Divorce – Grounds, Proceedings relating to Children and Financial arrangements Family Breakdown in Singapore Estimate: For every 10 marriages

, there are 3 divorces. There were 6400 divorces and annulments granted in 2004 (there were 6600 in 2003). Strengthening families and marriages is the concern of the state. Family law and Family Court cannot shoulder the burden alone. Lawyers dealing with family cases need to think beyond the law and legal processes.


Use community resources of counseling and family therapy etc to resolve family disputes. No longer adversarial but inquisitorial – two lawyers coming tog and coming up with strategy! Try to cooperate with other side – diff fr corporate litigation

Emotional problems of divorce (esther wong) - Three stages 1. pre separation stage Constant bickering and hostility and try to get third parties to support ending marriage Lawyer sends them to social worker to do reconciliation work - During reconciliation parties want to break up and not make up - Need for lawyers to cooperate with social workers – work out financial and housing arrangements, mediate on behalf of children etc - draw u settm Courts the worst hurdle - After divorce parties esp protagonist become hyperactive and engage in plans for migration etc Laywer to slow them down Recipient diff emotions Shock and grief nd not willing to let go - But shock may be nec to numb the blows and cope If more than few weeks, hten refer to social worker 2. separation stage Working out shock 8-12 wks cycle with 3 diff phases  euphoria of abt 4 to 6 wks  then 4 to 6 wks of depression and withdrawal  then stage of ambivalence and negative feelings – scape goating happens 3. differentiation bet psychological and physical separation not nec together may go through psy separation after suing for divorce or before eg living together but leading sep and indep lives last stage may take another yr after divorce physical sepn then compels them to set up new hhld, make new friends, est new patterns at work work out financial and housing arrangements 4. post separation period of guilt, hostility and indifference to pick up pieces and use support networks like friends and relatives to help them Divorce Jurisdiction S 93 Women’s Charter Jurisdiction of court in matrimonial proceedings 93. —(1) Subject to subsection (2), the court shall have jurisdiction to hear proceedings for divorce, presumption of death and divorce, judicial separation or nullity of marriage only if either of the parties to the marriage is — (a) domiciled in Singapore at the time of the commencement of the proceedings; or

(b) habitually resident in Singapore for a period of 3 years immediately preceding the commencement of the proceedings. (2) In proceedings for nullity of marriage on the ground that the marriage is void or voidable, the court may, notwithstanding that the requirements in subsection (1) are not fulfilled, grant the relief sought where both parties to the marriage reside in Singapore at the time of the commencement of the proceedings. (3) For the purposes of proceedings for nullity of marriage, “marriage” includes a marriage which is not valid by virtue of any of the provisions of this Act.

previously, marriage must be monogamous type of marriage, not nec expressly but impliedly monogamous but dropped limb so even polygamous marriages can come within sg court juris so long as parties fulfil the following conditions ->>>> Required to have some “connection” with Singapore to apply to the Singapore Ct for matrimonial proceedings. • 1. either party domiciled in Singapore (domicile =/ long residence) or “Domicile” – refer to last lecture on concept of domicile/ Joseph Wong’s case. (circumstantial evid to be shown) 2. habitually resident in Singapore for 3 years

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(for nullity, sufficient if both parties reside in Singapore) Jurisdiction used to be within jurisdiction of High Court, but since establishment of Family Court, jurisdiction transferred to Subordinate Court. (Supreme Court of Judicature (Transfer of Matrimonial, Divorce and Guardianship of Infants Proceedings to District Court) Order 1996)

Time restriction on Divorce Limitations to Divorce Proceedings - A 3-year moratorium

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S94 (1) No writ for divorce shall be presented to the court unless at the date of the filing of the writ 3 years have passed since the date of the marriage. (ie cannot divorce in first 3 yrs of marriage) Rationale: (i) Indication of the seriousness of marriage; (ii) Parties are required to tolerate certain eccentricities of his/her spouse. 3-year rule seeks to enforce that principle; (iii) Making it harder to get out of a marriage so that parties would work at it. (iv) bar meant to "not only deter people from rushing into ill-advised marriage, but also to prevent them from rushing out of marriage so soon as they discover that their marriage was not what they expected" (Fisher v Fisher [1948] P 264). Exception: Section 94(2) (2) The court may, upon application being made in accordance with the Rules of Court, allow a writ to be filed before 3 years have passed on the ground that the case is one of exceptional hardship suffered by the plaintiff or of exceptional depravity on the part of the defendant, but if it appears to the court at the hearing of the proceedings that the plaintiff obtained leave to file the writ by any misrepresentation or concealment of the nature of the case, the court may, if it grants an interim judgment, do so subject to the condition that no application to make the judgment final shall be made until after the expiration of 3 years from the date of the marriage, or may dismiss the proceedings without prejudice to any proceedings which may be brought after the expiration of the said 3 years upon the same, or substantially the same, facts as those proved in support of the proceedings so dismissed.

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You can apply to court for special permission to start divorce proceedings before you have been married three years. The court will give special permission if you can prove that you have suffered

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'exceptional hardship' or that your spouse has behaved with 'exceptional depravity', meaning that he or she has behaved unusually badly o In deciding whether to grant you the permission, the court will also consider whether there is any possibility of reconciliation between you and your spouse, and the interest of any child of your marriage. unless case is one of exceptional hardship suffered by the plaintiff or of exceptional depravity on the part of the defendant … But not popular exception – must be proved above ordinary Divorces already ugly and yet now need to prove super ugly (exceptional!) Which is why some pple use nullity judgement as escape route because of this restrictin (abuse of nullity judgement) Meaning of Exceptional Hardship/depravity  Usually taken to mean violence, cruelty etc…  Note: it has to be ‘exceptional’

Ng Kee Shee v Fu Gaofei [2005] 4 SLR 762 Facts The plaintiff (“the husband”) unsuccessfully applied under s 94 of the Women’s Charter (Cap 353, 1997 Rev Ed) for leave to be granted to present a divorce petition before three years had passed from the date of his marriage to the defendant (“the wife”), a Chinese national, in October 2004. The husband appealed against the District Judge’s decision to dismiss the application. The husband claimed that he had suffered exceptional hardship caused by the wife’s “abnormal behaviour” after the marriage. This included the wife’s refusal to be intimate with the husband and the fact that she would stay over at a friend’s house at every opportunity and had to be begged to return to the matrimonial home. On one occasion, she had refused to get into the husband’s car after they had sent her relatives off at the airport and she had run towards the highway as if to commit suicide, before being restrained by one of her friends. In January 2005, the wife returned to her family home in China ostensibly to celebrate Chinese New Year with her family. She did not return to Singapore or attempt to contact the husband. The husband contacted one of the wife’s friends and was informed that his wife wanted a divorce and would never return to him. The same friend filed an affidavit stating that when she asked the wife whether she would be returning to Singapore, she had answered that she would rather die than return to the husband and that her marriage was a mistake. The wife had written a letter agreeing with the contents of both affidavits and stating her wish not to defend the application nor contest the divorce petition if it should be filed. Held, allowing the appeal: (1) The intention of s 94 was to promote the sanctity of marriage and to ensure that parties did not rush into or out of marriage capriciously. It was clearly the wife who had absolutely no regard for the union and who entered into the arranged marriage capriciously. She had unilaterally set out all the rules of intimacy from the start, something that was the antithesis of intimacy, and had made up her mind to leave without even writing a short note to say that the marriage was a mistake. In such a situation, there was nothing left to reconcile. To hold that the husband should nevertheless wait three years before seeking a divorce would appear to be visiting the wrongs of the wife on him: at [18] to [22]. (2) Exceptional hardship was something quite out of the ordinary and more than what an ordinary person should reasonably be asked to bear. All the events had taken place within five months of the marriage and clearly showed exceptional hardship and amounted to unreasonable behaviour on the part of the wife: at [23]. [Observation: The husband had submitted in the court below that, being past 40 years of age, he was anxious to settle down and start a family. The District Judge’s observation that such a submission was without merit because it asked the court to assume that he would be able to find another spouse or father another child immediately, or be able to work till 66 years old, was incomprehensible and should have no impact on the issue of whether he was suffering exceptional hardship: at [20].] above case followed the case of Wong Pee Wei v Ho Soo hua Anna Laurene [2002] SGDC 239 The Petitioner ("the Husband") and the Respondent ("the Wife") were married on 14 April 2001. The parties had a daughter born on 22 October 2001. This is an application by the Husband under section 94 of the Women’s Charter for leave to present a divorce petition notwithstanding 3 years had not passed since the date of the marriage.

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While the Wife disputed the allegations made by the Husband in support of his application, she was not contesting it as she too wanted the marriage to be dissolved. Held:  did not find that the facts submitted by the Husband amounted to exceptional hardship, neither did I find exceptional depravity on the part of the Wife. I thus dismissed the application. Grds of judgement  With regard to the Husband’s first argument that he regretted the marriage and the marriage was a mistake, this was probably true in all divorce cases and was unexceptional.  Secondly, with regard to his argument that parties should be allowed to start afresh since there was absolutely no possibility of reconciliation, in my view, the aim of section 94 was to promote the sanctity of marriage and ensure that parties do not rush into and out of marriage capriciously. Allowing the parties here to divorce after only 1 year of marriage, in which parties hardly lived together, simply because they felt that there was no hope of reconciliation would defeat the purpose of the provision.  Thirdly, the Husband’s argument that if there was no divorce, the ancillary matters could not be determined would not be sufficient to find exceptional hardship. In any case, if he wanted access to the child during separation, it was open to him to file the appropriate application under the Guardianship of Infants Act.  Finally, I did not accept that the matters reported in the psychiatric report amounted to exceptional hardship. The report contained an assessment made by the psychiatrist after a single interview of the Husband, when the Husband consulted the doctor after the commencement of the current proceedings. The psychiatrist found that apart from mild anxiety and transient insomnia, the Husband was not suffering from any psychiatric condition. This was not exceptional hardship in my view. It appeared to me that the crux of the case was the Husband’s concern that if he did not settle his marital affairs immediately, he could be considered a risk by RSAF and would be grounded. This would jeopardize his career, which would result in exceptional hardship to the Husband. This was evident from his affidavit and the psychiatric report. In my view, the court could take into consideration future suffering in deciding a case of this nature provided that the present suffering was of such a magnitude that future suffering was foreseeable. Here, I did not find that this was present. Arguably, all pilots risked being grounded whenever they were faced with family problems. It could not be that this risk to their career automatically amounted to exceptional hardship as this would mean that the three-year bar would in effect be waived for pilots. According to the psychiatrist, if the "marriage stressors" were to continue, the Husband could develop a "clinical syndrome of anxiety or depression". Based on the Husband’s affidavits, his complaints appeared to be the Wife’s abusive and harassing behaviour, her unreasonable claim for maintenance and the civil suit filed by his mother-in-law. I noted that the parties lived in different countries so opportunities for contact between the parties were limited. I failed to see how the Wife’s abusive conduct, if true, could affect the Husband so drastically. If the Wife had indeed been harassing him, he could apply for a protection order and the question of maintenance could also be sorted out by the courts without a divorce. The mother-in-law’s civil suit, as the Wife pointed, was a separate matter and she could proceed with the suit regardless of whether the parties were married or not. Finally, if the Husband was so worried about risking his future promotion prospects, it was incumbent on him to attempt to settle all matters peacefully and amicably with the Wife so as to remove the stress factors, instead of rushing into a divorce barely one year into the marriage, when a divorce was not the only solution. Whatever is used under s94(2) would not be precluded if a new petition was to be presented to court after 3 years for a fresh petition.

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- Note section 94 (5) (5) Nothing in this section shall be deemed to prohibit the filing of a writ based upon matters which have occurred before the expiration of 3 years from the date of the marriage.
Present ground for divorce:

Irretrievable breakdown of marriage to be sole ground for divorce 95. —(1) Either party to a marriage may file a writ for divorce on the ground that the marriage has irretrievably broken down. (2) The court hearing such proceedings shall, so far as it reasonably can, inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances make it just and reasonable to do so, grant a judgment for its dissolution. (3) The court hearing any proceedings for divorce shall not hold the marriage to have broken down irretrievably unless the plaintiff satisfies the court of one or more of the following facts: (a) that the defendant has committed adultery and the plaintiff finds it intolerable to live with the defendant; (b) that the defendant has behaved in such a way that the plaintiff cannot reasonably be expected to live with the defendant; (c) that the defendant has deserted the plaintiff for a continuous period of at least 2 years immediately preceding the filing of the writ; (d) that the parties to the marriage have lived apart for a continuous period of at least 3 years immediately preceding the filing of the writ and the defendant consents to a judgment being granted; (e) that the parties to the marriage have lived apart for a continuous period of at least 4 years immediately preceding the filing of the writ. (4) In considering whether it would be just and reasonable to grant a judgment, the court shall consider all the circumstances, including the conduct of the parties and how the interests of any child or children of the marriage or of either party may be affected if the marriage is dissolved, and it may make an interim judgment subject to such terms and conditions as the court may think fit to attach; but if it should appear to the court that in all the circumstances it would be wrong to dissolve the marriage, the court shall dismiss the proceedings. (5) Where the parties to the marriage have lived with each other for any period or periods after it became known to the plaintiff that the defendant had, since the celebration of the marriage, committed adultery, then — (a) if the length of that period or of those periods together was 6 months or less, their living with each other during that period or those periods shall be disregarded in determining for the purposes of subsection (3) (a) whether the plaintiff finds it intolerable to live with the defendant; but (b) if the length of that period or of those periods together exceeded 6 months, the plaintiff shall not be entitled to rely on that adultery for the purposes of subsection (3) (a). (6) Where the plaintiff alleges that the defendant has behaved in such a way that the plaintiff cannot reasonably be expected to live with him, but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the plaintiff and held by the court to support his allegation, that fact shall be disregarded in determining for the purposes of subsection (3) (b) whether the plaintiff cannot reasonably be expected to live with the defendant if the length of that period or of those periods together was 6 months or less. (7) In considering for the purposes of subsection (3) whether the period for which the defendant has deserted the plaintiff or the period for which the parties to a marriage have lived apart has been continuous, no account shall be taken of any one period (not exceeding 6 months) or of any 2 or more periods (not exceeding 6 months in all) during which the parties resumed living with each other, but no period during which the parties lived with each other shall count as part of the period of desertion or of the period for which the parties to the marriage lived apart, as the case may be. (8) References in this section to the parties to a marriage living with each other shall be construed as references to their living with each other in the same household. There is only one "ground" : Section 95 (1) Either party to a marriage may file for a writ of divorce on the ground that the marriage has irretrievably broken down.

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However, irretrievable breakdown must be proved by one or more of facts listed in 95(3) a-d. Court must consider interests of children and justice to parties

Section 95 (3) (a) Df committed adultery and Pf finds it intolerable to live with Df; (b) Df behaved in such a way that Pf cannot reasonably be expected to live with Df (c) Df deserted the Pf for a continuous period of at least 2 years (d) Parties have lived apart for a continuous period of at least 3 years (Df consents to a judgment being granted) or

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(e) 4 years.

Facts which satisfy the court that marriage has irretrievably broken down: a. Adultery and not tolerable to live with defendant plaintiff must show two points: 2 tier test:

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(i) that the defendant has committed adultery and (ii) the plaintiff finds it intolerable to live with the defendant;

Proof of Adultery o Adultery is one or more acts of voluntary sexual intercourse with person of opposite sex who is not the spouse. Rape not voluntary or consensual and is not adultery.

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Consummation – the act that is being focused on but for adultery, INTENTION is needed because this is someone breaching the marital oblig so intention is required

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Sex with same sex – is this adultery? May not be adultery but may be unreasonable behaviour => inferred improper association rather than adultery Difficulty is with proof: evidence of Private Investigator adequate but very expensive. • Best evid is PI evid – may cost tens of thousands • For average person, not easy to afford Or prove inclination to adultery and opportunity to commit it.

Actual proof of opportunity – eg business conference, same hotel room etc BUT: Not easy to use circumstantial evidence : Circumstantial evidence insufficient to support allegation in Koh Teng Lam v Elsie Koh [1975-1977] SLR 407, as standard of proof required is high.

Koh Teng Lam v Elsie Koh [1975-1977] SLR 407 Held: The petitioner bore the burden of proof to show beyond reasonable doubt that the respondent had, since the solemnization of the marriage treated him with cruelty or that she has been guilty of adultery. 18 The burden of proof in this case is clearly on the petitioner. He has to prove that the respondent has since the solemnization of the marriage treated him with cruelty or that she has been guilty of adultery. But, what is the standard of proof applicable to establish the said matrimonial offences. 19 In Ginesi v Ginesi [1948] P 179, the Court of Appeal requested authorities to be cited on the standard of proof required to substantiate a charge of cruelty. Ancient authorities as old as 1626 were cited. Tucker LJ in his judgment after reviewing the ancient as well as the modern authorities, said, at p 181: I am satisfied that Hudson J was correct when he said that adultery must be proved with the same degree of strictness as is required for the proof of a criminal offence — and I limit my observation to cases of adultery. Adultery was regarded by the ecclesiastical courts as a quasi-criminal offence, and it must be proved with the same strictness as is required in a criminal case. That means that it must be proved beyond all reasonable doubt to the satisfaction of the tribunal of fact. 21 In Bater v Bater [1950] 2 All ER 458, the trial judge (Mr Commissioner Grazebrook) in his judgment said that the petitioner ‘had to prove her case beyond reasonable doubt’. The Court of Appeal held that that was a correct statement of the law and that the trial judge had not misdirected himself. 22 Bucknill LJ said, at p 458: … I do not understand how a court can be satisfied that a charge has been proved — and the statute requires that the court shall be satisfied before pronouncing a decree — if at the end of the case the court has a reasonable doubt whether the case has been proved. To be satisfied and at the same time to have a reasonable doubt seems to me to be an impossible state of mind. I will add this. I regard proceedings for divorce as proceedings of very great importance, not only of parties, but also to the State. If a wife is divorced, she not only has that stigma resting on her for the rest of her life, but it may mean she will lose the maintenance to which she is entitled from her husband and the custody of her children. It may, indeed, mean ruin to her. If a high standard of proof is to be required because of the importance of a particular case to the parties and also to the community, divorce proceedings require that high standard … 23 These views were endorsed in speeches in the House of Lords in Preston-Jones v Preston-Jones [1951] AC 391, where the meaning of the word ‘satisfied’ came directly in issue. In that case the husband’s allegation that his wife had committed adultery was based solely on the circumstance that during the period between 186

and 360 days before the birth of a child to her he had been continuously absent abroad. It was argued on behalf of the wife that proof beyond reasonable doubt that she had committed adultery would not suffice and that the husband could only succeed if he proved scientifically that it was impossible for him to be the father. That contention was not accepted. Lord MacDermott referred to the duty of the court to be satisfied on the evidence and having pointed out that the evidence must be ‘clear and satisfactory beyond a mere balance of probabilities’ added, at p 417: … If a judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence relied upon by a petitioner as ground for divorce, he must surely be ‘satisfied’ within the meaning of the enactment, and no less so in cases of adultery where the circumstances are such as to involve the paternity of a child. On the other hand, I am unable to subscribe to the view which, though not propounded here, has had its adherents, namely, that on its true construction the word ‘satisfied’ is capable of connoting something less than proof beyond reasonable doubt. The jurisdiction in divorce involves that status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict inquiry. The terms of the statute recognise this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the court might be ‘satisfied’ in respect of a ground for dissolution, with something less than proof beyond reasonable doubt. I should perhaps, add that I do not base my conclusions as to the appropriate standard of proof on any analogy drawn from the criminal law. I do not think it is possible to say, at any rate since the decision of this House in Mordaunt v Moncrieffe (1874) LR 2 Sc & D 374, that the two jurisdictions are other than distinct. The true reason as it seems to me, why both accept the same general standard — proof beyond reasonable doubt — lies not in any analogy, but in the gravity and public importance of the issues with which each is concerned … 24 Lord Simonds was in agreement with Lord MacDermott. Lord Simonds in his speech referred to the fact that in that case a finding of adultery would in effect bastardize the child and he made his view clear that for a court to be satisfied there has to be proof which established a matter beyond all reasonable doubt. Lord Morton of Henryton in his speech said that the burden, of proof of adultery was certainly no heavier than proof beyond reasonable doubt: he added that counsel for the appellant had not contended that it was any lighter. He said that the test of being satisfied beyond a reasonable doubt was the correct one and that when expert evidence is given it must be weighed with care ‘in order to ascertain whether the husband has proved his case beyond reasonable doubt’. 25 The next case, on the standard of proof applicable in divorce cases, which went to the House of Lords, is Blyth v Blyth [1966] 1 All ER 524. As counsel for the petitioner relies heavily on this case, it is necessary to examine it in some detail. Dealing with the meaning of ‘satisfied’, Lord Morris, who delivered the first judgment, said, at p 530: My Lords, the word ‘satisfied’ is a clear and simple one and one that is well understood. I would hope that interpretation or explanation of the word would be unnecessary. It needs no addition. From it there should be no subtraction. The courts must not strengthen it; nor must they weaken it. Nor would I think it desirable that any kind of gloss should be put on it. When Parliament has ordained that a court must be satisfied only Parliament can prescribe a lesser requirement. No one, whether to be judge or juror, would in fact be ‘satisfied’ if he was in a state of reasonable doubt. It may be, however, that in some sets of circumstances and in regard to some issues the stage of being satisfied (and so of eliminating reasonable doubt) is much easier reached than in others. The measure of what is a ‘reasonable’ doubt will also vary with the circumstances; but the standard of proof has been laid down by Parliament when it directs that a court must be satisfied... My Lords, the jurisdiction in divorce is statutory and by statute certain duties are imposed on the court. There is no occasion to seek to compare or to equate the jurisdiction in divorce with jurisdiction in either criminal or in other civil matters … Then if the court is ‘satisfied’ as to certain separate questions (a) that the case for the petition has been proved and (b) (where the ground of the petition is adultery) that the petitioner has not in any manner been accessory to or connived at or condoned the adultery … then the court ‘shall’ pronounce a decree of divorce: if the court is not ‘satisfied’ with respect to any of those matters then the court ‘shall’ dismiss the petition: My Lords, having regard to the imperative words of the statute I find it impossible to accept the contention that the word ‘satisfied’ means one thing at one moment and something different at another … 28 Lord Denning thought that a considerably lesser standard of proof could be adopted. He said, at p 536: … I hold that … the word ‘satisfied’ does not mean ‘satisfied beyond reasonable doubt’. The legislature is quite capable of putting in the words ‘beyond reasonable doubt’ if it meant it. It did not do so. It simply said on whom the burden of proof rested, leaving it to the court itself to decide what standard of proof was required in order to be ‘satisfied’ … We should not say that adultery must be proved with the same strictness as is required in a criminal case. We should say simply that it must be proved to the satisfaction of the court … In short it comes to this: so far as the grounds for divorce are concerned, the case, like any civil case, may be proved by a preponderance of probability, but the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear. So far as the bars to divorce are concerned, like connivance or

condonation, the petitioner need only show that on balance of probability he did not connive or condone or as the case may be. 29 Lord Pearce took the same view as Lord Denning had taken. The fifth member of the House, Lord Pearson, adopted what has been described as an intermediate position. Having quoted at some length from what Lord MacDermott said in Preston-Jones v Preston-Jones, supra, Lord Pearson commented, at p 542: … This language is consistent with the view that the word ‘satisfied’ does not as a matter of interpretation mean ‘satisfied beyond reasonable doubt’, and that the requirement of proof beyond reasonable doubt may be limited to the grounds for dissolution and may not extend to matters referred to in sub-paras (b) and (c) … which relate to matters of connivance, condonation etc. In other words, Lord Pearson would have been disposed to apply the standard of ‘satisfaction beyond reasonable doubt’ where proof of a matrimonial offence is being considered, but would not apply that standard in relation to such matters as condonation, which was the subjectmatter of the appeal to the House of Lords in that case. It will be seen therefore that although the opinions expressed by all the five lords on the standard of proof required to establish adultery were clearly obiter, nevertheless three opinions were in favour of ‘proof beyond a reasonable doubt’ and two were for ‘a preponderance of probabilities’. 30 In Blyth v Blyth supra, Lord Denning would appear to have shifted from the position he took 16 years earlier in Bater v Bater, supra. In that case in which the issue was adultery or no adultery he had agreed with Bucknill and Somervell LJJ that the trial judge’s statement that the petitioner ‘had to prove her case beyond reasonable doubt’ was not a misdirection. 34 The decision of the House of Lords in Preston-Jones v Preston-Jones, supra, where the meaning of the expression ‘satisfied’ in relation to proof of adultery was directly in issue, has not been over-ruled. The decision in Blyth v Blyth, supra, is of no help to the petitioner as all the dicta there was obiter. Bastable v Bastable, supra, again does not help the petitioner. There is no authority for the submission that the principle of ‘proof beyond reasonable doubt’ has been discarded and is no longer applicable when cruelty or adultery is alleged as a ground for divorce. 35 In Singapore, the law still is that the standard of proof applicable is ‘proof beyond reasonable doubt’. This was the test applied by the Federal Court of Malaysia holding in Singapore in Ng v Lim [1965–1968] SLR 339. In that case the wife successfully petitioned for dissolution of her marriage on the ground of her husband’s cruelty and on appeal counsel for the husband ‘laid stress on the principle that in the case of a petition for divorce based on cruelty the case against the respondent must be proved beyond reasonable doubt’. Counsel argued that ‘the trial judge had overlooked this principle and had applied the standard of proof in civil cases, where findings of fact can be arrived at on the balance of probabilities’. The Federal Court in rejecting this submission, said: … Having regard to the language used by the learned trial judge and to the tenor of his judgment and also to the fact that he was a judge of great experience in criminal law, who had heard criminal cases in the High Court for 11 years, we find it impossible to say that he has overlooked the principle that the case against the respondent had to be proved beyond reasonable doubt … 36 The decision of the Federal Court in Ng v Lim, supra, is not only in accordance with the law in England but is also a decision which is binding on me and I am therefore obliged to apply the ‘proof beyond reasonable doubt’ standard of proof in this case. Tan Meng Heok v Tay Mui Keow URJ Divorce No 1528/88 Principle: Standard of proof for adultery is the criminal standard of proof. Contradicts the principle of ‘no-fault’ divorce? Facts: Private Investigator’s reports showed that respondent and co-respondent had consensual sexual relationship with each other at the Jurong Birdpark Carpark. Whether the court should accept the direct evidence of Private Investigators or the evidence of the respondent and co-respondent who are parties to the petition and have denied adultery. What is the standard of proof to prove adultery? Held: (KS Rajah JC): Due to discrepancies in the core of the evidence tendered by the respondent and co-respondent, the evidence from Private Investigators is preferred. The standard of proof to establish adultery is beyond reasonable doubt (criminal standard of proof). Comments: Rationale for criminal standard of proof: historical reasons as there is a provision in the PC, s498 which states that it is a criminal offence to entice or take away a married woman.

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Some judges may ask for PI’s report for the following reasons: (i) Want to establish clearly that adultery had taken place (ii) Skepticism when claiming admission to adultery as court is weary of parties concocting facts to obtain a quick divorce. In practice, for Uncontested Divorces (UD), allegation sufficient since no contest. Where contested, Plaintiff usually uses PI report.

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If party alleges adultery and def dopes not deny, then good evidence – in uncontested divorce, don’t need PI so long as spouse x contest writ So cheapest way is not to get PI but get spouse to agree not to contest it Usu adultery however is what pple don’t want -> don’t want to be seen as home wrecker But alternative grds is to use unreasonable behaviour instead – don’t expressly use adultery. Consider this grd for clients – when want pple to settle rather than contest, shld be sth acceptable to them. Don’t embarrass them. Also saves time for uncontested divorce Contested divorce – public hearing – also very embarrassing. Acrimonious

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Intolerability o Cleary v Cleary: the two parts are not related; intolerability need not be as consequence of adultery. Ie easier test

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 Intolerability does not need to flow from the adultery ∴ no need to have a nexus between the 2. Carr v Carr doubts this position although followed Cleary, as statute was then new and case was not contested.  Required nexus between intolerability and adultery.  The intolerability to live with the respondent must be as a result of the adultery.  Greater connection and natural interpretation ∴ it is the preferred view. Consider: Does W's Ch section 95(5) suggest P must find it intolerable because of the adultery? Bar in s 95(5)  
 a) Period of living together totalling up to 6 months can be disregarded in determination of whether Pf finds it intolerable to live with Df. => suggests that there is some connection – if cont to live then means that forgiven the person. b) If parties lived together for more than 6 months after adultery became known to Pf, that act of adultery cannot be relied on. (but can rely on new adulterous acts). Court drawing a line to prevent couples from using the same grounds/facts.

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Third party o Person alleged to have committed adultery with Defendant is made a party – “codefendant”. MPR r 10 – person must be given notice that she/he is codefendant. Co-defendant and person named in statement of claim 10. —(1) Subject to paragraph (2), where a statement of claim alleges that the defendant has committed adultery, the person with whom the adultery is alleged to have been committed shall be made a co-defendant in the action unless — (a) the person is not named in the statement of claim and, if the adultery is relied on for the purpose of section 95 (3) (a) of the Act, the statement of claim contains a statement that the person’s identity is not known to the plaintiff; or (b) the court directs otherwise. (2) Notwithstanding anything in paragraph (1), where a statement of claim alleges that the defendant has been guilty of rape upon a person named, that person shall not be made a co-defendant in the action unless the court so directs. (3) Unless the court directs otherwise, where a statement of claim alleges that the defendant has committed adultery, and the person with whom the adultery is alleged to have been committed is not made a co-defendant under paragraph (1) (b), a copy of the writ shall be served on that person, together with — (a) the statement of claim;

(b) the statement of particulars; (c) a notice of proceedings in Form 15; (d) a copy of an acknowledgment of service in Form 17; and (e) a copy of a memorandum of appearance in Form 19. (4) Where a statement of claim alleges that the defendant has been guilty of an improper association (other than adultery) with a person named, the court may direct that a copy of the writ be served on the person named, together with — (a) the statement of claim; (b) the statement of particulars; (c) a notice of proceedings in Form 15; (d) a copy of an acknowledgment of service in Form 17; and (e) a copy of a memorandum of appearance in Form 19. (5) A person who has been served with a writ under paragraph (3) or (4) and who wishes to intervene in the proceedings shall enter an appearance under rule 16 and shall join as a co-defendant in the proceedings at the stage which those proceedings have reached at the time he enters an appearance, and his name shall appear thereafter in the title to the action as a co-defendant in the proceedings. (6) An application for directions under paragraph (1) (b) may be made ex-parte if no appearance has been entered by the defendant. (7) Paragraphs (1), (3) and (4) shall not apply if the person named had died before the filing of the writ. (8) Rules 11, 12 and 13 shall apply to the service of a copy of a writ under paragraph (3) or (4) as they apply to the service of a copy of a writ on a co-defendant. b. “Unreasonable Behaviour” Plaintiff must show two things:

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1. Establish Df's certain behaviour (e.g. prove family violence, or neglect) 2. such behaviour makes it unreasonable to expect Pf to live with Df eg fam violence

The test: (i) Behaviour – a matter of fact (ii) Combination of subjective and objective test. Livingstone-Stallard v Livingstone- Stallard [1974] Fam 47 : what the right-thinking man would think. - (here, R belittled P, criticized her, spat at her, scolded her, kicked her out of bed, etc)

From (i) Has to be a behavioural trait eg. Extremely bad temper, using violence etc… From (ii) Subjective test Ascertain the personality of the Petitioner, would it be reasonable fro a like-minded person to live with the respondent. Objective test The behaviour should objectively be serious or grave. However, it is accepted in court that trivial acts in isolation, could cumulatively cause it to be unreasonable for the petitioner to live with the respondent. Miscellaneous Common practice of the courts: do not require the conduct of the respondent be serious or grave. However, there is still the presumption that there are normal behaviours of the husband/wife that the spouse is expected to live with. Possible to use adultery as a factual situation under this ground. Second most popular ground for divorce. Singapore examples:

Df neglects family, keeps late nights, quarrels often when asked where he/she went, Df Husband does not maintain family, gambles, loan sharks harass them, suspicions of improper

associations/adultery, domestic violence, specific instances of quarrels and fights. (in fam cases, both want divorce nlike commercial cases – ok to give to them divorce judgement)

Wong Siew Boey v Lee Boon Fatt (1994) landmark decision on test for unreasonable behr subj/obj test Can this plaintiff, with his/her personality reasonably be expected to live with this defendant? (subj element injected into this) not hypothetical wife or husb but with these partr pple

Facts The petitioner married the respondent in 1989 and the couple had two children. The petitioner wife petitioned for divorce on the ground that the marriage had broken down irretrievably by reason that the respondent husband behaved in such a way that she could not reasonably be expected to live with him. The particulars of unreasonable behaviour ran to 23 paragraphs. Held, allowing the defendants’ claim for set-off: (1) The question as to whether the wife found it intolerable to live with the respondent must be answered subjectively: Whether his attitude was reasonable is irrelevant. In dealing with behaviour, the relevant question was whether the wife could reasonably be expected to live with the husband. It was for the court to answer this, using an objective test, having regard to the personalities of individuals, however far these may be removed from some theoretical norm, in the light of the whole history of the marriage and their relationship. (2) The court must look at behaviour by taking into account the cumulative effect of behaviour. Any conduct, active or passive, constituted behaviour. The behaviour was not confined to behaviour towards wife but also towards other members of the family or towards outsiders if it had an impact on the marriage. Any and all behaviour relating to the marriage may be taken into account, including omissions. (3) On the evidence, the husband had behaved unreasonably. 24 Ancillary relief was considered in a manner which showed that the parties accepted the fact that the marriage had broken down. Little incidents may have to be taken together and the law requires the events to be taken cumulatively to see whether there is unreasonable behaviour and a breakdown of the marriage. 25 This is a very sad case. The respondent wants to save the marriage and the willingness and support of the respondent’s family was evident. But the petitioner’s stand was also clear and the court must not be asked to play the role of trying to put together a marriage that has broken down or try to put a Humpty Dumpty of a marriage together again. 26 I find as a fact that there is unreasonable behaviour on the totality of the evidence by reason of the various incidents, taken cumulatively, adduced before me

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Bar in s 95(6)

Period of living together up to 6 months to be disregarded in considering whether P could reasonably be expected to live with defendant. => more than that, to be considered

(6) Where the plaintiff alleges that the defendant has behaved in such a way that the plaintiff cannot reasonably be expected to live with him, but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the plaintiff and held by the court to support his allegation, that fact shall be disregarded in determining for the purposes of subsection (3) (b) whether the plaintiff cannot reasonably be expected to live with the defendant if the length of that period or of those periods together was 6 months or less. c. Desertion by Df for 2 years Requires showing two elements:

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Further:

separation - withdrawal from all obligations of marriage, can take place even if couple is living under the same roof (similar to AR in a criminal situation) intention to desert - Intention to bring the marriage union to an end (similar to MR in a criminal situation) Spouse that claimed to have been deserted did not consent to the desertion.

o

 No reasonable/good cause for the person who has deserted to have left the other party Le Brocq v Le Brocq [1964] 1 WLR 1085  
There may be a separation of bedrooms, of hearts but one household was carried on; parties had meals from common source, H provided money, W bought the food.

o

What is separation – not carrying out life in same hhld anymore. X mean that cannot live in same house (housing not cheap so if cannot afford to lvie somewhere else may have to stay together). Don’t want to be prejudiced, only a financial restriction.  Ensure that there aer TWO households. Goh Soo Toon v Yuen Yoke Chee [1950] 16 MLJ 96

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Where separation was by mutual agreement, there is no desertion. Separation deed here an answer to desertion charge.

o

There msut be intention to desert – this is how it is diff fr living apart (limb d and e) – this requires intention! If there is agreement, then no desertion, must go for the next limbs  Desertion is a unilateral decision unconsented to by other person who has been abandoned Miller v Miller [1948] MLJ 18 Held: there can be desertion in such circumstances from the time of coincidence of intention and separation.  Can be started without desertion but then superseded by intention There can be "constructive desertion" when Pf leaves the home due to the behaviour of Df, whose mistreatment drives P away  that is, by actions, has driven her away => desertion  though usually will just go under unreaoanble behavior, rather than wait for 2 yrs

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H and W involuntarily separated because of the Japanese occupation.

o

d. and e. Living Apart May be living apart for 3 years and Df consents to divorce (limb d) or living apart for 4 years where no consent by Df to divorce (limb e) Living apart requires separation of households and mental element of separation (by choice not necessity). Parties can live under the same roof, but still live apart by sleeping in separate bedrooms and keeping separate households (see s95(8) WCh) .  ie living apart = living in two sep hhlds, not two diff roofs Seah Cheng Hock v Lau Bian Chin [1969-1971] SLR 283 Living apart involves both physical separation and the mental attitude to live apart. Separation for purpose of studies abroad was not accompanied by mental element  Ie must live apart with the intention of living apart Leong Kwek Keong v Lee Ying Kuan [1990] SLR 228

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o


R slept at his parents' home but spent waking hours with his family. Still living together . court held that this was not living in sep hhd – still very much a family so no living apart fair for court to do this? – court only obliged to grant divorce if irretrievable breakdown of marriage – this does not appear to be iiretrievalbe breakdown

4. Circumstances make it just and reasonable to grant judgment (catch call provision) W's Ch s 95(2) and (4) Cheong Kim Seah v Lim Poh Choo [1993] 1 SLR 172

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There was living apart for 4 years. Wife asserted husband had mental problems; and she still loved him and wanted reconciliation. Allegations insufficient to showing that in the circumstances it was wrong to dissolve marriage court said that despite this, he chose 4 yrs living apart as fact for divorce so instead of using unreaonsable behaviour, he chose four yrs instead in this case, allegations insuff to show that wrong to dissolve

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ie they ought to divorce so wife saying loves him etc not sufficient to raise this bar once proven one of the grds, then very clear Facts • The petitioner Cheong and respondent Lim were married in 1964 and have two children of the marriage. On 8 February 1988 Cheong left the matrimonial home with the intention of bringing the marriage to an end. In April 1989 he filed divorce petition No 729 of 1989 on the grounds that his marriage had broken down irretrievably, in that the respondent had behaved in such a way that he could not reasonably be expected to live with her. Lim resisted the petition strenuously. Cheong then withdrew the petition in February 1992. About a week later, he filed this petition on the grounds that he and Lim had lived apart for a continuous period of four years. Lim replied that Cheong was immature and did not possess the capacity nor was he capable of forming the intention of divorcing her. She further stated that he had an inferiority complex and had been receiving psychiatric treatment for 20 years. Lim further added that she still loved and cared for him and was willing to effect a reconciliation. Cheong applied to strike out the parts of the answer referring to his character, his receiving psychiatric treatment and his capacity to present the petition as well as those parts that referred to the Lim’s willingness to reconcile. The registrar dismissed the application and Cheong appealed. Lim argued that under s 88(2) and (4) of the Women’s Charter (Cap 353) (‘the Charter’) the court had to consider all the circumstances in deciding whether it would be just and reasonable to grant a decree nisi and in order to enable the court to do so, her answer should stand in its entirety. Held, allowing the appeal: • (1) Although these were matrimonial proceedings under the Matrimonial Proceedings Rules 1981, the application was sustainable under the Rules of the Supreme Court 1970 by reason of r 2 of the Matrimonial Proceedings Rules and the High Court’s inherent jurisdiction. • (2) A respondent could oppose a petition on the grounds that it would be unjust and unreasonable to grant a decree nisi in consideration of all the circumstances of the case, including the conduct of the petitioner. In this regard, the discretion that courts in Singapore had was wider in scope and ambit than courts in England. The Singapore courts must therefore approach English cases which have pronounced on irretrievable breakdown of marriage on the ground that the parties have lived apart for five years (four years for Singapore) with caution. • (3) What Lim alleged in her answer – questions the mental capacity of the petitioner to instruct a solicitor was serious. There were rules and procedures to be followed when the authority of the solicitors conducting the matter on behalf of the petitioner was challenged. Lim should have made a proper application supported by medical evidence. To plead her allegations in her answer is an abuse of process.

(4) Lim pleaded the statutory defence in s 88(4) in the answer but this defence is no good without particulars. The particulars concerning Cheong’s mental capacity and the fact that he received psychiatric treatment was irrelevant in light of Lim’s admission that she and Cheong lived apart for four years. They were frivolous, vexatious and scandalous and intended to embarrass Cheong. Even if they were proved, they could not amount to showing that it would not be just and reasonable to dissolve the marriage, on the grounds prayed for by the petitioner, least of all when Lim could not maintain this allegation in respect of the four years immediately preceding the presentation of the petition. Therefore the parts of the answer relating to Cheong’s mental capacity were struck out. (5) The fact of separation was proved or admitted, thus raising a presumption that the marriage had irretrievably broken down. It could not be rebutted by professions of love and care, assertions that Lim provided emotional support throughout the marriage and her desire to maintain the marriage. Nor could it support the statutory defence provided by s 88(4) of the Charter having regard to the policy and philosophy of the legislation. It was a meaningless averment and was therefore struck out.

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William Cheng v Chai Mei Ling (CA) [1999] 2 SLR 487 – VERY IMPT!!!


Parties married for more than 40 years. W had problems with the son over property and money matters. to stop wife fr carrying on qwith dispute, threatened divorce High Court: Husband using divorce and courts' ancillary powers as threat to get wife to obey his wishes not to enter into legal dispute with son. IE IMPROPER, bullying. Court of Appeal: Granted divorce petition. Had shown irretrievable breakdown. There is no discretion in the court in the application of s 95(4); Cheong Kim Seah wrong in its view that there was discretion. Court also said - Only in extreme case would it be wrong to dissolve marriage (could not imagine such a case for the moment). Financial hardship per se following divorce and unilateral desire to keep marriage insufficient to rebut presumption that marriage had broken down. Ct should not investigate motive of P for divorce; would make contested divorces even more acrimonious. Ct should not be put in impossible position of having to make decisions as to whether motive proper. Merely to see whether marriage has irretrievably broken down Earlier case stating that mere fling not enough to brak down marriage therefore wrong now Facts

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The husband petitioned for a divorce under s 95(3)(e) of the Women’s Charter (Cap 353) on the basis that he and the respondent wife had lived apart for a continuous period of at least four years. The wife opposed the petition under s 95(4) by contending that it would not be just and reasonable to grant a divorce. She averred that she had not done anything wrong during the marriage and she wanted to grow old together with her husband as a married couple. She also argued that a divorce would have an adverse financial impact on her. The district judge granted the petitioner a decree nisi and the High Court judge allowed the wife’s appeal and set aside the decree nisi. The husband appealed. (1) Financial hardship was per se insufficient to resist the grant of decree. The wife had not established that she would suffer grave financial hardship to justify the court not granting the decree. (2) A spouse’s unilateral desire for reconciliation was meaningless without a reciprocal desire by the other spouse. The presumption of an irretrievable breakdown of the marriage based on separation was not rebutted. (3) The parties’ conduct leading to the breakdown of the marriage was irrelevant once the four-year separation was established as a fact. The court would not inquire into the motive for the petition to avoid making contested divorces more acrimonious.

Held, allowing the appeal, decree nisi restored:


• •

Judicial Separation (marriage technically still subsisting) Divorce terminates marriage, JS does not but relationship changes: parties need not cohabit any longer (s 101(2)) and spouses judicially separated cannot claim against each other in intestacy (s101(3)).  Halfway house

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 Court has powers to grant order for division of assets etc JS does not require proof that marriage has broken down irretrievably but Ps must still prove one of the facts in s 95; thus similar to divorce in terms of how it is obtained or granted. For relig purposes normally – cannot get divorce so get JS. Rserved for those who cant get divorce for certin reasons

Judicial separation 101. —(1) A writ for judicial separation may be filed in court by either party to a marriage on the ground and circumstances set out in section 95 (3), and that section shall, with the necessary modifications, apply in relation to such a writ as it applies in relation to a writ for divorce.

(2) Where a court grants a judgment of judicial separation, it shall no longer be obligatory for the plaintiff to cohabit with the defendant. (3) The court may, on an application by writ of the spouse against whom a judgment of judicial separation has been made and on being satisfied that the allegations in the writ are true, rescind the judgment at any time on the ground that it was obtained in the absence of the plaintiff or, if desertion was the ground of the judgment, that there was reasonable cause for the alleged desertion. Judicial separation no bar to writ for divorce 102. —(1) A person shall not be prevented from filing a writ for divorce, or the court from pronouncing a judgment of divorce, by reason only that the plaintiff or defendant has at any time been granted a judicial separation upon the same or substantially the same facts as those proved in support of the writ for divorce. (2) On any such writ for divorce, the court may treat the judgment of judicial separation as sufficient proof of the adultery, desertion or other ground on which it was granted, but the court shall not grant a judgment of divorce without receiving evidence from the plaintiff. (3) For the purposes of any such writ for divorce, a period of desertion immediately preceding the institution of proceedings for a judgment of judicial separation shall, if the parties have not resumed cohabitation and the judgment has been continuously in force since it was granted, be deemed immediately to precede the filing of the writ for divorce. Judicially separated spouses not entitled to claim in intestacy of each other 103. If, while a judgment of judicial separation is in force and the separation is continuing, either of the parties whose marriage is the subject of the judgment dies intestate after 1st June 1981, all or any of his or her movable or immovable property shall devolve as if the other party to the marriage had been then dead. Divorce Proceedings Divorce Case Process Hearing (Contested or Uncontested) – see flow chart plaintiff - Writ, Statement of Claim, Statement of Particulars Appearance / Non-appearance “Pleadings”: Defence/Counterclaim/Reply Set Down AEICs Divorce Case Process Interim Judgment Affidavits of Means (if any) Ancillary Matters Hearing & Order of Court (if any) Certificate of Making Interim Judgment Final (Final Judgment) Interim Judgment With All Ancillary Matters concluded/recorded

Commencement of Proceedings— Documents MPR r 5: Mode of commencement of divorce proceedings is by writ, in Form 3. Writ of Summons for the Dissolution of Marriage Rule 5, MPR EFS _- automatically generated Writ: new form (Form 3) Auto-generated Lists documents to be served with it, length of validity Contains endorsements to the Defendant, endorsement as to address for service, and a statement of relief claimed Commencement of proceedings, etc. 5. —(1) All proceedings for divorce, presumption of death and divorce, judicial separation, nullity of marriage, or rescission of a judgment of judicial separation shall be commenced by filing a writ in Form 3. (2) Unless the Act or these Rules otherwise provide, every application under Part X of the Act or these Rules shall be made either by originating summons or, in a pending action or matter, by summons in Form 4.

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MPR r 7: Pf to file with divorce writ: statement of claim (which should state the s95(3) fact relied on), statement of particulars, notice of proceedings in Form 15 if there is co-df, and Pf’s claim on ancillary matters  petition now writ (SOC)

Statement of Claim Rule 7, MPR Standard form Statement of Claim Divorce/Judicial Separation (Form 6) Nullity (Form 7) Nullity and Alternatively for Divorce/Judicial Separation (Form 8) Presumption of Death and Divorce (Form 9) Rescission of Judgment of Judicial Separation (By Spouse Against Whom Judgment of Judicial Separation is Made) (Form 10) Statement of claim 7. —(1) The plaintiff shall file, together with a writ — (a) a statement of claim in Form 6, 7, 8, 9 or 10, as appropriate; (b) a statement of particulars in Form 11; and (c) where applicable, a notice of proceedings in Form 15. (2) The statement of particulars shall set out in full the particulars of the facts pleaded in the statement of claim but not the evidence by which those facts are to be proved, and shall be signed by the solicitor for the plaintiff or, where the plaintiff is acting in person, by the plaintiff. (3) The statement of particulars shall form part of the statement of claim and, unless the context otherwise requires, the provisions of these Rules which relate to a statement of claim shall apply, with the necessary modifications, to the statement of particulars. Statement of Particulars Statement of Particulars (Form 11) to form part of Statement of Claim, setting out full particulars of facts pleaded, but not the evidence by which they are to be proved To be signed by the plaintiff’s solicitor, or by the plaintiff if acting in person, as it is part of a pleading

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if children => Parenting Plan (MPR r 8) and if HDB flat./ home => Matrimonial Property Plan (MPR r 9) must be filed where applicable.

Parenting Plans Rule 8, MPR Agreed (Form 27) and Proposed (Form 28) Plans Compels parties to focus on arrangements for children upon divorce Form requires parties to give details on current and proposed care arrangements and other information regarding the child Matrimonial Property Plans Rule 9, MPR Only applies to matrimonial assets under S 112 WC, where the asset is: an HDB flat; or rights under an agreement to purchase an HDB flat. o Does not cover private property Aim is to compel parties to make discovery of the rules governing their home before commencing divorce action. 2 types: Agreed (Form 31) and Proposed (Form 32), accompanied by Particulars of Arrangements for Housing (Form 35); Forms require information from HDB and CPFB on the regulations affecting HDB, which information can be obtained from making standard queries with departments.

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Standard queries found in Practice Directions.

Parenting plan 8. —(1) Where a writ for divorce, presumption of death and divorce, judicial separation or nullity of marriage discloses that there is any dependent child of the marriage, the plaintiff shall file, together with the writ — (a) an agreed parenting plan in Form 27; or (b) a proposed parenting plan in Form 28. (2) The parties to a marriage shall try to agree on the arrangements for the welfare of every dependent child of the marriage and file an agreed parenting plan. (3) If the parties are unable to agree on the arrangements for the welfare of any dependent child of the marriage, the parties may seek the advice and assistance of a person, whether or not a public officer, who is trained or has experience in matters relating to child welfare, so that the parties may resolve their disagreements harmoniously. (4) In reaching an agreement on the arrangements for the welfare of any dependent child of the marriage, the parties to the marriage must regard the welfare of that child as the paramount consideration. Matrimonial property plan 9. —(1) Where a writ for divorce, judicial separation or nullity of marriage discloses that there is an HDB matrimonial asset to be divided, the plaintiff shall file, together with the writ — (a) an agreed matrimonial property plan in Form 31 and the particulars of arrangements for housing in Form 35; or (b) a proposed matrimonial property plan in Form 32 and the particulars of arrangements for housing in Form 35. (2) Where, at any time after the filing of a writ for divorce, judicial separation or nullity of marriage, it is disclosed that there is an HDB matrimonial asset to be divided, the plaintiff shall file the documents referred to in paragraph (1) (a) or (b) in court — (a) within the time specified by the court; or (b) if no time is specified by the court, before the court makes any order under section 112 of the Act. (3) Prior to the filing of an agreed matrimonial property plan under paragraph (1) — (a) the plaintiff and the defendant shall each submit the CPF standard query to the Central Provident Fund Board, which shall give each party its written reply within such time and in such manner as the Registrar may specify; and (b) the plaintiff shall, unless the court directs otherwise, serve the agreed matrimonial property plan on the Housing and Development Board, which shall, within one month from the date of service, give the plaintiff its written reply as to whether it has any objection to the agreed matrimonial property plan or the agreement and, if it has any objection, the nature of the objection. (4) Prior to the filing of a proposed matrimonial property plan under paragraph (1), the plaintiff shall submit the CPF standard query and the HDB standard query to the Central Provident Fund Board and the Housing and Development Board, respectively, each of which shall give the plaintiff its written reply within such time and in such manner as the Registrar may specify. (5) Where the Central Provident Fund Board or the Housing and Development Board does not give its written reply within the time specified by the Registrar under paragraph (3) or (4), as the case may be, the plaintiff — (a) may file the writ without the agreed matrimonial property plan or proposed matrimonial property plan; but (b) shall file the plan within 7 days of the receipt of the written reply. (6) The court may, in an appropriate case, abridge the time within which the Central Provident Fund Board or the Housing and Development Board shall give a written reply under paragraph (3) or (4), as the case may be. Summary: Documents to be filed with Writ of Summons Statement of Claim Statement of Particulars Acknowledgment of Service (for def) Memorandum of Appearance (for def) Parenting Plan (if applicable) Matrimonial Property Plan (if applicable) Third party Rule 10, MPR Adultery: Co-defendant must be named and served, unless the identity is unknown or court directs otherwise

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Unreasonable behaviour – Improper association: court can direct person named to be served Different forms for 3rd Party: o Notice to Person Entitled to Intervene o Acknowledgement of Service (Person Entitled to Intervene) o Memorandum of Appearance (Person Entitled to Intervene)

Service of Documents Rules 11-12, MPR Same as service of originating process for civil procedure, except: service by registered post permissible provided o Acknowledgment of Service is returned by Defendant; o no need for leave to serve out of jurisdiction; o a writ is valid for 12 months at first instance. Standard forms for advertisement and affidavit of service (Forms 14, 16-17). Service of writ, etc. 11. —(1) Unless the court directs otherwise — (a) a copy of the writ, together with — (i) a statement of claim in Form 6, 7, 8, 9 or 10, as appropriate; (ii) a statement of particulars in Form 11; (iii) a copy of an acknowledgment of service in Form 16; and (iv) a copy of a memorandum of appearance in Form 18, shall be served personally or by registered post on the defendant; (b) a copy of the writ, together with — (i) a statement of claim in Form 6, 7, 8, 9 or 10, as appropriate; (ii) a statement of particulars in Form 11; (iii) a notice of proceedings in Form 15; (iv) a copy of an acknowledgment of service in Form 17; and (v) a copy of a memorandum of appearance in Form 19, shall be served personally or by registered post on each co-defendant named in the writ; (c) a copy of any parenting plan filed under rule 8 and a copy of any matrimonial property plan filed under rule 9 shall be served personally or by registered post on the defendant; and (d) a copy of each originating summons shall be served personally or by registered post on the defendant. (2) Where the court directs, a copy of a summons shall be served personally or by registered post on the defendant. (3) Where the solicitor for a defendant or co-defendant endorses on a document served under paragraph (1) or (2) a statement that he accepts service of the document on behalf of the defendant or co-defendant, the document shall be deemed to have been duly served on the defendant or co-defendant and to have been so served on the date on which the endorsement was made. (4) For the purposes of paragraphs (1) and (2), a document shall be deemed to have been duly served on a party by registered post if the document is sent by prepaid registered post to the party, and the party signs and returns an acknowledgment of service in accordance with Form 16 or 17 to the solicitor for the plaintiff, or to the plaintiff if he is acting in person, at the address for service. (5) Where the party to be served is the defendant, his signature on the acknowledgment of service shall be proved at the trial or hearing. (6) An application for leave to substitute for the modes of service specified in paragraphs (1), (2) and (3) some other mode of service, or notice of the proceedings by advertisement, shall be made ex-parte by summons supported by an affidavit setting out the grounds on which the application is made. (7) Where leave is given to substitute for the modes of service specified in paragraphs (1), (2) and (3) notice of the proceedings by advertisement under paragraph (6), the form of the advertisement shall be in accordance with Form 14. Service out of jurisdiction 12. —(1) Any writ, originating summons, summons or other document in proceedings under Part X of the Act may be served out of the jurisdiction without leave and, except as aforesaid, the procedure with regard thereto shall conform as nearly as may be to the procedure in the like case under the Rules of Court (Cap. 322, R 5).

(2) Unless the court directs otherwise, where a writ is to be served out of the jurisdiction, the time limited for appearance to be endorsed on the writ or entered in any notice accompanying the writ shall be 21 days after service of the writ. (3) Where an originating summons is to be served out of the jurisdiction, the return date for the originating summons shall be fixed having regard to the time which would be limited for appearance under paragraph (2) if the originating summons had been a writ. Proof of service 13. Unless the court directs otherwise, and except where service has been dispensed with under rule 15, a writ shall not proceed to trial or hearing unless the defendant, every co-defendant and every person named in the statement of claim who is required under rule 10 (3), or whom the court has directed under rule 10 (4), to be served with the writ — (a) has entered an appearance; or (b) where the defendant, co-defendant or person named, as the case may be, has not entered an appearance — (i) is shown by affidavit in accordance with Form 20 (which shall be filed) to have been served with the writ in accordance with rule 11 or 12; or (ii) has returned to the solicitor for the plaintiff, or to the plaintiff if he is acting in person, an acknowledgment of service in accordance with Form 16 or 17 which shall be lodged with the Registrar. Service of other documents 14. —(1) Except as provided in these Rules, Order 62, Rule 6 of the Rules of Court (Cap. 322, R 5) shall apply to the service of any document in proceedings under Part X of the Act. (2) Unless otherwise provided, the service of any summons shall be effected within 3 days of the filing of the summons. (3) A copy of every affidavit filed in support of an application under rule 4, or pursuant to an order for interrogatories or discovery, shall be delivered to the other party if he is the plaintiff or has entered an appearance within 24 hours after the affidavit has been filed. Dispensation with service 15. —(1) The court may, in an appropriate case, dispense with the service of any writ, originating summons, summons or other document on any person. (2) When an order is made under paragraph (1) that the service of a document be dispensed with, that document shall for the purposes of these Rules be deemed to have been duly served. Entry of Appearance Rule 16, MPR Timeframe within which appearance must be entered standardised: 8 days for service within jurisdiction; 21 days for service outside jurisdiction. Appearance under protest abolished – Order 12 rr 6-7 ROC adopted. Standard forms (Forms 18-19) Entry of appearance 16. —(1) A defendant, co-defendant or person named in a statement of claim who has been served with a writ may enter an appearance in the proceedings and defend it by a solicitor or in person. (2) If the person desiring to appear is acting in person, he shall file a memorandum of appearance in accordance with Form 18 or 19, whichever is appropriate, containing an address for service within the jurisdiction. (3) If a solicitor is acting on behalf of the person desiring to appear, the solicitor shall file a memorandum of appearance in accordance with Form 18 or 19, whichever is appropriate, containing an address for service which shall be the address at which the solicitor carries on business. (4) A memorandum of appearance shall, unless the court gives leave to the contrary, be filed — (a) in the case of a writ served within jurisdiction, within 8 days after service of the writ or, where that time has been extended, within the time so extended; and (b) in the case of a writ served out of jurisdiction, within 21 days after service of the writ or, where that time has been extended, within the time so extended. (5) The Registrar shall, on receipt of the memorandum of appearance, send to the plaintiff or his solicitor one copy of the memorandum sealed with the seal of the court. (6) Order 12, Rules 6 and 7 of the Rules of Court (Cap. 322, R 5) shall apply, with the necessary modifications, to a person desiring to appear under this rule. Other Pleadings Rules 18-19, MPR

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Standard forms o Defence and Counterclaim (Form 12), o Defence to Counterclaim/Reply/Reply and Defence to Counterclaim/Other Pleading (Form 13)

Defence and counterclaim, etc. 18. —(1) A defendant who has entered an appearance in the proceedings and who wishes to defend all or any of the allegations made in the statement of claim shall, within 14 days after the expiration of the time limited for the entry of such appearance, file a defence in Form 12. (2) A co-defendant or person named who has entered an appearance in the proceedings and who wishes to defend all or any of the allegations made in the statement of claim shall, within 14 days after the expiration of the time limited for the entry of such appearance, file a defence in Form 12. (3) A defendant who has entered an appearance in the proceedings and who wishes to apply for divorce, judicial separation or nullity of marriage, in addition to defending all or any of the allegations made in the statement of claim, shall file a defence, together with a counterclaim, in Form 12 (collectively referred to in these Rules as a defence and counterclaim) within the time specified in paragraph (1). (4) Rules 10, 11, 12, 13 and 15 shall apply, with the necessary modifications, to a counterclaim as they apply to a writ or statement of claim, except that where a counterclaim alleges that the plaintiff has committed adultery, the person with whom the adultery is alleged to have been committed shall be named as a defendant in counterclaim and not as a co-defendant. (5) Rule 16 shall apply, with the necessary modifications, to the entry of appearance by a defendant in counterclaim or by a person named in a counterclaim who has been served with the counterclaim, as it applies to the entry of appearance by a co-defendant or by a person named in a statement of claim who has been served with a writ, respectively. (6) A defendant in counterclaim, or a person named in a counterclaim, who has entered an appearance in the proceedings and who wishes to defend all or any of the allegations made in the counterclaim shall, within 14 days after the expiration of the time limited for the entry of such appearance, file a defence to counterclaim in Form 13. (7) Where the defence filed by a defendant alleges that the plaintiff has committed adultery or has been guilty of an improper association (other than adultery) with a person named — (a) rule 10 shall apply, with the necessary modifications, to that defence as it applies to a writ or statement of claim; (b) rule 16 shall apply, with the necessary modifications, to the entry of appearance by the person named, as it applies to the entry of appearance by a person named in a statement of claim who has been served with a writ; and (c) if the person named has entered an appearance in the proceedings and wishes to defend all or any of the allegations made in that defence, the person named shall, within 14 days after the expiration of the time limited for the entry of such appearance, file a reply in Form 13. (8) A defendant who has been served with a proposed parenting plan under rule 8 may, within 14 days after the expiration of the time limited for the entry of appearance, and if the court so directs shall, within the time specified by the court, file — (a) the defendant’s agreement to the proposed parenting plan in Form 29; or (b) a proposed parenting plan in Form 30 setting out the defendant’s proposed arrangements for the welfare of every dependent child of the marriage. (9) A defendant who has been served with a proposed matrimonial property plan under rule 9 shall, within 14 days after the expiration of the time limited for the entry of appearance, submit the CPF standard query to the Central Provident Fund Board, which shall give its written reply within such time and in such manner as the Registrar may specify. (10) A defendant shall, within 14 days of receiving the written reply under paragraph (9) — (a) send the defendant’s agreement to the proposed matrimonial property plan in Form 33 and the particulars of the HDB matrimonial asset in Form 35 to the solicitor for the plaintiff, or to the plaintiff if the plaintiff is acting in person; or (b) file a proposed matrimonial property plan in Form 34 setting out the defendant’s proposed arrangements in respect of the HDB matrimonial asset and the particulars in Form 35. (11) A proposed parenting plan filed under paragraph (8) (b) and a proposed matrimonial property plan filed under paragraph (10) (b) shall be served on the plaintiff within 24 hours after it is filed. (12) When the time limited for entry of appearance by a defendant, co-defendant, defendant in counterclaim or person named has expired, and no appearance has been entered by that defendant, co-defendant, defendant in

counterclaim or person named, then the time for that defendant to file a defence, with or without a counterclaim, for that co-defendant to file a defence, for that defendant in counterclaim to file a defence to counterclaim, or for that person named to file a defence, defence to counterclaim or reply, as the case may be, shall be deemed to have expired notwithstanding that the period of 14 days has not elapsed. Reply and other pleadings 19. —(1) The plaintiff may file a reply or a reply and defence to counterclaim within 14 days from the service of the defence or the defence and counterclaim, as the case may be. (2) Where a reply and defence to counterclaim has been filed by the plaintiff, the defendant may file a reply to defence to counterclaim within 14 days from the service of the reply and defence to counterclaim. (3) Where a defence to counterclaim has been filed by a defendant in counterclaim or person named in a counterclaim, the defendant may file a reply to defence to counterclaim within 14 days from the service of the defence to counterclaim. (4) Except as provided in paragraphs (2) and (3), no pleading subsequent to a reply or a defence to counterclaim shall be filed without the leave of the court. (5) All pleadings other than a statement of claim or a defence, with or without a counterclaim, shall be in Form 13. Setting Down for Trial Rule 45, MPR Timeframe to set down - 14 days from close of pleadings (time of filing the last pleading); Standard form: Form 22. Setting down for trial 45. —(1) The plaintiff shall set the action down for hearing by filing a notice in Form 22 within 14 days after the expiry of the time for the filing of the last pleading or within such other time as the court may direct. (2) Notice of trial shall be given to each party in the action who has entered an appearance. (3) If the plaintiff fails to set the action down within the time specified in paragraph (1) or within such extended time as the court or a Judge allows, any party defending the action may set it down for trial or hearing and shall, within 24 hours of having done so, give the plaintiff and all other parties in the action who have entered an appearance notice of his having done so. (4) Except with the consent of all parties or by leave of the Judge, no action shall be tried or heard until after the expiration of 10 days from the date of setting down. Stages

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Divorce is given in two stages: interim judgment given, followed by final judgment at least 3 months later. (of public character, window for intervention).  No more decree nisi/absolute Electronic Filing System (EFS) in Family Court began in Dec 2003.

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Current filing is through electronic system. – only efiling for divorce

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Case Conferences in course of proceedings, parties will be called back for case conf – directions then given for just and equitable disposition fo case o not fair for threat of suits hanging over parties parties also take out interim proceedings so case conf called, diff type at diff stages performing diff fns Provided for in o Order 34A of ROC o PD see guide – breaking down diff types of conferences

PRE-TRIAL CONFERENCES Power to make orders and give directions for the just, expeditious and economical disposal of proceedings (O. 34A, r. 1) 1. —(1) Notwithstanding anything in these Rules, the Court may, at any time after the commencement of any

proceedings, of its own motion direct any party or parties to those proceedings to appear before it, in order that the Court may make such order or give such direction as it thinks fit, for the just, expeditious and economical disposal of the cause or matter. (1A) Where the Court makes orders or gives directions under paragraph (1), it may take into account whether or not a party has complied with any relevant pre-action protocol or practice direction for the time being issued by the Registrar. (2) Where any party fails to comply with any order made or direction given by the Court under paragraph (1), the Court may dismiss the action, strike out the defence or counterclaim or make such other order as it thinks fit. (3) The Court may, in exercising its powers under paragraph (1), make such order as to costs as it thinks fit. (4) Any judgment, order or direction given or made against any party who does not appear before the Court when directed to do so under paragraph (1) may be set aside or varied by the Court on such terms as it thinks just. Pre-trial conferences to be held when directed by the Court (O. 34A, r. 2) 2. —(1) Without prejudice to Rule 1, at any time before any action or proceedings are tried, the Court may direct parties to attend a pre-trial conference relating to the matters arising in the action or proceedings. (2) At the pre-trial conference, the Court may consider any matter including the possibility of settlement of all or any of the issues in the action or proceedings and require the parties to furnish the Court with any such information as it thinks fit, and may also give all such directions as appear to be necessary or desirable for securing the just, expeditious and economical disposal of the action or proceedings. (3) The Court, having made directions under Rule 2 (2) or Rule 3 may either on its own motion or upon the application of any party, if any party defaults in complying with any such directions, dismiss such action or proceedings or strike out the defence or counterclaim or enter judgment or make such order as it thinks fit. (4) Any judgment or order made under Rule 2 (3) may be set aside by the Court, on the application of the party, on such terms, if any, as it thinks just. (5) [Deleted by S 283/97] (6) At any time during the pre-trial conference where the parties are agreeable to a settlement of some or all of the matters in dispute in the action or proceedings, the Court may enter judgment in the action or proceedings or make such order to give effect to the settlement. Notification of pre-trial conferences (O. 34A, r. 3) 3. All parties shall be informed of the date and time appointed for the holding of the pre-trial conference by way of a notice in accordance with Form 64, and each party shall comply with any directions contained in such notice. Attendance at pre-trial conferences by solicitor or in person as directed by the Court (O. 34A, r. 4) 4. Parties to the action or proceedings may be represented at the pre-trial conference by their solicitor, if any, but may, if they so desire, with the leave of the Court, attend the pre-trial conference personally, at the time originally appointed or as adjourned, in addition to their solicitor. Adjourned and subsequent pre-trial conferences (O. 34A, r. 5) 5. A pre-trial conference may be adjourned from time to time, either generally or to a particular date, as may be appropriate. Failure to appear of one or more of the parties (O. 34A, r. 6) 6. —(1) If, at the time appointed for the pre-trial conference, one or more of the parties fails to attend, the Court may dismiss the action or proceedings or strike out the defence or counterclaim or enter judgment or make such other order as the Court thinks fit. (2) An order made by the Court in the absence of a party concerned or affected by the order may be set aside by the Court, on the application of that party, on such terms as it thinks just. (3) Without prejudice to the preceding paragraphs of this Rule, where one or more of the parties to the action or proceedings fails to attend the pre-trial conference, the Court may, if it thinks fit, adjourn the conference. Non-disclosure (O. 34A, r. 7) 7. No communication of facts disclosed or of any matter considered in the course of a pre-trial conference in any action or proceedings shall be made to the Court conducting the trial of the action or proceedings.

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May have UD (uncontested divorce) or CD (contested divorce).

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UD encouraged esp through mediation – Pf proceeds on writ while Df withdraws defence, or proceed with both writ and Counterclaim. UD keeps cost low, at not more than $2000. divorce petition granted on whatever plaintiff has said because no contest or def can use counterclaim – eg husb says that wife has been unreasonable. Wife then says tt wants divorce but on her terms. Mediator knows that both watns divorce, qn is how to get it – proceed on plaintiff story or def story? Each wants their story to be basis.

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In mediation – go through each party’s writ and counterclaim. Decide what is so objectionable that must be struck out. Object to graphic details or gruesome facts Tone down. Then othe party may be willing to accept toned down version. See who is wiling to let writ go forward and get divorce based on that Divorce may be granted based on both writs – writ and counterclaim

Hearing of Writ for Divorce Uncontested matrimonial proceedings o Summary hearing provided for in PD; o PD requirement for the filing of an Affidavit of Evidence in Chief (AEIC) for the purpose of the open court hearing; to expedite, need to file a short AEIC to attest to claims o Timeframe for filing AEIC; o Standard forms for both plaintiff (proceeding on statement of claim) and defendant (proceeding on counterclaim) in PD. Contested matrimonial proceedings o Same procedure as for writs o Rule 42 MPR Evidence 42. —(1) Subject to paragraph (2), unless the court directs otherwise, Order 38 of the Rules of Court (Cap. 322, R 5) in relation to an action commenced by writ shall apply, with the necessary modifications, to the trial or hearing of an action commenced by writ under Part X of the Act. (2) Unless the court directs otherwise, Order 38 of the Rules of Court in relation to a cause or matter begun by originating summons shall apply, with the necessary modifications, to the hearing of an application under rule 4 and an application for ancillary relief in a writ. (3) Any party may apply for the appointment of an examiner or for a commission or for letters of request to examine a party or witness in any proceedings under Part X of the Act, and for leave to give the depositions taken on examination in evidence at the trial or hearing, and Order 39 of the Rules of Court shall apply to the examination. (4) Nothing in any order made under this rule shall affect the power of the Judge at the trial or hearing to refuse to admit evidence tendered in accordance with any such order if, in the interests of justice, he should think fit to do so. Hearing of Ancillary Matters Uncontested ancillary matters o Draft consent orders – both aprties to sign and then file in court; o Agreed plans; o Signing agreement in proposed plans – def to sign and signify agreement in docs tt are served. Contested ancillary matters (fight over property and maintenance) o Evidence- Rule 42 MPR; o Standard form Affidavit of Means in PD (for first affidavit to be filed – form encourages parties to give full disclosure in first step)(but parties tend to file very little info upfront, so need to file more affidavits, not cost saving!); o Discovery, interrogatories, inspection—standard forms for request and response; standard form applications (all in PD); o CPF order for disclosure of a party’s CPF information if necessary – creatd specifically for matr proceedings, in many cases CPF money used ot buy peorpryt, so ipt to noe how much each part contrib. using CPF monies. - in some cases cpf moenis become part of asset pool; so need order that CPF issue information (issue of confidentiality that’s why need order)

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Safeguards for the examination of children — standard form applications in PD; prevents child from being interviewed by more than one mental health professional for the proceedings; o to safeguard children fr being overexamined Declaration of Value of Matrimonial Assets arising from Transfer Order (Standard form in PD); Ancillary Matters Fact and Position Sheet to be filed and exchanged at least 5 working days before the hearing; Standard CPF charging orders. o CPF monies an asset but not ready in distrubtion – min age reqt, other rules o So created std CPF charging orders to charge certain amts if court deems such fair

Interim Judgment, Final Judgment Standard forms (Forms 23, 24 and 26) Reminder o Final Judgment will only be issued if all the ancillary matters are dealt with, unless court otherwise orders o Application for final judgment may be filed 3 months after the ancillary matters are dealt with, or 1 year from the interim judgment, whichever is later (Rule 59(3)). Other Forms Other standard forms provided in MPR include: o OS for dissolution of marriage (Form 1) o Summons (Form 4) o Order of Court (Form 25)

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Mediation


Mediation can assist in reaching UD. Lawyers must be prepared to advise clients on what is acceptable, what the implications of UD and CD are etc. take this seriously.

I have been served with divorce papers. What should I do? Step 1: You should complete the Acknowledgment of Service to let the other party know that you have received the divorce papers. You should also complete the Memorandum of Appearance to indicate whether you agree with the divorce and whether you wish to be heard on the ancillary matters (that is, issues concerning custody, maintenance and division of matrimonial property). You must complete the copies provided to you with the divorce papers, not the forms on this website. Step 2: You should file the Memorandum of Appearance within 8 days of receiving the divorce papers. Step 3: If you do not agree to the divorce, you should file a Defence within 22 days of receiving the divorce papers. All documents must be filed through the Electronic Filing System. Please note that court filing fees are payable for doing so. There are also transmission, handling and processing fees for filing the documents through Electronic Filing System. It is important to note that the Court may proceed to hear the case in your absence and grant a divorce, if you fail to take these steps.

If you were served with a divorce petition, you should use the forms available here. What can I do if I too want a divorce but I disagree with what my spouse has said in the divorce papers? If you disagree with what your spouse has said in the Statement of Claim and Statement of Particulars, you must file a Defence to state your objections. If you also wish to apply for a divorce, you may file a Defence and Counterclaim instead of only a Defence. In your Counterclaim, you must say why you are applying for a divorce, and ensure that the facts revealed by you satisfy one of the five facts to prove that the marriage has broken down irretrievably.

Ancillary Matters (“AMs”) Upon Divorce (orders) Disputes arise in 2 areas: 1. Care & control of children Who has custody (generally little dispute, since parties with an agreement) Amount of access to children (more difficulties arise in this area) 2. Division of matrimonial assets If relatively well-informed of each other’s financial attributes, then division of assets more manageable Problems arise where parties are unclear of the specifics of each other’s earnings or assets May compel discovery or request IR8A form to obtain declaration of earnings and income. But if party in business, investments in shares/ stocks would not be reflected (IR8A form not an accurate reflection of parties’ financial worth) Can check shares by requesting CDP accounts – though may purchase shares in someone else’s name or out of jurisdiction Problems of discovery if parties with shares, property and other investments outside of Singapore – not know extent owned by party. Credit card statement may provide clues of person’s real net worth (over what he’s actually declaring) Generally, extent of property or assets may invariably be untraceable Upon granting a Divorce, Nullity or Judicial Separation (at interim stage), court has jurisdiction and powers to make orders on:

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Custody, care and control, access of children of marriage Maintenance of Wife and Child Division of Matrimonial Assets

CHILDREN When parents break up, household breaks down, new arrangements must be made for the children Parenting Plan must be filed with Divorce writ if there are children of the marriage: MPR r 8. Court can make orders of custody, care and control and access. Custody - application - governed by Part X WC and guardianship of infants act - applications made to fam court and commenced in following modes interim application by way of summons filed under divorce petition interim application by way of special pre trial conference orig fr divorce petition main action by way of originating summons one of ancillary matters after grant of divorce MPR: Custody of and access to children 55. —(1) The plaintiff or the defendant spouse or guardian, or any person who has obtained leave to intervene in the action, for the purpose of applying for custody or who has the custody or control of any child of the marriage

under an order of the court, may, after entering an appearance (where applicable) to the writ for this purpose, apply at any time either before or after final judgment to a Judge for an order relating to the custody or education of the child or for directions that proper proceedings be taken for placing the child under the protection of the court. (2) A plaintiff may, at any time after filing a writ under Part X of the Act, and a defendant spouse may, at any time after entering an appearance, apply for access to any child of the marriage. My spouse/partner has left home with my children. I want my children back or at the least, a chance to see my children from time to time. What can I do? You can apply to the Family Court for an order that the children be returned to you and that you be given the custody and/or care and control of the children, if you wish to have the children living with you. If you want to have contact with the children from time to time, you can apply for an access order, that is, an order to allow you to see the children. To apply for custody or access, you can: (a) file an originating summons under the Guardianship of Infants Act; or (b) include a 'prayer' or application for custody of or access to the children in the Divorce Petition if divorce is contemplated. If legal proceedings have already been commenced, and an immediate order is required, you can also file a Summons-in-Chambers for interim custody and access. When I first separated from my spouse, we could not agree on the arrangements to be made for the children and obtained court orders on custody of and access to the children. I am now contemplating divorce. Will the custody and access orders made earlier still apply? In your divorce petition, you will still have to include a prayer for custody and access. The court will not finalise a divorce order unless suitable arrangements have been made for the welfare of the children. If both parties are satisfied with the earlier order, they may ask the court to adopt similar custody and access orders in the ancillary matters hearing. Alternatively, either party can ask the court to reconsider the custody and access issue and persuade the court to make different orders. These principles apply to both Muslim as well as non-Muslim parties. However, Muslim parties should refer to specific sitns on when the Family Court can deal with custody cases involving Muslim parties. As a Muslim, should I file applications for custody of and/or access to my children at the Family Court or the Syariah Court? The answer depends on whether there are divorce proceedings involving your spouse and you at the Syariah Court: (a) If no divorce proceedings have been commenced in the Syariah Court, you may make an application for custody or access at the Family Court by filing an Originating Summons under the Guardianship of Infants Act. If divorce proceedings have been commenced in the Syariah Court or if the Syariah Court has already granted a divorce, you should make the application for custody during the divorce proceedings. If you would like to file applications at the Family Court instead, you would first have to obtain (i) a "Commencement Certificate" from the Syariah Court to allow civil proceedings to be started at the Family Court; or (ii) your spouse's consent to begin custody proceedings at the Family Court and a "Counselling Attendance Certificate" from the Syariah Court. The Family Court has no power to hear the case if either of these conditions is not met.

(b)

I have already filed a custody application at the Family Court. My spouse then filed divorce proceedings at the Syariah Court and in his/her divorce application, he/she also asked the Syariah Court to decide the custody issue. Which court will deal with the matter? If the application for custody of and/or access to the children is filed at the Family Court and divorce proceedings at Syariah Court are subsequently commenced, the Family Court will stop hearing the custody application. The Family Court will only proceed with the hearing of the matter provided either condition is met: (i) the Syariah Court issues a "Continuation Certificate" to allow the civil proceedings at the Family Court to continue; or (ii) your spouse consents to continue with the custody proceedings at the Family Court and a "Counselling

Attendance Certificate" is issued by the Syariah Court. If my custody case is heard before the Family Court, which is the law that will apply in deciding who gets the custody of my children? As long as the custody proceedings are conducted in the civil courts, the applicable law will not be Muslim law but civil law (that is, general family law). See questions 1-26 for the applicable principles. Defn Of Custody Types of orders 4 types o sole custody – custodial parent may make major decisions for child without agreement of other parent o jt custody order – both oparents to make maj decisions jtly ie must agree; in absence of agreement either parent to aply to cout for determination of process o hybrid order – sole cystody order but with order tt custodial parent to consult or even obtain consent of non custodial parent when making specific decisions eg choice of sch etc o split custody order – one sibling custody granted to one and another to other; generally siblings shld be cared for by same parent – if split cystody order sought, parents must file affidavits in support of split custody order and explain how in best interests of children three main decision making areas o medical – whther to be hospitalized, whether non emergency surgical proced to be performed o education – issues like hcoice of sch, choice of subj, whether to attend partr field trip, tuition o religion – going through relig ceremonies, relig instruction of child etc

“Custody”, “Care and Control” “Access” A custody order gives the parent control and responsibility over the upbringing and education of the child. ( decision-making power over important aspects of the child’s life).  In diff juris, custody means diff things


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In sg -> auth and control over maj aspects of child Custody not just physical custody • Custody mixed up with care and control – mistaken concept of physical control But can be virtual

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An order for care and control gives the parent authority and responsibility over the day to day matters of the child (child resides with the parent with care and control). ie who child lives with on day to day basis  England – residence orders The parent who does not have care and control is given “access” to the child (regular hours of contact with the child, e.g. one day during the weekend, sometimes also a partial weekday, overnight access too)  US – visitation  England and Australia – contact

How can I get to see my children if they do not live with me? Would the court allow me to see my children? You can apply for an access order to ensure that you get to see your children regularly. In deciding the access issue, the paramount or most important consideration is the welfare of the children. As a general rule, the court will grant a non-custodial parent access to the children to enable the children to build a bond with both parents. If both parents are cooperative and want the access arrangements to be flexible, an order that 'reasonable access' is granted will suffice. If however, more certainty is required, the access order may specify:

(a) (b) (c) (d) (e) (f)

the time and venue of access; whether the access should be supervised and by whom; whether overnight access is allowed (that is, the children will stay over at the non-custodial parent's residence); whether overseas access is allowed; whether access during school holidays, public holidays and significant days (such as children's birthdays etc.) is allowed; whether third parties (such as a new partner) can be present during access; and other conditions to safeguard the interests of the children.

The type of access order that the court will make will depend on many factors such as the age of your children, the relationship between your children and your spouse, you and your spouse's working hours, your children's school schedules, and so on. Circumstances will be different in every case, but the court will make a decision that it feels is in the best interests of the children. Access basic principle  starting pt is presumptn tt child wld have access to non custodial parent since such access wld be beneficial for child quantum  dependent but not limited to child’s needs child’s wishes non custodial parent’s prev contact with child history of rr bet child and non custodial parent type of access orders  generally unsupervised ie non custodial parent able to spend time with child without third party monitoring if supervised or with conds, then purpose of supervised order to be detrmined to decide what most approp terms to include in order prxt child fr possible abuse whether physical or emotional assess rr of non custodial parent with child, esp if contact infrequent improve rr bet chid and non custodial parent access periods  wkday access – midwk for few hrs and subj to sch sched and other activities  weekend access – may include overnight access taking into acct sch sched etc  public hol access – each parent spends alternate public holds with child etc; alternating for different yrs  sch hol access – one wk march one wk September four wk june five and half wk nov/dec  other sch hols but not gazetted as public holidays eg children’s day  Other special egs Father’s day Mother’s day Birthdays of chidren or parents Access for attending wedding/funeral Taking child out of jurisdiction  When order for custody in force no person to take child out of sg except with written consent of both parents or with leave of court  Exception – if is custodial parent, of if non custodial parent has written consent of custodial parent  Must be period of less than 1 mth – section 126(3) and (4) WC  If fam court allows child to be taken out of juris, will req parent to prov Identity of person traveling with child other than parent

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Itinerary of trip Contact no for other parent Accommodation details . If you fear that your children may be taken overseas, you may, in addition, apply for an express order that neither you nor your spouse can take the children overseas without the permission of the other party or the court and an order that the passport of the children be retained by you while the children are with your spouse. In your application, you should state why you would like this order to be made, and why you feel it is necessary. The court will decide whether it is in the best interests of your children to make these orders. It will also consider the likelihood that your spouse would take the children overseas without your permission, for example: Which country might your spouse take the children to? Is your spouse a citizen of that country? Does your spouse have a job or a family overseas? Would your spouse find it easy to obtain a job overseas or permanent residency/citizenship in a foreign country?

Orders subject to conditions 126. —(1) An order for custody may be made subject to such conditions as the court may think fit to impose and, subject to such conditions, if any, as may from time to time apply, shall entitle the person given custody to decide all questions relating to the upbringing and education of the child. (2) Without prejudice to the generality of subsection (1), an order for custody may — (a) contain conditions as to the place where the child is to reside, as to the manner of his or her education and as to the religion in which he or she is to be brought up; (b) provide for the child to be temporarily in the care and control of some person other than the person given custody; (c) provide for the child to visit a parent deprived of custody, or any member of the family of a parent who is dead or has been deprived of custody, at such times and for such periods as the court may consider reasonable; (d) give a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody the right of access to the child at such times and with such frequency as the court may consider reasonable; or (e) prohibit the person given custody from taking the child out of Singapore. (3) Notwithstanding subsection (1) but subject to any condition imposed under subsection (2) (e), where an order for custody is in force, no person shall take the child who is the subject of the custody order out of Singapore except with the written consent of both parents or the leave of the court. (4) Subsection (3) does not prevent the taking out of Singapore for a period of less than one month of the child by the person given custody of the child or by any other person who has the written consent of the person given custody of the child to take the child out of Singapore. (5) Any person who contravenes subsection (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months or to both. Power of court to restrain taking of child out of Singapore 131. —(1) The court may on the application of the father or mother of a child — (a) where any matrimonial proceedings are pending; or (b) where, under any agreement or order of court, one parent has custody of the child to the exclusion of the other, issue an injunction restraining the other parent from taking the child out of Singapore or may give leave for such child to be taken out of Singapore either unconditionally or subject to such conditions or such undertaking as the court may think fit. (2) The court may, on the application of any interested person, issue an injunction restraining any person, other than a person having custody of a child, from taking the child out of Singapore. (3) Failure to comply with an order made under this section shall be punishable as a contempt of court. Other access details  Handover of chid – venue and time and parties to be present  Priority of ranking of access – eg if birthday with mother clashes with father’s PH access, who to get

Which orders? Sole or Joint or No Custody? – different permutations possible: -

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1 P has sole custody, care and control, other P has access only Both Ps have joint custody, 1 P has care & control, other P has access 1 P has care & control, other P has access (no order on custody ie silence) => same effect generally as joint custody

What is the position with regard to my children who are: - above 21 years of age? - above 21 years of age but who are mentally or physically disabled? - above 21 years of age but who are still schooling? If your children are above 21 years of age, whether they are still schooling or not, and whether they are physically disabled or not, the court will not make any orders regarding custody or access, because such children are considered as adults, and able to make their own decisions on which parent they want to live with (or indeed, if they want to live with either parent at all), and when they would like to see the parent that they do not live with. However, if your children are above 21 years of age but still schooling, then they may apply for maintenance from you until they finish schooling. (See questions 10 - 19 on Maintenance). If your children are above 21 years of age but mentally disabled, then they may apply for maintenance from you. You will have to apply for a Committee to be appointed under the Mental Disorders Act to decide all matters pertaining to these children, such as where they will live, and who will take care of them. You may wish to seek legal advice on how to go about applying for such a Committee to be appointed. Principles applied Welfare Principle Welfare of the child the paramount consideration (s125 W Ch, s3 GIA)  law on children is straightforward – this is the guiding principle  but hard to apply in practice!  Judges – may be single/ divorc ed/ have no kids – can still decide

Welfare of child not to be measured in monetary terms – includes moral and relig welfare, physical well being, ties of affection, happiness, comfort and security

Paramount consideration to be welfare of child 125. —(1) The court may at any time by order place a child in the custody of his or her father or his or her mother or (where there are exceptional circumstances making it undesirable that the child be entrusted to either parent) of any other relative of the child or of any organisation or association the objects of which include child welfare, or to any other suitable person. (2) In deciding in whose custody a child should be placed, the paramount consideration shall be the welfare of the child and subject to this, the court shall have regard — (a) to the wishes of the parents of the child; and (b) to the wishes of the child, where he or she is of an age to express an independent opinion. GIA: Welfare of infant to be paramount consideration. 3. Where in any proceedings before any court the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income thereof is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration and save in so far as such welfare otherwise requires the father of an infant shall not be deemed to have any right superior to that of the mother in respect of such custody, administration or application nor shall the mother be deemed to have any claim superior to that of the father. Factors to consider in determining welfare  Continuity of care given to child  Child’s sense of security  Child’s own wishes abt who he shld live with  Parents’ wishes Wishes of parents and child considered by court (s125 W Ch) o less than 5 no but above 8 – may ask child who want to be with

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family judges talk to kids themselves rather than through interpreters/ counselors (ask in var ways, not upfront) think about the psychological aspects – u shld not force a chld to choose!

Age of child Race and relig of child Race and religion of parents Material circumstances of parents and Siblings x be separated

Evidence before court  Set out in supporting affidavits to custody and/or access applications  What to set out Reasons why parent shld have custody, care and control Present care arrangements for child Future care arrangements Access custodial parent willing to offer non custodial parent Access to him or her sought by parent if custody is not granted  Language and style Parties to avoid rhetoric – ‘he is a liar…’ Plain and direct Speak like normal person and x use bombastic words like ‘cavaliar atttitude’ or ‘lackadaiscial and nonchalant attitude’ Don’t make subsmission in affidavit  Exhibits in affidavits – paginate properly. Shld be adeq explained in text of affidavit  Children’s affidavits need not be filed – goes against basic principle of welfare being paramount Welfare reports – in custody and access disputes, court may order  Social welfare report  Custody evaluation report or access evaluation report  Assisted acces/transfer report  Child guidance clinic report  Project contact report When ordered  Either by deputy registrar at pre trial conf or at mediation session or by district judge hearing ancillary matters or OS or by district judge hearing interlocutory applications for acces and custody Apart fr CGCR and PCR, court counsel or socialk welfare officer of MCYS will interview parents and/or other inteerted arties like grandparents and relatives If of view tt child old enough to be interviewed, will also speak to child and observe his interaction with parties involved See summary of report table pg 134

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Case law - Significant recent developments in this area! Previously:  Usually joint or sole custody ordered. Jt where cooperation possible Sole custody ordered when parties are acrimonious and unable to cooperate (Ho Quee Neo Helen v Lim Pui Heng [1972-74] SLR 249) • In that case, court said that if parties so acrimonious, best that sole custody granted Now, preference is not to intervene unnecessarily in parent-child relationship, leaving both parents to carry out parenting: Re Aliyah Aziz Tayabali [2000] 1 SLR 754; Re G (Guardianship of an Infant) [2004] 1 SLR 229; CX v CY.---> In July 2005, CA in CX v CY (Minor: Custody and Access) [2005] SGCA 37 landmark in adopting joint parenting. 

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Court said - shd encourage jt parenting – pref not to intervene unnec. By giving one party sole control, that constit ntervention Parenthood is a fact, not by law – conception and birth. It comes abt through physical act So in this cs,e agreed with aliyah’s case – which had this sort of tone – to adopt jt parenting Court rejected approach that sole custody shld be made if parties acrimonious So reserved for very extreme cases In interest of child, both parents shld be involved in life

CX v CY (Minor: Custody and Access) [2005] SGCA 37 Rejects approach that sole custody order be made if parties acrimonious CA stated that in interest of child to have both parents in his life Joint and no custody order generally similar, but subtle difference exists: o Where there is no actual dispute between parents over any serious matter concerning child, no custody order appropriate o Where one parent is particularly uncooperative and inclined to exclude the other parent, joint custody is appropriate as reminder that he or she must consult the other parent.  Ie psychological effect though practical effect is the same Sole custody should be rare and only in exceptional circumstances such as where one parent physically, sexually or emotionally abuses child. Facts o The respondent (“the father”) was a Dutch national working in Thailand. The appellant (“the mother”) was a Singapore national residing and working in Singapore. After their child was born, the parties continued to live together in Thailand, but separated subsequent to the mother’s discovery of the father’s extramarital affair. The mother then left the family home with the child, went to Phuket first and later returned to Singapore. o Subsequently, the father came to Singapore to apply for custody, as well as care and control of the child. The application was contested by the mother. The Family Court made no order on custody, but gave care and control of the child to the mother. The father was also allowed to bring the child out of jurisdiction once every six months for not more than 14 days so that the child could visit his paternal grandparents (“overseas access order”). o Both parties, being dissatisfied with the decision, appealed to the judge in chambers in the High Court. Each sought, inter alia, sole custody of the child. The judge awarded the parties joint custody of the child. The care and control and overseas access orders were not varied. o Dissatisfied with this decision, the mother filed an appeal against the judge’s orders. She sought sole custody of the child on the basis that the inability of the parties to co-operate rendered the joint custody order unworkable. She argued that joint custody orders should only be made where there was a reasonable prospect the parties would co-operate. She also sought the variation of the overseas access order on the basis that once the child was taken out of Singapore, there was a real risk that the father might not return the child. Held, dismissing the appeal: o (1) The principles governing appellate intervention in custody cases were the same as those that applied to general appellate intervention. The appellate court should only reverse or vary a decision made by the judge below if it was exercised on wrong principles, or if the decision was plainly wrong, as would be the case if the judge had exercised his discretion wrongly: at [15] to [17]. o (2) The practical effects of a “no custody order” and a “joint custody order” were similar where a “care and control order” had been made. A “no custody order” might be preferred over a “joint custody order” in the following circumstances: (a) where there was no actual dispute between the parents over any serious matters relating to the child’s upbringing; (b) where there was a need to prevent parties from drawing the child into the battle over the extent of their custodial powers; and (c) where there was a need to avoid any negative psychological effect that came about when one parent “won” and the other “lost” in a custody suit: at [18] and [19]. o (3) In the light of the fact that the mother, who had been given care and control, appeared to be inclined to exclude the father from the child’s life altogether by denying him access rights,

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it was necessary to make a “joint custody order” to remind the mother that the father had an equal say in more significant matters concerning the child’s upbringing, and that she should be more co-operative with him: at [20]. (4) In any custody proceedings, it was crucial that the courts recognised and promoted joint parenting so that both parents could continue to have a direct involvement in the child’s life. The making of joint or no custody orders was very much in the welfare of the child, and it reminded the parents that the law expected both of them to co-operate to promote the child’s best interest: at [26] to [28]. (5) There was an important distinction between “care and control orders” and “custody orders”. Care and control concerned the right to take care of a child and to make day-today, short-term decisions concerning the child’s upbringing and welfare. Custody without care and control (that is, custody in its narrow sense) concerned the right to make the more important, longer-term decisions concerning the upbringing and welfare of a child: at [31] and [32]. (6) The notion that joint custody should only be made where there was a reasonable prospect that the parties would co-operate was no longer appropriate in this day and age. Instead, in line with the outlook that parental responsibility was for life, the concept of joint parenting had to be expressly endorsed. Generally, joint or no custody orders should be made, with sole custody orders being an exception to the rule. Exceptional circumstances where sole custody orders were made might be where one parent had physically, sexually or emotionally abused the child, or where the relationship of the parties was such that cooperation was impossible even after the avenues of mediations and counselling had been explored, and the lack of co-operation was harmful to the child: at [24] and [38]. (7) The judge was not plainly wrong in granting joint custody. The parties’ allegations against each other arose from their unhappiness with one another rather than from the fact that they did not care for the child and would be unable to co-operate for the child’s welfare. In this situation where both parents clearly loved the child, one could not rule out the possibility that the parties could eventually co-operate for the benefit of the child: at [39], [41] and [42]. (8) The overseas access order was upheld because it was in the interests of the child to maintain his bond with his paternal grandparents. The mother’s fear that the father might never return the child appeared exaggerated in the light of the fact that the father had always complied with the local courts’ orders and that he had consistently professed that he would never take the child away from the mother: at [47].

I would like to 'share' the children with my spouse/partner. In other words, even though I agree that the children can stay with my spouse/partner, I want to have an equal say in making decisions for the children. What can I do? You can apply to the court for an order that you be awarded 'joint custody' of the children. This will compel your spouse/partner to consult you and make joint decisions over the major issues concerning your children. You should however note that the court may not order joint custody if there is a very high level of conflict between your spouse and you as it is unlikely that parties would be able to make joint decisions. Care and Control Principles used: o 1. All things being equal, mother is preferred if child is young: Soon Peck Wah v Woon Che Chye [1998] 1 SLR 234  young child => below 7

Facts: The appellant wife Soon applied for a variation of an interim child custody order granted on 24 April 1995 under which the care and control of the child was granted to the respondent husband Woon with liberal access on weekends to be given to her. Soon applied for sole custody, care and control of the child, and her application was dismissed by the judge on grounds that she was not yet cured of thyrotoxicosis and that she was still prone to losing her temper and self-control. She appealed arguing that the court should not have relied on Woon’s sister’s affidavit as it was hearsay.


Held, allowing the appeal: (1) The guiding principle in proceedings before any court with regards to the custody or upbringing of an infant was found in s 3 of the Guardianship of Infants Act (Cap 122). The court must have regard to the welfare of the infant as the first and paramount consideration. (2) In the United Kingdom, with regard to proceedings on the upbringing, maintenance or welfare of a child, the rule against the admission of hearsay evidence no longer applied by virtue of s 96 of the Children Act 1989. There is no equivalent legislation in Singapore. However, under s 2(2) of the Evidence Act (Cap 97), the common law exceptions to the rule on hearsay had been incorporated into our law of evidence. Generally, in proceedings relating to children, in particular, custody cases, evidence which was of a hearsay nature was inadmissible. There was no exception to the rule against hearsay under common law or statute for child proceedings. It could not be said to be in the interests of the child to determine his future by relying on such flimsy evidence. The paramount interest of the child did not alter the law of evidence in this respect. (3) In the present case, the trial judge erred in placing reliance on Woon’s sister’s affidavit in coming to her decision. The alleged accounts by the infant of Soon’s violent behaviour was hearsay and should not have been admitted into evidence. (4) From the evidence, Soon had recovered from her post-natal depression. She was still under medication for her thyrotoxicosis, but that was not reason to conclude that she would prove to be a danger to her child. Her doctor was convinced that she was able to lead a perfectly normal life and was capable of taking care of her child while on medication. (5) In this particular case, there was a change of circumstances from the time the interim order was made on 24 April 1995. Woon had since fully recovered from her post-natal depression and her thyrotoxicosis was under control. Her mental and physical health was back to normal before the birth of her child, and there was no indication that she was unable to lead a normal life and looking after the infant. There was also no question of her endangering the well-being of her child in any way. In this case, all things being equal between Woon and Soon, a very important factor to bear in mind was the fact that the child was very young. The court felt that the maternal bond between Woon and the infant was the pivotal consideration. In the best interest of the child’s welfare, the court should not deprive him of his mother’s love and care. Per curiam: With respect to social welfare reports ordered by the court, such reports should be admissible even if they contain hearsay. In child proceedings, a welfare officer directed by the court order to investigate and report had a duty to give to the court all the information which he considered to be relevant and should not be constrained by the hearsay rule from including relevant but otherwise inadmissible information.

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2. Preserve status quo, continuity of living arrangements: Wong Phila Mae v Shaw Harold [1991] 2 MLJ 147 Facts: The appellant and respondent were divorced by decree made absolute on 3 January 1986. Pursuant to the decree nisi, and at an adjourned hearing in chambers on 22 November 1985, the court by consent ordered, inter alia, that the respondent and the appellant be granted joint legal custody of the children with care and control of the children to the appellant. On 16 March 1989, the respondent applied to vary the order of court of 22 November 1985 to the extent that he be granted sole legal custody of the children, on the ground, inter alia, that the appellant had, without the respondent`s consent, kept the three younger daughters in the United States since January 1989, living in a motor-home, instead of bringing them back to Singapore to resume their studies. The application was allowed by the court and the respondent was given sole custody of the three younger children. On 8 July 1989, the appellant applied to vary the order of 21 April 1989 in order to gain custody of the three children. The solicitor for the respondent affirmed and filed affidavits relating to the

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appellant`s second husband. At the hearing of the appellant`s application, appellant`s counsel sought an adjournment primarily to refute the adverse allegations made against the appellant`s second husband in the respondent`s solicitor`s affidavits. The adjournment was refused as the judge felt that the issues were sufficiently clear and more affidavits would not help. The judge also refused the appellant`s application to vary the order of court of 21 April 1989 (see [1990] 1 MLJ 205). The appellant appealed. Held , dismissing the appeal: (1).An adjournment should have been granted to the appellant to enable her second husband to answer the adverse allegations made in the respondent`s solicitor`s affidavits. If the appellant`s association with him was a relevant factor, it was not unreasonable for the appellant to have requested for an adjournment in order to answer the various adverse allegations made against her husband filed just a few days before the hearing. The point was not whether there was sufficient evidence before the court but whether both sides had been given a fair opportunity of putting forth all the facts before the court to enable it to make up its mind. It would have been in order if the judge had disregarded the affidavits of the respondent`s solicitor, and then refused an adjournment, as that would have been an exercise of discretion no appellate court would have interfered with, but there was nothing to suggest that he had done that. (2).Education was a very important aspect in the consideration of the welfare of the children. The unconventional and informal educational method of education which the appellant wanted her children to undergo in the US caused the children to miss almost half a year of formal education in Singapore and this was not in the interests of the children. The children were at an age where it was essential that they should be properly guided. (3).Although it was not disputed that taking a child from an environment he was used to was not necessarily against his long-term interest, it was the circumstances of each case which would determine whether a switch was in the best interest of a child. By the time of the hearing, they had all been placed in schools here and were in the course of settling down in their studies. When the hearing of this appeal came up, more than a year later, all the more so the court felt that the alteration of the order of things was likely to cause the children emotional stress and affect their studies. 3. Siblings should not be separated: Kim Chun Ahe v Ng Siew Kee [2002] SGDC 276  wht is effective in helping child through post divorce trauma is through support of siblings  decision:

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3. Upon the hearing of ancillary matters on 27 September 2002, I made the following orders: (a) The Petitioner shall have custody, care and control of the 2 children, A and B, with reasonable access to the Respondent. The husband has now appealed against the orders. Custody, care and control of the children 5. The children are currently in the care of the wife. The wife stated that she has been looking after and supporting them. She stated that the husband had left for work in Hong Kong. She further stated that this is the 2nd or 3rd time he had done so leaving the children with her. 6. In his notice of appeal the husband is seeking sole custody, care and control of the children with reasonable access to the wife. 7. In deciding which parent should have the custody, care and control of the children the paramount consideration shall be the welfare of the children. The court has to take into account all the relevant factors including the following when considering the welfare of the children: i) the conduct of the parties; ii) the wishes of the parents and the wishes of the child where he or she is of an age to be able to express an independent opinion; iii) a young child would be best looked after by the mother; iv) which party can offer better security and stability; and v) that siblings should not be separated.

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8. In this case, the wife is now the main caregiver. She stated that she loves the children very much. She has also been supporting them all along. In fact, the husband failure to maintain the family was one of the particulars of unreasonable behaviour set out in the divorce petition and the husband had not denied that. Since the wife has been a responsible parent to the children, she should have the custody, care and control. Even if all things being equal, considering the young age of the children, their welfare would be better served by their continuing to be with the mother. I therefore awarded the custody, care and control of the 2 children to the wife.

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Counseling

Bad habits e.g. gambling Illness e.g. depression Time spent bonding with child Availability / working hours Pre-occupation with career Interest in child’s health and studies

Family Court Resources Mediation and Concilation counselling – Family Relations Centre (FRC) set up in May 2006 – resources already there, just consolidating under new name; the Family Resolution Judge and Family Resolution Mediator or Counsellor may suggest options to resolve the dispute. Parties and children may be asked to attend facilitative counselling to facilitate access sessions.  Access a problem – time with child You cannot force your children to be happy about seeing the access parent. But the parents can take steps to try and repair the relationship between him/her and the children. Both parents can attend parenting classes conducted by Famcare to understand how their children may be feeling and to obtain information on how they can help their children adjust. The custodial parent can facilitate access by actively encouraging the children to go for access. In cases where the children display great distress in the access arrangements, the parties may approach Famcare to conduct counselling for the children to address the underlying emotional issues and to assist them to deal with their parents' separation or divorce. Support counselling for children may be ordered to help them deal with grief and distress at parents’ divorce KIDS-line counselling (Kids In Difficult Situations)- CD rom programme Project Contact, Project Impact assist in postdivorce parenting. conducted by fam court counselors of fam and juvenile justice center vol in nature or directed by fam court judge

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Three types of counseling wrt custody and access disputes - conciliation access counseling on custody – parties to go for counseling with children by PTC deputy registrar or by court o mediator will assess if custody and access issues can be resoled amicably o even if reach agreement not court order until recorded as such before district judge o notes of counselor are confidential and x shown to parties, judge nor the counsel though may be seen by PTC DR or court mediator who may then suggest best way to resolve disputes - counseling for purpose of preparing report – CER or AER - supporting counseling for children affected or traumatized by divorce proceedings Mediation

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alternative to litigation to encoaurge amicable resolution of contested issues before neutral third party usu fam court judge parties discuss contested issues and find common grd to reach agreement if custody or access in dispute, court mediator may ask these qns to gauge best arrangement (most secure and stable) for child o whether want to have care and control or only access o who has been main care giver for most of child’s life o who is current care giver o who child close to o chlid’s daily routine vs parent’s working hrs and regular schedule o child’s fav actibity and what you talk abt or do with child o child’ rr with you, whether third party involved and child’s rr with that person o care arrangement o if only want access, duration o if care and control, what type of access can give

What can the court do to help it to come to a decision on custody and access? (a) Order a Social Welfare Report from the Ministry of Community Development and Sports ("MCDS") or a Custody Evaluation Report from a Family Court counsellor. A social worker or counsellor will interview you, your spouse and the children, as well as any other significant third party, and write a report to the court. This report is confidential. You will not get to see the report unless the court expressly allows you to. Interview the children at the ancillary matters hearing. You, your spouse or your lawyers may not sit in at the interview between the judge and the children. The judge will usually not reveal what the children have said to you, your spouse or your lawyers. You should not ask your children what they said to the judge. Appoint a Court-Appointed-Counsel, if the court feels that the case is a very acrimonious one. The CourtAppointed-Counsel is a senior lawyer, experienced in family law, who is a "friend of the court". He will investigate the matter, interview your children, and present his views on the case to the court at the hearing. He may also try to settle matters amicably between you and your spouse.

(b)

(c)

In appropriate cases, the court may order parents to attend programmes to educate them on how to relate to each other as parents, and how to handle issues of access after divorce and separation. The Family and Juvenile Justice Centre (FJJC) conducts parenting workshops for parents who are ordered by the court to do so. If the parents do not attend the programmes as ordered, the court will review (re-consider) the custody and access order it has made. back to top court interviews fam court judge may interview child to ascertain child’s wishes in contested custody period ordered usu at hearing of ancillary matters or OS for cstody and access impt tt parents x alarm child abt court interview by putting pressure on child parents shld behave as normally as possible before and after child interviewed child’s wish one of many factors considered - court interview not sole determining factor in custody and access dispute There are two kinds of "judges" in court that your children can give their views to. One is the hearing judge, who will decide the children's issues for you and your spouse. The other is the court mediator, who will not make any decision in the matter, but who will (if you and your spouse agree to attend mediation) help you to settle the matter without going for a court hearing. Giving Views to the Hearing Judge There are a number of ways in which your children can give their views to the hearing judge. Some examples are set out below:

(a)

(b)

The court may order that the Ministry of Community Development and Sports ("MCDS") do a Social Welfare Report on the children or order the Family Court counsellor to do a Custody or Access Evaluation Report. The court may also appoint a Court Appointed Counsel to interview the child and represent his best interest. The judge may decide to speak to the children at the court hearing. Neither you or your spouse will be present at this interview, and what your children say to the judge during this interview is confidential. You should not ask your children what they said to the judge.

Giving Views to the Court Mediator The court mediator will usually not speak to your children directly, though he may decide to do so. More commonly, he will send your children to speak to a court counsellor, to whom they can express their views. These views will then be communicated by the court counsellor to the court mediator (but not to the hearing judge). The court mediator will suggest ways in which you and your spouse can settle the children's issues amicably, based on his knowledge of your children's views, but he will not tell you exactly what your children have told the court counsellor. Child psychiatrists’ role - in contentious disputes parents may appt these to examine or assess child to prepare report to court Safeguarding children fr excessive examination no legal provisions under 1997 MPR and 2003 MPR governing exam of children and nth to safeguard against chid undergoing exam by numerous psychiatrists, psychologists and other medical experts by parties o not in child’s best interests introd in form of rule 26A (examination of children) of Women’s Charter (MP) Rules 2003 (2005 amendments) o take effect fr 30 april 2005 o apply to all divorce proceedings whether filed before or after 30 April 2005 o amendments therefore affect all divorce proceedings even pre EFS new legal provisions – court to give permission for child to be examined to prepare access/custody report before report can be used in court o rule 26A and PD no 2 of 2005 - orders made by court at hearing to decide whether child may be examined o court will scrutinize qualifications of expert and consider purpose and necessity of access/custody report o may disallow any expert to be appted at all o may appt one expert and specify tt expert to be sole epert allowed to examine child to prpare report for use in court o if aloq, court may make orders on matters such as  what issues expert to address in report  who to bear costs of report  docs expert to be furnished with, who to interview  when report to be furnished and to whom expert to be furnished with court orders and other docs o std letter by one of parties to brief him on case – wording to be approved by court and contain info on var orders made by court o info on how to contact parties to interview o var docs to read inclding copy of orders made by court what lawyer to do o ascertain purpose – whether for use in custody dispute o if yes then must first get leave of court o must make nec application in court  standard form  draf letter of instruction to expert in std form to be annexed  see PD no 2 of 2005 (WC (MP) (amendment) Rules 2005) o ascertain fr expert  charges

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 how soon can interview and write report  qualifications get clint to think through and imform court of position on issues above

Enforcement of orders MPR Enforcement of orders 60. —(1) Subject to the provisions of these Rules and of any other written law, a judgment or order may be enforced in accordance with the provisions in the Rules of Court (Cap. 322, R 5) for the enforcement of judgments and orders. orders for access o takes effect forthwith unless specific provn prescribed for time for access o if non custodial parent faces prob remedies  file application to request assisted transfer or specify venue of handover  commencing committal proceedings if takes view tt access deliberately obstructed breach of access order o if non custodial parent neglects or refuses to bring child back after specified time, custodial parent can  obtain order for chd to be returned forthwith and restraining order against non custodial prent fr having access to child outside specified times  obtain order suspending acess – but very punitive in nature and court only orders this under stringet conds eg recalcitrant conduct and continual abuse of acess order

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commence committal proceedings since non custodial parent in contempt of court order; Your spouse may be liable to fine or a jail term if the court finds that he/she has been in contempt of court by breaching the court order. You may wish to seek legal advice on how to go about taking out committal proceedings, and the chances of success in these proceedings

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mirror orders o for cross juris marriages in divorce, parties may obtain mirror orders in tt he obtains similar order, or registeres order in sg, in another juris relevant to parties

appeal/ change of order If you are unhappy with the orders made by the court, you should file an appeal against the order. It is advisable to seek legal advice on how to file an appeal. - If you are satisfied with the order, but feel that the order needs changes after a period of time, you can file an application called a Summons-in-Chambers to vary (that is, change) the court order concerning the children. You will have to state in your application why you are seeking a variation. The court will only allow a change to be made provided there is a material change in the circumstances or if the original order was made based on misrepresentation or mistake of fact. As to what would amount to misrepresentation or mistake of fact, you should seek legal advice. “Types” of post-divorce parenting problems: 1. Both parents are in high conflict, each fighting to exclude the other parent as much as possible and are possessive over the children

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=> (access is extremely difficult). One party tries to prevent access and ‘poison’ the kids 2. One parent abandons children, not keen to see them, avoids parenting duties, leaving other parent with burden (maintenance may be a problem).  Here mother eg may want father to see child but father does not want access!  How to encourage jt parenting when one party not interested? 3. Both parents fairly cooperative in sharing parenting, spending time with children (cheer them on!)

Why do parents fight almost selfishly for their children? During divorce proceedings, processes within legal system (filing of petitions, affidavits) increases opportunity for conflict.  So lawyers guiding client through the filing and fighting

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How to engender cooperation? Communication may be absent at this difficult stage of divorce process.  Hostility, sadness, trauma Acrimony may also be due to interaction with spouse triggering memories of earlier traumatic incidents. Inability to cooperate rationally may be caused by depression resulting from separation and divorce process. Family members/relatives may increase conflict through criticisms and advice. Conflict may increase further when the other party is dating or remarrying.

 So tell client not to bring along new partner until things die down – make sacrifices Many parents cannot separate their own needs from the children’s need to maintain a relationship with the other parent.

Adoption of Children (PRACTICAL ASPECT) Look up: http://fcd.ecitizen.gov.sg/ChildrenNParenthood/AdoptAChild/

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Adoption of Children Act “ACA”(Cap 4, 1985 ed) o s 7: “Upon an adoption order being made, all rights, duties, obligations and liabilities of the parent or parents, guardian or guardians of the adopted child, … shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in … the adopter as though the adopted child was a child born to the adopter in lawful wedlock… As the consequences of an adoption order are far-reaching and permanent, lawyers must advise both natural parents giving up their child for adoption and prospective adoptive parents to consider carefully the consequences of their decision and its impact on their lives before proceeding with the process. Adoption is the only act that severs natural rr of child with parent o With others – custody orders etc, still some residual Imptance o But with adoption, then no longer a parent. NOBODY. o So draconian – therefore proper and informed consents must be sought. Conseq must be known. Conseq of adoption must be known. Important to obtain all consents necessary: Adoption of Children Act s4(4): o An adoption order shall not be made except with the consent of every person or body who is a parent or guardian of the infant in respect of whom the application is made or who has the actual custody of the infant or who is liable to contribute to the support of the infant… Where application for adoption is made by married person, consent of spouse is required (s 4(5) ACA) o eg wife wants to adopt but you don’t, then cannot -> affects relationship!this is a major decision Where applying jointly to adopt, parties must be spouses (s 3(3) + (5) ACA) single parties – can adopt (eg aunt adopting child whre parents have died) Applicant should be at least 25 years old and at least 21 years older than the child (s 4 ACA) Child be under 21 years (s3 ACA) No payment or reward in the adoption transaction Applicant and child must be resident in Singapore (child not resident if in Singapore by virtue of visit pass, a student's pass or a special pass, thus require dependant pass if foreign)

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Local Child Prospective adopter(s) seeks out a child may hae to wait abt 3 yrs – put name on register Prospective adopter(s) applies to the Family Court for adoption of the child. Family Court appoints the Director of Social Welfare, (MCYS) as Guardian In Adoption A Social Welfare Officer will conduct interviews and home visits to ascertain the suitability of the adoption before submitting a report to the Family Court. o Francis lim case – child adopted by couple, befor that, hawker couple tt wanted to adopt child, they had to work very hard and failed to bond. Lady who looked after child sought anther couple to look after – so two coples fighting o So must bond with child

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Important factor is the applicants’ efforts at bonding with the child as well as that of any other persons living with the applicants Family Court grants the Adoption Order. A newbirth certificate is issued for the child (so that child will nto know fr birthcert that parents are adoptive).

Foreign child In Singapore, about 60 to 70 % of child adopted are born overseas eg china, Vietnam, Cambodia, india . From 1 April 2004, all prospective adopters who wish to adopt children from the PRC must apply through MCYS accredited agencies. From 1 February 2005, anyone who wishes to adopt a foreign child (i.e. a child who is not a Singapore Citizen or Singapore Permenant Resident) must complete a Home Study Report by the MCYS’ accredited agencies. This is applicable for adoptions from all countries and must be done prior to starting the adoption process (i.e. before searching for a suitable child or initiating legal adoption proceedings). Financial Arrangements: Maintenance & Division of Assets I. MAINTENANCE 1. Maintenance of Child (outside, during and upon termination of marriage) 2. Maintenance of Wife a) during marriage b) upon termination of marriage II. Division of Assets - • Power arises only upon termination of marriage 1. Maintenance of Child - section 68, 69, 70, W’s Ch Duty of parents to maintain children 68. Except where an agreement or order of court otherwise provides, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody or the custody of any other person, and whether they are legitimate or illegitimate, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof.    Whether or not having custody Legitimacy of child not a consideration Standards of “reasonableness” • Section 68: “it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, … whether they are legitimate or illegitimate, ….” • Obligation towards legitimate and illegitimate children equal (outside, within, after marriage) – as long as biologically urs, must maintain

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• Duty placed on both parents (s68 biologicial parent) – (though usu father doesn’t ask for maintenance) – note that courts will look at joint contribn based on earnings of each parent – section 114 Evidence Act – presumes that husb is father of child Lump sum payment generally rare, since – i. Before orders lump sum, got to be very certain that it will be necessary and sufficient for the future – difficulty in predicting whether sufficient ii. Must have sufficient capital balance – if not enough savings, impractical to make such order

Court may order maintenance of wife and children 69. —(1) Any married woman whose husband neglects or refuses to provide her reasonable maintenance may apply to a District Court or a Magistrate’s Court and that Court may, on due proof thereof, order the husband to pay a monthly allowance or a lump sum for her maintenance. (2) A District Court or a Magistrate’s Court may, on due proof that a parent has neglected or refused to provide reasonable maintenance for his child who is unable to maintain himself, order that parent to pay a monthly allowance or a lump sum for the maintenance of that child. (3) An application for the maintenance of a child under subsection (2) may be made by — (a) any person who is a guardian or has the actual custody of the child; (b) where the child has attained the age of 21 years, by the child himself; (c) where the child is below the age of 21 years, any of his siblings who has attained the age of 21 years; or (d) any person appointed by the Minister. (4) The court, when ordering maintenance for a wife or child under this section, shall have regard to all the circumstances of the case including the following matters: (a) the financial needs of the wife or child; (b) the income, earning capacity (if any), property and other financial resources of the wife or child; (c) any physical or mental disability of the wife or child; (d) the age of each party to the marriage and the duration of the marriage; (e) the contributions made by each of the parties to the marriage to the welfare of the family, including any contribution made by looking after the home or caring for the family; (f) the standard of living enjoyed by the wife or child before the husband or parent, as the case may be, neglected or refused to provide reasonable maintenance for the wife or child; (g) in the case of a child, the manner in which he was being, and in which the parties to the marriage expected him to be, educated or trained; and (h) the conduct of each of the parties to the marriage, if the conduct is such that it would in the opinion of the court be inequitable to disregard it. TCH: Something which is not provided here but which is absolutely crucial is the earning capacity of the husband!!! There are often complications when the man remarries → you cannot be unfair to the second wife and her children with him. → yet sometimes, there just isn’t enough $ to go around, and the court just has to make do with the best they can. (5) The court shall not make an order under subsection (2) for the benefit of a child who has attained the age of 21 years or for a period that extends beyond the day on which the child will attain that age unless the court is satisfied that the provision of the maintenance is necessary because — (a) of a mental or physical disability of the child; (b) the child is or will be serving full-time national service; (c) the child is or will be or (if an order were made under subsection (2)) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or (d) special circumstances, other than those stated in paragraphs (a), (b) and (c), exist which justify the making of the order. (6) An order under subsection (2) ceases to be in force on the day on which the child attains the age of 21 years unless the order is expressed to continue in force for a period ending after that day. (7) An order under subsection (2) may direct payment to the person having custody or care and control of the child or the trustees of the child.

(8) When ordering the payment of maintenance under this section or at any time after the making of the order, the court may, if it considers just, order the person liable to pay the maintenance to secure the whole or any part of it by vesting any property belonging to the person in trustees upon trust to pay the maintenance or any part of it out of the income from the property, and subject thereto, in trust for the settlor. (9) The court shall have the powers conferred by section 85 in respect of proceedings relating to maintenance under this section.  Option of monthly allowance or lump sum Obligation is 1-sided – imposed only on husband. Thus, husband cannot ever ask wife for maintenance! - TCH: feels that this is a misnomer in today’s context – the obligation should potentially be mutual. “A jolly unfair position”  Query especially where husband is with disability or unable to earn money Law Reform Marriage & Divorce Act (Msia) – equivalent provisions states that a husband can claim if he has a disability preventing him from gainful employment Either to District or Magistrate’s Court – Procedure found in section 79 of the Charter Mode similar to commencing criminal summonses - “… made and heard in the same manner and in accordance with the same procedure as applications for summonses are made and heard by the District… or the Magistrate’s Court under the provisions of the Criminal Procedure Code…” (Section 79(1)) Often do not require solicitor to file such summonses (simple) Filed in Family Court (though technically also possible in High Court) Once divorced, this section becomes inapplicable – only applies to “married women”

Who can claim for maintenance on behalf of a child? A child who is below 21 years cannot sue his parent for maintenance. Instead, the following persons can claim for maintenance on behalf of a child below 21 years old: (a) (b) (c) any person who is a guardian or has the actual custody of the child (i.e. a person who is responsible for the child, and who is looking after the child or has the custody or care and control of the child); any of his siblings who is at least 21 years old; or any person appointed by the Minister (usually a social worker from the Ministry of Community Development and Sports).

If the child is 21 years and over, he himself may make the claim for maintenance against his parents. How can a claim for child maintenance be made? A maintenance application for a child may be filed by making a Magistrate's Complaint under Part VIII of the Women's Charter. For more information on the procedure for making a Magistrate's Complaint, click here. If divorce proceedings have been started and a spouse wishes to apply for custody or care and control, the spouse may also apply for child maintenance as an ancillary matter, and pending the final hearing of this issue, the spouse may file a Summons-in-Chambers to ask for "interim maintenance" (that is, maintenance pending the final hearing of the matters). Procedure 79. —(1) All applications to a District Court or a Magistrate’s Court under this Part and Part VII shall be made and heard in the same manner and in accordance with the same procedure as applications for summonses are made and heard by the District Court or the Magistrate’s Court under the provisions of the Criminal Procedure Code (Cap. 68) and an application for maintenance under this Part and Part VII shall be deemed to be a complaint for the purposes of that Code. (2) The Rules of Court for the time being in force made under the provisions of the Supreme Court of Judicature Act (Cap. 322) and applicable to appeals from District Courts brought under section 21 of that Act shall apply to all appeals brought under section 77.

(3) Where an appeal is so brought from a Magistrate’s Court, the Rules of Court shall be construed and applied as far as necessary as if references to a District Court were references to a Magistrate’s Court and references to a District Judge were references to a Magistrate. (4) A court before which any application under this Part or Part VII is heard may make such order as to costs as it thinks fit. Duty to maintain child accepted as member of family 70. —(1) Where a person has accepted a child who is not his child as a member of his family, it shall be his duty to maintain that child while he remains a child, so far as the father or the mother of the child fails to do so, and the court may make such orders as may be necessary to ensure the welfare of the child. (2) The duty imposed by subsection (1) shall cease if the child is taken away by his father or mother. (3) Any sums expended by a person maintaining that child shall be recoverable as a debt from the father or mother of the child. (4) An application for an order under subsection (1) may be made by — (a) any person who is a guardian or has the actual custody of the child; (b) where the child has attained the age of 21 years, by the child himself; (c) where the child is below the age of 21 years, any of his siblings who has attained the age of 21 years; or (d) any person appointed by the Minister. (5) Subsections (4) to (9) of section 69 shall apply, with the necessary modifications, to the making of an order under this section.

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• Further duty imposed to maintain child who is accepted as member of family (s70 non-parent) – voluntarily assmed responsibility – if discharge this resp, then no need to provide maintenance (when he is no longer accepted as member of family) e.g. A cohabiting couple. The woman brings along her children from her previous relationship along. These children are now considered children of the family and the man is now under an obligation to maintain them. e.g. Indonesian child boarding with Singaporean family. The Singaporean family is now under obligation to maintain this child. This obligation is a secondary one though. – s 70(2): The duty imposed by subsection (1) shall cease if the child is taken away by his father or mother. – s 70(3): Any sums expended by a person maintaining that child shall be recoverable as a debt from the father or mother of the child. – ∴ you will be indemnified for $ spent on child. • Maintain child up to 21 years, but extended obligation beyond 21 years for child still financially dependent (disability, serving national service, undergoing instruction at education establishment, training for trade, other special circumstances) – s 69(5)(a) --- mental or physical disability of the child – s 69(5)(b) --- the child is or will be serving full-time national service – s 69(5)(c) --- the child is or will be or (if an order were made under subsection (2)) would be receiving instruction at an educational establishment or undergoing training for trade, profession or vocation, whether or not while in gainful employment – s 69(5)(d) --- special circumstances, i.e. a catch-all provision – 1997 english charter amendment – prior to that, not clear as to age up to which maintenance to be done

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 Maintenance for child who has attained the age of 21 years  Obligation in (d) is wide – extends to non-natural children (including adopted and/ or children accepted as a member of the family)  Example: i. Husband has to provide for wife’s children from her previous marriage ii. Children of relatives or friends who’re living outside Singapore (acting as their guardian) – though with entitlement to reimbursement from parents for amounts spent on their children NB: Difficulty to get closure in family cases

Also note: Power of court to order maintenance for children 127. —(1) During the pendency of any matrimonial proceedings or when granting or at any time subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage, the court may order a parent to pay maintenance for the benefit of his child in such manner as the court thinks fit. (2) The provisions of Parts VIII and IX shall apply, with the necessary modifications, to an application for maintenance and a maintenance order made under subsection (1). Duration You can stop paying maintenance after your child's 21st birthday, unless the maintenance order states that the order is to continue for a period ending after your child's 21st birthday. In addition, if your child is able to support himself before he turns 21 years old (for example, he starts working before 21 years old), you may apply to the court to rescind the order on the ground that he no longer needs maintenance from you. 2. Maintenance of Wife: General - • husbands maintain wives but not vice-versa – very discriminatory?


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This applies only to any married woman. → a divorced woman cannot rely on s 69(1). However, if the court is satisfied that this is a VOID marriage, she will not be deemed to be a married woman for the purposes of this section, though their children may well be legitimate. But courts would generally presume that it is a valid marriage unless there are clear facts showing otherwise. Therefore, at maintenance proceedings stage, the court will not/should not go into lengthy examination of the validity of marriage. This obligation to provide maintenance is only one way!

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→ this is possibly a sexist provision that is discriminatory to men.

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→ this must stem from the political view that the man in the household is the primary breadwinner in Singapore. This provision should allow for circumstances where the man is unable to provide, and requires maintenance, e.g. where the husband is incapacitated and cannot as a result find gainful employment. see e.g., the Malaysian Law Reform (Marriage and Divorce) Act. This Act provides that a married woman is under obligation to maintain her husband if he is incapacitated to the extent that he cannot find gainful employment.⇒ More enlightened!
Procedure: Criminal summons by Criminal Procedure Code. See s 79 Women’s Charter. Usually before a Magistrate. You swear that he is not maintaining you or your children. This is very straightforward and no need to show cause whatsoever. • as a married woman - section 69 W’s Ch • upon termination of marriage - section 113 – must know what proceedings/writ/etc to get for client – cannot use wrong form!! • S 69 provides temporary relief for wife during a subsisting marriage. S113 provides for maintenance of exwife - circumstances of the wives in these two positions are different; considerations and goals vary – because of financial preservation – eg for 10 yrs of marriage – given non monetary contribn; out of job, etc – need to maintain her and give her financial support to get her back on her feet. Must use this time to get employment – lawyer to advise woman to find job • Right to maintenance is independent of wife’s misconduct: ref no-fault divorce (but amount may be affected) – irretrievable breakdown is a neutral grd – right not affected though amount may be where there is VERY bad misconduct – if had discharged role as wife then not affected

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2a. Maintenance of Wife DURING marriage: Section 69

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• “Any married woman whose husband neglects or refuses to provide her reasonable maintenance may apply…’ • must be “married woman”, includes Muslim wives or foreign wives in Singapore – they may also seek section 69 maintenance • void marriage: never validly married; – may be a defence by husband voidable: validly married until marriage annulled. • thus once marriage terminated or annulled, no longer "married woman”, she should pursue claim under s113. • Foreign decree terminating marriage? – Hearing court first deals with issue of whether foreign decree recognized. – (Zafrullah v Zafrullah, MSS 1096 0f 1983, unreported) – foreign decree here – sub courts to decide whether had juris to recog it – today not a prob, granting of divorce judgement transferred to sub courts anyway – fam court can recog or not recog a foreign decree – if recogd, then marriage dissolved and cannot seek maintenance under section 69 – cant even seek maintnace under section 113 because cannot get divorced again in sg

• Process: s69 – “…may apply to a District Court or a Magistrate’s Court…” – laymen can do this – quite easy - • S69 uses CPC procedure: – • Commenced by lodging magistrate’s complaint which includes breakdown of monthly expenses, monthly income of complainant and assets – • Affirmed/sworn before magistrate who will issue summons – • On Mention date, both parties must attend personally at Court 1, Fam Ct. - • Mediation available – some done by court interpreters – generally simple – bargaining generally – those more complicatdby legal experts – if unscessful, on mentions date, come again – • If settlement not reached, proceed to hearing - • Simple even without use of lawyer, cheaper - • but requires personal attendance Application for Maintenance Orders – Procedure


Applications for maintenance under Part VIII of the Women’s Charter are commenced by way of a Complaint under section 133 of the Criminal Procedure Code Although proceedings governed by the CPC and are in criminal form, regarded as ‘civil’ in nature

(1) The Complaint Registry 1 of the Family Court Prepare complaint (usually complainant’s solicitor) If Complainant is illiterate and unrepresented, a court interpreter will assist Complainant signs and affirms complaint before Magistrate. Magistrate signs If Magistrate is satisfied that there is sufficient ground for proceeding, he will issue a summons (s. 136, CPC) Summons has a charge attached to it; also the date which the Respondent has to appear in Court Complainant to pay fee of $1/- for the summons

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(2) Contents of the Complaint

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Important to include the following to help clarify issues and enable leading of evidence in a systematic manner during trial:i. Name and address of the Respondent (for easy service of the summons); ii. Capacity of the Complainant (married/ guardian of children/ person having custody of the children/ etc.) iii. Names and age of children; iv. Date which the Respondent failed/ refused to maintain wife or children; and v. Amount of maintenance sought Family Registry has a standard form for the maintenance complaint

(3) Service of Summons After issue of summons, Respondent is sent a notice to attend at the Family Court Registry to accept service of the summons. Complainant also required to be present on the day so appointed. i. Both parties present  Summons served  Mediation carried out by court mediator, if parties agree to have matter mediated  If amicable settlement, parties brought before judge to record the settlement  If cannot be settled through mediation, parties will have to attend court on the date stated on the summons ii. Respondent does not attend to accept service  Summons served by the court process server at Respondent’s residence or place of employment  Complainant must accompany process server to identify Respondent  However in certain cases, court may authorise some person other than the process server to serve the summons Eg. Where matter is urgent and the process servers are not free, or the Respondent will on be home after office hours, then the complainant can utilise s. 42(2) CPC iii. Where summons cannot be personally served as provided for by the CPC (s. 43)  Apply for substituted service  Process server to affirm affidavit of non-service (stating reasons for non-service) for endorsement by Magistrate for the substituted service under ss. 43 or 44 CPC (4) Mention If summons served and initial mediation is unsuccessful, case will proceed for mention in the Family Court on the date stated in the summons. Parties must appear personally even though they have counsel acting for them Respondent will be asked to plead the charge when he appears in court – s. 180(a), CPC; A plea has to come from the mouth of the accused: R v. Tan Thian Chai [1932] MLJ 74 i. If Complainant absent, Respondent may be discharged – s. 180(o), CPC; In practice, where Complainant does not appear, summons is struck off the list ii. If the Respondent fails to appear, court will issue a warrant of arrest – s. 54(b), CPC; Complainant will have to pay further fee of $1/- for the warrant iii. If both parties present in court, District Judge may fix case for mediation. (a) If no settlement after mediation, parties are brought before the Judge for trial date to be fixed. Judge will give directions on the further conduct of the matter to ensure an efficient and expeditious hearing. Hearing in the manner of a summary trial – s. 180, CPC (b) If parties reach a satisfactory settlement at the mediation, court will make an Order; The order will be prepared by the clerk of the court and copies are given to the Complainant and Respondent. No necessity for solicitors to file in court draft orders for approval by the court

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(5) The Trial The trial process: i. Hearing

ii. iii. iv. v. vi.

Court hears evidence of Complainant + all other evidence adduced by the Complainant to support her claim for reasonable maintenance – s. 180(c), (d), CPC Respondent (or his counsel) cross-examines the Complainant and her witnesses (if she has summoned witnesses to give evidence for her) – s. 180(e), CPC Court hears Respondent’s evidence Evidence of other witnesses for the Defence – s. 180(k)(ii), CPC At the close of the Defence’s case, court will hear submissions before making an order

(6) Matters to be considered For the Complainant to satisfy the court on the balance of probabilities that the Respondent has neglected or refused to provide her reasonable maintenance. “Neglect” = “culpable neglect”: Quek Ah Chian v. Ng Guan Chng [1985] 1 MLJ 27 Court must have regard to all the circumstances, as listed in section 69(4): • Factors: Section 69(4): Have regard to all circumstances including listed matters such as needs of wife/child, income, earning capacity, physical or mental disability, age of both parties and length of marriage, contributions by both parties to welfare of family, standard of living enjoyed by parties before failed maintenance (only relevant where husb earns high salary beyond average; usu cases are where HDB flat users), manner in which child expected to be educated, conduct of parties which is inequitable for court to disregard. What is reaodnable for child? Ballet lessons? Piano? Reasonable if can afford it, not otherwise – depends on salary Misconduct generally not relevant except gross misconduct Respondent will be successful in defending the action if he can establish that – i. There was no neglect or refusal to maintain; ii. He has provided reasonable maintenance; or iii. By law he is not obliged to maintain the Complainant (eg. If she has deserted the family)

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(7) Effective Dates

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Court empowered to direct the date from which the maintenance is payable – section 74, read with section 121 Thus, NO maintenance amount can be recovered if it has accrued for more than 3 years before the institution of the suit, unless the court, under special circumstances otherwise allows.

Section 74 Section 121 shall apply, with the necessary modifications, to any order for the payment of maintenance under this Part. Section 121 (1) Subject to subsection (3), arrears of unsecured maintenance, whether payable by arrangement or under an order of court, shall be recoverable as a debt from the defaulter and, where they accrued due before the making of a receiving order against the defaulter, shall be provable in his bankruptcy and, where they accrued due before his death, shall be a debt due from his estate. (2) … (3) No amount owing as maintenance shall be recoverable in any suit if it accrued due more than 3 years before the institution of the suit unless the court, under special circumstances, otherwise allows. 4 possible dates – i. Date of the refusal/ neglect to provide reasonable maintenance: Thevathasan v Thevathasan [1960] 2 MLJ 255 ii. Date of the application for maintenance: Joseph Sengol v De Witt Shirley Ann [1987] 1 MLJ 201; Thevathasan iii. Date the Order is made; or

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iv. Some date in the future. It is for the parties to submit to the court which date the order should take effect and the circumstances justifying such a date to be taken. Otherwise, the order will take effect on the date it was made.

Maintenance Order What kind of maintenance orders can the court make? The court will usually make an order for monthly maintenance to be paid to the wife/ex-wife. It is advisable to request that the order also specify: (a) (b) (c) the commencement date of the maintenance payment; the day of the month maintenance should be paid; and how the maintenance is to be paid. • may be monthly maintenance or lump sum s69(1) [likely to be monthly maintenance as marriage still subsisting] – not lump sum – doesn’t make sense unless husb tends to be sort that disappears and abandons – Lump Sum Maintenance: this is an order to the husband to pay maintenance in one lump sum, instead of periodic payment. Upon payment, the wife will have no more right to claim maintenance. The court will normally make this order only if the husband is financially able to pay a lump sum (for example, upon divorce, from the husband's share of the assets). Various factors, such as the length of marriage and the age of the parties, will be considered by the court in deciding the quantum of the maintenance. Security for Maintenance: this is an order that the husband secures the payment of maintenance by vesting any property that he owns (for example, a house) in trustees upon trust to pay the maintenance or any part of it out of the income from the property (for example, the rent), to the wife. This order is unusual and would be made only if the husband has the property to vest in trustees and if the court feels that it is just to do so, after considering all the circumstances of the case. • may be stated for a certain number of months or may continue until further order ie that one of them seeks a recission or where wife eg needs an increase • may be secured (s 69(8)) – eg trust arrangement/ property rental • may order attachment of earnings – attach this to husb employment – order fr court to employer to deduct fr wages a sum sufficient to satisfy maintenance order – security but very intrusive – shld u ask for this? – his is an order that the husband's salary shall be deducted by his employer and paid directly to the wife/ex-wife each month. The responsibility for making the monthly maintenance payments on time will therefore be taken out of the husband's hands. However, if the husband changes employer, then the Attachment of Earnings Order will cease, and you will have to apply for a fresh Attachment of Earnings Order against his next employer

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Attachment of Earnings Order – section 81

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A court may, when ordering the payment of maintenance under Part VIII or at any time thereafter, if it considers just, make an attachment of earnings order to secure payment of the maintenance. (2) A District Court may make an attachment of earnings order to secure payments the defendant is required to make under a maintenance order made by the High Court.  • Similar to garnishee proceedings The difference is that it is specific, and it orders the employer to make payment of $X to court or to a third party.

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This order is preferable to a garnishee order because it’s a continuous obligation on part of employer to pay a fixed sum of $ monthly, whereas a garnishee order merely garnishes a specific amount. This order is also effective as the sum of $ comes to the wife without any dispute, e.g. no bounced check, late payment, etc. This attachment of earnings order applies to: (i) Shariah Court (ii) Maintenance of Parent’s Tribunal (iii) Maintenance of Wife/Children Person entitled to maintenance can ask courts to issue order against the other party’s employer to pay over part salary Payments can be on a continuous basis until further order (where it is varied) Maintenance orders includes such orders made under the Maintenance of Parents Tribunal & those of the Syariah Courts Such orders are usually made where the Respondent is erratic in payment or consents to such an order being made If the employer fails to comply with it, he commits an offence under the Charter

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So far, the remedies assume no matrimonial proceedings are existing. Where there are divorce proceedings, can apply to court under section 81 in connection with the divorce proceedings. Primary considerations: Needs vs Ability - • (ref: Palvit Singh v Sawaran Singh [1990] 1 MLJ lvii) – landmark case - • Wife's/Child’s needs: she should show what needs are (by listing monthly expenses). – Maintenance is "reasonable maintenance" - be reasonable in expenditure. – E.g child’s: monthly expenses for food, clothing (school uniform), school fees, tuition fees, transportation fees, medical expenses, toiletries, books, pocket allowance, etc - • Husband's/Parents’ ability: he should disclose his income and show what his own needs and obligations are. – In order for ability to be assessed – Eg where still need to maintain aged parents – may render very little left for wife - • Goal of court - Provide temporary remedy – sum ordered can be varied; can be modest. – Court's concern should be to ensure provision in current circumstances. Not looking at future. Variations/ rescissions - • May be varied or rescinded on proof of change in circumstances or other good cause (s 72) It is possible to apply to vary a maintenance order once it is made. However, the court will only vary or rescind a maintenance order if there has been a material change in the circumstances of the applicant or other parties to the maintenance order. A "material change in the circumstances" means a significant change in the lives of the parties, necessitating more maintenance (for example, if a child graduates from primary to secondary school, and the school expenses are considerably higher), or which affect one party's ability to pay maintenance (for example, if one party is involved in an accident, is paralysed and cannot work). The maintenance order can be varied by increasing or decreasing the amount payable, or by changing the date on which payment is made. It is also possible to vary the mode of payment, for example, if payment has been ordered to be made to a party through a particular bank account, it can be changed to making payment directly (i.e. by cash or cheque) to that party; or an attachment of earnings order can be applied for; or lump sum maintenance can be applied for in lieu of monthly maintenance. However, you will have to give the court good reasons why you are applying for such a variation. The court may also vary a maintenance order if it is satisfied that the order was made based on any misrepresentation (i.e. presenting a false view of the facts) or mistake of fact. You should note that a variation application is not appropriate if you are in fact dissatisfied with the maintenance order made by the court. In such cases, you should file an appeal. The way to go about applying to vary a maintenance order depends on whether the maintenance order has been made in the course of divorce proceedings.


If the maintenance order was made pursuant to a Magistrate's Complaint, you may make another Magistrate's Complaint to vary, suspend or rescind the maintenance order If the maintenance order was made as an ancillary matter in divorce proceedings, you may file a Summons-in-Chambers to vary, suspend or rescind the order. You should note that such Summonsin-Chambers should be filed at the High Court if your divorce was granted by the High Court and not the Family Court.

Rescission and variation of order 72. —(1) On the application of any person receiving or ordered to pay a monthly allowance under this Part and on proof of a change in the circumstances of that person, shis wife or child, or for other good cause being shown to the satisfaction of the court, the court by which the order was made may rescind the order or may vary it as it thinks fit. (2) Without prejudice to the extent of the discretion conferred upon the court by subsection (1), the court may, in considering any application made under this section, take into consideration any change in the general cost of living which may have occurred between the date of the making of the order sought to be varied and the date of the hearing of the application. • ∴ Any existing maintenance order may be varied due to change of circumstances or any other good reason, such as husband or wife loses job, the husband has a pay raise, etc. must be “material” e.g illness rendering one unfit for work, increase in earnings – see case – wife certified unfir to work – increase in costs because of disability not self-induced change e.g quit job to create change in circumstances – toh weng feng – wife left job to parent child – but court said that she delib quit to change circumstances ie created a change of circumstances application for this is carried in same manner as order itself (see procedure)

Enforcement The Family Court can enforce a maintenance order made by the Family Court itself, the High Court, the Tribunal of Maintenance of Parents, and the Syariah Court (if the order has been registered by the Family Court - If the Respondent is late in paying maintenance, you can take out enforcement proceedings against him once the payment becomes due. But before doing so, you may wish to find out whether he has already made payment (eg. the cheque is in the post) or whether he has acceptable reasons for paying late. If you wish to enforce the order, you may ask the court to grant you "costs" or compensation for having to sue him to recover the maintenance arrears. In appropriate cases, you may also apply for an attachment of earnings order, security for maintenance or lump sum maintenance (see also question 7), so that you need not seek periodic maintenance from the Respondent. The Family Court may make the following orders to enforce the maintenance order: (a) (b) (c) (d) imprison the Respondent for up to one month for each month of maintenance remaining unpaid; issue a warrant to levy (that is, an order to seize the Respondent's property to auction so that the proceeds can be used to discharge the maintenance arrears); make a garnishee order (that is, an order to the Respondent's creditor to pay the debt that is owed to the Respondent to you instead to discharge the maintenance arrears); and an attachment of earnings order (that is, an order to the Respondent's employer to deduct the maintenance arrears from his salary and pay the same to you). • Default in payment? Enforcement proceedings, but generally difficult to solve this problem. – • S71: levy fines, imprisonment, garnishee order  threat of jail very effective for htose who value jobs  but another grp of husbands who don’t mind going to jail – already having tough time, no job, feel bitter tt still inflicting this on them and so just go to jail  In other coutries, tax authority may help – to declare certin portion of income – • Procedure similar to that of application for maintenance, i.e. filing of complaint for issuance of summons

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Sub courts enforce maintenance orders madeby itself – s71(1) WC, by high court s71(3) WC and those by maintenance of parents tribunal s10 maintenance of parents tribunal act The Respondent will still have to pay the maintenance arrears, even though he has gone to jail, and he will still have to continue to pay you maintenance during the period he is in jail. However, the court may reduce the maintenance arrears payable. The court may also "suspend" or temporarily stop the maintenance order for the period that the Respondent is in jail. The court will look at all the circumstances of the case when deciding the appropriate orders to make, for example, whether the Respondent is receiving any income while he is in jail, or whether he appears to have substantial savings, from which the maintenance or maintenance arrears can be paid

Enforcement of maintenance order 71. —(1) If any person fails to make one or more payments required to be made under a maintenance order, the court which made the order may do all or any of the following: (a) for every breach of the order by warrant direct the amount due to be levied in the manner by law provided for levying fines imposed by a Magistrate’s Court; (b) sentence him to imprisonment for a term not exceeding one month for each month’s allowance remaining unpaid; and (c) make a garnishee order in accordance with the rules made under this Act.

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Garnishee Proceedings Rules 1997 – when obtain order against husband, can get order served on third party (who owes debt to husband) – often, such a debtor is a bank (of which husband has credit) Procedure – section 79 (similar to criminal summonses before a magistrate) (See 1.6 below)

(2) A sentence of imprisonment ordered under subsection (1) (b) shall not affect or diminish the obligation of the person against whom the maintenance order is made to make the payment or payments under the maintenance order which he has failed to make, except that the court may, if it thinks fit, reduce the amount of any such payments.      Amendment of 1996, with effect from 1997 When sentence someone to prison, need not be in lieu of maintenance order; But can be in addition to obtaining an order Court discretion Imprisonment under s 71(1)(b) does not affect/diminish man’s obligation to pay, although the court may reduce the amount to be paid. Previously, before the 1996 amendments, there was automatic reduction, i.e. if you go to prison, there was no longer an obligation to pay. Not a good solution at all!

(3) A maintenance order made by the High Court may be enforced by a District Court in accordance with subsection (1) as if that order had been made by the District Court, except that a District Court shall have no power to vary an order of the High Court.


Enforcement is always very difficult and unpleasant. TCH once had a case where the man absolutely refused to pay and was prepared to go to jail! However, if he goes to jail, he would lose this job → unemployment of man would create even greater problems → no practical solution sometimes. For s 71(1)(c), see Women’s Charter (Garnishee Proceedings) Rules on how a garnishee order may be made. This is fairly straightforward. Subordinate Courts enforce maintenance orders made by o Itself: section 71(1) o The High Court: section 71(3) o Maintenance of Parents Tribunal: section 10, Maintenance of Parents Tribunal Act Procedure is the same as those for the application for maintenance – complaint  issue summons 3 documents must be filed when taking out application to enforce a Sub-courts’ maintenance order – i. Arrears slip (ie. The certificate from the court’s cashier showing the arrears); ii. A copy of the maintenance order sought to be enforced; and iii. The Complaint.

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When enforcing a High Court order or a Maintenance of Parents Tribunal Order, important to produce Decree Nisi or the order of the court or tribunal, in addition to those set out above Enforcement action is a ‘show cause action’: Respondent will have to satisfy the court why he should not be liable for any of the enforcement modes provided for in the Charter, viz imprisonment, writ of distress and attachment of earnings If the Respondent is unable to repay the arrears in one pump sum, he could, subject to the approval of the court, pay the arrears in instalments concurrently with the existing maintenance order. Example: the court may order R to pay $200/- towards arrears and $300/- towards current maintenance until all arrears are paid. Court has discretion as to how far back the arrears are to be enforced. Factors considered by court in Gomez nee David v Gomez [1985] 1 MLJ 27 – a) the fact that the sums ordered are for maintenance and do not constitute property to be hoarded; b) the situation and conduct of the parties; c) the nature and causes of the applicant’s inaction or acquiescence; d) the question of hardship on the Respondent; e) the large sum that may have accrued when the Respondent believed that there was no liability to pay; and f) that it is always preferable to have in force an order for such sum as the Respondent will pay rather than go to prison.

Foreign Maintenance Orders   where there are reciprocal arrangements between foreign states and Singapore, the Family Court may also enforce a maintenance order made by the appropriate authority in the foreign state Court can make a provisional maintenance order when the respondent is residing in certain jurisdictions Provisional maintenance orders from foreign courts in certain jurisdiction can be registered and enforced in Singapore under the Maintenance orders (Facilities for Enforcement) Act (Cap 168) and the Maintenance Order (Reciprocal Enforcement) Act (Cap 169) The procedure is found in the Supreme Court (Maintenance Orders) Rules and the Registration of Orders in the District Court Rules Countries to which provisional can be made or enforced – Maintenance Orders (facilities for enforcement) Act extension (consolidation) Notification and Maintenance Orders (reciprocal enforcement) designation of reciprocating countries notifications This depends on which country the Respondent is living in. Singapore has an arrangement with certain countries for the enforcement of maintenance orders made in Singapore (see the countries under the Maintenance Order (Facilities for Enforcement) and Maintenance Order (Reciprocal Enforcement) Act). If the Respondent lives in one of these countries, you may apply to enforce the maintenance order by attending at the Family Court. You will need to bring a photograph of the Respondent, a copy of your maintenance order, and his address in the foreign country. The court will then send copies of all the relevant documents, including the order of court, to the authorities in the foreign country, for them to serve on the Respondent. Upon service of these documents, the foreign authorities will take steps to enforce the maintenance order against the Respondent. It should be noted, however, that as the court has to liaise with foreign authorities and foreign courts, and has to depend on the foreign authorities and foreign courts to take action in the matter, the whole process may take some time

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2b. Maintenance of Wife upon Termination of Marriage - • S 113 W’s Ch: The court may order a man to pay maintenance to his wife or former wife – a) — during the course of any matrimonial proceedings; or – b) when granting or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage Power of court to order maintenance 113. The court may order a man to pay maintenance to his wife or former wife — (a) during the course of any matrimonial proceedings; or (b) when granting or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage.

Power of Court to order maintenance – Section 113 The court may order a man to pay maintenance to his wife or former wife – (a) during the course of any matrimonial proceedings; or (b) when granting or subsequent to the grant of a decree of divorce judicial separation or nullity of marriage.  Implies that even if did not ask for maintenance order during the course of proceedings, can ask after the proceedings have ended - “subsequent to grant” Tan Bee Giok v Low Kam Yong [1997] 1 SLR 153 Divorce proceedings & maintenance applications *1st instance: HC Judge refused to grant maintenance; view that it is not required since well-provided for already CA: Reversed. Judge was wrong in approach. - If a court refuses to make order, the petitioning spouse cannot come back at a later stage to ask for maintenance since the matter is already res judicata - If do not ask for court order in the first place, cannot later seek relief under section 113, since section 113 pertains to variations of the order In this case, there has not been an order for maintenance in the first place. Thus section 113 cannot be invoked Judge in the first instance should at least make a nominal order for maintenance (eg. 10 cents/ month) – Then, this would allow wife to come back and apply for variation(s) No order at all will preclude spouse from coming back at later stage Solicitors’ duty to ensure wife gets at least a nominal order (contingency) - Once parties are divorced, section 69 becomes inapplicable – since that section only pertains to “married women” Maintenance orders cease when husband or wife passes away When wife remarries, ex-husband’s obligations end – obligation passes on to new husband Arrears of maintenance payments not collected for > 3 years become irretrievable (limitation period) • S 114: …court shall have regard to all the circumstances of the case including …: (a) the income, earning capacity, property and other financial resources which each of the parties… (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has… (c) the standard of living … (d) the age of each party … duration of themarriage (e) physical or mental disability (f) the contributions …to the welfare of thefamily (g) benefit that party will lose … • (2) In exercising its powers under this section, the court shall endeavour so to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other.

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Assessment of maintenance 114. —(1) In determining the amount of any maintenance to be paid by a man to his wife or former wife, the court shall have regard to all the circumstances of the case including the following matters: (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future; (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; (c) the standard of living enjoyed by the family before the breakdown of the marriage; (d) the age of each party to the marriage and the duration of the marriage; (e) any physical or mental disability of either of the parties to the marriage; (f) the contributions made by each of the parties to the welfare of the family, including any contribution made by looking after the home or caring for the family; and

(g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage that party will lose the chance of acquiring. (2) In exercising its powers under this section, the court shall endeavour so to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other. Courts goal to place them in position as if marriage not broken down – But cant! – Currently marriage broken down and parties living in uneconomical way –eg two households – Unrealistic! Practically – to look at reasonable circumstances

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Principles (key factors): - • Achieve fairness by assisting wife into financial independence - • Consider needs of minor children – this always affect financial orders to large extent – feature very imptly - • Consider share of matrimonial assets, age of wife, length of marriage

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Quek Lee Tiam v Ho Kim Swee [1995] SGHC 23 - landmark high court decision explaining principles of maintenance of ex wives – Husb earned 1.25 mill a yr, wealth increased more than 240 million during brief marriage of more than 5 yrs – Very rich man – Wife sought matr assets and maintenance – Considering husbs wealth, not very much asked for – matr home only 1.2 million – She had quite large sum awarded to her for maintenance – 1.2 million lump sum – she claimed 31000 as mthly allowance – court praised her for reducing it to 19000 – in the end, court reached 12000 as to reasonable mthly expenses – aim for financial preservation of former wife so far as practicable and reasonable assess needs monthly expenses – fix multiplier – consider age – young? Expected to work, possibility of remarriage, in Quek, 8 years.  Multiplier will determine ult lump sum  8 yrs – random??  // principles in tort – short marriage, wife fairly young, very wealthy husband, little assets

Judgement: In assessing maintenance, all the relevant circumstances have to be considered including the criteria set out in paragraphs (a) to (g) of s 108(1) of the Women's Charter. As stated in sub-s 108(2), a court is enjoined to "endeavour so to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other." There is no evidence relating to any conduct of the wife which would, from ties of natural justice and justness, stand in the way of an attempt to restore her to a financial position as if the marriage had not broken down. For present purposes, this threshold consideration does not require any further treatment. The next question is the extent of the maintenance required in order to place an ex-wife in the financial position which the legislature had in mind when it enjoined courts to proceed on the notional assumption that the marriage continues. For convenience of expression and as a shorthand, I would refer to this as the principle of financial preservation. In the light of its statutory context, the principle is confined to the preservation of her financial position in terms of her maintenance. She should therefore be financially provided so that she can continue to live at a level as she did immediately before the breakdown of the marriage. Under the Women's

Charter, the obligation for such financial provision by the husband may cease, inter alia, on death or upon the occurrence of "any material change" such as re-marriage by the ex-wife or recent impecuniosity of the exhusband: s 112 of the Women's Charter. So it does not require, for example, any compensation for loss of spinsterhood (or virginity) nor any compensation for any adverse social consequences of being a divorcee. If in the words of s 108(2) there is the general principle of financial preservation, as there is in my view, the next question is the level of the financial preservation. The limitation, as it appears in the text, is "so far as it is practicable." Consideration of natural justice, as has been noted, does not arise in the present case. In other words, if there are no practicable and insuperable problems in the way, it seems to me courts have a duty to assess maintenance with the object of preserving the standard of living and financial station in life to which the ex-wife was accustomed before the breakdown of the marriage. The operative words, ignoring for the moment the qualifications, are that the court "shall endeavour so to place the parties...in the financial position in which they would have been if the marriage had not broken down...". Any judicial quantification predicated on a notional assumption will unavoidably entail a number of difficulties. But the difficulties which courts face do not detract, and should not be allowed, to detract from the principle of financial preservation. The difficulties should not be exaggerated because any maintenance payable periodically may be varied when there is "material change" in the circumstances. This is the statutory safety-net. When applied to the present case, the principle of financial preservation means that she should have accommodation commensurate with 26 Lynwood Grove in standard though not in size because she is single. She should be provided a car, not the Honda Concerto which was used to ferry the dogs, but a Mercedes 200. She should have food, sartorial, cosmetic and other usual allowances as if she remained as Mrs Ho. He has to provide her with a membership in a golf club as she was a very keen golf player at his request, if not insistence. What would be wrong and contrary to the principle of preservation is to award her a sum of maintenance which would relegate her to the standard of living before the marriage. Having regard to all that I have set out I assess maintenance at $12,000 per month. I must turn to a further complication in relation to the court's assessment of maintenance by a lump sum. Under s 109(1) a maintenance order may provide for the payment of a lump sum. This exercise obviously adds one further difficulty to the process of assessment. What is the appropriate sum up front which will at the same time punctiliously adhere and give reasonable and fair effect to the principle of preservation? The process of assessment is further complicated by more uncertainties which have to be given a commonsense dose of realities. It will be wrong, in principle, to order a lump sum which is the total sum of the maintenance payable to an exwife for the rest of her natural life. Or will it be 5 years' purchase on the basis that probably she, being remarriageable, will re-marry by 5 years' time. An order for the payment of maintenance by a lump sum appears to be a one-off payment, after which the ex-husband is no longer obliged to pay any further maintenance. This is the interpretation upon which I am assessing the lump sum, though I note that s 110 only bars any further claim for maintenance if there has been a consensual composition of the maintenance by a lump sum which has been approved by a court. The other practical matter is the fact that the wife in this case is free to live her own life and her time is at her disposal. She has to exert herself, secure a gainful employment, and earn as much as reasonably possible. She should, if able, contribute to preserve her pre-breakdown lifestyle and standard of living and her reasonable contribution will reduce pro tanto the obligations of the husband. Taking into account the considerations set out above, I would award the wife the lump sum of $1.2 million if he would, as he indicated, transfer the maisonette in Arang Court to her or if not I would order him to pay her maintenance by the lump sum of $1.8 million. The next issue is the division of the assets within the meaning of s 106 of the Women's Charter. There is in evidence voluminous documents tendered on behalf of the wife. They were tendered to show in Annexure 2 of her written submissions that he was worth $402,506,454,00 and that during the marriage his assets had grown by $241,274,849. It must have taken a great deal of efforts to have collated the documents and set out the evaluations. In this context, the threshold question was whether the wife was able to prove on a balance of probabilities that any asset, mainly shares and landed properties, which were admittedly owned by him before the marriage had been "substantially improved during the marriage by her or by their joint efforts." An examination of the details set out in the voluminous documents satisfied me that whatever were the accretions of the assets in money terms they were in every case due to market forces. The husband did nothing except to maintain his portfolio of pre-marital assets. The wife was unable to show how she had improved those pre-marital assets of the husband, let alone substantially. Her role was that of a non-commercial nature. Accordingly, there was no necessity, or indeed any warrant, to embark on the elaborate and what might have been a long process of determining the amount of the substantial improvement and the worth of the assets which have been proven to come within the scope of s 106(5) of the Charter. The wife also contended that she had substantially improved 26 Lynwood Grove, a bungalow. She spent an enormous amount of time, attention and energy in its renovation. I need not go into the details. Suffice it to say

that she exerted herself and applied her taste and style to the renovations. However, I could not conclude that 26 Lynwood Grove was "substantially improved" within the ambit of s 106(5) of the Women's Charter. It must follow that it did not form part of the assets acquired during the marriage for the purposes of division within that section. The land was the most valuable constituent part; it was a gift from his father, long before the marriage. The husband paid for all the renovations and the professional services. Her contributions, in terms of design and all other aesthetic aspects of a home, were not substantial enough to bring that property within the corpus which is available for division under s 106(5). She also alleged that Plot 5, Cluny Hill, a bungalow lot of about 2,229.60 sq metres was beneficially owned by the husband and that he had promised to build their "dream" home on it. It was to be modelled on a house which they had seen in USA. The evidence was that it was owned by Park Court Pte Ltd, which was owned in part by the husband. The company did not hold it upon trust for the husband, as she alleged. In the result, I find that the assets divisible under s 106 are as set out in exhibit R3. They totalled $4,767,176.24. Having regard to the factors set out in the section, I would award her $1.2 million. The wife claimed as equal owner with the husband the antiques, porcelain and Chinese paintings which were displayed in 26 Lynwood Grove before he took them away. She said in evidence that her mother in law had given them to her and her husband. I accept her evidence and find that she has equal beneficial interest in those items. I direct an enquiry and assessment of the value before the Registrar and order the husband to pay to the wife half the total value as assessed by the Registrar without any interest thereon. I turn to the question of costs. Although the substantial work done in the collation of the documents and information regarding the pre-marital assets of the husband was not entirely necessary, it has to be pointed out that he was rather tardy in providing full and frank disclosures. Those representing the wife had to probe extensively and intensively. Similarly, the factual issues over 26 Lynwood Grove took up time and efforts. Here again, if the books of the corporate owners had been produced earlier, much investigation would have been avoided. I would in the circumstances order that the husband pay the costs of the wife on a solicitor and client basis to be agreed or taxed. Finally, the wife shall vacate and deliver up vacant possession of 26 Lynwood Grove within 2 months upon her receipt of all sums ordered to be paid in this judgment.

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Shi Fang v Koh Pee Huat [1996] 2 SLR 221 – Arrival at certain figure – get principles from thse cases – Chinese bride marrying man – marriage broke down 1 yr later – short marriage – Very little matr assets – mostly belonged to husb (acqd wealth befor marriage) she cld not claim much fr the pool of matr assets – Only obtained 10000 as matr assets (not much considering hsub’s wealth) – Cld not get house because before marriage – She failed to prove subst matr assets for her to receive share of – Court farily generous in giving her maintenance – • Short marriage, little matrimonial assets, used multiplier 5 years ($4000 x 5 yrs = $240,000)  quite a substantial lump sum sinc only married for yr or so – => where matr assets small, then maintenance may be bigger

Facts The husband Koh and the wife Shi married in February 1990 in Beijing. Shi was a Chinese national and in June 1990, Koh brough her Singapore where they lived in a house registered in Koh’s name. The house was bought before the marriage with funds provided by Koh’s father and reflected as a loan to Koh from a company controlled by the father. In July 1991, Shi’s belongings were moved out of the house and she was not allowed back in. She later reinstalled herself in the house and lodged a caveat claiming an interest in house. In June 1993, Koh commenced an action seeking, inter alia: (a) a declaration that the house was held by him on trust for the father; and (b) an order that the caveat be removed. Shi claimed that Koh held half the house on constructive trust for her. In September 1993, Shi petitioned for divorce and claimed a share of the house, certain shares, consisting of minority holdings, in companies controlled by Koh’s father, and an increase in maintenance. He held that the father failed to rebut the presumption of advancement. He further held that there was no constructive trust of a half share in the house in Shi’s favour and ordered the caveat removed. Shi was awarded a nominal sum of $10,000 for her contribution to the improvement of the shares and a lump sum of $240,000 for maintenance. No cost was awarded in both the suit and the divorce proceedings. Shi appealed. Held, dismissing the appeal except in respect of costs: (1) On the facts, there was no agreement, arrangement or understanding reached between Koh and Shi that the house be shared beneficially. There was also was no representation by Koh to Shi that she would have such a

share or any fact from which it could be inferred that there was a common understanding that she was to have a share in the house. There was therefore no question of any reliance on her part. (2) The house was acquired long before the marriage, and as none of the matters whether taken singly or together, constituted a substantial improvement of the house. Shi was, therefore, not entitled to any share in the house. (3) On the facts, Shi’s contribution in respect of the shares was rather remote. The business was an established one which was substantially controlled by Koh’s father. Any part played by Koh, much less Shi, had to be viewed in this light. The amount awarded by the judge was not manifestly inadequate or low. (4) The judge ought not to have considered Koh’s ‘without prejudice’ offer. A ‘without prejudice offer’ was inadmissible on the question of costs except where Calderbank letters were made. However, the first offer by the husband in this case was not made in a Calderbank letter. In any event, it was superseded by the second offer, which was substantially below what was awarded. (5) As the hearing of the ancillary matters was a continuation or part of the hearing of the divorce petition, Shi should be entitled to the costs of such hearing as well as to the full costs of the petition. Koh Kim Lan Angela v Choong Kian Haw [1994] 1 SLR 22 – Larger amt than shi fang in terms of assets – Therefore only 2 yrs multiplier – • Used multiplier of 2 years but note sizeable matrimonial assets ($3000 x 24 mths = $72,000) Thus with maintenance of ex-wife, cannot ignore share of matrimonial assets awarded. Courts would consider total finances and needs of minor children. (Ng Hwee Keng v Chia Soon Hin Wiliam [1995] 2 SLR 231- 60 percent of matr asets; court ordered 1000 per mth in maintenance, she still had children and care and control of them; Shirley Koo v Kenneth Mok [1989] 2 MLJ 264) - here wife and children – roof on wife side because children needed place to stay – no mathematical or sci formula – but cases guide court in making order Facts The appeal and cross-appeal arise out of ancillary orders made in divorce proceedings between the parties. In the court below the judicial commissioner ordered the husband to pay the wife a lump sum of $54,000 under s 108 of the Women’s Charter (Cap 353) (‘the Act’) and a further sum of $100,000 under s 106(3) of the Act. The wife appealed that the amounts ordered for maintenance and asset division were too low; she further appealed against the trial judge’s findings in relation to the husband’s assets. The husband’s business assets involved three related entities: the partnership firm of Glamourette (‘Glamourette’), the company Glamourette Plus Pte Ltd (‘Plus’) and Glamourette Shops Pte Ltd (‘Shops’). There were also additional assets about which full disclosure was not made. The husband lodged a separate appeal arguing that that the orders made were too generous and that the lump sum order made for maintenance was inappropriate. Held, allowing the wife’s appeal and dismissing the husband’s appeal: (1) On the facts: (a) the dispute over Glamourette was misconceived as the company was now dormant and all its assets have been injected into Plus; (b) Shops was an asset acquired the parties acquire prior to the marriage and the wife’s role in that business was not major; (c) even though the work of the husband’s father and sister also contributed to the substantial improvement in the assets and did not prevent the court from taking cognizance of the fact that the couple might have contributed to the asset’s substantial improvement; (d) since the wife contributed in the business of Glamourette, the court found that the Ambassador shares were also acquired through the joint efforts of both husband and wife and divisible under s 106(1). (2) The husband’s other assets were acquired by his sole efforts and must be considered under s 106(3). There was difficulty in assessing the husband’s true worth owing to his lack of full and frank disclosure. Nevertheless the court is entitled in such circumstances to draw adverse inferences against him and to treat him as a man of very substantial income. (3) The wife’s contributions were assessed with reference to s 106(2) as ‘work towards the acquiring of the assets’. However, this was not an appropriate case for equality of division. The marriage is a short one, and the assets were built up by the couple from a sizeable capital base created by others, and the efforts of the husband have been disproportionately larger. Clearly equality of division would amount to an injustice towards the husband. The wife was accordingly awarded 15% of his assets, estimated at $379,000 and the order for maintenance was increased to $72,000. court will consider total financil positin – what getting fr fiancial assets AND maintenance and see who has care and control of children

Process:

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• Where divorce proceedings have commenced, applications for maintenance should be interlocutory, by summons under divorce judgment, instead of by complaint under s69. A maintenance application during the marriage may be filed by making a Magistrate's Complaint under Part VIII of the Women's Charter. For more information on the procedure for making a Magistrate's Complaint, click here. If divorce proceedings have been filed by either party, the wife may still file a Magistrate's Complaint for maintenance if she requires maintenance pending the hearing of the divorce case. The court can make a maintenance order as long as the divorce has not been granted. Alternatively and preferably, the wife can file a Summons-in-Chambers to ask for "interim maintenance" (that is, maintenance pending the final hearing of the matters) from the husband and at the same time, she should apply for maintenance in her divorce petition. The court will deal with this issue as an ancillary matter.

Duration: The court has ordered me to pay maintenance for my wife. When can I stop paying maintenance? What if either she or I re-marry? Do I still have to pay maintenance to her? You will have to pay your wife maintenance until the death of either party or upon the remarriage of the wife. Therefore, if your wife re-marries, you can stop paying her maintenance, but if you re-marry, you must continue to pay her maintenance.

II. Division of Matrimonial Assets – impt sections in divorce practice!!

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• S 112. (1) The court shall have power, when granting or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage, to order the division between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset in such proportions as the court thinks just and equitable. – Court only has power when granting divorce/js/nm – Just and equitable – note!!!! Not just any old how, u have to look at the cases!!! There are principles involved.

Power of court to order division of matrimonial assets 112. —(1) The court shall have power, when granting or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage, to order the division between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset in such proportions as the court thinks just and equitable.  court has discretion (2) It shall be the duty of the court in deciding whether to exercise its powers under subsection (1) and, if so, in what manner, to have regard to all the circumstances of the case, including the following matters: (a) the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets; (b) any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage; (c) the needs of the children (if any) of the marriage; (d) the extent of the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party; (e) any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce; (f) any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party; (g) the giving of assistance or support by one party to the other party (whether or not of a material kind), including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business; and - -> changes common law position (h) the matters referred to in section 114 (1) so far as they are relevant. (3) The court may make all such other orders and give such directions as may be necessary or expedient to give effect to any order made under this section. Example:

(1) (2) (3) (4)

Court order – property to be sold If both parties are joint owners, both must sign Common that 1 party is obstructive Court can then substitute act of party who refuses to sign (eg. Registrar consent deemed sufficient) to give effect to court order

(4) The court may, at any time it thinks fit, extend, vary, revoke or discharge any order made under this section, and may vary any term or condition upon or subject to which any such order has been made. (5) In particular, but without limiting the generality of subsections (3) and (4), the court may make any one or more of the following orders: (a) an order for the sale of any matrimonial asset or any part thereof, and for the division, vesting or settlement of the proceeds; (b) an order vesting any matrimonial asset owned by both parties jointly in both the parties in common in such shares as the court considers just and equitable; (c) an order vesting any matrimonial asset or any part thereof in either party; (d) an order for any matrimonial asset, or the sale proceeds thereof, to be vested in any person (including either party) to be held on trust for such period and on such terms as may be specified in the order; (e) an order postponing the sale or vesting of any share in any matrimonial asset, or any part of such share, until such future date or until the occurrence of such future event or until the fulfilment of such condition as may be specified in the order; (f) an order granting to either party, for such period and on such terms as the court thinks fit, the right personally to occupy the matrimonial home to the exclusion of the other party; and (g) an order for the payment of a sum of money by one party to the other party. (6) Where under any order made under this section one party is or may become liable to pay to the other party a sum of money, the court may direct that it shall be paid either in one sum or in instalments, and either with or without security, and otherwise in such manner and subject to such conditions (including a condition requiring the payment of interest) as the court thinks fit. – mode of payment of money can be dealt with by court (7) Where, pursuant to this section, the court makes an order for the sale of any matrimonial asset and for the division, application or settlement of the proceeds, the court may appoint a person to sell the asset and divide, apply or settle the proceeds accordingly; and the execution of any instrument by the person so appointed shall have the same force and validity as if it had been executed by the person in whom the asset is vested. – registrar may be appted to act as trustee or sell matrimonial assets (8) Any order under this section may be made upon such terms and subject to such conditions (if any) as the court thinks fit. (9) Where the court, by any order under this section, appoints a person (including the Registrar or other officer of the court) to act as a trustee or to sell any matrimonial asset and to divide, apply and settle the proceeds thereof, the court may make provision in that order for the payment of remuneration to that person and for the reimbursement of his costs and expenses. (10) In this section, “matrimonial asset” means — (a) any asset acquired before the marriage by one party or both parties to the marriage — (i) ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter or transportation or for household, education, recreational, social or aesthetic purposes; or (ii) which has been substantially improved during the marriage by the other party or by both parties to the marriage; and (b) any other asset of any nature acquired during the marriage by one party or both parties to the marriage, but does not include any asset (not being a matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage.

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• Aim? – Divide assets of matrimonial partnership in just and equitable manner, ensuring roles and contributions of spouses recognized. – Marriage seen as an economic partnership – Breadwinning role not nec more impt

• What are Matrimonial Assets?

Section 112(10): - • All property acquired during marriage are matrimonial assets – anything – just because only one party earned it does not mean not matrimonial assets Subsections… (a) any asset acquired before the marriage by one party or both parties to the marriage – (a)(i) ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter or transportation or for household, education, recreational, social or aesthetic purposes; or Comments (5) Very broad section Eg: (6) Car bought before marriage by husband, but used by wife & children during the marriage (7) Country club membership purchased by husband but used by family during the marriage (8) Must have taken place during the marriage (9) Come about because of other party’s acts, or both parties act collectively (10) Eg. Old run-down house before marriage – intention to rent during marriage; Even if wife’s part is small, still entitled share in it (although share is relatively small)

(a)(ii) which has been substantially improved during the marriage by the other party or by both parties to the marriage; and

(b) any other asset of any nature acquired during the marriage by one party or both parties to the marriage, but does not include any asset (not being a matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage. (11) Caveat: does not include gift/ inheritance (12) Excludes matrimonial home (13) When 1 spouse acquires asset by gift/ inheritance, only way it becomes a matrimonial asset is via (a)(ii) “substantial improvement”

Can the Family Court divide matrimonial assets that are overseas? Yes. The fact that an asset is overseas rather than in Singapore makes no difference in whether it is a "matrimonial asset" or not. As long as the asset that is overseas falls within the definition of "matrimonial asset" (see Question 5), the Family Court can consider the asset in dividing the matrimonial assets between the parties upon a divorce.

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• Property acquired before marriage not matrimonial assets unless: – Ordinarily used by family (eg furniture, club membership, car) or – Substantially improved by both or other party  Shi fang’s case – court held no subst improvement by her because too minimal efforts (introducing china influence to business, etc)  Angela’s case – jt efforts because she used to be model, participated in running business by helping in fashion shows, catwalks etc  Note reernce to ‘other party’ – wife who seeks maintenance must be this other party • Note this – where wife alone contrib. 2 units of efforts -> not matr assets • But where hsb contrib. 18 units and wife 2 units -> matr assets (jt effort)

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: - note this distinction – borne out by the cases • Unfair??? Where husb lazy, x contrib., wife does not gain anything!  Improvement to law to cur this may be that so long as sub improved by one party, then shld allow • Gifts are not matrimonial assets (because external to marriage) unless – Matrimonial home (dfference from non matr house – then merely a gift)  Because this is the core of marriage –

 And usu the single most impt asset of the marriage Substantially improved by both or other party

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• Common mistake of parties: solely acquired assets thought to be their “own” so not liable to division. – Explain to clients all assets acquired during marriage are Matrimonial Assets. – So list everything!! • Advise: not “cutting up” every asset, merely pooling in to calculate total worth. – And then give wife proportion of the total worth, not of indiv asset • Assets may be: property, business, insurance, shares, savings, CPF balances, jewellery. – Chan teng hock 2002 1 slr 177 – stock options also considered matr assets ie very wide

Facts The parties were married for some 15 years and had three children before they were divorced. During the marriage, the appellant (‘the husband’) was granted non-statutory stock options (‘stock options’) from the company he worked for, which fell into three categories: (a) those vested in, and exercised by the husband by the date of the decree nisi, with profits made (‘first category stock options’), (b) those vested in the husband but not yet exercised on the date of the decree nisi (‘second category stock options’), and (c) those not vested in the husband on the date of the decree nisi (‘third category stock options’). The following orders were made after the divorce: (a) custody, care and control of the children was given to the respondent (‘the wife’), with reasonable access to the husband, (b) the husband was to pay maintenance of $5,000 per month for each of the children and $1000 per month for the wife, and (c) the wife was entitled to 15% of the first category stock options and the profits made from them, with no division of the second and third categories of stock options. In addition, she was given 15% of the company’s shares which the husband bought in the open market, as well as those bought under the employee stock purchase plan (‘purchased company shares’). Both parties appealed. The judge reduced the monthly maintenance for each child to $4,000 and increased the wife’s to $3,000, and also granted her a 15% entitlement to the second and third categories of stock options provided that they were exercised before the date of the decree nisi. The further appeal centred on the following: (a) the company shares and stock options, (b) the wife’s and children’s maintenance, and (c) the children’s education. Held, allowing both appeals in part: (1) The term ‘matrimonial asset’ in s 112(10) of the Women’s Charter (Cap 353, 1997 Ed) included any asset of any nature, subjected only to the specified exception in that provision. The second category stock options, being vested stock options, were matrimonial assets. (2) The third category stock options were a ‘chose in action’, and ‘matrimonial asset’ encompassed a ‘chose in action’, including agreements that gave an employee-husband the right to subscribe for shares, subject to his continued service with the company for a specified future period. (3) The funds required for the purchased company shares and the exercise of the first category stock options probably came from the husband’s savings. As the wife’s efforts in caring for the children and maintaining the home while the husband worked overseas allowed him to focus on his career, her indirect contributions towards the acquisition of the shares and stock options were largely the same as those for the matrimonial home. Hence, as with the matrimonial home, the wife was entitled to 30% of these matrimonial assets. (4) The second category stock options were already vested or earned by the husband, whereas he had to continue working for the company beyond the date of the decree nisi to acquire the third category stock options. Further, difficulties in their valuation or division did not render them any less a matrimonial asset as he possessed contractual rights over them. Hence, the ‘time rule’ was adopted in dividing the third category stock options, ie. only that portion of it was treated as matrimonial assets as was obtained by multiplying the stock options in question by the fraction obtained between the period in months between the commencement of the husband’s employment with the company and the date of the decree nisi as the numerator, and the period in months between his commencement of employment with the company and the date when the stock options were

exercisable by him as the denominator. In the result, the apportionment of 15% was not so unreasonable. Additionally, the “if and as when” order, which postponed the division of the second and third category stock options until they were exercised and profits made, was fair, sensible and sanctioned under s 112(5)(e). (5) The wife’s maintenance of $3,000 per month was neither inadequate nor excessive as the total value of the assets she was entitled to was significant, and the assets could generate income. Further, although she had the capacity to earn substantial income should she return to full-time employment, it was unlikely that she would be able to do so as she had to take care of three growing children. (6) The monthly maintenance of $4,000 per child was sufficient to provide them with a standard of living close to that enjoyed before the breakdown of the marriage. (7) Bitterness between the parties was not a sufficient reason to deny the husband a say in the children’s education, especially when he was expected to finance it. Their interests demanded that both parents be involved in determining what was best for them, and the court would not decree an arrangement that gave the child the impression that either parent did not care about his welfare.

Note: CPF nature unique but still Matrimonial Assets (CPF v Lau Eng Mui [1995] 3 SLR 109).

Facts This appeal arose from a hearing on ancillary matters in divorce proceedings between the respondent Lau and her husband. The judge ordered that a lump sum be paid and charged against the husband’s CPF moneys with the charge to take effect from the date the husband was entitled to and withdrew his CPF moneys. The applicant CPF Board (‘the Board’) disputed this order on the ground that it was contrary to s 25 of the Central Provident Fund Act (Cap 36, 1991 Ed), (‘the Act’) and sought a variation. This was refused, but leave was granted for the Board to apply to the court for an interpretation of s 25. The High Court held that a judgment ordering the spouse’s share of the matrimonial assets be satisfied from a portion of the CPF moneys in a member’s account gave rise to a proprietary interest in the CPF moneys and that it was open to the court to impose a charge on such CPF moneys. The Board appealed. Held, dismissing the appeal: (1) Where the court ordered the division of matrimonial assets between the spouses which directly impinged on the CPF moneys of one of the parties under s 106 of the Women’s Charter (Cap 353), such an order conferred on the other spouse a proprietary interest in those CPF moneys. (2) Sections 15, 25 and 26 of the Act did not restrict the making of such a proprietary order. Under s 15(2), the member had a right to withdraw the amount standing to his credit, but where an order was made allocating to the member’s spouse a portion of the amount standing to his credit, that amount would be diminished or reduced by the portion to which his spouse was entitled, and he was entitled to the remaining amounts in his account. (4) Once an order was made giving to the spouse of a member a proprietary interest in the moneys in his CPF account and the order was served on the Board, it had to observe the terms of the order. (5) While there was no provision in the Act or the Rules which enabled the spouse of a member to withdraw the amount to which she was entitled under an order made under s 106, this was a procedural difficulty which could not override the substantive right the spouse had under the order. The court could make further consequential orders to give effect to the order made under s 106. (6) The Board would be protected in observing and complying with the terms of the court order. It was open to the Board to devise rules with a view to observing such an order Must be pooled – very clear today Where no ther asset but CPF, then can put charge on the CPF – so that later in oldage, when withdraw, then wives can obtain it CPF monies may be a matrimonial asset that can be divided by the court if it falls within the definition of a "matrimonial asset". If your spouse is already able to withdraw his CPF funds, the money may be treated like any other matrimonial asset (for example, money in a bank account) which is available for immediate division. If, however, your spouse is not eligible to withdraw the money, the court may still take into consideration the CPF fund and award you a greater share of the other matrimonial assets. The difficulty arises when the CPF money is the main matrimonial asset and there is no other asset for division. In such a case, you may apply to "charge" a portion of the CPF money. – This means that the CPF Board will "freeze" the amount of money that has been charged and pay to you this sum when your spouse is eligible to withdraw his CPF fund.

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You should note, however, that this charge is subject to various CPF schemes and regulations, such as the Minimum Sum Scheme (under which your spouse would be obliged to retain a certain sum in his CPF account). If there is insufficient money in his CPF account to make up the Minimum Sum as well as satisfy your charge, then the Minimum Sum may take priority, and CPF may pay you the balance amount (i.e. the amount left over in the CPF account after setting aside the Minimum Sum), rather than the full amount of your charge.

What types of orders can the court make in dividing matrimonial assets? In dividing a matrimonial asset, the orders that may be made by the court include: (a) (b) (c) (d) (e) an order that the asset be sold and the sale proceeds be divided between the parties; an order that the whole or a part of the asset vest in either party; an order postponing the sale or vesting of any share of the asset to the future; an order granting either party a right to occupy the matrimonial home; and an order for the payment of a sum of money by one party to the other.

The court may impose such terms and conditions as it thinks fit when dividing the matrimonial assets as well as give such directions as may be necessary to give effect to the orders made.

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• Principles: – All assets acquired during marriage divisible  Recog eco partnership of marriage – Fair and reasonable division between spouses – Broad brush approach (Ng Hwee Keng v Chia Soon Hin Wiliam [1995] 2 SLR 231; Shirley Koo v Kenneth Mok [1989] 2 MLJ 264)  ‘Broad brush’ – found in judgements  => do not calc every single cent and dollar nor swet and effort – look at what is fair and reasonable generally Power of court to divide matrimonial assets linked to power of court in matrimonial proceedings Assumes divorce decree adjudicated by court in Singapore If in US/ India, cannot invoke sections 112 & 113, since provisions are consequence on there being matrimonial proceedings in Singapore Highly dependent on where assets are substantially situated (order of court may not be enforceable if situated in foreign place) Reciprocal Enforcement Acts make reference to the definition of “maintenance”, but not to “division”

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Ng Hwee Keng Facts Upon the grant of a decree nisi, the appellant wife Ng claimed an equal division of the matrimonial assets and maintenance for herself. In particular, she wanted an equal division of the CPF funds, the entire balance of the proceeds of sale of the matrimonial flat at Eunos Road and an equal share in a property in Duku Road which was solely acquired by the husband Chia. The parties agreed tot sell the Eunos Road flat – which they jointly acquired – and that $100,000 be paid to Chia’s mother to reimburse her for her financial assistance in the purchase of the property. Chia argued that as the Duku Road flat was acquired solely by his own efforts, it should not form part of the assets available for division. He also claimed that Ng did not make a substantial contribution to the welfare of the family. The judicial commissioner accepted the husband’s contentions and ordered him to pay the wife the balance of the proceeds of sale of the Eunos Road flat after deducting their respective CPF refunds and ordered, inter alia, that the Duku Road flat be retained by the husband alone. He also ordered that the husband pay a monthly maintenance of $500 per month for six months. The wife appealed Held, allowing the appeal: (1) In considering the division of a matrimonial asset, the court had to first ascertain whether the asset was acquired during the marriage, and second whether it was acquired by the parties’ joint efforts or by the sole effort

of one of the parties. Thereafter, the court considered the application of considerations laid down in ss 106(2) or 106(4) of the Women’s Charter (Cap 353) in determining the division of the matrimonial asset. (2) Under s 106(2), the courts did not, in all cases, apply a formula strictly in proportion to the parties’ respective financial contributions. The courts took a broad view of the parties’ respective financial and other contributions falling within s 106(2) and the needs of minor children, if any, and inclined towards equality of division. The courts also considered the non-financial contributions of a spouse falling within s 106(4). The factors stated in s 106(2) and s 106(4) were not mutually exclusive. The purpose of s 106 was to provide a just and equitable division of the matrimonial assets between the spouses. Giving s 106 a purposive construction, it could not have been the intention of the legislature that only the contributions made by the spouses specified in s 106(2) should be taken into account and that the contribution to the welfare of the family was to be ignored or disregarded. In this case, as Ng contributed to the welfare of the family, a just and equitable division of the balance of the proceeds of sale representing the Eunos Road flat would be 60% thereof to the husband and 40% thereof to the wife. (3) As Chia did not claim that he contributed to the acquisition of assets owned or held by the wife, consisting of her CPF accounts, bank balance, jewellery and shares, these assets were not available for division between her and the husband under s 106 even though they were acquired by her during the marriage (4) The Duku Road flat was available for division under s 106 as a substantial amount of Chia’s CPF funds was utilized for its purchase. The funds in his CPF account, shares, cash in bank account, car and jewellery were all acquired solely by his efforts during the marriage, and were available for division between him and the wife under s 106(3). On the evidence Ng made a contribution to the family’s welfare and by virtue of this contribution, she had a claim to these assets. Having regard to the extent of her contribution, it would be just and equitable to apportion her share in these assets at 20% thereof. (5) The fact that Ng was gainfully employed and had her own income did not disentitle her to maintenance from the husband, although it would affect the amount payable. Equally, the fact that no maintenance payment was made to her during the marriage also did not excuse Chia’s obligation to provide maintenance for her subsequently. In view of the circumstances, the order for maintenance was increased to $1,000 per month. Shirley Koo Facts: The petitioner and the respondent were married and had three children. The petitioner later presented the present petition for divorce on the grounds the marriage had broken down irretrievably. The divorce proceedings proceeded as if they were contested. However, at the first hearing, the issues as regards the custody of the three children, the maintenance of the petitioner and the children, and the division of matrimonial property was not disposed of due to lack of time and the respondent not having provided sufficient particulars in this affidavit to settle the last two issues. The hearing was therefore adjourned and an interim order prohibiting the respondent from letting out the matrimonial home was made. At the second hearing, an order was made giving custody of the three children to the petitioner, ordering the respondent to pay maintenance to the petitioner, ordering the respondent to transfer his share of the matrimonial property to the petitioner and to deliver vacant possession of it, and restraining the respondent from disposing of the matrimonial property. Later the petitioner requested for the amount of maintenance to be increased while the respondent resisted this application. Holdings: Held, allowing the petitioner`s application: (1).The respondent only stated his salary in his affidavit but not his other allowances or perquisites. The court did not believe that his monthly salary was all he was earning from his employer, especially since his previous employer paid him more than his present declared salary. (2).The respondent stated that an increase in the maintenance could undermine his motivation to work. This ground for not increasing the maintenance was rejected. (3).A house, an apartment, membership of a country club and the cash balances in the respondent`s bank accounts were the property owned either jointly or by the respondent alone. The country club membership was matrimonial property since it was acquired during marriage. The house was bought from the proceeds of sale of a previous house to which the petitioner had also contributed in money, property and work. The petitioner was therefore entitled to share of the present house. The membership in the country club was acquired during marriage and was thus a matrimonial property. (4).The petitioner had made contributions to the welfare of the family by looking after the home and caring for the children. (5).Taking into account the factors prescribed in s 106(2) and (4) of the Women`s Charter, a fair division of the matrimonial property would be for the respondent to transfer all his interest in the house to the petitioner and for her to forego all her claims to the other assets. This would give her and the children a permanent roof over their heads.

(6).As a protective measure, an interim order would be made restraining the respondent from disposing of the apartment until his interest in the house is transferred to the petitioner free from all encumbrances. Subsections… (a) the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets; (b) any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage; Comments (8) The more the contributions to the asset acquisition, the more the court is likely to award (9) Or, at least award a higher % to the party with more contributions (10) Where 1 spouse incurred debt and the other paid up for the matrimonial asset (11)Got to set off the 1st spouse’s debt in consideration (12) Especially in poor families, where wife without financial means/ work (13) Splitting of the flat is not very helpful (14) Important that children should get roof over their heads – needs of children require that property not be divided and wife and children may be allowed to live until the youngest child reaches the age of majority (21 years) (15) Husband in losing position – inconveniences him and his family & friends (16) However court recognises that needs of children are paramount (17) Account for non-financial contributions of spouse staying at home (to create home environment)

(c) the needs of the children (if any) of the marriage;

(d) the extent of the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party; (e) any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce;

(18) Here, does not mean that pre-nuptial agreements are relevant (19) But, where parties draw up agreement as a precursor to a divorce (20) Pre-nuptial agreements: before a marriage is formed – unlikely to be given effect (in Singapore) since hard to anticipate what is going to happen during the marriage (21) Fairness issue

(f) any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party; (g) the giving of assistance or support by one party to the other party (whether or not of a material kind), including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business; and

(h) the matters referred to in section 114(1) so far as they are relevant. -

(22) See section 114(1) – below

Note power of cout may be ordered before and after decree absolute – altering position of common law during previus section 106 days - tan haw soon v lim beng choo 1996 – “The hearing of the ancillaries, concluded on 1 March 1989 and the decree nisi made absolute on 4 April 1989 marked the end of the divorce proceedings. In these circumstances, the court had no jurisdiction to open this issue and make an order under s 106, even if no order under s 106 was made at the hearing of the ancillaries. However, where the court made an interim direction or postpone the division of the matrimonial asset during the hearing for ancillaries, the court might, after the decree was made absolute, make a final order under that section.” • Power ancillary to matrimonial jurisdiction, court has discretion to use or decline – where parties already had agreement bet them – – typically where sep for 4 yrs, may have enterewd into deed of separation in which there may be terms – (done up by lawers) eg regarding maintenance for wife and children, division of matr assets – on divorce, agremenet entered into may be relevant and cout may say that decline to use power and let agreement stand – court may also say that wil not go into section 112 but use agremenet and say – looks fair, and so will go by its terms  ie still using 112 but premised on agreement • Reaching “just & equitable” division having regards to S 112 Factors – (2) have regard to all the circumstances …including:  contributions in money, property or work towards matrimonial assets  debt or obligation for joint benefit or benefit of child needs of minor children  contributions made by each party to welfare of family any agreement between the parties  rent-free occupation or other benefit in the matrimonial home  assistance or support by one party to the other party (whether or not of a material kind)  the matters referred to in section 114 (1) so far as they are relevant. – includes conduct but note: only gross misconduct affects

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[TCH]: Should not be necessary to draw a distinction between assets in caveat and earlier provisions If assets received as gift and spouse sells it for cash, and later uses the cash to purchase another item during the marriage, the latter item will be considered a ‘matrimonial asset’ – Courts would not go back to original source of cash

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• All s112 factors relevant, but cases focus on contributions: – 3 areas:  money and work efforts and homemaking efforts and children

STARTING PT • Difference in approach may lie with “starting points” or process of valuing “contributions”: - • 1. Soh Chan Soon v Tan Choon Yock [1998] SGHC 204: starting point - assume equal contribution. – Then as evid is produced, make nec adjustments to come to end pt - • c.f. 2. Yow Mee Lan v Chen Kai Buan [2000] 4 SLR 466 : no starting point of equal contribution, look at factors. Facts The parties were married in 1973. The husband started a timber-related business, Plymat, and provided consultancy services for the timber industry. Their prosperity was largely due to the talents and efforts of the husband. The wife was not as capable as the husband. However, the wife’s commitment to her family and the marriage had been total and unstinting. In 1993, the wife found out that the husband had a mistress in Johor and

two children by her. The wife then withdrew money from two joint accounts in Hong Kong and put the money in accounts in her own name. In 1994, the husband purchased a flat at Astor Green in their joint names but the wife was unwilling to move into it. He then found a buyer but the wife refused to cooperate in the sale and the flat was subsequently sold at a much lower price. The husband claimed that Plymat was separate from the consultancy business, while the wife claimed that the consultancy business was part of Plymat, and also that she should be regarded as an undisclosed partner of Plymat. There were also several other assets, including the matrimonial home, monies in bank accounts in Singapore, Hong Kong and Johor (including a Maybank savings account held jointly by the husband and one Mr Wong), a refund from the cancelled purchase of a property in Malaysia (called the Binabaik property), a rent-out office unit in Beach Road (“the Beach Road property”), shares (including CLOB shares) and club memberships. The parties were dissatisfied with Family Court’s ancillary orders in relation to division of matrimonial property. The wife wanted a greater share of the assets and more maintenance while the husband sought to reduce the wife’s proportion of the assets. Held, allowing both appeals in part: (1) Since the enactment of s 112 in the Women’s Charter (Cap 353, 1997 Rev Ed) in 1996, the court’s task was to consider the marriage as a whole and particularly the role played by each of the parties in the physical and emotional care of the family and in their financial dealings, in order to arrive, to the best of its ability, at a fair division of the assets. The court would consider the various factors laid down in s 112(2) and in s 114 but would not be bound to give pre-eminence to any of those factors in the way it used to have to do under s 106(4). Thus, a party’s financial contributions to the acquisition of any particular matrimonial asset could no longer be principally determinative of how it was divided and the court was free to give as much weight or more to other, non-financial, factors. (2) The correct approach was to first determine the facts of any particular case, consider which of the factors set out in s 112(2) were applicable on those facts and thereafter decide what would amount to an equitable division. In all the circumstances of the present case, the equitable division was an equal division of those assets that the parties had asked to share in, and this included the wife’s assets. (3) The district judge’s holding that the overseas consultancy business had to be regarded as a separate business was incorrect. The consultancy business had to be regarded as part of Plymat. However, the district judge was correct in finding that the wife was not an undisclosed partner of Plymat. (4) The husband’s behaviour was no ground for giving the wife an extra share. Even though the initial cause of the marriage breakdown was the husband’s conduct, both parties behaved badly thereafter. There was no justification to deprive the husband entirely of interest in the matrimonial home and so the property would be divided equally. (5) The amount to be paid to the husband for his 50% share in the matrimonial home would be assessed on the basis of an open market valuation carried out by a valuer appointed jointly by the husband and wife’s solicitors. This approach would be consistent with the other orders made which were based on either market or actual realisable values. (6) The district judge’s order that the husband account to the wife in respect of the rentals from the Beach Road property would be set aside. While the wife could have started a civil action for an accounting of the rental due to her prior to the hearing of the ancillary matters, it was too late to ask for such an order at this point when whatever rentals the husband had received would have either been spent or subsumed in some way in his other assets which were the subject of division and of which the wife would receive her share. (7) The district judge was correct in ordering that the monies withdrawn by the wife from the Hong Kong accounts be notionally pooled back and made available for distribution. The district judge was correct in not notionally pooling the husband’s withdrawals from the Hong Kong bank accounts over the years. These withdrawals were made to finance the husband’s investments or otherwise used or transferred in the ordinary course of things and therefore should not be pooled back. (8) The total amount in the joint Maybank savings account held with Mr Wong would be pooled for distribution. The husband had furnished paltry documentation and scanty facts in relation to those monies and had not substantiated his assertion that the monies in the Maybank account belonged to him and Mr Wong in equal shares. (9) There would be no order in relation to the proceeds from the termination of the purchase of the Binabaik property since when the proceeds were returned, they had already been divided equally between the parties. (10) The evidence did not support the reasons given by the district judge for the drawing of an adverse inference against the husband for failure to make full and frank disclosure of his bank accounts and Malaysian properties. The finding that he did not make full and frank disclosure was therefore set aside. (11) An adverse inference had to be drawn against the wife in respect of the sums withdrawn from the accounts in Hong Kong as she made no effort to account for what she had done with the funds in her hands.

(12) The order for division of matrimonial assets would be applied to the CLOB shares as well. (13) The district judge was right in finding that a sum of $1,800 per month was a fair maintenance payment for the wife. The wife had assets of her own and could not expect a full subsidy for her lifestyle. However, the number of years the wife would be entitled to maintenance would be varied from the eight years given by the district judge. The fairer way of dealing with the problem of maintenance was to award the wife a lump sum based on full maintenance for eight years (ie up to the husband reaching the age of 60) and on half maintenance for a further eight years. (14) The quantum of maintenance for the son and younger daughter would not be increased as the wife had not put forward any good basis for upsetting the decision of the lower court in this matter.

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• 3. Lim Choon Lai v Chew Kai Buan [2001] 3 SLR 225 endorsed Yow Mee Lan. Look at all factors, including indirect contributions. Not make meticulous calculation of every minute sum, use broad brush approach after that.

Facts The parties were married for about 30 years and had two children from the marriage, both above age 21. During the marriage, the husband was employed as a clerk while the wife worked as a school teacher. He had since retired while she continued to be so employed. The main dispute in the present proceedings related to how the matrimonial home should be divided. The matrimonial home was purchased about 22 years ago. Almost 40% of the purchase price was financed by a government loan while the remaining amount was paid for directly by the parties. The district judge was of the view that the proceeds from the sale should be divided equally between the parties. The wife was dissatisfied and felt she deserved a larger share as she had made more contributions to the family during the marriage. She appealed and the appeal was dismissed by the judicial commissioner. The wife then appealed to the Court of Appeal. Held, allowing the appeal and ordering a 60% share to the wife and 40% share to the husband: (1) In making a “just and equitable” division of matrimonial assets, the court was required under s 112(2) of the Charter to have regard to all the relevant circumstances of the case, in particular the matters specified in that subsection, in so far as they are applicable. After considering both the financial and non-financial contributions of each party, the court would adopt a broad-brush approach to determine what was a “just and equitable” division. It was not the proper approach to use as the starting point the assumption that both husband and wife had contributed jointly and equally throughout the marriage to the acquisition and growth of the equity in the family home, whether the marriage was a long or short one. (2) The evidence showed that throughout the 30-year marriage, it was the wife who bore the main burden of supporting the family and providing for its welfare. Although due recognition should also be given to husband for his lesser contributions, the district judge had been too generous towards him and had given too much credit to his financial contributions. The wife’s job was also more likely to allow her to spend more time with the family and children. (3) After considering all the various factors and weighing the monetary and non-monetary contributions made by each party, the wife deserved greater credit for the comparatively larger contributions she had made to the family and marriage. Consequently, a just and equitable division would be for her to receive a 60% share in the sale proceeds of the matrimonial home and the husband to have a 40% share. END PT Trends: “End Point” proportion - • Short marriage: – Financial contributions feature prominently, divide according to financial contribution – Ie lawyer dealing with short marriage shd tell cient – u get back what u put in – Very little eco disadv tt u wld have suffered in marriage entitling u to greater assets/maintenance – Tendency not to have kids – In many cases homemaker tends to be economically disadvantaged (quit job) - • Long marriage: – Towards equal division. – Indirect contributions would be greater, so e.g. homemaker may get 35-45% despite no financial contribution. (e.g. Ng Hwee Keng; Hoong Khai Soon v Cheng Kwee Eng [1993] 3 SLR 34) Hoong Khai Soon Facts

The parties were married in 1976 and divorce proceedings were commenced by the wife in May 1990 on the ground that the marriage had broken down irretrievably. These appeals arose out of ancillary orders made in the divorce proceedings. The husband appealed against the order that he transfer his undivided half share a property to the wife to be held solely as security for the payment of maintenance ordered for her and the children, and the wife appealed against the order that the husband’s interests in a business owned by his family and his undivided share in a property are not matrimonial assets available for division under s 106 of the Women’s Charter (Cap 353) (‘the Charter’) and the payment of the monthly maintenance of $1,500 for her and the children. Held, setting aside the order made below but remitting the matter to the High Court as to the form of a fund that should be set up and allowing the second appeal in part: (1) It was important to distinguish the husband’s interest in the capital of the business and his interest in its income. His interest in the income accrued during the marriage and was only relevant to an order for maintenance. It could also be relevant to a division of assets under s 106 of the Act if it was shown that the partnership accumulated some of the profits as capital or in reserve, but there was no evidence of such a practice in this case. (2) The wife’s efforts which would bring the partnership interest acquired before the marriage, within s 106 must bear a direct causal link to the substantial improvement of the asset. However, there was no reasonable basis to draw such a causal link in the present case. (3) In the absence of evidence as to the figure, a rough and ready approximation was that the husband paid for half the purchase price of the property with the proceeds of sale of the previous property of which he was a joint tenant. Although the earlier property was a gift, the court should not trace the source of funds for a purchase to its origin. It would be inimical to the concept of a matrimonial partnership if the source of funds for every asset acquired during marriage had to be shown to not originate from the generosity of a third party. (4) In considering the apportionment of the husband’s half share in the property, the court has to consider the wife’s contributions to the welfare of the family and the needs of the children. A significant factor was that the parties had already been separated for over a year when the property was purchased and the chances for a reconciliation though present were not very high. A reasonable order would be to give the wife 35% of the husband’s half share in the property. (5) Sections 109(2) and 124 of the Charter provided that the court may order security where maintenance for the wife or the children was ordered. Under the previous provisions in the Act on maintenance, secured maintenance for a wife could only mean the setting up of a fund vested in a third party out of which the wife’s maintenance would be paid. The new provisions as to secured maintenance plainly sought to continue this form of order. The property to be vested must presently be producing income. It would appear to frustrate the legislative intention otherwise since the purpose of the trust was to be a secure source of the maintenance. The trust was not meant to be a fund to be looked to only in a default of maintenance payment. (7) The judge was wrong to order that the husband’s interest in the property be transferred to the wife as security for the payment of maintenance to her and to the children. Although the order for maintenance was not divided as between the wife and the children, it was necessary to deal with the two aspects of the order separately. The order was wrong as regards the maintenance for the wife because it was clear from s 109(2) that the trustee of the fund must be a different person from the beneficiary of the maintenance order. As regards the children, the fact that the property was not presently producing income would rule out that property as the fund for secured maintenance. (8) In view of the foregoing, the court had to consider afresh whether secured maintenance was required in this case. While it was relevant that the husband intended to remarry and settle in Singapore, it was also relevant that there was a substantial risk that he would not pay the maintenance and would take steps to put his assets out of the wife’s reach. In view of this risk, the matter was remitted to the High Court for representations to be made as to the most suitable form of a fund that would produce an income of at least $1,500 a month and as to the duration for which such a fund should be set up.

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Likely equal division where both worked, wife worked and homemaker (e.g. Tham Khai Meng v Nam Wen Jet Bernadette [1997] 2 SLR 27 Facts A decree nisi was granted on the wife’s petition with costs awarded to the wife. In respect of division of matrimonial assets and maintenance, the court ordered that: (a) the matrimonial property be sold and the net proceeds of sale be divided equally between the parties; (b) the husband shall pay $3,000 a month and a lump sum of $120,00 as maintenance for the wife and children; and (c) there be no order as to costs in respect of the ancillaries. Both the husband and the wife appealed against the order. Held, allowing the wife’s appeal and dismissing the husband’s appeal:

(1) The husband’s direct financial contributions to the purchase of the property exceeded that of the wife. However, in considering the financial contributions of the parties under s 106 of the Women’s Charter (Cap 353) a broader approach had to be taken to consider the indirect financial contributions made by both or either of the spouses. In this case, while the husband made monthly payments of the loan for the property, the wife shouldered a large of the expenses of the family either directly or indirectly. The husband enjoyed extensive benefits by virtue of the wife’s employment, including a club membership, travel and entertainment expenses. The wife also paid for the renovation and maintenance of the property. The wife contributed to the welfare of the family by looking after the home or caring for the family while the husband did not play any significant role in the upbringing of the children. In the division of the property, the husband’s other assets and liabilities, as well as the children’s present and future needs had to be taken into account. (2) An equal division of the property was unfair and inequitable to the wife, and did not cater for the needs of the children. The property should not be sold but be transferred to the wife so that she and the children had a roof over their heads. In consideration of such transfer, the wife should pay the husband a lump sum of $1 m and procure the discharge of the husband’s liability for the loan taken for the purchase of the property. (3) Maintenance to the wife and the children was considered separately. Under s 108(a) of the Women’s Charter, the wife’s earning capacity, her property and other financial resources had to be considered. Taking into account also the award made in respect of the division of the matrimonial assets, the short marriage and that the parties should have a clean break, no order was made for the payment of any periodic or lump sum to the wife as maintenance. As for the children, the husband had to bear the responsibility for maintaining them. The court must have regard to the factors in s 123 of the Women’s Charter. Clearly, the financial needs of the children, standard of living enjoyed by them and the manner in which they were being brought up, educated and trained were relevant. The husband was earning a good income. The husband was therefore ordered to pay to the wife $3,000 per month for the maintenance of the two children. (4) The hearing of the ancillaries was a part of or continuation of the hearing of the petition. It followed that where a party was awarded costs at the hearing of the petition, the same order as to costs should follow at the hearing of the ancillaries, unless the party to whom the costs were awarded at the hearing of the petition had acted unreasonably at the hearing of the ancillaries or for other good reasons. Therefore the wife should have been allowed the costs of the hearing of the ancillaries below. Difficult to consider/put value to every single thing that has happened in so many long years of marriage, broad brush approach sensible. Other matters related to asset divisions 1) Limitations on solutions due to HDB and CPF rules - • HDB rules: Divorce destroys family nucleus required to hold flat jointly, therefore – sell to Third Party or – transfer/sell share to other party or – defer sale with permission from HDB (till?) when u divorce and cannot live together, sell falt, monies u have may be slashed – too little for everyone – economies of scale gone HDB flat policies very specific - • CPF rules: require monies to be refunded to CPF account – Any CPF monies which have been used to pay for the flat must, as a general rule, be refunded to your CPF account with interest. If your calculations show that the sale proceeds are not enough to refund the CPF monies, you will have to write to CPF Board to inform them of the situation, and request that they waive the refund of the shortfall between the sale proceeds of the HDB flat, and the amount of CPF monies (plus interest) which have to be refunded. It is in the discretion of the CPF Board as to whether they will waive the refund of the shortfall or not. - • Often: problem: “pie too small” – not much left for parties to start new separate homes. - • Need to check with HDB officer managing that particular flat/block – An HDB flat may be a matrimonial asset that can be divided by the court if it falls within the definition of a matrimonial asset. In dividing the flat, the court can make any orders set out in Question 8. However, you should note that there are certain HDB policies that restrict a couple from selling or owning an HDB flat after divorce. The penalty of continuing to do so may be the forfeiture of the flat. For example, if you have not occupied the HDB flat for the requisite period, you may be barred from selling the flat. If you wish to retain the flat (the other spouse will then transfer his/her share in the flat to you), you must first be eligible to own the HDB flat under

HDB's policies. It is therefore important you seek information from HDB as to what you can or cannot do with your flat before the ancillary matters hearing 2) Power of court to set aside and prevent dispositions – section 132 132. —(1) Where — (a) any matrimonial proceedings are pending; (b) an order has been made under section 112 and has not been complied with; (c) an order for maintenance has been made under section 113 or 127 and has not been rescinded; or (d) maintenance is payable under any agreement to or for the benefit of a wife or former wife or child, the court shall have power on application — (i) if it is satisfied that any disposition of property has been made by the husband or former husband or parent of the person by or on whose behalf the application is made, within the preceding 3 years, with the object on the part of the person making the disposition of reducing his or her means to pay maintenance or of depriving his wife or former wife of any rights in relation to that property, to set aside the disposition; and (ii) if it is satisfied that any disposition of property is intended to be made with any such object, to grant an injunction preventing that disposition. (2) In this section — "disposition" includes a sale, gift, lease, mortgage or any other transaction whereby ownership or possession of the property is transferred or encumbered but does not include a disposition made for money or money’s worth to or in favour of a person acting in good faith and in ignorance of the object with which the disposition is made; "property" means property of any nature, movable or immovable, and includes money.  Precludes the temptation to dispose of assets!

3) other possible considerations - When either party has incurred debt for the benefit of the family (e.g., mortgage of the matrimonial home) o this will be considered by the court in dividing assets. Similarly, if you have helped your spouse to pay his debts, this factor will be taken into consideration as your contribution to the marriage. On the other hand, if the debts incurred by your spouse have been for his/her sole benefit, it may not be taken into consideration in the division of matrimonial assets, and your spouse may be held to be solely responsible for these debts after the divorce. Bankrupt spouse: o Upon the bankruptcy of a person, his assets will vest in (i.e. come under the charge of) the Official Assignee (OA), the official from the Insolvency and Public Trustee's Office. The OA will then manage these assets, to find the money to pay off the bankrupt's creditors. The bankrupt will not be able to sell or transfer or do anything to dispose of the assets without the permission of the OA. Note that some assets do not vest in the OA, such as the HDB flat and CPF monies. o The division of the matrimonial assets in divorce proceedings will still take place in a case where either or both parties are bankrupt, in the same way as in a case where neither of the parties is a bankrupt. However, the OA may attend the hearing of the ancillary matters, to make representations on behalf of the bankrupt. The approval of the OA is also needed if there is a settlement on the division of the assets between the parties. Variation of order The court may, at any time it thinks fit, extend (i.e. enlarge), vary (i.e. change) or revoke (i.e. cancel) any order made on the division of the matrimonial assets. In appropriate cases (for example, there is a material change in circumstances such that the earlier order can no longer be carried out), the court will exercise this power. If, however, the situation is that a party is dissatisfied with the order of division made by the court, the party should file an appeal against the order. The position is different with an order made by the consent of the parties (a "consent order"). A consent order cannot generally be varied, unless the order is subject to certain conditions which cannot be fulfilled, eg. the HDB flat is ordered to be sold subject to HDB's approval and HDB does not grant approval for sale.

Broad Practical Steps: - • What are matrimonial assets? Apply s112(10) [ask client to list every asset] - • Pool all assets together and value the assets – even to eg insurance policies - • Obtain net value of matrimonial assets (ask client to list debts and liabilities) – eg take away mortgage due/ debts ie total assets minus total liab - • Use s112(2) factors to decide just and equitable proportions. – Work out with client how much each contributed? in terms of money towards purchase, efforts in looking after welfare of family. – List out financial contribn – find out how much each has contributed eg towards the flat  If husb to wife 1:9 – then as such  Must be prepared - • Identify what supporting documents, information needed. – So tt can ask for what u want - • Consider practical way to achieve the division; discuss possible outcomes. Check if options feasible esp HDB and CPF. – Eg sell/ keep it PROCEDURAL MATTERS wrt ancillary relief: Maintenance & Division of Assets

(i)

• If HBD flat involved, require filing of Matrimonial Property Plan, require standard queries to be sent to HBD and CPF (MPR rule 9) – specific to ur unit – thick stack of notes as to what u can do with ur flat, ticked by HDB – then get ready for filing

Matrimonial property plan 9. —(1) Where a writ for divorce, judicial separation or nullity of marriage discloses that there is an HDB matrimonial asset to be divided, the plaintiff shall file, together with the writ — (a) an agreed matrimonial property plan in Form 31 and the particulars of arrangements for housing in Form 35; or (b) a proposed matrimonial property plan in Form 32 and the particulars of arrangements for housing in Form 35. (2) Where, at any time after the filing of a writ for divorce, judicial separation or nullity of marriage, it is disclosed that there is an HDB matrimonial asset to be divided, the plaintiff shall file the documents referred to in paragraph (1) (a) or (b) in court — (a) within the time specified by the court; or (b) if no time is specified by the court, before the court makes any order under section 112 of the Act. (3) Prior to the filing of an agreed matrimonial property plan under paragraph (1) — (a) the plaintiff and the defendant shall each submit the CPF standard query to the Central Provident Fund Board, which shall give each party its written reply within such time and in such manner as the Registrar may specify; and (b) the plaintiff shall, unless the court directs otherwise, serve the agreed matrimonial property plan on the Housing and Development Board, which shall, within one month from the date of service, give the plaintiff its written reply as to whether it has any objection to the agreed matrimonial property plan or the agreement and, if it has any objection, the nature of the objection. (4) Prior to the filing of a proposed matrimonial property plan under paragraph (1), the plaintiff shall submit the CPF standard query and the HDB standard query to the Central Provident Fund Board and the Housing and Development Board, respectively, each of which shall give the plaintiff its written reply within such time and in such manner as the Registrar may specify. (5) Where the Central Provident Fund Board or the Housing and Development Board does not give its written reply within the time specified by the Registrar under paragraph (3) or (4), as the case may be, the plaintiff — (a) may file the writ without the agreed matrimonial property plan or proposed matrimonial property plan; but (b) shall file the plan within 7 days of the receipt of the written reply. (6) The court may, in an appropriate case, abridge the time within which the Central Provident Fund Board or the Housing and Development Board shall give a written reply under paragraph (3) or (4), as the case may be.

(ii)
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Manner of application MPR R 49 (1) Any application by a plaintiff or by a defendant who files a defence claiming relief for — – • (a) an order for maintenance; or – • (b) an order for the division of matrimonial assets, – • shall be made in the writ or defence, as the case may be. • (2) Notwithstanding anything in paragraph (1), an application for ancillary relief which should have been made in the writ or defence may be made subsequently — – • (a) by leave of the court, either by summons or at the trial; or – • (b) where the parties are agreed upon the terms of the proposed order, without leave, at the trial. (3) An application by a plaintiff or defendant for ancillary relief, not being an application which is required to be made in the writ or defence, may be made by summons. Application for ancillary relief after order of Magistrate’s Court 50. Where an application for ancillary relief is made while there is in force an order of a Magistrate’s Court for maintenance of a spouse or child, the applicant shall file a copy of the order on or before the hearing of the application.

Where there are no divorce proceedings between the spouses - see section 59 women’s charter – originating summons legal principles that are applicable when the Family Court deals with applications for division of matrimonial property between spouses. Such applications can be made under section 59 of the Women's Charter or Part X of the Women's Charter. These principles apply to both Muslim as well as nonMuslim parties. Questions between husband and wife as to property to be decided in summary way 59. —(1) In any question between husband and wife as to the title to or possession of property, either party may apply by summons or otherwise in a summary way to any Judge of the High Court, and the Judge may make such order with respect to the property in dispute and as to the costs of and consequent on the application as he thinks fit, or may direct the application to stand over, and any inquiry touching the matters in question to be made in such manner as he thinks fit. (2) Any order made under this section shall be subject to appeal in the same way as an order made by the same Judge in an action pending in the High Court. (3) The Judge may, if either party so requires, hear any such application in his chambers. (4) An application may be made under this section by either of the parties to a marriage notwithstanding that their marriage has been dissolved or annulled so long as the application is made within the period of 3 years beginning with the date on which the marriage was dissolved or annulled. (5) References in this section to a husband or a wife shall be construed accordingly. The court will decide your dispute according to the same legal principles which apply to property disputes between parties who are not spouses, and not according to the legal principles which apply to property disputes between parties to divorce proceedings. Some of the factors the court will consider include: the registered owner: generally, the registered owner is considered to also have the "beneficial interest" in the property; resulting trust: where a spouse has paid all or part of the purchase price of the property, the spouse who is the registered owner of the property will hold the property on trust (known as a "resulting trust") for the other spouse to the extent that he or she has contributed towards the purchase price; presumption of advancement: in appropriate cases, the court may presume that a husband, when he pays the purchase money for the property, or transfers the property to the wife, intends to make a gift to the wife. This presumption of advancement may be rebutted by evidence of the true intention of the parties; constructive trust: the court may infer from the conduct of the parties and the circumstances of the case that there was a common intention between the spouses that both should have a beneficial interest in the property. A "constructive trust" may arise enabling a spouse to claim a share of the property.

(a) (b)

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My spouse has many debts. Do I have to help pay these debts? Each spouse is responsible for his or her own debts. So you do not have to help pay your spouse's debts. However, if the debt is a joint debt incurred by both your spouse and you, you have to help to pay this debt. For example, both spouses bought a house in joint names and the house is mortgaged to the bank. If there is any default in the monthly instalment payments, or if the property is sold at a loss, the bank will look to both spouses for payment, even though only one of them has actually been paying the monthly instalment payments to the bank. back to top Divorce in place It is possible not to deal with the matrimonial assets during divorce proceedings, if your spouse agrees. You may subsequently apply to court to deal with the matter at a later stage. But if your spouse wants to deal with the matrimonial assets during divorce proceedings, then you will have to do so. Moreover, as a matter of practice, the court will generally expect the issue of the matrimonial assets to be resolved during the divorce proceedings, so that parties who are no longer be in a relationship of marriage have a "clean break" with each other. Also, if the matrimonial assets consist of an HDB flat, there are certain HDB policies that disallow a couple from continuing to hold the HDB flat in their joint names after divorce. The penalty of continuing to do so may be forfeiture of the flat. Therefore, it would be wise, in this situation, to deal with the issue of the matrimonial assets during the divorce proceedings (iii) my spouse is dissipating (disposing of) the matrimonial assets in order to prevent me from claiming a share If you suspect that your spouse is in the process of dissipating the matrimonial assets, you may apply for an injunction, that is an order to stop him and others from disposing of the assets. However, the court will not grant an injunction unless it is satisfied that there is a real risk that the assets may be dissipated and that it is just to make the order. You will also have to give an undertaking (i.e. promise) to the court that you will pay damages if the injunction is wrongly applied for. Alternatively, if you suspect that your spouse is likely to sell a particular property without your knowledge, you may lodge a "caveat" with the Registry of Land Titles, claiming a beneficial interest in the property, which may either prevent him from selling the property at all, or will prevent him from selling the property without notifying you first. If you believe that your spouse has already dissipated some assets, you may highlight this to the court. You will have to state the reasons for your belief, together with the relevant evidence, in an affidavit (a sworn statement). The court may include the assets that have been disposed of, in deciding the division of matrimonial assets and your share in the assets.

(iv) How to obtain max amt of info fr husb before hearing: •—
Difficulties - • Obtaining information on means and assets ie disclosure of assets – advise client to obtain proof from house eg Photostat stuff – advise client to be gd wife and mother so tt later can get support! - • Matrimonial Proceedings Rules (MPR 2005): – • Rule 51: requires filing affidavit of assets and means (in certain form) setting out full particulars of his or her property and income. Filing of Affidavit of Assets and Means 51. —(1) Where a defendant is served with a writ in which maintenance or an order for division of matrimonial assets is claimed and enters an appearance, the defendant shall, if the court so orders, file an Affidavit of Assets and Means in such form as the Registrar may direct, within such period as the court directs. (2) If an Affidavit of Assets and Means is filed by a party pursuant to an order by the court, the other party shall, unless the court otherwise orders, and if he has not already done so, within 14 days after delivery of the Affidavit of Assets and Means, file his own Affidavit of Assets and Means.

(3) Rules 25 to 39 shall apply to any application for discovery, interrogatories or inspection relating to an Affidavit of Assets and Means. (4) An order for the filing of an Affidavit of Assets and Means shall not be made before the granting of an interim judgment, unless the court is of the view that such an order is necessary or desirable. Evidence in proceedings for division of matrimonial assets or avoidance of disposition 52. —(1) The affidavit filed in support of proceedings for the division of matrimonial assets or an avoidance of disposition shall contain, so far as is known to the deponent — (a) in the case of an application for a transfer or settlement of assets — (i) the assets in respect of which the application is made; and (ii) the assets to which the party against whom the application is made is entitled, either in possession or reversion; (b) in the case of an application for an order for a variation of settlement order — (i) all settlements, whether antenuptial or postnuptial, made on the spouses; and (ii) the funds brought into settlement by each spouse; and (c) in the case of an application for an avoidance of disposition order — (i) the assets to which the disposition relates; and (ii) the persons in whose favour the disposition is alleged to have been made, and in the case of a disposition alleged to have been made by way of settlement, the trustees and the beneficiaries of the settlement. (2) Where the proceedings for the division of matrimonial assets or an avoidance of disposition relates to land, the affidavit in support shall, in addition to containing any particulars required by paragraph (1) — (a) state whether the title to the land is registered or unregistered and, if registered, the Land Registry title number; (b) give particulars, so far as is known to the applicant, of any mortgage of the land or any interest therein; and (c) give particulars of the registered owner or owners of the land and, if there is more than one owner, the manner in which the land is held, whether as joint tenants or tenants-in-common. (3) The affidavit or affidavits filed in respect of proceedings for the division of matrimonial assets or an avoidance of disposition, and any application filed to commence such proceedings, shall be served on the following persons as well as on the party defending the proceedings: (a) in the case of an application for an order for a variation of settlement order, the trustees of the settlement and the settlor, if living; (b) in the case of an application for an avoidance of disposition order, the person in whose favour the disposition is alleged to have been made, and any mortgagee of whom particulars are given pursuant to paragraph (2); and (c) such other persons, if any, as the court may direct. (4) Subject to any directions which may be given by the court, any person served with an affidavit and an application (if any) to which this rule applies may, within 14 days after service, file an affidavit in answer. Sub courts PD 2 of 2005 – std form affidavit of assets and means (form 24I) – dled fr family court website In absence of full and frank disclosure court entitled to draw adverse inferences against party guilty of non disclosure This is filed if there is claim for maintenance/or division of assets by either party Parties are reqd to disclose in affidavit – Work partrs including income – Partrs of all assets in sg or overseas – for land, rule 52(2) – whether title to land is registered or non registered; if registered land registry title no, partrs of any mortgage on land, registered owners of land – List of expenses and tt of any child or dependant – List of creditors – Detais of direct and indirect contributions – Proposals on division of assets and/or maintenance – Children issues ie info on custody care and control and access – Supporting docs to be attached • Discovery rules added in 2005 –many specific directions on various related matters. – • R 25 to 30 : govern proceedings for ancillary matters and production of and inspection of documents

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Discovery in respect of ancillary relief 25. —(1) Subject to paragraph (9) and rule 35, the court may, at any time, on the application of any party to an

action or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application, or any class of documents so specified or described, is or has at any time been in his possession, custody or power, and if not then in his possession, custody or power, when he parted with it and what has become of it. (2) Upon the making of an order under paragraph (1), if a document or class of documents is stated by the party in his affidavit to be in his possession, custody or power, the court may order the party to exhibit a copy or copies of the document or class of documents in the affidavit. (3) An application for an order under this rule must be in such form as the Registrar may direct, and be supported by an affidavit stating the belief of the deponent — (a) that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power, the document or class of documents specified or described in the application; and (b) that the document falls within one of the following descriptions: (i) a document on which the party relies or will rely; (ii) a document which could — (A) adversely affect his own case; (B) adversely affect another party’s case; or (C) support another party’s case; and (iii) a document which may lead the party seeking discovery of it to a train of inquiry resulting in his obtaining information which may — (A) adversely affect his own case; (B) adversely affect another party’s case; or (C) support another party’s case. (4) No application under paragraph (1) may be made without the leave of the court in respect of any document or class of documents until the party making the application has served a request on the other party seeking discovery of the said document or class of documents, in such form as the Registrar may direct, at least 14 days before the filing of the application. (5) The request referred to under paragraph (4) must set out, in respect of each such document or class of documents, the reasons for requesting discovery. (6) A party who is served with such a written request for discovery shall serve a notice, in such form as the Registrar may direct, within 7 days of having been served with the said request, stating — (a) which document or class of documents he is willing to provide discovery of, and in what mode he is willing to provide such discovery; and (b) which document or class of documents he is not willing or not able to provide discovery of. (7) Unless otherwise agreed by the parties, the document or class of documents which the party is willing to provide discovery of under paragraph (6) (a) shall be provided or made available, as the case may be, within 14 days of the service of the written request for discovery. (8) In deciding whether to grant an order under paragraph (1), the court shall take into account the extent of discovery which the party from whom discovery is sought has stated that he is willing to provide under paragraph (6) (a), as well as any offer made by the party to give particulars or make admissions relating to any matter in question. (9) An order under paragraph (1) shall not be made in respect of any party before the granting of the interim judgment, or before the Affidavit of Assets and Means has been filed by the plaintiff and the defendant, unless, in the opinion of the court — (a) the order is necessary to prevent the disposal of a party’s assets; (b) the order is made in conjunction with an order preventing the disposal of a party’s assets; or (c) there is any other exceptional circumstance necessitating the making of the order. Duty to give discovery continues throughout proceedings 26. After the making of any order under rule 25, the party required to give discovery under the order shall remain under a duty to continue to give discovery of all documents falling within the ambit of the order until the proceedings in which the order was made are concluded. Inspection of documents in respect of ancillary relief 27. —(1) Any party to an action or matter shall be entitled at any time to serve a notice, in such form as the Registrar may direct, on any other party in whose pleadings or affidavits reference is made to any document, requiring the other party to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof. (2) The party on whom a notice is served under paragraph (1) must, within 7 days after service of the notice, serve on the party giving the notice a notice in such form as the Registrar may direct — (a) stating a time within 7 days after the service thereof at which the documents, or such of them as he does not object to produce, may be inspected at a place specified in the notice; and

(b) stating which (if any) of the documents he objects to produce and on what grounds. Order for production of documents for inspection 28. —(1) If a party who is served with a notice under rule 27 (1) — (a) fails to serve a notice under rule 27 (2); (b) objects to producing any document for inspection; or (c) offers inspection at a time or place such that, in the opinion of the court, it is unreasonable to offer inspection then or, as the case may be, there, then, subject to rule 35, the court may, on the application of the party entitled to inspection, make an order for the production of the documents in question for inspection at such time and place, in such manner, and on such conditions, as it thinks fit. (2) Without prejudice to paragraph (1), but subject to rule 35, the court may, on the application of any party to an action or matter, order any other party to permit the party applying to inspect any documents in the possession, custody or power of that other party in respect of which discovery has been given under rule 25 or pursuant to any order made under this rule. (3) In particular, on the making of an order under rule 25 (1), the court may, in lieu of making an order under rule 25 (2), make such orders for the production of the relevant documents for inspection at such time and place, and in such manner, as it thinks fit. (4) An application for an order under paragraph (2) must be supported by an affidavit specifying or describing the documents of which inspection is sought and stating the belief of the deponent that they are in the possession, custody or power of the other party and that discovery has been given of them under rule 25 or pursuant to any order made under that rule. Production of business books 29. —(1) Where the production of any business books for inspection is applied for under rule 28, the court may, instead of ordering the production of the original books for inspection, order a copy of any entries therein to be supplied and verified by an affidavit of some person who has examined the copy with the original books. (2) Any such affidavit shall state whether or not there are in the original books any, and if so what, erasures, interlineations or alterations. (3) Notwithstanding that a copy of any entries in any book has been supplied under this rule, the court may order the production of the book from which the copy was made. Restriction on use of privileged document, inspection of which has been inadvertently allowed 30. Where a party inadvertently allows a privileged document to be inspected, the party who inspected it may use it or its contents only if the leave of the court to do so is first obtained.

• R 31 to 32: govern service and application for interrogatories in ancillary matters.

Interrogatories in respect of ancillary relief 31. —(1) A party to any proceedings under Part X of the Act may serve interrogatories on any other party to the proceedings, in such form as the Registrar shall direct, setting out in respect of each interrogatory the reasons for requesting the interrogatory. (2) The interrogatories must relate to a matter in question between the applicant and that other party to the proceedings, and must be necessary either for disposing fairly of the matter or for saving costs. (3) A party who is served with the interrogatories shall serve a notice, in such form as the Registrar may direct, on the party who has served the interrogatories, within 7 days of having been served with the interrogatories, stating — (a) which interrogatories he is willing to answer, to the best of his knowledge, information and belief; and (b) which interrogatories he is not willing or not able to answer. (4) Unless otherwise agreed between the parties, the interrogatories which the party is willing to answer shall be answered by affidavit to be filed within 14 days of the service of the written request for interrogatories. (5) In the event that no response is received from the party served with the interrogatories within the period specified in paragraph (3), or if that party has stated in writing, pursuant to paragraph (3), that he is not willing or not able to answer any or all of the interrogatories served, then the party who has served the interrogatories may apply to the court for an order for the relevant interrogatories to be answered. (6) The application for the interrogatories to be answered under paragraph (5) shall be made by way of summons, and shall be in such form as the Registrar may direct. (7) A copy of the interrogatories which had been served on the other party under paragraph (1) shall be annexed to and served with the summons.

(8) An order under paragraph (5) shall not be made in respect of any party before the granting of the interim judgment, or before the Affidavit of Assets and Means has been filed by the plaintiff and the defendant, unless, in the opinion of the court — (a) the order is necessary to prevent the disposal of a party’s assets; (b) the order is made in conjunction with an order preventing the disposal of a party’s assets; or (c) there is any other exceptional circumstance necessitating the making of the order. (9) In deciding whether to grant an application for interrogatories, the court shall take into account any offer made by the party served with the interrogatories to give particulars, make admissions or produce documents relating to any matter in question. (10) Any interrogatories which the court has ordered to be answered shall be answered by affidavit to be filed within such period as the court directs. (11) The interrogatories served under paragraph (1) and the application filed under paragraph (5) shall specify, where the interrogatories are to be administered to a body corporate or unincorporate which is empowered by law to sue or be sued, whether in its own name or in the name of an officer or other person, the officer or member on whom the interrogatories are to be administered. Objections and insufficient answers to interrogatories 32. —(1) Where a person objects to answering any interrogatory on the ground of privilege, he may take the objection in his answer. (2) Where any person on whom interrogatories have been served, or who has been ordered to answer interrogatories, under rule 31 answers any of them insufficiently, the court may make an order requiring him to make a further answer, either by affidavit or on oral examination as the court may direct. (3) Where any person gives insufficient answers to interrogatories which have been served on him or ordered under rule 31, the party administering the interrogatories may ask for further and better particulars of the answers given. To start process, formal request in writing to be made to other party for disclosure Std form for request for discovery – 24C PD 2 of 2005 and form 24F for interrogatories Reply also in std form in PD 2 of 2005 If no reply within 7 days, applic may be made to court by way of SIC – std form applic for discovery is 24E and Form 24H for interrogatories Lawyer to cite rule (para and sub para) under which applic is made o Also to state time frame for each item requested o Pages and para of affidavits where relvant o Why doc is reqd o What doc or info reqd Applic to be organized: o If more than 5 items reqd, org in themes o If more than 5 sub items within any item, org them in some way eg chronogically etc o If seeking discovery of bank statements, state acct no if known Both discovery and interrogatories can be made in one applic but advisable to keep tem sep by having sep headings for each unless relate to same subj matter Court will consider amt of vol disclosure by party

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Info in letter of request Wife may seek: o Share certs; list of all acquiistions made uring amrraige and partrs and status of acquisitions; if disposed then to state details; gtrace sale proceeds since may be hidden walth o Husb’s income tax returns o Comp accts – laons may have been made by comp to husband; husb may also not have drawn full entitlement of profits fr company to deflate his income  Salary, dividends, remuneration etc  Other benefits prov by comp to husb eg club expenses, entertainment, travel alowane, housing etc  Telephone  Sundries  Eng courts allow inspection of books of accts of ocmp wher husb has controlling interest in comp but not when min shr – B v B 1979

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Bank accounts  Identify all bank acts usb has in sg or orverseas; request for bank statements for past three yrs and pick out withdrawals tt are substantial in amts and enq into purpose of them  Enq into payments in – where came drom  Enq into transfers – if canot follow then suggests another bank acct not revealed Insurance policies – enq into details and surrender value CPF – request for statements; CPF monies also matr assets

Letter of request Std form 24A, 24C, 24G PD 2 2005 Request tt husb o Identify all bank accts whether current or deposit, held in sg or elsewhere since marriage date and furnish copies of statmnets of accts held by ihm in last 3 yrs o All building society and other savings accts held b him duin marriage and inspection of passbks of all accts held within last 3 yrs o Copies of all credit card statements covering last 3 yrs o Copies of income tax returns since 1995 o Copies of balance sheets and profit and loss accts o Full statement of shares and other securities held by him or on his behalf together with details of acquisitions and disposals of dhares and securities by him over last three yrs in each stating date of purchase, consideration therefor, date of sale and sum reeived Show tt this is sensible and reasonable because o Section 114(1)(a) – court to take into account income, earning capacitym property and other financial resources which each party likely to have in foreseeable future or has. Court x do work unless has such info o Trend is to finalise financial matters at divorce stage, many wives prefer to give up claim for maintenance and seek share in assets to effect clean breask – most cases end in settm. So for fair compromise impt to get full and frank disclosure. Further reference: - “The Art of Family Lawyering” Published by the Law Society of Singapore, 2005. – • Chapter 5: Maintenance of Wife and Children – • Chapter 9: Division of Assets Upon Divorce – • Chapter 10: CPF Issues in Matrimonial Proceedings

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