Foreign Divorces that Lacked Capacity

In certain cases, a court of another jurisdiction grant may grant divorce, but the parties may lack capacity to be divorced. This could be the case where the marriage was void, possibly because one party was already married at that time. However, the Singapore court, if unaware of the divorce overseas, may grant a Decree Nisi in respect of the divorce. It must then be decided whether the overseas divorce will be recognised in Singapore such that the Decree Nisi by the Singapore court would be set aside or rescinded.

In Yap Chai Ling v Hou Wa Yi [2016] 1 SLR 660, the court made two main observations in relation to this factual scenario.

First, it identified that s 7(b) of the Women’s Charter provides that a marriage can be dissolved by an order of a court of competent jurisdiction, including foreign courts. However, this foreign divorce judgment will only have effect in Singapore if the Singapore courts recognise it in accordance with the rules of private international law.

Second, once the foreign court is found to be competent, the principle of international comity would usually compel Singapore courts to recognise the expat divorce judgment. This would be the case unless the enforcement is manifestly contrary to public policy or substantial justice.

In the case, the court held that the Shanghai divorce judgment would not be recognised in Singapore, as to do so would in effect be acknowledging that a bigamous marriage may be regularised. Further, in Noor Azizan bte Colony (alias Noor Azizan bte Mohamed Noor) v Tan Lip Chin (alias Izak Tan) [2006] 3 SLR(R) 707, the court also held that in Singapore, there cannot be multiple subsisting marriage relationships that exist in parallel and be dissolved separately, as the marriage effects a permanent change in the legal status of the parties.

Therefore, foreign marriages that are void from the start cannot be recognised by the Singapore court.

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