Chapter 4 – Singapore family law – Linda Ong

Linda Ong – Singapore Family Lawyer
Engelin Teh Practice LLC

A guide to divorce in Singapore

I. Jurisdiction for Divorce in Singapore

Non-Singapore citizens can file for a divorce in Singapore so long as either party satisfy the jurisdiction requirements. S 93 of the Women’s Charter provides:

1. Either party must be domiciled in Singapore at the time of commencement of the proceedings; or
2. Either party must be habitually resident in Singapore for a period of 3 years immediately preceding the commencement of the proceedings.

Domiciled in Singapore

By the presumption in s 3(5) of the Women’s Charter, Singapore citizens are deemed to be domiciled in Singapore, until proven otherwise. If neither party is a Singapore citizen, they can still be domiciled in Singapore by acquiring Singapore as a domicile of choice. To prove that one is domiciled in Singapore, the applicant must show that he/she is resident in Singapore and has the intention to remain here, be it permanently or indefinitely. Evidence such as acquiring permanent residency and purchasing an immovable property to stay in Singapore, moving of assets from elsewhere to Singapore and/or starting a career with long term prospects here in Singapore are frequently used in cases where the applicant seeks to prove Singapore as a domicile.

Habitually resident in Singapore

Foreigners who have been resident in Singapore for a period of at least 3 years can file divorce proceedings here, even if they are not permanent residents or have no intention to live in Singapore for the long term.

II. Options to resolve financial matters

Court adjudication is a common option to resolve financial matters:

a) The Singapore courts have powers to divide assets upon the commencement of divorce proceedings and the grant of Interim Judgment for Divorce.

b) The Singapore courts also have powers to order maintenance (for a former spouse and/or children) upon the commencement of and consequent to divorce proceedings.

c) Separately, the Singapore courts also have the power under the Maintenance Summons regime to order ongoing maintenance in a subsisting marriage in the event a husband fails to provide adequate maintenance for a wife or a parent fails to provide adequate maintenance for his/her child. Such an application will be a standalone application, not pursuant to any divorce proceedings.

Apart from court adjudication, mediation is also a popular option for parties seeking a non-contentious method of dispute resolution. Mediation can take the form of private mediation as well as court-assisted mediation in the Singapore Family Justice Courts.

III. How Singapore decides forum disputes

For international marriages, there are two potential forum issues that may arise. First, in a situation where there are parallel proceedings in a foreign jurisdiction, the Singapore court will have to decide whether to stay the matrimonial proceedings in Singapore. Second, where there is already a divorce granted in a foreign jurisdiction, the Singapore court has to decide whether to recognise it.

Staying matrimonial proceedings

The Singapore court may stay the matrimonial proceedings in Singapore on the principle of forum non conveniens. Simply put, where there are proceedings in another jurisdiction, the Singapore court will examine all the relevant facts and circumstances to decide which is the more appropriate forum for the matrimonial proceedings. If it is decided in favour of the foreign jurisdiction, the Singapore court will stay the local proceedings and direct parties to litigate in the foreign jurisdiction

Foreign divorce having been granted

S 108 of the Women’s Charter states that the rules of private international law are applicable to matrimonial proceedings. Generally, the Singapore court will recognise a divorce that has already been granted by a foreign court of competent jurisdiction under these circumstances:

1. Where either party is domiciled in the jurisdiction of the foreign decree;
2. Where the foreign decree was granted on the same bases as the Singapore court would grant a divorce; or
3. Where there exists sufficient connection between the court granting the decree and either party to the marriage.

Thus, parties should not file for divorce in Singapore if there is already a foreign divorce order that would be recognised in the Singapore court.

IV. How does Singapore divide assets?

Consequent to a divorce, s 112 of the Women’s Charter gives the court the power to order the division of matrimonial assets in a just and equitable manner.

The court will first undertake the task of identifying the pool of matrimonial assets. The definition of a “matrimonial asset” is provided for in s 112(10) of the Women’s Charter. Essentially, matrimonial assets include:

1. The matrimonial home where parties lived in;
2. Assets acquired during the marriage, whether by one party or both parties;
3. Assets acquired before the marriage if it was ordinarily used or enjoyed by both parties during the marriage, or an asset that was substantially improved by the other non-acquiring party or both parties during the marriage.
4. Assets acquired as a gift or inheritance from a 3rd party will not be matrimonial assets unless they have been substantially improved by the other non-acquiring party or both parties during the marriage

Next, the court will then consider all the circumstances of the case and strive to arrive at a just and equitable division of assets. S 112(2) sets out factors that the court will consider, which include:

1. The extent of contributions made by each party towards acquiring, improving or maintaining matrimonial assets;
2. any debt or obligation incurred by either party for their joint benefit or for the benefit of any child of the marriage;
3. the needs of the children;
4. the extent of contributions made by each party towards the welfare of the family;
5. any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce;
6. any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party;
7. or support by one party to the other party.

The factors are not exhaustive and the court will consider all other circumstances of the case. This is, but of course, a very general and broad overview of the court’s approach. Much will depend on the specific facts and circumstances of each case.

For dual-income marriages, the Courts in Singapore would apply the “structured approach” under ANJ v ANK, which entails the following steps: (a) ascribing a ratio to the parties’ direct financial contributions; (b) ascribing a ratio to the parties’ indirect contributions; (c) deriving each party’s average percentage contributions; and (d) if necessary, making further adjustments to the parties’ average percentage contributions. The recent case of VJP v VJQ has made it clear that for the first step of ascribing a ratio to the parties’ direct financial contributions, this is a purely arithmetic exercise and unless the documentary evidence falls short of establishing the precise financial contribution made by each part, there is no room for the court to use ‘rough and ready’ approximation of the figures.

For long-single income marriages, it would not be appropriate for the Courts to apply the structured approach under ANJ. In such event, the Court of Appeal has stated in TNL v TNK that the courts will tend towards equal division.

V. How does Singapore determine maintenance?

Maintenance for former spouse

Pursuant to s 113(a) and (b) of the Women’s Charter, the court has the power to make an order for maintenance of a former spouse during the course of the matrimonial proceedings (i.e. from the date of the filing of the divorce writ) and subsequent to the grant of divorce. Under Singapore law, spousal maintenance orders are generally for the benefit of former wives. In terms of maintenance for a former husband, the court may only order a woman to pay maintenance to her former husband if the latter is incapacitated.

The starting point in imposing the obligation of maintenance is financial preservation. This entails preserving the former wife at a standard of living that she enjoyed during the marriage. However, in recent years, this has been balanced with the need for the former wife to eventually regain self-sufficiency. An order of maintenance is not intended to create a life-long dependency on the former husband. Particularly, in cases of international marriages, the court has cautioned that former spouses should not insist on enjoying an “expatriate” lifestyle which they might have had during the marriage because of the expatriate spouse’s generous allowance. The court will take into consideration the length of the marriage, the former spouses’ earning capacities, obligations and the division of matrimonial assets in deciding how much maintenance should be awarded.

Maintenance for children

Parties also have a substantive duty under s 127 of the Women’s Charter to reasonably maintain their children during the pendency of the matrimonial proceedings and at any time subsequent to the grant of divorce. This would include, but is not limited to, providing accommodation, food, clothing, and education for the children. The court will consider parties’ means and the standard of living the family was at prior to the commencement of proceedings. This is a liability to be shared between both parents.

VI. A brief overview of how children arrangements are resolved

The overarching principle underlying matters with regard to children is that the best interests of the child must be the paramount consideration.

For children arrangements, the usual approach in Singapore is to award joint custody to both parents, with care and control to one parent and the other parent granted access orders.

Custody

In Singapore, custody refers to the control over major aspects of a child’s life. The parent with custody is entitled to decide on all questions relating to the upbringing and education of the child. It is undisputed that children will benefit from having both parents involved in their lives as much as possible. Parents should make decisions together on important matters. For that reason, the court typically make a joint custody order to impress on parents the need for them to put aside their differences and co-parent amicably for the child’s sake.

Care and control, and access

Care and control refers to the day-to-day care of a child, and the child resides with this parent for majority of the time. The parent not awarded care and control will be awarded access. The access orders may stipulate, among other things, when the child will see that parent, whether overnight access is permitted, and special holiday arrangements.

There is also a duty on the parent with care and control to facilitate access wherever possible. The court has repeatedly stressed that the welfare of the child is of paramount importance, and deliberately alienating the other party from the child because of disputes between parents is not in the best interests of the child.

Relocation

Another relevant issue for foreigners is the need to apply for relocation of the children out of Singapore to another country when the marriage has been dissolved and/or change in plans that affect their stay in Singapore. The difficulty with parental relocation is that it almost necessarily means that the other parent will suffer a loss of relationship with the child, to a certain extent. The court acknowledges that there is a tension between upholding the primary carer’s freedom to relocate and the child’s interest in maintaining a relationship with both parents. Nonetheless, the guiding principle is that the welfare of the child remains the paramount consideration.

Some of the factors that the court will consider are (a) the reasons for the relocation; (b) education opportunities abroad; (c) family support abroad; (d) how entrenched the child is in his current environment; (e) extent of loss of relationship with the other parent. This is a non-exhaustive list, and ultimately the outcome of each parental relocation application is highly fact-specific.

Parties should also be mindful that taking the child out of Singapore in breach of orders is tantamount to international child abduction. In this regard, Singapore is a signatory to the Hague Convention.