5 … the Husband bears the burden of showing firstly that India is an available forum and secondly that India is clearly or distinctly more appropriate than Singapore to determine the dispute.

6 As noted in TGT v TGU [2015] SGHC 10 (“TGT v TGU”) (at [21]), a foreign court will be available if it has “competent jurisdiction” or “it is open to the plaintiff to institute proceedings as of right in that forum”. If the foreign court is unavailable, this would foreclose the Spiliada inquiry altogether: see TGT v TGU (at [24]).

7 In the present case, the Husband did not file any expert affidavit to show that India is a competent jurisdiction to hear the Wife’s application for judicial separation or that the Wife is entitled to institute proceedings for judicial separation as of right in India. While the Husband did exhibit a correspondence dated 18 August 2024 by his lawyers in India, that would not suffice. As noted by the Court of Appeal in Pacific Recreation Pte Ltd v S Y Technology Inc and Another Appeal [2008] SGCA 1 (at [64]):

If a party has previously sought the opinion of a foreign law expert and has obtained such an opinion in some private correspondence, in order for that correspondence to be admitted, it must be contained in an affidavit of the expert himself and not the party to whom the opinion was addressed.

8 Further, as noted at [85] of the same case:

Even though the expert may submit his conclusions, he must present the materials and the grounds he uses to make his conclusions. The expert may not usurp the function of the court and present his finding. Further he cannot decide the issue by applying the law to the facts without setting out the law and the reasoning process.

9 I find, in this regard, that there was a failure on the part of the Husband’s lawyers in India to set out the law and the reasoning process when they expressed their belief that the domicile requirement in the ongoing divorce proceedings in India “has already been sufficiently addressed by the court in India when accepting the petition and sending summons to Singapore”. Hence, even if the correspondence had been admitted, I would have accorded little weight to the expert opinion.

10 Additionally, it is important to bear in mind that the dispute in the present case concerns a writ for judicial separation filed by the Wife. As noted by Professor Leong Wai Kum in Elements of Family Law in Singapore (3rd Edition) at pp. 175 -176, judicial separation offers only provisional relief from an unhappy marriage. This may be contrasted with divorce which terminates the marital relationship with finality. Both proceedings are distinct as the plaintiff in an application for judicial separation is seeking only temporary relief and is not terminating the marriage.

11 I note that the opinion expressed by the Husband’s lawyers in the correspondence centres on the ongoing divorce proceedings in India with only a passing mention of “judicial separation”. No elaboration was provided to shed light on the law concerning judicial separation in India. Without any details, there is simply no basis for this court to make a determination that the Wife is entitled to institute proceedings for judicial separation as of right in India, bearing in mind that judicial separation is distinct from divorce.

12 As the Husband has failed to discharge the burden of proving that India is an available forum, this would foreclose the Spiliada inquiry altogether. On this ground alone, the application for stay must be denied.

13 In any event, on the assumption that India is an available forum, I find that the Husband has not discharged the burden of showing that India is clearly or distinctly a more appropriate forum than Singapore.

1. That the ancillary matters in FC/D 1940/2024 (“D 1949”) be stayed on the basis of forum non conveniens, i.e., that Singapore is not an appropriate forum in which to determine the action herein, and that India is an available and more appropriate forum for the action herein to be determined;

2. Such further or other relief as the Honourable Court deems fit; and

3. That the Plaintiff shall pay the costs of this application.

As Lord Sumption put it in the UK Supreme Court’s decision in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160 (“Virgin Atlantic”) at [17], res judicata is a “portmanteau term which is used to describe a number of different legal principles with different juridical origins”. For present purposes, we need concern ourselves with only three such “distinct but interrelated” principles, namely: (a) cause of action estoppel; (b) issue estoppel; and (c) what is known as either the “extended” doctrine of res judicata or the defence of “abuse of process”: see the decision of Sundaresh Menon JC in Goh Nellie v Goh Lian Teck [2007] 1 SLR(R) 453 (“Goh Nellie”) at [17]–[25]. Broadly speaking, these three principles operate to preclude litigants from making arguments that were previously rejected by a court or tribunal, or that they ought to have advanced on an earlier occasion. Underlying all three principles is the policy that litigants should not be twice vexed in the same matter, and that the public interest requires finality in litigation.

The requirement that the subject matter of both proceedings be identical encapsulates a number of discrete conceptual strands. Firstly, the issues must be identical in the sense that the prior decision must traverse the same ground as the subsequent proceeding and the facts and circumstances iving rise to the earlier decision must not have changed or should be incapable of change. Where this is not the case, issue estoppel may not arise.

With regard to the division of matrimonial assets and spousal maintenance, I wish to state that I do not own any property in Singapore apart from my bank account which is used to handle legal fees. On the other hand, to my knowledge, both the Plaintiff and I own bank accounts in India. While the Plaintiff owns a property in Singapore in her sole name, I am of the view that this may be sufficiently dealt with in the India divorce proceedings …

In my judgment, the assessment of which side of the line an issue falls should be approached from a commonsensical perspective, balancing between the important public interest in securing finality and in ensuring that the same issues are not repeatedly litigated on one hand, and on the other, the private interest in not foreclosing a litigant from arguing an issue which, in substance, was not the central issue decided by a previous court. In this regard, I find Lord Upjohn’s dictum in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 (“Carl Zeiss”) at 947 apposite:

All estoppels are not odious but must be applied so as to work justice and not injustice and I think the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind.

In determining whether the ambient circumstances of the case give rise to an abuse of process, the court should not adopt an inflexible or unyielding attitude but should remain guided by the balance to be found in the tension between the demands of ensuring that a litigant who has a genuine claim is allowed to press his case in court and recognising that there is a point beyond which repeated litigation would be unduly oppressive to the defendant.

… the Singapore courts are creatures of statute, and the jurisdiction of a court must be statutorily conferred upon that court by the statute constituting it: see Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 at [14]–[20]; Lee Wee Ching v Wang Piao [2024] 1 SLR 350 at [21].

For example, if the parties’ marriage had been terminated by a valid foreign divorce judgment, they will not be able to obtain a divorce in the Singapore court (as there is no longer any marriage to dissolve) and consequently, the court has no power under s 112 to divide the parties’ matrimonial assets. This is so even if both the parties agree to submit to the jurisdiction of the Singapore court and ask the court for an order under s 112. The parties’ agreement cannot by itself confer jurisdiction on the court.

It is well established that the existence of parallel proceedings is a relevant factor in the forum non conveniens analysis (MAN Diesel & Turbo SE and another v IM Skaugen SE and another [2020] 1 SLR 327 (“MAN Diesel”) at [154], citing Virsagi Management (S) Pte Ltd v Welltech Construction Pte Ltd and another appeal [2013] 4 SLR 1097 (“Virsagi”) at [38]; TDX v TDY at [18]). The existence of parallel proceedings gives rise to concerns of duplication of resources and the risk of conflicting judgments (MAN Diesel at [154]). However, the weight to be given to the existence of parallel proceedings depends on the circumstances, including the degree to which the respective proceedings have advanced, and the degree of overlap of issues and parties (Virsagi at [39], referring to commentary of Professor Yeo Tiong Min in Halsbury’s Laws of Singapore vol 6(2) (LexisNexis, 2009) at para 75.094).

In this regard, I ought also to point out that the pending divorce proceedings instituted by the Husband in India is not for the same relief as that claimed by the Wife in the present maintenance application in Singapore. If the Husband were to succeed in his divorce petition, it would result in the termination of the marriage, with the Wife being entitled to apply for post-divorce maintenance. On the other hand, the maintenance application by the Wife pursuant to s 69 of the Women’s Charter is premised on the subsistence of the marriage. Thus both proceedings are distinct and do not cover the same grounds.

Dispute as to jurisdiction, etc.

325.—(1) A defendant who wishes to dispute the jurisdiction of the Court in the proceedings by reason of any such irregularity referred to in rule 324 or on any other ground must enter an appearance and within the time limited for serving a defence apply to the Court for—

(a) an order setting aside the writ or service of the writ on him;

(b) an order declaring that the writ has not been duly served on him;

(c) the discharge of any order giving leave to serve the writ on him out of the jurisdiction;

(d) the discharge of any order extending the validity of the writ for the purpose of service;

(e) the protection or release of any property of the defendant seized or threatened with seizure in the proceedings;

(f) the discharge of any order made to prevent any dealing with any property of the defendant;

(g) a declaration that in the circumstances of the case the Court has no jurisdiction over the defendant in respect of the subject- matter of the claim or the relief or remedy sought in the action; or

(h) such other relief as may be appropriate.

(2) A defendant who wishes to contend that the Court should not assume jurisdiction over the action on the ground that Singapore is not the proper forum for the dispute must —

(a) enter an appearance; and

(b) within the time limited for serving a defence, or such other longer period as the Court may allow, apply to the Court for an order staying the proceedings.

…

(6) Except where the defendant makes an application in accordance with paragraph (1), the appearance by a defendant shall, unless the appearance is withdrawn by leave of the Court under rule 429, be treated as a submission by the defendant to the jurisdiction of the Court in the proceedings.

The district judge did not err in finding that the parties’ French nationality was of limited significance and that greater weight should be given to the fact of the parties’ residence in Singapore as a connecting factor. As stated in BDA at [29], nationality per se is of limited significance; residency and/or domicile are better indicators of the strength of a party’s connection to a particular forum. Indeed, the Husband has spent little of his adult life either residing or working in France; the son has also spent very little time on French soil. In contrast, the parties have lived in Singapore for the last six or seven years. The Wife also stated in her affidavits that she only acquired French citizenship in 2006 in order to visit her in-laws more easily and to oblige the Husband. Thus, in the light of the parties’ residence in Singapore, the Husband had a greater evidential burden to adduce other convincing countervailing factors in favour of a stay (BDA at [24]).

Although the district judge was also correct in stating that the Singapore courts could deal with the division of worldwide assets in ancillary hearings, some emphasis should also be placed on the fact that the matrimonial properties are located in foreign jurisdictions. For instance, in Mala Shukla, the fact that the parties there had immovable property in India but not Singapore was a pertinent factor in favour of a stay (Mala Shukla at [54]). Similarly here, the fact that the parties have immovable property in France but not Singapore should be a supporting factor for a stay of the Singapore proceedings.

(1) The doctrine of forum election

An application made by the defendant to put the plaintiff to an election is the first way in which a lis alibi pendens may affect the jurisdiction of the court under private international law. This will apply only in a common plaintiff situation. The court in Yusen Air further elaborated (at [27]) on the approach to be taken in such cases:

In our judgment, when a plaintiff sues the same defendant in two or more different jurisdictions over the same subject matter, the defendant can take up an application to compel the plaintiff to make an election as to which set of proceedings he wishes to pursue. For the purposes of an election, the considerations of forum conveniens do not come into play. However, the defendant would need to demonstrate a duplicity of actions in the different jurisdictions. Once this is established, the burden of proof then shifts to the plaintiff to justify the continuance of the concurrent proceedings by showing ‘very unusual circumstances’. If the plaintiff fails to demonstrate such unusual circumstances, he would have to make an election. [emphasis added]

It is important to note that the court in Yusen Air made clear that when the plaintiff is electing which forum to proceed in, any questions regarding which forum is the more appropriate, or natural, forum for the dispute to be tried are irrelevant.

32 … the court, when asking the plaintiff to elect which forum he wishes to proceed in, is not deciding on the appropriateness of the court in exercising its jurisdiction over the dispute – unlike in the situation relating to a stay of proceedings where the doctrine of forum non conveniens is applied. That is the reason why the question of whether Singapore is the natural forum to hear the dispute is not relevant when the plaintiff is asked to make an election. The court is merely managing its own process…

33 Karthigesu JA in Yusen Air ([27] supra) was also at pains to point out that the doctrine of forum non conveniens is not superseded by the doctrine of forum election in common plaintiff cases (at [34]):

It is also our considered view that the plaintiff’s election is not the only way to resolve this issue. Apart from compelling the plaintiff to elect, it remains open to the defendant to take up an application for a stay of local proceedings or a restraint of foreign proceedings if the defendant wishes to have the action tried in one of the jurisdictions where the plaintiff has commenced an action.

35 When the plaintiff is put to an election, and he then elects to continue his claim in Singapore, the court will enjoin the plaintiff to stop all other foreign proceedings by way of an injunction. At this juncture, the defendant may be happy for the dispute to be heard in Singapore, and nothing more needs to be done. However, where the defendant does not want proceedings to continue in Singapore, it is open to it to rely on the doctrine of forum non conveniens to argue that the overseas forum is clearly or distinctly the more appropriate forum for the dispute to be heard, and therefore to have the Singapore proceedings stayed. This is clear from the observations of Karthigesu JA in Yusen Air (see above at [33]).

36 On the other hand, if the plaintiff elects to pursue its claim in the overseas forum (instead of in Singapore) but the defendant wants the proceedings to continue in Singapore, the latter may seek an anti-suit injunction from the Singapore courts to prevent the plaintiff from carrying on with the foreign proceedings. The plaintiff’s election does not, ipso facto, preclude the granting of such an injunction. Where, however, the defendant is happy to have the dispute heard abroad, it would have (in substance) obtained the same outcome pursuant to an application to stay proceedings under the doctrine of forum non conveniens. It has been said that in such a situation the court will discontinue the local proceedings (rather than just grant a stay): see the English High Court decision of Australian Commercial Research and Development Ltd v ANZ McCaughan Merchant Bank Ltd [1989] 3 All ER 65 at [70] as well as Yusen Air at [32] (citing Smart, “Lis Alibi Pendens: Staying or Discontinuing English Proceedings” [1990] LMCLQ 326 at 329)). However, we take the view that the court is not restricted to discontinuing the local proceedings, and may, in the appropriate circumstances, grant a stay of proceedings instead. This might be the case where the foreign court’s jurisdiction is being challenged (see, for example, the English High Court decision of AG v Arthur Andersen & Co The Independent (31 March 1988) and Yusen Air at [32]), or where the action in Singapore is brought to obtain security by way of a Mareva injunction or attachment of assets (see, for example, the Singapore High Court decision of Multi-Code Electronics Industries (M) Bhd v Toh Chun Toh Gordon [2009] 1 SLR(R) 1000 (“Multi-Code Electronics”)).

37 It should therefore be clear that the doctrine of forum election, as a mechanism of case management, is never finally dispositive of where the dispute will be heard unless the defendant has no objections to the plaintiff’s election.