registered in Singapore 11. It follows from Lim JC s interpretation of section 182 that no foreign marriage solemnized abroad after 15 September 1961 may be registered in Singapore. Lim JC has limited the scope of section 182 to the voluntary registration of pre-1961 marriages. This reading of the section is probably consistent with the Legislature s intention to require or at least permit registration of pre-1961 local marriages. Such a reading of section 182 may not affect the position of parties to post-1961 foreign monogamous marriages who wish to petition our High Court for matrimonial relief under section 86 of the Charter because under section 86 of the Charter, the court also has jurisdiction over marriages solemnized under a law which expressly or impliedly provides that the marriage shall be monogamous 12. However, it will affect parties to foreign monogamous marriages who wish to register their marriages for reasons other than that of attracting the matrimonial jurisdiction of the court. Parties may want the assurance that their foreign marriage is recorded and accepted as valid by the Singapore Registry of Marriages, and a Singapore certificate of marriage issued in consequence of registration will be convenient proof of their marriage for purposes of applications for various things such as passports and Housing and Development Board apartments. For these reasons, the reading taken by Associate Professor Leong is preferred. It would appear that marriages solemnized abroad after 1961 are routinely registered under section 182 of the Charter. If the position stated in Asha s case is correct, then such registrations are invalid. It is hoped that the position of the law on this matter may be clarified, for the Registry of Marriages must certainly be concerned that the routine administration of registrations are done in accordance with the law contained in the Charter. 3. RECOGNITION OF FOREIGN DIVORCES AND CONSEQUENCES ON ANCILLARY ORDERS 3.1 The decision in Ho Ah Chye on the issue of recognition In Ho Ah Chye, the respondent wife and petitioner husband had applied for a Housing and Development Board apartment during their marriage. In January 1987, the respondent executed a power of attorney in California giving the petitioner an irrevocable power to attend to all affairs relating to their application for the apartment. Later in the year, the petitioner Section 32 of the Women s Charter (Cap 353) provides: Nothing in this Act or the rules made thereunder shall be construed to render valid or invalid merely by reason of its having been or not having been registered any marriage which otherwise is invalid or valid. supra, note 5.

5 462 Singapore Academy of Law Journal (1994) received a letter from the respondent s solicitors giving him notice of the respondent s intention to obtain a divorce. He acknowledged the accompanying copies of the summons, petition, counselling statements and responsive declaration. He signed documents to show that he was making a general appearance and agreed to have the proceedings tried as an uncontested matter. The parties made a declaration stating that there were no community or quasi-community assets and obligations notwithstanding their application for the HDB apartment. Their marriage was dissovled on the ground of irreconcilable differences by the Californian court. In 1992, the petitioner husband petitioned to the Singapore High Court for the dissolution of his marriage and an order that the respondent s interest in the HDB apartment be transferred to him. Judicial Commissioner KS Rajah considered the issue of whether the American divorce should be recognized in Singapore. He began his review of the law on the recognition of foreign divorces with two local cases. The first is the case of Sivarajan v Sivarajan 13 which held that domicile formed the only basis upon which a Singapore court would recognize a foreign divorce. The court in Sivarajan held that since the husband was not domiciled in India but in Singapore, the jurisdiction to dissolve the marriage rested with the Singapore court and ordered maintenance to be paid to the wife. Rajah JC was of the view that since legislative changes have been made to the test for jurisdiction after Sivarajan s decision, domicile is no longer the sole test for jurisdiction. Jurisdiction to grant decrees of divorce, nullity and separation is now available where the marriage is monogamous and one of the parties is either domiciled or habitually resident for three years in Singapore immediately preceding the commencement of the proceedings. The other local case of Ng Sui Wah Novina v Chandra Michael Setiawan 14 was then considered by the court. His honour said that the court in Novina Ng accepted the domicile test, recognized the Indonesian decree and refused to order maintenance because the Indonesian court had provided for maintenance. Rajah JC then reviewed the law relating to the recognition of foreign divorces in England. He accepted the basis of recognition used in Travers v Holly 15, which is that what entitles a Singapore court to assume jurisdiction must be equally effective in the case of a foreign court 16. He found the case of Messina v Smith (Messina intervening) 17, where a decree was recognized based on the wife s sufficient connection with the court granting [1972] 2 MLJ 231. [1992] 2 SLR 839. [1953] 2 All ER 794. supra, note 1, at 325. [1971] 2 All ER 1046.

6 6 S.Ac.L.J. Notes and Comments 463 the decree, applicable to the present facts and concluded that since the respondent wife had sufficient connection with the court of California (which granted the decree), that decree of divorce should be recognized in Singapore. The fact that there had been a false declaration made to the Californian court as to the parties assets because of the existing application to the HDB did not go to the jurisdiction of the court. Further support for this basis of recognition could be found in the unreported case of Madan Nathurmal Chulani v Sangeeta Pribhdas Ramchandani 18 where a Bombay decree of divorce was recognized as having validly dissolved a Bombay marriage which was registered in Singapore. His honour noted that in that case, there was real and substantial connection between the respondent in India and the family court in Bombay. The learned Judicial Commissioner appears to have found the respondent in the present case substantially connected to California on the basis of her habitual residence in the state. Since section 86 of the Women s Charter provided that habitual residence of three years in Singapore of either party would give the court jurisdiction to grant matrimonial relief 19, it was appropriate to accord recognition to the Californian decree. This legislative change, which has added the condition of three years habitual residence to the previous condition of domicile, justified the recognition of a foreign divorce based on habitual residence in the country in which the divorce was obtained. Domicile was no longer the only basis for recognition of a foreign decree. As the Californian court had jurisdiction to hear the case and the proceedings were properly conducted, the Californian divorce was effective and would be recognized in Singapore. Further, its recognition will not be manifestly contrary to Singapore s public policy although the Californian ground of divorce, the fact of irreconcilable differences, will not establish a breakdown of the marriage under the Charter. Another interesting reason given by the learned judge for recognizing the foreign divorce is that the parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition and the respondent gave his consent to a decree being granted (see s 88(3)(d) (Cap 353) The decision in Asha on the issue of recognition In Asha, the parties, who were married in India in 1990, had obtained a divorce in Secunderabad, India, in Lim JC found that the wife was domiciled in India at the time of the divorce. His honour noted that the local cases of Sivarajan and Novina Ng both considered whether to recognize Madan Nathurmal Chulani v Sangeeta Pribhdas Ramchandani (Divorce Petition No 1146 of 1992) (unreported). supra, note 5. supra, note 1 at 329.

7 464 Singapore Academy of Law Journal (1994) a foreign divorce granted by the court of the husband s domicile but the question whether to recognize a divorce granted by a court of a wife s domicile did not arise. His honour said that It would be wrong... to adhere to the Armitage v A-G ([1906] P 135) rule to recognize a foreign divorce only if it is granted or recognized by a court of the husband s domicile without exception. One logical exception must in my opinion be to accord recognition to a divorce granted by what a Singapore court determines to be the domicile of one of the parties at the commencement of the proceedings in which the divorce was granted or recognized by such a court at the time the question of recognition falls to be determined. The court recognized the decree granted by the court of the wife s domicile, the Secunderabad court in India. 3.3 Comments on the recognition issues in Ho Ah Chye and Asha In Ho Ah Chye, Rajah JC made it clear that the validity of the foreign divorce can be attacked, and recognition given, where the court is satisfied that it is proper to do so in accordance with private international law 21. He refers to section of the Charter and held that Parliament must have intended private international law to apply to petitions for divorces in addition to petitions for nullity decrees. Section 102 makes it clear that rules of private international law continue to apply in Singapore and are not ousted by the provisions of the Women s Charter. What is less certain in the area of recognition of foreign divorces is what the bases of recognition are 23. In England, the common law bases of recognition have been superceded by the Recognition of Divorces And Legal Separations Act and the Family Law Act Under the English common law, a foreign decree of divorce would be recognized if it was granted by the court of both parties domicile 26, recognized by a court of the parties domicile 27, granted by a court which would assume supra, note 1 at 327. Section 102 provides: Where, apart from this Act, any matter affecting the validity of a marriage would fall to be determine (in accordance with the rules of private international law) by reference to the law of a country outside Singapore, nothing in section 98, 99 or 100 shall (a) preclude the determination of the matter aforesaid; or (b) require the application to the marriage of the grounds or bars to relief mentioned in those sections except so far as are applicable in accordance with those rules. Sections 98, 99 and 100 are concerned with petitions for nullity decrees of void or voidable marriages. See Debbie Ong Siew Ling, Financial Relief in Singapore after a Foreign Divorce [1993] SJLS 431. c53. c55. Le Mesurier v Le Mesurier [1895] AC 517. Armitage v Attorney-General [1906] P 135.

8 6 S.Ac.L.J. Notes and Comments 465 jurisdiction under the same grounds as the English court would 28 or granted by a court which had real and substantial connection with either party to the marriage 29. In Singapore, the cases of Sivarajan and Novina Ng have adopted only the domicile basis. In the former case, the court would have accorded recognition to an Indian decree if the husband had been domiciled in India. In the latter case, an Indonesian divorce was recognized because the husband was domiciled in Indonesia at the time of the divorce. It is clear today, after Asha s decision, that the domicile test is not as restricted as it used to be in the early years in England 30, where recognition was accorded to decrees granted by the court of the husband s domicile. It is sufficient that the decree is granted by the court of either party s domicile. In addition to the domicile test, the court in Ho Ah Chye accepted two other tests. Recognition will be given to foreign decrees granted by a court which would assume jurisdiction under the same circumstances as the Singapore court would. Recognition will also be accorded where there existed a sufficient connection between the court granting the decree and either party to the marriage. By accepting these bases of recognition, Rajah JC has accepted the common law position in England 31 just before it was superceded by statute law. Having accepted Sivarajan as correct at the time it was decided, his honour came to this conclusion based on the legislative changes made to section 86 of the Charter. It seems to follow that the substantive rules of private international law relevant to family law in Singapore are determined by the provisions in the Charter. It is submitted that the rules of private international law exist independently of the domestic law contained in the Women s Charter. Even if section 86 was not amended, it would still have been possible to find that recognition of a foreign divorce may be accorded when either party has real and substantial connection with the foreign country, for that was the common law position in England prior to the enactment of the family law statutes. Accepting this basis of recognition will not necessarily mean that Sivarajan was wrongly decided since the court in Sivarajan had held that there was no real and substantial connection between the parties and the court which had granted the decree. Such an approach would free the courts in future from having to find substantial connection to a foreign country based on habitual residence in the country. Other factors which may suffice for See Travers v Holly [1953] P 246 and Armitage v Attorney-General [1906] P 135. This may have been the practical effect of the concept of domicile of dependence, where wives automatically acquired their husbands domiciles. The position is different today. A wife can now have an independent domicile which is different from that of her husband. See section 46 of the Women s Charter (Cap 353). Indyka v Indyka [1967] 2 All ER 689. See Le Mesurier v Le Mesurier [1895] AC 517. Rajah JC accepted the sufficient connection test in Messina v Smith (Messina intervening) [1971] 1 All ER 1046, which had applied the test first propounded in the landmark case of Indyka v Indyka [1967] 2 All ER 689.

9 466 Singapore Academy of Law Journal (1994) finding substantial connection to a country are non-habitual residence, nationality and citizenship in that country. Nevertheless, whatever be the justification, the adoption of the real and substantial basis is an important milestone in private international law on the recognition of foreign divorces in Singapore. Rajah JC found the fact that the parties to the marriage have lived apart for a continuous period of at least four years immediately preceding the presentation of the petition and that the respondent had consented to a decree being granted relevant to the recognition issue. It is curious why this should be a reason for recognizing the Californian decree. Does it follow then that parties must still prove one of the facts which evidence the irretrievable breakdown of their marriage under section 88 of the Charter before their foreign decree is given recognition? There is no reason why parties must satisfy the court that their marriage should be terminated based on the substantive law of divorce of Singapore. Recognition of a foreign divorce is based on whether the foreign court had jurisdiction according to the private international law of Singapore and not whether the parties have established the ground for divorce under the domestic law of Singapore. 3.4 Consequences on financial relief In Ho Ah Chye, the court ordered that that decree of divorce granted by the court in California be recognized and that the division of assets acquired during marriage be heard in chambers. It is submitted that once a foreign divorce is recognized, the Singapore court will longer have jurisdiction or power to divide matrimonial assets under section 106 of the Charter. This is because the power to order division of assets arises only when it is exercising its matrimonial jurisdiction. Since the Californian decree has already dissolved the marriage, there is no longer any marriage which the Singapore court can terminate. In such a case, the ancillary powers to order the division of assets in section 106 and maintenance in section 107 cannot be invoked. This state of the law is unsatisfactory and it has been argued elsewhere 32 that reform of the law is neccessary. The court in Ho appears to have overlooked this gap in the law despite an earlier reference to the case of Novina Ng. The learned judge quoted 33 from the judgment of Lai Siu Chiu JC in Novina Ng: I am of the view that the court s powers under Part IX of the Charter, in particular, under s107 are ancillary to the powers to grant a decree of divorce or nullity or separation and cannot be invoked by the plaintiff as a Singapore court did not previously dissolve her marriage with the defendent but said that maintenance was refused because the Indonesian court provided for maintenance 34. His honour supra, note 23. supra, note 1 at 324. supra, note 1 at

10 6 S.Ac.L.J. Notes and Comments 467 did not think that the Singapore court had no power to order maintenance. He said that maintenance was refused although the law in Singapore provides for maintenance to be paid to former wives. The position of the law with respect to financial relief after a foreign divorce has been restated recently in Asha s case. After holding that the Secunderabad divorce was recognized in Singapore, Lim JC agreed with the decision in Novina Ng and said: The court may order a man to pay maintenance to his wife or former wife during the course of any matrimonial proceedings or when granting or subsequent to the grant of a decree of divorce, judicial separation or nullity of marriage. There are no matrimonial proceedings pending between the parties and the application is not made in the course of any such proceedings. The expression when granting in the context of the court may order... when granting... a decree is incapable of meaning anything other than when the said court is granting and the court means this court... The expression subsequent to the grant of is interposed immediately between when granting and a decree. Without any doubt at all it refers to and can only refer to a grant by this court...the marriage was dissolved not by a decree of this court but by a court of another jurisdiction and in my opinion this court has no power to order the defendant to pay maintenance to his former wife under s CONCLUSION The case of Ho Ah Chye is welcomed for a few reasons. First, it has brought to attention the liberal routine registrations of marriages solemnized abroad under section 182. In this respect, the case of Asha has, for the first time, given a boldly restricted reading of section 182. Secondly, Ho Ah Chye has stated the most current position in the law on the recognition of foreign divorces. Until Ho s decision, only the domicile basis had been used for recognition. This had been a conservative position in the light of the extensive developments in this area of the law in England 36. Finally, it illustrates the legal gap in the law on financial relief in Singapore after a foreign divorce. It may well be that the court in Ho found it necessary that the Singapore court should hear the application for the division of assets. If the Singapore court cannot order the division of assets, there will not be any court which can do so. The Californian court which had granted the divorce will not have jurisdiction over property situated in Singapore. Ho s case reinforces the urgent need to reform the law in this area * DEBBIE ONG SIEW LING* supra, note 2 at 715. See Family Law Act 1986, sections for the statutory position in England. LLB (NUS); LLM (Cantab); Advocate & Solicitor (Singapore); Lecturer, Faculty of Law, National University of Singapore.