Recurring Themes in Singapore/England Divorces

Recurring Themes in Singapore/England Divorces

Several recurring themes arise in Singapore/England divorce cases, and these are often key questions that the court or parties have to consider. The following sets out some of these, including jurisdictional rules and practical considerations:

1. In which country can, or should, the divorce take place, and why? 

2. An expat couple can divorce in Singapore if one of the parties is domiciled in Singapore at the start of the proceedings, or has been habitually resident in Singapore for 3 years. If an English petition is initiated within that 3-year timeline, the viability of challenging the English petition on forum conveniens grounds is vastly reduced. 

3. The English courts have jurisdiction to deal with the divorce where either party is domiciled in England and Wales on the date when the proceedings are begun. Physical presence in England/Wales is not required. Everyone has a domicile at all times, and it is only possible to have one domicile at any one time. 

4. In the context of English divorce jurisdiction, it is essential to understand 2 forms of domicile:

1. Domicile of origin – is the domicile that a person acquires at birth and is the country in which their parent is domiciled at the date of birth; and
2. Domicile of choice – can be acquired by the combination and coincidence of residence in a country and an intention to make one’s home in that country permanently or indefinitely. When a domicile of choice is abandoned, a new domicile of choice may be acquired. However, if a new domicile of choice is not acquired, the domicile of origin revives.

5. Even if Party A can establish jurisdiction in England based on their domicile, the English divorce can be challenged on forum conveniens grounds, i.e. which country is the most appropriate forum for the divorce, taking into account factors such as where the parties live, where the marriage was centred, and where the bulk of the assets are located. The focus is practical fairness and convenience, not just which forum was first seized. 

6. Where the family have PR, English divorce jurisdiction, which is based on the retention of English domicile, is vulnerable to challenge. PR indicates an intention to reside indefinitely in Singapore, which is evidence that a domicile of choice has been acquired. However, despite the name, PR is not Citizenship and is not necessarily permanent. There is room to manoeuvre. 

7. What happens if the parties simultaneously initiate proceedings in more than one jurisdiction? What are the legal tests that apply in a Jurisdiction or Forum contest? 

8. An English Hemain injunction is a powerful tool to block the progression of a parallel Singapore divorce, in response to an application to stay an English petition. 

9. Can the financial aspects of the divorce be settled despite an unresolved debate about jurisdiction? What to do about disclosure?

10. In the context of a jurisdiction or forum dispute, be wary of requests to mediate that make suspension of the proceedings a prior condition. It is possible to mediate in good faith without relinquishing leverage. 

11. It can be difficult to reach a negotiated agreement without access to the powers of either court to force disclosure. 

12. It can be difficult to reach a negotiated agreement until the parties know which framework of law they are negotiating against. 

13. Consider the proportionality of the jurisdiction/forum dispute at all times. There are heavy costs in terms of not only money, but also time and psychological and emotional damage that need to be weighed against the theoretical difference in financial outcomes. 

14. In a Singapore divorce, non-matrimonial assets can be definitively excluded from division. In England, the dividing line between matrimonial and non-matrimonial assets is permeable. In England, non-matrimonial assets can be accessed to meet “needs”. Needs are an elastic concept and can be measured in 6 or even 7 figures.

15. In Singapore, the matrimonial asset pool is apportioned by reference to each party’s direct and indirect contributions. In England, the court has a broader discretion and focuses on needs, sharing, and compensation, with equal sharing as a starting point. Forum disputes are proxy battles about the financial outcome. 

16. All else being equal, female higher earners are likely to be better off divorcing in Singapore because spousal maintenance is payable to husbands only in very limited circumstances. The law in England is, at least in theory, gender neutral. 

17. In a Singapore divorce, there is limited access to legal aid and litigation loans, and no equivalent of Legal Services Orders (which can force the party with control of family resources to pay the other’s legal fees). 

18. Attempts to divorce in Singapore to achieve a particular financial outcome have to be balanced against potential subsequent financial claims that can be made in England for a financial settlement after a foreign divorce (known as “Part III” claims). Where English expats have a Singapore divorce imposed upon them, it is a viable route to pursue Part III claims in England. Is there sufficient value in spending time and resources fighting for Singapore jurisdiction if the English court can step in at a later date anyway to improve the outcome? 

19. What additional experts might be required to analyse financial disclosure, value properties, businesses and shareholdings around the world? 

20. A dependant spouse’s immigration status is commonly based on their marriage to the holder of the employment visa. When the marriage ends, the children’s dependant status is retained, but the spouse’s dependent visa expires. There are limited solutions. 

21. If the couple decide to remain in Singapore post-separation, the high costs of living (rent, school fees) make it more difficult to fund two households from the same finite resources. 

22. International school fees and making provision for expat children to attend university in England as overseas students can dominate the needs analysis. 

23. How does living abroad as a trailing spouse affect that party’s future earning capacity, and how should that be reflected in the financial agreement?

24. If party A remains in Singapore and party B returns to England, should A receive, on a needs basis, a greater share of the assets and the income to reflect the higher cost of living in Singapore? 

25. Enforcing Singapore orders in England (and vice versa) is not straightforward. The enforcement process varies depending on whether the order relates to maintenance, property transfer, a lump sum or pension sharing.

26. When the family live in Singapore, divorce and finances can be handled remotely via the English courts, but disputed child arrangements will take place in Singapore. It is common for financial remedies to be litigated in one jurisdiction while children issues remain anchored in another. 

27. On separation, one parent might want to relocate with the children back to England. They may have only ever considered the move to Singapore as a temporary assignment, and they view the separation as the obvious trigger to return. However, what if the other parent wishes to remain in Singapore and does not wish to be separated from the children? Because the children are likely to have become “habitually resident” in Singapore, the parent who wishes to return to England has to make a formal court application in Singapore for permission to relocate the children.

28. If the wife leaves Singapore with the children without the husband’s consent, that is child abduction, and she is at risk of a Hague Convention return application. The starting point is that she is likely to be forced to bring the children back, unless she can establish a defence. Hague proceedings are life-changing, high-stakes, and extremely contentious. 

29. If the husband provides consent for the wife to return to England with the children, international contact arrangements need to be addressed. How to manage shared care across more than one country? 

30. It is not uncommon for the parent who wants to stay in Singapore to attempt to use consent to relocate the children as leverage in financial negotiations, i.e. consent to relocate with the children is withheld unless the other party agrees to an imbalanced financial settlement.

31. If the husband decides at a late stage to return to England to be closer to the children, it is likely that any existing agreement or court order (in respect of maintenance) will need to be varied. 

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Cross-border divorce is a minefield. Anyone considering or facing a divorce while living abroad should take specialist legal advice at the earliest opportunity.