Should I Divorce in England or Singapore?

This blog examines:

• whether you are able to start your divorce in Singapore or England (jurisdiction);
• if so, what factors the courts in Singapore or England will take into account in dividing the assets between you (and whether ongoing maintenance might be available); and
• whether pre or post nuptial agreements are likely to influence how your assets are divided.

1. Jurisdiction for Divorce:

Singapore:

In Singapore, the Family Justice Court has jurisdiction to hear a divorce if:

• either of the parties is domiciled in Singapore at the time of the commencement of the divorce proceedings; or
• at least one of the parties is habitually resident in Singapore for a period of at least three years immediately prior to the commencement of the divorce proceedings.

Under section 3(5) of the Women’s Charter, a party who is a citizen of Singapore, is deemed until proven otherwise to be domiciled in Singapore. For most couples who are foreigners, the most common ground relied on to satisfy jurisdiction is that of being habitually resident in Singapore for a period of at least three years prior to the filing of the Writ of Divorce.

You should note that if you claim jurisdiction based on three years habitual residence, you would be required to provide relevant details of the habitual residence including the address(es) and durations of residence in Singapore. Details in relation to one or both party’s employment history in Singapore would also be helpful.

The Court would only be able to hear a divorce if the marriage is recognized as a valid marriage in Singapore and is not a void marriage. Marriages between persons of the same sex, even if solemnized and recognized in a foreign jurisdiction, are void. Likewise, marriages of convenience and where a party is already in an existing marriage before registering the current marriage are deemed void

England:

It is possible to divorce in England and Wales if:

1. You are both “habitually resident” in England and Wales;
2. You were both last habitually resident in England and Wales and one of you still resides here;
3. The Respondent is habitually resident in England and Wales; (so the person making the application is free to apply in the other’s state)
4. The Petitioner is habitually resident in England and Wales and has resided here for at least a year immediately prior to the presentation of the divorce petition;
5. The Petitioner is domiciled and habitually resident in England and Wales and has resided here for at least six months immediately prior to the presentation of the divorce petition;
6. The Petitioner and the Respondent are both domiciled in England and Wales;
7. No court in any EU state has jurisdiction but either of you is domiciled in England and Wales on the date that the petition is issued (but note there may be restrictions on applying for maintenance if this is the only ground relied upon unless you are habitually resident here).

As between EU countries, the first in time to start proceedings is key, so that if proceedings are, for example, validly started in France it is not possible to start proceedings in England.

As between England and other non EU jurisdictions (including Singapore) timing is only a factor and where there are competing proceedings the English court will consider where the balance of convenience lies and may stay (put on hold) English proceedings in favour of say, Singapore.

2. How the court deals with the division of assets and maintenance:

Singapore

2.1 Singapore – Division of Assets: a fair and equitable division

Under Singapore law, the Court has the power to order a division of the matrimonial assets upon divorce. Matrimonial assets are defined as assets acquired by parties in their joint or sole names during the marriage. The concept is one of deferred community of property. That means that during the marriage, assets acquired by parties in their sole names are considered as their individual assets to which the party is the legal and beneficial owner. Upon divorce, the Court has the power to pool all the matrimonial assets (as defined above) into the pool of matrimonial assets for division.

Assets that are gifted by third parties to one party during the marriage (i.e. inheritance) are not regarded as matrimonial assets as long as they have not been used for the benefit of the family or have not been subsequently converted into matrimonial assets. Likewise, certain categories of assets acquired prior to the marriage and which have not been converted into matrimonial assets are regarded as premarital assets and would not be divided.

The Court’s power to divide the matrimonial assets pursuant to a divorce is very wide. The only statutory prescription as set out in Section 112 of the Women’s Charter is that such division be done in such proportions as the Court thinks just and equitable. There is no fixed formula or starting point (such as equal division) for division of the matrimonial assets. A list of non-exhaustive factors that the Court takes into consideration are:

(a)          the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets;

(b)          any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage;

(c)           the needs of the children (if any) of the marriage;

(d)          the extent of the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party;

(e)          any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce;

(f)           any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party; and

(g)          the giving of assistance or support by one party to the other party (whether or not of a material kind), including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business.

Generally speaking, the length of the marriage as well as the direct financial contributions and indirect contributions made by the parties to the marriage are important factors in the Court’s consideration of what would be a fair and equitable division of the matrimonial assets. Indirect contributions include both indirect financial contributions (such as payment for the family’s expenses, purchase of furniture and upkeep of the household) and non-financial contributions (caring for the children of the marriage, sacrifices made by one spouse to his or her career, etc). Unlike in England, the Court in Singapore has clarified that only parties’ direct and indirect contributions during the duration of the marriage are to be assessed for the purposes of ascertaining what would be a fair and equitable division. Parties’ contributions either direct or indirect during the period of pre-marital cohabitation are not to be considered as this would be wrong in law.

There is no one factor of paramount importance over others. All factors can and will be considered by the Court in its final determination of what would be a fair and equitable division of the matrimonial assets.

The Court has adopted a structured approach in assessing what would be an appropriate guideline for a fair and equitable division of the matrimonial assets. Briefly stated, the structured approach prescribes the following steps:

(a) first, ascribe a ratio that represents each party’s direct contributions relative to those of the other party, having regard to the amount of financial contribution each party has made towards the acquisition or improvement of the matrimonial assets;

(b) second, ascribe a second ratio to represent each party’s indirect contribution to the well-being of the family relative to that of the other throughout the marriage; and

(c) third, using each party’s respective direct and indirect percentage contributions, derive each party’s average percentage contribution to the family that would form the basis to divide the matrimonial assets.

Such an approach would not apply to Single-Income marriages (where one spouse is the sole breadwinner and the other the homemaker) due to the Court’s observation that in such cases the structured approach as set out above would unduly favour the working spouse over the non-working spouse. In these cases, the Court’s division of the matrimonial assets would be based on the non-exhaustive list of factors above having regards to the needs of the family and contributions made the spouses to the marriage over the years.

2.2 Singapore – Spousal maintenance

In Singapore, maintenance for the former spouse is generally limited to that of the former wife. Former husbands can only claim for spousal maintenance if he can show that he has been incapacitated during the marriage.

In assessing whether maintenance is to be paid to the former spouse and the quantum of maintenance to be paid, the Court is to have regard to all circumstances of the case including the following:

The rationale for providing maintenance for the former spouse/wife is to even out the financial inequalities suffered by the wife as a result of the marriage having regard to the standard of living enjoyed by the wife during the marriage. The Court’s power to order maintenance for the former wife is supplementary to that of the division of matrimonial assets. In many cases, this may mean that the Court factors in the former wife’s need for financial support into its final order for division of the matrimonial assets such that the wife does not get a monthly maintenance sum. There must also be genuine need for monthly maintenance for the former wife and not simply a request for ‘insurance’ to protect against rainy days. If the Court is satisfied that the former wife is financially independent and she has not suffered any financial inequalities as a result of the marriage, it may decline to award a monthly maintenance for the wife.

2.3 Singapore – Maintenance for the children

In Singapore, both parents have a joint obligation to provide for their children’s reasonable expenses. A joint obligation does not mean an equal financial obligation. The parent without care and control of the children pays maintenance to the parent with care and control of the children. In assessing what would be reasonable maintenance for the children, the Court generally looks at the income of the parties and the reasonable expenses of the children to assess their needs as well as the reasonable expenses of the parties to assess the disposable income. These are the main factors considered in addition to the ones raised above such as the specific needs of the children and standard of living enjoyed by the party.

There is no fixed formula or child maintenance table to assess what would be a reasonable quantum of child maintenance to be paid. Where both parents are well able to provide for the children’s reasonable expenses from their disposable income, the Court has in such cases ordered that the parents are to bear the children’s expenses equally. In other cases and depending on the facts of the case, the Court has ordered parties to bear the children’s expenses in proportion to their respective income.

Do note that the age of majority in Singapore is 21 years and the parents’ obligations to provide reasonable maintenance for their children extend until at least that age. Where the child is over the age of 21 but still receiving instruction at an educational establishment (basic tertiary education) or undergoing training for a vocation or trade, parents still have an obligation to provide for the child’s reasonable expenses. The Court may also make an order for maintenance for the adult child in other special circumstances such as where the child suffers from physical and mental disability. Where an adult child seeks maintenance from his or her parent(s), the application must be taken out by the child himself/herself.

England:

2.4 England – Division of Assets

England and Wales has a discretionary system for asset division and financial claims on divorce. This means that it is impossible to say exactly what the outcome will be in any given case. The Court is directed to take into account a number of factors as follows:

1. the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future including, in the case of earning capacity, any increase in that capacity which it would in the opinion of the Court be reasonable to expect a party to the marriage to take steps to acquire;
2. the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
3. the standard of living enjoyed by the family before the breakdown of the marriage;
4. the age of each party to the marriage and the duration of the marriage;
5. any physical or mental disability of either of the parties to the marriage;
6. the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
7. the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
8. in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

How these factors are applied will vary from case to case. Needs is the driving factor in most cases – the Court will want to be satisfied that the financial arrangement will enable the separating parts of the family to meet their respective needs. Children’s needs are prioritised. What the Court will want to see is an arrangement where:

1. there is appropriate housing for each of the parts of the family, providing secure homes for the children; and
2. there is sufficient money for the outgoings of each of those two households to be met.

In many cases that is the end of the matter – but where the assets are greater (i.e. there is a surplus over needs) the Court will look at a number of other factors.

In these bigger money cases, how and when property or assets were acquired can be important. A judge will want to establish whether an asset is a matrimonial asset (in respect of which the starting point is an equal division of that asset) or non-matrimonial (which can be left out of the reckoning i.e. remain with the party who holds the asset provided it is not mingled with matrimonial assets). This division is not however clear cut and the longer the marriage, the less important this allocation becomes. Sometimes it is only a factor that may lead to an unequal division of assets on divorce.

Broadly speaking, matrimonial assets are those that are acquired during the marriage (including pre-marriage cohabitation) through the couples’ own endeavours. It does not matter which party has created the asset. If it is created through work put in during the marriage by either spouse, it is matrimonial property.

Non-matrimonial assets are those that a person has before the marriage or that comes to them during the marriage from an external source such as a gift to them individually or inheritance.

2.5 England – Maintenance

In terms of ongoing support (maintenance) the Court can require one spouse to make periodical payments to the other for such amount and for such period as may enable the recipient to adjust without undue hardship. Although this has been the law since the implementation of the Matrimonial Causes Act 1973, England has had a deserved reputation of being ‘wife friendly’ and in many cases orders for maintenance on a joint lives basis (i.e. without an end date) have been made. In recent years the Court has become increasingly focused on achieving a clean break and so orders for a specific term are now much more common. In some cases, however, a joint lives order may still be appropriate.

3. Pre & Postnuptial agreements:

Singapore:

Pursuant to the seminal Court of Appeal case of TQ v TR [2009] 2 SLR(R) 261, prenuptial agreements both foreign and local are recognized in Singapore. Parties are free to enter into both prenuptial and post nuptial agreements. Such agreements however cannot be enforced directly and would be treated as an agreement between the parties with respect to ownership and division of the matrimonial assets in contemplation of divorce.

These agreements are thus characterized as binding agreements between the parties on how they intend to divide their assets and deal with the issue of maintenance upon divorce and are regarded as contracts. The Court is clear that such agreements do not oust the jurisdiction of the Courts to review the agreement on what would be a fair and equitable division of assets especially if the terms cannot be said to be reasonable.

The question of the extent to which the Court would give either conclusive or significant weight to the pre and postnuptial agreements would depend on the circumstances of the case. In general, such agreements which are drafted at arm’s length with the benefit of legal advice, with terms that are not unreasonable and indicative that it is parties’ clear intention to enter into such an agreement, would be accorded significant if not conclusive weight by the Court.

For postnuptial agreements, such agreements are usually entered into by parties either as Deeds of Separation and Financial Arrangement in contemplation of an amicable divorce and resolution of the ancillary matters (division of assets, children’s issues and maintenance) or as a Settlement Agreement pursuant to mediation or negotiation for the divorce. The Court generally accords more weight to post nuptial agreements than pre nuptial agreements as the former are made in circumstances that are different to those existing in relation to prenuptial agreements. This does not preclude the Court from according conclusive weight to prenuptial agreements when viewed in the context of all the relevant circumstances of the case.

England:

Technically pre or postnuptial agreements are not enforceable in England. Such an agreement will be of influence as one of the circumstances of the case (see the factors outlined at 2.4 above). The extent of that influence will depend upon the circumstances. However, since a well-publicised case in October 2010, it is now more likely that a Court will uphold such an agreement unless it would be unfair to do so.

The Law Commission reviewed this area of family law and published a report in February 2014 recommending the introduction of what it called “Qualifying Nuptial Agreements”. The recommendation is that such agreements would be upheld provided certain criteria are met. It remains to be seen as to whether the Government will bring forward legislation to give effect to the recommendation. It is however worth noting that the Law Commission is clear that the Court’s discretion should only be removed to the extent that the agreement meets the needs of the parties and any children. It is unlikely that the agreement would be upheld and enforced if needs were not met.