Cross-Border Divorce & Child Custody: Legal Implications for Expats

Divorce is often emotionally draining, and the element of cross-border makes it even more complicated. For expatriates currently seeking a divorce, understanding the legal frameworks and implications around cross-border divorce is essential. This guide explores the key details that expatriates will need before settling a divorce.

Differences in eligibility between local divorce and cross-border divorce

Before delving into the legal implications of cross-border divorce, it is important to note the eligibility for expatriates seeking a divorce. Currently, foreigners do not have an automatic right to file for divorce under the Singapore Family Justice Courts. According to Section 93 of the Women’s Charter. The Singapore courts have jurisdiction if either spouse is domiciled in Singapore at the time of commencement or has been habitually resident in Singapore for 3 years immediately before filing.

For marriages where both parties are not Singaporean citizens, divorces can still be eligible when one of the parties fall under the domicile of choice, where they demonstrate the intention to remain permanently or indefinitely in Singapore. Various pieces of evidence could be used to prove this intention, with a few key ones including purchasing immovable property, moving assets into Singapore, or having children in Singapore.

When divorce & custody diverge across borders

Oftentimes, there are situations in which spouses live in different countries, sparking the question as to which country’s courts should handle the divorce. There are two forum issues Singapore Courts often face. First, there are situations where divorce proceedings are being held parallel in 2 different jurisdictions. Second, there are situations where there is already a divorce granted in a foreign jurisdiction.

Parallel proceedings

In these cases, the Singapore court may halt the matrimonial proceedings in Singapore, on the principle of forum non conveniens. This is where the Singapore court examines all the relevant facts and circumstances to decide which is the more appropriate forum for the divorce proceedings. In the case where there is an alternate court capable in addressing the case, the key factors that will be taken into account would be:

1. 1. 1. Ease of access to evidence
      2. Convenience for the defendant
      3. Enforceability of judgement 

Granted divorces

Generally, a divorce that has already been granted by a foreign court of competent jurisdiction will be recognised by the Singapore court, under either of these 3 circumstances:

1. 1. 1. Where either party lives permanently under the jurisdiction of the foreign decree
      2. Where the decision made was granted on the same criteria as what the Singapore court uses to grant a divorce
      3. Where there exists sufficient connection between the court granting the decree and either party to the marriage

Differences in enforcement challenges within divorce

A key legal implication that stems from cross-border divorce is with regards to property division. While overseas matrimonial assets generally fall within the scope of division by the Singapore court, enforcing a Singapore judgment against such assets can be challenging, particularly in the case of immovable property. In these cases, it is effective to apply directly to the foreign court in the jurisdiction where the asset is located for its division.

Differences in enforcement challenges within child custody

With cross-border divorces, some parents may wish to relocate their child, thus returning to their home country. After the application to the court, the granting of the relocation application will be determined mainly by the welfare of the child. In these cases, the needs and wants of the primary caregiver are considered, but not decisive, as the court often recognises how a child’s welfare is linked to the happiness and well-being of the primary caregiver. Some of the factors that the court will consider are:

1. 1. 1. reasons for the relocation
      2. education opportunities in the new country
      3. family support in the new country
      4. how entrenched the child is in his current environment
      5. extent of loss of relationship with the other parent

This is a non-exhaustive list, and the outcome of each parental relocation application is ultimately on a case-by-case basis.

Furthermore, it is important to note that during relocation, parents often need to apply in the child’s new country for a local order that mirrors the Singapore custodial order. This prevents new legal conflicts from happening, where the previous partner challenges the custody of the child in the new country.