Hilary Rupawalla – Qualified Singapore Lawyer
Expatriate Law
Immigration issues for divorcing Expatriates
The majority of British expats in Singapore usually arrive as Employment Pass (EP) holders. The right of EP holders to live and work in Singapore is based on their ongoing employment status. If an EP holder loses their job, and the EP is cancelled, the starting point is that they have to leave Singapore. In such a situation, the EP holder may request a Short-Term Visit Pass (STVP) to settle his or her affairs. The STVP is valid for 30 days, but the EP holder can apply for an extension of the STVP for up to 90 days, subject to approval of the authorities.
EP holders can bring their spouse and children to Singapore as dependants. The spouse and children are granted Dependent Passes (DPs).
DPs are explicitly tied to the status of the EP. If the EP is cancelled or relinquished, the DP is also cancelled.
A DP permits the spouse to live in Singapore but not to work. It was once possible to apply for a Letter of Consent (LOC) for a DP holder to be able to work in Singapore, but that option was removed by the Singapore Government on 1 May 2021. DP holders who wish to work in Singapore must obtain a work pass in their own right.
British expats may also arrive in Singapore on a Personalised Employment Pass (PEP). Similar to an EP, the rights of a PEP holder to live and work in Singapore is based on their employment status. The benefit of being on a PEP, as compared to an EP, is that there is more job flexibility in Singapore – a PEP holder can remain in Singapore for a period of up to 6 months whilst searching for new employment. PEP holders can also bring their spouses and children to Singapore on DPs.
Another option for British expats to reside in Singapore is the EntrePass. This is intended for entrepreneurs, innovators or experienced investors. An EntrePass holder can bring in their family only if certain requirements for total annual spending and local employment are met. For example, EntrePass holders can bring in their spouse and children if their annual business spending is at least S$100,000 and their business employs at least 3 full-time employees or 1 local professional, manager or executive. More information on the requirements for passes for the family of an EntrePass holder can be found here: https://www.mom.gov.sg/passes-and-permits/entrepass/passes-for-family.
It is not uncommon for British citizens to make Singapore their home indefinitely. Those that do so tend to eventually apply for Permanent Residence (PR) so that they are able to enjoy many of the benefits and rights that are given to full citizens e.g. the ability to change jobs freely, access to local schools and preferential tax treatment.
The dependant pass problem
A divorce does not affect the rights of an EP holder, PEP holder, Entrepass holder or a permanent resident to remain in Singapore. When a British couple in Singapore separate and divorce while living in Singapore, it is the DP holder who is vulnerable.
When any divorce is finalised, the DP lapses and the dependent spouse will be issued with a STVP, which allows them to stay in Singapore only for 90 days. If they wish to remain in Singapore they will need a long-term solution.
It is also possible for an EP holder to maliciously cancel a DP before any divorce process is complete. However, a DP holder can make an application to the Family Justice Courts in Singapore to pre-emptively prevent this from happening, or to reinstate a DP pending the resolution of the divorce proceedings.
There is a serious difficulty that arises in circumstances where a DP holder can be forced to leave the country. If the couple have children, the DP holder cannot unilaterally take the children back to the UK. He or she must obtain the consent of the other parent or initiate expensive and uncertain litigation to attempt to obtain an order from the Singapore court granting him or her permission to relocate with the children.
It is worth spelling out the harsh reality of what this can all actually mean in practice: on divorce, a DP holder could be forced to leave Singapore, while the children remain in Singapore.
So what can be done?
Employment Pass
The safest and most secure option for a DP to be able to remain in Singapore is to obtain an EP, PEP, Entrepass or PR in his or her own right, but that is easier said than done.
To be able to hire a foreigner under an EP, a future employer must be able to demonstrate why they are unable to fill the job vacancy with a Singaporean. Therefore, the applicant must have a marketable career history which fulfils the required eligibility criteria.
Personalised Employment Pass
Alternatively, a DP holder can apply for a PEP. However, to be able to apply for a PEP the applicant has to show that he or she is a foreign professional and that their last drawn salary, which must be within 6 months of the application, was at least S$18,000.
EntrePass
The last option is to make an application for an EntrePass. This is a work pass intended for entrepreneurs, innovators or investors and the application must show that he or she has started or intended to start a private limited company and has to fulfil certain criteria’s (https://www.mom.gov.sg/passes-and-permits/entrepass/eligibility).
Permanent Residence
A DP holder can obtain permanent residency in Singapore only through the main work pass holder. If the main work pass holder’s PR application is approved, the PR application of the DP holder will be approved as well. Without more, a DP holder is unlikely to succeed in his/her permanent residency application without the consent or approval of their spouse.
Long-Term Visit Pass
A DP holder can obtain a Long-Term Visit Pass (LTVP) as the mother of a child studying in Singapore on a Student’s pass. In order to obtain a Student Pass, the child would have to be pursuing full-time education in Singapore in an approved educational institution and she would need the husband’s engagement and co-operation.
Once the child obtains a Student Pass, their DP will lapse / be terminated. More information on how to apply for a Student pass can be found at the website here: https://www.ica.gov.sg/reside/STP/apply.
The mother of the child can apply for an LTVP using the child’s Student Pass. This application can be done via an immigration service or online using the immigration authority’s e-service portal.
The LTVP permits an extended stay in Singapore of up to two years at a time. The LTVP can be renewed at least 2 months before the expiration of the current LTVP.
For more information regarding the procedure to apply for a Student Pass and LTVP, please refer to the ICA website: https://eservices.ica.gov.sg/esvclandingpage/evp?type=lmother
Separation Agreement
A separating couple can choose to co-operate creatively. They might decide to formally separate but not proceed with a legal divorce. They can enter into an agreement which addresses the division of assets, and maintenance obligations and which defines children arrangements without actually divorcing. As long as the couple remain husband and wife, the DP remains live. This is a compromise which allows the family to remain in Singapore. It is not a perfect solution. From the point of view of the DP holder, there is nothing to stop the EP holder from initiating a divorce at a later date. From the point of view of the EP holder, the separation agreement is not 100% binding and the financial terms could potentially be challenged as part of a later divorce.
Judicial Separation
A separating couple should explore the option to initiate judicial separation proceedings.
Judicial separation does not end the marriage – the parties remain legally married to each other, which preserves the DP’s visa.
However, the court does have power to deal with division of assets and maintenance, and financial orders made in judicial separation proceedings are binding on both parties.
Judicial separation proceedings are not a perfect solution. Pension sharing orders cannot be made, and the couple would still need to deal with the divorce at a later date if either wished to re-marry.
Judicial separation could be considered if the separating couple are committed to finding solutions to keep the family in the same country whilst formally dividing up the assets and defining maintenance obligations.
Note that if a DP holder were to initiate judicial separation proceedings without consulting and agreeing the way forward with the EP holder, there is nothing to prevent an EP holder from subsequently issuing divorce proceedings in the jurisdiction of their choice.
Careful strategic advice should be sought from the outset from a specialist family lawyer before any decisions are made.
Conclusion
It is a feature of expat life in Singapore that the current rules and regulations do not give guaranteed protection to DP holders in the event of a divorce and that applications for permission to relocate with the children back to England are onerous and uncertain.
It is an unavoidable fact that in the event of a divorce, a spouse’s DP will eventually be cancelled regardless of the other party’s intentions. It is important for the DP holder to take early bespoke advice and to carefully consider the best way to proceed.