Expat or Foreigner Divorce in Singapore: 10 Legal Issues to Consider
Divorce may be a daunting and emotional process. This is even more so for foreigners who are living or working in Singapore as there are additional consequences (e.g. immigration validity) to consider.
If you are an expatriate or foreigner who is thinking of seeking divorce proceedings in Singapore, here are some issues that you should consider before beginning your proceedings:
Before Filing for Divorce
1. Do the Singapore courts have jurisdiction to hear your divorce proceedings?
Foreigners do not have an automatic right for their proceedings to be heard before the Singapore Family Court.
There are mainly 3 situations in which a foreigner may begin divorce proceedings in Singapore.
(a) If either you or your spouse is domiciled in Singapore at the time of the divorce proceedings
Generally, the place where a person is domiciled is the place where he treats as his permanent home.
The court will find that your domicile of choice is Singapore if on the assessment of your background and circumstances it was found that:
- There is voluntary residence as an inhabitant rather than a casual visitor; and
- You have an intention to remain in Singapore indefinitely.
If you or your spouse is a Singaporean, they will be automatically presumed to be domiciled in Singapore unless otherwise proven.
(b) If either you or your spouse is habitually resident in Singapore 3 years preceding the divorce proceedings
Whether you are habitually resident in Singapore will depend on primarily 2 factors:
- Whether you are voluntarily residing in Singapore; and
- Whether you have a settled purpose of residence. “Purpose” is defined broadly and can be found simply because you like to live in Singapore.
The court will also look at the length of time that you resided in Singapore against the 3 years preceding the divorce proceedings.
If you were absent for an extended length of time within the 3 years, the court may find that you have not been habitually residing in Singapore.
For example, in Lee Mei-Chih v Chang Kuo-Yuan, the court found that a 12-month absence from Singapore was deemed as an absence of habitual residence when viewed against the mandatory 3 year qualifying period.
Do also note that for situations (a) and (b), parties need to have been married for more than 3 years before divorce proceedings can be filed.
This is unless the court agrees that there was exceptional hardship suffered by the applicant of the divorce proceedings or there was exceptional depravity on the part of the defendant.
In other words, the court will require a higher standard of hardship than “ordinary” levels of hardship that is, present in all other breakdown of marriages and, more than what an ordinary person should be reasonably asked to bear.
(c) If both parties are residing in Singapore, if you are seeking to annul your marriage on the ground that your marriage is void
An application for nullity of marriage is different from divorce proceedings.
It is an application purporting to argue that there was no valid marriage in the first place.
To annul your marriage:
- Both parties have to be residing in Singapore; and
- Proceedings must commence within 3 years of the marriage.
2. What if you wish to apply for divorce overseas?
Conversely, if you disagree with your spouse that the divorce should be heard in Singapore instead of another country, you may apply to the court for a stay to suspend the divorce proceedings in Singapore.
If you succeed in staying the Singapore proceedings, you may continue or proceed with a foreign divorce proceeding.
You may also wish to proceed with a foreign divorce proceeding instead, if:
- Your children are residing overseas (see Point 5); or
- Most of the matrimonial assets are located overseas (see Point 6).
These are only some of the factors that you may wish to consider before making your decision. It would be best if you can consult a lawyer on your prospects in each jurisdiction so that you can make an informed decision.
Filing for Divorce
3. Do you have a ground for divorce?
To get a divorce, applicants will have to prove that their marriage has irretrievably broken down. This can be shown in 5 ways:
- When adultery is committed by the defendant, and the plaintiff (i.e. the applicant commencing the divorce proceedings) finds it intolerable to live with the defendant.
- When the defendant has behaved in such a way that the plaintiff cannot be reasonably expected to live with the defendant.
- When the defendant has deserted the plaintiff for a continuous period of at least 2 years preceding the divorce proceedings.
- When the parties have lived apart for at least 3 years and the defendant consents to the divorce (e.g. for simplified uncontested divorce).
- When the parties have lived apart for at least 4 years preceding the divorce proceedings and the defendant does not consent to the divorce (e.g. for contested divorce).
4. Is your pre-nuptial agreement enforceable in Singapore?
Any pre-nuptial agreement between the parties with regard to the ownership and division of their matrimonial assets is a factor of consideration in the court’s decision on how the matrimonial assets will be divided.
Generally, the court seems to be in favour of upholding pre-nuptial agreements especially when the contract was determined and agreed abroad by the foreign individuals.
This is to prevent foreigners who wish to avoid enforcing their agreements from “forum shopping”.
“Forum shopping” refers to a behaviour where litigants search for jurisdictions where the laws are more favourable to their own desired outcome.
Read our other article for more information on pre-nuptial agreements.
5. What should you do if your spouse cancels your Dependant’s Pass?
If your spouse works in Singapore under an Employment Pass or an S Pass, he or she is entitled to apply for a Dependant’s Pass on behalf of his or her spouse and children, so that they can stay in Singapore for the duration of his or her employment
It is a common situation for foreigners holding an Employment Pass in Singapore to cancel their spouse’s Dependant’s Pass upon commencing divorce proceedings in Singapore. The cancellation of a Dependant’s Pass takes effect immediately.
This means that the spouse who relied on the Dependant’s Pass to reside in Singapore, would no longer have a right to remain in Singapore after the expiration of their Short-Term Visit Pass, which would be issued upon the cancellation of the Dependant’s Pass.
The Short-Term Visit Pass will generally allow you to stay in Singapore for a period up to 90 days. Any Letter of Consent or Work Permit obtained through the Dependant’s Pass will be cancelled as well.
This can create a desperate situation for the spouse when the children are still in Singapore and when the divorce proceedings are still ongoing.
Apply for an interim injunction
In recent years, the court has been showing increasing willingness to allow for an interim injunction in situations where divorce proceedings are still ongoing.
An interim injunction will prohibit a spouse from terminating the Dependant’s Pass against the will of the other spouse.
You may apply for an interim injunction as well even if your Dependant’s Pass has already been cancelled by your spouse.
Apply for a Long-Term Visit Pass
Alternatively, you may choose to apply for a Long-Term Visit Pass which is valid for up to 2 years, subject to the approval of the Immigration and Checkpoint Authority, if:
- Your child is a Singapore Citizen or a Singapore Permanent Resident; or
- You are a mother or grandmother of a child or grandchild studying in Singapore with a Student’s Pass.
6. What will happen to your overseas matrimonial assets?
Even if your assets are located overseas, they will still be subject to division by the court so long as they fall within the meaning of “matrimonial assets” under section 112(10) of the Women’s Charter.
However, foreigners must keep in mind that it may be difficult to enforce a Singapore judgment in a foreign jurisdiction on any assets located overseas.
This is especially so for immovable properties, where the court may instead exercise their discretion not to deal with the immovable property directly.
In such a case, you may have to apply to the foreign jurisdiction where the immovable property is located, for a division of the asset.
This may require you to start another divorce proceeding in the foreign jurisdiction. It is recommended that you contact a local divorce lawyer in the foreign jurisdiction for advise on the applicable law.
For more information, please refer to our article on what happens to overseas matrimonial assets in a divorce.
After the Divorce has been Finalised
7. After divorce proceedings, are you entitled to remain in Singapore?
If you are working in Singapore under an Employment Pass, S Pass or Work Permit, you will be allowed to remain in Singapore for the duration of your employment.
However, if you were previously holding on to a Dependant’s Pass, you will not be allowed to stay in Singapore after the divorce proceedings have been finalised. This is because you would no longer qualify as your ex-spouse’s dependant.
Your Dependant’s Pass will therefore be cancelled (as explained in Point 5).
If you are unable to seek employment in Singapore before the grace period of 30 to 90 days provided by the Short-Term Visit Pass, you may choose to apply for a Long-Term Visit Pass.
If you had previously applied for a Long-Term Visit Pass during the divorce proceedings, the pass can still be renewed so long as you have fulfilled the requirements as set out in Point 5.
You can apply to renew to Long-Term Visit Pass up to 6 months before it expires.
8. After divorce proceedings, are your children entitled to remain in Singapore?
If your children are Singapore Citizens or Singapore Permanent Residents, they will be allowed to remain in Singapore.
If they are not, and are under the care and control of the parent who holds an Employment Pass or S Pass in Singapore, they can still remain in Singapore as dependants of that parent so long as they are unmarried and under 21 years old.
Your children may also apply for a Student’s Pass to remain in Singapore to pursue their full-time studies, under an approved educational institution.
9. What if you wish to relocate your children out of Singapore?
You may do so if you have the written consent of the other parent.
If not, even if you have obtained custody, care and control over your children, you must still apply to the court for permission if you wish to travel with your children outside of Singapore for more than 1 month.
Otherwise, you may be liable for international child abduction under the Hague Convention on the Civil Aspects of International Child Abduction to which Singapore is a signatory (See below).
For more information, please refer to our article on obtaining permission to relocate with your child overseas.
10. What if your ex-spouse has wrongfully taken your children out of Singapore?
If your ex-spouse has wrongfully taken your children out of Singapore in breach of your custody rights and your children, your ex-spouse may be liable for international child abduction under the Hague Convention on the Civil Aspects of International Child Abduction.
To qualify under the Hague Convention, your children must be below the age of 16 years and habitually resident in Singapore before they were forcefully taken.
There are certain actions you can take in response:
- You may apply to the Family Court or inquire with the Singapore Central Authority (i.e. the Ministry for Social and Family Development) for assistance in making an application to the overseas authority for the return of your children.
- You may send an application for assistance directly to the Central Authority of the country your child was abducted.
- You may choose to directly commence foreign judicial proceedings against your ex-spouse. It is advisable to seek lawyer’s representations in such proceedings.
What if your children were brought to a country where the Hague Convention on the Civil Aspects of International Child Abduction does not apply?
If your children were brought to a country where the Hague Convention on the Civil Aspects of International Child Abduction does not apply, the above re-courses are not available to you.
You would have to try to reach an amicable agreement with your ex-spouse on the return of your children.
If that is not possible, you should seek legal advice from a lawyer in Singapore or in the country that your children have been taken to.
For more information, please refer to our article on international child abduction.
The above-discussed are some of the issues a foreigner should keep in mind when considering whether Singapore may be a better alternative for you to commence divorce proceedings.
As foreigners are likely to face more complex issues when commencing divorce proceedings in Singapore, foreigners are recommended to seek the advice of a divorce lawyer to ensure that all your avenues of recourse are covered.
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