Second bite of the cherry in England after divorce litigation in Singapore?

Part III of the Matrimonial and Family Proceedings Act 1984 (“Part III”) permits further financial provision to be made by the English Court after divorce and financial orders have been made overseas. In this important and developing area of English family law, the cases of Hasan v Ul Hasan (Deceased) Anor [2021] EWHC 1791 (Fam) and Potanina v Potanin 2021 EWCA Civ 702 have both received permission to appeal to the Supreme Court on different aspects of Part III and are expected to be heard this autumn.

In Vew v Vev [2022] SGCA 34 the Court of Appeal in Singapore had to decide whether to continue an anti-suit injunction (“ASI”) in favour of the husband, which would prevent his former wife from bringing a Part III claim in England following their earlier divorce in Singapore. Within the Singapore divorce proceedings, the court had excluded a valuable property in London in the husband’s sole name, deciding that it did not fall into the pool of matrimonial assets. It was against this property that the wife made her Part III claim, relying on the provision in Part III which gives the English court jurisdiction over a dwelling-house which was, at some time during the marriage, a matrimonial home. The husband obtained an ASI at first instance in Singapore to prevent her from pursuing this claim on grounds she would be re-litigating an issue which had already been determined by the court in Singapore, taking a “second bite of the cherry” after the Singapore court had excluded the property from any matrimonial claims, and such litigation would be vexatious and oppressive.

The wife succeeded in having the ASI lifted to enable her to pursue her claim in England. The Court of Appeal in Singapore took the view that there had been no re-litigation as the Part III claim only concerned an asset which was not included, or divided, in the Singapore divorce proceedings and, for reasons of international comity, it should not interfere with the Part III process in England.

The Singapore Court of Appeal acknowledged that Chapter 4A of the Women’s Charter (2009) (“the Women’s Charter”) was modelled on Part III by the Singapore legislature; the purpose of both being to provide further financial provision where no, or no adequate, provision had been made for a spouse in overseas divorce proceedings. In England, this followed a Law Commission Report in 1982 which highlighted the potential unfairness, particularly to women and children, given the liberality of recognition in England of divorce orders made overseas, which then prevented the English Court from making financial provision orders on divorce. The same issue that led to the enactment of Part III was also recognised in Singapore around the 1990s and, in 2009, the Singapore Law Reform Committee recommended amending the Women’s Charter to plug this particular lacuna in Singapore family law.