Singapore is seeing an increasing number of foreign expatriates (expats) who are now calling Singapore their second home. It is no surprise that concurrently, just like the locals, there are an increasing number of expats also filing for divorce in Singapore.
When an expat moves to Singapore, his or her company sponsors the Employment Pass (EP). If the expat wishes, the employer of the expat, who is typically male, may then sponsor the expat’s wife and children as dependents of the EP holder. The expats wife and children will then hold Dependent’s passes (DP), which the expat can cancel any time.
EP holders are allowed to apply for a DP for their spouse and unmarried children under 21 years old if they meet the following requirements:
- They hold an Employment Pass or S Pass,
- They earn a minimum fixed monthly salary of $6,000.00, and
- Are sponsored by an established, Singapore-registered company (usually the employer)
The divorce proceedings become especially acrimonious when the spouse holding the EP chooses to be malicious and cancels the DP of the other spouse.
Cancelling the DP
In fact, in order to cancel the DP, all the EP holder has to do is to log onto the portal on the Ministry of Manpower (MOM) website and cancel the DP online. The EP holder is legally entitled to cancel the DP’s of his family members.
The cancellation is draconian and immediate. A Short term visit pass will be generated for the DP holder. The DP holder will then have 30 days to leave Singapore or try and find employment and apply for a work permit.
The DP by MOM caters to the increasing number of expats who are working in Singapore for long periods and want their spouse and children to live here with them.
Unfortunately, there is an increasing number of EP holders who are abusing the system and taking advantage of the “power” they have inadvertently been granted by MOM.
The situation is even grimmer when there are children involved and the EP holder maliciously and strategically chooses to cancel the DP of the spouse but not the children in an attempt to have a better chance at obtaining care and control of the children.
The recourses available before TYC v TCD
As mentioned above, the only recourse the spouse holding the DP had previously was to desperately look for employment in Singapore and apply for a Work Permit or face the reality of having to leave the children and return to their home country within 30 days.
The spouse may even choose to return to their home country and do the following:
- Take out an application to stay the divorce proceedings in Singapore; and/or
- Commence divorce proceedings in their home country against their estranged spouse in Singapore.
Many DP holders even chose to return to their home country to file a stay application over the divorce proceedings in Singapore on the ground of forum non conveniens.
The applicable test to determine if divorce proceedings should be stayed in Singapore on the grounds of forum non conveniens is “The Spiliada Test”1 which consists of two stages2:
Stage one: The party seeking the stay must show that there is another available forum that is clearly or distinctly more appropriate than Singapore to determine the dispute
Stage two: if there is another forum which is prima facie more appropriate, the court will ordinarily grant a stay, unless there are special circumstances by reason of which justice requires that a stay should nevertheless be refused. At this stage, the burden shifts to the Plaintiff (the spouse who commenced divorce proceedings) to show such special circumstance.
The Spiliada Test is not an easy test to satisfy. The court will take into consideration connecting factors, such as:
- factors affecting convenience or expense (e.g. availability of witnesses),
- the law governing the transaction, and
- the places where the parties reside or carry on business.
In the instance the DP holder chooses to return to their home country and file for divorce against their spouse parallel to the Singapore proceedings there would be duplicity of proceedings. This would affect the stay proceedings and may even influence it.
The duplicity of proceedings is an important factor to be taken into account under the forum non conveniens doctrine, as it raises the issues of duplication of resources and conflicting judgments3.
In such circumstances, the choice is between having a trial in Singapore plus a trial abroad (if the stay is refused), and trial abroad (if the stay is granted)4.
Whether weight would be given to the fact of existence of parallel proceedings depends on the circumstances of the case and the factual matrix of the individual cases.
Some pertinent considerations include:
- the degree of overlap of issues and parties,
- the degree to which the respective proceedings have been advanced
Thus, the fact that parallel proceedings exist in another jurisdiction, though persuasive is not an automatic factor in favour of a stay, it all depends on the circumstances of the case5.
The recourse available after TYC v TCD
Since March 2017 and after the decision in TYC v. TCD6, DP holders now have a recourse in Singapore itself.
In TYC v. TCD, we see an application brought by the Defendant-wife against the Plaintiff - husband, seeking an order that the husband takes all necessary steps to reinstate her DP. The husband had cancelled the wife’s DP just prior to his commencement of the divorce proceedings. The wife accepted that this renewal would only be valid under such time as the divorce proceedings come to an end.
The wife’s primary contention was that the cancellation of the DP was calculated to cause her financial hardship and stress for her. The husband cancelled the wife’s DP so that she will have to leave Singapore and this would place her at a disadvantage in the divorce proceedings.
The wife also stated that the husband cancelled her DP for strategic reasons as he wanted care and control of the child, and this would give him leverage in the proceedings7.
In the interest of ensuring a fair trial, the Court ordered the husband to reinstate/renew the wife’s DP and further ordered him not to cancel it until the conclusion of the divorce proceedings or as ordered by the Court.
The above recourse comes as a beacon of hope for a large number of DP holders who are and have been severely disadvantaged by this ‘loophole’ in the system. It is advised that a lawyer is consulted when faced with such an adversity as they will be able to advise you according to your circumstances.
Here at Lexcompass LLC, we understand the stress of our clients and we will be able to assist you according to your individual needs. If you have any further queries, please feel free to contact us.
1 See Spiliada Maritime Corporation v Cansulex Ltd  AC 460
2 See AZS and another v AZR  SGHC 102
3 Ibid, at  , see also Halsbury’s Law of Singapore, vol 6(2) ( Lexis Nexis, 2009) at 75.094
4 See AZS and another v AZR  SGHC 102, at , see also Cheshire, North & Fawcett, Private International Law ( Oxford University Press, 14th Ed, 2008) at para 55
5 See Mala Shukla v Jayant Amritanand Shukla ( Danialle An, co-respondent)  1 SLR(R ) 920 at 
6 See TYC v TYD  SGFC 23
7 See ibid, at