Divorce for British expats in Singapore
For British expats worldwide, divorce and the financial matters arising can usually be dealt with through the English courts. This is because proceedings can be initiated in England based on the parties’ “domicile of origin” even for those who have lived abroad for years.
Contrary to popular belief, it is not necessary to divorce in the country in which you were married.
In order for British expats to commence divorce proceedings in Singapore:
- One of the parties must have been habitually resident in Singapore for 3 consecutive years, prior to initiating the divorce, or be domiciled (permanent place of residence) in Singapore; and
- Parties must have been married for at least 3 years (in cases where one spouse has suffered exceptional hardship a divorce may be granted within the 3 years)
When Can a British Expat in Singapore choose to Divorce in England/Wales?
British expats based in Singapore may decide to initiate a divorce in England in the following circumstances:
- If either party wishes to initiate a divorce prior to the 3-year residence or marriage requirement
- If, after taking legal advice in both jurisdictions, either party concludes that issuing in England would be more favourable to them. For example, under Singapore family law pre-acquired or inherited assets are more likely to be excluded from the matrimonial pot, and there is no option for a financially dependent wife to apply for the husband to pay her legal fees.
British expats are usually able to initiate a divorce in the English courts, as long as they have been married for more than 1 year and they can satisfy the jurisdiction requirements.
When does the English court have jurisdiction?
The English courts have jurisdiction to deal with the divorce only where:
- Both parties are habitually resident in England and Wales; or
- Either parties were habitually resident in England and Wales, and one of them still resides there; or
- The respondent (the person whom the divorce is filed against) is habitually resident in England and Wales; or
- The petitioner (the person who filed the divorce) is habitually resident in England and Wales and has lived there for at least 1 year immediately before the petition is filed; or
- The petitioner is domiciled in England and Wales and has been residing in England and Wales for at least 6 months immediately before the petition is filed; or
- Both parties are domiciled in England and Wales; or
- If none of (1)–(6) above applies and no court of another EU State has jurisdiction, either party is domiciled in England and Wales on the date when the proceedings are begun.
To establish jurisdiction, points (1) to (5) require physical presence in England/Wales of one or both parties.
Points (6) and (7) do not require the physical presence in England/Wales of either of the parties. The practical implication is that under points (6) and (7) the divorce can proceed in England even though the individual lives abroad.
What is domicile and how to determine the place of domicile in English law?
Everyone has a domicile at all times and it is only possible to have one domicile at any one time.
In the context of English divorce jurisdiction, it is essential to understand 2 forms of domicile:
- Domicile of origin; and
- Domicile of choice.
Domicile of origin
The 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.
Where the married parents of a child are both alive and living together, the child’s domicile will be that of the father. A child born to unmarried parents or to a mother following the death of the father will have the domicile of the mother.
Domicile of origin is difficult to relinquish. An existing domicile is presumed to continue until it is proved that a new domicile has been acquired. The burden of proof is on the individual to demonstrate that he has lost his domicile of origin.
Domicile of choice
A 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.
In simple terms, the individual must be physically present in the country and be able to demonstrate their intention to live there forever.
Physical residence for a short period of time, even a few days, may be sufficient to establish a domicile of choice, as long as the intention to reside in that country is for the indefinite future.
A person may abandon a domicile of choice in a country by ceasing to reside there and by ceasing the intend to reside there indefinitely.
Joint Domicile vs Sole Domicile
When English jurisdiction is pleaded based on both parties being domiciled in England (as per point 6), the English court will deal with the division of all assets and will make orders in respect of spousal and child maintenance.
Where divorce jurisdiction is based on the sole domicile of one spouse (as per point 7), the starting point is that the English court does not have jurisdiction to make maintenance orders. Instead it only has jurisdiction to divide assets.
However, even if the divorce proceeds under point 7, the English court may still make maintenance orders if:
- The parties voluntarily submit to the jurisdiction in respect of maintenance;
- The respondent enters an appearance; or
- Proceedings cannot reasonably be brought or conducted or would be impossible in a third state.
The sole domicile restriction on maintenance is likely to be swept away if a No Deal Brexit takes place on 31 October.
Contesting Jurisdiction if either spouse does not agree to Divorcing in England/Wales
There may be grounds to contest the jurisdiction of the English court to hear the divorce if, for example, Party A issues proceedings in England and Party B does not agree that the English courts have jurisdiction (and is keen to protect his or her assets from the powers of the English court).
However, a contested jurisdiction case can lead to significant costs so it is important that informed decisions are made and that the proposed costs of a particular course of action is proportionate to the value of the possible differences in outcome.
There is a further sting in the tail: a British expat choosing to divorce through the Singapore courts and/or to contest English jurisdiction, must be aware of the potential subsequent financial claims that could be made through the English courts by their spouse for a financial settlement after a foreign divorce, under Part III Matrimonial & Family Proceedings Act 1984 (“Part III”).
Part III gives the courts in England and Wales the power to grant financial relief, after a marriage has been dissolved (or annulled) in a foreign jurisdiction. The English courts can grant financial relief to alleviate adverse consequences where no financial provision is made by the foreign court, or where the provision made is deemed to be inadequate.
Therefore, contesting English jurisdiction to pursue a supposedly favourable outcome in a foreign jurisdiction can ultimately backfire if the outcome in the foreign jurisdiction is so unfavourable as to unlock a Part III claim in England. What could have been dealt with as a neat, self-contained process in England from the outset can quickly turn into very costly multi-layered litigation which is generally only proportionate in high net worth families.
Before embarking on jurisdiction litigation, it is crucially important to take legal advice in both jurisdictions to compare and contrast the advice and to make informed decisions.
‘Expatriate Law (Asia) Pte. Ltd’ is a Foreign Law Practice approved by the Ministry of Law in Singapore and regulated by the Solicitors’ Regulation Authority in England. Expatriate Law (Asia) Pte. Ltd provide English divorce and family law advice to British expats and families with links to England who are living in Singapore and across South East Asia.
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