03 October 2018

Braving the storm – Knowing your rights as an expat wife going through a divorce (part one)


Going through a divorce is never an easy process for anybody, but imagine having to go through it all alone – far away from your family and friends back at home. According to an article published by The Straits Times in 2017, the number of divorces in Singapore involving at least one foreigner amounted to 40 percent of divorces under the Women's Charter, or about 2,500 divorces in 2016.

When people think of expat wives, they often think of women with glamorous lifestyles, following their husbands to foreign lands in search of great new opportunities. However, few know about the struggles that these women face when they go through a divorce and are stripped of everything overnight – their marriages, their homes, and most importantly, their children.

One can only imagine how difficult it must be to experience a divorce in a country many miles away from home. This two-part series strives to simplify that process. The first article explains the rights that expat wives have and the issues they might face should they choose to relocate with their child back to their homelands while the second part explores how expat wives can remain in Singapore if they choose to do so.

What the law says about relocating with your child

Expat wives leave behind families and friends and struggle to find a new identity and community in Singapore. As such, their first instinct after facing a divorce in a foreign land like Singapore would be to return back to their homes and families in search for comfort and support. After losing their marriages and their houses, many cling onto their only source of hope and happiness in their lives – their children. Hence, when relocating back to their homelands, they would choose to bring their children along.

However, relocating with a child is no easy task and there are many legal obstacles that an expat wife might have to face along the way. This is because the consequences of such a move may have a detrimental psychological impact on the child who will be separated from his or her other parent and will have to adapt to a brand new country and education system.

Relocation is hence a major issue which is scrutinized by the courts and requires the consent of all the parties involved. Should you choose to relocate with your child after getting custody of him or her, you can only do so if:

1) You obtain the consent of the other parent in writing; or
2) Relocation with your child is allowed by an Order of Court.

Section 131 of the Women's Charter states that where matrimonial proceedings are pending or where one parent has custody or care and control of the child to the exclusion of other, the court may restrain the other parent from taking the child out of Singapore or may give leave for the child to be taken out of Singapore either conditionally or unconditionally.

Stay clear of relocating with your child without consent or an Order of Court

Expat wives may be fearful that they would lose their children after a divorce or that their spouse would not consent to the relocation and hence, would take matters into their own hands by relocating with their child. However, do take note that Singapore is part of an international legal treaty known as The Hague Convention on the Civil Aspects of International Child Abduction, which prevents parents from relocating with their child without the requisite consent.

The Hague Convention is also signed by other countries worldwide, such as Australia, New Zealand, Hong Kong, the United States and the United Kingdom, and it helps a parent from one member country retrieve his or her abducted children from the other parent in another member country. This is to prevent parents from fleeing with their children to another country while divorce proceedings are still ongoing or pending consent from the other spouse or an Order of Court.

Alternatively, your spouse may apply for an injunction to prevent you from taking your child out of Singapore. Therefore, it is advisable that you do not relocate with your child without consent from your spouse or an Order of Court.

What you can do if your spouse does not agree to the relocation

Having your spouse disapprove of the relocation with your child would be a very normal reaction as no parent would want to be separated from his or her child. However, there is an option of applying for an Order of Court for permission to relocate with your child.

In deciding whether relocation with your child should be allowed, the court will look at what is in the best interest for the child. The Court of Appeal stated in the hallmark relocation case of BNT v BNS [2014] SGHC 187 that deciding what would be in the best interest of a child in relocation cases would be “an intensely fact-centric exercise” where factors such as “the reasonable wishes of the primary caregiver” and “the child's loss of relationship with the left-behind parent” would have to be considered.

These two factors were considered in the recent case of UFZ v UFY [2018] SGHCF 8, where the High Court relied on the applicable legal principles in BNT v BNS. After considering the factors at hand, care and control of the three children was granted to the Mother and she was allowed to relocate her children from Singapore to the UK. The Mother's wishes to relocate were reasonable as her extended family in the UK was able to provide the support that she needed and the Father already travels frequently to Europe for business, thus mitigating any potential loss of relationship between him and the children.

Other factors that the courts might consider include the child's education, better familial support in the home country, better job prospects overseas and choosing to live together with a new spouse overseas after remarriage.

Can I still ask for maintenance even after relocating with my child?

As an expat wife relocating overseas with your child, you would probably be concerned with whether it is possible to apply for maintenance for you and your child. You would be happy to hear that you can make an application for maintenance, but you would have to do so personally at the Family Justice Courts Building in Singapore.

The calm after a storm – relocating with your child is possible

Going through a divorce far away from home is a tumultuous process and we understand that relocating back to be with your loved ones is the best way for you to rebuild your life. Of course, given the option to relocate, no mother would want to leave her child behind.

Choosing to relocate with your child will not be easy, especially considering how obtaining the requisite consent from your husband to separate him from his own child would be almost impossible. If you require greater clarification on this area of law of relocating with your child, do engage a family lawyer for advice and for help on how to come up with a strong parenting plan to convince the court that relocating with your child is indeed in the best interest of all parties involved. Ultimately, given the serious impact that relocation will have, it is important that the relevant factors are considered and that the welfare of the child continues to be the paramount concern.

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Category: Article