Can Foreigners Divorce in Singapore?
The Singapore courts can only grant divorces where at least one party to the marriage has a strong enough connection with Singapore.
There are 2 ways to show this connection:
- That at least one of the parties is “domiciled” in Singapore, or
- At least one of the parties has been habitually resident in Singapore for at least 3 years immediately before applying to court for the divorce.
“Domiciled” in Singapore
Domicile is a complex legal concept that is difficult to determine precisely. However, it generally means the place where a person has his permanent home.
Therefore, staying in a country for a time for a particular purpose (for example, to study or to work abroad for a limited time) does not mean that the person’s domicile has changed to that country.
For example, expatriates who come to Singapore for temporary work-related purposes in Singapore are generally not domiciled in Singapore.
Singapore citizens are generally presumed to be domiciled in Singapore, although in exceptional situations (where a citizen intends to live permanently elsewhere) this presumption can be challenged.
“Habitually Resident in Singapore”
“Habitual residence” connotes that the residence must be voluntary and for a settled purpose, albeit such a purpose need not be extremely concrete.
For example, it is sufficient if the purpose is “to study”, without necessarily specifying a particular school or institution. Merely establishing a pattern of always returning to a place would be sufficient.
However, the habitual residence must also be continuous for more than 3 years immediately preceding the petition. Brief holidays or business trips would not, in principle, break the continuity of residence.
In contrast, if there are long absences, the court will hold that the continuity of residence has been broken. In the case of Lee Mei-Chih v Chang Kuo-Yuan, the wife in that case had spent 12 months out of the last 3 years abroad; the court held that her long absences had broken her period of habitual residence in Singapore.
Void or Voidable Marriages
Even if neither the domicile or habitual residence requirement is satisfied, it is possible for a marriage to be set aside as being void or voidable if both parties reside in Singapore when the proceedings are started.
In a nutshell, there are 3 types of “marriages”:
Valid marriages are proper marriages that can still be dissolved via divorce.
Void marriages are not really marriages at all, because they have not fulfilled the minimum steps that need to be done to create a legally binding marriage relationship, for example, if one of the parties is too young to be legally married.
Voidable marriages are considered as valid marriages, but there is some problem with the marriage that allows it to be set aside as long as one party wishes to do so, for example if there was a fundamental mistake regarding the marriage (e.g. if one party to the marriage had undergone an undisclosed sex-change operation in the past).
For void and voidable marriages, one party can ask for a decree of nullity even if the requirements of domicile or habitual residence are not satisfied, as long as both parties are resident in Singapore.
Proceedings in Foreign Jurisdictions
If a marriage has been validly dissolved in a foreign jurisdiction, it cannot be dissolved again in Singapore. In other words, if a foreign court has granted a divorce, the Singapore court cannot grant another divorce. This is often an issue in marriages that take place between foreigners from different countries, or a foreigner and a Singaporean.
There may be cases where the parties to a marriage may pursue divorce proceedings in different countries, because they feel that the courts of that other country may grant them more favourable terms of divorce (for example, they may award custody of the children to one party).
In such a case, the first court to grant a divorce will dissolve the marriage, and will also have power to decide all the matters relating to the terms of divorce (division of property, custody of children, maintenance of spouse etc).
Usually, however, the Singapore courts will only recognise a foreign judgment of divorce where that foreign court has some connection to the marriage or the parties. If the foreign court has little connection to the marriage, the Singapore courts may refuse to recognise the divorce as a valid one.
For example, if the parties were citizens of country X, and one of the parties sued for divorce in the courts of country Y, Singaporean courts would not recognise this divorce if neither of the parties was resident in country Y.
If the marriage has a strong connection to Singapore (e.g. if one of the parties is Singaporean), it may be possible to ask the court to prevent the other party from suing for divorce in another country.
This article was written by Tan Kia Hua, who graduated from SMU School of Law in 2013.
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