With more foreigners working and living in Singapore, and more Singaporeans living abroad as shown by statistics, it does not come to surprise that there are also more mixed marriages registered In this regard, there are a growing number of family law proceedings involving cross-jurisdictional legal issues. Clients in that situation often approach our office to seek legal advice when divorce proceedings or proceedings on divorce ancillary matters such as maintenance for a spouse or child are commenced outside of Singapore. Most cases involve stay applications to be made on the basis of forum non conveniens, which will be explained below.
On a related note, a team of lawyers from our firm was involved in the landmark decision of TGT v TGU [2015] SGHCF 10 which was an appeal decided by Foo Tuat Yien JC in the High Court on 22nd October 2015. The case is still relevant today and dealt with stay applications on the basis of forum non conveniens. In that case, our divorce lawyers had successfully appealed against a district judge’s refusal to stay the other parent’s application for maintenance of their son in Singapore.
What is a “stay of proceedings” and “forum non conveniens”?
In short, a “stay of proceedings” is a ruling by a court to cease further legal proceedings while forum non conveniens means “jurisdiction not agreeing”, which is a legal doctrine whereby a court declines to hear the case as that court is of the opinion that there is another court in another country more suited to decide the case.
Summary of TGT v TGU [2015] SGHCF 10
A brief summary of the decision of TGT v TGU [2015] SGHCF 10 is provided below. The doctrines in the case are complex, and our Divorce Lawyers would be able to better advise you on the unique facts of your case.
Facts of Case
The appellant in this case was the father, who was employed and a resident of Singapore, which were his only connecting factor to Singapore. The respondent in this case was the mother, who was both a citizen of and residing in in Hong Kong with the child at the time the case was decided. The mother in this case wanted to commence maintenance proceedings for the child in Singapore. The trial judge before had decided that a stay of proceedings in Singapore would deprive the mother a right of action in maintenance against the father, as Singapore law regarded the child’s welfare as the paramount consideration as compared to the Hong Kong jurisdiction. Thus, the trial judge declined to grant a stay in proceedings in Singapore, and the result was that the mother was not prevented from carrying out maintenance proceedings against the father in Singapore.
Summary of Legal Principles
We have provided a brief summary of the legal principles which were decided on appeal by the High Court:-
1. Whether the country in question, Hong Kong, was an available forum for maintenance proceedings;
The High Court stated that a foreign court will be available if it has competent jurisdiction, which should be approached in a practical manner, and as such, the forum in Hong Kong was available.
2. Whether the country in question, Hong Kong, is more appropriate than Singapore for trial;
To decide whether the forum in Hong Kong or Singapore was more appropriate for trial, the High Court determined which forum had the most real and substantial connection with the dispute and parties, and evaluated the inconveniences and expenses the parties would face if each forum was used. The High Court stated that the parties had begun their relationship in Hong Kong, and had their child in Hong Kong, who continues to live there. Additionally, the Court stated that the mother who was in Hong Kong had stated before that she could not afford to travel to Singapore. Thus, it was concluded that Hong Kong had the more appropriate forum for trial than Singapore.
3. Whether a stay should be refused to prevent denial of substantial justice.
The High Court balanced various factors in deciding whether or not a stay would deny parties of substantial justice. In considering various factors, the Court clarified that it should not be required to weigh the quality of justice or the justice of the systems of law available under the Singapore and Hong Kong family justice regimes. The Court decided in this case that if the proceedings in Singapore are stayed, there would not be denial of substantial justice to the parties.
Conclusion
The Court concluded in our client’s favour that Hong Kong was a more appropriate forum to determine the issue of maintenance for the child, and granted a stay of the mother’s maintenance application in Singapore. This case does not mean that in every similar scenario, the courts in Hong Kong would always be the more appropriate forum. Each case is unique and may result in a different outcome. The law in this area is complex, and our Specialist Divorce Lawyers are highly trained in cross-jurisdictional family law proceedings to assist you if you require legal advice on such matters.
