Family law in Singapore: overview

A Q&A guide to family law in Singapore.

The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.

To compare answers across multiple jurisdictions visit the Family Country Q&A tool.

This Q&A is part of the global guide to Family law. This contribution, in its original form, first appeared in Family Law (2nd edition), General Editor James Stewart of Penningtons Manches LLP.

Family Law was published in association with the International Academy of Matrimonial Lawyers.

For a full list of jurisdictional Q&As visit www.practicallaw.com/family-mjg.

Contents

Jurisdiction and conflict of law

Regulatory framework

1. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of children and give a brief overview of which courts will have jurisdiction to hear the dispute?

Sources of law

The Singapore legal system traces its historical roots to the English common law that was received during its colonial past. The two primary sources of law in relation to marriage, marital breakdown and the welfare of children are:

  • Legislative enactments.

  • The common law as applied in Singapore.

The Women's Charter (Cap 353) is the main legislation dealing with the substantive law relating to the breakdown of non-Muslim marriages in Singapore. Islamic divorce law is codified in the Administration of Muslim Law Act (Cap 3).

The main statutes governing the welfare of children in Singapore are the Guardianship of Infants Act (Cap 122) and Children & Young Persons Act (Cap 38). A series of reforms in the course of 2013 and 2014 led to the enactment of the Family Justice Act 2014. This Act introduces substantial structural changes to the family justice system and implements various reforms of family law in Singapore. A comprehensive new court structure is now in place for the resolution of all family law matters (see below, Court system).

Court system

The Family Justice Act 2014 established a comprehensive new structure, known as the Family Justice Courts, to adjudicate on and resolve all family law matters. The Family Justice Courts consist of the:

  • Family Courts.

  • Youth Courts.

  • Family Division of the High Court.

These courts handle all family-related proceedings including divorces, children and parental rights, juveniles and youths, probate, succession and mental capacity proceedings.

The Family and Youth Courts are courts of first instance. The Family Division of the High Court exercises both original and appellate jurisdiction. Appeals to the highest court, the Court of Appeal, are available as of right for first instance decisions of the Family Division of the High Court. Leave to appeal is generally required in all other cases.

Proceedings before the Family Justice Courts are usually held in chambers. Open court proceedings are generally held for contested divorces, personal protection summons trials and certain types of maintenance applications and appeals to the higher courts.

The recent Family Justice Rules 2014 and accompanying practice directions are aimed at reducing acrimony in family proceedings, simplifying and expediting legal processes. They also empower the courts to adopt a judge-led pro-active approach in appropriate cases. For example, the Rules contain provisions on the appointment of Child Representatives and Family Court Friends to assist unrepresented litigants.

Jurisdiction

2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and children proceedings?

Divorce

Section 93(1) of the Women's Charter grants jurisdiction to Singapore courts in relation to proceedings for divorce, judicial separation or nullity of marriage only if either of the parties to the marriage is:

  • Domiciled in Singapore at the start of proceedings.

  • Habitually resident in Singapore for at least three years before the start of proceedings.

In proceedings for nullity of marriage on the ground that a marriage is void or voidable, the court can, even where the two requirements above are not fulfilled, grant relief where both parties to the marriage reside in Singapore at the time proceedings commence.

No writ for divorce can be filed unless at the date of filing, three years have passed since the date of the marriage (section 94(1), Women's Charter). There are exceptions, for example, a writ for divorce can be filed before three years have passed on the grounds of exceptional hardship suffered by the claimant or exceptional depravity on the part of the defendant.

Property

Proceedings for the division of matrimonial property are ancillary to the granting of a judgment for divorce, judicial separation or nullity. However, spouses can commence property litigation under ordinary principles of property law.

Children

The statutory restrictions above do not bar proceedings relating only to children of married or unmarried couples. Parties residing in Singapore can file such proceedings under the Guardianship of Infants Act, subject to the court declining to exercise jurisdiction on the principles of forum non conveniens (that is, where an appropriate and more convenient alternative forum exists in which to try the action).

Domicile and habitual residence

3. How do the concepts of domicile and habitual residence apply in relation to divorce, financial arrangements, and children?

Domicile

Tan Yock Lin (author of Conflict Issues in Family & Succession Law (Butterworths Asia, 1993)) writes that "domicile simply means home". The High Court described "domicile" in these terms: "The domicile of a person is determined by the intention of the person's choice, not of the place where he chooses to live, but the place where he chooses to die. In modern times, it is sufficient to include the place where the person intends to return permanently at the end of his or her sojourn elsewhere in the world." (TQ v TR [2007] 3 SLR(R) 719).

A Singapore citizen is presumed to be domiciled in Singapore until the contrary is proven (section 3(5), Women's Charter). A wife's domicile is determined by reference to the same factors as apply to any other individual capable of having an independent domicile (section 47(1), Women's Charter).

An individual's domicile in a given case is a question of fact. An individual may also have domicile acquired by choice. The Family Court held that domicile of choice in Singapore is established by proof, beyond a mere balance of probabilities, of actual residence in Singapore and an intention of permanent or indefinite residence (Didier Von Daniken v Sanaa Von Daniken Born El Kolaly [2005] SGDC 80).

Habitual residence

In Ho Ah Chye v Hsinchieh Hsu Irene [1994] 1 SLR(R) 485, the High Court referred to the definition of "habitual residence" in the English case of Cruse v Chittum [1974] 2 All ER 940 as follows: "'Habitual residence' denoted a regular physical presence enduring for some time. Ordinary residence was different from habitual residence because the latter was something more than the former and was similar to the residence required as part of domicile, but there was no need of animus, so necessary in domicile."

A later High Court decision held that habitual residence was the same as ordinary residence, and that these concepts referred to a voluntarily adopted residence for settled purposes. In this case, the claimant was often travelling and away from Singapore for 12 out of the previous 36 months. The court held that she had failed to prove the jurisdictional requirement for divorce of habitual residence of three years (Lee Mei-Chih v Chang Kuo Yuan [2012] 4 SLR 1115).

Conflict of law

4. What procedure applies for a party applying to stay proceedings in favour of a foreign jurisdiction? What factors do local courts take into account when determining forum issues?

Procedure

A party must apply for dispute jurisdiction or seek a stay of Singapore proceedings in favour of a foreign jurisdiction before the time limit for filing a defence to a given Singapore action has expired.

Factors

Decisions from Singapore's Court of Appeal such as Oriental Insurance Co Ltd v Bhavani Stores Pte Ltd [1997] 3 SLR(R) 363 and Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377 affirm that the principles applied in Singapore to the question of a stay of proceedings in favour of a foreign jurisdiction on the ground of forum non conveniens (that is, where an appropriate and more convenient alternative forum exists in which to try the action) are those generally set out in the English decision of Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460.

In VH v VI [2008] 1 SLR(R) 742, the High Court reiterated the applicability of those principles in the matrimonial context as follows:

  • The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for trial.

  • The burden of proof is generally on the defendant to persuade the court to grant a stay. If the court is satisfied that there is another available forum which is prima facie the appropriate forum for trial of the action, the burden will shift to the claimant to show that there are special circumstances for which justice requires that the trial should however take place in Singapore.

  • The defendant must not only show that the forum of the action is not the natural or appropriate forum for the trial. He must also establish that there is another available forum that is clearly or distinctly more appropriate than the forum of the action.

  • The "natural forum" is that with which the action has the most real and substantial connection. These include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction.

  • If the court concludes that there is no other available forum that is clearly more appropriate for the trial of the action, it will usually refuse a stay.

  • If the court concludes that there is some other available forum that is prima facie clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances for which justice requires that a stay should however be granted.

In VH v VI, the question was whether Singapore divorce proceedings should be stayed in favour of a Swedish court. The High Court held that the crucial question was not whether Sweden was an appropriate forum, but whether Sweden was a more appropriate forum than Singapore. The parties and children were all resident in Singapore. The husband worked in Singapore and the children attended school in Singapore. The parties owned several properties in Singapore. Both spouses were initially content to proceed with the divorce in Singapore. The husband was held to be unable to show that Sweden was a more appropriate forum than Singapore. The judge therefore found it unnecessary to consider the second Spiliada principle above.

An important factor in family cases is the place where children of the marriage are settled (Low Wing Hong Alvin v Kelso Sharon Leigh [1999] 3 SLR(R) 993, Mala Shukla v Jayant Amritanand Shukla [2002] 1 SLR(R) 920).

In ABR v ABS [2009] SGHC 196, the facts of one spouse living and working in Singapore and both parties having Singapore permanent residence was insufficient to tilt the balance in favour of litigation in Singapore, when the child concerned was living and studying in India.

In BDA v BDB [2013] 1 SLR 607, a wife claimed for maintenance in Singapore in late 2011. Both spouses were Indian citizens. Both parties had been Singapore permanent residents since 2009. In 2008, the couple moved to Singapore from Hong Kong. In 2010, the wife and the parties' son left for India. The wife expressed the intention to return to live in Singapore. The husband remained resident in and employed in Singapore. The husband filed for divorce in India a couple of months after the wife's application for maintenance. The court held that nationality per se was of limited significance, whereas residency and/or domicile were better indicators of the strength of a party's connection to a particular forum. The court therefore refused to stay the Singapore maintenance claim.

 

Pre- and post-nuptial agreements

Validity of pre- and post-nuptial agreements

5. To what extent are pre- and post-nuptial agreements binding?

Singapore law does not treat pre-nuptial and post-nuptial agreements as being automatically binding. Spouses may challenge such agreements, as these are subject to the scrutiny of the court, to determine whether and to what extent pre- and post-nuptial agreements are enforceable. The most significant recent decision concerning pre-nuptial and post-nuptial agreements is the Court of Appeal decision in TQ v TR [2009] 2 SLR(R) 961 (see below).

The Singapore courts have long held that pre-nuptial agreements that enable a spouse to negate a marriage and its legal obligations are against public policy and unenforceable. However, agreements that regulate marital relations (for example, dictating how the couple should live and conduct themselves as spouses in line with Chinese customary practices) are not invalid (Kwong Sin Hwa v Lau Lee Yen [1993] 1 SLR(R) 90).

The courts have jurisdiction to review and vary agreements relating to maintenance and custody (sections 116, 119 and 129, Women's Charter). When exercising powers to divide marital assets, the court must have regard to any agreement between the parties regarding the ownership and division of matrimonial assets made in contemplation of a divorce (section 112(2)(e), Women's Charter).

TQ v TR [2009] 2 SLR(R) 961 decided that, "…where one or more of the provisions of the [Women's Charter] expressly covers a certain category of pre-nuptial agreement, then that provision or those provisions will be the governing law. Where, however, the Act is silent, then the legal status of the pre-nuptial agreement concerned will be governed by the common law… any pre-nuptial agreement which contravenes any express provision of the Act and/or the general or specific legislative policy embodied within the Act itself will not pass muster under the common law."

Where a pre-nuptial agreement relates to the maintenance of a wife and children, TQ v TR decided that the courts cannot be barred from reviewing it. Any covenant to preclude judicial scrutiny of such agreements is not valid. The courts are especially vigilant and reluctant to enforce agreements that are apparently not in the best interests of the children. There is a presumption that pre- and post-nuptial agreements relating to the welfare of the children are unenforceable unless the party relying on the agreement proves that it is in the best interests of the children concerned.

A pre- or post-nuptial agreement cannot be enforced in and of itself. Such an agreement is just one of the factors considered by the court in exercising its power to divide the matrimonial assets. A valid agreement will, to the extent that it is considered relevant, be reflected in an order of the court. Such an agreement cannot exclude the jurisdiction of the court (AOO v AON [2011] 4 SLR 1169, Wong Kien Keong v Khoo Hoon Eng [2014] 1 SLR 1342 holding that the approach of English courts in Granatino v Radmacher [2011] 1 AC 534 is inconsistent with Singapore law).

The Court of Appeal held that if a pre-nuptial agreement is "entered into by foreign nationals and that agreement is governed by and valid according to foreign law, significant (even critical) weight to the terms of the agreement would be accorded". Where the agreement concerned is valid according to its proper law and not contrary to any overriding public policy of Singapore, it can be taken into account by the court in deciding the issues covered by the agreement (TQ v TR, ibid).

Post-nuptial agreements have generally also been enforced by the court. In Tan Siew Eng v Ng Meng Hin [2003] 3 SLR(R) 474, one of the clauses of such an agreement called for the wife to start divorce proceedings. The wife did not do so. It was accepted by the husband that she had repudiated the agreement. However, the courts decided to enforce the terms of the agreement relating to the division of matrimonial assets.

 

Divorce, nullity and judicial separation

Recognition of foreign marriages/divorces

6. Are foreign marriages/divorces/civil partnerships recognised?

Marriages

A foreign marriage may be treated as invalid for lack of capacity or other grounds of invalidity under the law of the place where the marriage took place (section 105 and 108, Women's Charter). Formal validity of a foreign marriage is governed by the law of the place where the marriage was carried out (Arpinya Rongchotiawattana v Wee Oh Keng [1997] 3 SLR(R) 378).

A foreign marriage is valid under Singapore law if both parties have capacity to marry under the laws of their respective country (Re Maria Huberdina Hertogh; Inche Mansor Adabi v Adrianus Petrus Hertogh [1951] MLJ 164 and Moh Ah Kiu v Central Provident Fund Board [1992] 2 SLR(R) 440).

Divorces/annulment

Singapore courts generally recognise a foreign divorce as a matter of international comity and where recognition of the divorce accords with public policy and the court's sense of "good morals". The validity of a foreign divorce is not tested solely by reference to the domicile of the parties (Ho Ah Chye v Hsinchieh Hsu Irene [1994] 1 SLR(R) 485). A foreign divorce will be recognised where it has been pronounced under circumstances that do not offend natural justice (Ng Sui Wah Novina v Chandra Michael Seitawan [1992] 2 SLR(R) 111).

In Weschler Mouantri Andree Marie Louise v Mouantri Karl-Michael and Another [2009] SGHC 83, the High Court held that the courts could not grant a divorce to a party whose marriage had already been dissolved by the Swedish Court, which jurisdiction was recognised.

Civil partnerships

Singapore does not recognise civil partnerships. Marriages between persons of the same gender are void under the Women's Charter.

Divorce

7. What are the grounds for divorce?

Divorce

There is only one ground for divorce in Singapore, which is the irretrievable breakdown of the marriage. The following five facts prove an irretrievable breakdown of the marriage (sections 95(3)(a) to (e), Women's Charter):

  • The defendant has committed adultery and the claimant finds it intolerable to live with the defendant.

  • The defendant has behaved in such a way that the claimant cannot reasonably be expected to live with the defendant.

  • The defendant has deserted the claimant for a continuous period of at least two years immediately preceding the filing of the writ.

  • The parties to the marriage have lived apart for a continuous period of at least three years immediately preceding the filing of the writ and the defendant consents to a judgment being granted.

  • The parties to the marriage have lived apart for a continuous period of at least four years immediately preceding the filing of the writ.

Nullity

A spouse can file for a judgment of nullity in respect of his or her marriage (section 104, Women's Charter). A marriage may be held void or voidable.

A marriage is void where (section 105, Women's Charter):

  • Either party is below the age of 18.

  • The parties are within prohibited degrees of relationship as set out in the Charter, and have not obtained a special statutory marriage licence to wed.

  • Either party has committed bigamy.

  • The parties are not respectively male and female.

  • The marriage is not formally solemnised.

A marriage can be held voidable on the grounds of (section 106, Women's Charter):

  • Non-consummation owing to the incapacity of either party to consummate it or wilful refusal of the defendant to consummate it.

  • Either party not validly consenting to the marriage, whether as a consequence of duress, mistake, unsoundness of mind or otherwise.

  • Either party, although capable of giving a valid consent, suffering (whether continuously or intermittently) from a mental disorder so as to be unfit for marriage.

  • The defendant suffering from venereal disease in a communicable form.

  • The defendant being pregnant by some person other than the claimant.

A claim that a marriage is voidable can be defeated if it can be shown that the claimant, knowing that it was open to him to have the marriage avoided, so conducted himself to lead the other spouse reasonably to believe that he would not seek to do so (section 107(1), Women's Charter). Claims for nullity (on the second to fifth grounds above) must be made within three years from the date of marriage.

Judicial separation

Applications for judicial separation can be made on proof of one of the same five facts to prove an irretrievable breakdown of the marriage (see above, Divorce) (section 101(1), Women's Charter).

Spouses who are separated no longer need to cohabit with each other (section 101(2), Women's Charter). A judicially separated spouse cannot claim in the intestacy of the other spouse (section 103, Women's Charter).

Finances/capital and property

8. What powers do the courts have to allocate financial resources and property on the breakdown of marriage?

Section 112(1) of the Women's Charter empowers the court, when granting a judgment of divorce, judicial separation or nullity of marriage, to order the division or sale of matrimonial assets, in such proportions as the court thinks just and reasonable.

 
9. What factors are relevant to the exercise of the court's powers?

The court's power is discretionary. Where a wife disavowed liability (in affidavits and a formal agreement) for a property that was initially loss-making, she was precluded from claiming a share in the property after it turned out that the property had become a lucrative investment (Ong Boon Huat Samuel v Chan Mei Lan Kristine [2007] 2 SLR(R) 729). Awarding no share of matrimonial assets was held to be justified only where a spouse had made no contributions to the marriage whatsoever (Chan Tin Sun v Fong Quay Sim [2015] SGCA 2).

Unless a judgment for divorce, judicial separation or nullity has been pronounced, the court generally has no jurisdiction to hear matters concerning the division of assets (Ng Sui Wah Novina v Chandra Michael Setiawan [1992] 2 SLR(R) 111). Since 2011, applications for financial relief following foreign matrimonial proceedings are permitted under Chapter 4A Part X of the Women's Charter (see Question 16).

Divisible matrimonial assets are defined as any asset of any nature acquired during marriage by one or both parties (section 112(10), Women's Charter). Any asset acquired by a party before marriage is not treated as a matrimonial asset unless:

  • The asset is ordinarily used or enjoyed by both parties or one or more of their children for shelter or transportation or for household, education, recreational, social or aesthetic purposes.

  • The asset has been substantially improved during the marriage by the other party or both parties.

Any asset acquired at any time by gift or inheritance is not divisible, unless substantially improved during the marriage by the other party or by both parties to the marriage.

A party claiming rights over assets of the other spouse acquired before marriage, or by gift or inheritance, must prove direct significant contributions to their substantial improvement (Chen Siew Hwee v Low Kee Guan [2006] 4 SLR(R) 605).

In Wan Lai Cheng v Quek Seow Kee [2012] 4 SLR 405, it was clarified that:

  • Gifts from third parties are excluded from the pool of matrimonial assets, unless the substantial improvement exception is satisfied (see above).

  • Pure inter-spousal gifts (that is, gifts that are not acquired by the donee by way of a third party gift or an inheritance) are included in the pool of matrimonial assets without any additional conditions.

  • Inter-spousal re-gifts (that is, an unconditional gift made by a donor spouse of what was originally a third party gift or an inheritance) are not included in the pool of matrimonial assets. The substantial improvement exception is not applicable to inter-spousal re-gifts.

The courts have discretion to exclude de minimis inter-spousal gifts from the pool of divisible assets (Tan Hwee Lee v Tan Cheng Guan [2012] 4 SLR 785). A gift made under an agreement in contemplation of divorce can be excluded from division if it is clearly inequitable to divide it.

The power to divide assets under the Charter is exercised in a "broad-brush" fashion. There is no detailed account of every sum each party has paid or incurred in the acquisition of the matrimonial assets, or meticulous investigation of the obligations rendered to the family (NK v NL [2007] 3 SLR(R) 743).

There is no legal presumption that the just and equitable division of assets under section 112 of the Women's Charter means an equal split of the assets (Yow Mee Lan v Chen Kai Buan [2000] 2 SLR(R) 659; Lim Choon Lai v Chew Kim Heng [2001] 2 SLR(R) 260; Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520).

The statutory criteria considered under section 112 include the:

  • Extent of contributions in money by either party.

  • Parties' property or work to the acquisition, improvement or maintenance of marital assets.

  • Debts or obligations undertaken for the benefit of the family.

  • Needs of any children.

  • Extent of contributions to care for the family and relatives.

  • Income, earning capacity and financial needs of the parties in the foreseeable future.

  • Duration of the marriage.

  • Age of the parties.

 
10. What is the court's current position on the division of assets?

Generally for short, childless marriages, a wife tends to get a share of the matrimonial assets which is close to her direct contribution to their acquisition and where possible, lump sum maintenance (Ong Boon Huat Samuel v Chan Mei Lan Kristine [2007] 2 SLR(R) 729 and Koh Kim Lan Angela v Choong Kian Haw [1993] 3 SLR(R) 491).

The High Court observed that, in the division of assets in long marriages "the proportion awarded to homemaker wives who have made modest financial contributions for marriages lasting 17 to 35 years with children, ranged between 35% to 50% of the total matrimonial assets… Where the wife also worked and supported the family financially, the courts have not hesitated to award her up to 60% of the total assets… The exceptions, where the apportionment in favour of the wife was less than 35%, typically concerned cases where the total pool of matrimonial assets had been very substantial, in excess of S$100 million." (Chan Yuen Boey v Sia Hee Soon [2012] 3 SLR 402).

The Court of Appeal emphasised the need for a holistic assessment of direct monetary contributions and all other indirect contributions in deciding on the division of assets. It held that it was the duty of the court to recognise the limitations of using the parties' direct financial contributions as a starting point, and to avoid entering into a "mechanistic accounting procedure … in the form of an arid and bloodless balance sheet". Therefore, "indirect contributions of every stripe should be taken fully into account" (BCB v BCC [2013] 2 SLR 324).

Failure to provide full and frank disclosure of assets and means can lead the court to draw adverse inferences against the culpable party. In Chan Siew Fong v Chan Fook Kee [2002] 1 SLR(R) 93, a wife in a 30-year marriage received 100% of the sole disclosed marital asset, in circumstances where the court disbelieved that the husband had made full and frank disclosure of assets abroad. In Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157, the Court of Appeal held that a court faced with an absence of full and frank disclosure had at least two alternatives. It could either give a higher proportion of assets to the "innocent" spouse, or put a value to assets held to be "undisclosed". In this case, the court approved the lower court's remedy of adding a further 10% to the marital assets as representing the husband's undisclosed assets.

Finances/maintenance

11. How does ongoing spousal maintenance operate following marital breakdown?

Only wives can claim spousal maintenance. Maintenance can be claimed on an interim basis pending the hearing of matrimonial proceedings and at the final hearing of ancillary matters.

The court must have regard to all the circumstances of the case when awarding maintenance (section 114(1), Women's Charter). This includes income, earning capacity, property, the parties' age, financial resources, needs and obligations, the standard of living of the family before the breakdown of the marriage, the duration of marriage, any disability and financial and non-financial contributions.

Parties should be, as far as is practicable, put in the financial position they would have been in had the marriage not broken down and where each party properly discharged his or her financial responsibilities to the other (section 114(2), Women's Charter). There is no broad principle that a husband who has not maintained a wife during the marriage is automatically absolved of the need to do so after a divorce. In addition, a former wife must, where possible, make reasonable efforts to secure gainful employment and contribute to preserve her pre-breakdown lifestyle. The court assesses the reasonableness of a spousal maintenance claim taking into account the husband's ability to pay (Foo Ah Yan v Chiam Heng Chow [2012] 2 SLR 506).

 
12. Is it common for maintenance to be awarded on marital breakdown?

Maintenance is often claimed and awarded pending the conclusion of matrimonial proceedings as part of the ancillary matters.

 
13. What is the court's current position on maintenance on marital breakdown?

Interim maintenance pending a final divorce is usually conservative. It is intended to provide a "tide over" sum for the applicant until the final hearing. It does not usually preserve the status quo during the marriage.

Evidence of the standard of living during marriage is considered by the court as a rough estimate. A final award for maintenance usually exceeds an interim award of maintenance (Lee Bee Kim Jennifer v Lim Yew Khang Cecil [2005] SGHC 209).

A former husband has a duty to maintain his former wife to even out any financial inequalities between the spouses, taking into account any economic prejudice suffered by the wife during marriage (Tan Sue-Ann Melissa v Lim Siang Bok Dennis [2004] 3 SLR(R) 376).

Where an order for the division of the matrimonial assets is not significant in money's worth, the court may make an order of maintenance that is substantial (BG v BF [2007] 3 SLR(R) 233). The converse is also true (Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520).

Maintenance awards are determined flexibly with "a common sense dose of realities" and without reference to any single formula (Foo Ah Yan v Chiam Heng Chow [2012] 2 SLR 506).

Child maintenance

14. On what basis is child maintenance calculated?

The court can order a parent to pay maintenance for the benefit of a child of the marriage who is under the age of 21 during matrimonial proceedings (section 127, Women's Charter). Child maintenance can be sought on an interim basis and at the final hearing of ancillary matters.

A child of the marriage is any child of the husband and wife, including any adopted child and any other child (whether or not a child of the husband or of the wife) who was a member of the family of the husband and wife at the time they ceased to live together or at the time immediately preceding the institution of the proceedings, whichever first occurred (section 92, Women's Charter).

A child who is above 21 is still entitled to maintenance if he (section 69(5), Women's Charter):

  • Has a mental or physical disability.

  • Is undertaking compulsory military service.

  • Is undertaking educational or vocational training.

When ordering child maintenance, the court must have regard to all the circumstances of the case, including (section 69(4), Women's Charter):

  • The financial needs of the child.

  • Income of the parents.

  • Earning capacity (if any) of the parents.

  • Property and financial resources of the parents.

  • Any disability of the child.

  • The age of the parents.

  • The duration of the parents' marriage.

  • The standard of living enjoyed by the child before the parent ceased providing reasonable maintenance for the child.

Reciprocal enforcement of financial orders

15. What is the legal position on the reciprocal enforcement of financial orders?

There is no reciprocal enforcement legislation providing for the enforcement of foreign financial orders. A party intending to enforce such foreign orders may need to either:

  • Start a civil action based on the foreign judgment (Hong Pian Tee v Les Placements Germain Gauthier Inc [2002] 1 SLR(R) 515, Murakami Tokako v Wiryadi Louise Maria [2007] 4 SLR(R) 565).

  • Apply for financial relief after a foreign divorce under Chapter 4A Part X of the Women's Charter (Tan Poh Beng v Choo Lee Mei [2014] 4 SLR 462) (see Question 16).

A person can enforce maintenance orders against a party who lives in a reciprocating country (and vice versa) under either the:

  • Maintenance Orders (Facilities for Enforcement) Act (Cap 168) (MOFEA).

  • Maintenance Orders (Reciprocal Enforcement) Act (Cap 169) (MOREA).

Whether an application should be made under MOFEA or MOREA depends on the Act which the reciprocating country is a party to.

Financial relief after foreign divorce proceedings

16. What powers are available to the court to make orders following a foreign divorce?

Chapter 4A Part X of the Women's Charter was enacted in 2011 to empower the court to allow parties divorced in a foreign country to apply for orders for ancillary relief in Singapore if one of the parties was domiciled in Singapore or habitually resident in Singapore for a year before the application or foreign divorce. The court must be satisfied that there are substantial grounds for granting such relief. It will consider a range of statutory criteria in deciding whether Singapore is an appropriate forum. These include:

  • The parties' connections to Singapore and the foreign country.

  • The financial relief already available abroad.

  • The presence of assets in Singapore.

  • Whether an applicant for such relief had good reasons for omitting to seek relief abroad.

  • The enforceability of a foreign ancillary matters order.

  • The time since the date of the foreign divorce, annulment or judicial separation.

 

Children

Custody/parental responsibility

17. What is the legal position in relation to custody/parental responsibility following the breakdown of a relationship or marriage?

Both parents must maintain or contribute to the maintenance of their children (section 68, Women's Charter). In assessing maintenance, the Court will have regard to the parent's means and station in life.

See also Question 18.

 
18. What is the legal position in relation to access/contact/visitation following the breakdown of a relationship or marriage?

The court has the power to place a child in the custody of either parent (section 125, Women's Charter).

A parent with custody over the child has control and responsibility over the upbringing, education, health and religion of the child. A parent with care and control of the child has the right to make daily decisions about a child's upbringing. This right naturally belongs to the parent with whom the child lives (AQL v AQM [2012] 1 SLR 840). The court usually grants access to the parent who does not have care and control of the child. Access gives the parent a right to regular contact with the child. Access can be unsupervised, but is usually supervised if there are risks of emotional, physical or sexual abuse.

The highest court endorsed the concept of joint parental responsibility, even where there is acrimony between the parents (CX v CY [2005] 3 SLR(R) 690). Singapore courts now generally place children in the joint custody of both parents. Courts may not order joint custody in exceptional circumstances such as physical, sexual or emotional abuse of the child by one parent, or where the relationship between the parties is such that co-operation is impossible.

Orders for joint care and control are comparatively rare in Singapore. In deciding which parent should be given care and control of the children, the following trends emerge from local case law:

  • All things being equal, the mother is preferred if the child is young (Soon Peck Wah v Woon Che Chye [1997] 3 SLR(R) 430).

  • There is a preference towards preserving the status quo and continuity of living conditions (Wong Phila Mae v Shaw Harold [1991] 1 SLR(R) 680).

  • Siblings should not be separated (Kim Chun Ahe v Ng Siew Kee [2002] SGDC 276).

International abduction

19. What is the legal position on international abduction?

Section 13 of the Guardianship of Infants Act (Cap 122) empowers the court to direct a parent having custody of a child to produce the child to the judge to make any temporary custody or protection order as may be necessary. A child removed from custody of his lawful guardian can be taken by the sheriff of the court and delivered to his lawful guardian (section 14, Guardianship of Infants Act).

Singapore acceded to the Hague Convention on Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) on 28 December 2010. The International Child Abduction Act 2010 came into force in Singapore on 1 March 2011. Singapore subscribes to the Convention regime of ensuring prompt return of children who have been wrongfully removed from their state of habitual residence, unless the child has been shown to have settled into his new environment. The Ministry of Social and Family Development is the designated Central Authority to implement Singapore's obligations under the Convention.

As at 1 February 2015, the countries and territories that have mutual reciprocal enforcement arrangements for children under the Convention with Singapore are Argentina, Australia, Bahamas, Belarus, Belgium, Canada, Colombia, the Czech Republic, El Salvador, Estonia, France, Germany, Greece, Hong Kong SAR, Ireland, Israel, Italy, Japan, Latvia, Lithuania, Macau SAR, Malta, Mexico, New Zealand, Norway, Serbia, Seychelles, Slovak Republic, Spain, Sweden, Switzerland, Ukraine, the US, Uruguay and Venezuela.

When making decisions in relation to the international abduction of children, the courts apply the International Child Abduction Act 2010 together with the relevant articles of the Convention. In BDU v BDT [2014] SGCA 12, the Court of Appeal affirmed the decisions of the lower courts to order the return of a child to his home in Germany. It accepted the general principle that an abducted child should be returned as swiftly as possible to the country of habitual residence. The court will not examine the substantive merits of custodial disputes. It is presumed that the court of the country to which the child is returned will rule on such issues. BDU v BDT recognises that the exceptions under the Convention to ordering the return of an abducted child will not be invoked lightly.

The decisive factors that a Singapore court consider in any abduction case when deciding whether a child should be returned to Singapore or another country are therefore the child's habitual residence and best interests.

Leave to remove/applications to take a child out of the jurisdiction

20. What is the legal position on leave to remove/applications to take a child out of the jurisdiction? Under what circumstances can a parent apply to remove their child from the jurisdiction against the wishes of the other parent?

The court is concerned mainly with whether the decision to remove the child from the jurisdiction is reasonable in all the circumstances of the case. The court balances the following factors:

  • The effects on children if the wishes of the parent with primary care wishing to take them abroad are interfered with.

  • Whether the primary carer may have resentment against the children if his or her wish to leave is not fulfilled.

  • Whether the application is made in good faith and for good reasons.

No person is allowed to take a child who is subject to an order of custody out of Singapore, except with the written consent of both parents or the leave of court (section 126(3), Women's Charter).

In Tan Kah Imm v D'Aranjo Joanne Abigail [1998] SGHC 247, a mother successfully applied to leave with her children to the US. She was found to bear no ill-will or grudge against her ex-husband. The court accepted she truly believed that it was in the best interests and welfare of the children that they should be allowed to pursue their choice of study in the US.

In Re C (an infant) [2003] 1 SLR(R) 502, grandparents of a child whose father was serving a jail term were allowed to leave with the child for Australia. The Court of Appeal held that "it is the reasonableness of the party having custody to want to take the child out of the jurisdiction which will be determinative, and always keeping in mind that the paramount consideration is the welfare of the child. If the motive of the party seeking to take the child out of jurisdiction was to end contact between the child and the other parent, then that would be a strong factor to refuse the application."

In AZB v AYZ [2012] 3 SLR 627, it was also held that "the welfare of the child is often so inextricably intertwined with the general well-being and happiness of the primary caregiver that the court is loath to interfere with important life decisions of the primary caregiver, so long as they are reasonably made and are not against the interests of the child." In this case, the court took into account the wife's alienation, isolation and vulnerability in Singapore, and the benefits which relocating to the US would have on the wife's emotional and financial well-being as the child's main carer. The court concluded that the wife's decision to relocate was in the best interests of the child and also that the husband had not been a good influence on the child.

AZB v AYZ and the later decisions of BNT v BNS [2014] 4 SLR 859 and TAA v TAB [2015] SGHCF1, all acknowledge that the reasonable decision of the primary carer to relocate is not "an insurmountable factor". The court may refuse such an application as a result of weighing up all the individual factors in the best interests of the child, since the welfare of the child outweighs all other considerations, however powerful and reasonable they may be. Such factors include the child's loss of relationship with the parent left behind.

 

Surrogacy and adoption

Surrogacy agreements

21. What is the legal position on surrogacy agreements?

It is currently illegal for a woman to become a surrogate mother in Singapore and childless couples are prohibited from seeking surrogacy in Singapore. It is also unlawful for local doctors to perform surrogacy procedures.

Adoption

22. What is the legal position in relation to adoption? Is adoption available to individuals and cohabiting couples (both heterosexual and same-sex)?

Adoption is governed by the Adoption of Children Act (Cap 4). Under the Act, an applicant must be at least 25 years of age and must be at least 21 years older than the child. The court can waive these requirements if it thinks fit where either:

  • The applicant and the child are close blood relatives within the prohibited degrees of consanguinity (blood relations).

  • As an exceptional measure, it is right to allow the adoption.

A sole male applicant is generally not allowed to adopt a girl unless there are special circumstances that justify adoption as an exceptional measure. The Act also requires that both the applicant and child are resident in Singapore.

A joint application to adopt a child must be by a married couple. Therefore, cohabiting couples cannot jointly adopt a child.

In addition to the above requirements, the court will only make an adoption order if:

  • The adoption serves the welfare of the child.

  • The consent of every parent or guardian of the child, or person who has actual custody of the child, or who is liable to contribute to support the child, is obtained.

  • There is no payment in connection with the adoption.

 

Cohabitation

Cohabitation

23. What legislation (if any) governs division of property for unmarried couples on the breakdown of the relationship?

There is no legislation in Singapore that governs division of property for unmarried couples on the breakdown of their relationship (Chia Kum Fatt Rolfston v Lim Lay Choo [1993] 2 SLR(R) 793). Property and assets of cohabitees are dealt with under ordinary principles of general property law.

 

Family dispute resolution

Mediation, collaborative law and arbitration

24. What non-court-based processes exist to resolve disputes? What is the current status of agreements reached through mediation, collaborative law and arbitration?

Mediation is currently available in Singapore to resolve family disputes. Mediation can be conducted by a judge-mediator at the Family Resolution Chambers (or Maintenance Mediation Chambers, for maintenance issues) for disputes relating to:

  • Divorce.

  • Custody, care and control of children.

  • Maintenance.

  • Division of matrimonial assets.

A Child Focused Resolution Centre provides mandatory counselling and mediation services for families with children at the outset of divorce proceedings. Collaborative family practice has recently been started as a means of alternative dispute resolution. To date, family law arbitration is not part of the legal framework.

Agreements between parties become enforceable when they have been made into orders of court (AOO v AON [2011] 4 SLR 1169 and AYM v AYL [2013] 1 SLR 924).

 
25. What is the statutory basis (if any), for mediation, collaborative law and arbitration?

Sections 50(1) and 50(2) of the Women's Charter empower the court to refer parties to mediation or counselling. Since 2011, the court can order mandatory mediation or counselling where there are children to the marriage who are under the age of 21 (section 50(3A), Women's Charter). The aim of such processes is to get divorcing parents to focus on the welfare of their children during proceedings. A framework for family law arbitration has yet to be put in place.

 

Civil partnership/same-sex marriage

26. What is the status of civil partnership/same-sex marriage? What legislation governs civil partnership/same-sex marriage?

There is no law recognising civil partnerships. Same-sex marriages are treated as void. However, a marriage between a person who has undergone a sex reassignment procedure and a member of the opposite sex is valid.

 

Controversial areas and reform

27. What areas of the law (if any) are currently undergoing major change? Which areas of law are considered to be particularly controversial?

Family law practitioners are starting to adjust to the latest reforms brought about by the Family Justice Act 2014 (see Question 1, Court system). The consequences of these reforms have yet to be clarified by the courts.

There is still room for greater certainty in the structuring of fair and effective guidelines for care and control and access orders which would help reduce the scope for litigation and attendant anxiety of parents.

The courts have stressed that non-financial contributions ought not to be undervalued in the division of matrimonial assets. Case law reveals a trend of "homemaker husbands" who have made significant non-financial contributions towards home making and caring for the children, and less significant financial contributions than their breadwinner wives being awarded a smaller share of the matrimonial assets as compared with homemaker wives who have made similar contributions. The decision of BCB v BCC [2013] 2 SLR 324 emphasised that the same legal principles should apply to both types of cases. It is expected that divergences in awards between such cases will diminish.

Men in Singapore are precluded from claiming maintenance. As gender inequality recedes, it may be time for these aspects of the law to be reformed.

Finally, the courts are facing serious cases involving parental alienation or emotional abuse. Efficient remedies must be in place to address such concerns.

 

Online resources

Family Justice Division (Singapore Family Court)

W https://app.statecourts.gov.sg/family/index.aspx

Description. The Family Justice Division section of the website of the State Courts of the Republic of Singapore is the official website maintained by the Singapore Family Court. This website provides a comprehensive overview of the matters within the Family Court's jurisdiction. The information contained on this resource is generally up-to-date and in English. This website is readily accessible to the public.

Attorney General's Chambers of Singapore

W http://statutes.agc.gov.sg/aol/home.w3p

Description. The Attorney General's Chambers of Singapore provides free official legislative data online, including current Acts and subsidiary legislation in English. The website is maintained by the Singapore Government, which ensures that the information is generally up- to-date, open to the public and reflects the latest amendments to the relevant legislation.



Contributor profile

Randolph Khoo, Director, Dispute Resolution

Drew & Napier LLP

T +65 6531 2418
F +65 6532 7149
E randolph.khoo@drewnapier.com
W www.drewnapier.com

Professional qualifications. Admitted to the Singapore Bar, 1990; FSI Arb, FCI Arb, FMI Arb, FAMINZ (Arb), FHKI Arb

Areas of practice. International arbitration; litigation; family and international personal relationships.

Non-professional qualifications. LLB (Hons), National University of Singapore (1989)

Recent transactions

  • A long civil litigation spanning five years relating to a construction company involving substantial claims of an aggregate of approximately US$60 million between the parties, as well as satellite litigation.
  • Advised on arbitration and legal actions for a mainland Chinese distributor and a South Korean franchisor, including an action in the Shenzhen Intermediate Court, successfully obtaining an extension of the franchise agreement.
  • Acting in part of a complex multi-jurisdictional divorce family asset dispute with claims to assets worth US$12 billion, involving a discharge of injunctive relief and asset-freezing orders in conjunction with civil proceedings in Russia, Switzerland and the US and related proceedings.
  • Recognised by Asia Pacific Legal 500 2014-2015 as a recommended individual for international arbitration, Chambers Global and Chambers Asia-Pacific 2015 as a leading practitioner in the area of dispute resolution in Singapore and China for the past three years, and endorsed by Best Lawyers International 2015 for arbitration and mediation in Singapore.

Languages. English, Mandarin

Professional associations/memberships

  • Notary Public & Commissioner for Oaths.
  • Primary Panel Arbitrator, Singapore Institute of Arbitrators.
  • Panel Arbitrator, Law Society of Singapore Arbitration Scheme.
  • Panel Arbitrator & Mediator, Kuala Lumpur Regional Centre for Arbitration.
  • Panel Arbitrator, Malaysian Institute of Arbitrators.
  • Panel Arbitrator (Foreigner), Shanghai Arbitration Commission.
  • Arbitrator, The Chinese Arbitration Association, Taipei.
  • Fellow, Chartered Institute of Arbitrators.
  • Fellow, Singapore Institute of Arbitrators.
  • Fellow, Malaysian Institute of Arbitrators.
  • Fellow, Arbitrators' & Mediators' Institute of New Zealand.
  • Member, International Bar Association.
  • Member, Society of International Law (Singapore).
  • Member, Law Society of Singapore.
  • Member, Singapore Academy of Law.

Publications

  • Author, Family Law: Jurisdictional Comparisons (2nd Edition, 2013 Thomson Reuters).

  • Author, Family Law: Jurisdictional Comparisons (1st Edition, 2011 Thomson Reuters).

  • Co-Author, CCH/SNEF Singapore Employer's Handbook (CCH Asia Pte Ltd) (2006-2008).


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