Law and Practice of Family Law in Singapore

2016
- 10 - 17
Law and Practice of Family Law in Singapore

Cover
2016 Thomson Reuters Corporation Pte Ltd
2016 - 10 - 17 PAGE i

Half Title Page
Law and Practice of

Family Law in Singapore

2016 - 10 - 17 PAGE iii

Title Page
Law and Practice of

Family Law in Singapore
Editor-in-Chief
Valerie Thean JC
General Editor
Foo Siew Fong
and a team of
expert contributors

2016 - 10 - 17 PAGE iv

Copyright Page
Published in 2016 by
Thomson Reuters Corporation Pte Ltd
(trading as Sweet & Maxwell)
18 Science Park Drive
Singapore 118229
ISBN 978-981-09-8126-6
ISBN 978-981-09-8128-0 (ProView eBook)
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Printed in Singapore by Seng Lee Press Pte Ltd

2016 - 10 - 17 PAGE v

Introduction
Introduction
Law is the framework upon which society defines itself. Family law practice provides a clear illustration of this. In some cases,
advances may be made by statute, as when the Women’s Charter introduced monogamy in 1961, fundamentally changing the
marriage paradigm for women in Singapore. In other cases, it is the common law whose role it is to make strides, such as when
our Court of Appeal in BNS v BNT [2015] 3 SLR 973 held that the single golden thread in all cases concerning children is the
welfare of the child concerned. Other interstices may be filled in by Rules, or practice, as when a court determines whether a
Child Representative is needed on the facts of the case: while such a ruling may not be norm setting, it has significant impact on
the child and family at the heart of the particular case. The context in which the framework is set also matters; and this context
has become increasingly international for family cases, in tandem with Singapore’s evolution as a global city.
This book seeks to illumine the richness, and the challenges, of modern family practice. A wide range of topics are covered. The
book addresses fundamental issues in family law such as forum and jurisdiction, executing and administering divorce,
maintenance and the division of matrimonial assets. Children are dealt with definitively in The Law Relating to Children,
Practice and Procedure in Relation to Children, and Other Applications relating to Children. Mediation and counselling, at the
forefront within the new family justice system, are explained in The New Family Justice System and Alternative Dispute
Resolution in the Family Justice Courts. On ancillary relief, we have three chapters (Ancillary Relief: The Law, Ancillary Relief:
Orders That Can Be Made and Ancillary Relief: Rules and Procedure). Recognising the cosmopolitan nature of our society, we
have chapters on Conflict of Laws in Family Issues and Overview of Matrimonial Finance in other Jurisdictions as well. Costs,
Injunctive Relief in Matrimonial Proceedings, Prenuptial Agreements, Variation of Maintenance, Trusts and Divorce, Domestic
Violence, and Overview of Syariah Law in Family Matters serve to give a full picture.
It is clear from the brief overview above that family law practice is not for the faint-hearted! And yet, the wide ranging nature of
the practice and its unique multi-disciplinary aspects create special opportunities for intelligent thinkers who wish to impact
lives and develop law and practice in a meaningful way. The recognition of family law as a specialised area of practice,
catalysed by the establishment of the Family Justice Courts on October 1, 2014, allows those who labour in this field to transform
the very fabric of our society.
Law and Practice of Family Law in Singapore plays a crucial role in this. By providing quick and easy access to knowledge and
precedents, the book makes family law and practice more widely “knowable”, and through this, enables greater access to justice
for all. I hope that many more will see family law as a field worthy of their energy, dedication and focus. It has been a joy,
indeed a privilege, to work alongside our learned General Editor and authors. I thank the team for making this wonderful – and
deeply generous – contribution to our legal fraternity and wider community.
Judicial Commissioner Valerie Thean
Presiding Judge, Family Justice Courts
Editor-in-Chief

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Foreword
Preface
While writing my book on divorce a few years ago, I came across an interesting comment by Canadian novelist Margaret
Atwood. She said “[a] divorce is like an amputation; you survive it, but there’s less of you.”
Many divorce cases have passed through my hands in my two decades of work as a family lawyer. While I admit that my chosen
area of practice is often emotionally-draining because of the sadness and bitterness involved when marriages (and families)
break down, I must admit that I have had uplifting moments when I encounter clients who are able to move on with life with
optimism intact. But a good family lawyer is not just about empathising with clients and counselling them; it is also about
applying the relevant laws to assist clients in the best way possible – this is after all about the practice of law. Lawyering is a
craft that one takes time to become proficient at and one has to start with the foundation, and that is knowledge.
Family law (also called matrimonial law) is a specialised area of law that deals with all aspects of family matters and domestic
relations and the chapters in this book attest to its scope and width. It is about time that a textbook of this nature gets published.
This book is by practitioners, for practitioners, with attention focused on what is important and relevant in practice, and it is
essentially a collation of experience through years of work and dedication. There has not been a publication like this in
Singapore and I hope that family lawyers and law students will find this book useful.
Lastly, my rebuttal to Margaret Atwood is this –“the tenacity of the human spirit will help one overcome the collapse of a
marriage (which some may view as a personal failure) but that same spirit too will coax one to become a stronger person.”
There are many family lawyers and judicial officers in Singapore who have specifically chosen this area of law as a career not
only because of their desire to work with and help individuals to uphold the psychological health of families, but also because of
their faith and belief in this very resilience of the human spirit.
I am indeed very fortunate to have many of them involved in this book as authors. I sincerely thank them for their time and
effort.
Foo Siew Fong
General Editor
September 2016

2016 - 10 - 17 PAGE viii

List of Contributors
List of Contributors
Editor-in-Chief
The Honourable Judicial Commissioner Valerie Thean
Presiding Judge, Family Justice Courts of Singapore
JC Valerie Thean is the first Presiding Judge of the Family Justice Courts, a specialist court structure established on 1 October
2014 comprising the High Court Family Division and the Family and Youth Courts.
Prior to heading the Family Justice Courts, JC Thean was Senior District Judge at the State Courts (Family Division). She has also
held other previous appointments such as Deputy Secretary (Law) at the Ministry of Law, Adjunct Associate Professor at the
National University of Singapore Law Faculty, Senior State Counsel at the Attorney-General’s Chambers, District Judge at the
Subordinate Courts, Assistant Registrar at the Supreme Court and Justice’s Law Clerk to the Court of Appeal.
General Editor
Foo Siew Fong
Foo Siew Fong was called to the Singapore Bar in 1991. She has practised family law exclusively for more than 25 years and is
head of the Family and Matrimonial Law Practice Group at Harry Elias Partnership LLP which was awarded “Matrimonial Law
Firm of the Year” at the Asia Legal Business SE Asia Law Awards 2016. She has been named as a leading lawyer in the Doyles
Guide for Leading Family & Divorce Lawyers for two consecutive years.
Siew Fong is a member of the International Academy of Matrimonial Lawyers, membership of which is exclusive to family
lawyers with experience in international disputes relating to maintenance, division of assets and children’s issues, and is an
accredited mediator with the Singapore Mediation Centre (SMC).
Siew Fong is a member of the Citizenship Committee of Inquiry under the Ministry of Home Affairs; a member of the executive
committee of The Spastic Children’s Association of Singapore and a member of the Committee by the Chief Justice under Section
139(1) of the Women’s Charter. She is also a recipient of the Public Service Medal for commendable public service rendered in
Singapore and remains committed to the progress of the legal community in Singapore.
Siew Fong is an honorary advisor to Singapore Association of Women’s Lawyers (SAWL) and the Chairman of the SAWL
Scholarship Fund. She played a significant role in the publications You and The Law and Teens and The Law, and is the author of
When Marriages Break Down – Rights, Obligations and Division of Property, a publication by Sweet & Maxwell.
Contributors
(in order of appearance of chapters)
Koh Geok Jen
Chapter 1 – The New Family Justice System
Koh Geok Jen @ Jen Koh graduated from the National University of Singapore in 1990 and was admitted to the Singapore Bar in
March 1991. After six years of matrimonial and civil litigation practice, she started a partnership, Koh Ong & Partners, in April
1996. In 2003/2004, she was voted by her peers through Asian Legal Business to be one of five leading matrimonial lawyers in
Singapore. In 2006, she set up her own law firm, Jen Koh & Partners, a boutique law firm specialising in family law. She has
handled complex cases, often involving high net worth parties, foreign marriages with cross-border and cross-jurisdictional
issues and complex child custody cases.
In January 2008, she joined Harry Elias Partnership as a Consultant in their matrimonial department before joining the Family
and Juvenile Division of the Subordinate Courts of Singapore (as it was known then) as a District Judge in October 2008. In
October 2014, Jen was appointed the first Deputy Registrar of the newly created Family Justice Courts where she remains to
date. In the course of her career, she served on the Family Law Practice Committee of the Law Society of Singapore, contributed
many articles to the Law Gazette and was a volunteer lawyer at the Family Service Centre. She continues to be a Facilitator
Tutor for Family Law for the Part B Bar Admissions and Examinations course conducted by the Singapore Institute of Legal
Education. Jen is an accredited mediator with the Singapore Mediation Centre and she has also completed a course in Basic
Counselling with the Academy of Human Development in Singapore.
Foo Siew Fong
Chapter 2 – Jurisdiction of the Family Court: Divorce and Dissolution
Foo Siew Fong is the General Editor of this publication. For her biodata, see above.
Koh Tien Hua
Chapter 3 – Forum and Jurisdiction
Chapter 6 – Prenuptial Agreements
Chapter 14 – Injunctive Relief in Matrimonial Proceedings
Koh Tien Hua is a Partner of Harry Elias Partnership LLP and is the Co-Head of the firm’s Family and Matrimonial Law Practice
Group and Co-Head of the firm’s Private Wealth Practice Group. He has acted for high net worth individuals, successful
entrepreneurs and wealthy families in numerous matrimonial and family law disputes and has appeared in matrimonial cases
from the Singapore Family Court to the Singapore Court of Appeal.
As Co-Head of the department, Tien Hua has played an instrumental role in getting the firm awarded “Matrimonial Law firm of
the year” at the Asia Legal Business SE Asia Law Awards 2016.
Tien Hua is a fellow of the International Academy of Matrimonial Lawyers, membership of which is open exclusively to family
lawyers with experience in international disputes relating to maintenance, division of assets and children’s issues. He is also a
member of the Family Law Committee of the Law Society of Singapore and author of a book on matrimonial and family law
entitled Divorce – Untying the Knot, a publication by Marshall Cavendish.
Tien Hua is an accredited Singapore Mediation Centre (SMC) family law mediator involved in the SMC’s Family Law Mediation
Pilot Project and is on the panel of the SMC’s Collaborative Family Practice (CFP) service, which aims to resolve family disputes
outside of the courtroom, as one of the pioneers trained in CFP. He has been appointed as a Child Representative by the Family
Justice Court for custody cases. Tien Hua is also a licensed solemniser and a deputy registrar of marriages.
Tien Hua has been awarded Family Lawyer of the Year for two years running by Finance Monthly Global Awards in 2014 and
2015 respectively. He was also identified as a pre-eminent lawyer in the Doyles Guide for Leading Family & Divorce Lawyers in
2015.
In the area of Private Wealth, Tien Hua is a legal adviser to an independent Asian Family Office and has advised private clients
on succession planning, trust structures, administration of trusts, probate and general trusts.
Tien Hua is an adjunct professor with Singapore Management University’s School of Law, teaching family law.
Tien Hua was called to the Singapore Bar in 1994 and is a Commissioner for Oaths. He graduated from the London School of
Economics in 1992 and is a barrister-at-law of the Middle Temple, UK.
Chan Wing Cheong
Chapter 4 – Ancillary Relief: The Law
Chan Wing Cheong is an Associate Professor at the Faculty of Law, National University of Singapore. He completed his
undergraduate studies in Law at Oxford University (England) and his Master degree at Cornell University (USA). He is an
advocate and solicitor of the Supreme Court of Singapore, a barrister of Gray’s Inn (England), and an attorney of New York State
(USA).
Wing Cheong joined NUS in 1993. His research interests lie in criminal law and family law and he has published regularly in
these areas. The major book publications he has been involved in include Support for Victims of Crime in Asia; Criminal Law in
Malaysia and Singapore; Singapore’s Ageing Population: Managing Healthcare and End of Life Decisions; Codification, Macaulay
and the Indian Penal Code and Criminal Law for the 21st Century: A Model Code for Singapore. He is also a member of a working
group convened by the Family Court to review different aspects of Family Law in Singapore.
Wing Cheong contributes his expertise to the wider community as well. He has been, at various times, a member of the Adult
Protection Team, the Maintenance of Parents Tribunal, the Review Board under the Children and Young Persons Act, and a
mediator in divorce cases for the Family Court.
Yap Teong Liang
Chapter 5 – Ancillary Relief: Orders That Can Be Made
Yap Teong Liang was called to the Bar of England and Wales (Middle Temple) in 1991 and admitted as an Advocate & Solicitor of
the Supreme Court of Singapore in June 1992. On 10 June 2002, he set up his boutique law firm specialising in Family Law.
Teong Liang has represented high net worth clients and handles cases involving foreign marriages, cross-border jurisdictional
and forum issues (Australia, China, France, Germany, Hong Kong, United Kingdom, United States of America), child abduction
and relocation cases, complex child custody and access cases, maintenance for the child and wife, division of matrimonial assets
and family violence.
Teong Liang also practises as a Collaborative Family Practitioner and is an Associate Mediator with the Singapore Mediation
Centre as well as an Accredited Mediator with the Family Justice Courts and Regent’s University, London (Mediation and
Psychology). In September 2015, he completed his advanced training with special emphasis in Cross-Border Family Mediation
involving disputes related to international child abduction under The Hague Convention, relocation, custody and access issues.
He is on the panel of Cross-Border Family Mediators of Mediation bei Internationalen Kindschaftskonflikten (MiKK), Berlin,
Germany and the Cross-Border Family Mediator’s Network. In February 2016, he completed the Parenting Coordination Training
Programme conducted by the Family Justice Courts and the Law Society of Singapore.
He was Chairperson of the Family Law Practice Committee of the Law Society of Singapore from 2006 to 2015 and is currently
the Chairperson of the Family Law Section and an Executive Member of LAWASIA.
Teong Liang has been appointed by the Chief Justice as a member of the Family Justice Rules Committee constituted pursuant to
section 46(1) of the Family Justice Act and appointed onto the panel of Child Representatives by the Family Justice Courts since
October 2014.
Ellen Lee Geck Hoon
Chapter 7 – Variation of Maintenance
Ellen Lee Geck Hoon, PBM, practises family law to guide divorcing parties navigate through the divorce processes, so that they
start life post-divorce on steadier planes. She has practised corporate law, conveyancing, as well as civil, criminal and family
litigation since her call to the Singapore Bar in 1981. Ellen focused on family law practice when she was elected a Member of
Parliament in 2006. She retired from politics in 2015 and continues to practise family and corporate law as a Consultant in
Belinda Ang Tang & Partners.
Michael Lee Yew Lun
Michael Lee Yew Lun is an advocate & solicitor of the Supreme Court of Singapore. He previously practised general litigation
and corporate law at AbrahamLow LLC. Michael is a firm believer in the practice of law as justice, and has actively represented
under-privileged individuals under the Law Society’s Criminal Legal Aid Scheme (CLAS). He has since left active legal practice to
take up a compliance role in an integrated resort.
William Khoo Wei Ming
William Khoo Wei Ming was a practice trainee at AbrahamLow LLC and was called to the Singapore Bar in August 2016. William
graduated from the National University of Singapore with an LLB (Hons) in 2015. Having first been exposed to family law when
taking a family law module in university, he hopes to be able to practise in this area more fully in the coming years. As a trainee,
William was trained in matters relating to intellectual property, dispute advisory and wills and probate.
Jinny Tan
Chapter 8 – Ancillary Relief: Rules and Procedure
Jinny Tan is a District Judge with the Family Justice Courts. Prior to joining the Family Justice Courts, she was a partner at Wee
Tay & Lim LLP where she practised for close to two decades. Jinny graduated from the National University of Singapore in 1997,
and was called to the Singapore Bar in 1998. When Jinny was in practice, she dealt with a broad spectrum of matters, and her
main areas of practice were in civil and commercial litigation and matrimonial law.
Randolph Khoo Boo Teck
Chapter 9 – Trusts and Divorce
Randolph Khoo practises as an advocate, specialising in private client disputes, international & domestic arbitration, company,
contract, property & construction law. Randolph graduated in 1989 from the National University of Singapore. He topped the
final examination and the public international law course, earning the Leow Chia Heng and Koh Han Kok academic prizes.
Randolph joined Drew & Napier in 1990, becoming a partner in 1995 and thereafter a director, on its incorporation, in 2001.
Randolph has appeared on numerous occasions as lead counsel in the Singapore High Court and Court of Appeal in family law
matters. Notable cases include AYZ v AZB [2012] 3 SLR 627and BNT v BNS [2014] 4 SLR 859, which concerned the international
relocation of children of divorced couples and Chen Siew Hwee v Low Kee Guan [2006] 4 SLR(R) 605, Pang Rosaline v Chan Kong
Chin [2009] 4 SLR(R) 935, Wan Lai Cheng v Quek Seow Kee [2012] 3 SLR 405 and Wong Kien Keong v Khoo Hoon Eng [2014] 1 SLR
1342, which dealt with disputes over matrimonial assets. He was a member of the Committee for Family Justice constituted by
the Singapore Ministry of Law to review the structure and operating model of the Family Justice Courts, in the wake of the
reforms leading to the Family Justice Act 2014, and is a continuing member of the Family Justice Rules Working Party. He is also
a panel member of the Child Representatives of the Family Justice Court.
In his commercial disputes practice, Randolph is the dispute resolution practice head for Drew & Napier’s China, India and
International Trade Desks. He is also a Panel Arbitrator with the Singapore and Malaysian Institutes of Arbitrators, Kuala
Lumpur Regional Centre for Arbitration, Shanghai Arbitration Commission, Shanghai International Economic & Trade
Arbitration Commission, Shenzhen Court of International Arbitration, The Chinese Arbitration Association, Taipei and under the
Law Society Arbitration Scheme. He is a Fellow of the Chartered Institute of Arbitrators as well as the Singapore, Malaysian,
New Zealand and Hong Kong institutes of arbitrators.
Jonathan Muk Chen Yeen
Chapter 9 – Trusts and Divorce
Jonathan Muk is an Associate at Drew & Napier LLC in the litigation and dispute resolution department. He graduated from the
Singapore Management University in 2013 with a Bachelor of Laws (Summa cum Laude) and a Bachelor of Business
Management (Summa cum Laude) majoring in finance. He and his team emerged champions in the 2010 Asia Cup International
Law Moot Competition held in Tokyo, Japan. Together with a friend, Jonathan also finished as a second runner-up in the 2013
Attorney-General’s Chambers Law Reform Competition.
Upon graduation, Jonathan served as Deputy Public Prosecutor at the Attorney-General’s Chambers and then for two years as a
Justices Law Clerk at the Supreme Court of Singapore assisting the High Court and Court of Appeal before joining Drew & Napier
LLC in 2016. He is also accredited as an Associate Mediator with the Singapore Mediation Centre.
Jonathan was called to the Singapore Bar in May 2016.
Raymond Yeo
Chapter 10 – The Law Relating to Children
Raymond Yeo is the Co-Chairperson of the Family Law Practice Committee of the Law Society of Singapore. A returning overseas
graduate called to the English Bar in 1996, he has been in active litigation practice for the past 18 years.
Raymond has developed a specialist area of practice and runs a boutique law firm providing services relating to Family and
Matrimonial Law ranging from applications under the Mental Capacity Act to foreign divorces with complex cross-border
jurisdictional and foreign claims. Raymond has extensive litigation experience in cases involving acrimonious custody disputes
and division of assets of substantial value.
Raymond is on the Panel of Child Representatives with the Family Justice Courts and has served as an Amicus Curiae. An
Accredited Mediator with Regent’s University as well as an Accredited Collaborative Family Practice Lawyer, he is also listed on
the Family Panel of Accredited Family Mediators with the Singapore Mediation Centre. He is a volunteer at the Legal Clinic at
the Family Justice Courts. Raymond is also the Deputy Subject Coordinator and Facilitator for Family Law for Part B of the
Singapore Bar Examinations conducted by the Singapore Institute of Legal Education.
Ivan Cheong ZH
Chapter 11 – Practice and Procedure in Relation to Children
Chapter 12 – Other Applications Relating to Children
Ivan Cheong is a Partner in Harry Elias Partnership LLP’s Family and Matrimonial Law Practice Group. Ivan’s experience
extends to all areas of matrimonial law such as contentious divorce, disputes over custody, maintenance, division of
matrimonial assets and family violence in the Family Justice Courts and Court of Appeal. His practice includes acting for clients
in contentious custody applications with cross-jurisdictional issues, mediation and advising on the preparation of both pre and
postnuptial agreements.
In his diversified practice and experience, Ivan has also advised and acted for clients in other areas of civil law such as tenancy
and contractual disputes and general corporate advisory work.
Ivan is a qualified Associate Mediator with the Singapore Mediation Center (SMC) and is an accredited Family Mediator on the
SMC Family Panel, a panel of family mediators accredited by the Family Justice Courts and SMC. He is also a Family Law Practice
facilitator with the Singapore Institute of Legal Education. Ivan graduated from the National University of Singapore with an
LLB (Hons) degree in 2007 and was called to the Singapore Bar in 2008.
Goh Zhuo Neng
Chapter 13 – Domestic Violence
Goh Zhuo Neng is a District Judge with the Family Justice Courts. Zhuo Neng graduated from the University of Nottingham in
2006, and was called to the Singapore Bar in 2008. Prior to joining the Family Justice Courts in 2015, Zhuo Neng was at Allen &
Gledhill LLP, where he specialised in civil and commercial litigation. In 2010, he was seconded to the Ministry of Law as an
Assistant Director in the Legal Policy Division.
Anamah Tan
Chapter 15 – Costs
Anamah Tan is the Principal Partner of Ann Tan & Associates. A renowned family lawyer and a skilled negotiator, Dr Anamah
Tan has close to 53 years of extensive experience in Family Law practice, as well as advancing the rights and status of women in
Singapore, Asean and internationally.
Anamah works tirelessly in the area of domestic violence awareness and raising gender issues. Backed by her legal expertise in
family law – her firm having won the Asian Law Award Singapore 2001 for “Best Family Practice”, the Asian Legal Business
“Legal Who’s Who Singapore 2003 for Family Law” and “Women’s Rights Law Firm of the Year in Singapore 2016” by the Global
Law Expert, she has successfully lobbied for changes in the socio-political and legal frameworks in Singapore to advance the
status of women.
Articulate and resolute in her advocacy for women’s rights, Anamah’s pragmatic views and professional approach have enabled
her to work well with both government officials and fellow activists. She has been an effective bridge between government and
women’s groups, never forgetting her cause while ensuring that the changes she seeks are both substantive and sustainable.
Anamah’s most high profile role to date has been to serve on the United Nations Committee on the Elimination of Discrimination
against Women (CEDAW) (2004–2008). The Committee focuses on watching over the progress for women in the participating
nations of the United Nations.
Lim Hui Min
Chapter 16 – Legal Aid for Matrimonial and Family Proceedings
Lim Hui Min started her legal career in a private law firm, doing mainly commercial litigation work. She left to join the
Singapore Legal Service after about three years, and was posted to the Subordinate Courts of Singapore as a Magistrate and
Deputy Registrar, serving in the Civil Registry. She was subsequently posted to the then Family and Juvenile Court, where she
did both matrimonial and youth court work, and was later appointed a District Judge. After five years there, she joined the then
Ministry of Community Development Youth and Sports (MCYS) on a policy secondment, designing programmes to deliver social
and work assistance to low-income families, and also in the area of social enterprise. Thereafter, she joined the Legal Aid Bureau
as a Senior Assistant Director and subsequently was appointed a Deputy Director, serving the legal needs of the less privileged.
After this, she was posted to MCYS (later the Ministry of Social and Family Development (MSF)) as the head of the legal
department. After a three-year stint there, she was posted to the Legal Aid Bureau in March 2015, as the Director.
Hui Min has published numerous articles on civil and family procedure and family law, and has also edited and contributed to a
number of books in these areas. Her latest and first solo book publication was in 2014, entitled Juvenile Justice, a book on youth
law in Singapore. She has also authored a book entitled Dear Mom and Dad, Don’t Make Me Feel Bad – A Child of Divorce Speaks
Up, in collaboration with MSF, which presents access issues from a child’s point of view.
Kevin Ng
Chapter 17 – Alternative Dispute Resolution in the Family Justice Courts
Kevin Ng is a District Judge with the Family Justice Courts. After graduating with an LLB from the National University of
Singapore (NUS) Faculty of Law in 1992, Kevin joined the Singapore Legal Service and was posted to the Attorney-General’s
Chambers as a Deputy Public Prosecutor. Short stints in private practice and as an in-house counsel followed in 1994 and 1995,
before he re-joined the Singapore Legal Service in 1996. In 2002, Kevin was posted to the Subordinate Courts (now the State
Courts) as a District Judge. Since 2004, Kevin has been with the Family and Juvenile Justice Division of the Subordinate Courts
(now the Family Justice Courts), where he helped set up the Family Resolutions Chambers (FRC) in 2006 and the Child Focused
Resolution Centre (CFRC) in 2011. Both the FRC and CFRC focused on the alternate dispute resolution of family matters, through
counselling and mediation. The FRC and CFRC have, since 1 October 2014, merged to form the Family Dispute Resolution (FDR)
Division of the Family Justice Courts. An accredited mediator, Kevin is the judge in charge of the FDR Division and has been a
judge-mediator since 2006. Kevin was awarded the Public Service Administration Medal (Bronze) in 2010.
Sim Khadijah Mohammed
Chapter 17 – Alternative Dispute Resolution in the Family Justice Courts
Sim Khadijah Mohammed is a District Judge with the Family Justice Courts. She graduated with an LLB from the NUS Faculty of
Law in 2007 and was the winner of the Faculty’s Advocacy Cup in 2005. She went on to represent the NUS in the ALSA Advocacy
Competition in Australia in 2005. In 2008, while taking the Postgraduate Practical Law Course, Khadijah was awarded The Law
Society’s Prize for Best Student in Advocacy.
Khadijah was a practising lawyer with the Commercial Litigation Practice Group in Rajah & Tann LLP from 2008 to 2013. She
joined the Singapore Legal Service in 2013 as an Assistant Registrar with the Supreme Court, before her appointment as a
District Judge with the Family Justice Courts in 2014. Khadijah has been actively involved in training, and was a Legal Skills
Instructor for the NUS Faculty of Law from 2011 to 2015. Khadijah also served as an advocacy trainer for the Law Society and as
a mediation and negotiation trainer for the Singapore Institute of Legal Education from 2011 to 2014. Khadijah has been an
accredited mediator and a mediation trainer with the Singapore Mediation Centre (SMC) since 2009, and has conducted
mediation training for the SMC both locally and abroad. Khadijah has been a judge-mediator with the Family Dispute Resolution
Division of the Family Justice Courts since 2015.
Foo Soon Yien
Chapter 18 – Conflict of Laws in Family Issues
Foo Soon Yien is one of the founding members of Bernard and Rada Law Corporation and is an experienced litigator of 30 years’
standing. She has acted as counsel in a wide range of contentious corporate, commercial, property, family, probate / estate, trust
and intellectual property litigation work. She has made her mark in taking novel legal arguments not only to courts of original
jurisdiction but to appellate courts including the Court of Appeal.
The cases she has conducted involving conflict of law and forum include Sheagar s/o T M Veloo v Belfield International
(Hongkong) Ltd [2014] SGCA 26 where the Court of Appeal had to consider the principle of international comity because the
loans were contrary to the Hong Kong Money Lenders Ordinance and the proper law of the contract of loans; the High Court
case of Banque Indosuez v Madam Sumilan Awal [1998] SGHC 22 where the court ascertained the governing law taking into
account the impact of the marriage and the prenuptial agreement on the parties’ property rights, the opening of joint accounts
in Singapore being governed by the law of the contract with the bank and the wife’s succession to the deceased’s movables
under the husband’s will being governed by the law of the parties’ domicile; other cases of contested maintenance enforcement,
contentious and acrimonious divorce and division of assets proceedings involving foreign nationals with applications for stay of
proceedings, injunctions against bank accounts to avoid dissipation of assets of foreign parties out of jurisdiction and
withholding of passport in the follow up to the Court of Appeal case of Zheng Zhuan Yao v Mok Kah Hong [2014] SGHC 84 and
Mok Kah Hong v Zheng Zhuan Yao [2016] SGCA 8, determination of the proper law in family-related probate cases of foreign
deceased with assets in Singapore.
Chen Siyuan
Chaper 19 – Overview of Matrimonial Finance in other Jurisdictions
Chen Siyuan LLB (NUS); LLM (Harvard), is an Assistant Professor of Law at Singapore Management University (SMU)
specialising in Evidence & Civil Procedure and International Moots. Siyuan graduated from NUS with First Class Honours and
was the top student for Public Law and Jurisprudence. He was also a Kwa Geok Choo scholar, Allen & Overy–Shook Lin & Bok
scholar, Jessup Moot captain, and international clerk with Freshfields Bruckhaus Deringer. He has around 100 publications to
date, including articles in leading journals such as the International Journal of Evidence & Proof and International Commentary
on Evidence, and textbooks on civil procedure, family procedural law and evidence. His works have been cited by the High Court
and Court of Appeal of Singapore and leading treatises. Siyuan co-founded SMU’s International Moots Programme in 2010. Since
then, SMU mooters have been to the championship final of all major international moots, including the Jessup (2013 and 2014),
Vis (2015 and 2016), Vis East (2015 and 2016), Price (2010, 2015, and 2016), International Criminal Court (2015 and 2016),
Frankfurt (2015), and IHL (2016) competitions.
Halijah Mohamad
Chapter 20 – Overview of Syariah Law in Family Matters
Halijah Mohamad graduated from NUS (Law Faculty). From 1988 to 1991 she was an investigating officer with the Commercial
Affairs Department. From 1992 to 1994 she was in private practice handling general civil litigation. In 1995, she started her sole
proprietor firm Halijah Mohamad & Co. The focus of her practice is family law (in both civil and syariah courts).
She is involved in various NGOs. She was past Vice President of AWARE (1999, 2000 and 2010–2012), and a Council member of
the Muslim Financial Planning Association. She is an Executive Committee member of the Singapore Association of Women
Lawyers and a member of the Family Law Practice and Muslim Law Practice Committees of the Law Society. She is also part of
Musawah (a global movement for equality in Muslim family).
Halijah had been involved in representations to Select Committee on several Bills including the Administration of Muslim Law
Act, the Women’s Charter, the Penal Code, and the Maintenance of Parents Act. She is a regular speaker at seminars and forums
on women’s issues especially on areas of family law and Muslim law in Singapore.

2016 - 10 - 17 PAGE xxi

Table of Contents
Contents
Introduction v
Preface vii
List of Contributors ix
Table of Cases xxxvii
Table of Statutes lvii
Chapter 1
The New Family Justice System 1
1.1 Introduction 2
1.2 Philosophy 2
1.3 Matters Heard by the FJC – Family Proceedings 2
1.4 Structure of the FJC 3
A. Family Division of the High Court Division 4
B. The Family Courts and the Youth Courts 5
C. Appointments and Qualifications of Registrar, Deputy Registrar and Assistant Registrars 5
1.5 Transfer of Proceedings from Family Court to High Court and vice versa 5
1.6 Registry of the FJC 6
1.7 Sittings in camera 6
1.8 Family Justice Rules 7
1.9 New Initiatives 8
A. Judge-Led Approach 8
B. Child Representatives 9
C. The Family Court Friend Scheme 9
D. Simplified Uncontested Proceedings 9
1.10 Future Initiatives 10
Chapter 2
Jurisdiction of the Family Court: Divorce and Dissolution 11
2.1 Introduction 12
2.2 Applications to Present a Divorce Writ before Three Years – The Three-year Rule 14
2.3 Jurisdiction 15
2.4 Ground for Divorce 18
A. Irretrievable Breakdown – The Sole Ground of Divorce 18
B. The Five Facts 19
1. Adultery 19
2. Unreasonable behaviour 20
3. Desertion 23
4. Separation for a period of three years with consent 24
5. Separation for a period of four years without consent 25

2.5 Interim Judgment Proceedings Thereafter 26
2.6 Proceedings for Interim Judgment of Presumption of Death and Divorce 27

2.7 Judicial Separation 27
2.8 Nullity of Marriage 28

A. Void Marriages 28
B. Voidable Marriages 29
2.9 Chinese Customary Marriages 31
Chapter 3
Forum and Jurisdiction 33
3.1 Introduction 34
3.2 Divorces 36
3.3 Issues Relating to Children 41
3.4 Setting Aside Interim Judgments for Divorce, Final Judgments for Divorce and Ancillary Matters 43
A. Making Interim Judgments into Final Judgments 43
B. Setting Aside and/or Rescission of Interim Judgment 47
C. Setting Aside of Orders Made on Ancillary Matters 62
3.5 Forum 70
3.6 Lis alibi pendens 75
Chapter 4
Ancillary Relief: The Law 79
4.1 Preliminary Issues 81
A. Jurisdiction 81
4.2 Division of Matrimonial Assets 82
A. Introduction 82
B. Marriage as Partnership 83
C. Gender Neutral Application 84
D. Definition of a Matrimonial Asset 85
1. Assets acquired during marriage 85
2. Assets acquired before marriage 87
3. Substantial improvement by the other party or both parties 88
4. Qualifying words 88
5. Gifts to one or both spouses 89
6. Retaining nature as a gift or inheritance 90
7. Gifting between spouses 90
8. Windfalls 92
E. “Just and equitable” Division 93
1. Trends from past cases 93
2. Rejection of equal division as norm, starting point or yardstick 95
3. Rejection of “uplift” methodology 95
4. Multi-factorial approach 96
(a) Financial contributions 97
(b) Non-financial contributions 98
(c) Needs of the children 99
(d) Factors not exhaustive 99
5. Refinement by “structured” approach 100
(a) ANJ v ANK 102
(b) Twiss Christopher James Hans v Twiss Yvonne Prendergast 102
(c) ATE v ATD and Another Appeal 103
(d) Zhou Lijie v Wang Chengxiang 104
6. “Structured” approach only a guide 104
7. Broad brush approach 105
8. Global assessment and classification methodologies 106
9. Adverse inference 106
10. Agreements between the spouses 108
4.3 Maintenance of Ex-Spouse 113
A. Jurisdiction 114
B. Principles 115
C. Statutory Directives 116
D. Lump Sum Orders 119
E. Agreements to Compound Maintenance 120
F. Arrears of Maintenance 121
G. Backdating of Maintenance 121
Chapter 5
Ancillary Relief: Orders That Can Be Made 123
5.1 Introduction 125
A. What is Ancillary Relief? 125
B. Powers of the Court 125
C. Orders Related to the Welfare of Children 125
D. Orders Related to the Maintenance for Children 125
E. Orders Related to the Maintenance for Former Wife 125
F. Orders Related to the Maintenance for an Incapacitated Former Husband 126
G. Orders for Financial Relief 126
5.2 Orders Related to the Welfare of Children 127
A. Custody 127
B. Care and Control 129
C. Access 131
D. Examples of Custody, Care and Control and Access Orders 132
5.3 Orders Related to the Maintenance for Children 133
A. General Principles 133
B. Examples of Maintenance Orders for the Child 134
5.4 Orders Related to the Maintenance for Former Wife 134
B. Examples of Maintenance Orders for Former Wife 136
5.5 Orders Related to the Maintenance for an Incapacitated Former Husband 136
5.6 Orders for Financial Relief 137
A. Generally 137
B. Orders on Housing & Development Board Property 139
C. Examples of Orders for the Sale or Transfer of the Matrimonial Home 141
D. Orders Related to Central Provident Fund Account 142
E. Orders Related to Other Matrimonial Assets 143
5.7 Registrar of the Family Justice Courts to Sign Documents 144
A. Generally 144
B. Example of Order for Registrar to Sign 144
5.8 Making Orders Following Mediation 144
5.9 Orders on Costs 146
A. General Principles on Costs 146
B. Application of Costs Principles in Divorce Proceedings 147
Chapter 6
Prenuptial Agreements 149
A. Prenuptial agreements defined 150
6.2 Legal Nature of Prenuptial Agreements 152
6.3 Foreign Prenuptial Agreements 154
6.4 Local Prenuptial Agreements 156
6.5 Prenuptial Agreements on Regulating Marriage 159
6.6 Prenuptial Agreements on Maintenance 159
6.7 Prenuptial Agreements on Custody Issues 160
6.8 Prenuptial Agreements on Division of Assets 161
6.9 Conclusion 163
Chapter 7
Variation of Maintenance 165
7.1 Statutory Provisions and the Orders which they Apply to 166
A. Variation of Maintenance for Wife or Ex-Wife 166
B. Variation of Maintenance for Child 167
C. Variation of Agreements for Maintenance 167
1. For wife 167
2. For child 167
7.2 Orders which can be Varied 168
A. There Must be a Subsisting Maintenance Order to be Varied 168
B. Periodic Payments / Monthly Allowance 169
C. Lump Sum Maintenance 169
7.3 Approach of the Court 170
7.4 Factors to which the Court will have Regard 170
A. Good Cause 171
B. Mistake and Misrepresentation 172
C. Reasonable and For the Welfare of the Child 172
D. Material Change in Circumstances 173
1. Loss of employment 174
2. Gaining employment 174
3. Bankruptcy and failure of business 175
4. Decrease in salary 175
5. Decrease in wife’s cost of living 176
6. Inheritance 176
7. Effect of remarriage or cohabitation 176
8. Self-induced material adverse change 178
9. Contemplation of parties when entering into the agreement 179
7.5 Orders which the Court may Make in Variation Proceedings 180
7.6 Procedure 181
A. Variation of Maintenance Orders Made Under Part X 181
B. Variation of Maintenance Orders Made Under Part VIII 181
Chapter 8
Ancillary Relief: Rules and Procedure 183
8.1 Judge-Led Approach 184
A. Range of Powers 184
B. Allocation to an Assigned Judge 184
C. Case Conferences 185
8.2 Practice and Procedure 187
8.3 Pre-Commencement Procedure 187
A. Applications Under Section 94 Women’s Charter 187
B. Applications Under Section 121D Women’s Charter 188
C. Proceedings for Divorce, Judicial Separation and Nullity 189
8.4 Commencement of Divorce Proceedings 190
A. Writ for Divorce, Judicial Separation or Nullity 190
B. Service of Writ 192
1. Within jurisdiction 192
2. Outside jurisdiction 193
3. Substituted service 194
4. Dispensation of service 195
C. Memorandum of Appearance 195
D. Pleadings Subsequent to the Writ 195
8.5 Uncontested Divorce Proceedings 196
A. Simplified Uncontested Divorce Proceedings 196
B. Other Uncontested Divorce Proceedings 197
1. Attendance dispensed with 197
2. Attendance in open court hearings 198
8.6 Contested Divorce Proceedings 199
8.7 Withdrawal or Discontinuance 200
8.8 Ancillary Matters 201
A. Affidavits of Assets and Means 201
B. Discovery of Documents 203
C. Interrogatories 204
D. Failure to Comply With the Orders on Discovery and/or Interrogatories 206
E. Hearing of Ancillary Matters 206
8.9 Final Judgment 207
Chapter 9
Trusts and Divorce 209
A. Trust Terminology 212
B. The Intersection of Trust Law and Divorce Law 213
9.2 When Assets held on Trust become Part of the Pool of Divisible Marital Assets 215
A. Trust Assets as Matrimonial Assets 215
B. Sham Trusts 219
C. Piercing the Corporate Veil of Corporate Trustees 224
D. Trust Assets as Financial Resources under Section 114(1)(a) of the Women’s Charter 232
E. Offshore Trusts 236
F. Substantially Improved Property 238
9.3 Division of Beneficial Interests in a Trust 239
A. Fixed Trusts 239
B. Discretionary Trusts 241
1. Wish letters 241
2. Proprietary interests in a discretionary trust 243
9.4 The Court’s Supervisory Jurisdiction over a Trust 245
A. A Trustee’s Exercise of Discretion 245
1. The extent of a trustee’s discretion 246
2. The Hastings-Bass principle 247
B. The Right to Inspect Trust Documents and the Trustee’s Duty of Confidentiality 248
9.5 Power to Vary the Terms of a Trust 252
9.6 Procedural Matters 254
A. Joinder of Trustees to Divorce Actions 254
B. Injunctions 255
C. Applications to Vary Antenuptial or Postnuptial Settlements 257
9.7 Trusts Beyond the Spectre of Divorce 257
A. The Resulting Trust 257
B. The Constructive Trust 265
1. The common intention constructive trust 265
2. The remedial constructive trust 267
9.8 Conclusion 269
Chapter 10
The Law Relating to Children 271
10.2 The Relevant Governing Legislation 272
10.3 Definition of “Child” 274
10.4 The Orders That Can Be Made by the Court 275
A. Custody, Care and Control 275
1. Sole custody or joint custody 276
2. Care and control 278
B. Access 279
C. Financial Support for the Child 282
1. During the course of marriage 283
2. During divorce proceedings 286
3. Variation of maintenance orders 286
10.5 Factors that the Court Shall Take Into Account When Making Orders Pertaining to Children 286
A. Both Parents Are of Equal Standing 286
B. Welfare Principle 288
C. Wishes of the Parents And the Child 288
D. Maternal Bond 289
E. Continuity of Care 289
10.6 Welfare Reports 290
10.7 Other Third-Party Reports 291
10.8 Relocation 293
10.9 Hague Convention 294
10.10 Changing a Child’s Surname 295
Chapter 11
Practice and Procedure in Relation to Children 297
11.2 The “Golden Thread” in all Applications Concerning Children 299
11.3 Court’s Approach when Considering Applications in Relation to the Children – Move Towards Less Adversarial 301
Solutions
11.4 Implication and Consequences of Commencing Applications Regarding the Children 302
11.5 Divorce Proceedings where at least One Child of the Marriage is a Minor 303
A. Mandatory Mediation/Counselling 303
B. Upcoming Changes With a Greater Emphasis on Insulating Children Whose Parents are Divorcing: Child Inclusive 305
Resolution Process and Other Programmes
C. Relief Sought in Relation to Orders on Custody, Care and Control and Access to the Children of the Marriage As Part 307
of the Divorce Proceedings
1. Custody and care and control 308
2. Access 308
(a) Supervised access 311
(b) Assisted access 312
11.6 Preparation of Pleadings and Applications 313
A. Application For Interim Custody, Care and Control and Access During the Divorce Proceedings 313
1. Procedure after the custody summons application is filed and served 318
2. Hearing of summons 319
3. Directions and interim orders the court may give pending final orders on the summons 320
B. Applications For Custody, Care and Control and Access under the GIA 321
1. Who can file a custody application under the GIA 322
2. Form of application and procedure 324
11.7 Evidence Tendered in Support or in Reply to the Application 325
A. Parties’ Evidence 325
B. Evidence By Other Witnesses 329
C. Evidence By Experts: Assessment of Child By Psychologist or Psychiatrist 330
11.8 Children’s Views – Evidence, Judicial Interview and Child Representative 331
A. Evidence By Children – Children’s Affidavits 331
B. Judicial Interview 333
C. Child Representative 335
11.9 Breach and Enforcement of Orders – Committal 337
11.10 Costs 342
11.11 Conclusion 342
11.12 Sample Documents 343
11.D.1 Originating summons 343
11.D.2 Ex parte originating summons 344
11.D.3 Summons 345
11.D.4 Notice on certain judgments 346
Chapter 12
Other Applications Relating to Children 347
12.2 Applications under the International Child Abduction Act (Cap 143C) 348
A. When can Hague Applications be Taken Out? 350
B. Procedure for Hague Application 352
C. Principles and Considerations Applicable for Hague Applications 354
1. Establishing wrongful removal or retention under article 3 355
2. Habitual residence 356
3. Article 13 exceptions to the return of the child to the country of habitual residence under the Hague 358
Convention
12.3 Removal of Children from Jurisdiction 360
A. Preventing the Removal of the Children from the Jurisdiction 361
B. Where Child has Already been Removed from the Jurisdiction of the Singapore Courts 363
1. Direct judicial communications as a tool 365
C. Applications for Leave for the Child to be Relocated Permanently from the Jurisdiction 366
D. Application to Remove a Child Temporarily from the Jurisdiction 371
12.4 Wardship in Singapore – Jurisdiction and Applications 372
A. Who may Apply to Make a Child a Ward of the Court 373
B. Process and Procedure 375
12.5 Conclusion 375
Chapter 13
Domestic Violence 377
13.2 Parties 379
A. Who May Be a Complainant? 379
B. Who May Be a Respondent? 380
13.3 Relief that the Court can Grant 381
A. Protection Order 381
B. Expedited Order 381
C. Domestic Exclusion Order 382
D. Counselling Order 382
13.4 What are the Consequences of Breach? 383
13.5. When does the Court Grant Relief from Family Violence? 384
A. Two-Stage Test 384
B. Stage 1 – What is Family Violence? 385
1. Physical violence, restraint or threats 386
2. Continual harassment 387
C. Stage 2 – When is it Necessary? 389
1. Did the complainant continue to live with the respondent after the act of violence? 389
2. Are the parties still living together or likely to remain in contact? 390
3. What is the original cause of the conflict and has it been resolved? 390
4. The severity of the incident of family violence 391
13.6 Rescission, Variation, Suspension and Revocation of Orders 391
A. Change of Circumstances 391
B. Necessity 392
13.7 Practical Matters 393
A. Preparing the Application 394
1. Where to apply 394
2. Application form: particulars of parties 394
3. Application form: particulars of family violence 394
4. Application form: authorisation for medical examination form 395
5. Meeting with the counsellor 395
B. Appearing Before the Duty Judge/Judicial Officer (“DJO”) 395
C. Issuing the Summons to the Respondent 396
D. Requirements for Service 396
E. Mentions Stage 397
1. First Mention 398
2. Counselling 398
3. After counselling 398
4. Pre-Trial Directions 399
5. Trial dates 399
F. At Trial 399
1. Sequence of witnesses 399
2. Disputed incidents that took place after the application was filed 400
3. Evidence of children 400
4. Absence of respondent 401
13.D.1 Expedited order 402
13.D.2 Personal protection order with counselling order 403
13.D.3 Personal protection order application form 405
13.D.4 Summons to a respondent 413
Chapter 14
Injunctive Relief in Matrimonial Proceedings 415
14.2 Injunctions In Relation to Property 417
14.3 Anton Piller Orders 423
14.4 Other Injunctions in Matrimonial Cases 428
A. Anti-Suit Injunctions 428
B. Interim Injunctions in General 431
C. Injunctive Relief Where Children are Concerned 436
Chapter 15
Costs 439
15.2 “Costs Follow the Event” 440
15.3 A Brief Look into the Family Justice Rules 2014 Relating to Costs 449
15.4 Costs at a Glance 457
A. Fixed Costs 458
B. Two Bases on which Costs May be Taxed 458
Chapter 16
Legal Aid for Matrimonial and Family Proceedings 461
16.1 Introduction – They Came to Get Help 463
A. Guardianship of Motherless Children 463
B. Divorcing a Gambler 464
C. Protection Against Abusive Father 464
D. Helping an Abused Wife Who Poisoned Her Husband 464
16.2 Scope of Services Provided by the Legal Aid Bureau 465
A. Legal Aid 465
B. Legal Advice 467
C. Legal Assistance 467
16.3 Eligibility for Advice 467
16.4 Eligibility for Aid 468
A. Merits Test 468
B. Means Test 468
1. Capital part of the means test 469
2. Income part of the means test 470
3. Exceptional cases 472
(a) Sudden physical or mental disability 472
(b) Sudden loss of income 473
4. Director’s discretion – has discretion in the refusal of aid, but not in the granting of aid 473
5. Public interest exception 474
16.5 Workflow and Processes 475
A. Registration and Preliminary Means Test 475
B. Legal Advice/Opening of Legal Aid File 475
C. Detailed Means Test, Form 1 Statement-Taking 475
D. Review By Legal Officer/Decision By Legal Aid Board on Grant of Aid 476
E. After the Board Meeting 476
F. Time Frame 476
G. Beyond Legal Help – Social Services Referral 477
16.6 Scope of Grant of Aid 477
16.7 Conflict Cases 477
16.8 Urgent Cases – Provisional Grant of Aid 478
16.9 Legal Aid Granted After Commencement of Proceedings 478
16.10 Legal Aid Offence 479
16.11 Stay of Proceedings Upon Application for Aid – Section 17 Notification 480
16.12 Privileges and Responsibilities of a Legally-Aided Person 481
A. Privileges 481
B. Solicitor-Client Privilege 481
C. Not Liable to Pay For Fees and Notes of Evidence 481
D. Not Liable to Pay Deposit to Official Assignee 482
E. Aided Person Not Liable For Costs Except in Certain Circumstances 482
F. Responsibilities 484
1. Liability to pay contribution 484
2. Required to pay deposit for, or to reimburse Director for, payment of out-of-pocket expenses 484
3. No other expenses payable 485
16.13 Powers of the Director In Relation to Financial Matters 485
A. Legal Aid Fund – First Charge in Respect of Contribution 486
B. Any Costs Awarded to be Paid to Director 486
C. Director Can Take Proceedings to Enforce First Charge, Recover Costs, etc. 487
16.14 Cancellation of Aid 487
A. Cancellation of Aid by Director 487
B. Effect of Cancellation 487
C. Circumstances In Which Aid Can Be Cancelled 489
D. Cancellation of Aid by Court 490
16.15 Barring order 491
16.16 Minors 491
A. Guardian Must Apply For Aid On Behalf of Minor 491
B. Director’s Powers to Make Inquiries 491
C. Means Test and Payment of Contribution 492
D. Merits Test 492
E. Minor Turning 21 Years 492
16.17 Staff and Structure of the Bureau 493
16.18 Assigned Solicitors 493
A. Appointment as an Assigned Solicitor 494
B. Assigned Solicitors’ Costs 494
C. Assignment of Cases and Discontinuance of Aid 496
D. Conduct of Proceedings by Assigned Solicitor 496
E. Discharge of Assigned Solicitor 497
Chapter 17
Alternative Dispute Resolution in the Family Justice Courts 499
17.2 ADR as an Integral Part of the Dispute Resolution Process 501
17.3 Evolution of Dispute Resolution Schemes 503
A. Counselling and Mediation, Pre-2006 503
B. Family Resolutions Chambers (“FRC”), 2006 504
C. Maintenance Mediation Chambers (“MMC”), 2007 505
D. Counselling and Psychological Services (“CAPS”), 2009 505
E. Child Focused Resolution Centre (“CFRC”), 2011 508
F. Family Dispute Resolution (“FDR”) Division, 2014 509
G. Other Complementary Dispute Resolution Schemes 510
1. Volunteer Mediator (“VM”), mid-2000s 511
2. Collaborative Family Practice (“CFP”), 2012 511
3. Parenting coordination (“PC”), 2016 512
17.4 Approach to Mediation 512
A. Benefits of Mediation in Family and Matrimonial Disputes 513
1. Mediation significantly reduces the length of proceedings 514
2. Mediation significantly reduces the acrimony in proceedings 514
3. Mediation gives parties a platform to air and manage their emotions 515
4. Mediated agreements tend to be more satisfactory and sustainable than orders imposed post-litigation 515
5. Mediation offers a more cost-effective and cheaper alternative to litigation 517
B. Multi-Disciplinary Approach Combining Judicial and Social Science Perspectives 517
C. Putting Children’s Interests at the Heart of FDR 519
17.5 The Family Dispute Resolution (“FDR”) Programme and Other Schemes 520
A. FDR Programme 520
1. FDR Conference 520
2. Intake and assessment 521
3. Counselling 522
4. Mediation or co-mediation 522
B. Other Schemes 523
1. Maintenance Mediation Chambers (“MMC”) 523
2. Private mediation 524
17.6 Mediation of Various Aspects of Divorce 524
A. The Divorce 525
B. Issues Relating to Children 525
C. Financial Issues of Maintenance and Division of Matrimonial Property/Assets 526
17.7 The Way Forward 527
A. Training and Accreditation of Family Mediators 527
B. Growing Private Family Mediation 527
C. Child-Inclusive Mediation and Counselling (“CIMC”), 2015 528
D. Parenting Coordination (“PC”), 2016 529
17.8 Conclusion 529
Chapter 18
Conflict of Laws in Family Issues 531
18.2 Connecting Factors: Domicile and Residence 534
A. Domicile 534
1. Domicile of origin 536
2. Domicile of dependency 537
3. Domicile of choice 537
(a) Acquisition of domicile of choice 537
(b) Abandonment of domicile of choice 539
B. Residence 539
1. Habitual residence under section 93(1)(b) of the Women’s Charter 540
2. Residence under section 93(2) of the Women’s Charter 541
18.3 Formation of Marriage 541
A. Choice of Law Governing Formal Validity of Marriage 542
B. Choice of Law Governing Essential Validity of Marriage 543
1. Dual domicile rule 543
(a) Sottomayor exception 544
(b) Additional law of the forum rule where marriage is also solemnised in the forum 545
2. Intended matrimonial home rule 545
C. Women’s Charter Provisions and Conflict of Laws 547
1. Reconciling sections 105 and 108 of the Women’s Charter 547
2. Optimal reading of “in Singapore or elsewhere” 548
18.4 Matrimonial Jurisdiction and Proceedings 549
A. Matrimonial Jurisdiction of Singapore Courts 549
B. Stay of Matrimonial Proceedings 550
C. Choice of Law Governing Divorce 557
D. Choice of Law Governing Ancillary Financial Relief Following Termination of Marriage 559
18.5 Foreign Judgments and Matrimonial Proceedings 560
A. Recognition of Foreign Divorces 560
B. Financial Relief Consequential on Foreign Divorce 562
C. Enforcement of Foreign Maintenance Orders 564
18.6 Conflict of Laws and Applications for Maintenance During Subsistence of Marriage 565
A. Application For Maintenance of Wife During Subsistence of Marriage Where the Marriage Was Not in Singapore 565
B. Application For Maintenance of Wife During Subsistence of Marriage Where One Party Resides Overseas 566
18.7 Conflict of Laws and Enforcement of Maintenance Orders Obtained in Singapore Regardless of Whether Marriage has 567
Been Terminated or is Still Subsisting
A. Enforcement of Maintenance Orders By Wife Residing Overseas Against Husband in Singapore 567
B. Enforcement of Maintenance Orders By Wife Against Husband Residing Outside Singapore 568
Chapter 19
Overview of Matrimonial Finance in other Jurisdictions 571
19.2 Property that is held during the Marriage 574
A. UK 574
B. Australia 576
C. New Zealand 577
A. UK 577
B. Australia 581
C. New Zealand 582
19.4 Maintenance 585
A. UK 585
B. Australia 586
C. New Zealand 589
Chapter 20
Overview of Syariah Law in Family Matters 593
20.2 Marriage – Registry of Muslim Marriages (ROMM) 596
A. Marriages 596
B. Consent of Wali (Male Guardian) 598
C. Marriage Between Muslims and Non-Muslims 598
D. Polygamy 598
E. Revocation of Divorce 599
20.3 Divorce – Syariah Court 600
A. Jurisdiction of the Syariah Court 600
B. Are the Parties Muslims? 601
C. Were Parties Married Under Provisions of Muslim Law? 601
D. Renunciation of Islam by One Party 603
E. Muslim and Civil Marriages Between Same Parties 603
F. Foreign Marriages 603
G. Grounds For Divorce 604
H. Annulment 606
20.4 Ancillary Issues 606
20.5 Children and Parent-Child Relationship 606
A. Welfare and Best Interest of the Child 607
B. Children’s Wishes 608
C. Children Below Age of Discernment 608
D. Joint Custody 608
E. Illegitimate Children 609
F. Variation 609
20.6 Mutaah 609
20.7 Division of Assets 612
A. Assets Acquired During Marriage 612
B. Assets Acquired Before Marriage 613
C. Gifts/Inheritance 614
D. How Do Courts Divide Matrimonial Assets – Just and Equitable Proportions 615
E. Non-Economic and Other Factors in Section 52(8)(a)–(m) of the AMLA 616
F. Renovations 622
G. Rentals Collected By One Party 622
H. Proceeds From Previous Home Used Towards Purchase of Current Matrimonial Home 623
I. Indirect Contribution 624
J. Husband’s Indirect Contribution 624
K. Marriages With No Children 627
20.8 Foreign Divorces 628
20.9 Variation 629
20.10 Enforcement of Syariah Court Orders 632
20.11 Concurrent Jurisdiction 633
20.12 Appeals 635
20.13 Decision of the Syariah Court and the Appeal Board is Final 636
20.14 General “Non-Muslim” Laws 637
A. Maintenance of Wife and Children 637
B. Family Violence 637
C. Adoption of Children 637
D. Legitimacy 638
20.15 Succession to Property and Distribution of Muslim Estates 638
A. Specific Assets 641
B. Immovable Property (Joint Tenancy) 641
C. Fatwa 2008 642
D. Use of Nuzriah 642
E. CPF Moneys 643
F. Fatwa 2010 644
G. Insurance Policies 644
H. Fatwa March 2012 645
I. Joint Bank Accounts – Fatwa 2016 646
J. Estate Planning – Options For Muslims 646
20.16 Singapore Syariah Appeals Report (SSAR) 647
Index 649

2016 - 10 - 17 PAGE xxxvii

Table of Cases
Table of Cases
A v A (A Minor: Financial Provision) [1994] 1 FLR 657 [19.4.7]
A v A (Financial Provision) [1998] 2 FLR 180 [19.3.3]
A v A and St Georges Trustees Ltd [2007] 2 FLR 467; [2007] EWHC 99 (Fam) [9.2.18], [9.2.21], [9.2.42]
A (an infant), Re [2002] 1 SLR(R) 570 [3.4.6]
AAE v AAF [2009] 3 SLR(R) 827 [4.2.30], [4.2.87]
AB v AC and Another Application [2004] SGDC 6 [14.4.16]
Abdul Bashir s/o Aidek v Asiah bt Md Hassan (Appeal Nos 43 and 44/2013) [20.7.14]
Abdul Jabar bin Johar v Saripah bt Latiff (Appeal No 16/2013) [20.2.13]
Abdul Latheef bin Omar v Maria bt Chabar (2010) 3 SSAR 180 [20.7.30], [20.7.43]
Abdul Mutalib bin Abd Majeed v Surinah bt Sapar (Appeal No 24/2010) [20.6.3], [20.7.25]
ABG v ABH [2009] SGDC 254 [13.5.8]
Abidin Daver, The [1984] AC 395 [3.4.12]
Abu Samah bin Md Dros, Re (1990) 5 SSAR 31 [20.2.8]
ABW v ABV [2014] SGHC 29 [10.5.5], [10.5.14]
ACA v ACB [2009] SGDC 330 [4.2.6]
ACZ v ADC (on behalf of child B) [2009] SGDC 457 [13.6.2]
Adam bin Arifin, Re (1999) 5 SSAR 168 [20.2.11]
Adams v Cape Industries plc [1990] Ch 433 [9.2.29]
ADP v ADQ [2012] 2 SLR 143 [4.2.1]
AEH v AEI [2016] 1 SLR 18 [3.4.6]
AFS v AFU [2011] 3 SLR 275 [4.2.101]
AG Securities v Vaughan [1990] 1 AC 417 [9.2.13]
Agbaje v Agbaje [2010] 1 AC 628 [18.5.7]
AGX v AGW [2010] SGDC 271 [13.5.8]
AHJ v AHK [2010] SGHC 148 [5.2.11]
Ahmad Kamal Gilani v Namazie Farah Summons No 32026 [20.6.4]
AJR v AJS [2010] 4 SLR 617 [4.2.51], [4.2.52]
AJV v AJW [2010] SGDC 291 [5.2.11]
Allen v Jambo Holdings Ltd [1980] 1 WLR 1252 [14.2.9]
Allport Alfred James v Wong Soon Lan [1988] 2 SLR(R) 520 [14.2.10]
Alwie Handoyo v Tjong Very Sumito & Anor and Another Appeal [2013] 4 SLR 308 [9.2.22], [9.2.34], [9.2.36]
American Cyanamid Co v Ethicon Ltd [1975] AC 396 [14.4.7], [14.4.8], [14.4.11], [14.4.12]
Amir bin Amat, Re (1994) 5 SSAR 90 [20.2.4]
AMT v AMV [2011] SGDC 114 [13.5.8], [13.5.24]
ANB v ANC & Anor and Another Matter [2015] 5 SLR 522 [14.4.11]
Ang Teng Siong v Lee Su Min [2000] 1 SLR(R) 908 [4.2.27]

[4.2.3], [4.2.7], [4.2.45], [4.2.56], [4.2.61],
ANJ v ANK [2015] 4 SLR 1043; [2015] SGCA 34
[4.2.63], [4.2.64], [4.2.66], [4.2.77],
[4.2.79], [5.6.5], [5.6.6]; [18.4.21]
Anthony Patrick Nathan v Chan Siew Chin [2011] 4 SLR 1121 [4.2.14]; [5.6.3]
Anton Piller KG v Manufacturing Processes Ltd) [1976] Ch 55 [14.3.1], [14.3.2]
Anuar bin Osman v Rohana bt Jiman (2010) 2 SSAR 196 [20.6.4], [20.7.8], [20.7.48]
AON v AOO [2011] 2 SLR 926; [2011] SGHC 16 [2.5.4]; [3.4.14], [3.4.43], [3.4.44]
AOO v AON [2011] 4 SLR 1169; [2011] SGCA 51 [3.4.15], [3.4.16], [3.4.33], [3.4.39],
[6.7.2]
AOU v AOV [2010] SGDC 525 [13.5.12]
APE v APF [2015] 5 SLR 783; [2015] SGCA 47 [4.3.3], [7.2.2]
AQB v AQC [2011] 3 SLR 1042 [3.4.4], [3.4.6]
AQD v AQE [2011] SGHC 92 [18.4.31]
AQL v AQM [2012] 1 SLR 840 [11.5.19]
AQN v AQO [2015] 2 SLR 523 [14.4.1], [18.4.31]
AQS v AQR [2012] SGCA 3 [4.3.13]
AQT v AQU [2011] SGHC 138 [9.2.2], [9.2.4], [9.2.8]
Arpinya Rongchotiawattana v Wee Oh Ken [1997] 3 SLR(R) 378 [18.3.3], [18.3.9], [18.3.11]
Arrowsmith D B v Chang Lee Chin [1981–1982] SLR(R) 676 [3.2.3]
ARS v ART & Anor [2015] SGHC 78 [9.2.34]
Art Trend Ltd v Blue Dolphin (Pte) Ltd & Ors [1981–1982] SLR(R) 633 [14.2.3]
ARY v ARX and Another Appeal [2016] 2 SLR 686 [5.6.3]; [4.2.14]
Ashtiani v Kashi [1987] QB 888 [14.2.9]
Asian Corporate Services (SEA) Pte Ltd v Eastwest Management Ltd (Singapore Branch)
[2006] 1 SLR(R) 901 [14.3.5]
Asmah Bee bt Md Din v Selamat bin Sarkawi (1997) 2 SSAR 52 [20.6.2]
ATC v ATD [2011] SGDC 254 [12.3.18], [12.3.21], [12.4.8]
ATE v ATD and Another Appeal [2016] SGCA 2 [4.2.71], [4.3.5], [4.3.6], [4.3.9]
Atkinson v Atkinson (No 2) [1996] 1 FLR 51 [19.3.3]
ATT v ATS [2012] 2 SLR 859 [4.2.39]
Attorney-General v Aljunied-Hougang-Punggol East Town Council [2015] 4 SLR 474 [9.3.1]
ATZ v AUA [2015] SGHC 161 [11.6.23], [11.6.36]
Au Kin Chung v Ho Kit Joo [2007] SGHC 150 [4.2.89]
AUA v ATZ [2016] SGCA 41 [10.4.50]
AUL v AUM [2011] SGDC 303 [13.5.24]
Aurol Anthony Sabastian v Sembcorp Marine Ltd [2013] 2 SLR 246 [5.9.2]; [15.3.7]
AUY v AUZ [2011] SGDC 344 [5.2.11]
AVM v AWH [2015] 4 SLR 1274 [18.4.21]
Awiah bt Othman v Md Salleh bin Md Tawil (Appeal No 19/2009) [20.7.5]
AWR v AWS [2011] SGDC 410 [13.5.25]
AXJ v AXI [2011] SGDC 420 [13.5.12], [13.5.13], [13.5.24]
AXK v AXL [2011] SGDC 431 [13.5.7]
AXM v AXO [2014] 2 SLR 705; [2014] SGCA 13 [4.3.27], [4.3.28], [7.2.3], [7.4.5], [7.5.2]
AYD v AYE [2012] SGHC 42 [12.3.21]

AYL v AYR [2013] 1 SLR 476 [4.2.3]
AYM v AYL and Another Appeal [2014] 4 SLR 559; [2014] SGCA 46 [4.2.37], [4.3.17]; [7.4.13], [7.4.37],
[7.4.39], [10.4.54]
AYQ v AYR and Another Matter [2013] 1 SLR 476 [4.2.82]
AZB v AZC [2016] SGHCF 1 [11.8.6], [11.8.8]
Azizah bt Amin v Md Nizam bin Ismail (Appeal No 17/2011) [20.7.26]
Azliana bt Abdullah v Md Tanvir s/o Harrat Khan & Abdullah bin Hj Roslan Summons
No 38147 [20.7.50]
Azman bin Abd Rani v Rahmah bt Ramli (1998) 1 SSAR 93 [20.3.18]
AZS & Anor v AZR [2013] 3 SLR 700; [2013] SGHC 102 [3.5.4], [3.6.4], [18.4.13], [18.4.14],
[18.4.16], [18.4.24]
AZZ v BAA [2016] SGHC 44 [4.2.15]
B v B (Financial Provision: Welfare of Child and Conduct) [2002] 1 FLR 555 [19.3.2]
B v S (Financial Remedy: Marital Property Regime) [2012] EWHC 265 (Fam) [9.2.41]
B (child of TII), In the matter of [2015] SGFC 151 [3.3.3]
B Trust, Re [2006] JRC 185 [9.2.49]
Babanaft International Co SA v Bassatne [1990] Ch 13 [14.2.9]
Bahtera Offshore (M) Sdn Bhd v Sim Kok Beng & Anor [2009] 4 SLR(R) 365 [14.2.4]
Bank Mellat v Nikpour [1985] FSR 87 [14.2.2]
BCB v BCC [2013] 2 SLR 324 [4.2.40], [4.2.78]
BCM v BCN [2012] SGDC 288 [13.5.13]
BCS v BCT [2012] SGDC 338 [10.4.54]
BDA v BDB [2013] 1 SLR 607 [3.5.3], [18.2.2], [18.4.11], [18.4.12]
BDJ v BDK [2012] SGDC 415 [13.5.8]
BDU v BDT [2012] SGDC 363 [12.2.20], [12.2.22], [12.2.25], [12.2.26]
BDU v BDT [2013] SGHC 106 [12.2.26], [12.2.29]
BDU v BDT [2014] 2 SLR 725; [2014] SGCA 12 [10.9.5], [12.2.14], [12.2.15], [12.2.19],
[12.2.27], [12.2.28], [14.4.15], [14.4.16]
BDV v BDW [2012] 433 [13.5.12]
Beaumont, Re [1893] 3 Ch 490 [18.2.12]
Beloved Wilkes’ Charity, Re (1851) 3 Mac & G 440; 42 ER 330 [9.4.1]
BF v BG [2004] SGDC 115 [10.7.5], [10.7.8], [14.4.17]
BFK v BFL [2013] SGDC 10 [16.12.6], [16.13.3]
BG v BF [2007] 3 SLR(R) 233; [2007] SGCA 32 [7.3.1], [7.4.36], [9.2.51]
Bhagwan Singh (deceased), Re [1964] MLJ 360 [18.2.5]
BHE v BHF [2013] SGDC 105 [11.5.19]
Binder v Alachouzos [1972] 2 QB 151 [9.5.5]
BJS v BJT [2013] 4 SLR 41 [4.2.18]
BJZ v BKA [2013] SGHC 149 [4.3.22]
BKJ v BKK [2013] SGDC 261 [11.5.28], [11.5.29]
BMG v BMH [2014] SGHC 112 [15.2.2]
BMP v BMQ [2013] SGHC 263 [11.9.3]
BN v MA (Maintenance Pending Suit: Prenuptial Agreement) [2013] EWHC 4250 [19.3.5]

BNH v BNI [2013] SGHC 283 [15.2.9]
BNS v BNT [2014] SGDC 13 [10.8.3]
BNT v BNS [2014] 4 SLR 859; [2014] SGHC 187 [10.8.3], [12.3.22], [12.3.23]
BNS v BNT [2015] 3 SLR 973; [2015] SGCA 23 [10.8.2], [12.1.1], [12.3.24], [12.3.25],
[11.2.1], [15.2.10]
Bolger & Headon [2014] FamCAFC 27 [19.3.11]
Bouvier, Yves Charles Edgar & Anor v Accent Delight International Ltd & Anor and
Another Appeal [2015] 5 SLR 558 [9.6.7]
Breakspear & Ors v Ackland & Anor [2009] Ch 32 [9.3.6], [9.4.15], [9.4.16], [9.4.17]
Brinkerhoff Maritime Drilling Corp & Anor v PT Airfast Services Indonesia and Another
Appeal [1992] 2 SLR(R) 345 [3.5.1]
Brodie v Brodie [1917] P 271 [6.1.2]
Brown v Higgs (1800) 5 Ves 495 [9.3.12]
Browne v Browne [1989] 1 FLR 291 [9.2.42]
Buchler v Buchler [1947] P 25 [2.4.19]

C
C, Re [2003] 1 SLR(R) 502; [2002] SGCA 50 [11.6.28]
C v F (Disabled Child: Maintenance Orders) [1999] 1 FCR 39 [19.4.7]
C v G [2010] NZFLR 497 [19.4.17]
C v H [2011] 3 HKC 305 [15.2.24]
C (an infant), Re [2002] SGCA 50 [12.3.20], [12.3.22], [12.3.24]
C Trust, Re [2012] JRC 86B [9.4.7]
Calveryly v Green (1984) 155 CLR 242 [9.7.12]
Castello Ana Paula Costa Fusillier v Lobo Carlos Manuel Rosado [2003] SGHC 219 [2.4.11]
Castle Fitness Consultancy Pte Ltd v Manz [1989] 2 SLR(R) 308 [9.6.6], [14.4.5]
CBS v Lambert [1983] Ch 37 [14.2.9]
CH v CI [2004] SGDC 131 [9.3.2]
Challenger Technologies Ltd v Courts (Singapore) Pte Ltd [2015] 5 SLR 679 [14.4.8]
Chan Siew Fong v Chan Fook Kee [2002] 1 SLR(R) 93 [4.2.89]
Chan Teck Hock David v Leong Mei Chuan [2002] 1 SLR(R) 76 [10.4.13]
Chan Tin Sun v Fong Quay Sim [2015] 2 SLR 195 [4.2.41], [4.2.58], [4.2.59], [4.2.60],
[4.2.85], [4.2.87], [4.2.91], [16.1.4]
Chan Wai Chin v Ang Shi Yi, Vanessa and Ong Kay Yong [2014] SGDC 185 [2.4.12]
Chan Yeong Keay v Yeo Mei Ling [1994] 2 SLR(R) 133 [4.2.6]
Chan Yuen Boey v Sia Hee Soon [2012] 3 SLR 402 [4.2.41]
Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048 [9.7.4], [9.7.5], [9.7.8], [9.7.10], [9.7.11],
[9.7.13], [9.7.18], [9.7.19], [9.7.20]
Chapman v Chapman [2014] FamCAFC 91 [19.3.9]
Charman v Charman [2006] EWHC 1879 (Fam) [9.2.44]
Charman v Charman [2007] EWCA Civ 503 [9.2.43], [9.2.44], [9.2.45], [9.2.47],
[9.3.8], [9.3.9], [19.3.4]
Chen Siew Hwee v Low Kee Guan (Wong Yong Yee, Co-Respondent) [2006] 4 SLR(R) 605 [4.2.21], [4.2.22], [4.2.23], [4.2.29],
[15.2.8]
Cheong Kong Chuan v Zunaidah bt Shahul Hamid (Appeal No 8/2013) [20.9.7]
Cheong Soh Chin & Ors v Eng Chiet Shoong & Ors [2015] SGHC 173 [9.3.1]
Cheung Kam Yi Betty v Liu Tsun Kie [2012] SGHC 213 [15.2.14]
Chew Cheng Swee v Chan Chye Neo [1932] MLJ 5 [7.6.5]
Chew Lai Yoke Bettina v Selby Michael David [2001] SGDC 384 [7.4.6], [7.4.8]
Chi Ping Huey v Yeo Whye Siah [2015] SGFC 52 [4.2.51]
Chia Hock Hua v Chong Choo Je [1994] 3 SLR(R) 159 [6.6.1]
Chiang Shirley v Chiang Dong Pheng [2015] 3 SLR 770 [9.4.12], [9.4.13]
Chng Bee Kheng & Anor (executrixes and trustees of the estate of Fock Poh Kum,
deceased) v Chng Eng Chye [2013] 2 SLR 715 [9.2.12], [9.2.13]
Chng Yock Eng v Kwa Teck Meng [2004] SGDC 268 [2.5.4], [3.4.11], [3.4.14]
Chotrani Gul Bhisham v Calderon Maria Teresa F [2002] SGDC 171 [3.3.4]
Chow Hoo Siong v Lee Dawn Audrey [2003] 4 SLR(R) 481 [4.2.21]
Choy Chee Keen Collin v Public Utilities Board [1996] 3 SLR(R) 812 [14.2.1]
Chu Yoke Chew v Liu Yan [2009] SGDC 334 [13.5.8]
Chua Chwee Thiam v Lim Annie [1989] SGHC 38 [7.4.21], [7.4.22]
Chua Li Choo v Teo Swee Theng [2005] SGDC 241 [13.5.12]
Chuan Hong Petrol Station Pte Ltd v Shell Singapore (Pte) Ltd [1992] 2 SLR(R) 1 [14.4.8]
CI Law Trustees Ltd v Minwalla [2006] WTLR 807 [9.2.17]
CIMB Bank Bhd v Dresdner Kleinworth Ltd [2008] 2 SLR(R) 543 [18.4.4]
Clemens Willibert Bruna v Lim Pei Ching Yvonne [2015] SGFC 12 [12.2.18]
Co v Co [2004] EWHC 287 [19.3.2]
Cole, Re [1904] Ch 175 [19.2.3]
Columbia Picture Industries Inc v Robinson [1987] Ch 38; [1986] 3 All ER 338 [14.3.9]
Comboni Vicenzo & Anor v Shankar’s Emporium (Pte) Ltd [2007] 2 SLR(R) 1020 [9.7.25]
Compass Trustees v McBarnett [2003] WTLR 461 [9.2.47]
Compton (Marquis of Northampton) v Compton (Marchioness of Northampton) and

Hussey [1960] 3 WLR 476 [9.5.3]
Computerland Corp v Yew Seng Computers Pte Ltd [1991] 2 SLR(R) 379 [14.3.7], [14.3.10]
Crossco No 4 Unlimited v Jolan Ltd [2011] EWCA Civ 1619 [19.2.6]
CX v CY (minor: custody and access) [2005] 3 SLR(R) 690 [5.2.3], [5.2.4], [10.4.5], [10.4.11],
[20.5.9]
CZ v DA [2004] SGDC 192 [10.2.5], [10.2.6], [11.6.27]
CZ v DA [2004] SGHC 216 [11.6.28]
D, In Re [2007] 1 AC 619 [12.2.28]
Dali bin Md Noor v Rubaidah bt Tabri (2010) 2 SSAR 221 [20.6.8]
Darashah v UFAC (UK) Ltd (1982) 79 LSG 678 [14.2.9]
Daud Salim @ Liem Sin Thang v Hayati bt Atnaw (2003) 3 SSAR 124 [20.5.6]
DB v DC [2004] SGDC 145 [7.4.18]
Deepak Govindran Kirpalani v Rita Kishinchand Bhojwani [2006] SGDC 173 [2.4.27]
Derby & Co Ltd v Weldon (No 1) [1990] Ch 48 [14.2.9]
Didier Von Daniken v Sanaa Von Daniken Born El Kolaly [2005] SGDC 80 [3.2.5]
Dolphina, The [2012] 1 SLR 992 [9.2.34], [9.2.36]
Doucet v Geoghegan (1878) 9 Ch D 441 [2.3.5]
Drysdale v Drysdale [2011] FamCAFC 85 [19.4.10]

E
E v E (Financial Provision) [1990] 2 FLR 233 [19.3.2]
Edgar v Edgar [1980] 1 WLR 1410 [6.8.5]
Emanuel v Emanuel & Anor [1982] 1 WLR 669 [14.3.6]
Eng Liat Kiang v Eng Bak Hern [1995] 2 SLR(R) 851 [3.5.1]
Estate of Fuld (Deceased) (No 3), The [1968] P 675 [3.2.7]
European Grain & Shipbuilding Ltd v Compania Naviera Euro-Asia SA [1989] 2 SLR(R)
445 [14.2.1]
Evans v Bartlam [1937] AC 473 [3.4.37]

F
F v F (No 2) [2003] HKCFI 444; [2003] 3 HKLRD 976 [15.2.22]
Faizal bin Yahya v Zairinah bt Md Zain (Appeal No 4/2010) [20.7.46]
Farida bt Hj Md Thamby v Hj Md bin Ibrahim (2000) 4 SSAR 78 [20.7.47]
Feng Hui Bin v Wu Xing Hua [2012] SGDC 430 [3.4.20]
FHY v GJS [2008] HKFLR 453 [15.2.25]
Fong Wai Har v Seah Boon Chai & Anor [2016] SGHCF 4 [4.3.6]
Foo Ah Yan v Chiam Heng Chow [2012] 2 SLR 506; [2012] SGCA 15 [4.3.9], [4.3.10], [4.3.12], [4.3.19], [7.3.1]
Foo Jee Seng v Foo Jhee Thuang [2012] 1 SLR 211 [9.4.3], [9.4.6]
Foo Jee Seng & Ors v Foo Jhee Tuang & Anor [2012] 4 SLR 339 [9.4.1], [9.4.2], [9.4.3], [9.4.6], [9.4.9]
Foo Teck Kuan v Chan Yoke Han [2010] SGDC 235 [2.2.2]
Fountain Trust, Re [2005] JRC 99 [9.2.47]
Freestone v Freestone [2013] FamCAFC 190 [19.4.10]
Furse, Re [1980] 3 All ER 838 [18.2.16]
G v G [2012] EWHC 167 [19.3.3]
G, Re [1966] NZLR 1028 [18.2.12]
G (Child) (Costs: Child Case), Re [1999] 2 FLR 250 [15.2.24]
GAE v GAF [2014] SGDC 237 [7.4.32]
GAK v GAL [2013] SGCA 19 [4.2.22], [4.2.27]
Gartside v Inland Revenue Commissioner [1968] AC 553 [9.3.10], [9.3.12], [9.3.13]
Gaye Williams Nee Marks v Cary Donald Williams [1993] SGHC 190 [9.2.1]
George Raymond Zage III & Anor v Rasif David & Ors [2009] 2 SLR(R) 479 [9.2.34]
George Udny v John Henry Udny (1869) 1 LR Sc & Div 441 [18.2.3], [18.2.7], [18.2.14]
Ghoth v Ghoth [1992] 2 All ER 920 [14.2.12]
Gisela Gertrud Abe v Tan Wee Kiat [1986] 2 MLJ 297 [7.5.2]
Gissing v Gissing [1971] 1 AC 886 [19.2.5]
GM v GN [2004] SGDC 284 [11.9.9]
Gojkovic v Gojkovic [1997] 2 FLR 95 [15.2.23]
Goulding v James [1997] 2 All ER 239 [9.3.1]
Guan Chong Cocoa Manufacturer Sdn Bhd v Pratiwi Shipping SA [2003] 1 SLR(R) 157 [14.2.6], [14.2.7]
Gulbenkian v Gulbenkian [1937] 4 All ER 618 [2.3.5]

H
H v P (Illegitimate Child: Capital Provision) [1993] Fam Law 515 [19.4.7]
Hafiani bt Abdul Karim v Mazlan bin Redzwan [1995] 3 SLR(R) 738 [20.5.12]
Halimahton bt Salleh v Aeon Oral Smith (Appeal No 22/2014) [20.6.5]
Hamdan bin Tahir v Manisah bt Patham (Appeal No 26/2011) [20.7.9], [20.7.10]
Hamida d/o Mahamood v Rauf @ Suppiah Rengaiyan (Appeal No 32/2001) [20.3.9], [20.3.20]
Hamilton v Hamilton [2013] EWCA Civ 13 [19.3.7]
Haniszah bt Atan v Zainordin bin Mohd [2016] SGCHF 5 [20.8.2]
Harjit Kaur d/o Kulwant Singh v Saroop Singh a/l Amar Singh [2015] 4 SLR 1216; [2015] [4.1.4], [18.5.5], [18.5.7], [18.5.8],
SGHCF 5 [18.5.9]
Harris v Manahan [1997] 2 FCR 607 [19.3.6]
Hastings-Bass (Deceased), Re [1975] Ch 25 [9.4.8], [9.4.9], [9.4.10]
Hatz Walter @ Muhammad v Suhana bt Ahmad (Summons No 1576 of 1999) [20.6.4]
Hazlina bt Osman v Md Fawzi Suleiman (2009) 3 SSAR 174 [20.7.20]
Helen Diane Womersley (mw) v Nigel Maurice Womersley [2003] SGDC 186 [2.3.8], [18.2.23], [18.2.24]
Heng Joo See v Ho Pol Ling [1993] 2 SLR(R) 763; [1993] SGHC 201 [2.8.4], [3.4.9], [3.4.10], [3.4.18]
Heseltine v Heseltine [1971] 1 All ER 952 [19.2.3]
Hitch v Stone [2001] STC 214 [9.2.13]
Ho Ah Chye v Hsinchieh Hsu Irene [1994] 1 SLR(R) 485 [18.5.3], [18.5.4]
Ho Kiang Fah v Toh Buan [2009] 3 SLR(R) 398 [4.1.1]
Hoong Khai Soon v Cheng Kwee Eng and Another Appeal [1993] 1 SLR(R) 823 [9.2.54]
Hosairi bin Kalil v Zaliha bt Othman (2009) 2 SSAR 187 [20.7.52]
Hou Wa Yi v Yap Kiat Cheong (Yap Chai Ling & Anor, interveners) [2012] 2 SLR 995 [3.4.7]
Hyman v Hyman [1929] AC 601 [6.6.1]

I
Igra v Igra [1951] P 404 [18.5.4]
Inland Revenue Commissioners v Duchess of Portland [1982] Ch 314 [18.2.16]
IRC v Bullock [1976] 3 All ER 353 [18.2.16]
IS v IT [2005] SGDC 188 [13.6.3]

J
Ja’afar bin Kassim, Re (2010) 5 SSAR 179 [20.2.12], [20.3.12]
JAC v JAD [2014] SGDC 379 [10.7.5]
Jackson, Re (1882) 21 Ch D 786 [9.5.4]
JAF v JAE [2016] 3 SLR 717 [4.2.18]
Jam Hari bin Jaafar v Fatimah bt Saayan (1996) 2 SSAR 46 [20.7.36]
Jamie Johan Hashim v Siti Rohani bt Jalani (Appeal No 39/2013) [20.2.5]
Jasmin Ismail Frost @ Melor bt Ismail v Adam Alexander Frost @ Adam Frost (Appeal
No 45/2014) [20.5.4]
Jaya Latchmee d/o Krishnasamy Maniam v Vijaya Kumaran Krishnan Divorce Petition
No 1246 of 1999 [10.4.45]
JBB v JBA [2015] SGHCF 6; [2015] 5 SLR 153 [5.9.8], [5.9.9], [5.9.10], [15.2.1], [15.2.2],
[15.2.4], [15.2.6], [15.2.7], [15.2.10],
[15.2.11], [15.2.26]
JBV v JBW [2014] SGDC 458 [13.5.13]

JIO Minerals FZC v Mineral Enterprises Ltd [2011] 1 SLR 391 [18.4.4]
Jofri bin Jaffar v Norrashida bt Jumadi (Appeal No 16/2011) [20.12.3]
Jones v Jones [2000] 2 FCR 201 [19.3.7]
Jones v Jones [2011] EWCA Civ 41 [19.3.4]
Jones v Kernott [2012] 1 AC 776; [2011] UKSC 53 [9.7.4], [9.7.5], [9.7.8], [19.2.6]
Joycelyn Toh Hui Yu v Toh Siew Luan Bette [2013] SGDC 275 [13.6.2], [13.6.4]
K
K Sulochana a/p Krishnan v Chandran s/o Sankunny Nair [1994] SGHC 19 [2.8.6]
Katsuya Nishiyama v Ang Wee Sim Alice (mw) [1994] SGHC 249 [7.4.30], [7.4.33]
Kavaljit Kaur v Harvinder Singh s/o Pritam Singh [2008] SGDC 192 [13.5.8], [13.5.19], [13.5.22]
Keane v Keane [2013] FamCA 332 [19.4.15]
Kennon v Spry; Spry v Kennon (2008) 238 CLR 366; [2008] HCA 56 [9.2.6], [19.3.10]
Khadijah bt Omar v Md Yusoff bin Seeni Rawther (2001) 3 SSAR 109 [20.7.4]
Kishore Shewaram Mohinani v Padmabai d/o Ramchand Ladharam [2013] SGHC 223 [7.4.26]
Koh Bee Choo v Choo Chai Huah [2007] SGCA 21 [4.2.85], [4.2.86]
Koh Cher Hau v Seah Poh Suan (District Court Appeal No 5032 of 1998) [10.4.44]
Koh Kim Lan Angela v Choong Kian Haw and Another Appeal [1993] 3 SLR(R) 491 [4.2.20]
Koh Teng Lam v Koh Chen Chee Elsie & Anor [1974–1976] SLR(R) 510 [2.4.5]
Koo Shirley v Mok Kong Chua Kenneth [1989] 1 SLR(R) 244 [4.2.78]
Koon Seng Construction Pte Ltd v Chenab Contractor Pte Ltd [2008] 1 SLR(R) 375 [9.2.13]
Kornrat Sriponnok, Re [2015] SGHC 81 [2.6.1]
Kwee Lee Fung Ivon v Lim Gordon [2013] SGHC 228 [4.3.14], [9.2.4], [9.2.5], [9.2.7], [9.2.8],
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Kwong Sin Hwa v Lau Lee Yen [1993] 1 SLR(R) 90; [1993] SGCA 6 [2.8.3], [4.2.92], [6.1.2], [6.4.7], [6.4.8]
L
L v J [1999] SGHC 258 [10.7.5], [10.7.6]
L v L [1996] 2 SLR(R) 529 [10.10.1]
Lam Siew Lan v Lian Tong Looi [2000] SGDC 33 [9.6.2]
Latifah bt Abu Samah v Muhammad Khair bin Bujang (1998) 2 SSAR 84 [20.7.24], [20.7.41]
Lau Ca Cheng v Ho Kee Wai Tony [2014] SGDC 470 [2.7.4]
Lau Loon Seng v Sia Peck Eng [1999] 2 SLR(R) 668 [9.6.2], [9.6.3]
Lau Siew Kim v Yeo Guan Chye Terence & Anor [2008] 2 SLR(R) 108 [4.2.2], [9.1.9], [9.7.10], [9.7.12], [9.7.13],
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Law Society of Singapore, The v Chua Swee Keng [2008] SGDSC 6 [16.8.4], [16.12.16], [16.18.7], [16.18.8]
Lawrence v Lawrence [1985] 1 Fam 106 [18.3.17]
Leadbeater v Leadbeater [1985] 1 FLR 789 [19.3.2]
Lee Chi Lena v Chien Chuen Chi Jeffrey (Qian Jie, co-defendant) [2011] SGHC 91 [14.2.11]
Lee Chung Meng Joseph v Krygsman Juliet Angela [2000] 3 SLR(R) 965 [9.2.37]
Lee Kok Yong v Lee Guek Hua (alias Li Yuehua) [2007] SGHC 26 [7.2.6]
Lee Kwang Peng v PP [1997] 3 SLR 278 [13.7.35], [13.7.36]
Lee Mei-Chih v Chang Kuo-Yuan [2012] 4 SLR 1115; [2012] SGHC 180 [2.3.6], [2.3.7], [3.2.10], [18.2.22],
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Lee Min Jai v Chua Cheow Koon [2005] 1 SLR(R) 548 [3.4.42], [3.4.43], [3.4.44]
Lee Puey Hwa v Tay Cheow Seng [1991] 2 SLR(R) 196 [4.3.17], [10.4.54]
Lee Shieh Peen Clement v Ho Chin Nguang [2010] SGCA 34 [11.9.11]
Lee Yong Chuan Edwin v Tan Soan Lian [2000] 3 SLR(R) 867 [9.2.54]
Lehman Brothers International (Europe Ltd) (in administration), Re [2009] EWCA Civ
1161 [9.4.1]
Leo Teng Choy v Leo Teng Kit & Ors [2000] 3 SLR(R) 636 [9.3.1]
Leong Kwek Keong v Lee Ying Kuan [1990] SGHC 8 [2.4.23], [2.4.27]
Letchme v Gopal [1980] 1 MLJ 143 [7.4.17]
Lian Hwee Choo Phebe v Tan Seng Ong [2013] 3 SLR 1162; [2013] SGCA 37 [4.2.96], [4.2.97], [6.4.3], [6.4.4], [6.4.5]
Lim Beng Choo v Tan Pau Soon [1996] 2 SLR(R) 467 [4.1.1]
Lim Chee Twang v Chan Shuk Kuen Helina & Ors [2010] 2 SLR 209 [9.2.34]
Lim Chen Yeow Kelvin v Goh Chin Peng [2008] 4 SLR(R) 783 [9.7.13]
Lim Chin Huat Francis & Anor v Lim Kok Chye Ivan & Anor [1999] 2 SLR(R) 392 [10.2.7], [11.6.28], [12.4.6]
Lim Choon Lai v Chew Kim Heng [2001] 2 SLR(R) 260 [4.2.42]
Lim Kok Chye Ivan & Anor v Lim Chin Huat Francis & Anor [1996] 3 SLR(R) 83 [12.4.6]
Lim Sai Poh v Ting Leh Ming @ Tan Lay Ming [1994] SGHC 196 [7.4.27]
Lloyds Bank v Rosset [1991] 1 AC 107 [19.2.6]
LN v SCCM Civil Appeal No 62 of 2013 [3.3.5]
Lock International plc v Beswick [1989] 1 WLR 1268 [14.3.3]
Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520 [4.2.2], [4.2.5], [4.2.42], [4.2.43], [4.3.10],
[9.1.9], [18.4.21]
Lockers Settlement Trusts, Re [1977] 1 WLR 1323 [9.3.4]
London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569 [15.2.23]
Londonderry’s Settlement, Re [1965] Ch 918 [9.4.11]
Lonslow v Hennig [1986] 2 FLR 378 [12.3.20]
Low Choon Kung v Tham Chan Kum [2004] SGDC 139 [2.8.4]
Low Gim Siah v Low Geok Khim [2007] 1 SLR(R) 795 [9.7.12]
Low Wing Hong Alvin v Kelso Sharon Leigh [1999] 3 SLR(R) 993 [3.3.4], [3.3.6], [3.5.5]
LSJ v LKK [1992] SGHC 168 [2.8.3]
Lubbe & Ors v Cape plc [2000] 1 WLR 1545 [3.5.10]
Lubna bt Sheikh Othman v Khalid bin Omar Abdat (2008) 2 SSAR 158 [20.6.4], [20.7.31]
Lum Cheng Yee v Lai Choon Seng [1996] SGHC 206 [15.2.12]
M
M v B (economic disparity) [2006] 3 NZLR 660 [19.4.20]
M v M [2013] EWHC 2534 (Fam) [9.2.32], [9.2.33], [9.2.34]
MA v SK [2015] EWHC 887 (Fam) [9.2.32], [9.2.35]
Madiah bt Atan v Samsuddin bin Surin [1998] 2 SLR(R) 327 [20.3.3]
Mahidon Nichair bt Mohd Ali v Dawod Sultan Kamaldin [2015] SGCA 36 [20.15.8]
Mala Shukla v Jayant Amritanand Shukla [2002] 1 SLR(R) 920 [3.5.4], [3.5.5], [3.5.12], [3.6.2]
Manuchar Steel Hong Kong Ltd v Star Pacific Line Pte Ltd [2014] 4 SLR 832 [9.2.26]
Mareva Compania Naviere SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep 509 [14.2.2]
Maria Hertogh, Re [1951] MLJ 164 [18.3.10], [18.3.13]
Marie Eileen Guin Nee Fernandez v Arun Guin [1994] SGHC 157 [9.2.2], [9.2.48]
Marilyn June Shearer v Michael Howard Shearer [2000] SGDC 27 [3.5.13]
Mark Adrian Walter v Faridah bt Awall (Appeal No 2/2013) [20.6.4]
Mark v Mark [2005] UKHL 42 [18.2.16], [18.2.21]
Marriage of Kelly (No 2), In the (1981) 7 Fam LR 762 [19.4.10]
Marriage of John Frank Bevan Appellant/Husband and Merrien Denise Bevan

Respondent/Wife, In the (1993) 19 Fam LR 35 [19.4.10]
Marshall v Marshall [1956] MLJ 122 [18.2.17]
Martin v Martin [1919] P 283 [9.3.10]
Marubeni International Petroleum (S) Pte Ltd v Projector SA [2004] 4 SLR(R) 233 [14.4.9]
Maryani Sadeli v Arjund Permanand Samtani [2015] 1 SLR 496 [15.2.1]
Marychristine Knittel-Hanks (mw) v Kenneth G Hanks [1992] SGHC 332 [7.4.20]
Maspahlela bt Mashor v Rasede bin Salleh (Appeal No 6/2007) [20.6.8]
Mazmarina bt Yusoff (Appeal No 38A/1996) [20.2.6]
McPhail v Doulton [1971] AC 424 [9.3.4]
Md Ajis bin Samon v Jamaliah bt Drahman (Appeal No 4/2013) [20.7.37], [20.7.42]
Md Fadly bin Saaid v Raba’ah bt Roszini (Appeal No 14/2010) [20.7.44], [20.7.45]
Md Ghouse s/o Ismail Sahed v Zarinah Bivi Ghousee (Appeal Nos 21 and 22/2007) [20.6.8]
Md Noor bin Ali v Sarmah bt Ali (Appeal No 34/2000) [20.7.28]
Md Yazid bin Yatin v Fazilah bt Jaafar (Appeal No 4/2013) [20.6.3]
Md Yusoff bin Majeed v Masitah bt Md Noor (Appeal No 31/2012) [20.9.6]
Mehrunnisha bt Peer Mohamed v Abdul Rahman bin Mastan (Syariah Summons No

35661/2010 and Appeal No 3/2010) [20.6.8]
Mettoy Pension Trustees Ltd v Evans [1992] 2 All ER 513 [9.3.4]
Miller v Miller [1998] MLR 183 [2.4.18]
Miller v Miller and Another Appeal [2006] 2 AC 618; [2006] UKHL 24 [19.3.4]
Minwalla v Minwalla & Ors [2004] EWHC 2823 (Fam) [9.2.14], [9.2.15], [9.2.17], [9.2.42],
[9.2.45], [9.2.47]
Mohamad Ausman s/o Mohamad Ashraf v Maria d/o Berang Kuty (Appeal No 7/2001) [20.7.17]
Mohamad Roslan bin Ahmad @ Royston Wu Chiren v Yong Tien Sin (Yang Tianxin) @
Amelia Yong (Summons No 28677) [20.3.4], [20.3.7], [20.3.10], [20.3.20]
Mohamed Ismail bin Ibrahim v Mohd Taha bin Ismail [2004] 4 SLR(R) 756 [20.15.16]
Mohamed Yusoff bin Mohd Haniff v Umi Kalsom bt Abas (AG, non-party) [2010] SGHC
114 [20.13.1]
Mohd Ajis bin Samon v Jamaliah bt Drahman (Appeal No 4/2013) [20.7.13]
Mohd Hassan bin Ali v Rosmah bt Khalid (Appeal No 7/2006) [20.7.21]
Mohd Irwan bin Abdullah Teo v Salijah bt Abdul Latef (1996) 1 SSAR 50 [20.7.22]
Mok Kah Hong v Zheng Zhuan Yao [2016] SGCA 8 [11.9.12]
Morgan v Hill [2006] 3 FCR 620 [19.4.7]
Morice v Bishop of Durham (1805) 10 Ves 522 [9.4.1]
Morris Richard Neil v Morris Carolina Hernandez [2012] SGHC 177 [7.4.24]
Mubarak v Mubarak [2001] 1 FLR 673 [9.2.29]
Muhd Munir v Noor Hidah and Other Applications [1991] 1 MLJ 276 [3.1.7]
Muktar Bibi bt Abdul Rahman @ Mukhtar Bibi bt Abdul Man bin Fateh Din v Zaidah
Begum bt Mohd Amin (2008) 1 SSAR 119 [20.12.3]
[20.3.19]
Musa bin Md Taib v Noraidah bt Rabani (Appeal No 13/2013)
N
N (A child) (Payments for Benefit of Child), Re [2009] 1 FCR 606 [19.4.7]
Nafsiah bt Md Hanapiah v Azmat bin Naif (2008) 2 SSAR 173 [20.7.35]
Nagasaki Spirit, The [1994] 2 SLR(R) 165 [9.6.6]
Nagasaki Spirit (No 1), The [1993] 3 SLR(R) 878 [14.4.5]
Nagase Singapore Pte Ltd v Ching Kai Huat & Ors [2008] 1 SLR(R) 80 [9.2.34]
National Westminster Bank plc v Rosemary Doreen Jones [2001] 1 BCLC 98 [9.2.13]
NEC Asia Pte Ltd v Picket & Rail Asia Pacific Pte Ltd [2011] 2 SLR 565 [9.2.22]
Nelson, Re [1928] Ch 920 [9.3.13]
Neo Mei Lan Helena v Long Melvin Anthony [2002] 2 SLR(R) 616 [10.4.54]
Neo Ying Piau v Ng Soek Teng [2011] SGDC 217 [2.2.2]
Ng Sui Wah Novina v Chandra Michael Setiawan [1992] 2 SLR(R) 111 [4.1.3], [18.5.3], [18.5.4]
Ng Sylvia v Oon Choon Huat Peter [2002] 1 SLR(R) 246 [4.2.36]
NI v NJ [2007] 1 SLR(R) 75 [4.3.12], [9.2.3]
Nicholas v Nicholas [1984] FLR 285 [9.2.37]
Ninemia Maritime Corp v Trave Schiffahrtgesellschaft mbH und Co KG (The

Niedersachsen) [1983] 2 Lloyd’s Rep 600 [14.2.5]
Nippon Yusen Kaisha v Karageorgis [1975] 1 WLR 1093 [14.2.9]
NK v NL [2007] 3 SLR(R) 743 [4.2.3], [4.2.43], [4.2.44], [4.2.47],

[4.2.81], [4.2.83], [4.2.88], [9.2.39],
[18.4.21]
NM v NN [2006] SGDC 218 [10.5.18]
Noor Azizan bt Colony (alias Noor Azizan bt Mohamed Noor) v Tan Lip Chin (alias Izak
Tan) [2006] 3 SLR(R) 707 [20.3.10]
Noraslenda Binte Abdul Gapor v Japar bin Ibrahim [1991] SGHC 187 [10.6.5]
Norazlin bt Md Noordin v Md Hamdan bin Abd Razak (Motion No 4A/2011) [20.7.39]
Norbis v Norbis (1986) 161 CLR 513 [19.3.11]
Norma Jill Mitchell Appellant/Husband and Anthony Lewis Mitchell Respondent/

Husband [1995] FamCA 32 [19.4.10]
North v North [2007] 2 FCR 601 [19.3.7]
NR v NQ [2007] SGMC 4 [13.5.8]
NWL Ltd v Woods [1979] 3 All ER 614 [14.4.12]

O
O’Connor Rosamund Monica v Potter Derek John [2011] 3 SLR 294 [4.2.87]
O’Rourke v Darbishire [1920] AC 581 [9.4.11]
Omelian v Omelian [1996] 2 FLR 306 [19.3.7]
Ong Boon Huat Samuel v Chan Mei Lan Kristine [2007] 2 SLR(R) 729 [4.2.15]
Ong Chen Leng v Tan Sau Poo [1993] 2 SLR(R) 545 [4.3.20]
Orchard Capital I Ltd v Ravindra Kumar Jhunjhunwala [2012] 2 SLR 519 [3.5.1]
Oriental Insurance Co Ltd v Bhavani Stores Pte Ltd [1997] 3 SLR(R) 363 [3.5.1], [3.5.11]
Othman bin Abdul Rahman v Norsiah bt Abdul Latip (1990) 5 SSAR 15 [20.3.5]
P
P (A Child) (Financial Provision), Re [2003] 2 FCR 481 [19.4.7]
P J (children) (Abduction: Habitual Residence: Consent), Re [2009] EWCA Civ 588 [12.2.19]
Pang Rosaline v Chan Kong Chin [2009] 4 SLR(R) 935 [4.2.44], [4.2.51], [4.2.64]
Pang Tee Gam v Chui Ah Mui (mw) [2009] SGDC 400 [16.12.9]
Payne v Payne [2001] Fam 473 [12.3.25]
Pereira Dennis John Sunny v Faridah bte V Abdul Latiff [2016] SGHCR 9 [20.11.3]
Perry v Perry [1963] 3 All ER 766 [2.4.18]
Peters Roger May v Pinder Lillian Gek Lian [2006] 2 SLR(R) 381 [2.3.4], [3.2.6], [18.2.3], [18.2.4], [18.2.9],
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Peters Roger May v Pinder Lillian Gek Lian [2009] 3 SLR(R) 765; [2009] SGHC 90 [2.3.5], [3.2.5], [18.2.5], [18.2.7], [18.2.9],
[18.2.14], [18.2.15], [18.2.16], [18.2.17],
[18.2.19]
Pettitt v Pettitt [1970] AC 777 [19.2.5]
Piah bt Said v Che Lah bin Awang [1993] 3 JH (Journal Hukum) 220 [20.6.7]
Pitt v Holt [2013] 2 AC 108 [9.4.8]
Pope v Pope [2012] FamCA 204 [19.3.10]
Povey v Povey [1972] Fam 40 [15.2.12]
PP v Baboo Thevan s/o Nagarasen [2006] SGDC 46 [13.4.4]
PP v Jeff Lim Tze Kuan [2015] SGDC 96 [13.4.2]
PP v Muhammad Noor bin Abdullah [2015] SGDC 240 [13.4.2]
PQR v STR [1992] 3 SLR(R) 744 [10.4.57]
Prapavathi d/o N Balabaskaran v Manjini Balamurugan [2002] SGDC 354 [3.6.5]
Prest v Petrodel Resources Ltd & Ors [2013] 3 WLR 1 [9.2.26], [9.2.27], [9.2.28], [9.2.30],
[9.2.32], [9.2.36], [9.2.37], [9.2.38],
[9.2.39], [9.2.44]
Preston-Jones v Preston Jones [1951] AC 391 [2.4.5]
PT Hutan Domas Raya v Yue Xiu Enterprises (Holdings) [2001] 1 SLR(R) 104 [3.5.12]
PT Makindo v Aperchance Co Ltd [2010] SGHC 221 [11.9.7]

Q
QU v QV [2008] SGDC 364 [13.7.36]
Quek Lee Tiam v Ho Kim Swee (alias Ho Kian Guan) [1995] SGHC 23 [4.3.8], [4.3.14], 4.3.15], [4.3.22]
QV v QU [2008] SGCA 9 [11.9.9]

R
R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309 [2.3.6], [3.2.10]
R (Minor) (Legal Aid: Costs), Re [1997] 1 FCR 613; [1997] 2 FLR 95; [1996] EWCA Civ
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Racaza Juliet S v Caton David Andrew [2004] SGDC 275 [2.5.4], [3.4.10], [3.4.18]
Radmacher v Granatino [2010] UKSC 42 [19.3.5]
Radwan v Radwan (No 2) [1973] 1 Fam 35 [18.3.16]
Raffles Town Club Pte Ltd v Lim Eng Hock Peter [2013] 1 SLR 374 [9.2.36]
Raj Mohamed N Abd Rahim v Roshon Beevi NA Md Gani (2003) 4 SSAR 102 [20.9.2]
Raja Jumira bt R Azwar v Syed Iskandar bin Hashim (Appeal No 21/2010) [20.5.11]
Rasu Maritima SA v Perusahaan (Pertamina) [1978] QB 644 [14.2.4]
Rawluk v Rawluk (1990) 65 DLR (4th) 161 [9.7.25]

Reecon Wolf, The [2012] 2 SLR 289 [3.5.9]
Reed Exhibitions Pte Ltd v Khoo Yak Chuan Thomas & Anor [1995] 3 SLR(R) 383 [14.4.7]
Renata Ferraro Appellant/Wife and Ruggero Ferraro Respondent/Husband [1992]

FamCA 64 [19.3.11]
Representation of U, Re [2011] JRC 131 [9.4.18]
Republic of Haiti v Duvalier [1990] 1 QB 202 [14.2.9]
Rickshaw Investments Ltd v Nicolai Baron von Uexkull [2007] 1 SLR(R) 377 [3.5.1]
Ritter v Godfrey [1920] 2 KB 47 [15.3.7]
RK v RK [2012] 3 FCR 44 [19.3.3]
Robson v Robson [2010] EWCA Civ 1171 [19.3.3]
Rohnah bt Kassim v Abd Kadir bin Md Hussein (1998) 4 SSAR 62 (Appeal No 7/1997) [20.9.5]
Rokiah bt Hj Abd Jalil v Md Idris bin Shamsuddin [1989] 3 MLJ ix [20.6.7]
Romi Nazri bin Rohman v Hartini bt Hassan (Appeal No 5/2012) [20.7.18], [20.7.38]
Rosaline Singh v Jayabalan Samidurai (alias Jerome Jayabalan) [2004] 1 SLR(R) 457 [4.3.22]
Rosemawati bt Rafdi v Md Hisham bin Ibrahim @ Edward James Khoo (Appeal No

15/2010) [20.5.5]
Roslan bin Baseri v Zauiah bt Jantan (Appeal No 6/2010) [20.6.8]
Rosmala bt Md Salleh v Oma-R-Uddin Ali Koppe (2006) 3 SSAR 153 [20.5.10], [20.9.4]
Rosman bin Taib v Arfah bt Sanip (Appeal No 5/2010) [20.6.3], [20.7.16]
Rosnah bt Sanjar v Zakaria bin Mahmud (Salmah bt Md Salleh, Intervener) (2005) 2

SSAR 139 [20.7.7]
Rossi v Rossi (2007) 1 FLR 790 [19.3.1]
Rubaidah bt Tabri v Dali bin Md Noor (2010) 2 SSAR 221 [20.7.33]
Ryan Neil John v Berger Rosaline [2000] 3 SLR(R) 647 [4.2.17], [4.2.18]
S
Saheeda Banu v Osman Mohamed Sabeer (1998) 5 SSAR 164 [20.2.11]
Salbiah bt Abdul Salam v Abdul Shariff s/o Moideen (Appeal No 12/1998) [20.3.8], [20.3.20]
Saniah bt Ali v Abdullah bin Ali [1990] 1 SLR(R) 555 [20.15.20]
Saniah bt Amit v Syed Hussin bin Syed Ali (2002) 2 SSAR 127 [20.7.5], [20.7.32]
Sanimah bt Sudin v Md Kamal bin Md Haniba (1996) 2 SSAR 35 [20.6.6], [20.7.34]
Sanjeev Sharma s/o Shri Sarvjeet Sharma v Surbhi Ahuja d/o Sh Virendra Kumar Ahuja
[2015] 3 SLR 1056 [18.2.2], [18.2.13], [18.3.22], [18.4.28]
Sasaki Aya v Faheem Ul Islam (Originating Summons No 5104 of 1997) [3.3.4]
Saunders v Vautier (1841) Cr & Ph 240 [9.3.1]
Schmidt v Rosewood Trust Ltd [2003] 2 AC 709 [9.4.11], [9.4.12], [9.4.17]
Seah Cheng Hock v Lau Biau Chin [1969] SGHC 9 [2.4.19]
Shafeeq Salim & Anor v Fatimah bt Abud Bin Talib & Ors [2010] SGCA 11 [20.15.11]
Shaik Md Danial bin Abd Manan v Nor Adyanati Adanan (2008) 3 SSAR 163 [20.5.8]
Shajahan bin Alaudin v Rezina Khan d/o Abd Rahim (Appeal No 36/2010) [20.7.49]
Shak Ban bin Md Ludin v Rosnah bt Parman (2000) 2 SSAR 119 [20.7.29]
Shameek Bhushan v Tina Gupta [2014] SGDC 425 [3.4.17]
Sharm Manzana v Alain Roger Leneveu [2003] SGDC 224 [3.5.13]
Shi Fang v Koh Pee Huat [1996] 1 SLR(R) 906 [5.9.7], [15.2.15]
Shiraz Abidally & Anor v Husain Safdar [2007] SGCA 16 [20.15.7]

Sim Hong Boon v Sim Lois Joan [1971–1973] SLR(R) 597 [3.3.1], [3.3.3], [3.3.4]
Sim Tze Long v Chua Suat Kheng [2003] SGDC 125 [13.5.2], [13.5.13]
Simgood Pte Ltd v MLC Shipbuilding Sdn Bhd & Ors [2016] 1 SLR 1129 [9.2.26]
Sin Sai Peng v Soh Kim Lian Florence [2002] 2 SLR(R) 1163 [9.7.13]
Singapore Press Holdings Ltd v Brown Noel Trading Pte Ltd [1994] 3 SLR(R) 114 [14.4.8]
Sithy Fatima Zafrullah v Hareed Mohamed Zafrullah (MSS 1096 of 1983) [18.6.4]
Siti Zaharah bt Nabi v Nanwi bin Salleh (2007) 1 SSAR 127 [20.6.7], [20.7.4]
Sivakolunthu Kumarasamy v Shanmugam Nagaiah & Anor [1987] SLR(R) 702 [4.1.2]
Smith, Re [1928] Ch 915 [9.3.13]
Snook v London and West Riding Investments Ltd [1967] 2 QB 786 [9.2.10]
Sokhvindar Kaur d/o Mohan Singh v Sukhdev Singh s/o Jaswant Singh (District Court
Appeal No 5038 of 1998; Divorce Petition No 3598 of 1996) [10.4.48]
Soon Peck Wah v Woon Che Chye [1997] 3 SLR(R) 430 [5.2.2], [10.5.13], [10.5.17], [12.4.4]
Sottomayor v De Barros (No 2)(1879) 5 PD 94 [18.3.12]
Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 [3.5.1], [3.5.4], [3.5.8], [3.5.12], [18.4.4],
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Stack v Dowden [2007] 2 AC 432; [2007] UKHL 17 [9.7.4], [9.7.5], [9.7.8], [19.2.6]
Stanford v Stanford (2012) 247 CLR 108 [19.3.9]
Stockler v Fourways Estate Ltd [1983] 3 All ER 501 [14.2.9]
Su Sh-Hsyu v Wee Yue Chew [2007] 3 SLR(R) 673 [3.4.36], [3.4.40], [3.4.41]
Subbiah Pillai v Meenatchi d/o Kuppusamy [2012] SGDC 287 [9.6.1]
Sujatha v Prabhakaran Nair [1988] 1 SLR(R) 631 [5.9.9]
Suriayani bt Mardona v Amran Raswa (Summons No 77723) [20.7.36]
Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur [2014] 3 SLR 1284; [2014] SGCA 37 [4.2.94], [4.2.98], [4.2.99], [4.2.102],
[5.8.2], [5.8.3]
Suter v Suter and Jones [1987] 2 FLR 232 [19.3.2]

T
T v T [1996] 2 FLR 357 [9.6.1]
TAA v TAB [2015] SGHCF 1 [12.3.19], [12.3.23]
Tan Ah Tee & Anor (administrators of the estate of Tan Kiam Poh) v Sim Soo Fong
[2009] 3 SLR(R) 957 [2.8.4]
Tan Bee Giok v Loh Kum Yong [1996] 1 SLR(R) 130 [4.3.16]
Tan Bee Giok v Loh Kum Yong [1996] 3 SLR(R) 605; [1996] SGCA 69 [4.3.3], [4.3.18], [7.2.2]
Tan Bee Hoon (also known as Chen MeiYun) v Goh Leong Heng Aris Chen MeiYun
[2005] SGDC 221 [3.4.19]
Tan Beow Hiong v Tan Boon Aik [2010] 4 SLR 870 [11.9.2], [11.9.11]
Tan Hock Chuan v Tan Tiong Hwa [2002] SGHC 117 [13.7.1]
Tan Huan Eng Agnes Florence v Trevor Symes [2005] SGDC 83 [7.4.10], [7.4.34]
Tan Hwee Khoon v Low Eng Tong [2011] SGDC 121 [13.5.8]
Tan Hwee Lee v Tan Cheng Guan and Another Appeal and Another Matter [2012] 4 SLR
785 [4.2.32], [4.2.44]
Tan Kah Imm v D’Aranjo Joanne Abigail [1998] SGHC 247 [12.3.20]
Tan Lee Tiang v Chia Thuan Hwa [1993] SGHC 256 [2.4.23]
Tan Meng Heok v Tay Mui Keow & Anor [1992] SGHC 218 [2.4.4], [2.4.5]
Tan Siew Eng (alias Tan Siew Eng Irene) v Ng Meng Hin [2003] 3 SLR(R) 474 [4.2.89], [4.2.102]
Tan Siew Kee v Chua Ah Boey [1987] SLR(R) 725 [10.5.9]
Tan Sue-Ann Melissa v Lim Siang Bok Dennis [2004] 3 SLR(R) 376; [2004] SGCA 27 [4.3.9], [7.4.38]
Tan Yan Ling Kyna v Chan Wei Zhong Terence [2014] SGHC 195 [2.2.2]
Tan Yen Chuan (mw) v Lim Theam Siew [2014] SGHC 110 [4.3.22]
Tan Ying Hui (Chen Yinghui) v Tan Zhi Xuan [2011] SGDC 49 [13.5.8]
Tang Yuen Fong v Poh Wee Lee [1995] SGHC 149 [2.8.4]
Tasarruf Mevduati Sigorta Fonu v Merrill Lynch Bank & Trust Co (Cayman) Ltd [2012] 1
WLR 1721 [9.2.6], [9.2.7]
TAV v TAW [2015] SGFC 13 [11.9.9], [12.3.13]
Tay Ang Choo Nancy v Yeo Chong Lin & Anor (Yeo Holdings Pte Ltd, miscellaneous
party) [2010] SGHC 126 [9.2.23]
TBI v TBJ [2014] SGDC 127 [14.4.16]
TBX v TBY [2015] SGFC 46 [3.4.21]
TC v TD [2007] SGHC 130 [7.4.23]
TCG v TCH [2015] SGFC 47 [7.4.7]
TCK v TCL [2014] SGDC 460 [13.5.17]
TCP v TCQ [2015] SGFC 57 [16.12.9]
TCS v TCT [2015] SGFC 4 [5.2.11]
TCT v TCU [2015] SGHCF 3 [11.4.2], [11.10.2]
TCV (On behalf of Child, A) v TCU [2015] SGFC 3 [13.7.36]
TDK v TDL [2015] SGFC 1 [2.4.12], [2.4.16]
TDS v TDT [2015] SGHCF 7 [4.2.76], [9.2.26], [9.2.54]
TDT v TDS and Another Appeal and Another Matter [2016] SGCA 35 [4.2.76]
TDX v TDY [2015] 4 SLR 982; [2015] SGHCF 4 [3.5.5], [12.2.21], [14.4.16], [18.1.1],
[18.4.6], [18.4.12], [18.4.14], [18.4.15],
[18.4.24]
TED v TEE [2015] SGFC 88 [13.5.26]
Tee v Tee [1974] 1 WLR 213 [18.2.8]
TEF v TEG [2015] SGFC 38 [2.4.14]
TEG v TEH and Another Matter [2015] SGHCF 8 [4.2.51], [4.2.53], [4.2.65]
TEI v TEH [2015] SGFC 100 [13.5.13]
TEK v TEJ [2015] SGFC 89 [13.5.27]
Tempest v Lord Camoys (1882) 21 Ch D 571 [9.3.10]
Teng Cheng Sin v Law Fay Yuen [2003] 3 SLR(R) 356 [13.7.33]
Teo Hoon Ping v Tan Lay Ying Angeline [2009] SGHC 244 [2.4.11]
Teo Siew Har v Lee Kuan Yew [1999] 3 SLR(R) 410 [14.2.10]
TFW v TFX [2014] SGDC 329 [10.4.38], [10.4.39], [14.4.17]
TGT v TGU [2015] SGHCF 10 [3.5.7]
Tham Khai Meng v Nam Wen Jet Bernadette [1997] 1 SLR(R) 336 [4.2.56], [5.9.7], [5.9.9], [15.2.13]
Thameemul Ansari s/o Jainullabudeen v Farzana Begum d/o OK Md Haniffa (2008) 4

SSAR 175 [20.6.8]
Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 [14.3.8]
THG v LGH [1996] 2 SLR 568 [7.4.27]

[14.2.4]
Third Chandris Shipping Corp v Unimarine SA [1979] QB 645
THL v THM [2015] SGHCF 11 [4.2.59], [4.2.65]
TIG v TIH [2016] 1 SLR 1218 [4.2.65], [14.2.13]
Tiong Swee Eng v Yeo Khee Siang [2015] 3 SLR 1141 [9.7.26]
TIX v TIY [2015] SGFC 146 [10.4.39]
TKI v TKJ [2016] SGFC 13 [14.4.16]
TKM (Singapore) Pte Ltd v Export Credit Insurance Corp of Singapore Ltd [1992] 2
SLR(R) 858 [9.2.13]
TKQ v TKR [2016] SGFC 19 [7.4.28]
TLB v TLC [2016] SGHCF 3 [4.2.88]
TLJ v TLK [2016] SGFC 26 [3.4.44]
TME v TMF [2016] SGHCF 6 [4.2.88]
TMO v TMP [2016] 2 SLR 1198 [4.1.5]
TOG v TOH [2016] SGFC 60 [14.4.16]
TPL v WYY [2012] HKFLR 327 [15.2.20]
TQ v TR and Another Appeal [2009] 2 SLR(R) 961 [4.2.92], [4.2.95], [6.1.5], [6.2.4], [6.2.7],
[6.2.8], [6.2.10], [6.3.6], [6.4.2], [6.4.3],
[6.4.7], [6.6.2], [6.7.1], [6.7.2], [9.2.48],
[9.5.2], [18.4.31]
Tran Jeannie v Chioy Kok Leong [2002] SGDC 22 [12.3.20], [12.3.21]
TRW Inc v Terus Jaya Auto (S) Pte Ltd [1992] SGHC 318 [14.4.10]
Twiss Christopher James Hans v Twiss Yvonne Prendergast [2015] SGCA 52 [4.2.62], [4.2.68]
U
Udny v Udny (1869) LR 1 Sc & Div 441 [2.3.5], [3.2.8]
United Overseas Bank Ltd v Bebe bte Mohammad [2006] 4 SLR(R) 884 [16.12.6]
V
V v V [2011] EWHC 3230 [19.3.5]
Vasugee d/o Subramaniam v Vigian s/o Era Vasenthan [2015] SGFC 24 [3.4.41]
VB v VC [2007] SGHC 186 [10.4.39]
VH v VI & Anor [2008] 1 SLR(R) 742 [3.5.2], [3.5.4], [14.4.2], [18.4.4], [18.4.7],
[18.4.10]
Vicenta Viray Gotengco @ Siti Aishah bt Abdullah v Noor Md bin Hazan (2010) 2 SSAR
209 [20.7.19]
Virsagi Management (S) Pte Ltd v Welltech Construction Pte Ltd and Another Appeal
[2013] 4 SLR 1097 [3.6.1]
VP v VQ [2007] SGDC 286 [7.6.5]

W
W v H [2001] 1 All ER 300 [9.2.24], [9.2.25]
Waddington v Waddington (1920) 36 TLR 359 [2.3.5]
Wan Lai Cheng v Quek Seow Kee and Another Appeal and Another Matter [2012] 4 SLR [4.2.22], [4.2.31], [4.2.32], [4.2.33],
405 [4.3.21], [10.4.54]
Wee Ah Lian v Teo Siak Weng [1992] 1 SLR(R) 347 [4.2.87], [14.2.10]
Wee Chiaw Sek Anna v Ng Li-Ann Genevieve (sole executrix of the estate of Ng Hock
Seng, deceased) & Anor [2013] 3 SLR 801 [9.7.23]
Wee Chiaw Sek Anna v Ng Li-Ann Genevieve (sole executrix of the estate of Ng Hock
Seng, deceased) & Anor [2012] SGHC 197 [9.7.25], [9.7.26]
Weschler Mouantri Andree Marie Louise v Mountri Karl-Michael [2009] SGHC 83 [18.4.10]
Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] 2

All ER 961; [1996] AC 669 [9.1.6], [9.7.22]
Whaley v Whaley [2011] EWCA Civ 617 [9.2.44]
White v White [2001] 1 AC 596 [19.2.1], [19.3.4]
Whittaker, Re (1882) 21 Ch D 657 [19.2.3]
Winans v Attorney-General [1904] AC 287 [18.2.9]
WO v WP [2008] SGDC 43 [13.5.19]
Wong Amy v Chua Seng Chuan [1992] 2 SLR(R) 143 [4.3.14], [7.3.1]
Wong Kam Fong Anne v Ang Ann Liang [1992] 3 SLR(R) 902 [6.6.1]
Wong Kien Keong v Khoo Hoon Eng [2012] SGHC 127 [6.4.6]
Wong Kien Keong v Khoo Hoon Eng [2014] 1 SLR 1342 [4.2.41], [6.8.3], [6.8.4]
Wong Lai Kum v Lim Khee Tee [2012] SGHC 151 [7.4.19], [7.6.7]
Wong Phila Mae v Shaw Harold [1991] 1 SLR(R) 680 [10.5.4], [10.5.16]
Wong Phui Lun Joseph v Yeoh Loon Goit [1977–1978] SLR(R) 305 [18.2.9], [18.2.10], [18.2.18]
Wong Ser Wan v Ng Cheong Ling [2006] 1 SLR(R) 416; [2005] SGHC 218 [4.2.17], [7.4.22]
Wong Siew Boey v Lee Boon Fatt [1994] SGHC 35 [2.4.11], [2.4.12]
Wong Swee Hor v Tan Jip Seng & Ors [2014] SGHC 263 [2.9.3]
Wong Yuk Fong Lily v Menezes Ignatius Augustine (Menezes Daniel Matthew,
intervener) [1992] 1 SLR(R) 252 [4.1.2]
Worldspreads Ltd (in special administration), Re [2015] EWHC 1719 (Ch) [9.4.1]
X
XZ v YA [2008] SGDC 244 [7.5.3]
XZ v YA [2009] SGHC 51 [7.4.12]

Y
Yap Chai Ling & Anor v Hou Wa Yi [2016] 1 SLR 660; [2015] SGHC 296 [3.4.23]
Yap Chai Ling & Anor v Hou Wa Yi [2016] 4 SLR 581; [2016] SGCA 39 [3.4.26]
Yap Chai Ling, Yap Swee Jit v Hou Wa Yi (mw) [2014] SGDC 299 [3.4.22]
Yeo Chong Lin v Tay Ang Choo Nancy and Another Appeal [2011] 2 SLR 1157 [4.2.12], [4.2.32], [4.2.40], [4.2.48],
[4.2.87], [4.2.88], [4.2.90], [9.2.23],
[9.2.24], [9.2.25]
Yeo Chong Lin v Tay Ang Choo Nancy and Another Appeal [2011] SGCA 8 [5.6.3]
Yeo Gim Tong Michael v Tianzon Lolita [1996] 1 SLR(R) 633 [4.2.32]
Yeo Pei Chern (Yang Peizhen Freda) v Isa Seow Zheng Xin @ Mohammed Isa Abdullah
(2007) 4 SSAR 146 [20.3.6], [20.3.10]
Yow Mee Lan v Chen Kai Buan [2000] 2 SLR(R) 659 [4.2.42], [4.3.12], [4.3.22]
Yue Tock Him @ Yee Chok Him v Yee Ee Lim [2011] SGDC 99 [13.5.9], [13.5.12], [13.5.17]
Yusheda bt Yusoff v Md Nazly bin Md Taha Summons No 37499 [20.7.51]
Yusri bin Md Mohsen v Nooraine bt Minhaj (2008) 2 SSAR 172 [20.6.4]
YZ v ZA [2008] SGDC 191 [2.4.18]

Z
Z v A-Z [1982] QB 558 [14.2.9]

Z v X [2012] 5 HKRD 791 [15.2.20]
Z v Z (No 2) [1997] 2 NZLR 258 [19.4.17]
Zainal Abidin bin Hasim v Joriah bt Salleh (2009) 2 SSAR 180 [20.7.5]
Zaini bin Ibrahim v Rafidah bt Abd Rahman (2007) 3 SSAR 135 [20.5.9]
Zainuddin bin Mohamed & Sharifah Alphia bt Syed Ali (Appeal No 19/1997) [20.2.3]
Zaiton bt Hashim v Salleh bin Abd Ghafar (1990) 2 SSAR 111 [20.7.23]
Zakaria bin Mahmud v Rosnah bt Sanjar (2006) 4 SSAR 126 [20.9.3]
Zhou Lijie v Wang Chengxiang [2015] SGHC 316 [4.2.40], [4.2.74]
ZI v ZJ [2008] SGDC 377 [7.4.31]
ZK v ZL [2008] SGDC 376 [3.4.5]
ZO v ZP [2011] SGCA 25 [11.8.5]
ZU v ZV [2009] SGDC 99 [13.5.22]
Zubaidah bt Hassim v Abu Bakar bin Kassim (2000) 2 SSAR 122 [20.7.27], [20.7.40]
Zunaidah bt Sahul Hamid v Cheong Kong Chuan (Appeal No 37/2011) [20.5.3], [20.11.4]

2016 - 10 - 17 PAGE lvii

Table of Statutes
Table of Statutes
SINGAPORE
Administration of Muslim Law Act (Cap 3) [16.2.4], [20.1.1], [20.1.3]
s 2 [20.2.8], [20.3.1], [20.15.15]
s 31 [20.15.11]
s 32 [20.15.11]
s 35 [20.3.11]
s 35(2) [20.3.2], [20.3.5], [20.3.6]
s 35(2)(a)–(e) [20.3.1]
s 35A [4.1.5], [20.11.1]
s 35A(1) [20.11.3]
s 35A(2) [20.5.2], [20.11.3]
s 47(4) [20.3.14], [20.3.19]
s 48(1) [20.3.14]
s 48(2) [20.3.14]
s 49(1) [20.3.14]
s 49(1)(a)–(g) [20.3.16]
s 50 [20.3.18]
s 52(3)(a) [20.5.1]
s 52(6) [20.9.1]
s 52(7) [20.7.1], [20.7.11], [20.7.13]
s 52(8) [20.7.11], [20.7.12], [20.7.13], [20.7.44]
s 52(8)(a) [20.7.36], [20.7.40]
s 52(8)(a)–(m) [20.7.1], [20.7.11], [20.7.13], [20.7.15]
s 52(8)(f) [20.7.37]
s 52(13) [20.10.3]
s 52(14) [20.7.2]
s 53 [1.3.1], [3.1.1], [20.10.1]
s 53A [20.10.4]
s 54(1) [20.3.1]
s 54(2) [20.3.1]
s 55 [20.12.1]
s 56A [20.13.1]
s 60 [20.15.1], [20.15.6], [20.15.16]
s 89 [20.2.2]
s 95(2) [20.2.5]
s 95(3) [20.2.8]
s 96 [20.2.10]
s 102 [20.2.6]
s 102(2) [20.2.13]
s 102(3) [20.2.13]
s 103 [20.2.6], [20.12.1]
s 107 [20.2.13]
s 109 [20.2.7]
s 111 [20.15.1], [20.15.6], [20.15.28]
s 111(1) [20.15.25]
s 111(2) [20.15.25]
s 111(20)(a) [20.15.9]
s 112 [20.15.1]
s 115 [20.15.2]
Administration of Muslim Law (Amendment) Act 1999 [4.1.5]
Adoption of Children Act (Cap 4) [1.3.1], [10.2.1], [11.1.1], [3.1.1], [20.14.4]
Bankruptcy Act (Cap 20)
s 166 [16.12.5]
Central Provident Fund Act (Cap 36) [5.6.12], [16.4.6]
s 27 [5.6.12]
ss 27A–27I [5.6.16]
ss 27D–27E [5.6.14]
s 77 [5.6.12]
Central Provident Fund (Investment Schemes) Regulations
(Cap 36, Reg 9) [16.4.6]
Children and Young Persons Act (Cap 38) [1.4.8], [10.2.1], [11.1.1]
Constitution of Singapore
art 152(2) [20.1.2], [20.1.3]
Conveyancing and Law of Property Act (Cap 61)
s 73 [9.3.2]
Criminal Procedure Code (Cap 68) [1.4.8], [13.4.1], [18.7.1]
s 3(1)(a) [13.7.18]
s 3(2) [13.7.18]
s 116(1) [13.7.18]
s 116(6) [13.7.19]
s 116(7) [13.7.19]
s 120 [13.7.20]
Part VII [13.7.18]
Part VIII [7.6.4]
Debtors Act (Cap 73) [16.2.5]
Evidence Act (Cap 97) [11.7.1]
s 109 [2.6.1]
s 110 [2.6.1]
s 116(g) [4.2.84], [8.8.28]
Evidence (Civil Proceedings in Other Jurisdictions) Act (Cap 98)
s 5(1) [9.2.49]
Family Justice Act 2014 (No 27 of 2014) [1.1.1], [1.9.4], [11.1.1], [17.4.1], [19.1.1], [20.15.2]
s 2 [3.1.1]
s 2(1) [1.3.1]
s 3 [1.4.1], [3.1.3]
s 4 [1.4.2], [3.1.3]
s 10 [1.6.2]
s 10(1) [11.6.17], [13.7.31]
s 10(2) [1.6.2]
s 10(3)(a) [1.7.2]
s 10(3)(b) [1.7.2]
s 10(4)(a) [1.7.3]
s 10(4)(b) [1.7.3]
s 10(5) [1.7.3]
s 11(2) [11.9.7]
s 12(1) [1.4.3], [3.1.2]
s 12(2) [1.4.3]
s 12(3) [1.4.3]
s 13 [1.4.6]
s 13(1) [3.1.4]
s 14 [1.4.6]
s 14(1) [3.1.4]
s 15(1) [1.4.9]
s 15(2) [1.4.9]
s 15(3) [1.4.9]
s 16 [1.4.10]
s 22 [1.4.4], [3.1.6], [12.4.2], [14.1.2]
s 22(1)(a) [1.4.7], [14.1.4]
s 22(1)(b) [1.4.7], [14.1.4]
s 23(1) [1.4.5]
s 23(2) [1.4.5]
s 23(3) [1.4.5]
s 24(1) [1.4.5]
s 24(2) [1.4.5]
s 25 [14.1.2]
s 26(1) [1.4.7], [14.1.4]
s 26(2) [1.4.7], [14.1.4]
s 26(9) [17.4.1]
s 29 [5.1.2]
s 29(1) [1.5.1]
s 29(2) [1.5.2]
s 31 [5.7.2], [5.7.4]
s 35 [1.4.8]
s 36 [1.6.2]
s 46 [1.8.1]
s 46(3) [1.8.2]
s 47(11) [1.3.1], [3.1.1]
Family Justice Rules 2014 [8.2.1], [10.2.2], [11.1.1], [11.7.1], [12.3.13], [19.1.1],
[20.15.2]
r 8(a) [13.7.37]
r 18(2)(b) [11.6.26]
r 20 [7.6.4]
r 20(2)(d) [18.7.1]
r 22 [17.4.1]
r 22(1) [8.1.2]
r 22(2) [8.1.3]
r 22(3) [8.1.4]
r 22(5) [8.1.5]
r 30 [10.6.3], [11.8.11]
r 31 [11.5.8], [11.8.13], [11.8.17]
r 31(3) [11.8.15]
r 32 [11.8.17]
r 33 [11.8.18]
r 35 [10.7.2], [11.7.14]
r 35(3) [11.7.14]
r 36 [11.7.13], [11.7.15]
r 39 [8.3.3]
r 39(4) [8.3.4]
r 40 [8.3.7]
r 40(1) [18.5.7]
r 40(5) [8.3.9]
r 41 [8.4.1]
r 43(1) [8.4.2]
r 43(2) [8.4.2]
r 43(3) [8.4.2]
r 43(4) [8.4.2]
r 43(5) [8.4.2]
r 44 [8.4.3]
r 44(2) [8.4.4]
r 46 [8.3.10]
r 46(1) [8.3.10]
r 46(3) [8.3.11], [8.3.14]
r 46(4) [8.3.12], [8.3.14]
r 47(1) [2.4.4], [8.4.9]
r 48 [8.4.17]
r 48(1) [8.4.10]
r 48(2) [8.4.11]
r 48(3) [8.4.12]
r 48(5) [8.4.13]
r 49(1) [8.4.14]
r 49(3) [8.4.15]
r 49(4) [8.4.16]
r 50 [8.4.17]
r 52 [11.6.13]
r 52(2) [11.6.13]
r 53 [8.4.22]
r 55(1) [2.4.24]
r 55(2) [2.4.24]
r 56 [8.4.27]
r 57 [8.4.32]
r 61 [8.7.1]
r 63 [8.8.9]
r 63(1) [8.8.16]
r 63(2) [8.8.16]
r 63(4) [8.8.10]
r 63(5) [8.8.11]
r 63(6) [8.8.11]
r 63(7) [8.8.13]
r 63(9) [8.8.17]
r 64 [8.8.18]
r 69 [8.8.9]
r 69(1) [8.8.19]
r 69(3) [8.8.19]
r 69(4) [8.8.19]
r 69(5) [8.8.20]
r 69(8) [8.8.24]
r 69(10) [8.8.23]
r 75 [4.2.84], [8.8.26]
r 81(2) [8.8.5]
r 81(3) [8.8.5]
r 83 [17.7.6]
r 87 [4.1.1]
r 89(1) [8.8.2]
r 90(1)(b) [9.6.10]
r 90(3)(a) [9.6.10]
r 90(4) [9.6.10]
r 93 [11.6.3]
r 93(1) [11.6.29]
r 96 [8.9.2]
r 96(3)(a) [3.4.2]
r 96(3)(b) [3.4.2]
r 99A(2) [13.7.37]
r 99A(2)(a) [13.7.37]
r 99A(2)(b) [13.7.37]
r 99A(2)(c) [13.7.37]
r 99A(2)–(7) [13.7.37]
r 99A(4) [13.7.37]
r 99A(5) [13.8.38]
r 99A(6) [13.8.38]
r 99A(7) [13.8.38]
r 99A(8)(a) [13.8.38]
r 99A(8)(b) [13.8.38]
r 99A(9) [13.7.37]
r 100 [13.7.2]
r 101 [13.7.2]
r 119(2) [18.7.3]
r 131C(a) [13.7.18]
r 153 [11.6.26]
r 153(1)(a) [12.4.3]
rr 162–174 [10.9.2]
rr 306–309 [11.6.34]
r 310 [11.6.34]
r 327 [11.6.34]
r 351 [9.6.1]
r 517 [9.6.5]
r 518 [9.6.5]
r 554 [11.6.17]
r 566 [8.6.3]
r 572(1) [3.4.35]
r 592 [11.7.1]
r 642 [11.7.1]
r 646 [11.7.1]
r 694 [11.9.2]
r 694(a) [11.9.8]
r 696(2)(b) [11.9.8]
r 759(2)(b) [11.9.3]
r 760(2) [11.9.5]
r 850 [15.3.1], [15.4.1]
r 851 [5.9.1], [15.3.2]
r 851(2) [5.9.1], [5.9.2]
r 852 [15.3.4]
r 852(2) [15.2.2]
r 853(1) [15.3.8]
r 853(3) [5.9.1]
r 853(4) [5.9.1], [15.3.8]
r 854 [5.9.3], [15.2.2], [15.3.9]
r 854(a)–(d) [15.3.9]
r 854(b) [15.2.2]
r 854(d) [15.2.2]
r 856 [5.9.4], [15.2.2], [15.3.10], [15.3.18]
r 857 [5.9.4], [15.2.2], [15.3.11]
r 858 [15.3.12]
r 859 [15.3.13]
r 861 [15.3.14]
r 861(5) [15.3.15]
r 863 [15.3.16]
r 866 [15.3.19]
r 867 [15.3.20]
r 868 [15.3.21]
r 870 [15.3.22]
r 872 [15.3.24]
r 873 [15.3.25]
r 876 [15.3.26]
r 877 [15.3.27]
r 877(2)(a)–(d) [15.3.27]
r 878 [15.3.28]
r 879 [15.3.31], [15.3.32]
r 879(4) [15.3.31]
r 880 [15.3.32]
r 881 [15.3.33]
r 881(1) [15.3.33]
r 881(2) [15.3.34]
r 884(1) [15.3.35]
r 884(2) [15.3.36]
r 885 [15.3.37]
r 885(2) [15.3.37]
r 885(3) [15.3.37]
r 902 [11.6.13]
Part 3 (rr 22–28) [11.6.15]
Part 18 Division 25 (rr 516–533) [14.1.2]
Part 18 Division 27 (rr 540–545) [14.1.2]
Part 18 Division 50 (rr 758–766) [11.9.2]
Sixth Schedule [13.7.18]
Guardianship of Infants Act (Cap 122) [1.3.1], [3.1.1], [10.2.1], [11.1.1], [12.2.10], [20.5.1]
s 3 [10.5.1], [10.5.7], [11.6.30]
s 4 [11.6.30]
s 5 [11.6.25], [11.6.27], [11.6.30], [11.6.32], [11.8.11], [12.3.7],
[12.3.8], [12.3.18], [12.4.6], [12.4.7]
s 7 [11.6.26], [12.4.7]
s 10 [11.6.26], [12.4.7]
s 11 [12.3.18]
s 14 [12.4.6], [12.4.7]
Housing and Development Act (Cap 129)
s 49A [5.6.8]
s 51 [9.7.3]
Inheritance (Family Provision) Act (Cap 138) [3.1.1], [1.3.1]
Insurance Act (Cap 142)
s 49L [20.15.23]
s 49M [20.15.23]
First Schedule para 5 [16.4.6]
First Schedule para 6 [16.4.6]
International Child Abduction Act (Cap 143C) [1.3.1], [3.1.1], [10.2.1], [10.9.2], [11.1.1], [12.2.1]
s 8 [12.2.12], [14.4.15], [16.4.1]
s 8(3) [12.2.24]
s 11 [12.2.13]
s 13 [12.2.13]
s 14 [16.4.1]
s 17 [16.4.1]
s 18 [16.3.1]
s 81 [10.9.5]
Part III (ss 8–14) [14.1.3]
Schedule [12.2.1], [12.2.5]
Schedule Article 12 [10.9.3]
Schedule Article 13 [10.9.4]
International Child Abduction (Contracting States) Order 2011
Schedule [12.2.2]
Intestate Succession Act (Cap 146) [1.3.1], [3.1.1], [20.15.1]
Land Titles Act (Cap 157)
ss 115–130 [14.1.2]
Legal Aid and Advice Act (Cap 160) [16.2.2]
s 2 [16.16.2]
s 3(1) [16.17.1]
s 3(2) [16.17.1]
s 3(3) [16.17.1]
s 3(4) [16.17.1]
s 4 [16.18.1]
s 4(2) [16.18.2]
s 4(2A) [16.18.2]
s 4(3) [16.18.3]
s 4(4) [16.12.3]
s 4(5) [16.18.4]
s 5(1) [16.2.4], [16.4.1]
s 6(1) [16.5.1]
s 6(2) [16.16.2]
s 6(3)(a) [16.16.4], [16.16.7]
s 6(3)(b) [16.16.5]
s 6(4) [16.16.6]
s 6(5) [16.16.8]
s 7(a)–(c) [16.5.4]
s 7(d) [16.5.5]
s 7(e) [16.8.1]
s 8(1) [16.4.3]
s 8(2)(a) [16.4.2], [16.4.3]
s 8(2)(b) [16.4.2]
s 8(2)(b)(i) [16.4.5], [16.4.8]
s 8(3) [16.4.13]
s 8(4) [16.4.15]
s 9 [16.13.2]
s 9(1) [16.12.12]
s 9(2) [16.13.2]
s 9(5) [16.13.2]
s 9(6) [16.12.12]
s 10(1) [16.14.1]
s 10(2) [16.14.2]
s 10(3) [16.14.2]
s 10(4) [16.14.2]
s 10(5) [16.14.1]
s 11 [16.7.1]
s 12(1) [16.5.7]
s 12(3) [16.5.7]
s 12(4)(a) [16.12.4]
s 12(4)(b) [16.12.4]
s 12(4)(c) [16.12.6]
s 12(4)(d) [16.12.5]
s 12(5) [16.12.16]
s 12(6)(a) [16.13.5]
s 12(6)(b) [16.13.5]
s 13(1) [16.12.14]
s 13(2) [16.12.14]
s 13(2A) [16.12.14]
s 13(3) [16.12.15]
s 13(5) [16.12.15]
s 14(1) [16.12.7]
s 14(2) [16.12.7]
s 14(3) [16.12.7]
s 14(4) [16.12.8]
s 14(5) [16.12.8]
s 15(1) [16.18.11]
s 15(2) [16.18.11]
s 16(1) [16.13.3]
s 16(2) [16.13.3]
s 16(4) [16.13.4]
s 16(5) [16.13.4]
s 17 [16.11.1]
s 18 [16.6.2]
s 20(1) [16.3.1]
s 20(2) [16.2.6]
s 20(4)(a) [16.3.2]
s 21 [16.10.1]
s 22(1) [16.12.2]
s 22(2) [16.12.3]
First Schedule, Part I [16.2.4]
First Schedule, Part II [16.2.4]
Second Schedule s 1 [16.4.5], [16.4.8]
Second Schedule s 4 [16.4.6], [16.4.9]
Second Schedule s 5 [16.4.10]
Second Schedule s 8(1) [16.4.7]
Legal Aid and Advice (Amendment) Ordinance 1958 [16.19.1]
Legal Aid and Advice Regulations [16.2.2]
reg 2A [16.9.1]
reg 3(1) [16.5.4]
reg 3(2) [16.5.4]
reg 4(1) [16.16.2]
reg 4(3) [16.16.3]
reg 5(1) [16.6.1], [16.6.2]
reg 5(2) [16.6.1]
reg 5(3) [16.12.12]
reg 5(4) [16.5.6]
reg 5(5) [16.5.7]
reg 7 [16.8.3]
reg 7(3) [16.8.3]
reg 7(5) [16.8.3]
reg 7(6) [16.8.3]
reg 7(7) [16.8.4]
reg 8(1)(a) [16.14.4]
reg 8(1)(b) [16.14.4]
reg 8(1)(c) [16.14.4]
reg 8(1)(d) [16.14.4]
reg 8(1)(e) [16.14.4]
reg 8(1)(f) [16.14.4]
reg 8(1)(g) [16.14.4]
reg 8(1)(h) [16.14.4]
reg 8(1)(i) [16.14.4]
reg 8(2) [16.14.5]
reg 8(3) [16.14.6]
reg 8(5) [16.14.1]
reg 8(7) [16.14.6]
reg 9(1) [16.14.2]
reg 9(2) [16.14.2]
reg 9(3) [16.14.3]
reg 9(4) [16.13.2], [16.14.3]
reg 9(5)(a) [16.14.3]
reg 9(5)(b) [16.14.3]
reg 10 [16.9.1]
reg 10(2) [16.18.8], [16.18.9]
reg 10(4) [16.9.1]
reg 11(1) [16.15.1]
reg 11(2) [16.15.1]
reg 12(2) [16.18.12]
reg 12(3) [16.18.12]
reg 12(4) [16.18.12]
reg 12(6) [16.18.12]
reg 12(7) [16.18.13]
reg 12(8) [16.18.13], [16.18.14]
reg 12(9) [16.18.12]
reg 12(10) [16.18.12]
reg 13(2) [16.9.2]
reg 14(1) [16.13.1]
reg 14(3) [16.13.1]
reg 14(4) [16.13.5]
reg 14(5) [16.13.6]
reg 15(1) [16.12.16], [16.18.6], [16.18.7], [16.18.8], [16.18.9]
reg 15(2) [16.18.6]
reg 15(3) [16.18.6]
reg 15(5) [16.18.5]
Schedule Form 1 [16.5.4]
Schedule Form 3 [16.5.7]
Legal Profession Act (Cap 161) [15.3.25]
s 2 [1.4.9], [16.17.1]
Legitimacy Act (Cap 162) [1.3.1], [3.1.1], [11.1.1], 20.14.6]
Maintenance of Parents Act (Cap 167B)
s 10 [1.3.1], [3.1.1]
Maintenance Orders (Facilities for Enforcement) Act (Cap 168) [1.3.1], [3.1.1], [18.5.10]
s 8 [18.5.11]
Maintenance Orders (Reciprocal Enforcement) Act (Cap 169) [1.3.1], [3.1.1], [18.5.10]
s 3 [18.7.6]
s 3(1) [18.7.5]
s 4 [18.6.5]
s 5 [18.7.7]
ss 6–8 [18.5.11]
s 19 [18.5.10]
Mental Capacity Act (Cap 177A) [3.1.1], [15.3.32]
Mental Disorders and Treatment Act (Cap 178) [20.12.3]
s 9(1) [20.12.3]
Mental Health (Care and Treatment) Act (Cap 178A) [1.3.1], [3.1.1]
Mohammedan Marriage Ordinance 1880 [20.1.2]
Mohammedan Ordinance 1923 [20.1.2]
Muslim Marriage and Divorce Rules (1999)
r 4 [20.2.8]
r 5 [20.2.10]
r 11(2) [20.12.3]
r 42 [20.12.2]
Muslim Ordinance [20.1.2]
Parliamentary Elections Act (Cap 218) [16.2.5]
Penal Code (Cap 224) [13.1.2], [13.4.4], [16.17.1]
Presidential Elections Act (Cap 240A) [16.2.5]
Probate and Administration Act (Cap 251) [1.3.1], [3.1.1], [20.15.2]
Protection from Harassment Act (Cap 256A) [13.1.2]
s 11 [13.1.2]
s 14 [13.1.2]
Rules of Court (Cap 322, R 5)
O 15 r 4 [9.6.1]
O 35 r 2 [3.4.16], [3.4.34], [3.4.35]
O 52 r 2(2) [11.9.3]
O 59 r 3 [15.3.6]
O 59 r 3(2) [15.3.7]
O 92 r 4 [20.11.3]
Status of Children (Assisted Reproduction Technology) Act 2013 [3.1.1]
Supreme Court of Judicature Act (Cap 322) [1.4.2]
s 16 [3.1.6]
s 17 [14.1.2]
s 17(a) [1.4.4], [3.1.6]
s 17(d) [1.4.4], [3.1.6], [12.4.2]
s 17(e) [1.4.4], [3.1.6]
s 17(f) [1.4.4], [3.1.6]
s 17A [1.4.4], [3.1.6], [4.1.1], [4.1.5]
s 17A(2) [1.3.1], [3.1.1], [20.11.1]
s 17A(3)(a) [20.11.3]
s 18 [14.1.2]
First Schedule Item 5 [14.1.2]
First Schedule Item 14 [14.1.2]
Trust Companies Act (Cap 336)
s 2 [9.4.14]
s 49 [9.4.14]
Third Schedule [9.4.14], [9.2.49]
Voluntary Sterilization Act (Cap 347) [1.3.1], [3.1.1]
Wills Act (Cap 352)
s 3(1) [20.15.9]
s 3(2)(a)–(d) [20.15.9]
Women’s Charter (Cap 353) [1.3.1], [2.1.6], [2.1.7], [3.1.1], [3.2.2], [7.1.1], [10.2.1],
[11.1.1], [12.2.10], [16.2.4], [19.1.4], [20.1.1]
s 2 [4.3.1], [5.1.6], [5.5.3]
s 3 [18.3.26]
s 3(1) [3.2.3], [18.3.19], [18.3.20], [18.3.25], [18.3.26], [18.6.3]
s 3(2) [3.2.1], [13.1.1], 20.14.1]
s 3(4) [3.2.3], [20.2.9]
s 3(5) [2.3.3], [2.3.4], [3.2.3], [18.2.4]
s 4 [2.9.2]
s 5 [2.9.2], [18.3.25]
s 9 [18.3.25]
s 10 [18.3.25]
s 11 [18.3.25]
s 12 [18.3.25]
s 17(2A) [4.3.26]
s 17(2B) [4.3.26]
s 20(4) [16.5.1]
s 22(1) [18.3.4]
s 26 [14.1.3]
s 35A(1) [20.5.2]
s 46(1) [4.2.4], [9.1.9]
s 47 [18.2.4]
s 47(1) [18.2.13]
s 50 [17.2.1], [17.3.3]
s 50(1) [17.3.3]
s 50(2) [17.3.3]
s 50(3A) [5.2.18]
s 50(3A)–(3E) [11.3.1]
s 50(3B) [11.5.3]
s 59 [4.1.1], [9.7.1]
s 64 [13.2.1], [13.2.3], [13.2.4], [13.3.7], 13.5.5]
ss 64–67 [7.6.4], [13.1.1], [13.7.1], [13.7.3], [14.1.2], [20.14.3]
s 65 [13.7.16], [13.7.23]
s 65(1) [13.3.1], [13.5.1]
s 65(2)(a) [13.2.1]
s 65(2)(b) [13.2.1]
s 65(2)(c) [13.2.2]
s 65(3) [13.3.1]
s 65(4) [13.3.2]
s 65(5) [13.3.9], [13.5.4]
s 65(5)(a) [13.3.3]
s 65(5)(b) [13.3.3]
s 65(5)(c) [13.3.3], [13.3.10]
s 65(6) [13.3.9]
s 65(8) [13.4.1], [13.4.3]
s 65(11) [13.4.1]
s 66 [13.3.3]
s 66(1) [13.3.5], [13.5.3]
s 66(1)(a) [13.3.5]
s 66(1)(b) [13.3.5]
s 66(2)(a) [13.3.6]
s 66(2)(b) [13.3.6]
s 66(3) [13.3.6]
s 67(1) [13.6.1], [13.8.38]
s 68 [5.3.1], [10.4.49], [10.4.50]
ss 68–71 [7.1.5], [18.5.11], [18.7.1], [20.14.2]
s 69 [7.1.2], [7.4.2], [7.6.4], [7.6.7], [18.4.11], [18.6.3], [18.6.6],
[18.7.1]
s 69(1) [18.6.2]
s 69(2) [5.3.6], [10.4.52], [10.4.53]
s 69(3) [10.4.55]
s 69(4) [5.3.2], [10.4.56]
s 69(5) [5.3.3], [11.5.15]
s 71 [20.10.2]
s 71A–71C [20.10.2]
s 72 [3.4.31], [7.1.2], [7.1.5], [7.2.4], [7.4.2], [7.4.5], [7.4.6],
[7.4.8], [7.6.4], [7.6.6]
s 72(1) [10.4.60]
s 73 [7.1.8], [7.1.9], [7.4.3], [7.4.13]
s 79 [7.6.4]
s 79(4) [13.7.1], [13.7.3], [18.6.6], [18.7.1], [18.7.3]
s 92 [2.4.17], [4.2.55], [5.2.1], [10.3.2]
s 93 [2.3.1], [18.4.3], [18.4.25], [18.4.30], [18.5.2], [18.5.6]
s 93(1) [2.3.8], [3.2.4], [18.2.25], [18.4.1]
s 93(1)(b) [2.3.7], [18.2.22], [18.2.23]
s 93(2) [2.3.8], [18.2.25], [18.4.2]
s 94 [8.3.1], [8.3.2]
s 94(1) [2.2.1]
s 94A [11.5.5]
s 95 [8.5.5]
s 95(2) [2.2.1]
s 95(3)(b) [2.4.6], [2.4.11]
s 95(3)(d) [2.4.18], [2.4.24]
s 95(3)(e) [2.4.18]
s 95(5) [2.4.7]
s 95(6) [2.4.15]
s 95(7) [2.4.17]
s 99(1) [2.5.1], [3.4.1], [3.4.8]
s 99(2) [2.5.2], [2.5.4], [3.4.8], [3.4.13], [3.4.19], [3.4.23], [3.4.26]
s 99(3) [3.4.20]
s 100(1) [2.6.1]
s 100(2) [2.6.1]
s 101 [8.5.5]
s 101(1) [2.7.1]
s 101(2) [2.7.2]
s 101(3) [2.7.3]
s 102(1) [2.7.4]
s 102(2) [2.7.4]
s 103 [2.7.5]
s 105 [2.8.2], [8.5.8], [18.3.21], [18.3.24]
s 105(a) [18.3.25]
s 105(b) [18.3.23]
s 105(b)(ii) [18.3.23]
s 106 [2.8.3], [8.5.8]
s 106(b) [2.8.4]
s 106(c) [2.8.5]
s 106(d) [2.8.5]
s 106(e) [2.8.5]
s 106(f) [2.8.5]
s 107(1) [2.8.6]
s 107(2) [2.8.5]
s 108 [18.1.3], [18.3.8], [18.3.21], [18.3.22], [18.3.23], [18.3.24],
[18.4.27], [18.5.2]
s 110(2) [2.8.7]
s 111(1) [2.8.7]
s 111(2) [2.8.7]
s 112 [4.1.1], [4.2.1], [4.2.2], [4.2.15], [4.2.36], [4.2.42], [4.2.76],
[4.3.9], [4.3.10], [5.6.1], [5.6.22], [6.2.3], [6.4.1], [6.8.1],
[6.9.4], [9.2.49], [9.3.2], [9.5.1], [9.7.17], [18.4.21], [18.4.30]
s 112(1) [3.4.32], [4.2.39], [5.1.7], [9.1.8], [9.1.9], [9.5.1], [9.7.17]
s 112(1)–(2) [20.7.1]
s 112(2) [4.2.46], [4.2.49], [4.2.57], [4.2.59], [5.8.1], [6.8.6], [9.1.8]
s 112(2)(a) [4.2.50]
s 112(2)(c) [4.2.55]
s 112(2)(d) [4.2.54]
s 112(2)(e) [4.2.93], [4.2.96], [5.8.1], [6.2.3], [6.2.4], [6.4.1], [6.4.2],
[6.4.3], [6.4.4], [6.4.6], [6.8.1], [9.5.1]
s 112(2)(g) [4.2.54]
s 112(2)(h) [4.2.35], [9.2.40]
s 112(3) [9.5.1]
s 112(4) [3.4.28]
s 112(10) [4.2.8], [4.2.22], [4.2.23], [4.2.24], [4.2.31], [4.2.32], [4.2.35],
[4.2.38], [5.6.1], [9.2.50], [20.7.2]
s 112(10)(a) [4.2.16], [4.2.23], [4.2.24]
s 112(10)(b) [4.2.11], [4.2.23], [4.2.24]
s 113 [4.3.1], [4.3.9], [4.3.10], [5.1.6], [5.5.1], [7.2.2], [18.4.30],
[18.6.2]
s 113(1)(a) [4.3.27], [4.3.28], [7.1.3], [7.2.3]
s 113(1)(b) [5.1.5], [4.3.27], [7.1.3], [7.2.3]
s 114 [4.3.11], [7.4.2], [20.7.1]
s 114(1) [4.3.8], [5.3.6], [5.5.1]
s 114(1)(a) [4.2.35], [4.3.10], [9.2.40], [9.3.14]
s 114(2) [4.3.12], [4.3.15], [5.4.2]
s 115(1) [4.3.17], [5.4.3]
s 115(2) [4.3.7], [5.4.3]
s 116 [4.3.23]
s 117 [4.3.7], [5.5.2]
s 117(a)(i) [5.4.4]
s 117(a)(ii) [5.4.4], [5.4.5]
s 118 [3.4.30], [4.3.4], [4.3.29], [7.1.3], [7.2.5], [7.4.1], [7.4.2],
[7.4.5], [7.4.8]
s 119 [7.1.6], [7.4.3]
s 121(1) [4.3.25]
s 121(2) [4.3.25]
s 121(3) [4.3.24]
s 121B [5.1.8], [8.3.5], [8.3.8], [18.5.9]
s 121C [4.1.4], [5.1.8], [18.5.6]
s 121D [4.1.4], [5.1.8], [8.3.5], [8.3.6], [18.5.6], [18.5.7]
s 121D(2) [18.5.7]
s 121F [4.1.4]
s 121F(2) [18.5.7]
s 121GG [20.8.1]
s 122 [5.2.1], [10.3.1], [11.5.15], [12.4.5]
ss 122–132 [3.3.1]
s 123 [3.4.3], [3.4.6], [10.1.4]
s 123(1) [3.4.4]
s 123(1)(a) [3.4.3]
s 123(1)(b) [3.4.3]
s 123(2) [3.4.4]
s 123(2)(a) [3.4.3]
s 123(2)(b) [3.4.3]
s 124 [5.1.3], [10.4.2], [11.5.14], [11.6.3], [11.6.21], [11.6.35]
s 125 [10.5.7], [11.2.1]
s 125(2) [5.2.2], [10.5.10], [11.2.2], [11.8.1]
s 125(2)(b) [11.8.5]
s 126 [11.5.33], [12.3.19]
s 126(1) [10.4.4], [10.4.10]
s 126(2) [5.2.6]
s 126(2)(c) [10.4.30]
s 126(2)(d) [10.4.30]
s 126(2)(e) [10.4.17]
s 126(3) [10.4.17], [10.8.1], [12.3.5]
s 126(3)–(5) [5.2.8]
s 126(4) [12.3.5]
s 127 [5.1.4], [18.4.30]
s 127(1) [3.4.31], [7.1.5], [10.4.58]
s 127(2) [3.4.31], [7.1.5], [7.1.8], [7.4.4]
s 128 [3.4.29]
s 130 [10.6.2], [17.3.15]
s 131 [12.3.4], [12.3.6], [12.3.18], [14.1.3], [14.4.13]
s 131(1) [10.4.18], [10.4.19], [12.3.7], [12.3.8]
s 131(2) [10.4.20], [12.3.8], [14.4.14]
s 132 [9.6.5], [14.1.2]
s 136 [3.4.8]
s 138 [2.4.9]
s 181 [2.9.1], [2.9.3]
s 183(2)(b) [18.3.18]
Part IX [18.5.3]
Part X [7.1.5], [7.4.1], [7.4.4], [7.6.1], [7.6.6], [7.6.7], [8.5.5], [8.5.8],
[18.4.30]
Part X Chapter 1 [2.3.1]
Part X Chapter 4A [4.1.4], [4.1.5], [18.5.6], [18.5.7]
Women’s Charter (Amendment) Act 1967 [2.1.7]
Women’s Charter (Amendment) Act 1976 [20.2.9]
Women’s Charter (Amendment) Act 1980 [2.1.7], [18.3.25]
Women’s Charter (Amendment) Act 1996 [2.1.7], [18.3.25]
Women’s Charter (Amendment) Act 2011 [2.1.7], [2.1.8], [4.1.4]
Women’s Charter (Amendment) Act 2016 [4.3.1], [5.1.6], [13.2.2], [13.7.1], [13.7.3]
Work Injury Compensation Act (Cap 354) [16.2.4]
AUSTRALIA
Child Support (Assessment) Act 1989
s 3 [19.4.12]
s 5 [19.4.12]
s 24 [19.4.12]
s 35 [19.4.14]
s 36 [19.4.14]
s 37 [19.4.14]
s 38 [19.4.14]
s 39 [19.4.14]
s 40 [19.4.14]
s 80C [19.4.15]
s 80E [19.4.15]
s 117 [19.4.15]
s 136 [19.4.15]
s 143 [19.4.12]
Family Law Act 1975 [19.2.8]
s 4 [19.3.10]
s 66B [19.4.16]
s 66E [19.4.16]
s 66F [19.4.16]
s 66J [19.4.16]
s 66L [19.4.16]
s 72(1) [19.4.9]
s 74(1) [19.4.8]
s 75 [19.3.9]
s 75(2) [19.4.10]
s 77A [19.4.11]
s 79 [19.3.9], [19.4.10]
s 80 [19.3.10]
s 81 [19.3.8]
s 82 [19.4.11]
s 83 [19.4.11]
s 90G [19.3.12]
s 90SF [19.4.8]
s 90SM [19.3.9]
s 90ST [19.3.8]
Part VIIIA [19.3.12]
Family Law Rules 2004
r 13.01 [19.3.11]
r 13.04 [19.3.11]
BAHAMAS
Trustee Act 1998
s 3(2) [9.2.46]
CAYMAN ISLANDS
Trust Law
s 14 [9.2.46]
FRANCE
Civil Code [18.4.13]
HONG KONG
Matrimonial Proceedings and Property Ordinance (Cap 192)
s 6(1)(c) [9.5.1]
Rules of the High Court 2011 (Cap 4A)
O 62 r 1 [15.2.20]
JERSEY
Trusts (Jersey) Law
Article 9A [9.2.46]
NEW ZEALAND
Child Support Act 1991
s 2 [19.4.17]
s 4 [19.4.21]
s 5 [19.4.21]
s 7 [19.4.21]
s 30 [19.4.22]
s 58(2) [19.4.17]
s 68(2) [19.4.17]
Part 2 [19.4.22]
Part 3 [19.4.22]
Family Proceedings Act 1980 [19.4.17]
s 63(1) [19.4.18]
s 63(2) [19.4.18]
s 63(3) [19.4.18]
s 64(1) [19.4.19]
s 64(2) [19.4.19]
s 64(4) [19.4.19]
s 64A [19.4.19]
Property (Relationships) Act 1976 [19.3.13]
s 1N [19.3.14]
s 2 [19.3.15]
s 8 [19.3.16], [19.3.17]
s 9A [19.3.17]
s 9 [19.3.17]
s 10 [19.3.17]
s 11(1) [19.3.18]
s 13 [19.3.19]
s 14 [19.3.18]
s 15 [19.3.18]
s 21 [19.3.19]
s 21A [19.3.19]
s 21B [19.3.19]
s 21F [19.3.19]
s 32(1) [19.4.20]
UNITED KINGDOM
Child Maintenance and Other Payments Act 2008 [19.4.6]
Child Support Act 1991
s 8 [19.4.6]
Children Act 1989
s 15 [19.4.7]
Schedule 1 [19.4.7]
Civil Partnership Act 2004
s 70A [19.2.4]
Schedule 5 [19.3.2], [19.3.3], [19.3.4]
Domestic Proceedings and Magistrates’ Courts Act 1978
s 1 [19.4.2]
s 2 [19.4.2], [19.4.3]
Equality Act 2010
s 199 [9.7.11]
s 200 [19.2.4]
Family Law Act 1996
s 40 [19.4.5]
Family Procedure Rules 2010 (L 17, No 2955)
r 20.3 [9.6.5]
r 20.4 [9.6.5]
Family Proceedings Rules 1999 [19.3.6]
Family Proceedings (Amendment) Rules 2006 [15.2.26]
Land Registration Act 2002 [19.2.5]
Law of Property Act 1925
s 52(1) [19.2.5]
Law of Property (Miscellaneous Provisions) Act 1989
s 2 [19.2.5]
Maintenance Orders (Facilities for Enforcement) Act 1920 [18.5.10]
Married Women’s Property Act 1964
s 1 [19.2.4]
Matrimonial and Family Proceedings Act 1984
s 13(1) [18.5.7]
Matrimonial Causes Act 1973 [18.4.27], [19.3.6]
ss 21–24D [19.3.1]
s 22 [19.4.4]
s 22A(4) [19.4.4]
s 23 [19.3.2]
s 24 [9.2.28], [19.3.2]
s 24(1)(c) [9.5.1]
s 24A [19.3.2]
s 25(1) [19.3.2]
s 25(2) [19.3.3]
s 25(4) [19.4.7]
s 25A(1) [19.3.4]
s 27 [19.4.3]
s 31(7) [19.3.7]
Matrimonial Proceedings and Property Act 1970
s 37 [19.2.5]

2016 - 10 - 17 PAGE 1

Chapter 01: The New Family Justice System
Chapter 1
The New Family Justice System

Jen Koh *
1.1 Introduction 2
1.2 Philosophy 2
1.3 Matters Heard by the FJC – Family Proceedings 2
1.4 Structure of the FJC 3
A. Family Division of the High Court Division 4
B. The Family Courts and the Youth Courts 5
C. Appointments and Qualifications of Registrar, Deputy Registrar and Assistant Registrars 5
1.5 Transfer of Proceedings from Family Court to High Court and vice versa 5
1.6 Registry of the FJC 6
1.7 Sittings in camera 6
1.8 Family Justice Rules 7
1.9 New Initiatives 8
A. Judge-Led Approach 8
B. Child Representatives 9
C. The Family Court Friend Scheme 9
D. Simplified Uncontested Proceedings 9
1.10 Future Initiatives 10
1.1 INTRODUCTION
[1.1.1] The Family Justice Courts (“FJC”) were established pursuant to the Family Justice Act 2014 (No 27 of 2014) (“FJ Act”) which was
passed by Parliament on August 4, 2014. The FJ Act was enacted primarily based on the recommendations of the Committee for Family
Justice which was formed in 2013 to review how Singapore’s family justice system may be reformed to address the needs of youth and
families in distress.
1.2 PHILOSOPHY
[1.2.1] Prior to the enactment of the FJ Act, family-related cases were heard by the Family and Juvenile Justice Division of the State
Courts (“FJJD”). The Supreme Court also heard such matters together with the rest of its caseload premised on the complexity of the
case, the value of the assets in cases involving division of matrimonial assets and whether there was a novel or complex point of law
requiring the Supreme Court to intervene and to make an order. These have changed since the establishment of the FJC.
[1.2.2] With the restructure, the FJC deals with all family-related cases under a specialised body of courts. It is able to frame disputes
from the perspective of families and individuals and move away from the traditional adversarial court system. Additionally, the FJC
provides a suite of family-specific services, enhanced processes and identify relevant training programmes that develop family-specific
skills in judges, lawyers and other family practitioners.
1.3 MATTERS HEARD BY THE FJC – FAMILY PROCEEDINGS
[1.3.1] The list of family-related cases dealt with by the FJC is set out in the FJ Act, 1 including:
1. Civil proceedings under section 53 of the Administration of Muslim Law Act (Cap 3);
2. Proceedings under the Adoption of Children Act (Cap 4);
3. Proceedings under the Guardianship of Infants Act (Cap 122);
4. Civil proceedings under the Inheritance (Family Provision) Act (Cap 138);
5. Civil proceedings under the International Child Abduction Act (Cap 143C);
6. Civil proceedings for the distribution of an intestate estate in accordance with the Intestate Succession Act (Cap 146);
7. Civil proceedings under the Legitimacy Act (Cap 162);
8. Civil proceedings under section 10 of the Maintenance of Parents Act (Cap 167B);
9. Civil proceedings under the Maintenance Orders (Facilities for Enforcement) Act (Cap 168);
10. Civil proceedings under the Maintenance Orders (Reciprocal Enforcement) Act (Cap 169);
11. Civil proceedings under the Mental Health (Care and Treatment) Act (Cap 178A);
12. Civil proceedings under section 17A(2) of the Supreme Court of Judicature Act (Cap 322);
13. Civil proceedings under the Voluntary Sterilization Act (Cap 347);
14. Civil or quasi-criminal proceedings under the Women’s Charter (Cap 353); and
15. Civil proceedings under the Probate and Administration Act (Cap 251) on or after the date specified under section 47(11) of the
FJ Act.
1.4 STRUCTURE OF THE FJC
[1.4.1] The FJC, led by the Presiding Judge, consists of the Family Division of the High Court, the Family Courts and the Youth Courts. 2
A. Family Division of the High Court

[1.4.2] With the establishment of the Family Division of the High Court, the High Court exercises such part of the original and appellate
civil and criminal jurisdiction of the High Court as specified in the FJ Act as well as the general supervisory and revisionary jurisdiction
of the High Court over the Family Courts, the Youth Courts and the Tribunal for the Maintenance of Parents. Subject to the FJ Act, the
provisions of the Supreme Court of Judicature Act (Cap 322) shall apply to the Family Division of the High Court. 3
[1.4.3] The President may, on the recommendation of the Chief Justice, appoint a judge or judicial commissioner to be the Presiding
Judge of the FJC for such period as the Chief Justice may recommend. During his or her appointment, the Presiding Judge may sit in any
Family Court or Youth Court as a judge thereof and/or continue to sit in the High Court or the Court of Appeal. 4
[1.4.4] The Family Division of the High Court exercises original civil jurisdiction as conferred on the High Court by sections 17(a), (d),
(e), (f) and 17A of the Supreme Court of Judicature Act (Cap 322) and such other jurisdiction relating to family proceedings as vested in
or conferred on the High Court by any written law. In essence, the Family Division of the High Court shall have all the powers of the
High Court in the exercise of its original civil jurisdiction. 5
[1.4.5] Other than its original civil jurisdiction, the Family Division of the High Court exercises appellate civil or criminal jurisdiction in
the hearing of appeals from the Family Courts and Youth Courts when exercising jurisdiction of a quasi-criminal or civil nature and the
hearing of appeals and special cases from the Tribunal for the Maintenance of Parents. 6 The appeal may be heard before one judge or
three judges and if the latter, shall be decided in accordance with the opinion of the majority of the judges composing the High Court. 7
B. The Family Courts and the Youth Courts

[1.4.6] Cases which were heard by the FJJD are now heard by the Family Courts and the Youth Courts. These courts are presided over
by district judges or magistrates as the case may be. 8
[1.4.7] The jurisdiction of the Family Courts comprises the civil jurisdiction of the High Court referred to in section 22(1)(a) and (b) of
the FJ Act and such other jurisdiction relating to family proceedings as conferred by any written law. 9
[1.4.8] In respect of the Youth Courts, the court shall have the jurisdiction and powers conferred on it by the Children and Young
Persons Act (Cap 38). In the exercise of its criminal jurisdiction or quasi-criminal jurisdiction, the court shall have all the powers of a
District Court exercising criminal jurisdiction and subject to the Children and Young Persons Act, the provisions of the Criminal
Procedure Code (Cap 68) shall apply with the necessary modifications. 10
C. Appointments and Qualifications of Registrar, Deputy Registrar and Assistant Registrars

[1.4.9] The President may, on the recommendation of the Chief Justice, appoint a registrar, a deputy registrar and assistant registrars
of the FJC subject to the person(s) so appointed being a qualified person as defined in section 2 of the Legal Profession Act (Cap 161). 11
The registrar, deputy registrar and assistant registrars shall be ex-officio commissioner for oaths. 12
[1.4.10] The registrar, deputy registrar and assistant registrars shall have such jurisdiction, powers and duties as may be prescribed by
the Family Justice Rules or prior to their enactment, the Rules of Court. 13
1.5 TRANSFER OF PROCEEDINGS FROM FAMILY COURT TO HIGH COURT AND VICE VERSA
[1.5.1] The High Court or a Family Court may on its own motion or upon an application order any proceedings in a Family Court to be
transferred to the High Court if it appears that those proceedings by reason of involving some important question of law or of being a
test case or for any other sufficient reason should be tried in the High Court. 14
[1.5.2] On its own motion or upon an application, if it thinks fit, the High Court may order any proceedings in the High Court to be
transferred to a Family Court. 15
1.6 REGISTRY OF THE FJC
[1.6.1] A centralised registry was established to receive, assign and manage the entire suite of family-related cases that come before the
FJC. This is in contrast with the past, where cases were managed by three registries (the State Courts registry in tandem with the FJJD
registry and the Supreme Court registry). The change has allowed the FJC registry to better manage the caseload and to ensure that
cases are disposed of efficiently. Having a single entry point eliminates confusion as to the appropriate registry to file court documents.
[1.6.2] The centralised registry is under the control and supervision of the registrar of the FJC. 16
1.7 SITTINGS IN CAMERA
[1.7.1] All matters and proceedings in the FJC are heard in camera. 17 This preserves the confidentiality of the case and respects the
privacy of the family in crisis. However, the FJC shall have power to hear any matter or any part thereof in an open or public court to
which the public generally may have access, if the court is satisfied that it is expedient in the interests of justice, or for other sufficient
reason to do so. 18
[1.7.2] The court may also order the removal or redaction of particulars of any witness in a family proceeding or any evidence or any
other thing likely to lead to the identification of any such witness by any person other than a party to that matter, if it is satisfied that it
is expedient in the interests of justice, public safety, public security or propriety or for any other sufficient reasons to do so. 19
[1.7.3] The court may at any time disallow the publishing of the particulars of any witness or any evidence or any other thing likely to
lead to the identification of any such witness. 20 In contravention thereof, the offending party shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding S$5,000 or to imprisonment for a term not exceeding three years or to both. 21
1.8 FAMILY JUSTICE RULES
[1.8.1] A Family Justice Rules Committee was set up to make Family Justice Rules regulating and prescribing the procedure and
practice to be followed in the FJC. 22
[1.8.2] The Family Justice Rules may be made for the following purposes: 23
1. Prescribing the manner and the time within which any application is to be made;
2. Prescribing the business and the jurisdiction and powers to be exercised by a judge, a judge of the Family Courts or Youth
Courts, in court or in chambers;
3. Regulating and prescribing the appeals process;
4. Prescribing the scales of allowances, costs and fees to be taken or paid in any proceedings and or regulating the matters
relating to the costs of proceedings;
5. Enabling the commencement of proceedings;
6. Regulating the means by which particular facts may be proved and the mode in which evidence is received;
7. Regulating the joinder of parties;
8. Providing for the appointment of a child representative to represent the interest of a child in any proceedings;
9. Regulating the rate of interest to be paid on debts;
10. Prescribing the class of cases in which money due under a judgment or order is to be paid into court;
11. Providing for the enforcement of any orders;
12. Regulating the modes in which a writ of seizure and sale may be executed;
13. Regulating the discovery of a judgment debtor’s property in aid of execution of any judgment or order;
14. Taking of evidence before an examiner on commission or letters of request and prescribing the circumstances in which
evidence taken may be read on the trial of an action;
15. Prescribing in what cases and on what conditions a court may act upon the certificate of accountants, actuaries or other
scientific persons; and
16. Amending, altering or adding to the forms used in family proceedings.
1.9 NEW INITIATIVES
[1.9.1] The FJC is also involved in bringing forth various initiatives (together with external stakeholders) in recognition of the special
nature of family cases. The following are a few examples.
A. Judge-Led Approach
[1.9.2] Several new rules were introduced in the Family Justice Rules to allow the court to make orders and give directions for just,
expeditious and economical disposal of proceedings. In adopting this approach, the court may, inter alia, direct parties to attend
mediation or counselling and limit the number of affidavits filed, time given for oral testimony and the length of written submissions.
[1.9.3] These rules allow the court to proactively control and lead the direction and conduct of proceedings in each dispute on a case-
by-case basis and in a manner suitable to the matter. The court’s intention is to help parties focus on the relevant issues, reduce the cost
of litigation and the deployment of judicial resources, and expedite the fair and just resolution of cases.
B. Child Representatives
[1.9.4] The voice of the child is often sidelined in highly contentious proceedings between his or her parents. The FJ Act allows for the
appointment of Child Representatives. The primary role of the Child Representative is to act in the best interests of the child including
presenting the child’s views in court proceedings. The Child Representative may interview and interact with the child and the parents
to explain the court processes to them, facilitate the child’s and parents’ cooperation, obtain all relevant evidence to aid the court in
deciding what arrangement would be in the best interest of the child and gives his or her view during the court hearing.
[1.9.5] The Child Representative will be appointed only in cases where the parents are unable to agree on issues pertaining to the
custody, care and control, and access. This new scheme is not intended to and will not diminish the role of parents vis-à-vis the
decision-making process. It provides the court with more perspectives on which to arrive at a fair and equitable outcome in the overall
best interest of the child.
C. The Family Court Friend Scheme

[1.9.6] Unrepresented litigants with no legal experience may be intimidated by court processes. Thus, the court may, at any stage of
proceedings, refer them to the Community Justice Centre or other pro bono agency for the assignment of a Court Friend for assistance.
The Court Friend may provide information on court procedure and processes, take notes of court proceedings and organise court
documents. He or she may also provide emotional and moral support. However, the Court Friend is not allowed to provide legal advice
and/or represent the litigant in court.
D. Simplified Uncontested Proceedings

[1.9.7] Prior to January 1, 2015, it was not possible to set down a matter on an uncontested basis at commencement of writ, even if
parties agreed on the facts used to establish irretrievable breakdown (for the divorce) and all the ancillary matters. This new simplified
uncontested track allows parties to set down the case for an uncontested hearing at the commencement of the divorce proceedings.
Counsel and parties need not attend court. This saves time and costs.
[1.9.8] The simplified hearing track is available where (a) the parties have reached an agreement through a Collaborative Family
Practice process or where (b) the parties have negotiated privately and reached an agreement. Regarding the latter, the negotiations
must lead to a settlement, the parties must agree to proceed with an uncontested divorce and also file a draft consent order in respect
of the ancillary matters, and the requisite documents must be in order.
1.10 FUTURE INITIATIVES
[1.10.1] In a globalised society, family proceedings now have an added international dimension. Cross-border family issues are
becoming more prevalent. In response, new initiatives to delve with these issues at source are being contemplated, including an
exploration into an international family mediation framework.
[1.10.2] The FJC also announced the establishment of the International Advisory Council which consists of leading family law
practitioners, academics and experts in social science. The members of this Council will share best practices and solutions which have
been adopted across various jurisdictions. With the benefit of this discussion, the FJC will be at the forefront of the dispensation of
family justice.
[1.10.3] The Family Justice Rules Working Party is also aiming to simplify processes, forms and the language of the Family Justice
Rules. Bearing in mind the emotional nature of family proceedings, the FJC hopes to streamline processes with simplified forms and
language. By making family law procedure more accessible to all will enhance access to justice, especially to those who need it most.
FOOTNOTES
* District Judge and Deputy Registrar, Family Justice Courts
1 Section 2(1) of the FJ Act.

2 Section 3 of the FJ Act.
4 Section 12(1), (2) and (3) of the FJ Act.
6 Sections 23(1) and (2), and 24(1) and (2) of the FJ Act.
8 Sections 13 and 14 of the FJ Act.
9 Section 26(1) and (2) of the FJ Act.
11 Section 15(1) and (2) of the FJ Act.
19 Section 10(3)(a) and (b) of the FJ Act.
20 Section 10(4)(a) and (b) of the FJ Act.

2016 - 10 - 17 PAGE 11

Chapter 02: Jurisdiction of the Family Court: Divorce and Dissolution
Chapter 2
Jurisdiction of the Family Court: Divorce and Dissolution

Foo Siew Fong
2.1 Introduction 12
2.2 Applications to Present a Divorce Writ before Three Years – The Three-year Rule 14
2.3 Jurisdiction 15
2.4 Ground for Divorce 18
A. Irretrievable Breakdown – The Sole Ground of Divorce 18
B. The Five Facts 19
1. Adultery 19
2. Unreasonable behaviour 20
3. Desertion 23
4. Separation for a period of three years with consent 24
5. Separation for a period of four years without consent 25
2.5 Interim Judgment Proceedings Thereafter 26
2.6 Proceedings for Interim Judgment of Presumption of Death and Divorce 27
2.7 Judicial Separation 27
2.8 Nullity of Marriage 28
A. Void Marriages 28
B. Voidable Marriages 29
2.9 Chinese Customary Marriages 31
2.1 INTRODUCTION
[2.1.1] “Chinese New Year is a special occasion,” said Mr Lee Hsien Loong in his Chinese New Year message on February 7, 2016. “It is a
time to remind ourselves of the importance of family: How it is our pillar of strength and support; how it cheers us on when we are
down and rejoices with us when we achieve success; how it is always there for us.”
[2.1.2] The family is the most important social unit of society, traditionally consisting of two parents rearing their children. A family is
also the basic child-raising unit, the basic communication unit, and the basic all-around fun and friendship unit. Families living in
harmony and peace provide stability not only in their homes but also in a social way as no other can. Dr Lawrence Wilson in his article,
“The Family Unit and its Importance” published in June 2013 1 stated that “an interesting phenomenon that can be used for healing, but
which can also have negative effects, is called empathic blending. It occurs in all close relationships, including, of course, within many
families ... A phenomenon we observe within families, and within all close relationships, is that when one person begins to heal,
particularly a parent, often the partner and the children also experience a degree of healing ...”
[2.1.3] When the family breaks down because the two most important members are not compatible, each can bring out the worst
aspects of another. What we find is instability, worry, stress and aversion. In my line of work, I see suffering of varying degrees that
results from the breakdown of marriages. Family law is a fast-growing area and our government realises its importance by the set up of
a separate Family Court as early as 1995. Our Chief Justice Sunderesh Menon in his address on October 1, 2015, described the court’s
mission as unique due to its handling of the delicate matter of distressed family relationships. He added that this central role of the
courts will assume greater importance in the years ahead, with growing strains on family life brought about by economic and social
changes over the past two decades. “The advent of globalisation and increased competition has forced couples to work longer hours, and
this inevitably puts pressure on family relationships”, and he also noted that cross-cultural and cross-national marriages are now
increasingly common.
[2.1.4] The Chief Justice also highlighted the efforts of the courts over the past year, including its certification programme for family
mediators, its adoption of a child-inclusive resolution model, and greater support for litigants in person. “The erosion of the family unit
has made our role as family adjudicators more important than ever, and it calls for an approach that is holistic, multi-disciplinary and
collaborative,” said Chief Justice Sundaresh Menon. He added: “Judges, practitioners, academics, social workers, psychologists,
counsellors and all the others whose work falls within the ambit of family justice will have to work hand in hand to realise the
objectives of the reforms that we have embarked on, and this is for the benefit of all the families who knock on our doors.”
[2.1.5] The importance of family law today cannot be ignored at any cost. Children also have rights in the family, and this often
becomes an important affair in the pursuit of family law. This book is not only for students and practitioners, but also for laypeople who
are interested in this area of the law which greatly impacts individual rights in an event of a marital breakdown.
[2.1.6] An important piece of legislation in family law is the Women’s Charter (Cap 353) (the “Charter”). This statute was passed in 1961
primarily to protect the rights of women and girls in Singapore. Culturally, we were living in a gender-biased society where women
were perceived to have less rights as men. The Charter is a statute which provides the legal basis for equality between husband and
wife. The Charter makes polygamy illegal and recognises the wife’s right to a different domicile from her husband. The Charter also
states the rights and duties of both husbands and wives in the management of the home and children and makes it obligatory for
parents to maintain their children, and for a husband to maintain his wife. In view of the changes that were introduced by this statute
to our society at that time, one can fully appreciate why this piece of legislation was named the “Women’s Charter”.
[2.1.7] The Charter has evolved through the years to meet society’s cultural and social family issues. There were a few amendments to
the Charter. 2 Of importance to us are the sections that govern, inter alia, divorce proceedings, children’s issues, maintenance and
division of matrimonial assets. The Charter also enables a battered spouse to gain protection from the perpetrator and also provides the
penalty for offences against women and girls. It sets out the provisions the court will consider in the award of maintenance. It also sets
out the circumstances under which parties can file for divorce. The latest amendment provides for financial relief through ancillary
orders to persons who have divorced overseas, by empowering the Singapore courts to make such orders under certain conditions.
Now, the state has more sanctions to deter defaults on maintenance orders, by empowering the court to impose new sanctions on
defaulters, such as ordering the defaulter to furnish a banker’s guarantee, attend financial counselling, or perform community service.
There are now also powers for the court to make rules for parties to produce relevant information during proceedings; and to make an
order to the Central Provident Fund (“CPF”) Board requesting for information on a party’s employment/employer, during proceedings
relating to an attachment of earnings order.
[2.1.8] Other sections of the Women’s Charter (Amendment) Act 2011, which came into operation from September 1, 2011 are that the
Minister may prescribe certain classes of persons to attend marriage preparation programmes before they are issued with a marriage
licence, to reduce the risks of divorce. Divorcing parties with children will be required by the court to attend mediation and/or
counselling, as part of divorce proceedings. Of interest is that remarrying parties will be required to declare if they have a maintenance
order and maintenance arrears before a marriage licence is issued. This is intended to make future spouses aware of a party’s
outstanding financial obligations to his or her other family.
2.2 APPLICATIONS TO PRESENT A DIVORCE WRIT BEFORE THREE YEARS – THE THREE-YEAR RULE
[2.2.1] Under section 94(1) of the Charter, parties to a marriage must be married for three years before they can file a writ in court for
divorce. Only with evidence of extreme hardship or extreme depravity was a petitioner permitted to make an application to present a
petition before the expiration of three years (section 95(2)). Many lament over the long period of three years before they are eligible to
file for divorce but the law as it stands recognises the sanctity of marriages/family unity and orders dissolving such unions are not
hastily granted.
[2.2.2] In reality, “extreme hardship” and “extreme depravity” are very hard to establish and the provision is rarely used. In Neo Ying
Piau v Ng Soek Teng, 3 Shoba Nair DJ held “... the phrase ‘exceptional hardship’ was defined as ‘something out of the ordinary and more
than what an ordinary person should reasonably be asked to bear’”. In Foo Teck Kuan v Chan Yoke Han, 4 Angelina Hing DJ emphasised
that the main thrust of the cases was that the wife had, on more than one occasion, brought home a man and had sexual relations with
him while the husband was in the house at least still living under a same roof. To this, she held that “This case I say is more than
adultery. It is a case of exceptional depravity on the part of the wife ... By bringing a man to the matrimonial flat where the husband was
residing is a blatant disregard for his feelings and the marriage. She did not try to conceal her adulterous act in any way. I accept that
the Plaintiff’s assertion that it was done to provoke him.” However, in Tan Yan Ling Kyna v Chan Wei Zhong Terence 5 leave was not
granted to the wife for leave to file for divorce before the time limit of three years as she had not shown any evidence that she was
suffering from major depressive disorder as a result of the husband’s physical and verbal aggression. There was no extreme hardship or
depravity. The court stated that the statutory minimum requirement of three years is to impress upon married couples that marriage is
not an event that one can sign in and out as they fancy, and there are alternative remedies in cases of abuse, such as personal protection
orders.
[2.2.3] Clearly what is exceptional is a matter of degree and is largely fact dependent and there is no fixed test. Applications to present a
divorce writ before the expiration of three years will not be granted easily and it will be necessary to show that the hardship suffered
by the applicant is extreme and not merely an example of normal marital discord.
2.3 JURISDICTION
[2.3.1] The first section under Part X Chapter 1 of the Charter under the heading, “Divorce” aptly deals with the jurisdiction of the court
in matrimonial proceedings. Section 93 states:
(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.
[2.3.2] This action states the basis of the petitioner’s claim for jurisdiction. In Singapore, the petitioner files a Writ for Divorce and the
petitioner is identified as “the plaintiff”. For the purpose of this chapter, to be consistent with how parties are identified in the papers
filed in court, I shall be using the terms, “plaintiff” and “defendant” to describe parties to the divorce writ.
[2.3.3] What determines jurisdiction is whether a person is domiciled in Singapore. Only one party to the marriage needs to be
domiciled in Singapore for the court to exercise jurisdiction. There is no definition in the Charter but section 3(5) is instructive. And we
have to look to case law for the definition as well. Section 3(5) of the Charter reads:
For the purpose of this Act, a person who is a citizen of Singapore shall be deemed, until the contrary is proved, to be domiciled in
Singapore.
[2.3.4] Based on section 3(5) of the Charter, a person’s Singapore citizenship will raise a presumption of domiciliary in Singapore. Based
on case law, a person’s domicile can be defined as either one’s (i) domicile of origin or (ii) domicile of choice. Justice VK Rajah 6
explained “domicile of origin” as follows:
13. All persons must have a domicile. On birth a person is affixed with a domicile of origin; the father’s domicile if he is legitimate
and born within the father’s lifetime or the mother’s domicile if he is illegitimate or born after the father’s death. This domicile of
origin prevails until a person acquires a new domicile of choice or dependence.
[2.3.5] There are two requirements to finding a “domicile of choice”: (i) voluntary residence as an inhabitant rather than as a casual
visitor; and (ii) the intention to remain indefinitely for an unlimited time. 7 There must be physical presence for the purposes of the law
of domicile and the length of the residence is not important but only as evidence of the intention to reside permanently or indefinitely
in that country. In other words if a person’s intention is clear, any residence, however short, suffices to establish a domicile of choice. 8
[2.3.6] If a person or his or her spouse is habitually resident in Singapore, he or she will be able to file for divorce in Singapore. What
does “habitually resident” mean? In Lee Mei-Chih v Chang Kuo Yuan, 9 the High Court held that the phrase “habitually resident” was for
all intents and purposes, the same as the phrase “ordinarily resident”, and that consequently, principles established by the UK
authorities will apply. In a nutshell, a person must be habitually and normally resident in a country, apart from temporary or
occasional absences of long or short duration. The word “habitually” has two necessary features. First it must be voluntarily adopted
and there must be a degree of settled purposes which may be general or specific. In other words, all that is necessary for one to have is a
sufficient degree of continuity of purpose in the country to be properly described as settled in the country. 10
[2.3.7] One has to note that section 93(1)(b) of the Charter sets a minimum “qualifying period” of three years habitual residence before
the Singapore courts shall have jurisdiction to hear proceedings. The High Court in Lee Mei-Chih therefore held that “in considering
whether the time away had broken the ‘habitually resident’ requirement, the court had to consider not just the reason for being away,
but also the length of time spent away.” 11 Therefore in Lee Mei-Chih, a total of about 12 months of extended absence for trips to Taiwan
and New Zealand was held to be substantial when viewed against the mandatory three-year qualifying period, despite the fact that the
wife was able to give legitimate reasons for the period of absence. The High Court therefore held that the wife was not habitually
resident in Singapore for the three-year qualifying period within the meaning of section 93(1)(b) of the Charter.
[2.3.8] One has to note that for proceedings for the 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, in other words, neither one of the parties are domiciled
nor habitually resident in Singapore, still grant the relief sought where both parties to the marriage reside in Singapore at the time of
the commencement of the proceedings. 12 The consideration will be different for divorce since the marriage should not be contracted in
the first place and there is an urgent need for the court’s adjudication when the grounds upon which the court will grant an Order for
Nullity are satisfied. However, a party’s residence in Singapore must have an element of habitual residence (albeit not at least three
years) and not be a mere stopover. The case of Helen Diane Womersley v Nigel Maurice Womersley 13 suggests that the purpose of section
93(2) of the Charter is to ensure that parties who have sufficient connection to Singapore are able to commence nullity proceedings
here.
2.4 GROUND FOR DIVORCE
A. Irretrievable Breakdown – The Sole Ground of Divorce

[2.4.1] Divorce may only be granted if the plaintiff applying for the divorce can prove that the marriage has irretrievably broken down.
This is the only “ground” of divorce. There is no possibility of reconciliation and there is finality in intention. Irretrievable breakdown of
marriage is proven by five situations. Although it is the duty of the court to enquire, so far as it can, into the alleged facts, in practice the
burden of proof is on the plaintiff to establish one of the five situations and for the defendant in a defended suit to show that the
marriage has not broken down irretrievably for the reasons alleged in the Writ for Divorce. Parties can agree on the facts for divorce
and this is now a common practice in Singapore, as long as the facts fall within the five situations listed in the Charter:
1. Adultery;
2. The unreasonable behaviour of the defendant;
3. The defendant’s desertion of the plaintiff for at least two years;
4. The parties having had three years of separation with consent; and
5. The parties having had four years of separation without consent.
[2.4.2] There is no provision for a quick and amicable divorce on grounds of “irreconcilable differences”. Legislation does not make it
easy for parties to part upon the breakdown of a marriage. Situations 4 and 5 above are the only “non-fault” grounds upon which parties
can file a writ for divorce. Many lament over the long period of separation before they are eligible to gain their single status but the law
as it stands recognises the sanctity of marriages/family unity and orders dissolving such unions should not be easily granted.
B. The Five Facts
1. Adultery
[2.4.3] To establish the fact of adultery, the plaintiff must show two things:
1. that the defendant has committed adultery; and

2. that the plaintiff finds it intolerable to live with the defendant.
[2.4.4] An act of adultery involves “consensual sexual intercourse”. 14 Adultery is made out if “there has been some penetration during
sexual encounter.” 15 It is a requirement under our law 16 that the person with whom the defendant had committed adultery be
identified if the identity is known to the plaintiff. Should the spouse who has committed adultery admits to the act and agrees to the
description of facts stated in the Statement of Particulars supporting the Writ for Divorce, the grounds for divorce will then be
conclusive. If the Writ is contested, evidence of adultery will need to be produced in court usually via a private investigator’s testimony.
[2.4.5] The application for matrimonial relief is considered a civil action and one would expect the relevant standard of proof be that of
the balance of probabilities. However the situation of adultery appears to require a different standard of proof, that of beyond
reasonable doubt. The basis for this differing treatment lies in the historical origins of the Charter. The Charter was primarily based on
English divorce law, which considers adultery a grave matrimonial offence. 17 Singapore courts have adopted this standard of proof in
Koh Teng Lam v Koh Chen Chee Elsie & Anor. 18 It is to be noted that the “matrimonial offence” theory has since been replaced by the
current “irretrievable breakdown of marriage” theory by way of the Women’s Charter (Amendment) Bill tabled before Parliament on
May 15, 1979 and therefore, this high standard of proof is anomalous when all other issues in the proceedings are proven on the
balance of probabilities. 19 In the absence of any new authority on this point by the Singapore courts, it appears that the standard of
proof for adultery remains at beyond reasonable doubt.
[2.4.6] If there is no documented evidence of adultery that will satisfy the standard of proof, the plaintiff can still assert that there was
improper association and start divorce proceedings based on the unreasonable behaviour of the defendant under section 95(3)(b).
[2.4.7] The requirement that “and the plaintiff finds it intolerable to live with the defendant” is independent of adultery. Section 95(5) of
the Charter states:
(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).
[2.4.8] If parties lived together for more than six months following the adultery, the plaintiff will not be entitled to rely on the fact of
adultery because it will be denied that the plaintiff found it intolerable to live with the defendant.
[2.4.9] And the court has the power to allow intervention by third parties for adultery proceedings. Section 138 states that if the court
considers, in the interest of any person not already a party to the proceedings, that that person should be made a party to the
proceedings, the court may, if it thinks fit, allow that person to intervene upon such terms, if any, as the court thinks just.
2. Unreasonable behaviour
[2.4.10] To establish the fact of unreasonable behaviour, the plaintiff has to show that the defendant has behaved in such a way that the
plaintiff cannot reasonably be expected to live with the defendant.
[2.4.11] As with adultery, the behaviour is a question of fact but unlike adultery, it is the court that must ask the question whether the
conduct is unreasonable or not and whether the conduct is such that the plaintiff can reasonably be expected to live with the defendant.
The applicable tests under section 95(3)(b) was first set out in Wong Siew Boey v Lee Boon Fatt 20 in 1994. The High Court laid down these
tests after considering various English authorities. Wong Siew Boey has since been affirmed in subsequent High Court decisions 21 and
the applicable test is as follows:
1. The question of whether the plaintiff finds it intolerable to live with the defendant must be answered subjectively, whether his
or her attitude is reasonable is irrelevant.
2. In dealing with behaviour, the question is whether the plaintiff can reasonably be expected to live with the defendant. It is for
the court to answer this, using an objective test, having regard to the personalities of the individuals before it, however far these
may be removed from some theoretical norm, in the light of the whole history of the marriage and their relationship. In other
words, the court will need to ask whether the plaintiff, with his or her character personality faults and attributes, can
reasonably be expected to live with the defendant with his character, personality faults and attributes.
3. The court must look at behaviour by taking into account the cumulative effect of the behaviour. Any conduct active or passive
constitutes behaviour. The behaviour is not confined to behaviour towards the defendant – the behaviour must have relevance
to the marriage although it is towards other members of the family or towards outsiders. Any and all behaviour must be taken
into account, including omissions, where it has reference to the marriage.
[2.4.12] In the case of TDK v TDL, 22 the Family Court applied the test enumerated in Wong Siew Boey to find that the plaintiff wife had
adequately established that the marriage had broken down, in that the defendant had, inter alia, treated her with disrespect and
demeaned her, dominated her and controlled her life. On the other hand, the court dismissed the writ for divorce in Chan Wai Chin v
Ang Shi Yi, Vanessa and Ong Kay Yong. 23 To support her claim for divorce, the wife alleged, inter alia, that the husband had an
uncontrollable temper and had obsessive compulsive habits. With regard to the former allegation, the wife relied on the husband’s
email to her where he admitted that he had “flared” up. However during cross-examination, the husband explained that they had less
than six heated arguments in their seven years of marriage, and he had only flared up at the wife once when she returned home very
late. The outbursts were also triggered due to pent up unhappiness and frustration from earlier incidents where the wife disappeared
for close to 20 hours and made no effort to be contactable. The court held that it was natural for anyone to be angry and upset given the
way the wife had acted and found that it was not unreasonable for the husband to react the way he did. The court also found that on
other allegations made by the wife, the husband’s evidence was more credible than the wife’s and based on the evidence before it, it was
abundantly clear that the wife did not find it intolerable to live with the husband since there was ample evidence which was not
disputed, that they were happy doing things together throughout the short marriage.
[2.4.13] Unreasonable behaviour can be extremely diverse, for example, unfaithfulness, verbal abuse, lack of communication, domestic
violence, not providing maintenance, frequent bouts of anger, late nights, too many sexual demands and so on. In the past, it has been
common amongst family law practitioners, subject to their client’s instructions, to issue watered down facts of “unreasonable
behaviour” often with the defendant’s approval, in order not to inflame an already emotive situation. This is good practice but great
care should be exercised as it has been known for a divorce writ to be rejected by the court on the basis that the particulars as pleaded
do not show sufficient cause. At the end of the day, the court must be satisfied that there is sufficient “unreasonable behaviour” for it to
be able to hold that the marriage has broken down irretrievably.
[2.4.14] Regard can be had to the cumulative effect of behaviour. In the case of TEF v TEG, 24 the Family Court explicitly mentioned that
it based its decision on the cumulative effect of the husband’s behaviour in granting interim judgement. The District Judge found that
the allegations by the wife on their own were considered trivial and were nothing more than assertions that parties were incompatible
or unable to communicate. However the court took into account the cumulative effect of the behaviour of the husband through the
years and the personality of the wife, and held that the wife had sufficiently proven that the marriage had broken down irretrievably.
[2.4.15] It is common to find statements describing facts supporting the particulars of unreasonable behaviour to be quite extensive,
enumerating many incidents. This reflects reality as it is not usually one incident that caused a breakdown but a cumulative effect of
many incidents giving rise to the intention to end the marriage and thereby the hurt. There is a caution, however; section 95(6) states
that where the plaintiff wishes to divorce on this ground, parties to the marriage must not have lived with each other for a period of
more than six months from the final incident of unreasonable behaviour relied on by the plaintiff.
[2.4.16] The burden of proof of unreasonable behaviour is on the balance of probabilities. 25
3. Desertion
[2.4.17] The third fact is that of desertion and is rarely used. The plaintiff must show that the defendant deserted the plaintiff for at
least two years immediately prior to the institution of proceedings, and that the defendant must have left without the plaintiff’s consent.
Under section 95(7) of the Charter, brief periods of reconciliation between parties not amounting to six months in total do not break the
continuation of desertion although they cannot be counted as part of the period of desertion. Section 92 of the Charter defines desertion
as implying “an abandonment against the wish of the person charging it.”
[2.4.18] Desertion consists of actual desertion and constructive desertion. Both require the proof of the conduct of separation and the
intention of desertion. The intention to desert may be inferred from the conduct of separation where circumstances make it appropriate
to do so. The conduct of separation is the same as living apart under section 95(3)(d) and (e) of the Charter. The differences are that for
desertion, it must be proven that the deserting spouse has the intention of bringing the marital union to an end and the deserted spouse
must not have consented to the separation. The deserting spouse must have had the capacity to form the intention to desert, and there
must have been an absence of a reasonable cause for the separation. 26
[2.4.19] In constructive desertion, the spouse responsible for desertion must be shown to have been guilty of conduct equivalent of
driving the other spouse away from the matrimonial home with the intention of bringing the matrimonial consortium to an end. 27
Therefore if the husband asked the wife to leave the matrimonial home and evinced his intention to end the marriage and the wife
therefore left because of this intention, then it is the husband in this instance who is guilty of desertion. In practice, the wife would
more likely proceed on the basis of the husband’s unreasonable behaviour. There is no desertion if there is mutual consent either to
separate or to the continuation of separation.
4. Separation for a period of three years with consent

[2.4.20] Unlike the above three situations for divorce, this is a situation which does not cite the “fault” of either party. One is to consent
to live apart for a period of three years, and the other is to live apart for four years and no consent to separation is needed.
[2.4.21] To obtain a decree utilising the fact of separation by consent, the plaintiff has to show that the parties have lived apart for a
continuous period of three years prior to the institution of proceedings and that the defendant consents to a divorce on that basis. This
constitutes the most amicable route to divorce and has introduced the concept of a divorce by mutual consent.
[2.4.22] What constitutes separation? This boils down to the intention of parties to end their marital union. If parties are separated
because of economic consideration with one spouse having to work overseas, then surely this does not constitute “separation” under the
law. Conversely, parties can agree to divorce under this section if they are living at a same address but have not shared a bed or have
not had sexual relations, nor have they shared a life together as a married couple if their intention is to end their marital union but
reside together for the sake of convenience.
[2.4.23] In Leong Kwek Keong v Lee Ying Kuan, 28 Chan Sek Keong J ruled that living apart did not mean merely physical separation or
physically not living under a same household but imported an additional element of an intention to terminate the consortium. KS Rajah
29 set out clearly the legal requirements to show “separation”. First, the parties must not have been living in the same household (the
“physical requirement”). Secondly, the party filing for divorce must have the intention to terminate the marriage (the “mental
requirement”). This intention need not be a mutual one, and it is not necessary for this unilateral element to be communicated to the
other party. For the physical requirement, if the parties allege that they are separated albeit residing under the same roof, the court will
require independent evidence to show that the parties were in fact living as separate households under one roof. 30
[2.4.24] For a grant of divorce under section 95(3)(d), both parties have to consent to a divorce, not merely fail to object to it. The
defendant must consent in writing by signing the appropriate form 31 prior to the filing of the divorce papers and to confirm that
parties have lived separate and apart from each other for at least three years. However, a memorandum of appearance containing a
statement that the defendant consents to the grant of a judgement is to be treated as such a consent if the acknowledgement is signed
either by the defendant or his or her solicitors. 32
[2.4.25] In order to prove the fact of separation, a Statement of Particulars to be filed with the Writ for Divorce needs to state the
following:
1. The date separation commenced;

2. Reasons for separation;
3. Duration of separation; and
4. Should the divorcing spouses have been living under one roof, they then must prove that they have been maintaining separate
households during that period and there was an intention to end the marriage, i.e. they sleep in separate bedrooms, have no
conjugal relationship, maintain separate household accounts and do not spend time together as a family unit.
5. Separation for a period of four years without consent

[2.4.26] To obtain a divorce based on this fact, the plaintiff must show that the parties have lived apart for a continuous period of at
least four years prior to the Writ for Divorce being issued. The consent of the defendant is not required in this instance.
[2.4.27] Similarly, the definition of “separation” also applies here. Parties must have the intention to end the marriage and must not
have lived together as a marital couple for at least four years. The Statement of Particulars must satisfy both the physical and mental
requirements. 33
2.5 INTERIM JUDGMENT PROCEEDINGS THEREAFTER
[2.5.1] Under section 99(1) of the Charter, it is stated that every judgment of divorce shall in the first instance be an “interim judgment”.
This interim judgment shall not be made final before the expiration of three months from its grant unless the court by general or special
order from time to time fixes a shorter period.
[2.5.2] Under section 99(2) of the Charter, where an interim judgment has been granted, any person may show cause why the judgment
should not be made final by reason of the material facts not having been brought before the court. The Charter sets out what the court
can do under the circumstances:
1. Confirm the interim judgment and make the judgment final;

2. Rescind the interim judgment;
3. Require further inquiry; or
4. Otherwise deal with the case as it thinks fit.
[2.5.3] In fact, where an interim judgment of divorce has been granted and there is no application for it to be made final, then, at any
time after the expiration of three months from the earliest date on which that party could have made such an application, the party
against whom it was granted may make an application to the court and on that application the court may also exercise the powers
stated in the above paragraph.
[2.5.4] The “material fact” under section 99(2) requires the applicant to go beyond showing a good defence to the claim. An interim
judgement may only be rescinded if the applicant shows that the judgement was issued because material facts which should have been
disclosed were not. 34
2.6 PROCEEDINGS FOR INTERIM JUDGMENT OF PRESUMPTION OF DEATH AND DIVORCE
[2.6.1] Section 100(1) of the Charter allows the court to dissolve a marriage on presumption of death of the spouse. However the plaintiff
has to show that reasonable grounds exist for supposing that the other party to the marriage is dead. Only under such circumstances
may a writ be filed. The court has to be satisfied that such reasonable grounds exist. However subsection (2) goes on to state that in any
such proceedings, the fact that for a period of seven years or more the other party to the marriage has been continually absent from the
plaintiff, and the plaintiff has no reason to believe that the other party has been living within that time, shall be evidence that he or she
is dead until the contrary is proved. In other words, if for seven years or more, the other spouse has been continually absent and the
plaintiff has no reason to believe the person to be alive, there will be a presumption of death. 35
2.7 JUDICIAL SEPARATION
[2.7.1] A plaintiff can file a writ in court for judicial separation instead of a writ for divorce if for personal reasons, i.e. religion, that
plaintiff does not wish to be divorced but wants to avail him or herself of the remedies available under ancillary relief or in respect of
children. 36
[2.7.2] The plaintiff can rely on any of the five facts of divorce as explained above but the plaintiff must not plead that the marriage has
irretrievably broken down. But when the court grants a judgment of judicial separation, it shall no longer be obligatory for the plaintiff
to cohabit with the defendant. 37
[2.7.3] Similarly, the court retains the power to 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. 38
[2.7.4] Judicial separation is not a bar to the filing of a writ for divorce. 39 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. 40 Judicial separation does not end the marriage legally.
Parties who are judicially separated, where cohabitation is no longer obligatory, cannot be compelled to consent to a divorce based on
three years separation. 41
[2.7.5] The grant of judicial separation legally ends the marital union in that judicially separated spouses are not entitled to claim in
intestacy of each other. 42
2.8 NULLITY OF MARRIAGE
[2.8.1] The effect of a decree of nullity is to annul a marriage, where the court declares the marriage as null and void. There are two
types of annulment: the marriage can either be: (a) void, or (b) voidable.
A. Void Marriages
[2.8.2] Section 105 of the Charter states specifically that any marriage which takes place after June 1, 1981 shall be void on the following
grounds only:
(a) that it is not a valid marriage by virtue of sections 3(4), 43 5, 44 9, 45 10, 46 11, 47 12 48 and 22; 49 or
(b) where the marriage was celebrated outside Singapore, that the marriage is invalid —
(i) for lack of capacity; or
(ii) by the law of the place in which it was celebrated.
B. Voidable Marriages
[2.8.3] A marriage is voidable if the circumstances surrounding the marriage prevent it from having any legal effect. Section 106 of the
Charter states that a marriage which takes place after June 1, 1981 shall be voidable on the following grounds only:
(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it;
(b) that the marriage has not been consummated owing to the wilful refusal of the defendant to consummate it; 50
(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, mental disorder or
otherwise;
(d) that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or
intermittently) from mental disorder within the meaning of the Mental Health (Care and Treatment) Act 2008 of such a kind or
to such an extent as to be unfit for marriage;
(e) that at the time of the marriage the defendant was suffering from venereal disease in a communicable form;
(f) that at the time of the marriage the defendant was pregnant by some person other than the plaintiff.
[2.8.4] A decree of nullity could only be sought by the parties to the marriage and not by strangers to the marriage. 51 The more
commonly applied section is under section 106(b). For applications under this section, a grant of nullity is not easily granted unless the
court is satisfied that there was no consummation and there was wilful refusal by the defendant to demonstrate such wilfulness. The
plaintiff must give full particulars to show that the plaintiff did not cause it and had offered everything required of him or her. 52 A
grant of nullity could also be set aside if material facts were not disclosed to the court in the papers. 53 It is clear from the cases that
even if the application for nullity is not contested, the courts expect plaintiffs to comply with the legal and evidential requirements to
prove the fact on which they seek a decree of nullity for voidable marriages.
[2.8.5] One has to note that if one is to commence proceedings to annul the marriage on grounds stated in section 106(c), (d), (e) or (f),
one has to institute proceedings within three years from the date of the marriage. 54 In addition, the court will not grant a judgment of
nullity on the grounds mentioned in section 106(e) or (f) unless it is satisfied that the plaintiff was, at the time of the marriage, ignorant
of the facts alleged.
[2.8.6] There are bars to relief for nullity proceedings. Section 107(1) of the Charter states that the court shall not grant a judgment of
nullity on the ground that a marriage is voidable if the defendant satisfies the court that:
1. The plaintiff, with knowledge that it was open to him or her to have the marriage avoided, so conducted him or herself in
relation to the defendant as to lead the defendant reasonably to believe that he or she would not seek to do so; and
2. It would be unjust to the defendant to grant the judgment. 55 In K Sulochana a/p Krishnan v Chandran s/o Sankunny Nair, the
wife appealed against the dismissal of her petition for a decree of nullity, on the grounds of the husband’s wilful refusal to
consummate. But in this case, although the court touched on the question of “unjustness” of granting a decree of nullity where
the defendant did not contest the petition, it did not set out what the general principles on the definition of “unjustness” are. The
court in this case considered all the circumstances of the case, and set out that the assessment of whether it would be unjust
would be an objective one on the facts of the case.
[2.8.7] What is the effect of a judgment of nullity in the case of voidable marriages? It shall operate to annul the marriage only as
respects any time after the judgment has been made final, and the marriage shall, notwithstanding the judgment, be treated as if it had
existed up to that time. 56 That is why the legitimacy of children born to a marriage that is voidable is not affected. 57 But for children of
void marriages, legitimacy is also not affected if both or either of the parties reasonably believed that the marriage was valid at the time
of the marriage contract. 58
2.9 CHINESE CUSTOMARY MARRIAGES
[2.9.1] Section 181 of the Charter preserves the validity of a Chinese customary marriage entered into before the cut-off date of
September 15, 1961. It provides:
(1) Nothing in this Act shall affect the validity of any marriage solemnized under any law, religion custom or usage prior to the
15th of September 1961.
(2) Such marriages, if valid under the law, religion custom or usage under which they were solemnized, shall be deemed to be
registered under the provisions of this Act.
(3) Every such marriage, unless void under the law, religion, custom, or usage under which it was solemnized, shall continue until
dissolved –
(a) by the death of one of the parties;
(b) by order of a court of competent jurisdiction; or
(c) by a declaration made by a court of competent jurisdiction that the marriage is null and void.
[2.9.2] Under sections 4 and 5 of the Charter, if a party is lawfully married before the said cut-off date, he or she will be incapable of
entering into subsequent marriages. Any marriage entered into after this cut-off date by such party will be void.
[2.9.3] The recognition of Chinese customary marriages in the eyes of the law is fact dependent. In the recent intestacy case of Wong
Swee Hor v Tan Jip Seng & Ors, 59 the court has to determine whether two marriages solemnised before 1961 (in 1942 and 1957) had
been solemnised under any law, religion, custom or usages prior to September 15, 1961 pursuant to section 181 of the Charter. Justice
Woo Bih Li examined the common law on Chinese customary marriages as it stood prior to September 15, 1961 and observed that prior
to September 15, 1961, a man could marry one wife (known as the “primary” or “principal” wife or “tsia”) and at the same time have any
number of other women as concubines known as “secondary” wives or “tsips”. The court found that for marriages to be recognised as
legitimate, there must be evidence to show a common intention to form a permanent union as husband and wife and the formation of
the union pursuant to a written contract or some sort of ceremony. The court also looked at other evidence to show whether parties
lived their lives in a way as to acquire the reputation of being married. In this case, the court also looked at the inscriptions on the
tombstone, niche application form and obituary of the deceased husband.
FOOTNOTES
1 Article available at <www.drlwilson.com>.
2 Women’s Charter (Amendment) Act 1967, 1980, 1996 and 2011.
3 [2011] SGDC 217.
4 [2010] SGDC 235.
5 [2014] SGHC 195.
6 Peters Roger May v Pinder Lillian Gek Lian [2006] 2 SLR(R) 381.
7
Peters Roger May v Pinder Lillian Gek Lian [2009] SGHC 90.
8
Udny v Udny (1869) LR 1 Sc & Div 441 at 458; Doucet v Geoghegan (1878) 9 Ch D 441; Waddington v Waddington (1920) 36 TLR 359; Gulbenkian v Gulbenkian
[1937] 4 All ER 618 at 626–627.
9 [2012] SGHC 180 at [5].
10
R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309.
11 Lee Mei-Chih v Chang Kuo Yuan [2012] SGHC 180 at [8].
12 Section 93(2) of the Charter.
13 [2003] SGDC 186.
14 Tan Meng Heok v Tay Mui Keow & Anor [1992] SGHC 218.
15 Definition given by Professor Leong Wai Kum in Elements of Family Law in Singapore, 2nd edn (LexisNexis), p 158.
16 Rule 47(1) of the Family Justice Rules 2014.
17 Preston-Jones v Preston Jones [1951] AC 391 at 471.
18 [1974–1976] SLR(R) 510; Tan Meng Heok v Tay Mui Keow [1992] SGHC 218.
19 Leong Wai Kum, “A Turning Point in Singapore Family Law: Women’s Charter (Amendment) Bill 1979” (1979) 21 Mat LR 327.
20 [1994] SGHC 35.
21 Castello Ana Paula Costa Fusillier v Lobo Carlos Manuel Rosado [2003] SGHC 219; Teo Hoon Ping v Tan Lay Ying Angeline [2009] SGHC 244.
22 [2015] SGFC 1.
23 [2014] SGDC 185.
24 [2015] SGFC 38.
25 TDK v TDL [2015] SGFC 1 at [40], the court is “satisfied that the wife had proven, on the balance of probabilities, that the husband had behaved in a way that
she cannot reasonably be expected to live with him.”
26
Perry v Perry [1963] 3 All ER 766; YZ v ZA [2008] SGDC 191; Miller v Miller [1998] MLR 183.
27
Buchler v Buchler [1947] P 25, cited in Seah Cheng Hock v Lau Biau Chin [1969] SGHC 9.
28 [1990] SGHC 8.
29 Tan Lee Tiang v Chia Thuan Hwa [1993] SGHC 256, which followed the case of Leong Kwek Keong v Lee Ying Kuan, ibid.
30 Tan Lee Tiang v Chia Thuan Hwa, ibid, where the wife’s petition for divorce was dismissed as the court found that both the physical and mental requirements
were not met. In Deepak Govindran Kirpalani v Rita Kishinchand Bhojwani [2006] SGDC 173, the Writ for Divorce on grounds of separation was dismissed as
the court found that the mental requirement was not satisfied.
33 As set down in Leong Kwek Keong v Lee Ying Kuan [1990] SGHC 8.
34 Judith Prakash J in AON v AOO [2011] SGHC 16. For cases where the court set aside interim judgements, please refer to Racaza Juliet v Caton Daniel Andrew
[2004] SGDC 275; and Chng Yock Eng v Kwa Teck Meng [2004] SGDC 268.
35 On the burden of proof, please refer to the case of Re Kornrat Sriponnok [2015] SGHC 81 on sections 109 and 110 of the Evidence Act (Cap 97). It is not out of
line to say that the Family Court will be slow to make an order under section 100(1) of the Charter unless there is clear evidence to show why the plaintiff has
no reason to believe the person to be alive.
41 Lau Ca Cheng v Ho Kee Wai Tony [2014] SGDC 470.
42 Section 103 of the Charter.
43 Muslim marriages not registrable under the Charter.
44 Second marriage not allowed under the Charter.
45 Avoidance of marriages where either party is under minimum age for marriage.
46 Marriages within prohibited degrees.
47 Avoidance of marriages by subsisting prior marriage.
48 Avoidance of marriages between persons of same sex.
49 Requirements for valid marriages.
50 See the cases of Kwong Sin Hwa v Lau Yee Yen [1993] SGCA 6; and LSJ v LKK [1992] SGHC 168 where grants of nullity were given by the courts.
51 Tan Ah Tee & Anor (administrators of the estate of Tan Kiam Poh) v Sim Soo Fong [2009] 3 SLR(R) 957.
52 Tang Yuen Fong v Poh Wee Lee [1995] SGHC 149; Heng Joo See v Ho Poi Ling [1993] SGHC 201.
53 Low Choon Kung v Tham Chan Kum [2004] SGDC 139.
55 K Sulochana a/p Krishnan v Chandran s/o Sankunny Nair [1994] SGHC 19.
59 [2014] SGHC 263.

2016 - 10 - 17 PAGE 33

Chapter 03: Forum and Jurisdiction
Chapter 3
Forum and Jurisdiction

Koh Tien Hua
3.1 Introduction 34
3.2 Divorces 36
3.3 Issues Relating to Children 41
3.4 Setting Aside Interim Judgments for Divorce, Final Judgments for Divorce and Ancillary Matters 43
A. Making Interim Judgments into Final Judgments 43
B. Setting Aside and/or Rescission of Interim Judgment 47
C. Setting Aside of Orders Made on Ancillary Matters 62
3.5 Forum 70
3.6 Lis alibi pendens 75
3.1 INTRODUCTION
[3.1.1] The Family Justice Courts (“FJC”) has jurisdiction to hear and determine all matters in relation to family proceedings. Family
proceedings are defined by section 2 of the Family Justice Act 2014 (No 27 of 2014) (“FJ Act”) to mean:
1. Any civil proceedings under section 53 of the Administration of Muslim Law Act (Cap 3);
2. Any civil proceedings under the Adoption of Children Act (Cap 4);
3. Any civil proceedings under the Guardianship of Infants Act (Cap 122) (“GIA”);
4. Any civil proceedings under the Inheritance (Family Provision) Act (Cap 138);
5. Any civil proceedings under the International Child Abduction Act (Cap 143C);
6. Any civil proceedings for the distribution of an intestate estate in accordance with the Intestate Succession Act (Cap 146);
7. Any civil proceedings under the Legitimacy Act (Cap 162);
8. Any civil proceedings under section 10 of the Maintenance of Parents Act (Cap 167B);
9. Any civil proceedings under the Maintenance Orders (Facilities for Enforcement) Act (Cap 168);
10. Any civil proceedings under the Maintenance Orders (Reciprocal Enforcement) Act (Cap 169);
11. Any civil proceedings under the Mental Capacity Act (Cap 177A);
12. Any civil proceedings under the Mental Health (Care and Treatment) Act (Cap 178A);
13. Any civil proceedings under the Status of Children (Assisted Reproduction Technology) Act 2013 (Act 16 of 2013);
14. Any civil proceedings under section 17A(2) of the Supreme Court of Judicature Act (Cap 322);
15. Any civil proceedings under the Voluntary Sterilization Act (Cap 347);
16. Any civil or quasi-criminal proceedings under the Women’s Charter (Cap 353); and
17. On or after the date specified under section 47(11) of the FJ Act, any civil proceedings under the Probate and Administration Act
(Cap 251).
[3.1.2] The FJC comprises the Family Division of the High Court, the Family Courts and the Youth Courts. The FJC is presided over by a
Presiding Judge who is appointed by the President on the recommendation of the Chief Justice. The Presiding Judge will be either a Judge
or Judicial Commissioner of the Supreme Court. 1
[3.1.3] The Family Division of the High Court is part of the High Court through which the High Court shall exercise original and appellate
civil jurisdiction of the High Court and such appellate criminal jurisdiction of the High Court as is provided for in the FJ Act. The Family
Division of the High Court also has general supervisory and revisionary jurisdiction of the High Court over the Family Courts, the Youth
Courts and the Tribunal for the Maintenance of Parents. 2
[3.1.4] The Family Courts including the Youth Courts are subordinate courts and the Family Court judges are District Judges or
magistrates. 3
[3.1.5] As the Family Division of the High Court is part of the High Court, it derives its original jurisdiction in civil and criminal matters
from the Supreme Court of Judicature Act (Cap 322).
[3.1.6] Section 16 of the Supreme Court of Judicature Act (Cap 322) vests in the High Court jurisdiction to hear and try any action in
personam where a defendant is served with a writ or other originating process in Singapore in the manner prescribed by the Rules of
Court; or outside Singapore in the circumstances authorised by and in the manner prescribed by the Rules of Court or where a defendant
submits to the jurisdiction of the High Court. Section 22 of the FJ Act provides that the Family Division of the High Court shall have specific
jurisdiction as conferred on the High Court by sections 17(a) of the Supreme Court of Judicature Act (Cap 322) (i.e. jurisdiction under any
written law relating to divorce and matrimonial causes); 17(d) of the Supreme Court of Judicature Act (Cap 322) (i.e. jurisdiction to appoint
and control guardians of infants and generally over the persons and property of infants); 17(e) of the Supreme Court of Judicature Act (Cap
322) (i.e. jurisdiction to appoint and control guardians and keepers of the persons and estates of idiots, mentally disordered persons and
persons of unsound mind); 17(f) of the Supreme Court of Judicature Act (Cap 322) (i.e. jurisdiction to grant probates of wills and
testaments, letters of administration of the estates of deceased persons and to alter or revoke such grants); and 17A of the Supreme Court
of Judicature Act (Cap 322) (i.e. concurrent jurisdiction with the Syariah Court in certain matters relating to maintenance for any wife or
child, custody of any child and disposition or division of property on divorce). The Family Division of the High Court has such other
jurisdiction relating to family proceedings as is vested in or conferred on the High Court by any written law.
[3.1.7] In Muhd Munir v Noor Hidah and Other Applications, 4 Chan Sek Keong J (as he then was), in defining jurisdiction, ruled:
“Jurisdiction” and “powers”

The jurisdiction of a court is its authority, however derived, to hear and determine a dispute that is brought before it. The powers of a
court constitute its capacity to give effect to its determination by making or granting the orders or reliefs sought by the successful
party to the dispute. The jurisdiction and powers of the High Court are statutorily derived. Whether it has any common law
jurisdiction or powers is a question which is not relevant here. A court may have jurisdiction to hear and determine a dispute in
relation to a subject matter but no power to grant a remedy or make a certain order because it has not been granted such power,
whereas if a court has the power to grant a remedy or make a certain order, it can only exercise that power in a subject matter in
which it has jurisdiction.
3.2 DIVORCES
[3.2.1] The FJC has the jurisdiction to hear and determine divorces where the marriage is solemnised and registered under civil law.
Section 3(2) of the Women’s Charter (Cap 353) (the “Charter”) expressly excludes the Act from applying to any person who is married
under, or to any marriage solemnised or registered under, the provisions of the Muslim law or of any written law in Singapore or in
Malaysia providing for the registration of Muslim marriages.
[3.2.2] The Charter is the governing statute relating to marriages and divorces. It provides for and governs “monogamous marriages and
for the solemnization and registration of such marriages; to amend and consolidate the law relating to divorce, the rights and duties of
married persons, the protection of family, the maintenance of wives, incapacitated husbands and children and the punishment of offences
against women and girls; and to provide for matters incidental thereto”.
[3.2.3] The Charter applies to all persons in Singapore and all persons domiciled in Singapore. 5 A Singapore citizen is deemed to be
domiciled in Singapore until the contrary is proved. 6 Professor Leong Wai Kum, in reference to the foregoing, postulated that “the
contrary” in the said section means “to abandon his domicile”. 7 In Arrowsmith D B v Chang Lee Chin, 8 AP Rajah J had occasion to
deliberate on the equivalent of section 3(5) of the Charter (i.e.section 3(4) of the then Act). The court ruled:
5 Section 3(4) of the Act enacts that: “For purposes of this Act, a person who is a citizen of Singapore shall be deemed, until the
contrary is proved, to be domiciled in Singapore.” In the case of a male Singapore citizen the presumption as to domicile would
continue until such time as is shown that he had a foreign domicile, either acquired at birth or by choice.
[3.2.4] 3Section 93(1) of the Charter provides that the court has 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) is habitually resident in Singapore for a period of three years immediately preceding the
commencement of the proceedings.
[3.2.5] In Peters Roger May v Pinder Lillian Gek Lian, 9 VK Rajah J (as he then was) set out the position that “the two components necessary
to establish a domicile of choice are (1) voluntary residence as an inhabitant rather than a casual visitor; and (2) an intention to remain
indefinitely”. In Didier Von Daniken v Sanaa Von Daniken Born El Kolaly, 10 Khoo Oon Soo DJ ruled that the law relating to domicile is by
and large not disputed, and that domicile is acquired through the two above-mentioned elements.
[3.2.6] On the question of domicile, the case Peters Roger May v Pinder Lillian Gek Lian is instructive as VK Rajah J (as he then was), had
set out the following general principles: 11
13 All persons must have a domicile. On birth a person is affixed with a domicile of origin; the father’s domicile if he is legitimate and
born within the father’s lifetime or the mother’s domicile if he is illegitimate or born after the father’s death. This domicile of origin
prevails until a person acquires a new domicile of choice or dependence: see Theobold on Wills (Sweet & Maxwell, 16th Ed, 2001) at
para 1-02.
14 A person cannot have more than one domicile at any particular point of time. The legal policy underpinning the concept of
domicile is to ensure that there is a definite law of succession to connect that person with a particular legal system: Sommerville v
Lord Sommerville (1801) 5 Ves 750 at 786; 31 ER 839 at 858; Forbes v Forbes (1854) Kay 341 at 353; 69 ER 145 at 150. The concept of
domicile also plays a critical role in many legal systems in determining jurisdiction in matrimonial proceedings and family law
related matters.
15 The party who alleges that a domicile has been changed bears the burden of sustaining the allegation. Typically, more cogent
evidence is required to prove the change of a domicile of origin than of one domicile of choice to another: see Theobold on Wills ([13]
supra) at para 1-03.
16 It is possible for a person to have more than one home, each one in a different country. The enquiry is then to focus on which of the
residences is the “chief residence” or the primary residence; see Udny v Udny (1869) LR 1 Sc & Div 441 at 458, Morgan v Cilento [2004]
EWHC 188; [2004] WTLR 457 at [11].
[3.2.7] In the case of The Estate of Fuld (Deceased) (No 3) (“Fuld’s case”), 12 Scarman J had to consider whether the German testator’s 15-
year stay in London was sufficient to found a domicile of choice. The English court held:
a domicile of choice is acquired only if it be affirmatively shown that the propositus is resident within a territory subject to a
distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely.
...
I am satisfied that Peter Fuld resided in London from 1946 to November, 1961. But London was not his sole residence. He also had a
place of residence in Germany. For most of the time, however, and particularly in his later years, he regarded London as his chief
place of residence. He did so because of his immediate circumstances, of which the most important was the presence of his mother in
Frankfurt. I am not satisfied that he ever made up his mind to settle in England, or, to put it in the language of the authorities to which
I have referred, that he ever formed the intention of continuing to reside in England for an unlimited time. It may be, as Mr. Parker
has submitted, that he never made up his mind. I think it more likely that his innermost wish was at all times, and more particularly
after he had married the German girl Marina, to return to Germany, to live in Annastrasse and to play an active part in the
management of the family business. Immediate external circumstances, i.e., the presence of his mother in Germany, the strain of their
relationship, and the reluctance of those in control of the family business to let him into its management, alone thwarted him. But 14
Annastrasse was there, his mother was old, and his stake and rights in the business were so immense that the realisation of this
intention was no mere pipe-dream but, in his mind and in all objective probability, something to be achieved sooner rather than later.
All this is consistent with his love for Canada and later for London. For him Canada would always remain the land of romance of his
salad days. He would always feel its pull, especially as in December, 1960, during periods of unhappiness. London was the haven of his
later years, where he could choose his own friends, live his own life, pleasantly removed from the influence of the jealous and
possessive mother, yet near enough to Frankfurt, which remained the key to his fortunes, the foundation upon which the structure of
his life, wherever it was spent, was necessarily based.
Thus, though my judgment rests on the negative proposition that those who assert the acquisition of a domicile of choice have failed
to prove the intention required by law, I must add that I think in fact Peter Fuld never did acquire such an intention. He may never
have made up his mind as to his permanent home, but I believe that, deep down, he never abandoned an intention to return to live in
Frankfurt. He was waiting his opportunity when disease, fatal in the event, struck him.
In my opinion, therefore, Peter Fuld was at all material times domiciled in Germany.
[3.2.8] In the House of Lords’ case of Udny v Udny, 13 Lord Westbury held:
Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief
residence in a particular place, with an intention of continuing to reside there for an unlimited time.
[3.2.9] The following statement from Halsbury’s Laws is also worth noting: 14
48. Residence as evidence. Residence in a country, especially if it is continued for a long period, is evidence of an intention to remain
there; in the absence of other evidence, residence alone may support the inference that a domicile has been acquired. Such cases will
be rare, however, and, while residence is always material evidence, it is seldom decisive, for slight circumstances may serve to show
the absence of a settled intention.
[3.2.10] In Lee Mei-Chih v Chang Kuo-Yuan, 15 the High Court per Choo Han Teck J found that the phrase “habitually resident” was to mean
for all intents and purposes the same as the phrase “ordinarily resident”. He referred to and approved the principles set out in R v Barnet
London Borough Council, Ex p Nilish Shah (“Nilish”). 16 However, the High Court ruled that the plaintiff did not satisfy the statutory
requirement of three years of habitual residence due to her absences from Singapore within the three-year qualifying period. The High
Court ruled:
8 However, the plaintiff has failed to establish the requisite degree of continuity of habitual residence throughout the Qualifying
Period for the purposes of s 93(1)(b) of the Women’s Charter. There is no fixed period as to what constitutes a brief absence. That is a
question of fact for the individual case, but it would be sensible and fair to say that holidays abroad would not break an otherwise
habitual residence as some courts have held. However, the principle is not merely about “holidays” but any brief period (or several
brief periods) when the claimant was away. In considering whether the time away had broken the “habitually resident” requirement,
the court has to consider not just the reason for being away, but also the length of time spent away. In the present case, the plaintiff
had travelled out of Singapore and stayed in Taiwan for about eight months from 2 August 2010 to 15 April 2011. She claimed that she
went to defend herself in her divorce proceedings there. Given the extended length of the trip and the fact that the plaintiff had
returned to her home country, the Taiwan trip could not have been said to be within the acceptable exceptions of holiday trips or
business trips. Although the Taiwan trip was necessitated by circumstances beyond the plaintiff’s control and was brought about by
the defendant’s actions in instituting the Taiwan divorce proceedings, this was ultimately irrelevant for the purposes of ascertaining
the requisite degree of continuity of habitual residence under s 93(1)(b) of the Women’s Charter. To hold otherwise would mean that
had the proceedings in Taiwan kept the plaintiff away from Singapore for say two out of the three-year period, she could still have
qualified as having been habitually resident here. That would plainly go against the spirit of s 93(1)(b) of the Women’s Charter. In
addition to the Taiwan trip, the plaintiff had also travelled to New Zealand for about four months from 29 January 2009 to 6 June 2009
to settle her daughter into her school there. As alluded to earlier, the plaintiff was, and still is a citizen of New Zealand as well. The
plaintiff also made several other trips to other countries but I would place little weight on this fact because those trips were fairly
short. In my view, the total of about 12 months extended absence for both the Taiwan and New Zealand trips was substantial when
viewed against the backdrop of the mandatory three year Qualifying Period.
9 Accordingly, I find that the plaintiff was not habitually resident in Singapore for the Qualifying Period within the meaning of s 93(1)
(b) of the Women’s Charter. The Singapore courts thus do not have jurisdiction to hear the matter.
3.3 ISSUES RELATING TO CHILDREN
[3.3.1] The court’s jurisdiction to hear and determine children’s issues as vested in the FJC by virtue of the GIA and sections 122–132 of the
Charter may depend on whether the child or children is resident in Singapore at the material time. In Sim Hong Boon v Sim Lois Joan
(“Sim’s case”), 17 the Court of Appeal per Wee Chong Jin CJ put the issue as follows:
6 Now it is common ground that when considering the question of custody the first and paramount consideration is the welfare and
interest of the infant in question. It is also common ground that the High Court has jurisdiction to entertain an application for custody
and to make an order for custody in respect of a child of the marriage even though that child is out of the jurisdiction of the court and
even though the respondent in such an application is out of the jurisdiction of the court. It is also common ground that in such
circumstances it is rare or exceptional or highly unusual for a court to make a custody order in respect of a child who is out of the
jurisdiction but it is also common ground that in special circumstances or in exceptional cases the courts can and will make such
custody orders.
...
7 ... The true principle seems to us to be that if there are special circumstances and where the parties are before the court in the sense
that they have submitted to the jurisdiction of the court, even though the subject matter of the application the child of the marriage is
not before the court, that the court has jurisdiction and the court would not assume that any order which it makes relating to the child
cannot be enforced, and the court should consider that once the parties have submitted to the jurisdiction of the court, the court is not
to assume that the party against whom the order has been made would disobey any order that may be made ...
[3.3.2] In the above case, the Court of Appeal found that there were special circumstances which warranted the court making a custody
order notwithstanding that the child was out of the jurisdiction and it pointed out that the Supreme Court of Western Australia had
expressly declined to adjudicate on the issue of custody of the child until the High Court in Singapore had heard and determined the issues
of divorce and custody.
[3.3.3] In the case of In the matter of B (child of TII), 18 Guy Ghazali DJ followed Sim’s case and ruled that there was a general rule that the
court will not make an order in respect of a child who is out of the jurisdiction of the court unless there are special circumstances or in
exceptional cases and found that on the factual circumstances, there were no special or exceptional circumstances which warranted the
making of a guardianship order in relation to a child who was out of the jurisdiction of the court and who had no connection to Singapore.
Moreover, the court was unable to see how the welfare of the child was affected or was an issue given that the application was to take out
letters of administration.
[3.3.4] In Chotrani Gul Bhisham v Calderon Maria Teresa F, 19 the Family Court per Tan Peck Cheng DJ applied Sim’s case and ruled that as
a general rule, the court would not exercise jurisdiction if the child was not within its jurisdiction as there would be difficulty in the
enforcement of any orders made. The court would consider if there are exceptional or unusual circumstances for the making of a custody
order despite the child’s absence. The District Judge referred to Sim’s case as well as Sasaki Aya v Faheem Ul Islam 20 and Low Wing Hong
Alvin v Kelso Sharon Leigh 21 in her decision. Ultimately, the court declined to exercise jurisdiction as the court was unable to find any
compelling factors by which the circumstances could be regarded as exceptional or unusual for the making of a custody order in respect of
the child who was outside jurisdiction.
[3.3.5] In the Hong Kong case of LN v SCCM, 22 the Hong Kong Court of Appeal per Cheung JA ruled that:
... in general, the jurisdiction where the children habitually reside should try the matter. In the absence of express statutory
provisions, this is a matter of good common sense rather than a recognized custom or convention. After all, if the children are here,
issues concerning their well being can be conveniently dealt with in terms of the Court’s local knowledge and experience on the way
they are to be raised and educated, inquiry by social workers and experts, testimony from witnesses and the Court’s wish to hear the
views of the children directly. More importantly, this will ensure that there is no undue disruption of the children’s normal daily life
when the matter is heard on home grounds. Without going into a discussion on the legal meaning of habitual residence, it does appear
that the children have habitually been residing in Hong Kong.
[3.3.6] In Low Wing Hong Alvin v Kelso Sharon Leigh, 23 Lee Seiu Kin JC (as he then was) expressed similar views in that the fact of where
the children were residing at the material time may be of determinative consideration.
3.4 SETTING ASIDE INTERIM JUDGMENTS FOR DIVORCE, FINAL JUDGMENTS FOR DIVORCE AND
ANCILLARY MATTERS
A. Making Interim Judgments into Final Judgments

[3.4.1] All judgments dissolving a marriage under the Charter shall be in the first instance an interim judgment and shall only be made
final after three months have passed from the date the judgment was granted unless the court makes an order for a shorter period. 24
[3.4.2] The application to make an interim judgment final cannot be made before the conclusion of all applications for ancillary relief at
first instance unless with the leave of court. 25 Leave of court is also required if the application is made after a period of one year has
passed from the date of the interim judgment or the expiration of three months from the date of the last hearing of an application for
ancillary relief in the writ or defence and counterclaim (including the last hearing of any appeal), whichever is the later. 26
[3.4.3] Section 123 of the Charter must be taken into account in applications to make the interim judgment final as section 123 expressly
prohibits the making final of any judgment for divorce or nullity of marriage or judicial separation unless the court is satisfied that there
are satisfactory arrangements having been made for the children in the circumstances of the case or that it is impracticable to make any
such arrangements. 27 The court however has the discretion to proceed with the making of the interim judgment final notwithstanding
that the requirements in section 123(1)(a) and (b) of the Charter are not made out “if it appears that there are circumstances making it
desirable that the interim judgment be made final or, as the case may be, that the judgment of judicial separation should be granted
without delay and the court has obtained a satisfactory undertaking from either or both of the parties to bring the question of the
arrangements for the child before the court within a specified time.” 28
[3.4.4] In AQB v AQC, 29 Tay Yong Kwang J (as he then was), had occasion to consider section 123(1) and (2) of the Charter. Tay J ruled:
13 The husband contended that the threshold for the court’s satisfaction was not a high one, relying on ZK v ZL [2008] SGDC 376 (at [8])
which held that:
8 ... all that is required for the test to be met is that arrangements have been made for the welfare of the children and that those
arrangements are satisfactory. The function of the court at this stage is quite different from its function in the hearing for
ancillary relief. The test at this stage is not whether the arrangements for the children are ideal or the best. The purpose of the
provision is to make sure that the welfare of the children is not overlooked before the judgment is made final. [emphasis added]
14 In ancillary matters, with regard to custody, care and control, access and maintenance for the children, it is settled law that the first
and paramount consideration of the court is the welfare of the children. The protection of the children’s welfare is thus assured in the
hearing of the ancillaries. Therefore, at the stage of making the interim judgment final, all the court needs to ensure is that parties
involved have addressed their minds to the welfare of their children. Rule 8 of the MPR 2006 reinforces the importance of the
children’s welfare by requiring the plaintiff filing the writ for divorce to also submit an agreed parenting plan or, failing agreement
with the other spouse, a proposed parenting plan. If the children have been provided for, then, as recognised by Lord Wright in
Fender v St John-Mildmay [1938] AC 1 at [45]–[46], “the parties are entitled to provide for their future, at the end of the period fixed for
the [interim judgment to be made final]”. This was quoted with approval in Sivakolunthu Kumarasamy v Shanmugam Nagaiah [1987]
SLR 182 at [23]. Therefore, the role of the court at this stage is to recognise the realities
of the situation and allow the parties to move on with their separate lives, provided that they have made satisfactory arrangements
for their children’s welfare.
15 Section 123(3) of the Women’s Charter states that welfare “includes the custody and education of the child and financial provision
for him”. In the present appeal, the parties have joint custody and the issue of custody is not in dispute. Pursuant to an order of court,
the wife was granted interim care and control of the children, with access to the husband. The husband is not disputing the issue of
interim care and control. All outstanding applications relating to access have been determined by the High Court. There is no longer a
dispute relating to the education of the children. There is an existing maintenance order relating to the children’s interim
maintenance. Further, both the husband and the wife are well-off financially and each is able to provide for the children’s needs.
Therefore, the welfare of the children in this case has not been overlooked and satisfactory arrangements have been made for their
welfare. Accordingly, the condition under s 123(1)(a) for the interim judgment to be made final has been met.
[3.4.5] The High Court had referred to the decision of Jocelyn Ong DJ in ZK v ZL 30 and had approved the same. The learned District Judge
had reasoned as follows in making her orders to allow the making of the interim judgment final:
21 Hence I found that the only issue before me was whether the arrangements for the welfare of the children are satisfactory or the
best that can be devised in the circumstances as stipulated in section 123(1)(a) of the Women’s Charter. The parties have been
implementing the current arrangements for the past two years. It is true that they are both are now trying to vary those arrangements
but even if they both succeed, it will not result in any drastic change. Assuming they both succeed the older child will remain under
the care and control of the husband but with increased access to the wife. As for the younger child, even if there is a change in the
care and control order in effect he will be still be in the physical care and control of the husband every week from
22 Thursday to Sunday except that it will start from Thursday mornings instead of Thursday afternoons. In effect there will not be a
very huge or drastic change. In any event, orders on care and control and access are never written in stone and may be varied when
there is a change in circumstances. For the purpose of section 123(1)(a), what is important is that in the midst of the divorce
proceedings the children have not been overlooked and their welfare is being taken care of. On the facts of this case I found that the
current arrangements are satisfactory and I thus allowed the husband’s appeal to make the interim judgment final.
[3.4.6] In AEH v AEI, 31 Woo Bih Li J considered section 123 of the Charter and agreed with Tay J’s decision in AQB v AQC. 32 However, Woo
J expanded on the same and ruled:
19 I agreed that the purpose of the provision is simply to make sure that the welfare of every child is not overlooked when the
judgment is to be made final. I elaborate that Section 123(1) is meant to apply where there has been no court ruling in respect of every
child of the marriage. For example, where the parties have not sought such a ruling in respect of matters pertaining to every child, the
court is to consider whether satisfactory arrangements have been made for the welfare of every child. It is for the court to check that
such arrangements have been made and that they are satisfactory to the court.
20 In Section 123(1), the reference to “arrangements” having been made for the welfare of every child is to arrangements made by the
parties and not to orders of court.
21 This also appears to be the view in Leong Wai Kam, Elements of Family Law in Singapore, (LexisNexis, 2nd Ed, 2013) at p 217,
where the author suggests that Section 123(1) may largely have been superseded by the parenting plan required under the then
Women’s Charter (Matrimonial Proceedings) Rules. Under the current Family Justice Rules 2014, a parenting plan is still required
under r 45(1). Indeed, r 45(2) of the current rules goes on to stipulate that, “The parties to a marriage must try to agree on the
arrangements for the welfare of every dependent child of the marriage and file an agreed parenting plan”. Rules 45(3) and (4) also
refer to agreements on arrangements for the welfare of any dependent child of the marriage. These provisions are similar to Section
123(1) with the addition of the word “dependent” in the current rules for clarity. Therefore, if the court has made an order for the
welfare of every child, Section 123(1) does not apply.
22 Furthermore, Section 123(1) is not intended to allow one court to review whether an earlier order in respect of the welfare of the
child is satisfactory. To reiterate, an order of court does not constitute an “arrangement” for the purpose of Section 123(1) and while
another court may review or vary an earlier order, this is not done under Section 123(1).
23 Accordingly, Section 123(1) does not come into play just because one or both parties are dissatisfied with an order of court or with
the implementation of the order as Ms Ong was suggesting. Otherwise it will have the effect of preventing one party from extracting
the relevant certificate indefinitely so long as the other party is dissatisfied with the court’s order or the implementation thereof.
[3.4.7] In Hou Wa Yi v Yap Kiat Cheong (Yap Chai Ling & Anor, interveners), 33 the High Court per Choo Han Teck J ruled that a decree nisi
for divorce (akin to interim judgment for divorce) could not be made absolute (or final) upon the death of one of the parties. Choo J ruled:
3 There is no reported case in Singapore on this point but the issue was raised in the English case of Stanhope v Stanhope (1886) 11
PD 103 (“Stanhope”). In that case, the husband died after the decree nisi was granted and before it was made absolute. The husband’s
executor subsequently applied for the decree nisi to be made absolute. The Court of Appeal held that the executor could not revive the
suit for the purpose of applying to make the decree nisi absolute. Bowen LJ held at 108:
“A man can no more be divorced after his death than he can after his death be married or sentenced to death. Marriage is a union
of husband and wife for their joint lives unless it be dissolved sooner, and the Court cannot dissolve a union which has already
been determined.”
4 Stanhope was applied by the English Court of Appeal in In re Seaford, decd [1968] 1 P 53 (“Seaford”) and the Malaysian court in Suci
Mathews v Thomas Mathews [1985] 2 MLJ 228. I agree with the decision in Stanhope and the cases that followed. As Wilmer LJ held in
Seaford at 69:
“The death of the husband not only caused the suit to abate; it destroyed the cause of action, and there was no longer any subject-
matter to which the purported decree absolute could apply.”
5 The decree nisi is an inchoate order and, until it is made absolute, may be overtaken by the event of death. The proper reading of s 7
of the Women’s Charter is that a marriage is dissolved on the occurrence of any of the three events stipulated in ss 7(a)–7(c). Death of a
party to the marriage and a court order are two such events. The court order finally dissolving a marriage is the decree absolute and
not the decree nisi because the decree nisi will not dissolve the marriage if the court has reasons not to grant the decree absolute, rare
as that may be.
B. Setting Aside and/or Rescission of Interim Judgment

[3.4.8] An interim judgment for divorce may be set aside or rescinded in certain circumstances. The court’s powers to rescind or set aside
an interim judgment are set out in sections 99(1) and (2), and 136 of the Charter.
[3.4.9] The case of Heng Joo See v Ho Pol Ling 34 (“Heng’s case”) is authority for the proposition that the court may of its own motion or
volition rescind or set aside a decree nisi where the circumstances warrant the court’s intervention. In Heng’s case, a decree nisi was
granted nullifying the marriage entered into on August 8, 1991 based on a petition by the wife who alleged that nullity was appropriate on
the ground of non-consummation of the marriage. The husband did not contest the petition and stated that he agreed to the two further
prayers in the petition. On the wife’s evidence, the court concluded that there was no consummation. However, in a subsequent action for
an order that the husband be allowed to retain the flat and to receive the wife’s interest in it upon his refunding the wife’s Central
Provident Fund (“CPF”) withdrawals for the purchase of the flat, the husband’s evidence was that the couple did in fact consummate the
marriage post the date of marriage. The wife was recalled and she admitted to having sex with the husband during the first six months of
the marriage. The court rescinded the decree nisi on its own motion exercising its powers under its inherent jurisdiction. Punch
Coomaraswamy J ruled:
1 In Kwong Sin Hwa v Lau Lee Yen, the Court of Appeal said “in uncontested matrimonial causes, it is wrong for parties to assume that
the courts merely rubber stamp their petitions and grant the decree sought. It must be remembered that even in such proceedings the
material allegations must be proved to the satisfaction of the court”.
...
20 Section 91 of the Women’s Charter enables the Attorney General to intervene in a matrimonial cause either on the initiative of the
court or of any person who gives him information. Section 93(2) enables any person to show cause why a decree nisi for divorce, or by
s 103 for nullity, “should not be made absolute by reason of the material facts not having been brought before the court” and the court
may rescind the decree nisi.
21 Notwithstanding these provisions, a court has powers to act if, on material before it and without intervention by the Attorney
General or any other person, it is patently clear that a decree nisi was granted contrary to the material facts. A court cannot remain
idle when abuse of process by deception of the court takes place in its face resulting in removal of the very foundation on which it
previously acted and gave relief. In this case, it is not merely an instance of the material facts not being before me at the hearing of the
petition. Facts which constitute the basis and which are the very foundation for the relief provided by statute were asserted 100%
contrary to the truth. Failure of the court to act on knowledge of
the truth will make it the laughing stock amongst litigants and society generally.
...
22 Notwithstanding what I have just said, I invited counsel to make submissions on jurisdiction. I have no doubt that I have such
jurisdiction. Order 92 r 4 of the Rules of the Supreme Court (‘RSC’) reads:
“For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers
of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.”
23 This rule does not define or give the jurisdiction. It merely states that the RSC shall not limit or affect the inherent powers which
are common law powers. These powers have been examined by Master Jacob (later Sir Jack Jacob, Senior Master of the Supreme Court
and Queen’s Remembrancer) in an instructive lecture, since published in (1970) 23 Current Legal Problems at p 23. He cites all
relevant authorities.
24 Master Jacob describes the inherent jurisdiction “as being the reserve or fund of powers, a residual source of powers, which the
court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due
process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them”.
25 He classifies cases in which this inherent power may be used by the summary powers of the court as falling into these four
categories:
(a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;
(b) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper
purpose or in an improper way;
(c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose;
(d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.
26 The facts in this case, undisputed at present, fall fully and clearly into each of the first three categories and I cannot think of a
stronger case for the court to exercise its inherent jurisdiction.
[3.4.10] The case of Racaza Juliet S v Caton David Andrew 35 considered the principles set out in Heng’s case and Lim Hui Min DJ ruled:
Section 99(2) only seems to require the applicant for the rescission of a decree nisi to show that material facts have not been brought
before the court. He does not have to go on to show that there are elements of fraud and abuse of process, and that these elements are
“patently clear”. I am of the view that the stricter “patently clear”, “abuse of process/deception of the court” test is only applicable to
situations where the court decides to rescind the decree nisi of its own motion and not upon the application of any party (which was
the case in Heng Joo See)—as the court would not wish to unilaterally interfere in the parties’ lives, except where it is patently
necessary to protect the integrity and dignity of its own processes. Following this reasoning, I am of the view that I could rescind the
Decree Nisi in this case even if I did not find that the wife had committed fraud or that she was abusing the process of the court—so
long as I was satisfied that material facts had not been brought to the court’s attention at the time of the granting of the Decree Nisi.
(The analysis in this and paragraph 12 above are taken from paragraph 19 of Chng Yock Eng v. Kwa Teck Meng [2004] SGDC 268, a case
on the rescission of a decree nisi and decree absolute, as well as ancillary matters orders.)
[3.4.11] In Chng Yock Eng v Kwa Teck Meng, 36 Lim Hui Min DJ had occasion to consider the law on the setting aside of a decree nisi. The
first issue was whether service of legal process had been regularly effected on the defendant. The court ruled:
7 Under Order 2 Rule 1(2) of the Rules of Court (“the Rules”), the court has the discretion to set aside any judgment or order which has
been obtained in non-compliance with the Rules. Factors to be considered include the nature of the irregularity, whether there was a
delay on the part of the applicant in applying to set aside the order, and whether there was prejudice caused to the party which had
obtained the order. The applicant to any ex parte application must also make full and frank disclosure to the court. Failure to do so
would be a ground to set aside the order obtained on the application. The burden would be on the party applying to set aside the
judgment or order, however, to show that there has been a failure to make full and frank disclosure, and that there was non-
compliance with the Rules.
[3.4.12] The court also ruled that where service was regular and had been properly effected, the court could still set aside the decree nisi
on the merits of the case.
[3.4.13] In referring to section 99(2) of the Charter, the court said that the “material facts test” was more appropriate in applications to set
aside the decree nisi:
16 The principle a defendant should not be deprived of the opportunity of having his case adjudicated upon merely because he failed
to take a step in the proceedings should apply with even greater force in matrimonial matters where judgments do not simply involve
certain sums of money or certain properties, but affect a person’s status, his rights in relation to his children, his financial
responsibilities for years to come, as well as assets which may represent everything that he owns in the world.
...
18 This test of “material facts not having been brought before the court” (“the material facts test”) seems to be rather different, and
possibly stricter, than the “Saudi Eagle test” in that the applicant for rescission of the decree nisi must go beyond showing a good
defence to the petition, and demonstrate that material facts had not been disclosed to the court. It would be legally inconsistent if a
person who wants to rescind a decree nisi before the decree absolute is made has to comply with a stricter test than a person who
wants to rescind a decree nisi after the decree absolute is made. Therefore, I think, with all due respect to the court in Low Choon Kung,
supra, that “the material facts” test rather than the “Saudi Eagle test” alone should be adopted when deciding whether to rescind a
decree nisi— whether before or after a decree absolute has been made. (Though I think that the “Saudi Eagle test” would be appropriate
if the question is solely that of whether to set aside the ancillary matters order, and the decree nisi and decree absolute are not to be set
aside.) The rationale for the stricter test for the rescission of a decree nisi must be because a decree nisi affects a person’s status, unlike
an ordinary order of court or ancillary matters order which would only affect his money, property and other ancillary matters.
[3.4.14] In AON v AOO, 37 Judith Prakash J considered Chng Yock Eng v Kwa Teck Meng 38 and did not disagree with the findings of that
case. Judith Prakash J said:
11 DJ Lim noted that in Low Choon Kung v Tham Chan Kum [2004] SGDC 139 it was held that a decree nisi obtained by the husband
there against the wife there was essentially a judgment in default of appearance and, following the test laid down in the case of Alpine
Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc (The “Saudi Eagle”) [1986] 2 Lloyd’s Rep 221 (“the Saudi Eagle test”), if the wife was
able to show that she had a defence which had a real prospect of success and carried some degree of conviction, the wife would be
able to have the decree nisi set aside even if service of the divorce petition had been good. DJ Lim, however, declined to follow the
Saudi Eagle test in relation to the setting aside of a decree nisi because she considered, correctly in my respectful view, that this test
was inapplicable to the setting aside of judgments which have the effect of ending marriages. This was because s 99(2) of the Women’s
Charter (Cap 353, 1997 Rev Ed) specifically deals with the latter situation. The section states that a decree nisi may be rescinded if it is
shown that material facts have not been brought before the court. The implication is that the only way to obtain such a rescission is to
prove that the decree was issued because material facts which should have been disclosed were not. That is a stricter test than the
Saudi Eagle test and is warranted when the consequence of the judgment sought to be set aside is to change the status of a married
person. In relation to orders for ancillary matters, however, DJ Lim opined that the Saudi Eagle test would be appropriate because
such an order would only affect a person’s money or property or other ancillary rights and would not affect his status. DJ Lim went on
to apply the material facts test to the situation in Chng Yock Eng and then set aside both decree nisi and the decree absolute on the basis
that the wife in that case had not disclosed to the court material facts which were incompatible with the ground on which she had
petitioned for divorce. The divorce should not, therefore, have been granted.
12 The law in Chng Yock Eng on the setting aside of judgments which end a marriage has not been questioned in later judgments.
However, subsequent to Chng Yock Eng, the Court of Appeal in Mercurine Pte Ltd v Canberra Development Pte Ltd [2008] 4 SLR(R) 907
has clarified that in assessing whether a regular default judgment should be set aside, the appropriate test is that which was laid down
in Evans v Bartlam [1937] AC 473, ie, whether the defendant could establish a prima facie defence in the sense of showing that there
were triable or arguable issues, and not the Saudi Eagle test. This is a less stringent test than the Saudi Eagle test but, as the Court of
Appeal itself observed (at [61] of that judgment), its revival of the Evans v Bartlam test did not necessarily affect those cases where the
defendant’s conduct called for the court to be less than ready to exercise its setting aside jurisdiction. For the reasons given below,
even if it was appropriate to consider the circumstances here as akin to a default judgement situation, I would have held that the
wife’s conduct over the period of about a year precluded the court from readily exercising its setting aside jurisdiction in her favour.
This was not a case of a one-off failure to take an action like enter an appearance or file a defence. Instead the wife repeatedly failed
to avail herself of opportunities to take part in various stages of the proceedings.
[3.4.15] It will be pointed out that on appeal to the Court of Appeal in AOO v AON, 39 the Court of Appeal ruled that the concept of
judgment in default was inapplicable to matrimonial proceedings. The Court of Appeal per Andrew Phang JA ruled:
23 However, this was not an end to the matter. As already noted, the wife in the present case did not appear either in person or
through a legal representative at the hearing at which the ancillary order was made. The further issue that arises in this regard is
whether or not the ancillary order was a default judgment. The immediate question that arises in this regard is whether or not the
concept of a default judgment in general and O 13 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“Rules of Court”) are in fact
applicable in the context of the present proceedings. In this regard, it is clear that (with limited exceptions) the operative rules are not
the Rules of Court as such but, rather, the Women’s Charter (Matrimonial Proceedings) Rules (Cap 353, R 4, 2006 Rev Ed) (“Matrimonial
Proceedings Rules”) (see O 1 r 2(2) of the Rules of Court). Turning, then, to the Matrimonial Proceedings Rules, it would appear that
there is no provision for the concept of a default judgment in the context of matrimonial proceedings as the aforementioned rules
expressly exclude the operation of O 13 of the Rules of Court (see r 3(2) of the Matrimonial Proceedings Rules) ...
[3.4.16] The Court of Appeal in AOO v AON 40 went further to hold that as the concept of default judgments did not apply to matrimonial
proceedings, the judge had to hear the case on its merits and that the correct procedure for a party seeking to set aside such a judgment or
order made, would be for the afflicted party to apply to set aside the same under Order 35 rule 2 of the Rules of Court. The Court of Appeal
per Andrew Phang JA opined:
24 In our view, the answer to the question posed at the end of the preceding paragraph ought to be answered in the affirmative.
However, this would mean that the judge concerned would need to hear the case on its merits as the concept of a default judgment is
unavailable. But would this not result in prejudice to the party who did not attend the proceedings if judgment is given in favour of
the other party? The simple answer to that would be that the losing party would, presumably, have a right to apply – pursuant to O 35
r 2 of the Rules of Court – to set aside the judgment given in his or her absence (and see generally Supreme Court Practice 2009 (Jeffrey
Pinsler gen ed) (LexisNexis, 2009), especially at para 35/2/1 and (in particular) the decision of this court in Su Sh-Hsyu v Wee Yue Chew
[2007] 3 SLR(R) 673 (“Su Sh-Hsyu”)). Although this particular rule presumably applies (pursuant to r 3(1) of the Matrimonial
Proceedings Rules), it should be noted that, unlike other civil cases, it does not apply in tandem with the legal principles applicable to
a default judgment pursuant to O 13 of the Rules of Court simply because (as noted in the preceding paragraph) O 13 of the Rules of
Court has been expressly excluded by the Matrimonial Proceedings Rules. It should also be noted that the losing party would have the
right of appeal (in this situation, to the High Court).
[3.4.17] In respect of the “material facts” test, the District Court in Shameek Bhushan v Tina Gupta 41 per Wong Keen Onn DJ, defined the
“material facts tests” as follows:
8 In order to succeed in an application under section 99(2) Women’s Charter to rescind an Interim Judgment, an applicant is required
to show cause why the judgment should not be made final “by reason of the material facts not having been brought before the court”
(“the material facts test”). The test of “material facts” requires the applicant to go beyond showing a good defence to the claim. It is a
stricter test than the traditional “Saudi Eagle test” on whether to set aside a default judgment. The Interim Judgment (or decree nisi)
might only be rescinded if it was shown that material facts had not been brought before the court would vitiate the Interim Judgment:
per Judith Prakash J. in AON v AOO [2011] 2 SLR 926 at [11]. The High Court held that a stricter test “was warranted when the
consequence of the judgement sought to set aside was to change the status of a married person”.
...
14 On a proper reading of the above case authorities, it is pertinent to note in that to succeed in an application under section 99(2)
Women’s Charter, the undisclosed material facts must be of such a nature that it “destroys” the very basis of the grant of an interim
Judgment. To put it in another way, the material facts not disclosed earlier to the Court would have to be wholly incompatible to the
ground on which the Interim Judgment was granted.
[3.4.18] In Racaza Juliet S v Caton David Andrew, 42 Lim Hui Min DJ held that the “material facts” test was less strict than the test set out in
Heng’s case. The court ruled:
Section 99(2) only seems to require the applicant for the rescission of a decree nisi to show that material facts have not been brought
before the court. He does not have to go on to show that there are elements of fraud and abuse of process, and that these elements are
“patently clear”. I am of the view that the stricter “patently clear”, “abuse of process/deception of the court” test is only applicable to
situations where the court decides to rescind the decree nisi of its own motion and not upon the application of any party (which was
the case in Heng Joo See)—as the court would not wish to unilaterally interfere in the parties’ lives, except where it is patently
necessary to protect the integrity and dignity of its own processes. Following this reasoning, I am of the view that I could rescind the
Decree Nisi in this case even if I did not find that the wife had committed fraud or that she was abusing the process of the court—so
long as I was satisfied that material facts had not been brought to the court’s attention at the time of the granting of the Decree Nisi.
(The analysis in this and paragraph 12 above are taken from paragraph 19 of Chng Yock Eng v Kwa Teck Meng [2004] SGDC 268, a case
on the rescission of a decree nisi and decree absolute, as well as ancillary matters orders.)
14 The wife’s position is that she had simply made a mistake. She thought that the Japanese divorce had been finalised at the time of
the Hong Kong marriage ceremony. She therefore thought that the Hong Kong marriage was valid. In the circumstances, she has not
practised any deception on the court, nor on the Hong Kong marriage registry. She had agreed to the rescission of the Decree Nisi
because it was granted on the wrong basis—i.e. on the basis that the Hong Kong marriage was a valid one. The wife’s counsel
submitted that there was no evidence of any fraud on the wife’s part. The fact that she wrote “spinster” in the Hong Kong marriage
certificate was because the word “spinster” is a common term for a person who is not married, and did not indicate that the wife
deliberately wished to hide the fact that she was a divorcee.
15 I agree with the wife’s counsel that there is insufficient evidence for me to conclude that the wife had committed fraud, either on
the Hong Kong marriage registry or on the court. It seems rather startling to me that a person should be so careless (or cavalier) about
the dissolution of her own marriage and about entering into another marriage that she did not check the date of the dissolution
properly. But fraud is a serious allegation, and I require solid evidence to justify such a finding. There is no such evidence here.
16 But, clearly, the fact that the wife’s Japanese divorce had not been finalised at the time of the Hong Kong marriage ceremony is a
material fact which should have been brought before the court granting the Decree Nisi. As it was not, I have decided to rescind the
Decree Nisi, pursuant to Section 99(2) of the Charter (see paragraph 13 above).
[3.4.19] In Tan Bee Hoon (also known as Chen MeiYun) v Goh Leong Heng Aris Chen MeiYun, 43 Shobha G Nair DJ was faced with an
application made by way of summons-in-chambers by a husband seeking a rescission of the decree nisi and leave to file an answer and
cross-petition. The District Judge dismissed the application. In dismissing the application, the District Judge considered the application of
section 99(2) of the Charter and applied the “material facts test”. The court said:
21 While certainty and finality are principles which the court needed to be mindful of when faced with an application to rescind a
decree nisi, I went on to consider whether the grant of the decree in the case before me (based on the unreasonable behaviour of the
husband) could be attacked by any other material fact (i.e., apart from the alleged agreement) which was not disclosed to the court.
Looking at it another way, were the allegations by the wife false such that the decree could not be supported? ...
22 I did not find anything which could attack the decree at its core. It was merely an attempt by the husband to open the matter up
again and have his position recorded. It did not go beyond self-serving statements and many related to the ancillary matters.
[3.4.20] In Feng HuiBin v Wu XingHua, 44 the District Court per Lim Choi Ming DJ dealt with an application by a husband applying to
rescind the interim judgement dated September 24, 2010 pursuant to section 99(3) of the Charter. The husband’s application was dismissed
on the basis that the interim judgement made on September 24, 2010 was validly granted by a Singapore court and was first in time to
dissolve the marriage. The court had found that there was no existing marriage to be dissolved when the husband brought a divorce
action in China on January 28, 2011. The court applied the “material facts” test and ruled:
48 In the present case, I find that there is no undisclosed material fact which attacked the basis or root of the Interim Judgement. It is
clear that the Husband and the Wife desired the end to their marriage at the time when the Husband withdrew his defence and
consented to the grant of the Interim Judgement. He has further gone on to file his affidavits in relation to the ancillary matters after
the grant of the Interim Judgement and even after the China Divorce was granted. The Husband was fully prepared to participate in
the Singapore proceedings until he decided to file a summons to rescind the Interim Judgement. To my mind, it is the Husband who is
trying to abuse the process of court for his own benefit. It is patently clear that our Singapore action remains in force, and orders for
the ancillary matters can be made.
[3.4.21] In TBX v TBY, 45 Janice Chia DJ in dealing with a wife’s application to set aside the interim judgment granted to the husband on
October 28, 2013, applied the “material facts test” and at the conclusion of the hearing, dismissed the wife’s application with costs. The
court had ruled:
5 The power of the Court to set aside an Interim Judgment is set out in s 99(2) of the Women’s Charter. Notwithstanding the
Defendant’s Written Submissions, both counsels agree during the hearing that the applicable test for setting aside an Interim
Judgment is the ”material facts test” which is laid out in Chng Yock Eng v Kwa Tech Meng [2004] SGDC 268. In short, the Defendant
must show that the Interim Judgment “could be attacked by any other material fact which was not disclosed to court” (as elaborated in
the case of Tan Bee Hoon v Goh Leong Heng Arus Chen Mei Yun [2005] SGDC 221). To put it in another way, the facts which were not
disclosed must of such materiality that the Court would not have granted the Interim Judgment had the same facts been disclosed to
the Court. It is clear that this is a far higher standard than the standard required to set aside a default judgment, being “reasonable
prospect of success”. The burden of proof lies with the party seeking to set aside the Interim Judgment. The question therefore arises
as to whether the Defendant can show that the Plaintiff has failed to disclose material facts which would go to the root of the Interim
Judgment.
[3.4.22] In Yap Chai Ling, Yap Swee Jit v Hou Wa Yi (mw), 46 the District Court per Tan Peck Cheng DJ applied the “material facts” test to
determine an application where the applicants sought to set aside or have rescinded a decree nisi. The court declined to apply the “patently
clear” test used in Heng’s case and ruled:
30 It seems clear to me that the “patently clear” test ought to be applied only when the court is rescinding the decree nisi on its own
motion. I am of the view that there is no basis for me to apply the “patently clear” test as the court is not rescinding the decree nisi on
its own motion. I decided that the appropriate test in the present case is the “material facts” test. Applying that test I do not think that
the Decree Nisi was granted contrary to material facts for the following reasons.
[3.4.23] On appeal to the High Court, in Yap Chai Ling & Anor v Hou Wa Yi, 47 Hoo Sheau Peng JC analysed section 99(2) of the Charter as
follows:
31 For analytical purposes, s 99(2) may be broken down into four constituent parts:
(a) The first is a jurisdictional requirement. Section 99(2) may only be invoked between the grant of a decree nisi and the issuance of
the decree absolute: ie, before a marriage is dissolved. This raised a preliminary question of whether this court even had the
jurisdiction to set aside the Decree Nisi given that the marriage had already been dissolved by reason of the death of the
Husband.
(b) The second is a standing requirement. An application pursuant to s 99(2) may be brought by “any person”. It may seem
counterintuitive that a provision purportedly open to all imposes any sort of standing requirement but both parties accepted
that the expression “any person” includes “any member of the public” but specifically excludes the parties to the marriage. This
raised the question of whether the appellants, who purportedly brought the application in their capacity as “personal
representatives” of the Husband, had standing to invoke s 99(2).
(c) The third is a substantive requirement. In order to “show cause why the judgment should not be made [absolute]”, an applicant
must point to some “material facts not having been brought before the court”. This is the gateway to relief under s 99(2). Without
proof of this, no relief may be granted. The substantive requirement requires some analysis and will be discussed in some detail
below.
(d) The fourth is the discretionary component. Even if the substantive requirement has been satisfied, the court is not bound to
rescind a decree nisi. It may choose to exercise one of the alternative powers afforded to it under s 99(2), including the power to
“deal with the case as it thinks fit” (s 99(2)(d)).
[3.4.24] In respect of the “standing requirement”, the High Court ruled:
36 To reiterate, both Mr Koh and Ms Chai were in agreement that an application under s 99(2) may be brought by any member of the
public save for the parties to the marriage. This is a troubling submission because all the local cases cited by parties on s 99(2)
involved applications by parties to the marriages (see, eg, Chng Yock Eng v Kwa Teck Meng [2004] SGDC 268 (“Chng Yock Eng”); Racaza
Juliet S v Caton David Andrew [2004] SGDC 275 (“Racaza”); and Tan Bee Hoon (also known as Chen MeiYun) v Goh Leong Heng Aris Chen
MeiYun [2005] SGDC 221) (“Tan Bee Hoon”). For this reason, I think it necessary to examine this issue more closely, beginning with the
position in England, from where s 99(2) originated, before turning to its development in Singapore.
...
41 From England, we turn to Singapore. Like in England, the concept of a judicial divorce did not exist in Singapore before the
intervention of statute (see Leong Wai Kum, Principles of Family Law in Singapore (Butterworths Asia, 1997) at 692). It was only with
the passage of the Divorce Ordinance 1910 (Ordinance XXV of 1910), which was largely modelled on the English Matrimonial Causes
Act 1857 (as modified by subsequent enactments), that local courts were granted the jurisdiction to issue decrees for the dissolution of
marriages. Section 17(2) of the Ordinance was, mutatis mutandis, identical to s 7 of the Matrimonial Causes Act 1860. It likewise
permitted third parties to show cause why a decree nisi ought not to be made absolute by reason of collusion or the non-disclosure of
material facts. It remained largely unchanged until it was repealed and re-enacted as s 95(2) of the Women’s Charter (Ordinance No 18
of 1961). No changes were made to the text of the provision until the passage of the Women’s Charter (Amendment) Act 1980 (Act No
26 of 1980) (“1980 Amendment”) which enacted extensive changes to the law of divorce. Section 95(2) of the Women’s Charter (Cap 47,
1970 Rev Ed) was repealed and re-enacted. The reference to collusion was removed and the powers available to the court upon such
an application were specifically enumerated in four sub-paras. This is the form which s 99(2) takes today.
42 From the brief survey of the origin of s 99(2), it appeared clear to me that the position in Singapore ought to be the same as that in
England in that parties of a marriage are not entitled to rely on s 99(2). In this regard, I adopt the twin reasons articulated by the
English courts concerning the rationale for the provision (see [38]–[39]) and res judicata (see [40]). In my view, s 99(2) was introduced
by the legislature to avoid the court being misled by parties who seek to procure a divorce, and not for parties to re-litigate matters.
Accordingly, the purpose and object of s 99(2) is to provide a mechanism for third parties, and not the parties themselves, to show
cause why a decree nisi ought not to be made absolute because of non-disclosure of material facts.
44 The expression “application” in s 99(3) refers specifically to an application for a decree nisi to be made absolute. The differences
between ss 99(2) and 99(3) are telling. While s 99(2) relates to applications not to make decrees absolute and is open to “any party”, s
99(3) applications may only be brought for the purpose of obtaining decrees absolute and is only open to the respondents.
45 When viewed in light of their history and purpose, there is a logical unity to ss 99(2) and (3). Strangers to a marriage have no
standing to procure its final dissolution through the grant of a decree absolute and so their right of intervention is limited only to the
provision of facts to prevent a decree absolute from being granted. Conversely, respondents to divorce proceedings may elect to accept
the state of affairs and bring the marriages to an end by applying for decrees absolute. However, since they have already had the
chance to be heard, they may not re-litigate the grant of the divorce. One exception to this general rule is that should a respondent be
absent during divorce proceedings and subsequently wishes to set aside any orders made, he or she may apply to do so under O 35 r 2
of the Rules of Court (Cap 332, R 5, 2014 Rev Ed) (“ROC”) (see discussion at [48] below). This is a separate recourse which is
independent of s 99(2). For completeness, I should also note that s 97(1) of the WC provides that the Attorney-General may also
intervene in a divorce to raise such matters as he thinks necessary or to show cause against an interim judgment.
[3.4.25] In respect of the “material facts test”, Hoo JC opined:
The substantive requirement

54 As explained above, third parties are empowered to intervene in divorce proceedings to protect the public interest by “show[ing]
cause why a decree absolute should not be made [absolute] by reason of the material facts not having been brought before the court”.
When considering a s 99(2) application substantively, it appears to me that the court has to ask itself three questions:
(a) First, are the facts “material”? The test is, in my view, whether it was necessary for the facts to have been brought to the notice of
the court for consideration. From my review of the authorities, it appears to me that facts are “material” if they relate to the basis
of the grant of a decree nisi. For example, in Shameek Bhushan, the husband applied to rescind the decree nisi on the basis that
the wife had failed to inform him that her father had filed a criminal complaint against him in India for having treated his wife
cruelly. In rejecting the application, the District Judge held at [17] that the existence of criminal investigations in India was
entirely separate and independent of the Singapore divorce proceedings and was therefore not a material fact which was either
“incompatible with or that vitiated the foundation of the [decree nisi]”.
(b) Second, were these facts before the court which granted the decree nisi? All that is required is that the material facts have not
been brought before the court and had therefore not been taken into account in the decision to grant the decree nisi. It is not
necessary to go further to show that the party seeking the divorce had this information in his or her possession but deliberately
chose to withhold it: Howarth v Howarth (1884) 9 PD 218 at 225, per Cotton LJ.
(c) Third, has sufficient “cause” been shown? This suggests that the material facts which have not been placed before the court are
of such gravity that there is justification to exercise the court’s power to set aside the decree nisi. From a review of the
authorities, the facts in question must be completely incompatible with or must vitiate the basis of the grant of the decree nisi. In
AWN, Choo Han Teck J held at [8] that in order to succeed under s 99(2), “the applicant must satisfy the court that the non-
disclosure of such material facts before the court vitiates the foundation of the [decree nisi].” The court will examine if the factual
basis upon which the petitioner sought the divorce was “false such that the decree could not be supported” (Tan Bee Hoon at
[21]). In conducting this inquiry the court must put itself in the shoes of the court which granted the decree nisi.
55 In practice, these three questions are often taken in the round by the courts. A useful touchstone is to ask: had these facts have
been raised at first instance would it have affected the outcome of the divorce petition?
The discretionary component
56 Finally, I turn to the exercise of the court’s discretion. Even if the substantive requirement has been satisfied, the court is still
reposed with a discretion and it may nevertheless go on to make the decree nisi absolute (s 99(2)(a)) or otherwise “deal with the case as
it thinks fit[”] (s 99(2)(d)). In my view, in exercising its discretion, the court is no longer bound to place itself in the shoes of the court
which originally heard the divorce petition but may instead take all subsequent events into account. This is the critical difference
between the inquiry which takes place at the stage of discretion and that which the court undertakes when examining if sufficient
“cause” has been shown. The court may now consider, for example, the length of time in which the state of affairs has existed, the
conduct of the parties and the prejudice that would accrue should the decree nisi be rescinded. Having set out the applicable law, I
now turn to the substantive issues.
[3.4.26] The Court of Appeal in Yap Chai Ling & Anor v Hou Wa Yi, 48 agreed with Hoo JC on her analysis and findings in respect of the
standing requirement of section 99(2) of the Charter. The Court of Appeal per Andrew Phang JA ruled:
64 We begin by noting that the Judge had held – correctly, in our view – that s 99(2) could not apply to the Husband or the Respondent
(who was the wife); it could only apply to third parties. Indeed, we endorse the Judge’s comprehensive rendition as well as analysis of
the historical backdrop to s 99(2).
[3.4.27] The Court of Appeal went further and ruled:
71 ... As has been explained, the purpose of s 99(2) is for third parties to a marriage to challenge the status of the marriage in
circumstances where a decree nisi has been granted. A third party would, ordinarily, have no interest in the ancillary orders made as
between the parties to the marriage. Ancillary orders in divorce proceedings generally concern only the parties to the marriage and
cannot by any measure be said to be a matter of public importance, unlike the status of the marriage. The only reason the Appellants
have an interest in this case is because they are also the beneficiaries under the Will. Given that s 99(2) is concerned with the status of
the marriage, we are unable to see how it continues to apply once a party to that marriage has passed away. The death of one of the
parties dissolves a marriage (see s 7(a) of the Act, also reproduced above at [49]). The status of the marriage has thus already been
conclusively determined by the death of the Husband. In these circumstances, s 99(2) no longer remains applicable given that its very
purpose concerns the status of the marriage. What the Judge thought to be the core of the appellants’ application (ie, the enforceability
of the Decree Nisi) is, in our view, more properly described as the motive for their application. But the Appellants’ motive in bringing
the present application cannot change the fact that the status of the marriage had been determined by the death of the Husband and
that, as a result, s 99(2) no longer has any application.
C. Setting Aside of Orders Made on Ancillary Matters

[3.4.28] The power of the court to set aside orders made in respect of the order for division of matrimonial assets between former spouses
is found in section 112(4) of the Charter which provides:
112(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.
[3.4.29] The court’s power to set aside rescind revoke or vary an order made in relation to children issues is found in vsection 128 of the
Charter which provides as follows:
128. The court may at any time vary or rescind any order for the custody, or the care and control, of a child on the application of any
interested person, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been
any material change in the circumstances.
[3.4.30] The court’s powers to set aside orders made on maintenance for the wife or former wife at the ancillary matters stage are found
in section 118 of the Charter, which provides:
118. The court may at any time vary or rescind any subsisting order for maintenance, whether secured or unsecured, on the
application of the person in whose favour or of the person against whom the order was made, or, in respect of secured maintenance,
of the legal personal representatives of the latter, where it is satisfied that the order was based on any misrepresentation or mistake of
fact or where there has been any material change in the circumstances.
[3.4.31] The court’s powers to set aside orders made on maintenance for the child or children of the marriage at the ancillary matters
stage are found in section 72 of the Charter read with section 127(1) and (2) of the Charter. These sections read as follows:
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, or that person’s wife, incapacitated husband 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.
...
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).
[3.4.32] In relation to the setting aside of orders made on division of assets pursuant to section 112(1) of the Charter, case law suggests that
the legal principles applicable depends on the nature of the orders made, i.e. whether the orders made were consent orders or whether the
orders made were made on the merits of the case after full submissions or arguments or whether the orders made were made in the
absence of one party.
[3.4.33] In the situation where the orders made for the division of matrimonial assets were made in the absence of one party, the Court of
Appeal decision in AOO v AON 49 is apposite. It was made plain by the Court of Appeal that an ancillary matters order issued in the
absence of a party to the proceedings was not a default judgment and that the concept of a default judgment was inapplicable to
matrimonial proceedings. The Court of Appeal per Andrew Phang JA had ruled:
The further issue that arises in this regard is whether or not the ancillary order was a default judgment. The immediate question that
arises in this regard is whether or not the concept of a default judgment in general and O 13 of the Rules of Court (Cap 322, R 5, 2006
Rev Ed) (“Rules of Court”) are in fact applicable in the context of the present proceedings. In this regard, it is clear that (with limited
exceptions) the operative rules are not the Rules of Court as such but, rather, the Women’s Charter (Matrimonial Proceedings) Rules
(Cap 353, R 4, 2006 Rev Ed) (“Matrimonial Proceedings Rules”) (see O 1 r 2(2) of the Rules of Court). Turning, then, to the Matrimonial
Proceedings Rules, it would appear that there is no provision for the concept of a default judgment in the context of matrimonial
proceedings as the aforementioned rules expressly exclude the operation of O 13 of the Rules of Court (see r 3(2) of the Matrimonial
Proceedings Rules). If so, does this preclude the court from making an ancillary order if one of the parties refuses to appear in court?
Consistent with the analysis rendered above, in such a situation, there can be no consent judgment entered as such. However, can the
court concerned nevertheless proceed to hear the case and render judgment accordingly?
[3.4.34] The Court of Appeal went on to hold that the ancillary matters had to be heard on its merits even in the absence of one party and
that the “losing party” and absent party had the right to apply to set aside the orders made under Order 35 rule 2 of the Rules of Court. The
Court of Appeal ruled:
24 In our view, the answer to the question posed at the end of the preceding paragraph ought to be answered in the affirmative.
However, this would mean that the judge concerned would need to hear the case on its merits as the concept of a default judgment is
unavailable. But would this not result in prejudice to the party who did not attend the proceedings if judgment is given in favour of
the other party? The simple answer to that would be that the losing party would, presumably, have a right to apply – pursuant to O 35
r 2 of the Rules of Court – to set aside the judgment given in his or her absence (and see generally Supreme Court Practice 2009 (Jeffrey
Pinsler gen ed) (LexisNexis, 2009), especially at para 35/2/1 and (in particular) the decision of this court in Su Sh-Hsyu v Wee Yue Chew
[2007] 3 SLR(R) 673 (“Su Sh-Hsyu”)). Although this particular rule presumably applies (pursuant to r 3(1) of the Matrimonial
Proceedings Rules), it should be noted that, unlike other civil cases, it does not apply in tandem with the legal principles applicable to
a default judgment pursuant to O 13 of the Rules of Court simply because (as noted in the preceding paragraph) O 13 of the Rules of
Court has been expressly excluded by the Matrimonial Proceedings Rules. It should also be noted that the losing party would have the
right of appeal (in this situation, to the High Court).
25 Unfortunately, however, the present case did not proceed in the manner just described. This was due to the fact that there was an
underlying assumption throughout (in fact, in both the Family Court and the High Court and, so it appeared, by the wife in her case
before this court) that the ancillary order was a default judgment that could then be (as it in fact was) set aside if the requisite test
(now under Mercurine) was met. With respect, this was the incorrect approach to adopt. As we have noted, there is no concept of a
default judgment along the lines of O 13 of the Rules of Court in proceedings under Part X of the Act. This is perhaps not surprising in
view of the fact that matrimonial matters are not ordinary civil matters and possess a social dimension as well. In the circumstances,
the concept of a default judgment would not sit easily with such proceedings. With respect, therefore, the concept of a default
judgment ought not to have been applied by the DJ. What, then, of the original hearing leading to the making of the ancillary order?
26 As alluded to above (at [24]), the DJ ought to have considered whether the ancillary order ought to have been set aside pursuant to
O 35 r 2 of the Rules of Court ...
[3.4.35] For our purposes, it is assumed that the equivalent of Order 35 rule 2 of the Rules of Court in the Family Justice Rules 2014, i.e.rule
572(1) of the Family Justice Rules 2014, would have equal force in its application being pari materia.
Judgment, etc., given in absence of party may be set aside

572.—(1) The Court may, on the application of any party, set aside any judgment or order made under rule 571 on such terms as the
Court thinks just.
(2) Unless the Court otherwise orders, an application under this rule must be made within 14 days after the date of the judgment or
order.
[3.4.36] In Su Sh-Hsyu v Wee Yue Chew, 50 the Court of Appeal elaborated on the principles of law to be applied in application to set aside
judgments. The Court of Appeal recognised that there were two broad categories of applications involving the setting aside of judgments,
the first category concerning the cases where judgment had been entered in default of appearance, pleadings or discovery and the second
category being those cases where judgment is entered into after a trial although in the absence of the party who later applies to have the
judgment set aside. VK Rajah JA said:
41 The analysis begins with recognising two broadly different categories of applications involving the setting aside of judgments: (a)
cases in which judgment has been given in default of appearance or pleadings or discovery; and (b) cases in which judgment is given
after a trial, albeit in the absence of the party who later applies to set it aside. This general categorisation is recognised by the English
courts, for example, in Shocked v Goldschmidt [1998] 1 All ER 372 (“Shocked”) at 377 and the local courts, for example, in Vallipuram
Gireesa Venkit Eswaran v Scanply International Wood Product (S) Pte Ltd [1995] 2 SLR(R) 507. Different considerations apply to each
category of cases.
[3.4.37] Of the first category, the Court of Appeal ruled that the basis of the court’s discretion to set aside default judgments was founded
in the landmark decision of Evans v Bartlam: 51
The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the
power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of
procedure.
[3.4.38] The Court of Appeal opined that in an application to set aside the first category type of cases, the court was primarily concerned
with the question of whether there was a defence on the merits weighed against the applicant’s explanation both for the default and for
any delay, as well as against prejudice to the other party. VK Rajah JA ruled:
43 In an application to set aside this type of default judgment, the question of whether there is a defence on the merits is the dominant
feature to be weighed against the applicant’s explanation both for the default and for any delay, as well as against prejudice to the
other party: Shocked ([41] supra) at 379 citing Evans v Bartlam, Vann v Awford (1986) 130 SJ 682 and The Saudi Eagle [1986] 2
Lloyd’s Rep 221. This position has been adopted locally: see Hong Leong Finance Ltd v Tay Keow Neo [1991] 2 SLR(R) 841.
[3.4.39] It should nevertheless be pointed out that as it has been decided by the Court of Appeal in AOO v AON 52 that the concept of
default judgments do not apply or are not applicable to matrimonial proceedings, it would appear that a judgment or order made in the
context of matrimonial proceedings may not be set aside on the principles of setting aside for the first category of cases.
[3.4.40] In respect of the second category of cases, the Court of Appeal in Su Sh-Hsyu v Wee Yue Chew ruled that the predominant factor
for the court’s consideration was the issue of the party’s absence from court or to the proceedings. The Court of Appeal per VK Rajah JA
ruled:
44 In contrast, where judgment has been entered after a trial in the defendant’s absence, the predominant consideration in deciding
whether to set aside the judgment is the reason for the defendant’s absence. In Shocked, Leggatt LJ itemised (at 381) the other relevant
factors that the court should take into consideration:
(a) prejudice – whether the successful party would be prejudiced by the judgment being set aside, especially if the prejudice was
irremediable by an order of costs;
(b) applicant’s delay – whether there was any undue delay by the absent party in applying to set aside the judgment, especially if
during the period of delay the successful party acted on the judgment, or third parties acquired rights by reference to it;
(c) whether complete retrial required – whether the setting aside of a judgment would entail a complete retrial on matters of fact
which have already been investigated by the court;
(d) prospects of success – whether the applicant enjoyed a real prospect of success; and
(e) public interest – whether the public interest in finality in litigation would be compromised.
To these broad-ranging factors we would also add the overriding consideration of whether there is a likelihood that a real miscarriage
of justice has occurred. This will be discussed in greater detail below.
45 Needless to say, each case depends on its own facts and the weight to be accorded to the relevant factors will have to be evaluated
in the light of the factual matrix. The factors adverted to are predicated upon two fundamental interests which may from time to time
diverge – the interest in finality in litigation, viz, finis litium, on the one hand, and the interest in preventing a miscarriage of justice on
the other. The court thus engages in a balancing exercise by considering all the relevant factors but places added weight on the
reasons for the applicant’s absence. As we shall see, where the applicant’s absence was deliberate and not due to mistake or accident,
the court’s discretion would generally weigh heavily against setting aside the judgment, even though there may be persuasive
countervailing factors. Thus, in Shocked, Leggatt LJ said at 381 that:
“Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important:
unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing.
[emphasis added]”
On the facts of Shocked, Leggatt LJ also considered the various factors listed at [44] above but concluded that these other factors did
not tilt the balance in favour of the applicant. As a result, the application was dismissed.
...
57 In summary, it can be seen that the reasons for non-attendance will be most severely viewed (vis-à-vis the other relevant factors set
out in [44] above) in instances where the applicant’s omission was deliberate and contumelious. In such cases, the court will be most
reluctant to set aside the judgment even though there may be other countervailing factors in favour of setting aside. Any such
countervailing factors would necessarily have to be very compelling to tilt the balance in favour of setting aside the judgment. On the
other hand, where the reason for non-appearance was
wholly innocent or due to mistake or unavoidable accident, the court will be more inclined to set aside the judgment. In exercising its
discretion, the other factors, such as whether the other party would be irremediably prejudiced, will feature more heavily in the
court’s consideration.
[3.4.41] In Vasugee d/o Subramaniam v Vigian s/o Era Vasenthan, 53 the District Court per Sim Khadijah bte Mohammed DJ in dealing with
an application filed by the defendant husband to set aside an ancillary matters order (“AM Order”) made in his absence, applied the
principles set out in Su Sh-Hsyu v Wee Yue Chew. 54 The District Judge ruled:
17 Instead, the applicable case is that of AOO v AON, [2011] 4 SLR 1169 (“ AOO v AON”). In AOO v AON, the Court of Appeal held that
the relevant factors to be taken into consideration when determining whether an AM Order made in the absence of one party should
be set aside were those set out in the case of Su Sh-Hsyu v Wee Yue Chew, [2007] 3 SLR(R) 673 (“Su Sh-Hsyu”). The Court of Appeal in Su
Sh-Hsyu held that the predominant consideration in deciding whether to set aside the judgment was the reason for the Defendant’s
absence. In addition, the following factors were also considered to be relevant:
(i) Whether the successful party would be irremediably prejudiced by the judgment being set aside;
(ii) Whether there was any undue delay by the absent party in applying to set aside the judgment;
(iii) Whether the setting aside of the judgment would entail a complete retrial on matters of fact which had already been investigated
by the Court;
(iv) Whether the application enjoyed a real prospect of success;
(v) Whether the public interest in finality in litigation would be compromised; and
(vi) Whether there is a likelihood that a real miscarriage of justice had occurred.
[3.4.42] In respect of orders made by consent in the ancillary matters, the case of Lee Min Jai v Chua Cheow Koon 55 is instructive. The
High Court per Choo Han Teck J was determining on appeal the question of whether a District Judge was right not to have allowed a
petitioner wife’s application to rescind part of a consent order in the decree nisi and to substitute a fresh order in its place. Choo J ruled:
5 Under s 112(4) of the Women’s Charter (Cap 353, 1997 Rev Ed), 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”. But this section, and the authorities referred to by Mr Chia, should not be construed as an invitation to revise the terms of a
settlement merely so that they appear more equitable or will be, in fact, more equitable in the objective opinion of the court. Privately
settled terms in respect of the ancillary matters in a divorce may not always appear to be fair. But divorce is a very personal matter,
and each party would have his own private reasons for demanding, or acquiescing, to any given term or condition in the ultimate
settlement. What the court should be alert to, is that one party had not taken an unfair advantage over the other in the course of
negotiating and settling the terms. Hence, in Dean v Dean [1978] 3 All ER 758, the court held (as set out in the headnote) that:
“[W]here an agreement between the parties had been reached at arm’s length and the parties had been separately advised, the
agreement itself would be prima facie evidence of the reasonableness of its terms, and formal discovery would probably be
unnecessary.”
6 In the present case, the matrimonial flat was a gift by the respondent’s grandmother to him as well as the petitioner. The petitioner
was aware that she had a share in that flat and told her previous solicitor so. The terms of settlement were clearly reached at arm’s
length, and there was no question of the respondent concealing any material fact from the petitioner. If Mr Chia is right in saying that
the petitioner’s previous solicitor failed in his duty in failing to search the registry for the petitioner’s interest in the flat, that fault
should have no implication on the innocent respondent. A court would interfere with an order of court obtained by consent, only on
just and equitable grounds. And in determining whether such grounds have been established, the court should also take into account
the effect of a setting aside of the order on the other party. Here, the respondent had, in good faith, negotiated a settlement at arm’s
length, and was proceeding to make a fresh start in life. If there was an error, it sprang from the petitioner herself. It might not even
be proven that the fault lay with her previous solicitor. Hence, there is all the more reason why this court ought not to disturb the
consent order on that account. If it is true that the fault lay with the solicitor, and that it had caused the petitioner to gain less than she
otherwise might, the petitioner’s remedy is against that solicitor and not the respondent.
[3.4.43] In AON v AOO, 56 the High Court per Judith Prakash J applied Lee Min Jai v Chua Cheow Koon 57 and ruled:
14 In a case where ancillary orders have been made by consent, the correct approach to a subsequent application by one of the parties
to set aside the order is that set out by Choo Han Teck J in the case of Lee Min Jai v Chua Cheow Koon [2005] 1 SLR(R) 548 (“Lee Min
Jai”). There, the petitioner wife had appealed against the district judge’s dismissal of her application to rescind part of a consent order
in the decree nisi and to substitute a fresh order in its place. The relevant part of the consent order stated that the wife would transfer
her share in the matrimonial flat to the husband upon payment of $50,000 by the husband. The wife argued on appeal that when she
agreed to this term she did not know she was a joint owner of the flat though she knew she had a share in the flat. Had she known she
was possibly entitled to at least half the value of the flat she would not have agreed to accept only $50,000 for her share. Her appeal
was dismissed.
[3.4.44] The Family Court in TLJ v TLK 58 per Geraldine Kang DJ also applied Lee Min Jai v Chua Cheow Koon 59 and AON v AOO 60 in
considering whether to set aside an order made for the ancillary matters.
3.5 FORUM
[3.5.1] The law on stay of proceedings on the ground of forum non conveniens is well settled. In Brinkerhoff Maritime Drilling Corp & Anor
v PT Airfast Services Indonesia and Another Appeal, 61 the Court of Appeal affirmed that the principles enunciated by the House of Lords in
Spiliada Maritime Corp v Cansulex Ltd (“Spiliada”) apply. 62 Similar pronouncements by the Court of Appeal were made in Orchard Capital I
Ltd v Ravindra Kumar Jhunjhunwala, 63 Eng Liat Kiang v Eng Bak Hern, 64 Oriental Insurance Co Ltd v Bhavani Stores Pte Ltd 65 and
Rickshaw Investments Ltd v Nicolai Baron von Uexkull. 66
[3.5.2] In VH v VI & Anor, 67 Kan Ting Chiu J stated:
In Spiliada, Lord Goff of Chieveley set out six principles at 476–478, which I summarise, retaining His Lordship’s words as far as I can:
(a) The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that
there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action.
(b) In general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay. If the court
is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the
burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the
trial hould nevertheless take place in this country.
(c) The burden resting on the defendant is not just to show that the forum of the action is not the natural or appropriate forum for
the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the forum of
the action.
(d) The “natural forum” is that with which the action had the most real and substantial connection. So it is for connecting factors in
this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as
availability of witnesses), but also other factors such as the law governing the relevant transaction.
(e) If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the
action, it will ordinarily refuse a stay.
(f) If however the court concludes at that stage that there is some other available forum, which prima facie is clearly more
appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice
requires that a stay should nevertheless not be granted.
[3.5.3] In BDA v BDB, 68 Chao Hick Tin JA applied Spiliada and affirmed that the Spiliada test consisted of two stages. In stage one, it must
be shown that there is another available forum which is clearly or distinctly more appropriate than Singapore to determine the dispute.
The court shall take into consideration factors not only encompassing convenience or expense, but also other factors such as the law
governing the transaction and the places where the parties respectively reside or carry on business. If there is another available forum
which is clearly more appropriate, the court will ordinarily grant a stay, unless there are special circumstances by reason of which justice
requires that a stay should nevertheless be refused. The latter is the second stage of the Spiliada test, under which the court shall consider
whether those special circumstances exist to warrant the exercise of its discretion to refuse a stay. The court in determining whether
Singapore is a forum non conveniens, was in fact exercising a discretion. Chao Hick Tin JA also ruled that the Spiliada test was essentially a
factors-based test: the weight to be placed on the various factors varies with each factual matrix and that a factor that proves to be the
tipping point in one case might not be that important in another. The court however took the position that the defendant’s residence was
of some import and opined that where a defendant seeking a stay is working and residing in Singapore, the defendant had a greater
evidential burden on him or her. Chao JA said “the countervailing factors adduced in favour of the stay have to be correspondingly more
convincing, in comparison to the hypothetical factual matrix, ceteris paribus, where the defendant is not resident in Singapore”. The court
also said that while this was an important factor, it was not a determinative one as it must be shown that there was another available
forum that was clearly and distinctively more appropriate than Singapore.
[3.5.4] In AZS & Anor v AZR, 69 Andrew Ang J ruled that the applicable test to determine if divorce proceedings should be stayed in
Singapore on the grounds of forum non conveniens was the test enunciated in Spiliada, following VH v VI & Anor 70 and Mala Shukla v
Jayant Amritanand Shukla (Danialle An, Co-Respondent) (“MalaShukla”). 71
[3.5.5] In TDX v TDY, 72 Debbie Ong JC ruled that the doctrine of forum non conveniens was relevant in matrimonial proceedings including
issues relating to the custody of children, following Low Wing Hong Alvin v Kelso Sharon Leigh 73 and Mala Shukla. 74 The court was of the
view that the application of the welfare principle in relation to cases concerning children involves “the proper application of the doctrine
of forum non conveniens, which would in turn require the court to examine which jurisdiction is better placed to decide on the issues
concerning the welfare of the child” as the key question was which forum would be best suited to effectively and appropriately assess
what would be in the best interests of the child.
[3.5.6] In Re A (an infant), 75 Lai Kew Chai J ruled that a child’s welfare is more appropriately evaluated by the forum which is better
equipped to determine what is best for the child in all material respects ranging from healthcare and education to moral, spiritual and
other relevant needs. Lai J ruled:
4. The central question to address in this appeal is this: which was the more suitable or appropriate tribunal to resolve the issues
between the parties? The burden of proof was upon the wife to show that the French court was the more suitable or appropriate
tribunal. In the context of the guardianship of a child, and the related issues of custody, care and control, it seemed to me that we
had to take into account a host of factors and determine which forum would more effectively evaluate the best interests of the
child, in terms of a tribunal’s understanding of and affinity to the cultural background, value systems, social norms and other
societal circumstances relevant to the best way in which the child is to be brought up. It is to those factors which I now turn; and I
begin with the relevant factual background.
[3.5.7] In TGT v TGU, 76 Foo Tuat Yien JC made it clear that there was a distinction between an absence of jurisdiction and unavailability of
relief under the law of that forum. The court took the position that in the latter situation, this fact was to be considered in the second limb
of the Spiliada test. The judge made reference to Dicey, Morris and Collins, 77 and Professor Yeo Tiong Min: 78
A third difficulty is whether the plaintiff who has no claim no remedy or would face a complete defence, under the choice of law rules
applied by the foreign court, has an “alternative” forum to resort to. It is clear that if the plaintiff’s claim is time-barred under the law
applied by the foreign court, the foreign court nevertheless remains an alternative forum, and the issue of time-bar is considered
under the question of substantial justice. It [is] also clear that the natural forum principle is premised on justice to both parties, and
should not favour either party to the litigation. These principles imply that the answer to the question posed is that the plaintiff does
have an alternative forum, and that these factors should be considered under the question of substantial justice. [emphasis added]
[3.5.8] In respect of the second limb of the Spiliada test, Lord Goff in Spiliada said at pp 483-484:
... Now, to take some extreme examples, suppose that the plaintiff allowed the limitation period to elapse in the appropriate
jurisdiction, and came here simply because he wanted to take advantage of a more generous time bar applicable in this country; or
suppose that it was obvious that the plaintiff should have commenced proceedings in the appropriate jurisdiction, and yet he did not
trouble to issue a protective writ there; in cases such as these, I cannot see that the court should hesitate to stay the proceedings in this
country, even though the effect would be that the plaintiff’s claim would inevitably be defeated by a plea of the time bar in the
appropriate jurisdiction. Indeed a strong theoretical argument can be advanced for the proposition that, if there is another clearly
more appropriate forum for the trial of the action, a stay should generally be granted even though the plaintiff’s action would be time
barred there. But, in my opinion, this is a case where practical justice should be done. And practical justice demands that, if the court
considers that the plaintiff acted reasonably in commencing proceedings in this country, and that, although it appears that (putting on
one side the time bar point) the appropriate forum for the trial of the action is elsewhere than England, the plaintiff did not act
unreasonably in failing to commence proceedings (for example, by issuing a protective writ) in that jurisdiction within the limitation
period applicable there, it would not, I think, be just to deprive the plaintiff of the benefit of having started proceedings within the
limitation period applicable in this country ...
[3.5.9] In The Reecon Wolf, 79 Belinda Ang J considered whether there was any personal or juridical advantage in which the plaintiff
would be deprived of if the court granted a stay of the Singapore action in applying the second limb of the Spiliada test. The court
concluded that it cannot be drawn into making comparisons between the laws of Singapore and that of another friendly state to do justice
in such cases.
[3.5.10] In the House of Lords case of Lubbe & Ors v Cape plc, 80 the court decided:
In this second stage the court will concentrate its attention not only on factors connecting the proceedings with the foreign or the
English forum (the Spiliada case, at p 478; the Connelly case, at p 872) but on whether the plaintiff will obtain justice in the foreign
jurisdiction. The plaintiff will not ordinarily discharge the burden lying upon him by showing that he will enjoy procedural
advantages, or a higher scale of damages or more generous rules of limitation if he sues in England; generally speaking, the plaintiff
must take a foreign forum as he finds it, even if it is in some respects less advantageous to him than the English forum (the Spiliada
case, at p 482; the Connelly case, at p 872). It is only if the plaintiff can establish that substantial justice will not be done in the
appropriate forum that a stay will be refused (the Spiliada case, at p 482; the Connelly case, at p 873).
[3.5.11] Thus, the test governing a stay on the ground of forum non conveniens is a two-stage test. The first stage is to decide if there is
some other available forum which prima facie is clearly the more appropriate for the trial of the action. If so, the court will ordinarily
grant a stay. In the first stage, the court will consider all the circumstances of the case, including circumstances which go beyond those
taken into account when considering connecting factors with other jurisdictions. The burden is on the defendant to satisfy the court that
prima facie, there is some other available forum, having jurisdiction, which is the more appropriate forum for trial of the action.
“Appropriate” means that a trial in that forum will be more suitable for the interests of the parties and interests of justice. 81
[3.5.12] If the first stage is established, the burden of proof shifts to the plaintiff in the second stage of the test. The plaintiff may show that
he or she will not obtain justice in the foreign jurisdiction for ideological/political reasons, inexperience or inefficiency of the judiciary, or
excessive delay in the conduct of the matter. 82
[3.5.13] The ultimate question is the same, where should the case be suitably tried having regard to the interests of the parties and the
ends of justice. It is necessary to apply a holistic, commonsensical and practical approach to the task of determining which forum is the
most appropriate for the determination of the disputes between the parties. The courts have dismissed applications to stay Singapore
proceedings if they feel that Singapore is the suitable forum to hear the proceedings. 83
3.6 LIS ALIBI PENDENS
[3.6.1] The Court of Appeal in Virsagi Management (S) Pte Ltd v Welltech Construction Pte Ltd and Another Appeal 84 reiterated that there
are two factual situations in which a lis alibi pendens situation would arise. First, where the same plaintiff sued the same defendant in
Singapore and abroad (“common plaintiff situations”); and secondly, where the plaintiff sued the defendant in Singapore and the
defendant sued the plaintiff abroad, or vice versa (“reversed parties situations”). A lis alibi pendens means an action or suit pending
elsewhere. In respect of the former, the doctrine of forum election arose and in the latter, this operated within the doctrine of forum non
conveniens.
[3.6.2] In Mala Shukla, 85 Woo Bih Li JC (as he then was) decided that existing proceedings in another jurisdiction can be a decisive,
although not an automatic, factor depending on the circumstances of the case.
[3.6.3] Cheshire and North’s Private International Law succinctly captures the considerations faced by the courts when presented with a
case of lis alibi pendens: 86
If litigation involving the same parties and the same issues is continuing simultaneously in two different countries, this is referred to
as a case of lis alibi pendens. In such cases the issue facing the English courts is not simply that of deciding to which of the alternative
fora the claimant should have to go to bring his action. Instead, the choice is between, on the one hand, trial in England plus trial
abroad (if a stay is refused) and, on the other hand, trial abroad (if a stay is granted). It is very undesirable to have concurrent actions
in England and abroad: this involves more expense and inconvenience to the parties than if trial were held in merely one country; it
can also lead to two conflicting judgments, with an unseemly race by the parties to be the first to obtain a judgment and to subsequent
problems of estoppel.
...
A stay will also be refused if there is no country which is a natural forum for trial, even if this will mean a multiplicity of proceedings
... The weight to be attached to the factor of multiplicity of proceedings will depend on the circumstances of the case. It is not a
decisive factor in the sense of automatically making a foreign forum clearly more appropriate and shifting the burden of proof to the
claimant to justify trial in England.
[3.6.4] The doctrine of lis alibi pendens is one of the factors the court is to take into account in determining the question of whether a stay
ought to be granted on the ground of forum non conveniens. In AZS & Anor v AZR, 87 Andrew Ang J made this plain when he said:
22 As this case involved concurrent divorce proceedings in Singapore and France, the doctrine of lis alibi pendens came into play as
another factor in favour of a stay.
[3.6.5] In Prapavathi d/o N Balabaskaran v Manjini Balamurugan, 88 Lim Hui Min DJ had opined:
The principles to be applied in relation to the grant of a stay of proceedings on the doctrine of forum non conveniens are equally
applicable in a situation of lis alibi pendens. Lis alibi pendens is just one of the factors to be considered when deciding whether to stay
an action on the ground of forum non conveniens. The authority for this proposition is found in the case of Spiliada Maritime Corp v
Cansulex [1987] 1 AC 460, where Lord Goff stated as follows:
“... the court in this country looks first to see what factors there are which connect the case with another forum. If, on the basis of
that inquiry, the court concludes that there is another available forum which, prima facie, is clearly more appropriate for the trial
of the action, it will ordinarily grant a stay, unless there are circumstances by reason of which justice requires that a stay should
nevertheless not be granted...The same principle is applicable whether or not there are other relevant proceedings already pending
in the alternative forum ...” (emphasis added)
In the case of de Dampierre v de Dampierre [1988] 1 AC 92, Lord Goff elaborated on the effect of concurrent proceedings in another
jurisdiction, as follows: “Sometimes they may be of no relevance at all, for example, if one party has commenced the proceedings for
the purpose of demonstrating the existence of a competent jurisdiction, or the proceedings had not passed beyond the stage of the
initiating process. But if for example, genuine proceedings had been started and have not merely been started but have developed to
the stage where they have had some impact upon the dispute between the parties, especially if such impact is likely to have a continuing
effect, then this may be a relevant factor to be taken into account when the foreign jurisdiction provides the appropriate forum for the
resolution of the dispute between the parties.” (emphasis added)
Justice Lai Siu Chiu in the case of P.T. Jaya Putra v. Guthrie Overseas Investments Pte Ltd Suit No. 395 of 1996, (unreported) (“the
Guthrie case”) held that the factor of lis alibi pendens could be considered at the stage of deciding whether there is a clearly
appropriate forum abroad, as well as at the stage of deciding whether there are reasons of justice upon which a stay of proceedings
should be refused:
“The first policy reason why it is undesirable to have concurrent actions in Singapore and abroad is because it involves more
expense and inconvenience to the parties than if the trial was held in merely one country ... Hence, the factor of lis alibi pendens
may be considered at the stage of determining whether there is a clearly more appropriate forum for the trial of the action
together with the other factors considered at this stage which also seek to avoid unnecessary expense and inconvenience such as
the location of the evidence, the residence of the parties, the choice of law, etc.
The other main reason why a lis alibi pendens should be avoided is that it can lead to two conflicting judgments, with an unseemly
race by the parties to be first to obtain judgment and to subsequent problems of estoppel; this is a recipe for confusion and
injustice ... As such, in my view, a lis alibi pendens may also be taken into account as a factor in the second stage of the enquiry
when determining whether there are reasons of justice why the trial should or should not take place in Singapore ...”
FOOTNOTES
1 See section 12(1) of the FJ Act.
2 See sections 3 and 4 of the FJ Act.
3 See sections 13(1) and 14(1) of the FJ Act.
4 [1991] 1 MLJ 276.
5 See section 3(1) of the Charter.
7 Leong Wai Kum, Elements of Family Law, 4th edn, p 186.
8 [1981–1982] SLR(R) 676.
9 [2009] 3 SLR(R) 765.
10 [2005] SGDC 80.
11 [2006] 2 SLR(R) 381.
12
[1968] P 675.
13 (1869) LR 1 Sc & Div 441.
14 Halsbury’s Laws of England, 4th Edition Reissue, Vol 8(3), para 48.
15 [2012] 4 SLR 1115; [2012] SGHC 180.

16
[1983] 2 AC 309.
17 [1971–1973] SLR(R) 597.
18 [2015] SGFC 151.
19 [2002] SGDC 171.
20 Originating Summons No 5104 of 1997, District Court (unreported).
21 [1999] 3 SLR(R) 993.
22 Civil Appeal No 62 of 2013, CA.
23 [1999] 3 SLR(R) 993.
25 See rule 96(3)(a) of the Family Justice Rules 2014.
26 See rule 96(3)(b) of the Family Justice Rules 2014.
27 Section 123(1)(a) and (b) of the Charter.
29 [2011] 3 SLR 1042.
30 [2008] SGDC 376.
31 [2016] 1 SLR 18.
32 [2011] 3 SLR 1042.
33 [2012] 2 SLR 995.
34 [1993] 2 SLR(R) 763.
35 [2004] SGDC 275.
36 [2004] SGDC 268.
37 [2011] 2 SLR 926.
38 [2004] SGDC 268.
39 [2011] 4 SLR 1169; [2011] SGCA 51.
40 Ibid.
41 [2014] SGDC 425.
42 [2004] SGDC 275.
43 [2005] SGDC 221.
44 [2012] SGDC 430.
45 [2015] SGFC 46.
46 [2014] SGDC 299.

47 [2016] 1 SLR 660; [2015] SGHC 296.
48 [2016] 4 SLR 581; [2016] SGCA 39.
49 [2011] 4 SLR 1169; [2011] SGCA 51.
50 [2007] 3 SLR(R) 673.
51 [1937] AC 473 at 480 per Lord Atkins.
52 [2011] 4 SLR 1169; [2011] SGCA 51.
53 [2015] SGFC 24.
54 [2007] 3 SLR(R) 673.
55 [2005] 1 SLR(R) 548.
56 [2011] 2 SLR 926.
57 [2005] 1 SLR(R) 548.
58 [2016] SGFC 26.
59 [2005] 1 SLR(R) 548.
60 [2011] 2 SLR 926.
61 [1992] 2 SLR(R) 345.
62
[1987] AC 460.
63 [2012] 2 SLR 519.
64 [1995] 2 SLR(R) 851.
65 [1997] 3 SLR(R) 363.
66 [2007] 1 SLR(R) 377.
67 [2008] 1 SLR(R) 742.
68 [2013] 1 SLR 607.
69 [2013] SGHC 102.
70 [2008] 1 SLR(R) 742.
71 [2002] 1 SLR(R) 920.
72 [2015] SGHCF 4.
73 [1999] 3 SLR(R) 993.
74 [2002] 1 SLR(R) 920.
75 [2002] 1 SLR(R) 570.
76 [2015] SGHCF 10.
77 Lord Collins of Mapesbury (gen ed), Dicey, Morris & Collins on the Conflict of Laws, 15th edn, Vol 1 (Sweet & Maxwell, 2015), para 12-032.
78 Halsbury’s Laws of Singapore, 2013 Reissue, Vol 6(2) (LexisNexis), p 80.
79 [2012] 2 SLR 289.
80
[2000] 1 WLR 1545.
81 Oriental Insurance Co Ltd v Bhavani Stores Pte Ltd [1997] 3 SLR(R) 363.
82 The seminal case of The Abidin Daver [1984] AC 395 referred to by Lord Goff in Spiliada. See also PT Hutan Domas Raya v Yue Xiu Enterprises (Holdings) [2001] 1
SLR(R) 104 at paras 15–16, following the holding in Spiliada [1987] AC 460 and Mala Shukla v Jayant Amritanand Shukla (Danialle An, Co-Respondent) [2002] 1
SLR(R) 920 at para 28.
83 Please see Marilyn June Shearer v Michael Howard Shearer [2000] SGDC 27; Sharm Manzana v Alain Roger Leneveu [2003] SGDC 224.
84 [2013] 4 SLR 1097.
85 [2002] 1 SLR(R) 920.
86 James Fawcett and Peter North, Cheshire and North’s Private International Law, 13th edn (1999), pp 347 and 349.
87 [2013] 3 SLR 700.
88 [2002] SGDC 354.

2016 - 10 - 17 PAGE 79

Chapter 04: Ancillary Relief: The Law
Chapter 4
Ancillary Relief: The Law

Chan Wing Cheong *
4.1 Preliminary Issues 81

A. Jurisdiction 81
A. Introduction 82
B. Marriage as Partnership 83
C. Gender Neutral Application 84
D. Definition of a Matrimonial Asset 85
1. Assets acquired during marriage 85
2. Assets acquired before marriage 87
3. Substantial improvement by the other party or both parties 88
4. Qualifying words 88
5. Gifts to one or both spouses 89
6. Retaining nature as a gift or inheritance 90
7. Gifting between spouses 90
8. Windfalls 92
E. “Just and equitable” Division 93
1. Trends from past cases 93
2. Rejection of equal division as norm, starting point or yardstick 95
3. Rejection of “uplift” methodology 95
4. Multi-factorial approach 96
(a) Financial contributions 97
(b) Non-financial contributions 98
(c) Needs of the children 99
(d) Factors not exhaustive 99
5. Refinement by “structured” approach 100
(a) ANJ v ANK 102
6. “Structured” approach only a guide 104
7. Broad brush approach 105
8. Global assessment and classification methodologies 106
9. Adverse inference 106
10. Agreements between the spouses 108
4.3 Maintenance of Ex-Spouse 113
A. Jurisdiction 114
B. Principles 115
C. Statutory Directives 116
D. Lump Sum Orders 119
E. Agreements to Compound Maintenance 120
F. Arrears of Maintenance 121
G. Backdating of Maintenance 121
4.1 PRELIMINARY ISSUES
[4.1.1] Various orders may be obtained from the Family Justice Courts (“FJC”) when granting, or subsequent to the grant of, 1 a
judgment of divorce, judicial separation or nullity of marriage. One of the most contentious issues in matrimonial proceedings by far
concern the financial arrangements of the parties on termination of marriage. This chapter deals with the orders relating to division of
matrimonial assets 2 between the parties and the maintenance of an ex-spouse. 3 The other orders available such as maintenance and
the custody, care and control, and access of a child are dealt with in other chapters in this work.
A. Jurisdiction
[4.1.2] The power of the FJC to make an ancillary order must be exercised within the lifetime of the parties: it does not survive the
death of either party to the marriage. 4 If either party dies before the order is made, it is death that terminates the marriage and not an
order of court. Consequently, it is the law of succession that determines how property owned by the deceased is distributed. However,
once the order of division has been made, the subsequent death of a spouse does not prevent the order from being carried out. 5
[4.1.3] Until amendments were made to the law, the Singapore courts did not have jurisdiction to make orders for division of the
matrimonial assets or maintenance of an ex-spouse if the matrimonial proceedings were not before it. 6
[4.1.4] Under the new Part X Chapter 4A of the Women’s Charter (Cap 353) (the “Charter”) (entitled “Financial Relief Consequential on
Foreign Matrimonial Proceedings”) introduced in 2011, 7 the FJC may make an order for financial relief even if the divorce, annulment
or judicial separation had been granted overseas. 8
[4.1.5] By amendments made in 1999, 9 in the case of Muslim couples divorced by the Syariah Court in Singapore, they can also apply to
the FJC for division of matrimonial assets provided that certain requirements are satisfied involving either leave being granted by the
Syariah Court or where both parties consent to the matter being decided by the civil court. 10
4.2 DIVISION OF MATRIMONIAL ASSETS
A. Introduction
[4.2.1] The fact of marriage of the parties does not have any effect on the property rights of the spouses during marriage. However,
their status of having been married to each other allows the court to consider their contributions over the course of the marriage in
deciding how to redistribute their property holdings on divorce under section 112 of the Charter. 11 It is at the termination of marriage
that each spouse’s non-financial contributions are considered in assessing his or her interest in the property, regardless of which spouse
purchased it.
[4.2.2] The present law on section 112 has been described as a “deferred community of property” regime, which may be contrasted with
the “separation of property” regime applicable to the parties during marriage: 12
[The fact] that a woman is married [is] irrelevant to her proprietary interests; her entitlement to proprietary interests depends on
the same rules as the entitlement of an unmarried woman or man. [Section 112 of the Women’s Charter] empowered the courts
with a broad discretion to divide “matrimonial assets” between spouses during or after matrimonial proceedings to terminate their
marriage; it is based on the principle of “community of property”, under which both spouses have a joint interest in certain
property, regardless of which spouse purchased or otherwise acquired it ....
Therefore, the “community of property” approach to the property rights of spouses only operates where there are matrimonial
proceedings terminating a marriage. When the marriage subsists, property law, including the law of resulting trusts, applies,
without modification, to determine the respective proprietary rights of spouses.
B. Marriage as Partnership
[4.2.3] The Singapore Court of Appeal has repeatedly characterised marriage as involving an equal partnership of efforts by both
spouses. In AYL v AYR, 13 the “marital enterprise” was described as “a partnership of efforts of both spouses”. In NK v NL, 14 it was said:
... The division of matrimonial assets under the [Women’s Charter] is founded on the prevailing ideology of marriage as an equal co-
operative partnership of efforts. The contributions of both spouses are equally recognised whether he or she concentrates on the
economics or homemaking role, as both roles must be performed equally well if the marriage is to flourish. When the marriage
breaks up, these contributions are translated into economic assets in the distribution according to s 112(2) of the [Women’s
Charter].
... The entire process must involve a mutual respect for spousal contributions, whether in the economic or homemaking spheres, as
both roles are equally fundamental to the well-being of the marital partnership.
[4.2.4] Indeed, section 46(1) of the Charter states in a concise manner the obligations expected of spouses in working for their common
good and the good of their children:
Upon the solemnization of marriage, the husband and the wife shall be mutually bound to co-operate with each other in
safeguarding the interests of the union and in caring and providing for the children.
[4.2.5] The different roles played by each of the spouses should not disadvantage them – particularly the homemaker spouse – when it
comes to dividing their matrimonial assets. It may be fair to say that where one spouse reaps financial success, the other spouse had
also made sacrifices on the domestic front by raising children and looking after the home. For some homemaker spouses, there have
also been sacrifices in terms of their own careers. Such non-financial contributions are difficult, if not impossible, to quantify and
measure. In Lock Yeng Fun v Chua Hock Chye, 15 the Singapore Court of Appeal emphasised that due recognition must be given to the
roles played by the spouses:
... Our examination of the case law shows that the courts might not have given sufficient recognition to the value of factors like
homemaking, parenting and husbandry when attributing to them a financial value in the division of matrimonial assets. This ought
not to be the case. It is true that, by their very nature, such kinds of contributions to the marriage are ... difficult to measure because
they are, intrinsically, incapable of being measured in precise financial terms ... Difficulty in measuring the financial value of such
contributions has never been – and ought never to be – an obstacle to giving the spouse concerned his or her just and equitable
share of the matrimonial assets that is commensurate with his or her contributions, taking into account (of course) the other
relevant contributions and factors.
C. Gender Neutral Application

[4.2.6] Families organise themselves in their own ways. Although it may be more common for a husband to be the family’s
breadwinner, the law is the same even if he discharged the homemaking role and the wife was the breadwinner instead. His non-
financial contributions will be considered in dividing the matrimonial assets. 16
[4.2.7] Even where both spouses are working full-time, it is often the wife who will be the one to shoulder the greater burden in
parenting and homemaking. However, it is of note that the Singapore Court of Appeal injected some realism by recognising the part
played by a breadwinner spouse (typically the husband) in other non-financial ways too: 17
... In most homes, even in a home where both the spouses are working full time, in the absence of concrete evidence it is more likely
than not that ordinarily the wife will be the party who renders greater indirect contributions. That said, even in a home where the
wife is a full-time homemaker, it would be an exceptional home where the husband renders no indirect contribution at all.
D. Definition of a Matrimonial Asset

[4.2.8] Section 112(10) of the Charter contains an exhaustive definition of a matrimonial asset:
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.
[4.2.9] This definition is examined below.
1. Assets acquired during marriage

[4.2.10] There is usually no difficulty in requiring any assets acquired during marriage to be shared between the parties. Such assets
would have been obtained or achieved through the joint efforts of the spouses in their matrimonial partnership.
[4.2.11] But what does the phrase “during marriage” in section 112(10)(b) of the Charter mean? Is it up to the date the parties separated,
the date on which the application for divorce is filed, the date on which the interim divorce judgment (decree nisi) is granted, the date
on which the ancillary matters are heard, or the date of the final divorce judgment (decree absolute)?
[4.2.12] The Singapore Court of Appeal in the case of Yeo Chong Lin v Tay Ang Choo Nancy and Another Appeal 18 held that any of the
first four dates could be used. In other words, it was possible for an asset acquired by one party after the breakdown of the marriage to
be regarded as a matrimonial asset subject to division between the parties. There may also be cases where there may be a long time gap
between the interim judgment of divorce and the hearing on the ancillary matters. It is up to the court to decide, in the circumstances of
the particular case, the cut-off date to determine what assets would fall within the pool of matrimonial assets. 19 In most situations, the
most appropriate date would either be the date of the interim judgment of divorce (decree nisi) or the date of the hearing on the
ancillary matters. 20
[4.2.13] The date of the final judgment of divorce (decree absolute) was found not suitable as a cut-off since it is a date in the future
where the final judgment is normally only granted after the ancillary matters had been settled. However, the court cautioned that in
exceptional cases, assets acquired even after the date of the hearing on ancillary matters could be considered. The court gave the
example of a spouse known to be likely in the future to receive an employment benefit for past services. Such a benefit could be taken
into account in dividing the matrimonial assets of the parties. 21
[4.2.14] In the case of ARY v ARX and Another Appeal, 22 the Singapore Court of Appeal held that the operative date for determining the
pool of matrimonial assets, “unless the particular circumstances or justice of the case warrant it, the starting point or default position
should be the date that interim judgment is granted”. This is because an interim judgment formally ends the marital relationship of the
parties, so using this as the operative date encourages the parties not to drag out the ancillary proceedings and enables the parties to
rearrange their financial affairs. However, the court’s discretion to determine the operative date is still preserved in deserving cases. 23
[4.2.15] Exceptionally, even an asset acquired “during marriage” may be left out of the pool of matrimonial assets for division. In the
case of Ong Boon Huat Samuel v Chan Mei Lan Kristine, 24 an apartment unit was purchased by the husband during the marriage. The
Singapore Court of Appeal decided that the property should not be shared since it was the consistent position of the wife from the
beginning that she was to have no part in the purchase or the liabilities associated with it. The court noted that the power under section
112 of the Charter to divide any matrimonial asset was a discretionary power which it did not need to exercise. This was such a case
where there was good reason for the court not to divide the property between the spouses.
2. Assets acquired before marriage

[4.2.16] In contrast to assets acquired during marriage, assets acquired before marriage by one party do not bear the hallmark of the
joint efforts of the spouses. As such, these assets are normally not treated as matrimonial assets subject to division, unless either of the
two situations in section 112(10)(a) are satisfied. The first situation is where the asset was “ordinarily used or enjoyed by both parties or
one or more of their children”. The second situation is where the asset “has been substantially improved during the marriage by the
other party or by both parties to the marriage”.
[4.2.17] Once it is proven that an asset was acquired before the marriage, the onus is on the other party to show that one of the two
situations apply such that it is nevertheless a matrimonial asset. If this cannot be shown, it will not be considered a matrimonial asset.
25
[4.2.18] The courts have considered several cases where a home had been purchased by one party before marriage and used as a
holiday home or for investment purposes. In Ryan Neil John v Berger Rosaline, 26 the court held that residence of 21 days out of 14 years
did not qualify the property as an asset “ordinarily used by the parties for recreational purposes”. In BJS v BJT, 27 the parties only stayed
at the property when it was not being tenanted out. The court noted that “the words ‘ordinarily used’ required some form of
substantiality before an asset could be captured by s 112(10)(a)(i) [of the Women’s Charter]”, and that the parties’ use or stay at the
property will not qualify if it was “occasional or casual”. 28 Furthermore, mere intentions to stay in the property but were not in fact
carried out are not sufficient to render it a matrimonial asset. 29
3. Substantial improvement by the other party or both parties

[4.2.19] The requirement to show substantial improvement of the asset is applied to assets acquired before marriage as well as assets
acquired by way of a gift or inheritance by one party before they will be considered as matrimonial assets.
[4.2.20] The substantial improvement must be due to efforts made by the other party or by both parties to the marriage. Even if the
asset is brought within the pool of matrimonial assets via this method and therefore capable of division, the actual extent of
contributions made can be reflected in the quantum and percentage of the asset the other party is awarded. 30
[4.2.21] Furthermore, a direct causal connection needs to be shown between the contributions and the improvement of the asset. In
Chen Siew Hwee v Low Kee Guan (Wong Yong Yee, co-respondent), 31 it was held that the shares received as a gift before the husband’s
marriage in this case could not be said to be improved by the wife’s homemaking efforts.
4. Qualifying words
[4.2.22] The last part of section 112(10) of the Charter (starting with “but does not include any asset ...”) has been described as
“qualifying words”, 32 an “exclusion clause”, 33 and a “proviso”. 34
[4.2.23] It has been held in the case of Chen Siew Hwee v Low Kee Guan (Wong Yong Yee, co-respondent) 35 that the last part of section
112(10) should be read to qualify both paragraphs (a) and (b) of the subsection for the following reasons:
1. The physical layout of the section itself;

2. It is illogical to apply a less stringent rule for gifts received before marriage than for gifts received during marriage; and
3. The donor of the gift would not expect the other spouse to have a share of the gift if it is given to one spouse only. This is
particularly so for gifts given before marriage who would not have the other spouse in contemplation.
[4.2.24] It should be noted that whether it makes a difference if the last part of section 112(10) qualifies paragraphs (a) and (b) or only
paragraph (b) depends on how the different formulae for inclusion as a matrimonial asset are understood. For assets acquired before
marriage, they may be transformed into a matrimonial asset by two ways: either being “ordinarily used or enjoyed by both parties or
one or more of their children” or having been substantially improved by the other party or by both parties to the marriage.
[4.2.25] On the other hand, for assets acquired by way of a gift or inheritance, they could be transformed into a matrimonial asset by
either being used as a matrimonial home or having been substantially improved by the other party or by both parties to the marriage.
[4.2.26] The requirement of “substantial improvement” is found in both sets of formulae and should therefore set the standard to be
met. As can be seen from the discussion on assets acquired before marriage, the courts have imposed a requirement of “substantiality”
to the requirement of “ordinarily used”. If this is applied to the requirement of a “matrimonial home” as well, there will be, in effect,
little difference in how the qualifying words are read.
5. Gifts to one or both spouses

[4.2.27] The courts have clarified that the requirement to show substantial improvement of the gift by the other party or by both
parties to the marriage in order for it to come within the pool of matrimonial assets for division is only meant for gifts to one party only.
It does not apply if the gift is given to both parties. In the case of Ang Teng Siong v Lee Su Min, 36 for example, the wife’s father bought a
property in the couple’s joint names and meant it as a gift to both spouses. It was held that this property did not come within the
definition of being acquired by one party. The donor father meant it for both spouses and it was therefore a matrimonial asset without
more. Similarly, it was also held in GAK v GAL 37 that a gift of property by the husband’s father was meant to benefit the husband and
his family.
6. Retaining nature as a gift or inheritance

[4.2.28] Where funds were derived from sale of a gift or inheritance and used to acquire a new asset, the new asset remains as an asset
acquired as a gift and will be excluded from the pool of matrimonial assets unless an argument for its inclusion can be shown. A literal
transformation in the asset is not sufficient to make it a matrimonial asset.
[4.2.29] However, the new asset could lose its nature as a gift or inheritance if it can be shown that the receiving spouse had intended
that the new asset should be considered part of the pool of matrimonial assets. This approach was explained in the case of Chen Siew
Hwee v Low Kee Guan (Wong Yong Yee, co-respondent) 38 as follows:
... the question of whether an asset originally given as a gift (here, the shares) has subsequently ceased to be a gift is not dependent
solely on its literal transformation as such; rather, the correct approach to be adopted should be to inquire whether or not such
literal transformation was accompanied by a voluntary intention on the part of the donee of the gift (here, the husband) that such
transformation or conversion of the gift was for the purpose of integrating the gift into the pool of matrimonial assets. If so, then the
literal transformation would become a legal one as well.
[4.2.30] In the case of AAE v AAF, 39 property that was acquired before marriage and from the husband’s inheritance was used to
purchase another property. The husband’s conduct in including the wife’s name as a joint tenant in the new property was held to be
strong evidence showing that the husband wanted to include the new property into the pool of matrimonial assets.
7. Gifting between spouses

[4.2.31] A rather complicated analysis is made of gifts between spouses. The Singapore Court of Appeal in Wan Lai Cheng v Quek Seow
Kee and Another Appeal and Another Matter 40 has categorised such gifts into the following three types: third-party gifts, inter-spousal
“re-gifts”, and “pure” inter-spousal gifts. Only the last category are assets which were not acquired by the donor spouse through a third-
party gift or inheritance, whereas the other two types originate from the third-party gift or inheritance. Under this scheme: 41
1. Third-party gifts are “gifts” for the purposes of the Exclusion Clause and are thus not included in the pool of matrimonial assets,
unless the “substantial improvement” exception is satisfied.
2. Inter-spousal “re-gifts” are not included in the pool of matrimonial assets, and the “substantial improvement” exception is not
applicable to inter-spousal “re-gifts”. Any necessary adjustments to achieve a just and fair result on the facts can be achieved by
the application by the court of s 112(2)(h) read with s 114(1)(a) of the [Women’s Charter].
3. “Pure” inter-spousal gifts are not “gifts” for the purposes of the Exclusion Clause, and are thus included in the pool of
matrimonial assets without the need to satisfy any further conditions.
[4.2.32] “Pure” inter-spousal gifts are automatically considered matrimonial assets capable of division because of the initial effort
expended by the donor spouse in the original acquisition of the gift. 42 Such “pure” inter-spousal gifts are not “gifts” within section
112(10) and so there is no need to use the “substantial improvement” exception to bring them into the pool of matrimonial assets.
However, an exception is made to this rule for de minimis inter-spousal gifts for items personal in nature such as jewellery. 43 In such
cases, the spouse may keep those assets for him or herself, but the initial effort of the donor spouse in the acquisition of the gift is
nevertheless acknowledged and recognised. 44 What is considered to be de minimis must be considered in the context of the overall pool
of matrimonial assets. 45
[4.2.33] On the other hand, where the gift itself was a gift from a third party (such as the parent of the donor), then the gift was not
actually acquired by the donor by effort on his or her part. Hence, the “substantial improvement” exception must be applied in order to
“prevent an unmerited windfall from accruing to the non-recipient spouse” which will not accord with the intention of the third-party
donor. 46
[4.2.34] However, in the case of a third-party gift which is in turn re-gifted to the other spouse, the “substantial improvement” exception
is not applicable. This is because of an insurmountable difficulty in identifying who is the “other spouse” in this situation: 47
Where a third-party gift or an inheritance is not re-gifted, the “other” spouse would simply be the non-recipient of the third-party
gift or inheritance. However, where there is subsequent inter-spousal re-gifting of a third-party gift or an inheritance, there is a
question as to who the “other” spouse is. For example, where a husband receives a third-party gift and then re-gifts it to his wife,
would the husband, as the donor spouse, be the “other” spouse as he is the non-recipient of the inter-spousal “re-gift”; or would the
wife be the “other” spouse as she was the non-recipient of the third-party gift which formed the subject of the inter-spousal “re-gift”?
[4.2.35] It was therefore held that the “substantial improvement” exception did not apply to inter-spousal re-gifts since this was not
envisaged by Parliament when section 112(10) was enacted. 48 Hence, that asset would not be part of the pool of the matrimonial assets
and will belong solely to the spouse who received the re-gift. 49 However, this lacuna 50 can be addressed by taking this spouse’s non-
matrimonial property into account under section 112(2)(h) read with section 114(1)(a) of the Charter and awarding a smaller share of
the matrimonial assets to him or her. 51
8. Windfalls
[4.2.36] In contrast to the tortured analysis of inter-spousal re-gifts, a different perspective was taken in two cases involving “windfalls”
to one spouse. The courts had no difficulty in finding that the asset could be automatically included in the pool of matrimonial assets
and divided between the parties. In Ng Sylvia v Oon Choon Huat Peter, 52 the husband had a share in a property which was bought with
money he had won in a lottery. As such, the property was acquired without any effort expended on his part. The court nonetheless
considered it as a matrimonial asset subject to division under section 112 of the Charter.
[4.2.37] In AYM v AYL and Another Appeal, 53 the parties had an agreement, which was recorded in a consent order as part of the
division of their matrimonial assets, that a property was to be sold and the sale proceeds divided in proportions of 30% to the husband
and 70% to the wife if the price was more than $2.5 million. The property was eventually sold for $5.1 million, which far exceeded the
highest estimated sales price at the time which was $3.75 million. The unexpected windfall from the higher sales price therefore
amounted to $1.35 million. Under the parties’ agreement, the wife would receive 70% and the husband 30% of this additional amount.
In other words, the wife received $540,000 more than the husband. The Singapore Court of Appeal made an order for the extra $540,000
to be shared equally between the parties. 54 It can be seen that the additional sum was simply treated as a matrimonial asset without
more and divided equally between the parties.
[4.2.38] Although these two cases did not strictly involve third-party gifts or inheritances, it can be noted that the unexpected wealth
also did not originate from either spouse’s personal efforts in acquiring it. Yet, the courts were able to order the parties to share in the
additional gains without a close analysis of whether they fell within the definition of a matrimonial asset in section 112(10) or not.
E. “Just and equitable” Division

[4.2.39] Section 112(1) of the Charter mandates the court, when exercising its power to divide matrimonial assets of the parties, to do so
“in such proportions as the court thinks just and equitable”. This legislative mandate has been described in ATT v ATS 55 as giving the
court “a wide discretion ... in determining what is just and equitable in the circumstances of each case”.
1. Trends from past cases

[4.2.40] Although there is no norm of division applicable since each case turns on its own peculiar facts and circumstances, the courts
are nevertheless guided by general trends in past cases to arrive at a just and equitable division. 56
[4.2.41] It has been observed that for marriages of moderate to long duration, the wife (who typically did not contribute as much
financially to the matrimonial assets) would be awarded 35% or more of the pool of the matrimonial assets. The following are
observations made in some past cases:
1. “I observed that in most of the cases ... where the wife received 35% of the matrimonial assets, the marriage was generally less
than 20 years. On the other hand, for marriages more than 20 years, the wife was awarded 40%. However, I note that in
exceptional cases where the value of the assets is very large, then even for long marriages, the percentage awarded to the wife
could be less than 35% ...” 57
2. “From my review of the cases, the proportion awarded to homemaker wives who have made modest financial contributions for
marriages lasting 17 to 35 years with children ranged between 35% to 50% of the total matrimonial assets ... Where the wife
also worked and supported the family financially, the courts have not hesitated to award her up to 60% of the total assets ... The
exceptions, where the apportionment in favour of the wife was less than 35%, typically concerned cases here the total pool of
matrimonial assets had been very substantial, in excess of $100m ... In those exceptional situations, the apportionment to the
wife had been, in absolute terms, substantial.” 58
3. “... for marriages of 17 to 35 years with children, the proportion of matrimonial assets awarded would range from 35% to 50%”.
59
2. Rejection of equal division as norm, starting point or yardstick

[4.2.42] The Singapore Court of Appeal in Lock Yeng Fun v Chua Hock Chye 60 firmly rejected starting from equal division as this was
found to be contrary to the legislative intent in section 112 of the Charter.
[4.2.43] However, note that in the case itself, the Singapore Court of Appeal said that “courts would nevertheless not hesitate to award
half (or even more than half) of the matrimonial assets if such a decision is justified on the facts”. 61 This is recognised to be especially so
in long marriages where “the law acknowledges the equally important contributions of the homemaker to the partnership of marriage”.
62
3. Rejection of “uplift” methodology

[4.2.44] Under the “uplift” methodology, 63 the court starts from the financial contributions made by each of the parties to the
matrimonial assets and then makes some adjustments to these figures to give credit to the non-financial contributions made. This
methodology continues to be used – possibly because it was some comfort to be able to start from reasonably ascertainable figures in
terms of the financial contributions made – even though it had been criticised in some cases. 64
[4.2.45] The “uplift” methodology was again rejected most recently in ANJ v ANK 65 for the following reasons:
... the “uplift” methodology is not a good tool to assess and recognise the parties’ indirect contributions to the marriage. The primary
difficulty with this approach is the indirect risk of it undervaluing a spouse’s non-financial contribution. Using direct financial
contributions as the prima facie starting point would not achieve the objective of the ... Women’s Charter of equalising the non-
financial contribution with financial contribution given the tendency of direct financial contributions to assume centre-stage,
leaving inadequate room for indirect contributions to feature within the calculus ... the homemaking spouse’s indirect contribution
to the family would be under-compensated.
4. Multi-factorial approach
[4.2.46] Section 112(2) of the Charter states that:
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
(h) the matters referred to in section 114(1) so far as they are relevant.
[4.2.47] In NK v NL, 66 the Singapore Court of Appeal noted that:
[I]t is paramount that courts do not focus merely on a direct and indirect contributions dichotomy in arriving at a just and
equitable division of matrimonial assets. The various factors enumerated by s 112(2) of the [Women’s Charter], which are no less
important, must be duly assessed and considered as a whole. At the end of the day, no one factor should be determinative as the
court’s mandate is to come to a just and equitable division of the matrimonial assets having regard to all the circumstances of the
case.
[4.2.48] In Yeo Chong Lin v Tay Ang Choo Nancy and Another Appeal, 67 the Singapore Court of Appeal also pointed out that:
... it is for the court to decide, in the light of the fact-situation of each case [what would] best achieve an equitable and just result.
What must be clearly recognised is that when the court makes such a determination it is not undertaking an exercise based on
arithmetic but a judgmental exercise based, in part at least, on feel.
...
... we do not think it falls within the province of the court to fill in the blanks which Parliament has deliberately left open. Thus the
exact division which the court will make in each particular case will necessarily be fact sensitive and that must have been intended
by Parliament. The only guidance which Parliament has laid down is “just and equitable” and that is the objective which the court
must in each case seek to achieve.
[4.2.49] The more salient factors listed in section 112(2), namely, the financial and non-financial contributions to the acquisition of the
matrimonial assets as well as the needs of the children of the marriage, are examined below.
(a) Financial contributions

[4.2.50] The financial contributions made by the parties are obviously relevant and this is recognised by section 112(2)(a) of the
Charter. There is usually some documentary evidence of the financial contributions made, such as a Central Provident Fund account
statement of the amounts used or bank statements showing payment towards the mortgage for the matrimonial property.
[4.2.51] In cases where it is difficult to obtain an exact breakdown of each party’s financial contribution to the matrimonial property,
courts have used an “income” approach involving a ratio of the parties’ total respective incomes during the marriage as a proxy of their
respective direct financial contributions. 68 Such an approach is particularly useful in long marriages where there has been a mingling
of finances, and in cases where there may have been past transactions involving the sale and purchase of previous matrimonial
property and there are no clear records of how the sales proceeds had been utilised.
[4.2.52] The basis for the “income” approach is a recognition that the parties may have mixed their finances such that there is no
distinction between which party paid for the matrimonial property and which party paid for the family’s expenses. As explained by the
Singapore High Court in AJR v AJS: 69
Having regard to the fact that in most marriage partnerships it is largely fortuitous as to which party contributes directly towards
the acquisition of matrimonial assets (eg, houses, shares, bonds, insurance policies with cash surrender values, etc) and which party
pays for other family expenditure (eg, food, education and medical expenses, etc) which have no asset value, I would prefer to
adopt a global assessment approach and work on the basis that, unless disputed, the parties to a marriage have contributed and
applied all their respective incomes from employment or business received in the course of the marriage to the overall welfare of
the family (be it as unattributable direct financial contributions towards food, education and medical expenses, etc, or as
attributable direct financial contributions traceable to the maintenance or acquisition of matrimonial assets including cash deposits
which are the unused monies saved by the parties). The ratio of their total respective incomes during the life of the marriage would
prima facie represent or reflect as a whole their respective direct financial contributions (both attributable and unattributable)
towards the overall welfare of the family and, accordingly, would prima facie also help to determine their respective direct
contributions for the purpose of a just and equitable division of matrimonial assets ...
[4.2.53] Where there is no history of the parties’ annual income available, a ratio based on the parties last drawn salary has been used
instead. 70 Hence, assuming that the husband’s gross monthly salary is X and the wife’s is Y, the wife can be taken to have made
financial contribution represented by [Y / (X + Y)] * 100%. However, such an approach was noted to be potentially inaccurate as it would
favour the husband since his career trajectory would be different from the wife’s. 71
(b) Non-financial contributions

[4.2.54] Section 112(2)(d) and (g) of the Charter clearly provides that due credit must be given to non-financial contributions made by
the spouses. Homemakers are therefore not to be prejudiced by their lack of financial contributions to the acquisition of the
matrimonial assets.
(c) Needs of the children

[4.2.55] The needs of the children (if any) of the marriage is one of the factors for consideration when dividing matrimonial assets
under section 112(2)(c) of the Charter. 72
[4.2.56] This factor usually comes into play when the court has to decide whether it is better to order a sale of the matrimonial home or
for it to be preserved by transferring it to the parent with care and control of the children (with fair consideration to the other parent),
especially where the children are young. 73 Relevant considerations include the proximity of the home to the children’s school and the
grandparents who may be looking after the children.
(d) Factors not exhaustive

[4.2.57] It is clear from the wording of section 112(2) that the enumerated matters for the court’s consideration are not exhaustive.
There could be other factors not mentioned in section 112(2) which the court may also consider in arriving at a just and equitable
division of the matrimonial assets.
[4.2.58] The Singapore Court of Appeal had occasion to observe this in Chan Tin Sun v Fong Quay Sim 74 where the wife in a 34-year
marriage had systematically poisoned the husband over the course of a year by adding insecticide into his food. For her criminal acts,
she was sentenced to one year’s imprisonment. Both parties subsequently applied for divorce.
[4.2.59] The court noted that the conduct of the parties was not a matter specifically mentioned in section 112(2), but “the court is not
precluded by the [Women’s Charter] from considering the conduct of the parties in exercising its power to order the division”, 75
however, “the court only ought to have regard to conduct that is both extreme (ie, manifestly serious) and undisputed in exercising its
powers under s 112(1) of the [Women’s Charter]”. 76
[4.2.60] On the facts of this case, the court determined that a negative value should be ascribed to the wife’s contribution to the family
since she fundamentally undermined the cooperative partnership and harmed the welfare of the other spouse. However, consideration
should still be given to her contributions prior to the misconduct. 77
5. Refinement by “structured” approach

[4.2.61] In ANJ v ANK, 78 the Singapore Court of Appeal put forward a “structured” approach to “accord due and sufficient recognition to
each party’s contribution towards the marriage – without overcompensating or undercompensating a spouse’s indirect contributions –
so that the outcome would ... lead to a just and equitable division”. 79 This is to refrain from “unguided discretion to divide assets” 80 and
“bring some system into the question of determining how the matrimonial assets of a marriage are to be divided”. 81
[4.2.62] The “structured” approach requires a court to engage in the following steps: 82
1. Express as a ratio the parties’ direct contributions relative to each other, having regard to the amount of financial contribution
each party made towards the acquisition or improvement of the matrimonial assets;
2. Express as a second ratio the parties’ indirect contributions relative to each other, having regard to both financial and non-
financial contributions; and
3. Derive the parties’ overall contributions relative to each other by taking an average of the two ratios above, keeping in mind
that, depending on the circumstances of each case, the direct and indirect contributions may not be accorded equal weight and
one of the two ratios may be accorded more significance than the other.
[4.2.63] The “average ratio” derived in step 3 above is a “non-binding” figure, which is “meant to serve as an indicative guide to assist
courts in deciding what would be a just and equitable apportionment having regard to the factual nuances of each case”. 83
[4.2.64] In ANJ v ANK, 84 the court noted that there were at least three factors that could shift the “average ratio” by according different
weights to the direct and indirect contributions of the parties:
1. In long marriages, indirect contributions would be weighted more as compared to short, childless marriages;
2. If the pool of matrimonial assets available for division is extraordinarily large and all of that was accrued by one party’s
exceptional efforts, direct contributions would likely be weighted more than indirect contributions; and
3. Greater weightage would be given to homemakers who have raised children to adulthood, especially where such efforts have
entailed significant career sacrifices on their part. However, the engagement of a domestic helper may lessen the parties’
collective indirect contributions. 85
[4.2.65] The following cases are used to illustrate the “structured” approach used by the courts, including how adjustments were made
to the average ratio where needed. 86
(a) ANJ v ANK 87

[4.2.66] Length of marriage: Nine years.
Children: two children, aged 10 and 8.

Direct contributions: husband 60%, wife 40%.
Indirect contributions: husband 40%, wife 60%.
Average ratio: husband 50%, wife 50% (if both direct and indirect contributions were weighted equally).
Final award: husband 50%, wife 50% (no adjustments made).
[4.2.67] There was no dispute that the ratio of direct contributions to the matrimonial assets was 60:40 in favour of the husband. The
Singapore Court of Appeal found that even though there had been some assistance from the children’s grandparents and both parties
had full-time jobs, the wife was the primary caregiver of the children and primary homemaker. Due credit must therefore be given to
her for her indirect contributions in the domestic sphere. Taking into account the husband’s indirect financial and non-financial
contributions, the court was of the view that the parties’ ratio of indirect contributions should be 40:60 in favour of the wife. Applying
the structured approach, the average ratio was 50:50. The court found that the facts before it presented no compelling reasons to adjust
the parties’ respective average percentage contributions.

[4.2.68] Length of marriage: 20 years.
Children: two children, aged 21 and 19.

Average ratio: husband 27.5%, wife 72.5% (if both direct and indirect contributions were weighted equally).
Final award: husband 25%, wife 75% (after adjustment).
[4.2.69] It was held that in the first decade of the marriage, the parties’ indirect contributions were roughly equal, except that the
nature of their contributions were different in that the husband met the family’s financial needs and took care of the family whenever
he could whilst the wife took primary care of the family in the domestic sphere. The wife had worked briefly and also contributed
financially during this time. In the second decade of the marriage, the court found that the wife’s indirect contributions far exceeded
those of the husband’s given his physical absence from the family for substantial lengths of time, although he still contributed
financially to the family. Taking a broad brush approach, the court found that the parties’ indirect contributions relative to each other
would be fairly represented by a ratio of 25:75 in the wife’s favour.
[4.2.70] The court further considered the fact that the marriage was a fairly lengthy one, and the pool of matrimonial asset was not
particularly large, and that the wife had made career sacrifices for the sake of the family. Hence the court was of the view that the
indirect contributions ought to be given more weight than the direct financial contributions. Therefore, the court took the view that a
fair and equitable division of the two matrimonial assets in contention would be in the proportions of 25% to the husband and 75% to
the wife.

[4.2.71] Length of marriage: five years.
Children: one child, aged 2.

Average ratio: husband 49.5%, wife 50.5% (if both direct and indirect contributions were weighted equally).
Final award: husband 54.25%, wife 45.75% (adjustment by weighing direct contributions 75% and indirect contributions 25%).
[4.2.72] Both parties worked full-time, with the wife having a more financially rewarding career. The parties were childless for the first
three years of the marriage, during which they had part-time domestic help. The husband moved out of the matrimonial bedroom
shortly after their child was born, and he moved out of the home subsequently. The parties had the assistance of a full-time maid and
the wife’s mother to look after the child. When the parties lived together, they kept their finances apart. The wife did not depend on the
husband financially at all during the marriage. The marriage was rather business-like, as the husband made sure that the wife paid her
share of the household expenses, and even when they went shopping together, he would keep track of the expenses and then seek
reimbursement from her afterwards if he had made the upfront payment.
[4.2.73] Due to the short marriage, and the way the parties conducted their lives during the marriage, the Singapore Court of Appeal
found that there was not a considerable amount of assistance on the domestic front. The court therefore felt that the parties’ direct
contributions should be given 75% weight and indirect contributions 25%.

[4.2.74] Length of marriage: nine years.
Children: none.
Average ratio: husband 75%, wife 25% (if both direct and indirect contributions were weighted equally).
Final award: husband 85%, wife 15% (after adjustment).
[4.2.75] The husband was the sole breadwinner and the wife the homemaker in this childless marriage. The wife had an adult son from
her previous marriage who resided together with her in the matrimonial home rent free after the parties separated. The bulk of the
matrimonial assets were accumulated by the husband in the short span of time prior to the divorce proceedings. The court felt that the
facts of the case required more weight to be given to the husband’s direct contributions that created the family wealth through his
industry and skill over a short period of time. This was achieved by the court adjusting the final award of the matrimonial assets to
85:15 in favour of the husband.
6. “Structured” approach only a guide

[4.2.76] In TDS v TDT, 91 the many considerations which must be taken into account in the exercise of the court’s discretion in section
112 were pointed out. It was thus not possible to state how each consideration increases or decreases in a mathematical proportion of a
share awarded to a party. The court reminded that “[i]t is, in fact, not desirable to engage in such an analysis”. 92 Instead, the court has
to approach the issue of division of matrimonial assets in broad strokes based on what is just and equitable on the facts of the case.
[4.2.77] Indeed, the Singapore Court of Appeal in the case of ANJ v ANK 93 had noted:
... by the very nature of matrimonial disputes, each case presents a unique set of facts and we do not propose to say that these
principles are necessarily exhaustive, nor do we expect them to be hard and fast rules that must immutably be applied even to
cases of exceptional facts. The controlling principle has always been and remains that the court must approach the exercise with
broad strokes based on its feel of what is just and equitable on the facts of the case.
7. Broad brush approach

[4.2.78] The courts have repeatedly used the phrase “broad brush” approach in describing how it had to operate in order to achieve the
legislative mandate to divide matrimonial assets in just and equitable proportions between the parties. 94 In BCB v BCC, 95 the broad
brush approach was described as allowing the court to avoid “an otherwise fruitless ‘mechanistic accounting procedure reflected in the
form of an arid and bloodless balance sheet’ that ‘would be contrary to the letter and spirit of the legislative scheme’ underlying s 112”.
[4.2.79] In ANJ v ANK, 96 the Singapore Court of Appeal clarified that the broad brush approach may involve two different aspects. The
first is with respect to direct financial contributions where the documentary evidence may not be able to establish clearly who made
what contribution, so a “rough and ready approximation” of the figures must be made. It was pointed out that: 97
... the court would have to approach the issue by exercising sound judgment, having regard to the inherent veracity of each party’s
version of events reflected in their affidavits or testimony as well as documentary evidence.
[4.2.80] The second aspect involves non-financial contributions which are not capable of mathematical measurement. It was therefore
up to the court to give values to these indirect contributions: 98
No mathematical formula or analytical tool is capable of capturing or accommodating the diverse and myriad set of factual
scenarios that may present themselves to court as to how the parties may have chosen to divide among themselves duties and
responsibilities in the domestic sphere ... What values to give to the indirect contributions of the parties is necessarily a matter of
impression and judgment of the court.
8. Global assessment and classification methodologies

[4.2.81] There are two different methodologies possible in the division of matrimonial assets. In the global assessment methodology, the
parties’ relative direct and indirect contributions to the marriage are assessed and applied to the entire pool of matrimonial assets;
whereas in the classification methodology, each class of matrimonial asset is separately analysed and apportioned according to the
parties’ direct and indirect contributions to each asset class. 99 The different classes include the matrimonial home, cash in bank
accounts, shares and business assets. In the former methodology, the direct financial contributions and indirect contributions are
considered in totality for all the matrimonial assets, while in the latter methodology, these contributions are considered in relation to
each class of assets.
[4.2.82] It must be noted that under the classification methodology, only the financial contributions of the parties for each class of asset
can vary. The non-financial contributions in terms of homemaking and child caring will necessarily remain constant for each class of
asset. 100
[4.2.83] Neither methodology is superior to the other and the paramount objective of both is the same – to ensure a just and equitable
division of the parties’ matrimonial assets. The only difference is that the classification methodology may be more appropriate if there
are multiple classes of assets. 101
9. Adverse inference
[4.2.84] It is essential to the functioning of the judicial system that accurate and full information is provided to the court. Failures to
provide full and frank disclosure can be sanctioned by the drawing of an adverse inference by the court. 102
[4.2.85] However, before allegations of non-disclosure can be made, there must be “some substratum of evidence that establishes a
prima faciecase against the other person against whom the inference is to be drawn” and showing that the party has particular access to
the information that he or she is alleged to be hiding. 103
[4.2.86] In Koh Bee Choo v Choo Chai Huah, 104 the wife made bare allegations that the husband made use of sums in a fixed deposit
account for purposes other than to pay off a mortgage. While it was true that the husband could not adduce documentary evidence of
how the money was used, he explained that the sums were used towards discharging an overdrawn amount in another account and
there was no evidence to contradict his position. It was also found that there was no motive for the husband to place the money
elsewhere at the time since there were no problems in the marriage then. The Singapore Court of Appeal therefore found that this was
not an instance where an adverse inference against the husband could be drawn.
[4.2.87] Common situations where the court drew an adverse inference against one of the parties involve extremely uncooperative
behaviour in complying with court orders and failures to explain withdrawals from bank accounts. 105 A case example is Yeo Chong Lin
v Tay Ang Choo Nancy and Another Appeal, 106 where the husband failed repeatedly to disclose his assets fully and to provide evidence
that the assets he acquired after the date of the interim judgment of divorce (decree nisi) were bought from resources he amassed
independently after the decree instead of being funded from the pool of matrimonial assets. An adverse inference was therefore made
that these assets were acquired from the pool of matrimonial assets and their value notionally placed back into the pool for division. As
for other assets which the husband failed to disclose, the lower court attributed a value of 10% of the disclosed assets to them. Although
the Singapore Court of Appeal did not disagree with this approach, it observed that this was a difficult case in which not only were there
undisclosed assets but also unknown values to the assets which were disclosed.
[4.2.88] In cases of undisclosed assets, two methods in which the adverse inference can be made in practice are by: 107
1. Adding a specific sum into the value of the pool of matrimonial assets which had been disclosed; or
2. Ordering a higher proportion of the disclosed assets to the other spouse. 108
[4.2.89] The increased proportion of matrimonial assets awarded to a spouse owing to an adverse inference made can be high. In Au
Kin Chung v Ho Kit Joo, 109 an additional 20% was given to the wife partly because of the husband’s failure to give full and frank
disclosure of his assets. Similarly, in Chan Siew Fong v Chan Fook Kee 110 and Tan Siew Eng (alias Tan Siew Eng Irene) v Ng Meng Hin, 111
all or nearly all of the disclosed matrimonial assets were awarded to the wife.
[4.2.90] The appropriate method to be adopted to give effect to the adverse inference depends on the facts of each case, subject to the
overriding need to achieve a “just and equitable” result. In Yeo Chong Lin v Tay Ang Choo Nancy and Another Appeal 112 it was said:
In the final analysis, it is for the court to decide, in the light of the fact-situation of each case, which approach would in its view best
achieve an equitable and just result. What must be clearly recognized is that when the court makes such a determination, it is not
undertaking an exercise based on arithmetic but a judgmental exercise based, in part at least, on feel.
[4.2.91] However, in cases where the value of an undisclosed or dissipated asset is known, the better way to achieve a just and
equitable result would be to add the known value back into the pool of matrimonial assets for division. 113
10. Agreements between the spouses

[4.2.92] Parties are able to make agreements between themselves so long as these agreements do not resile from the marriage; 114
however, the agreement cannot detract from the court’s powers to ensure that each party’s rights are not infringed. In TQ v TR and
Another Appeal, 115 it was noted by the Singapore Court of Appeal that:
The legal status of a prenuptial agreement in the Singapore context is the result of the interaction of both statute law... on the one
hand and the common law on the other. Put simply, where one or more of the provisions of the [Women’s Charter] expressly covers
a certain category of prenuptial agreement, then that provision or those provisions will be the governing law. Where, however, the
[Women’s Charter] is silent, then the legal status of the prenuptial agreement concerned will be governed by the common law. In
this regard, it will be assumed that any prenuptial agreement which contravenes any express provision of the [Women’s Charter]
and/or the general or specific legislative policy embodied within the [Women’s Charter] itself will not pass muster under the
common law.
[4.2.93] With regard to the division of matrimonial assets, section 112(2)(e) of the Charter states specifically that the court has to give
regard to “any agreement between the parties with respect to the ownership and division of the matrimonial assets made in
contemplation of divorce”.
[4.2.94] Spousal agreements – whether prenuptial or postnuptial or specifically made in contemplation of divorce (i.e. separation
agreements) – play an important role in resolving the ancillary matters between the parties following termination of marriage. The
exact point in time the agreement was entered into is not crucial. In Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur, 116 the
Singapore Court of Appeal pointed out that:
The ordinary meaning of the words “agreement ... made in contemplation of divorce” in s 112(2)(e) does not restrict the time the
agreement is made to a time before divorce proceedings have commenced. The words “made in contemplation of divorce” simply
clarify that the parties must have intended for the agreement to govern the allocation of matrimonial assets upon the contingency
of divorce, whenever that might actually happen, in contradistinction to a time when the parties are still married.
[4.2.95] However, such an agreement “cannot be enforced, in and of itself”. 117 It is only one of the factors that the court takes into
account in deciding the way matrimonial assets are divided, but it can be one which is of “conclusive weight” or “magnetic importance”.
118 In the case of TQ v TR and Another Appeal, 119 the Singapore Court of Appeal said:
... In so far as prenuptial agreements relating to the division of matrimonial assets are concerned, the governing provision is s 112 of
the [Women’s Charter]. In particular, the ultimate power resides in the court to order the division of matrimonial assets “in such
proportions as the court thinks just and equitable” [emphasis added] ... In particular:
(i) In arriving at its decision, the court will have regard to all the circumstances of the case (see s 112(2) of the [Women’s
Charter]) and this would include a prenuptial agreement.
(ii) What weight the prenuptial agreement will be given will depend on the precise facts and circumstances of the case. In an
appropriate situation, a prenuptial agreement might be accorded significant – even conclusive – weight ...
[4.2.96] As indicated above, the type of agreement encompassed within section 112(2)(e) is not restricted to agreements made between
parties who are already married and are contemplating imminent divorce. The important issue is whether the parties have addressed
their minds to how property should be divided should divorce occur (whenever that might happen). In Lian Hwee Choo Phebe v Tan
Seng Ong, 120 it was noted that:
It is clear from the decision of this court in TQ v TR, which dealt with a prenuptial agreement made shortly before marriage and
more than 13 years before the wife filed for divorce, that the divorce need not be imminent or even desired at the time of the
agreement. Rather, what is required is that in making the agreement, the parties must have addressed their minds to the issue of
how property should be divided in the eventuality of a divorce, notwithstanding that the possibility that at the time of making the
agreement they had hoped this eventuality would not arise. Thus, the intention that must be found by the court is that the parties
intended for the agreement to exhaustively govern the allocation of matrimonial assets upon the contingency of divorce, whenever
that might actually happen.
[4.2.97] It is for this reason that it is “extremely unlikely” to imply an agreement which is intended to exhaustively govern the division
of matrimonial assets on divorce. In Lian Hwee Choo Phebe v Tan Seng Ong, 121 it was observed that:
Married couples redistribute the ownership of matrimonial assets for all sorts of reasons, oftentimes without intending for the
ownership of the same to be cast in stone vis-à-vis each other. The mere fact of inter-spousal transfer of ownership is normally
equivocal, and could be construed to have been done for various reasons that have nothing to do with divorce or a severing of a
marital connection ... there will normally be no justification to prefer the possibility that the transfers per se evince an intention for
the parties to be bound by the post-transfer allocation upon divorce, over other equally plausible reasons (for instance, tax or estate
planning or ring-fencing assets against third party claims).
[4.2.98] However, prenuptial agreements can be contrasted with postnuptial agreements in that the latter are generally made in very
different circumstances (e.g. usually some time after the marriage and where the parties’ assets and future obligations are clearer). In
particular, the postnuptial agreement may be made by the parties at the point of separation or even after having been separated and
hence, more weight should be given to these separation agreements, although they are still subject to the scrutiny of the courts. In
Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur, 122 it was pointed out that:
A separation agreement is made when the marriage has failed and when the parties have either gone their separate ways or are
proposing to do so. The separation agreement is meant to cater to the immediate needs and desires of the parties, instead of some
future possibility of breakup which the couple neither want nor expect to happen. Therefore, as a general proposition, where the
parties enter into a separation agreement, especially after divorce or separation proceedings have already commenced, such a
separation agreement will, in our view, generally carry significant weight. Nevertheless, the weight to be allocated to a postnuptial
agreement in each case must ultimately depend on the precise circumstances of the case.
[4.2.99] In the case of Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur, 123 the settlement agreement was reached by the parties
after a mediation process during which the parties had independent legal advice. Furthermore, the division of assets in accordance with
the agreement was not manifestly disadvantageous to one party, considering the length of the marriage and the contributions made by
each party. There were also no allegations of vitiating factors such as duress or undue influence during or prior to the negotiations. The
Singapore Court of Appeal held: 124
... where parties have properly and fairly come to a formal separation agreement with the benefit of legal advice, the court will
generally attach significant weight to that agreement unless there are good and substantial grounds for concluding that to do so
would effect injustice. This approach is sensible because the parties to a marriage are in the best position to determine what is a
just and equitable division of the matrimonial assets based on their own assessment of each party’s direct and indirect
contributions to the marriage and their knowledge of the extent and value of the assets. Due to the inherent limitations of fact-
finding in the litigation process, the court should not lightly depart from such a separation agreement.
... divorce is a very personal matter and there may be private reasons as to why certain concessions were made in reaching a
settlement agreement ...
... In determining whether such unfairness exists, the court will not accord great significance to the fact that it might have made a
different distribution than that agreed to. The grounds for disregarding such a separation agreement would have to be more
substantial than a slight difference of opinion on the fairness of the distribution provided for by the agreement.
[4.2.100] In particular, the court noted that informed mediated settlements ought to be supported where possible: 125
... if the mediation process is properly followed, as it was in this case, the parties having participated in the process and received
advice thereon, and a settlement agreement results, the court will attach significant weight to the agreement unless there are good
and substantial grounds for concluding that to do so would cause an injustice.
[4.2.101] An example where the court did not give significant weight to a separation agreement is the case of AFS v AFU. 126 In that
case, the husband and wife had entered into a deed of separation which provided that the assets acquired by either party after the date
of the deed would remain as assets of the acquiring party. Two of the deed’s recitals required full disclosure of financial resources
which each party had or was likely to have in the foreseeable future. The court found that it was inequitable to hold the wife to the
agreement since the husband failed to disclose his acquisition of shares worth about $12 million and nearly $1 million in cash after the
date of the deed. These were found to be matrimonial assets which the wife would have had a share if they had been disclosed under
the agreement. The court therefore awarded her a portion of these assets on top of what she was entitled to under the deed.
[4.2.102] The court can consider an agreement even if it has been repudiated by the parties. The Singapore Court of Appeal in Surindar
Singh s/o Jaswant Singh v Sita Jaswant Kaur 127 explained:
... even if there is a breach of an agreement to settle parties’ rights to matrimonial property by way of one party’s refusal to meet his
obligations subsequent to the valid formation of such a settlement, the court would still be entitled under s 112(2) of the [Women’s]
Charter to consider this agreement and place the appropriate weight on it in the light of the circumstances. Any breach or
purported repudiation of a postnuptial agreement would be a relevant factor to be considered by the court, but such breach would
not and could not negate the fact that there was a binding postnuptial agreement.
4.3 MAINTENANCE OF EX-SPOUSE
[4.3.1] Under the former section 113 of the Charter, the legal duty to provide maintenance to an ex-spouse is placed only on the ex-
husband. However, by amendments to the Charter made in 2016, 128 an ex-wife will also have a legal obligation to maintain her ex-
husband but only if he is “incapacitated” during the subsistence of the marriage and continues to be unable to maintain himself. 129 The
incapacity may arise from “any physical or mental disability or any illness” which prevents him from earning a livelihood and
maintaining himself. 130 The principles established under the law on maintenance of an ex-wife are expected to apply equally to the
maintenance of an incapacitated ex-husband and this section is written assuming that the amendments are in force.
[4.3.2] The Minister for Social and Family Development attributed the continuing one-sidedness of the maintenance provision to
Singapore society being not ready for full parity between both spouses on this issue: 131
I don’t honestly think there is one decision that can satisfy all the differing views. This is one issue where there will be a range of
views, and there is certainly merit on both sides. Indeed, there are more women today with successful careers ...
On the other hand, we still have many women struggling to provide a decent home for herself and her children, after years of being
a homemaker during marriage ...
So after extensive discussions with stakeholders and internal deliberations, we have concluded that our society is not quite ready
for gender neutrality on the spousal maintenance front ...
There remains many vulnerable women, and many women who hold rank and file jobs, who need to be able to rely on their
husbands or ex-husbands for maintenance for themselves and their children. However, we do note that feedback provided on this
issue and will consider them in future.
That said, we do feel the time is right for us to take a step to allow incapacitated husbands and ex-husbands to apply for spousal
maintenance where there is a clear need.
A. Jurisdiction
[4.3.3] Only one application may be made for maintenance on termination of marriage. If such an order was applied for as part of the
ancillary proceedings and dismissed by the court, no further applications may be made subsequently by the ex-wife or incapacitated ex-
husband. 132
[4.3.4] In order to preserve an ex-wife’s or incapacitated ex-husband’s right to apply for maintenance in the future, an order for
nominal maintenance (such as $1 per month) is normally asked for such that a later court can vary the maintenance amount upwards.
133
[4.3.5] However, applications for nominal maintenance are not granted automatically. A court will examine the facts of each case to
arrive at a principled decision whether such an order should be granted. The ex-spouse is not a “general insurer vis-à-vis another party ...
to provide for the vicissitudes of life”. 134 It therefore is not sufficient for the ex-spouse “to argue – without more – that she is entitled to
an order of nominal maintenance simply because her situation might change in the future”. 135
[4.3.6] In ATE v ATD and Another Appeal, 136 no nominal maintenance was granted considering that it was a short marriage of about
five years and the wife was a career woman who was financially more successful than the husband. Her career was not affected at all
by the marriage. Since she was capable of looking after her own needs, there was no reason for imposing a continuing obligation on the
husband to maintain her even after the termination of marriage.
[4.3.7] The duration of a maintenance order, unless it is expressed to be for a fixed period, will continue till the death or remarriage of
the payee, namely, the ex-wife or incapacitated ex-husband. Where the maintenance was unsecured, 137 it will also expire on the death
of the payer ex-spouse. 138
B. Principles
[4.3.8] There are two strands to the basis on which maintenance of an ex-spouse is granted. On the one hand, maintenance is granted to
overcome transitional difficulties caused by the failure of the marriage. It is in this sense that the aim of maintenance has been
described as “the principle of financial preservation”. 139 This means that the ex-spouse should be financially provided for so that he or
she can continue to live at a level he or she did immediately before the breakdown of the marriage, but subject to the payer’s
circumstances. 140
[4.3.9] On the other hand, there are also statements that maintenance of an ex-wife (which are equally applicable to an incapacitated
ex-husband when the new law is brought into force) is ordered not on the basis of need, but to supplement the court’s power under
section 112 to order a just and equitable division of the matrimonial assets such that the homemaker spouse is not disadvantaged by the
role he or she played. 141 This view has been endorsed by the Singapore Court of Appeal: 142
... the aim [of the law imposing a duty on a former spouse to provide maintenance] is to even out any financial inequalities between
the spouses, taking into account any economic prejudice suffered ... during marriage.
[4.3.10] Under the latter view, the question for the court is whether there is a need to draw on the ex-spouse’s future income in order to
even out the relative economic disparities owing to the termination of marriage. Hence, if a substantial amount has been ordered under
the court’s power under section 112 in the division of matrimonial assets, a small or even no order of maintenance may be made under
section 113. 143 The requirement to pay maintenance to an ex-wife (or incapacitated ex-husband) is not related to financial dependency
during marriage: 144
... that a wife is financially capable does not per se excuse a husband from his duty to maintain her [during marriage], although it
may affect the quantum of maintenance deemed to be reasonable ... [A] husband’s reliance on his failure to provide maintenance
during the marriage per se, in order to evade his duty to maintain his former wife after divorce, cannot possibly sit well with the
court’s sense of justice.
C. Statutory Directives
[4.3.11] In deciding on the amount of maintenance to be ordered to be paid to the ex-wife (or incapacitated ex-husband when the new
law comes into force), the court is instructed to consider the following under section 114 of the Charter:
(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 marriage 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.
[4.3.12] In Foo Ah Yan v Chiam Heng Chow, 145 the Singapore Court of Appeal noted the potential inconsistency with reality in section
114(2) by requiring the court to place the parties in the financial position as if the marriage had not broken down. The court held that
the provision should be applied “in a commonsense holistic manner that takes into account the new realities that flow from the
breakdown of a marriage”. 146
[4.3.13] In AQS v AQR, 147 the Singapore Court of Appeal noted the following:
Although the wife was right to argue that under s 114(1)(c) of the Women’s Charter, the court in arriving at a maintenance sum
must take into account the standard of living that she was accustomed to and that s 114(2) directs the court to endeavour to place
the parties in the financial position in which they would have been had the marriage not broken down, these are not absolute
considerations but are subject to “so far as it is practicable”, “having regard to their conduct” and “just to do so” In this regard, we
should further point out that those considerations must also be balanced against the husband’s financial needs and obligations (s
114(1)(b)).
[4.3.14] In determining the exact amount of maintenance to be paid, the court has to rely on its “sense of justice” 148 and the level of
financial preservation is “so far as it is practicable”. 149 An example where the ex-spouse’s claims need to be scaled down to reasonable
amounts on termination of marriage can be seen in the case of Kwee Lee Fung Ivon v Lim Gordon, 150 where the wife claimed that she
needed to make 10 overseas trips a year on business class on Singapore Airlines to visit the children studying or working in the US, UK
and Australia. The amount claimed was $10,000 per trip or $120,000 per annum. The judge had no hesitation in characterising the claim
as “absurd” 151 and noted that the wife could see the four younger children when they returned to Singapore every year for holidays.
[4.3.15] Although misconduct is a relevant consideration found in section 114(2), the courts have been wary of allowing the “run of the
mill” type of allegations found in any marital breakdown to be argued. Matrimonial proceedings will become more acrimonious than
they need to be if such allegations are entertained. Quek Lee Tiam (mw) v Ho Kim Swee (alias Ho Kian Guan) 152 expressed a general
sentiment that: “We do not live in a perfect world and there will be misbehaviour and offences committed by married and unmarried
people.”
[4.3.16] In Tan Bee Giok v Loh Kum Yong, 153 it was noted that the “conduct” in question must be of a certain threshold such that “it
would be in the opinion of the court inequitable to disregard it”. Furthermore: 154
In applying the rule [in s 114(2) of the Women’s Charter] the court must take into consideration not only the conduct of the wife but
also that of the husband. If both parties are to blame for the breakdown, no useful purpose would be served in asking the parties to
rehearse the bitterness and recriminations which were brought to an end by the divorce.
D. Lump Sum Orders
[4.3.17] A maintenance order may be ordered to be paid in a lump sum or by way of periodic payments. 155 A lump sum payment may
be appropriate in three situations: 156
1. The desirability of a clean break between the parties which should be availed whenever feasible;
2. The payer spouse is able to afford the lump sum payment such that the payer’s earning capacity and financial resources will not
be crippled; and
3. There is a risk of default in payments as shown by the payer’s past history of payments or there are plans to move out of the
jurisdiction.
[4.3.18] On the other hand, one instance where a periodic payment will be ordered instead of a lump sum is where there is a good
chance that the payee spouse is likely to remarry to avoid over-compensating him or her. 157
[4.3.19] In calculating the lump sum award, a court will have to decide on what is a reasonable sum required for the ex-wife (or
incapacitated ex-husband) and multiply this with a suitable multiplier. In deciding on the appropriate multiplier, the court will have to
consider factors such as the spouse’s ability to pay, each party’s state of health, the payer’s employment prospects, the payee’s own
financial resources after obtaining a share of the matrimonial assets, and the chance of remarriage. For example, in the case of Foo Ah
Yan v Chiam Heng Chow, 158 a multiplier of 7 was used because the husband was already 72 years old and had retired as well as the
wife’s relative self-sufficiency.
[4.3.20] A guide that is used by the courts to ascertain the appropriate multiplier is to consider the payee’s present age (X), the average
life expectancy of the payee (Y) and the usual retirement age of the payer (Z) in the following formula: [(Y + Z) ÷ 2] – X. 159
[4.3.21] In the case of Wan Lai Cheng v Quek Seow Kee and Another Appeal and Another Matter 160 as an example, the wife’s present age
was 66 years, and the average life expectancy of women and the usual retirement age for men were found to be 85 and 65 years
respectively. The multiplier was therefore [(85+65) ÷ 2] – 66 = 9 years, but the court used a multiplier of 8 years instead as this was what
the wife claimed for.
[4.3.22] However, it must be cautioned that this calculation is only used as a guide by the courts and lower multipliers have been used.
161 Another consideration is to give a discount to the multiplier because the lump sum is received immediately rather than paid out
over the years. 162 In Quek Lee Tiam v Ho Kim Swee (alias Ho Kian Guan), 163 it was remarked that assessing the appropriate lump sum
maintenance payment must be undertaken with “a commonsense dose of realities”.
E. Agreements to Compound Maintenance

[4.3.23] Agreements between the parties to settle all future claims to maintenance by payment of a capital sum must be approved by
the court in order to be effective. When approved, it is a good defence against any claim for maintenance. 164
F. Arrears of Maintenance
[4.3.24] Maintenance arrears are not recoverable in any action if it accrued due more than three years before the commencement of
the suit, unless the court allows otherwise. 165
[4.3.25] Arrears of unsecured maintenance are recoverable as a debt from the defaulter. Where they accrued due before the making of
a bankruptcy order against the defaulter, they are provable in his or her bankruptcy. Where they accrued due before death of the
defaulter, they are a debt due from his or her estate. 166 Arrears of unsecured maintenance which accrued due before the death of the
payee are recoverable as a debt by his or her legal personal representatives. 167
[4.3.26] In the event of remarriage of the payer, a statutory declaration must be made, in the presence of the other party to the
intended marriage, as to whether he (or she when the new law comes into force) owes any arrears of maintenance before a marriage
licence can be issued. 168
G. Backdating of Maintenance
[4.3.27] Under section 113(1)(a) of the Charter, a court may make an order of maintenance in favour of a wife/former wife or
incapacitated husband/former husband “during the course of any matrimonial proceedings”, while under section 113(1)(b), a court may
make the order “when granting or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage”. In AXM
v AXO, 169 the Singapore Court of Appeal noted that the former order is commonly called an “interim maintenance order” in that
ancillary proceedings are in progress and the amount ordered does not bind the court deciding the final ancillaries. 170 On the other
hand, the latter order is commonly called a “final maintenance order” in that it is granted at the conclusion of the entire matrimonial
proceedings. 171
[4.3.28] There could be times when the “interim maintenance order” is later found to be overly generous. 172 The Singapore Court of
Appeal in AXM v AXO held that it would be wrong to simply backdate the commencement of a lower final maintenance order to cure
the over assessment such that it would overlap with what had been granted in the interim maintenance order. This would cause the
two orders to conflict with each other. 173 Unless it is rescinded or varied, a maintenance order under s 113(1)(a) is “‘interim’ or
‘provisional’ only in the sense of its duration of operation, and is conclusive in determining the parties’ financial relations for the time
being”. 174
[4.3.29] Furthermore, an interim maintenance order cannot be rescinded or varied if a final maintenance order has been made since
there would no longer be a “subsisting” order that can be varied or rescinded under section 118. 175 In such cases, the Singapore Court
of Appeal held that the proper way to recognise the depleted resources owing to the interim maintenance order made is to give a lower
sum when making the final maintenance order. 176
FOOTNOTES
* I am grateful for the initial work towards this chapter by Jinny Tan, District Judge, Singapore Family Court. I am also greatly indebted to my colleague,
Professor Leong Wai Kum, for guiding me in the study of Family Law. Any shortcomings are of course mine alone.
1 Applications after the conclusion of the matrimonial proceedings will be entertained only on an exceptional basis with leave of court, see rule 87 of the
Family Justice Rules 2014. For an example where leave was given under the former law, see Lim Beng Choo v Tan Pau Soon [1996] 2 SLR(R) 467.
2 Section 59 of the Women’s Charter (Cap 353) also allows a court to determine “any question between husband and wife as to the title to or possession of
property” and such application may be made “notwithstanding that their marriage has been dissolved or annulled so long as the application is made within ...
3 years [of the marriage being] dissolved or annulled”. In the event that section 59 (which is decided purely on property law principles) is used to circumvent
the court’s power to order division of matrimonial assets in section 112, the court may strike out the section 59 claim as an abuse of the judicial process, see
Ho Kiang Fah v Toh Buan [2009] 3 SLR(R) 398.
3 The applicable statute, the Women’s Charter (Cap 353), governs non-Muslim marriages but Muslim couples are able to apply to the civil courts as well for
certain ancillary matters, see section 17A of the Supreme Court of Judicature Act (Cap 322). This chapter only deals with non-Muslim law.
4 Wong Yuk Fong Lily v Menezes Ignatius Augustine (Menezes Daniel Matthew, intervener) [1992] 1 SLR(R) 252.
5 Sivakolunthu Kumarasamy v Shanmugam Nagaiah & Anor [1987] SLR(R) 702.
6 Ng Sui Wah Novina v Chandra Michael Setiawan [1992] 2 SLR(R) 111.
7 Women’s Charter (Amendment) Act 2011 (Act No 2 of 2011).
8 The conditions to be satisfied before the Singapore court will make the order can be found in sections 121C, 121D and 121F of the Charter. See Harjit Kaur d/o
Kulwant Singh v Saroop Singh a/l Amar Singh [2015] 4 SLR 1216 for a discussion.
9 Administration of Muslim Law (Amendment) Act 1999 (Act No 20 of 1999).
10 Section 35A of the Administration of Muslim Law Act (Cap 3); section 17A of the Supreme Court of Judicature Act (Cap 322). But note that these provisions as
well as Part X Chapter 4A of the Charter do not apply if the Muslim couple was not divorced by the Syariah Court in Singapore: TMO v TMP [2016] 2 SLR 1198.
11 The provision is also available to parties in a void or voidable marriage, see ADP v ADQ [2012] 2 SLR 143.
12 Lau Siew Kim v Yeo Guan Chye Terence & Anor [2008] 2 SLR(R) 108 at [80]–[81] (Emphasis in original). See also Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R)
520 at [40].
13 [2013] 1 SLR 476 at [23].
14 [2007] 3 SLR(R) 743 at [20] and [41]. See also ANJ v ANK [2015] 4 SLR 1043 at [17].
15 [2007] 3 SLR(R) 520 at [39] (Emphasis in original).
16 See for example, Chan Yeong Keay v Yeo Mei Ling [1994] 2 SLR(R) 133; ACA v ACB [2009] SGDC 330.
17 ANJ v ANK [2015] 4 SLR 1043 at [24].
18 [2011] 2 SLR 1157.
19 Ibid at [32]. The court could even apply different cut-off dates to different categories of assets if warranted by the circumstances (at [36] and [39]).
20 Ibid at [39].
21 Ibid at [21].
22 [2016] 2 SLR 686 at [31] (Emphasis in original).
23 Ibid at [34]–[35]. It should be noted that a court not only has the discretion to select the operative date to determine the pool of matrimonial assets, it also has
the discretion to select the date on which to value those assets. As a general principle, jointly owned assets are valued at the date of the judgment on ancillary
matters, while separately owned assets are valued at the date on which the matrimonial assets were determined, see Anthony Patrick Nathan v Chan Siew
Chin [2011] 4 SLR 1121 at [21]–[33].
24 [2007] 2 SLR(R) 729. Similarly, in AZZ v BAA [2016] SGHC 44 at [122]–[123], the court declined to exercise its power to divide a certain property even though it
is technically a matrimonial asset as the parties had made an agreement to divide it equally with the benefit of legal advice.
25 See for example, Wong Ser Wan v Ng Cheong Ling [2006] 1 SLR(R) 416 at [22]; Ryan Neil John v Berger Rosaline [2000] 3 SLR(R) 647 at [60].
26 Ryan Neil John v Berger Rosaline, ibid.
27 [2013] 4 SLR 41.
28 Ibid at [23].
29 JAF v JAE [2016] 3 SLR 717 at [15].
30 Koh Kim Lan Angela v Choong Kian Haw and Another Appeal [1993] 3 SLR(R) 491.
31 [2006] 4 SLR(R) 605. See also Chow Hoo Siong v Lee Dawn Audrey [2003] 4 SLR(R) 481.
32 Chen Siew Hwee v Low Kee Guan (Wong Yong Yee, co-respondent), ibid.
33 Wan Lai Cheng v Quek Seow Kee and Another Appeal and Another Matter [2012] 4 SLR 405.
34 GAK v GAL [2013] SGCA 19.
35 [2006] 4 SLR(R) 605. The same reasoning will apply to inheritances received by one party.
36 [2000] 1 SLR(R) 908.
37 [2013] SGCA 19.
39 [2009] 3 SLR(R) 827.
40 [2012] 4 SLR 405.
41 Ibid at [59] (Emphasis in original). The analysis is also applicable to inheritances received by one party (at [55]). The “Exclusion Clause” refers to the last part
of section 112(10) – see paragraphs [4.2.22]–[4.2.26] under the sub-heading titled “Qualifying words” above.
42 Yeo Gim Tong Michael v Tianzon Lolita [1996] 1 SLR(R) 633 at [12].
43 Tan Hwee Lee v Tan Cheng Guan and Another Appeal and Another Matter [2012] 4 SLR 785 at [48].
44 Wan Lai Cheng v Quek Seow Kee and Another Appeal and Another Matter [2012] 4 SLR 405 at [40].
45 Yeo Chong Lin v Tay Ang Choo Nancy and Another Appeal [2011] 2 SLR 1157 at [52].
46 Wan Lai Cheng v Quek Seow Kee and Another Appeal and Another Matter [2012] 4 SLR 405 at [42].
47 Ibid at [56].
48 Ibid.
49 Ibid at [57].
50 Ibid at [55] and [58].
51 Ibid at [57] and [58].
52 [2002] 1 SLR(R) 246.
53 [2014] 4 SLR 559.
54 The wife’s share was deducted from the lump sum maintenance ordered by the court.
55 [2012] 2 SLR 859 at [14].
56 See BCB v BCC [2013] 2 SLR 324 and Zhou Lijie v Wang Chengxiang [2015] SGHC 316 for recent examples where the court looked at similar cases as a guide. In
Yeo Chong Lin v Tay Ang Choo Nancy and Another Appeal [2011] 2 SLR 1157 at [79], the Singapore Court of Appeal cautioned: “... The division made in an
earlier case is no more than an illustration which subsequent cases can take into account as guides, always bearing in mind the difference in circumstances
and that no two cases are identical.”
57 Wong Kien Keong v Khoo Hoon Eng [2014] 1 SLR 1342 at [96].
58 Chan Yuen Boey v Sia Hee Soon [2012] 3 SLR 402 at [34]–[35]. The cases cited therein have been omitted.
59 Chan Tin Sun v Fong Quay Sim [2015] 2 SLR 195 at [58].
60 [2007] 3 SLR(R) 520 at [57]. See also Lim Choon Lai v Chew Kim Heng [2001] 2 SLR(R) 260; Yow Mee Lan v Chen Kai Buan [2000] 2 SLR(R) 659.
61 Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520 at [58].
62 NK v NL [2007] 3 SLR(R) 743 at [41].
63 Also described as the “traditional approach” in NK v NL, ibid at [23].
64 See for example, NK v NL, ibid; Pang Rosaline v Chan Kong Chin [2009] 4 SLR(R) 935; Tan Hwee Lee v Tan Cheng Guan and Another Appeal and Another Matter
[2012] 4 SLR 785 where this approach was criticised.
65 [2015] 4 SLR 1043 at [19].
67 [2011] 2 SLR 1157 at [66] and [79].
68 Examples where this approach had been used include Pang Rosaline v Chan Kong Chin [2009] 4 SLR(R) 935; AJR v AJS [2010] 4 SLR 617; TEG v TEH and Another
Matter [2015] SGHCF 8; Chi Ping Huey v Yeo Whye Siah [2015] SGFC 52.
70 TEG v TEH and Another Matter [2015] SGHCF 8.
71 Ibid at [31].
72 Note that a “child of the marriage” could include an adopted child and even a non-biological child who has been accepted as a member of the family, see
section 92 of the Charter.
73 See for example, Tham Khai Meng v Nam Wen Jet Bernadette [1997] 1 SLR(R) 336; ANJ v ANK [2015] 4 SLR 1043.
74 [2015] 2 SLR 195.
75 Ibid at [22].
76 Ibid at [25] (Emphasis in original). In THL v THM [2015] SGHCF 11, where the wife allegedly tried to take her own life and those of her children, the court held
that her conduct was not of the same gravity as in Chan Tin Sun v Fong Quay Sim, ibid, and should not be taken into account.
77 Chan Tin Sun v Fong Quay Sim, ibid at [55] and [57].
78 [2015] 4 SLR 1043.
79 Ibid at [22].
80 Ibid at [21].
81 Ibid at [25].
82 Twiss Christopher James Hans v Twiss Yvonne Prendergast [2015] SGCA 52 at [17].
83 ANJ v ANK [2015] 4 SLR 1043 at [26].
84 Ibid at [27].
85 This may be contrasted with the sentiment expressed in Pang Rosaline v Chan Kong Chin [2009] 4 SLR(R) 935 at [19] that any inference from having a domestic
helper must be carefully drawn. In that case, the wife was a career woman who left the running of the household to domestic help:
[It cannot be accepted] that spouses who work full-time cannot, ipso facto, spare any time to contribute towards the marriage or the family at all and
would necessarily have to sacrifice their all (and, consequently, their marriage as well as family) at the altar of work. Whilst obviously undesirable,
this is not to state that such a situation is impossible. However, this would have to be established by cogent evidence. It was clear that such evidence
was not forthcoming in the present appeal. Put simply, there was nothing in the evidence before us which suggested that the wife had, in fact,
sacrificed herself as well as her family and marriage at the altar of work. (Emphasis in original)
86 Other examples where adjustments to the average ratio were made include:
(1) TEG v THE and Another Matter [2015] SGHCF 8: average ratio of 56.5:43.5 adjusted to 55:45 to take into account the fact that the wife lived in rented
premises for 10 years while the husband had the benefit of the matrimonial home;
(2) TIG v TIH [2016] 1 SLR 1218: average ratio of 68:32 adjusted to 65:35 to give more weight to the wife’s indirect contributions in the long marriage and
the fact that the matrimonial asset pool was not insubstantial; and
(3) THL v THM [2015] SGHCF 11: average ratio which would have been 70:30 adjusted to 75:25 to give greater weight to the parties’ direct contributions
owing to the large pool of matrimonial assets and the short duration of marriage.
87 [2015] 4 SLR 1043.
88 [2015] SGCA 52.
89 [2016] SGCA 2.
90 [2015] SGHC 316.
91 [2015] SGHCF 7.
92 Ibid at [52]. Although the award was varied on appeal, the Singapore Court of Appeal affirmed that even though the structured approach was not used, the
division gave “due regard to the parties’ respective direct and indirect contributions”, see TDT v TDS and Another Appeal and Another Matter [2016] SGCA 35 at
[69].
93 [2015] 4 SLR 1043 at [30].
94 An early case which used this concept is Koo Shirley v Mok Kong Chua Kenneth [1989] 1 SLR(R) 244 at [25] where it was said:
In making a division of all these assets between the petitioner and the respondent it is plainly an impossible task to quantify with any precision in
monetary terms the amount of each party’s contribution and I approached the problem in a broad manner, taking into account the factors
prescribed in ... the Women’s Charter.
95 [2013] 2 SLR 324 at [10].
96 [2015] 4 SLR 1043.
97 Ibid at [23].
98 Ibid at [24].
99 See NK v NL [2007] 3 SLR(R) 743.
100 AYQ v AYR and Another Matter [2013] 1 SLR 476 at [23].
101 NK v NL [2007] 3 SLR(R) 743 at [33].
102 See section 116(g) of the Evidence Act (Cap 97); rule 75 of the Family Justice Rules 2014.
103 Koh Bee Choo v Choo Chai Huah [2007] SGCA 21 at [28]; Chan Tin Sun v Fong Quay Sim [2015] 2 SLR 195 at [62].
104 Koh Bee Choo v Choo Chai Huah, ibid.
105 See for example Wee Ah Lian v Teo Siak Weng [1992] 1 SLR(R) 347; AAE v AAF [2009] 3 SLR(R) 827; O’Connor Rosamund Monica v Potter Derek John [2011] 3
SLR 294; Chan Tin Sun v Fong Quay Sim [2015] 2 SLR 195.
106 [2011] 2 SLR 1157.
107 See NK v NL [2007] 3 SLR(R) 743; Yeo Chong Lin v Tay Ang Choo Nancy and Another Appeal, ibid.
108 An adverse inference can be used in the context of the “structured” approach by adjusting the final award to the parties, see TLB v TLC [2016] SGHCF 3 at [40];
TME v TMF [2016] SGHCF 6 at [61].
109 [2007] SGHC 150.
110 [2002] 1 SLR(R) 93.

111 [2003] 3 SLR(R) 474.
112 [2011] 2 SLR 1157 at [66].
113 Chan Tin Sun v Fong Quay Sim [2015] 2 SLR 195 at [66].
114 Kwong Sin Hwa v Lau Lee Yen [1993] 1 SLR(R) 90.
115 [2009] 2 SLR(R) 961 at [50] (Emphasis in original). See also [103]–[104] where the special considerations in agreements relating to maintenance and custody of
children were noted.
116 [2014] 3 SLR 1284 at [42].
117 TQ v TR and Another Appeal [2009] 2 SLR(R) 961 at [77] (Emphasis in original).
118 Ibid at [86].
119 Ibid at [103] (Emphasis in original). The court also pointed out that in the case of a prenuptial agreement entered into by foreign nationals and the agreement
is valid according to foreign law, the court should accord “significant (even critical) weight to the terms of that agreement” (at [87]).
121 Ibid at [30].
122 [2014] 3 SLR 1284 at [52].
123 Ibid.
124 Ibid at [54]–[56].
125 Ibid at [60].
126 [2011] 3 SLR 275.
127 [2014] 3 SLR 1284 at [34]. See also Tan Siew Eng (alias Tan Siew Eng Irene) v Ng Meng Hin [2003] 3 SLR(R) 474.
128 Women’s Charter (Amendment) Act 2016 (Act No 7 of 2016) was passed by Parliament on February 29, 2016.
129 New section 2 of the Charter. This will leave out ex-husbands who were not incapacitated before or during the marriage, but became so after the termination
of marriage.
130 New section 2 of the Charter.
131 Tan Chuan-Jin, Minister for Social and Family Development at the Second Reading of the Women’s Charter (Amendment) Bill 2016 on February 29, 2016.
Available online at
<http://app.msf.gov.sg/Press-Room/Opening-Speech-by-Mr-Tan-Chuan-Jin-Minister-for-Social-and-Family-Development-At-The-Second-Reading-of-The-Womens
-Charter-Amendment-Bill-2016-In-Parliament-29-Feb-2016> (last accessed July 11, 2016).
132 Tan Bee Giok v Loh Kum Yong [1996] 3 SLR(R) 605 at [15]. This includes the case where the court makes “no order” as to the application, see APE v APF [2015] 5
SLR 783.
133 Section 118 of the Charter. The grounds for variation are “misrepresentation or mistake of fact or where there has been any material change in the
circumstances”.
134 ATE v ATD and Another Appeal [2016] SGCA 2 at [29] (Emphasis in original).
135 Ibid.
136 ATE v ATD and Another Appeal, ibid. Similarly, no maintenance was ordered to the wife in Fong Wai Har v Seah Boon Chai & Anor [2016] SGHCF 4 at [49] since
she was “earning an income, has earning capacity and has substantial assets”.
137 An order of periodic payment of maintenance may be “secured” in the sense of vesting property in trustees who hold the property on trust to pay the
maintenance out of income generated by that property, see section 115(2) of the Charter.
139 Quek Lee Tiam v Ho Kim Swee (alias Ho Kian Guan) [1995] SGHC 23 at [18].
140 See the relevant factors for the court’s consideration in section 114(1) of the Charter such as the parties’ financial needs and obligations, age and physical or
mental disability.
141 But note that in ATE v ATD and Another Appeal [2016] SGCA 2 at [32]–[33], the Singapore Court of Appeal opined that it did not want to give “a definitive
pronouncement” on Professor Leong Wai Kum’s “more radical suggestion” that the purpose of maintenance of an ex-spouse in section 113 is the same as
division of matrimonial assets under section 112, which is “to give the former [spouse] a fair share of the wealth that had been acquired or built up by the
marital partnership”. The court was only willing to say that there was “an inter-relationship between both provisions” and that the “power to order
maintenance being supplementary to the power to order a division of matrimonial assets” (Emphasis in original). However, see the earlier case of Foo Ah Yan
v Chiam Heng Chow [2012] 2 SLR 506 at [22] where Professor Leong Wai Kum’s views in Elements of Family Law in Singapore (LexisNexis, 2007), p 476 were
agreed with.
142 Tan Sue-Ann Melissa v Lim Siang Bok Dennis [2004] 3 SLR(R) 376 at [27]. See also Foo Ah Yan v Chiam Heng Chow, ibid at [22].
143 Compare, for example, the orders made by the Singapore High Court and Court of Appeal in Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520 and the
cases cited in Foo Ah Yan v Chiam Heng Chow, ibid at [26]. Section 114(1)(a) expressly requires the court to consider the financial resources of the parties in
determining the maintenance payable.
144 Foo Ah Yan v Chiam Heng Chow, ibid at [21].
145 Foo Ah Yan v Chiam Heng Chow, ibid.
146 Ibid at [16] (Emphasis in original). See also NI v NJ [2007] 1 SLR(R) 75 at [14]–[16] (the ex-wife’s insistence on enjoying an “expatriate” lifestyle was found to be
unreasonable); Yow Mee Lan v Chen Kai Buan [2000] 2 SLR(R) 659 at [93] (“[t]he wife has assets of her own and cannot expect a full subsidy for her lifestyle
from the husband”).
147 [2012] SGCA 3 at [52].
148 Wong Amy v Chua Seng Chuan (Tow Lee Cheng Christine, co-respondent) [1992] 2 SLR(R) 143 at [40].
149 Quek Lee Tiam v Ho Kim Swee (alias Ho Kian Guan) [1995] SGHC 23 at [18].
150 [2013] SGHC 228.
151 Ibid at [82].
152 [1995] SGHC 23 at [2]. In the context of this case, it was held that an irrational spending spree of $90,000 by the wife should not be held against her (at [10]).
153 [1996] 1 SLR(R) 130 at [19].
154 Ibid at [25].
156 AYM v AYL and Another Appeal [2014] 4 SLR 559 at [18]. See also Lee Puey Hwa v Tay Cheow Seng [1991] 2 SLR(R) 196 at [9].
157 Tan Bee Giok v Loh Kum Yong [1996] 3 SLR(R) 605 at [26].
158 [2012] 2 SLR 506.
159 This was developed in Ong Chen Leng v Tan Sau Poo [1993] 2 SLR(R) 545 at [35].
160 [2012] 4 SLR 405 at [89].
161 See for example BJZ v BKA [2013] SGHC 149 at [84]; Yow Mee Lan v Chen Kai Buan [2000] 2 SLR(R) 659 at [97]; Rosaline Singh v Jayabalan Samidurai (alias
Jerome Jayabalan) [2004] 1 SLR(R) 457 at [13] where lower multipliers were used than suggested by the formula.
162 Tan Yen Chuan (mw) v Lim Theam Siew [2014] SGHC 110 at [82].
163 [1995] SGHC 23 at [21].
168 Section 17(2A) and (2B) of the Charter.
169 [2014] 2 SLR 705.
170 Ibid at [16] and [20].
171 Ibid at [17]. The terms “interim maintenance order” and “final maintenance order” are convenient shorthands and do not appear in the Charter itself (ibid at
[18]).
172 This could be because a full investigation of the facts of the case was not done at the interim stage of proceedings or because the court was not able to
consider the financial resources of the parties after division of the matrimonial assets, ibid at [13]. In the present case, the husband was prejudiced by the
delay in the hearing of the final ancillary proceedings such that he remained liable for the high amount of interim maintenance ordered (ibid at [35]).
173 However, the court has the discretion to backdate a final maintenance order in appropriate circumstances so long as there is no prior interim maintenance
order in existence, ibid at [21].
174 Ibid at [40].
175 Ibid at [29].
176 In this case, the court ordered the husband to pay a lower sum of A$4,500 for 30 months and thereafter a monthly sum of A$5,500 for maintenance of the wife
and children (ibid at [44]).

2016 - 10 - 17 PAGE 123

Chapter 05: Ancillary Relief: Orders That Can Be Made
Chapter 5
Ancillary Relief: Orders That Can Be Made

Yap Teong Liang *

A. What is Ancillary Relief? 125
B. Powers of the Court 125
C. Orders Related to the Welfare of Children 125
D. Orders Related to the Maintenance for Children 125
E. Orders Related to the Maintenance for Former Wife 125
F. Orders Related to the Maintenance for an Incapacitated Former Husband 126
G. Orders for Financial Relief 126
5.2 Orders Related to the Welfare of Children 127
A. Custody 127
B. Care and Control 129
C. Access 131
D. Examples of Custody, Care and Control and Access Orders 132
5.3 Orders Related to the Maintenance for Children 133
B. Examples of Maintenance Orders for the Child 134
5.4 Orders Related to the Maintenance for Former Wife 134
B. Examples of Maintenance Orders for Former Wife 136
5.5 Orders Related to the Maintenance for an Incapacitated Former Husband 136
5.6 Orders for Financial Relief 137
A. Generally 137
B. Orders on Housing & Development Board Property 139
C. Examples of Orders for the Sale or Transfer of the Matrimonial Home 141
D. Orders Related to Central Provident Fund Account 142
E. Orders Related to Other Matrimonial Assets 143
5.7 Registrar of the Family Justice Courts to Sign Documents 144
A. Generally 144
B. Example of Order for Registrar to Sign 144
5.8 Making Orders Following Mediation 144
5.9 Orders on Costs 146
A. General Principles on Costs 146
B. Application of Costs Principles in Divorce Proceedings 147
5.1 INTRODUCTION
A. What is Ancillary Relief?

[5.1.1] This chapter discusses the different types of ancillary relief orders a court may make consequent upon the grant of a divorce,
judicial separation or nullity of marriage. Such orders may encompass the custody, care and control of the children of the marriage,
maintenance for the children, maintenance for the former spouse, division of matrimonial assets and costs.
B. Powers of the Court

[5.1.2] The ancillary matters are usually heard in the Family Court in the first instance. However, there may be cases where the
proceedings are transferred to the High Court pursuant to section 29 of the Family Justice Act 2014 (No 27 of 2014) (“FJ Act”) by reason
that the matter involves some important question of law or of being a test case, or for any other sufficient reason, should be tried in the
High Court.
C. Orders Related to the Welfare of Children

[5.1.3] Section 124 of the Women’s Charter (Cap 353) (the “Charter”) gives the court the power to make such orders as it thinks fit with
respect to the welfare of any child and may vary or discharge the said orders. The section is wide enough to permit the court to make
such orders at any stage of the proceedings for divorce, judicial separation or nullity of marriage or even after final judgment has been
granted.
D. Orders Related to the Maintenance for Children

[5.1.4] The court’s power to make orders for maintenance for children stems from section 127 of the Charter.
E. Orders Related to the Maintenance for Former Wife

[5.1.5] Section 113(1)(b) of the Charter gives the court the power to make orders for maintenance for a former wife when granting or
subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage.
F. Orders Related to the Maintenance for an Incapacitated Former Husband

[5.1.6] Until recently, a former husband was not able to seek maintenance from his former wife at all. The recent amendments to the
Charter which came into effect on July 1, 2016 1 introduced a new provision in section 113 of the Charter to enable an incapacitated
former husband to make a claim for maintenance from the former wife. Under section 2 of the Charter, an incapacitated former
husband means a former husband to the marriage who (a) during the subsistence of the marriage, was or became (i) incapacitated, by
any physical or mental disability or any illness, from earning a livelihood; and (ii) unable to maintain himself; and (b) continues to be
unable to maintain himself.
G. Orders for Financial Relief

[5.1.7] The court’s power to grant ancillary relief arises only when there is a pronouncement of a judgment of divorce, judicial
separation or nullity or marriage. Section 112(1) of the Charter provides that “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.”
[5.1.8] In the case where the marriage is dissolved or annulled or the parties to a marriage have been legally separated by means of
judicial or other proceedings in a foreign country, either party may make an application to the court for an order for financial relief. 2
However, leave of the court must first be obtained prior to making such an application. 3 Section 121C of the Charter sets out the criteria
for the court to have jurisdiction to entertain an application for financial relief, namely, (a) if one of the parties to the marriage was
domiciled in Singapore on the date of the application for leave under section 121D or was so domiciled on the date on which the
divorce, annulment or judicial separation obtained in a foreign country took effect in that country; or (b) one of the parties to the
marriage was habitually resident in Singapore for a continuous period of one year immediately preceding the date of the application
for leave under section 121D or was so resident for a continuous period of one year immediately preceding the date on which the
divorce, annulment or judicial separation obtained in a foreign country took effect in that country.
5.2 ORDERS RELATED TO THE WELFARE OF CHILDREN
A. Custody
[5.2.1] A child is defined as any child below 21 years of age, of the husband and wife, and includes any adopted child and any other
child (whether or not a child of the husband or of the wife) who was a member of the family of the husband and wife at the time when
they ceased to live together or at the time immediately preceding the institution of the proceedings, whichever first occurred; and for
the purposes of this definition, the parties to a purported marriage that is void shall be deemed to be husband and wife. 4
[5.2.2] Section 125(2) of the Charter provides that in making orders in relation to child custody, the paramount consideration shall be
the welfare of the child, and subject to this, the court shall also have regard to the wishes of the parents and the wishes of the child
(should the child be of an age to express an independent opinion). The welfare of a child is not measured simply by money or physical
comfort only, but concerns the overall well-being including moral, religious, physical well-being and ties of affection. 5
[5.2.3] The court may make orders related to the custody, care and control and access of the child to the parent. Custody is defined as
the residual rights that remain after the grant of care and control and concerns long-term decision-making for the welfare of the child. 6
Examples of such decisions relate to education, health and religion of the child. 7 On the other hand, care and control refers to the day-
to-day decision-making and dictates which parent shall be the daily caregiver and which parent the child will live with. 8 Access refers
to the contact time the parent who does not live with the child will have with the child.
[5.2.4] In making custody orders, the court is inclined towards making joint custody orders, or no custody orders, as this helps to
preserve the concept of joint parental responsibility even if parties may harbour some acrimony towards each other. 9 The Court of
Appeal in CX v CY (minor: custody and access) 10 said, “The idea behind joint or no custody orders is to ensure that neither parent has a
better right over the child and that both have a responsibility to bring the child up in the best way possible. Similarly, the child has a
right to the guidance of both his parents. Parenthood is a lifelong responsibility and does not end at a particular age of the child, but
continues until the child reaches adulthood. The question we have to answer will always be what is best for the child in the future.” The
practical effect of a no custody order would be the same as a joint custody order, as it is seen as leaving the law on parenthood to
govern the matter and endorses the principle that the courts should not intervene unnecessarily in the parent-child relationship if there
is no actual dispute over this. 11
[5.2.5] It is only in exceptional cases where the court will make an order for sole custody, and simply having an acrimonious
relationship between the parties is not sufficient. The exceptional circumstances in which a court may consider a sole custody order as
appropriate are where a parent physically, sexually or emotionally abuses the child or where the relationship of the parties is such that
cooperation is impossible and the lack of cooperation is harmful to the child. 12
[5.2.6] In making custody orders the court may attach various conditions to a custody order, including where the child is to reside,
manner of education and choice of religion, who the child is to visit and at what frequency, amongst others. 13
[5.2.7] In some instances, a custody order may also specify specific custodial issues for which parties would need to consult each other
on or agree upon, or specific custodial issues for which one parent will have the sole right to decide on.
[5.2.8] When a child is a subject of a custody order, no one can take the child out of the jurisdiction of Singapore without the written
consent of both parents or with leave of court. This is notwithstanding the fact that a parent intending to take the child out of
jurisdiction has been awarded sole custody of the child. However, a parent given custody or care and control of the child or anyone
with the written consent of the party with custody or care and control of the child may take the child out of the jurisdiction if it is for a
period of less than one month. 14
B. Care and Control

[5.2.9] The court will usually order care and control to one parent. However, there are cases where the courts have ordered shared
care and control to both parents, which is a situation where both parents share the responsibility of the day-to-day caregiving of the
children. Where there is shared care and control, the children will effectively have two homes, one with each parent, and their time
with their two parents are usually shared almost equally, either by spending half the week with each parent or alternating every other
week (although sometimes one parent may have more time with the children than the other). Alternatively, a “bird-nest” living
arrangement may be possible where the children reside in one home, without having to shift and the parents take turns to stay with the
children when it is their turn to have care and control.
[5.2.10] For shared care and control to be effective in the children’s interest, both parents must be able to equally and effectively co-
parent their children. Generally speaking, the courts have been prepared to grant shared care and control where the child is below the
age of formal schooling, which is 7 years, when a child starts primary education.
[5.2.11] The courts have awarded shared care and control in the following circumstances:
1. Where the child has yet to commence formal schooling and it would be less disruptive to the child’s routine to split his or her
time with each parent. In the case of AJV v AJW, 15 shared care and control of the 5-year-old child was awarded to the parties,
the court noted that “[a]t this time in [the child’s] life, and before she begins formal schooling, the arrangements are flexible to
allow her to spend different parts of her week with both parents without affecting her studies or development in her formal
schooling years. Nearer the date when the daughter will begin formal schooling, the present care and custody arrangements
and maintenance can be varied on the application of each parent”; 16
2. Where either one or both parents have flexible working hours or sufficient free time to spend with the child. For example, in
the case of AHJ v AHK, 17 the father was a retired Air Force pilot whilst the mother was still working full-time, and the court
awarded shared care and control of the parties’ 4-year-old son as the court found that it would be in the child’s interest to have
the care and influence of both parents as much as possible. Further, in the case of AUY v AUZ (“AUY”), 18 the court awarded
shared care and control of the two sons, aged 3 and 1 years respectively. The father had taken a one-year break from work to
engage in full-time studies and the court found it appropriate to allow him to share care and control of his sons given that he
would be at home and in a position to care for the children. 19 Similarly in the case of TCS v TCT (“TCS”), 20 the father worked
from home with flexible hours and the court found that the circumstances were appropriate to order shared care and control
of the two children;
3. Where there is strong family support to help in the caregiving of the children. The court in AUY also found that the paternal
grandparents would provide the strong family support beneficial to the children as they would help provide a stable and secure
environment to raise the children; 21
4. The status quo of the current existing care arrangements. In AUY, the court found that the paternal grandmother had
previously helped to care for the elder son before the parties separated. Also in the case of TCS, the court found that both
parents played their part in the caregiving duties and in fact the father had opportunity to spend more time with the older
daughter in her early years due to him working from home; and
5. Where the recommendations of any social welfare report and/or other third-party report support the shared care and control
arrangements. In the decisions of TCS and AQL, the court also relied on the recommendations of the social welfare report, in
determining what is in the interests of the children. In TCS, the report found that both parents love the children and were able
to discharge their caregiving duties, the daughter’s wishes were to be with the father and there were no cogent reasons to
separate the two children. Based on that, whilst the court ordered shared care and control of the two children, the court found
that the children should be with the father for a greater proportion of the week as compared to the mother.
C. Access
[5.2.12] The court may make orders for access in the form of reasonable access or liberal access. Such orders are usually made when
parties are able to cooperate and work out amongst themselves a regular and/or flexible routine as to when a parent will have access to
the child. This requires parties to be able to effectively co-parent and to have the children’s interests at heart.
[5.2.13] In situations where there may be incidents of family violence or where a parent has not seen the child for some period of time,
the access order may be a supervised access order or an order for assisted access. The supervised access usually takes place at the
Divorce Support Specialist Agency (“DSSA”) where a family counsellor will supervise the access. The court may order a report to be
prepared and submitted to the court. The court will schedule a time to carry out a review of its orders after the report has been
submitted. Generally, the supervised access will be for eight sessions, usually spread out over two to three months.
[5.2.14] Where there are difficulties in the handover of the child when the child refuses to even go for access, the court may make an
order for Assisted Transfer to take place at the DSSA. Similarly a family counsellor will assist in the Assisted Transfer and a report may
be ordered to be submitted to the court. The court will, as in the case of an Assisted Transfer order, schedule a review after the report
has been submitted to the court. The Assisted Transfer order will generally be for eight sessions, spread over about two to three months.
[5.2.15] Access orders may be detailed and specifically set out the frequency and timings of access, for example, overnight access,
public holiday access, school holiday access, and overseas holiday access. Where there are concerns about overseas travel, the court
may order a prohibition on taking the child out of the jurisdiction without the written consent of the other party or the leave of court.
[5.2.16] Any orders for access will have to take into account the reasonableness of the frequency and timing, bearing in mind the
schedules and routines of the children.
D. Examples of Custody, Care and Control and Access Orders

[5.2.17] The following are some examples of custody, care and control and access orders:
1. A and B shall have joint custody of the children of the marriage with care and control to A; or
A and B shall have joint custody with shared care and control (or joint custody, care and control) of the children of the
marriage.
2. B shall have reasonable access to the children of the marriage as follows:
(a) Overnight access from Saturdays 6.00 pm to Sundays 6.00 pm;
(b) Alternate public holidays from the eve of public holiday 6.00 pm to the day of the public holiday 6.00 pm;
(c) Half the mid-year and year-end school holidays with A having the first half of the school holidays and B having the
second half of the school holidays;
(d) Both parties shall have liberty to take the children overseas provided either party gives to the other party at least 4
weeks advance notice of any overseas holidays with the children and furnishes the contact numbers, overseas itinerary,
flight details and accommodation details; or
Neither party shall take the children out of the jurisdiction without the written consent of the other party or leave of court.
3. B shall have assisted access to the children of the marriage at the Divorce Specialist Support Agency located at (address) for 8
sessions every week on Saturdays from 2.00 pm to 4.00 pm commencing from August 6, 2016. The access arrangements shall be
reviewed in the last week of October 2016.
[5.2.18] The court has the power to order parties or their children or both to attend counselling. 22 Such an order is designed to assist
parties and/or their children to work through the challenges of the breakdown of the family and to help direct their focus on the
children’s welfare and interests. The court also has the power to order the parties to attend mediation.
5.3 ORDERS RELATED TO THE MAINTENANCE FOR CHILDREN
A. General Principles
[5.3.1] Section 68 of the Charter imposes a duty on 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”.
[5.3.2] The factors the court takes into account in assessing the quantum of maintenance are the financial needs of the child, the
income, earning capacity and other financial resources of the parties, whether the child has any physical or mental disability, the
standard of living enjoyed by the child, the manner in which the child is being educated or trained. 23 These factors are not exhaustive
and the court must also have regard to all the circumstances of the case.
[5.3.3] The age of majority in Singapore is 21 years old. Accordingly, the period of time the child has to be provided maintenance is
until the child reaches 21 years of age. However, maintenance may extend beyond the child’s 21st birthday where the child is serving
full-time national service, the child is suffering from a mental or physical disability, or the child is or will be enrolled in tertiary
education. 24 As the liability period to provide maintenance for the child is provided for by statute, there is no need to set this out in the
court order.
[5.3.4] The amount of monthly maintenance to be paid may include all expenses of the child, including the costs of education, for
example, school fees, tuition fees, and enrichment classes. It is possible for the court to make an order for monthly maintenance and an
additional order for the education-related costs to be paid separately.
[5.3.5] To avoid disputes on whether payment of monthly maintenance is made, the court will make an order for the mode of payment
of the maintenance into the bank account of the parent having care and control of the child. Where parties have shared care and
control and if the child spends about equal time with each parent, there may not be a maintenance order made, other than for each
party to be responsible for taking care of the expenses of the child when the child is with the parent.
[5.3.6] Whilst it is possible for the court to order lump sum maintenance for the child, 25 such an order is rarely made, the reason being
that it is difficult to compute or project in the future, the expenses of the child, especially when the child is young. Further, the issue of
financial affordability and ability to pay lump sum maintenance has to be considered. Therefore, the usual order for maintenance for
the child is monthly maintenance.
B. Examples of Maintenance Orders for the Child

[5.3.7] These are some examples of maintenance orders for the child:
1. A shall pay the sum of S$1,000 per month as monthly maintenance for the child of the marriage with effect from August 1, 2016
and thereafter on the first day of each subsequent month. Payment of the monthly maintenance shall be paid into B’s XYZ bank
account number 123456.
2. In addition, A shall pay for the child’s education-related costs, including school fees, tuition fees, school-related activities, and
enrichment classes.
5.4 ORDERS RELATED TO THE MAINTENANCE FOR FORMER WIFE
A. General Principles
[5.4.1] In assessing the quantum of maintenance to be paid to the former wife, the court shall have regard to all the circumstances of
the case including the following matters:
1. 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;
2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the
foreseeable future;
3. The standard of living enjoyed by the family before the breakdown of the marriage;
4. The age of each party to the marriage and the duration of the marriage;
5. Any physical or mental disability of either of the parties to the marriage;
6. 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; and
7. 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. 26
[5.4.2] The court further endeavours to place the parties insofar as it is practicable and having regard to their conduct in the financial
position in which they would have been if the marriage had not broken down. 27
[5.4.3] Maintenance for the former wife may be ordered as lump sum or monthly maintenance 28 and the court may order security for
the whole or part of such maintenance by ordering the husband to vest “any property in trustees upon trust to pay the maintenance or
part thereof out of the income from that property and, subject thereto, in trust for the settlor.” 29
[5.4.4] Where the maintenance order is unsecured, the order will expire on any of the following situations arising: 30
1. On the death of either spouse or former spouse; or

2. In the case of maintenance payable to a former wife, upon her remarriage.
[5.4.5] If the maintenance order is secured, the order will expire on the death or remarriage of the former wife. 31
B. Examples of Maintenance Orders for Former Wife

[5.4.6] These are some examples of maintenance orders for a former wife:
1. A shall pay the sum of S$2,500 per month as monthly maintenance for B with effect from August 1, 2016 and thereafter on the
first day of each subsequent month. Payment of the monthly maintenance shall be paid into B’s XYZ bank account number
123456; or
2. A shall pay lump sum maintenance of S$100,000 for B, such amount to be paid within 30 days from the date of this order.
5.5 ORDERS RELATED TO THE MAINTENANCE FOR AN INCAPACITATED FORMER HUSBAND
[5.5.1] The new law allowing an incapacitated husband or an incapacitated former husband to claim maintenance from the wife or
former wife came into effect on July 1, 2016. 32 The factors the court will take into consideration are set out in section 114(1) of the
Charter.
[5.5.2] Section 117 of the Charter provides that where the maintenance is unsecured, an order for maintenance for an incapacitated
former husband will expire upon his remarriage or upon his death. If the order for maintenance was secured, such order will expire on
his death or upon his remarriage.
[5.5.3] Section 2 of the Charter defines incapacitated former husband as follows:
“incapacitated former husband”, in relation to a dissolved or an annulled marriage, means a former husband to the marriage who
—
(a) during the subsistence of the marriage, was or became —
i. incapacitated, by any physical or mental disability or any illness, from earning a livelihood; and
ii. unable to maintain himself; and
(b) continues to be unable to maintain himself;
[5.5.4] With the change in the law, it is an incremental step towards allowing a former husband to claim maintenance from his wife.
Perhaps when the time is ripe, we could consider changes in the future to allow a former husband who had given up his career to
become a “house-husband” to make a claim for maintenance.
5.6 ORDERS FOR FINANCIAL RELIEF
A. Generally
[5.6.1] In exercising its powers pursuant to section 112 of the Charter to divide matrimonial assets upon the grant of a divorce, judicial
separation or nullity, the court has to determine what forms the pool of matrimonial assets to be divided and how the pool of
matrimonial assets are to be divided to achieve a just and equitable division. Matrimonial assets are defined in section 112(10) of the
Charter as:
(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
inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the
marriage.
[5.6.2] Examples of the types of matrimonial assets may include any of the following (the list is not exhaustive), whether situated in or
out of Singapore:
1. Matrimonial home;
2. Any immovable properties owned solely or jointly by one or both parties;
3. Moneys in bank accounts;
4. Stocks, shares (whether in public listed or private companies) and other forms of investments;
5. Central Provident Fund (“CPF”) moneys;
6. The surrender value of insurance policies;
7. Club memberships; and
8. Any other personal effects, such as jewellery and cars.
[5.6.3] There is no prescribed operative date for identifying the pool of matrimonial assets for the purposes of division. In the case of
Yeo Chong Lin v Tay Ang Choo Nancy and Another Appeal, 33 the Court of Appeal held that the date on which matrimonial assets should
be valued is up to the court’s discretion and what is critical is to arrive at a just and equitable division in all the circumstances in each
particular case. In the recent Court of Appeal decision of ARY v ARX, 34 the Court of Appeal held that there are four operative dates to
determine the pool of matrimonial assets to be divided:
1. Date of separation;
2. Date on which the divorce proceedings were commenced;
3. Date of Interim Judgment for Divorce; and
4. Date of the hearing of the ancillary matters.
[5.6.4] The Court of Appeal stated at [31] that whilst there is no fixed date and the court retains the discretion to decide which of the
four dates should apply, the default position and starting point should be the date of the interim judgment and that a court should only
depart from the default position if the particular circumstances or justice of the case warrant it.
[5.6.5] The Court of Appeal decision in ANJ v ANK (“ANJ”) 35 sets out the structured approach to be adopted towards the division of
matrimonial assets. In the said decision, the approach is a four-step process comprising the following:
1. Firstly, to derive a ratio representing the respective parties’ direct contributions towards the acquisition or improvement of the
matrimonial assets;
2. Next, to derive a second ratio which represents the parties’ indirect financial and non-financial contributions towards the
welfare of the family;
3. Thirdly, to ascribe a weightage or to average the two ratios to derive each party’s overall contribution to the family; and
4. Lastly, to make any such necessary adjustments to the weightage of the two ratios.
[5.6.6] In ANJ, the Court of Appeal emphasised the importance of indirect and non-financial contributions at [26]:
This court has observed in Lim Choon Lai v Chew Kim Heng [2001] 2 SLR(R) 260 at [14], that “[a]s for the non-financial contributions,
they also play an important role, and depending on the circumstances of the case, they can be just as important”. We made similar
remarks in NK v NL, that spousal contributions, regardless of whether it rests in the economic or homemaking spheres, are equally
fundamental to the well-being of a marital partnership (at [41]).
B. Orders on Housing & Development Board Property
[5.6.7] More than 80% of Singaporeans live in public housing, known as Housing & Development Board flats (“HDB flats”). 36 Therefore,
it is not unexpected that in divorce proceedings, the main matrimonial asset to be divided is usually the HDB flat (being the parties’
matrimonial home). In a case where the matrimonial home is a HDB flat to be divided, the court would have to take into account the
statutory restriction on the sale of the HDB flat.
[5.6.8] Under section 49A of the Housing and Development Act (Cap 129) (“HDA”), a flat owner who had purchased a HDB flat from the
Housing & Development Board (“HDB”) is not permitted to sell the HDB flat in the open market until the minimum occupation period
(“MOP”) is met, unless the prior written consent of the HDB is obtained. If the HDB flat is purchased directly from the HDB, the MOP is
usually five years from the date upon which the owner collected the keys to the HDB flat (i.e. when the flat is certified to be ready to be
lived in), and excludes such period where the owner(s) do not occupy the flat. If the HDB flat was purchased in the resale market, the
MOP is two and a half years. The MOP may also vary depending on whether the parties had obtained a grant from the government,
known as the CPF housing grant.
[5.6.9] If the MOP is met, the court may order the HDB flat to be sold and the net sale proceeds be divided in accordance with what the
court determines to be a just and equitable division of the said asset. In the event that the MOP is not met, the HDB flat will have to be
surrendered to the HDB. In such cases, the losses incurred by the parties, being the difference between the amount paid towards the
purchase of the HDB flat and the surrender value, is usually borne by the parties in the proportion of the contribution made by them
towards the purchase.
[5.6.10] In the alternative, subject to eligibility requirements, the HDB may allow one party to retain the flat provided:
1. That party has care and control of the children;

2. If there are no children, then that party is a Singapore citizen, is at least 35 years old and the flat is a resale flat purchased from
the open market without the CPF Housing Grant for Family; or
3. Another person’s name is included in the ownership of the HDB flat, under one of HDB’s various eligibility schemes. 37
[5.6.11] In the event of a sale of the property, the usual order will be for the costs and expenses of the sale to be borne equally between
the parties. However, in the case of a transfer of the property, it is usual that the transferee will bear the costs and expenses of the
transfer.
[5.6.12] In most cases, parties would have utilised the moneys from their CPF accounts towards the purchase of the HDB flat. Under the
Central Provident Fund Act (Cap 36) (“CPF Act”), the parties would have to refund all CPF moneys utilised in the purchase of the HDB flat
including interests that have accrued on the said CPF moneys as at the time of the sale or transfer of the HDB flat. 38
[5.6.13] If the property is a private property and not a HDB flat, the HDB rules and regulations do not apply.
[5.6.14] The court may even make an order that the HDB flat be transferred to one party without any CPF refund or a partial refund to
the other party’s CPF account in respect of moneys utilised towards the purchase of the HDB flat and accrued interests. However, this
does not mean that there is no CPF refund or only a partial refund, but simply means that when the HDB flat is subsequently sold, that
party who had retained the flat would then have to refund all the CPF moneys and accrued interests or make a refund of the amount
not previously refunded at the time of the transfer, into his or her (not the ex-spouse’s) account at the time of the sale. 39
C. Examples of Orders for the Sale or Transfer of the Matrimonial Home

[5.6.15] These are some examples of orders for the sale or transfer of the matrimonial home:
1. The matrimonial home known as [address] shall be sold in the open market within 6 months from the date of this order and the
net proceeds of sale, after deducting the outstanding mortgage loan and the costs and expenses of the sale, shall be divided in
the proportion of 60% to A and 40% to B [or shall be divided equally between A and B]. From each party’s share of the net
proceeds of sale, each party shall reimburse to their respective Central Provident Fund account all moneys utilised towards the
purchase of the matrimonial home plus accrued interest.
2. A shall transfer (other than by way of sale) his rights, title and interest in the matrimonial home known as [address] to B within
6 months from the date of this order, upon B paying to A 60% of the net value of the home. The net value is to be determined by
an open market valuation prepared by a jointly appointed valuer, less the outstanding mortgage. From A’s share of the net
value, A shall reimburse to his Central Provident Fund account all moneys utilised towards the purchase of the matrimonial
home plus accrued interest. B shall bear the costs and expense of the transfer; or
A shall transfer (other than by way of sale) his rights, title and interest in the matrimonial home known as [address] to B within
6 months from the date of this order, upon B reimbursing to A’s Central Provident Fund account all moneys utilised towards the
purchase of the matrimonial home plus accrued interest. B shall bear the costs and expense of the transfer; or
6 months from the date of this order, upon B reimbursing to A’s Central Provident Fund account the sum of $[], being only part
of the required Central Provident Fund refund. B shall bear the costs and expense of the transfer; or
6 months from the date of this order, with no Central Provident Fund refund to A’s Central Provident Fund account. B shall bear
the costs and expense of the transfer.
D. Orders Related to Central Provident Fund Account

[5.6.16] It should be noted that orders made under the CPF Act are applicable to citizens or permanent residents of Singapore only.
Under Part IIIA, Division of Fund-Related Assets in Matrimonial Proceedings, of the CPF Act, 40 the court is empowered to make several
types of orders as follows:
1. Orders relating to transfer of moneys in CPF account(s);

2. Subsequent order for transfer of moneys in CPF account in event of shortfall;
3. Orders relating to transfer (other than by way of sale) of property;
4. Orders relating to the sale of property;
5. Orders relating to transfer of investments under CPF investment scheme; and
6. Orders relating to payment of moneys from lifelong income fund.
[5.6.17] The CPF Board requires specific wordings for such orders and the suggested clauses for each of the above orders can be found
on the CPF website. 41
[5.6.18] In some instances, as part of the division of matrimonial assets, it is possible to obtain an order for a specified amount of the
CPF moneys of an ex-spouse to be charged until the ex-spouse reaches the age of 55 years and is entitled to withdraw his or her CPF
moneys (subject to prevailing CPF rules and regulations), whereupon the CPF Board will pay to the spouse who obtained the order, the
amount stated in the court order. Such a situation may arise where for example, the husband may not have the funds to be able to pay
to the wife her share of the division of matrimonial assets, but the husband is reaching 55 years of age soon and has sufficient funds in
his CPF account to satisfy the payment of the wife’s share.
[5.6.19] As in the case of transfer of moneys, the CPF Board requires specific wordings for such orders and the suggested clauses for
charging orders can be found on the CPF website. 42
[5.6.20] In circumstances where an injunction is sought against the removal or disposal of CPF funds, the suggested wording of the
injunction orders are found on the CPF website. 43
[5.6.21] An important point to note is that the orders which may be made relating to the CPF moneys is limited to orders relating to
division of matrimonial assets, and not maintenance, whether for the wife or child.
E. Orders Related to Other Matrimonial Assets

[5.6.22] Pursuant to section 112 of the Charter, the court divides matrimonial assets and not just the matrimonial home. The total value
of the matrimonial assets is computed and the court apportions a share to each party. In some cases, the court may make orders for the
sale or transfer of the matrimonial home and make a further order for “each party to retain all other assets in their respective names”.
[5.6.23] The court may also make an order for the sale or transfer of the matrimonial home and make a further order to divide the
other matrimonial assets in the proportion of the share to each party. Alternatively, the court may make an order that “B shall be
entitled to 50% of the matrimonial assets valued at $[ ]”. Whichever the case, the orders made will reflect the percentage for the division
of the matrimonial assets.
5.7 REGISTRAR OF THE FAMILY JUSTICE COURTS TO SIGN DOCUMENTS
A. Generally
[5.7.1] What happens if the court ordered the sale of the matrimonial home and one of the parties is absent or neglects or refuses to
sign the documents related to the sale? Such a situation may arise where that party is overseas, or is acting in person and cannot be
contacted or simply refuses to sign and is being difficult.
[5.7.2] The court has the power, upon an application of a party, to make an order that the Registrar of the Family Justice Courts (“FJC”)
be empowered to sign the deed, document or instrument on behalf of the party ordered to execute the deed, sign the document or
indorse the instrument. 44
[5.7.3] If it is anticipated that there may be difficulties or delay in obtaining the signature of the party on the deed, document or
instrument, at the time the court makes the order for ancillary matters, an order should be sought for the Registrar to sign the
documents. This avoids having to make a separate application to do so at a later stage.
B. Example of Order for Registrar to Sign

[5.7.4] This is an example of an order for the registrar to sign the documents of sale:
1. The Registrar, Family Justice Courts shall be empowered pursuant to Section 31 of the Family Justice Act 2014 to execute the
deed, document or instrument related to the sale of the matrimonial home on behalf of B in the event that B fails, refuses or
neglects to sign the deed, document or instrument within 7 days of being notified to do so.
5.8 MAKING ORDERS FOLLOWING MEDIATION
[5.8.1] Where parties have negotiated or mediated and reached a binding settlement agreement, the terms of the agreement may be
documented into a draft consent order to be submitted to the court for its approval. Section 112(2) of the Charter sets out a non-
exhaustive list of factors the court takes into consideration in the exercise of its powers when ordering a division of matrimonial assets
in a just and equitable manner. One of the factors is “any agreement between the parties with respect to the ownership and division of
the matrimonial assets made in contemplation of divorce.” 45 A settlement agreement would fall into this category and is one of the
factors the court will take into account.
[5.8.2] The question is what weight should be given to the settlement agreement? This issue was considered by the Court of Appeal in
Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur 46 at para [54] of the judgment, where the Court of Appeal stated:
Indeed, where parties have properly and fairly come to a formal separation agreement with the benefit of legal advice, the court
will generally attach significant weight to that agreement unless there are good and substantial grounds for concluding that to do so
would effect injustice. This approach is sensible because the parties to a marriage are in the best position to determine what is a just
and equitable division of the matrimonial assets based on their own assessment of each party’s direct and indirect contributions to
the marriage and their knowledge of the extent and value of the assets. Due to the inherent limitations of fact-finding in the
litigation process, the court should not lightly depart from such a separation agreement. (Emphasis added)
[5.8.3] In this particular case, the Court of Appeal took the following factors into account, when giving effect to the Settlement
Agreement arrived at between the parties: 47
1. The Settlement Agreement was reached at the end of a mediation session after the ancillary matters process had started;
2. Both parties were represented by legal counsel, and the mediator was an experienced lawyer and the parties had the
opportunity of taking advice from their solicitors on the terms being negotiated;
3. The mediation took place from 10.00 am to 5.00 pm during which the parties had many private sessions with the mediator;
4. The parties had the opportunity to and did in fact make amendments to the handwritten Settlement Agreement;
5. The wife’s lawyers sent the husband a draft consent order for the husband’s endorsement. The draft consent order essentially
reproduced the terms set out in the Settlement Agreement; and
6. The wife’s lawyer wrote to the wife in a letter dated October 6, 2011 stating that the wife had “confirmed the settlement arrived
at during the mediation on 11th May 2011”.
[5.8.4] The Court of Appeal went on to state that “Accordingly, if the mediation process is properly followed, as it was in this case, the
parties having participated in the process and received advice thereon, and a settlement agreement results, the court will attach
significant weight to the agreement unless there are good and substantial grounds for concluding that to do so would cause an
injustice.” 48
5.9 ORDERS ON COSTS
[5.9.1] Rule 851(2) of the Family Justice Rules 2014 provide that costs of and incidental to proceedings in the FJC shall be at the
discretion of the court, and in particular, “the Court has full power to determine by whom and to what extent the costs are to be paid”.
49 These costs include, in the case of an appeal, the costs arising out of the appeal and the proceedings connected with it, including the
proceedings below, and in the case of a transfer of proceedings, the costs of the whole proceedings before and after the transfer. 50
A. General Principles on Costs

[5.9.2] Pursuant to rule 852(2), the general principle is that if the court exercises its discretion to award costs, the costs awarded shall
follow the event, except when it appears to the court that in the circumstances, some other order should be made. This approach is
reiterated by the Court of Appeal in the case of Aurol Anthony Sabastian v Sembcorp Marine Ltd, 51 where the court had stated:
... The power to award costs is fundamentally and essentially one that is discretionary. Even though the general principle is for
costs to follow the event, the overriding concern of the court must be to exercise its discretion to achieve the fairest allocation of
costs ...
[5.9.3] The Family Justice Rules 2014 set out a list of factors to take into account in order to guide the court in exercising its discretion
on costs. In particular, the non-exhaustive factors are:
1. Any payment of money into court and the amount of such payment;
2. The conduct of all the parties, including conduct before and during the proceedings;
3. The parties’ conduct in relation to any attempt at resolving the cause or matter by mediation or any other means of dispute
resolution; and
4. The extent to which the parties have followed any relevant pre-action protocol or practice directions. 52
[5.9.4] The court may also take into account the following:
1. Whether a party has failed to establish any claim or issue which he or she has raised in any proceedings, and has thereby
unnecessarily or unreasonably protracted, or added to the costs or complexity of those proceedings; 53 and
2. Where it appears to the court in any proceedings that anything has been done, or that any omission has been made,
unreasonably or improperly by or on behalf of any party. 54
B. Application of Costs Principles in Divorce Proceedings

[5.9.5] Given that the general principle in the award of costs is that costs should follow the event, it is usual for a party who commences
divorce proceedings against his or her spouse to be entitled to costs when an Interim Judgment for Divorce is granted based on that
party’s claim.
[5.9.6] What would be more difficult to ascertain, is whether, in respect of the ancillary matters proceedings which usually follow after
the Interim Judgment for Divorce is granted, costs of the ancillary matters proceedings should also follow the event, and if so whether
the “event” ought to be the Interim Judgment for Divorce.
[5.9.7] In the case of Tham Khai Meng v Nam Wen Jet Bernadette (“Bernadette”), 55 the Court of Appeal held that the ancillary matters is
“part of or a continuation of” the hearing of the divorce petition and given that the decree nisi (as the Interim Judgment for Divorce was
then termed) was granted on the wife’s claim that the marriage had broken down irretrievably due to the husband’s adultery, cost of
the ancillary matters should follow the event and the wife should also be entitled to costs of the ancillary matters hearing. The Court of
Appeal even went on to criticise the approach of the court in considering the ancillary matters hearing in isolation from the divorce
petition when dealing with the issue of costs. 56
[5.9.8] However, the recent decision by the Honourable Judicial Commissioner Debbie Ong (“Ong JC”) in the case of JBB v JBA 57 suggests
a more practical and fair approach. In her decision, the learned Ong JC had pointed out that the divorce regime under the Charter is a
no-fault regime and there is only one ground of divorce which is that of irretrievable breakdown of the marriage. Given this regime and
being sensitive to the fact that any award on costs as between parties in divorce proceedings may increase acrimony and create more
resentment in the post-divorce family, perhaps costs of the divorce stage of proceedings should be on a case-by-case basis and not
always so readily follow the general cost principle that costs should follow the event.
[5.9.9] The learned Ong JC also went on to disagree with the approach in Bernadette, and took the view that costs for subsequent
hearing for ancillary matters should be awarded separately on its merits for two reasons: (a) costs are at the end of the day
discretionary; and (b) it is not competent for a court to fetter its discretion as to costs of future applications in the cause, the
circumstances of which cannot possibly be known to it at the date of the decree nisi. 58
[5.9.10] There are a number of recent cases where no order as to costs was made for matrimonial proceedings, one of the
considerations being to minimise the acrimony between the parties. 59
FOOTNOTES
* I am grateful for the invaluable assistance rendered by my colleague Ms Tan Hui Qing in helping to put together this chapter. Any shortcomings are of course
mine alone.
1 Women’s Charter (Amendment) Act 2016 (No 7 of 2016).
2 Section 121B of the Charter.
3 Section 121D of the Charter.
4 Section 122 read with section 92 of the Charter.
5 Soon Peck Wah v Woon Che Chye [1997] 3 SLR(R) 430 at [25].
6 CX v CY (minor: custody and access) [2005] 3 SLR(R) 690 at [31].
7 Ibid at [33].
8 Ibid.
9 Ibid at [36].
10 [2005] 3 SLR(R) 690 at [38].
11 Ibid at [19].
12 Ibid at [38].
14 Section 126(3)–(5) of the Charter.
15 [2010] SGDC 291.
16 Ibid at [39].
17 [2010] SGHC 148.
18 [2011] SGDC 344.
19 Ibid at [28].
20 [2015] SGFC 4.
21 [2011] SGDC 344 at [28].
22 Section 50(3A) of the Charter.

30 Section 117(a)(i) and (ii) of the Charter.
31 Section 117(b)(ii) of the Charter.
33 [2011] SGCA 8. See also Anthony Patrick Nathan v Chan Siew Chin [2011] 4 SLR 1121 at [29].
34 [2016] 2 SLR 686.
35 [2015] SGCA 34.
36 <http://www.hdb.gov.sg/cs/infoweb/about-us/our-role/public-housing--a-singapore-icon>.
37 <http://www.hdb.gov.sg/cs/infoweb/residential/living-in-an-hdb-flat/changing-owners-occupiers/retain-flat-following-life-events&rendermode=preview>.
38 Section 27 read with section 77 of the CPF Act.
39 Sections 27D–27E of the CPF Act.
40 Sections 27A–27I of the CPF Act.
41 <https://www.cpf.gov.sg/Assets/Members/Documents/SuggestedClausesOrdersToTransferMonies.pdf>.
42 Ibid.
43 <https://www.cpf.gov.sg/Assets/Members/Documents/SuggestedClausesToIncludeInjunctions.pdf>.
45 Section 112(2)(e) of the Charter.
46 [2014] SGCA 37.
47 Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur [2014] SGCA 37 at [59].
48 Ibid at [60].
49 Rule 851 of the Family Justice Rules 2014.
50 Rule 853(3) and (4) of the Family Justice Rules 2014.
51 [2013] 2 SLR 246 at [103].
55 [1997] 1 SLR(R) 336.
56 See also Shi Fang v Koh Pee Huat [1996] 1 SLR(R) 906.
57 [2015] SGHCF 6; [2015] 5 SLR 153.
58 JBB v JBA, ibid at [21], quoting from the decision of Sujatha v Prabhakaran Nair [1988] 1 SLR(R) 631.
59 For some of the cases, see JBB v JBA, ibid at [25] and [26].

2016 - 10 - 17 PAGE 149

Chapter 06: Prenuptial Agreements
Chapter 6
Prenuptial Agreements
Koh Tien Hua

A. Prenuptial agreements defined 150
6.2 Legal Nature of Prenuptial Agreements 152
6.3 Foreign Prenuptial Agreements 154
6.4 Local Prenuptial Agreements 156
6.5 Prenuptial Agreements on Regulating Marriage 159
6.6 Prenuptial Agreements on Maintenance 159
6.7 Prenuptial Agreements on Custody Issues 160
6.8 Prenuptial Agreements on Division of Assets 161
6.9 Conclusion 163
6.1 INTRODUCTION
A. Prenuptial agreements defined

[6.1.1] A prenuptial agreement (or ante-nuptial agreement) is an agreement made between parties who intend to get married prior to
the actual marriage in relation to the intended marriage and/or matters consequential upon a divorce dissolving the marriage.
[6.1.2] In Kwong Sin Hwa v Lau Lee Yen (“Kwong Sin Hwa”), 1 the Court of Appeal per LP Thean JA, had occasion to address whether
prenuptial agreements made between parties were contrary to public policy without exception. The Court of Appeal distinguished
between the Brodie type of prenuptial agreements, which was taken from Brodie v Brodie, 2 a case where the wife petitioned for
restitution of conjugal rights and which was opposed by the husband in reliance on an agreement signed before and signed also after
their marriage. Prior to the marriage the wife was expecting to be delivered of a child by the husband and she pressed him to marry her.
He agreed to do so, if and only if she would sign an agreement to separate after the marriage. On the day before the marriage, she signed
an agreement which provided that it should be lawful at all times for the husband to live separate and apart from the wife as if he were
unmarried and that she should not require or endeavour to compel him to live with her. The parties were married the following day and
on that day the husband and the wife signed another agreement which was endorsed on the earlier agreement confirming the
agreement they had made. The parties never lived together after the marriage and four years later the wife petitioned for restitution of
conjugal rights. The English Court held that the agreement was against public policy and was accordingly void.
[6.1.3] Commenting on Brodie, the Court of Appeal per LP Thean said:
22 The Brodie pre-nuptial agreement is far different in nature and character from the pre-nuptial agreement in Tan Siew Choon and
the pre-nuptial agreement in this case. The Brodie pre-nuptial agreement was intended to enable the husband to resile from the
marriage and evade his marital obligations altogether. That agreement if implemented and enforced, would make a mockery of the
law regulating marriages. Obviously such an agreement is unquestionably against public policy and void. We respectfully agree with
Horridge J. On the other hand, the pre-nuptial agreement here and in Tan Siew Choon ... was nothing of that kind. The intention of
the parties was to comply both with the law and with the custom; if implemented, it was intended to fulfil the parties’ marital
obligations. The only effect on the relationship of the parties as husband and wife was that it postponed their cohabitation and
consummation of the marriage. It was not intended to negate the marriage or enable one or both parties to resile from the marriage.
We do not see how such pre-nuptial agreement can be regarded and treated on the same footing as the Brodie pre-nuptial
agreement.
[6.1.4] The Court of Appeal went further to state:
38 It is clear to us that not every pre-nuptial agreement regulating or even restricting the marital relations of the husband and wife
is void and against public policy. Needless to say, much depends on the relevant circumstances and in particular, the nature of the
agreement, the intention of the parties and the objective the agreement was designed to achieve. In our opinion, the law does not
forbid the parties to the marriage to regulate their married lives and also the incidents of the marriage, so long as such agreement
does not seek to enable them to negate the marriage or resile from the marriage as the Brodie ([11] supra) pre-nuptial agreement
did. In particular, the law does not forbid them to agree as to how they should live and conduct themselves as husband and wife,
when and where they would commence to live as husband and wife, when they would consummate their marriage, when they
would have a child or children and how many children they would have. Such agreements made between husband and wife are not
illegal or immoral or against public policy. In particular, the law does not forbid parties to make a pre-nuptial agreement to the
effect that after the marriage at the Registry of Marriages they would go through a religious or customary ceremony and only
thereafter would they live as husband and wife and consummate the marriage. Consequently, where such a pre-nuptial agreement
has been made and one of the parties after the marriage at the registry refuses to proceed with the religious or customary ceremony,
he or she, as the case may be, has made it impossible for the marriage to be consummated as agreed. It is not wrong for the court to
give recognition to such agreement and to hold the party in default as having in effect wilfully refused to consummate the marriage.
[6.1.5] In TQ v TR and Another Appeal (“ TQ v TR”), 3 the Court of Appeal defined prenuptial agreements as follows:
45 Strictly speaking, prenuptial agreements (or “antenuptial agreements” as they are sometimes called) refer to agreements reached
by a husband and a wife before their marriage concerning what would happen in the event of a divorce. Such agreements can cover
any issue which is usually the subject of ancillary proceedings, including maintenance, the division of matrimonial assets, and
children.
46 Prenuptial agreements are to be distinguished from prenuptial settlements, which regulate rights and obligations only during the
marriage but not after its termination (see the English High Court decision of N v N (Jurisdiction: Pre-nuptial Agreement) [1999] 2
FLR 745 (“ N v N”) at 751–752). The ambit of such agreements can be very wide, covering any aspect of married life from the
mundane to the highly idiosyncratic. It must be noted that an agreement can sometimes be both a prenuptial agreement as well as a
prenuptial settlement if it makes provisions concerning both the subsistence as well as the end of the marriage.
47 A distinction must also be drawn between two kinds of postnuptial settlements. These are separation and pre-divorce settlements,
which are agreements made after a marriage by which the parties decide on what happens upon their separation or divorce,
respectively. Such agreements are often made in the context of ongoing litigation. Just like prenuptial agreements, postnuptial
settlements may address any ancillary matter.
6.2 LEGAL NATURE OF PRENUPTIAL AGREEMENTS
[6.2.1] The approach of Singapore law to nuptial agreements follows that of the English law in that while most jurisdictions accord
contractual status to such agreements and hold the parties to them, subject in some cases to specified safeguards or exceptions, under
Singapore law it is the court that is the arbiter of the financial arrangements between the parties when it brings a marriage to an end. A
prior agreement between husband and wife is only one of the matters to which the court will have regard.
[6.2.2] Having established that prenuptial agreements in and of themselves and in general are not per se contrary to public policy, the
other form that prenuptial agreements take deals primarily with the issue of asset division consequent on a divorce.
[6.2.3] Prenuptial agreements may be considered by the court when deciding whether to exercise its powers to divide assets pursuant to
section 112 of the Women’s Charter (Cap 353) (“the Charter”). This power is set out in section 112(2)(e) of the Charter and the same
specifically sets out that the court has to have regard to any agreement between the parties with respect to the ownership and division of
the matrimonial assets made in contemplation of divorce.
[6.2.4] In TQ v TR, the Court of Appeal had occasion to consider whether prenuptial agreements fell within the scope of section 112(2)(e)
of the Charter and whether prenuptial agreements were enforceable and binding in Singapore. The Court of Appeal decided that
prenuptial agreements did fall within the scope of section 112(2)(e) of the Charter but emphasised that these agreements were but one of
the factors the court would have to consider. The Court of Appeal likened these agreements as aids to the court in its determination of
whether and how the court would exercise its discretion on the question of division of assets.
[6.2.5] The Court of Appeal per Andrew Phang JA ruled:
80 Returning to the Singapore position, notwithstanding the fact that a prenuptial agreement cannot be enforced in and of itself,
much will depend, in the final analysis, on the precise terms of that agreement as viewed in the context of all the relevant
circumstances as a whole (some of which have been set out in s 112(2) of the Act, ...). To this end, it might well be the case that a
prenuptial agreement is, given the circumstances as a whole, considered to be so crucial that it is, in effect, enforced in its entirety.
However, it is important to reiterate that everything will depend upon the precise circumstances before the court. [emphasis in original]
[6.2.6] And:
91 The overarching principle, in our view, remains the same: The court decides the weight that is to be accorded to the prenuptial
contract in question in so far as the division of matrimonial assets is concerned and this is, in turn, heavily dependent on the
particular facts of the case itself. Hence, it might be the case that, even where the prenuptial agreement is wholly local in character, a
significant (even pivotal) weight would nevertheless be accorded to that agreement if the facts and circumstances so warrant it.
Indeed, this was the case (albeit in the English context) in Crossley ([81] supra).
[6.2.7] In a lecture given by the Honourable Chief Justice Chan Sek Keong (“Chan CJ”) (as he then was), for the International Academy of
Matrimonial Lawyers (“IAML”) Audrey Ducroux Memorial Lecture held on September 8, 2012, Chan CJ referred to TQ v TR 4 and said (at
[5]):
When the Singapore Court of Appeal was asked to recognise a prenup signed by two foreign parties that was valid under the
governing law, ie, Dutch law, we asked ourselves whether there was any Singapore public policy reason for us not to recognise it. We
found none. Singapore is a global city-state. We have many foreign couples working and living here. It is not our business to question
and dismantle whatever arrangements and agreements couples might have voluntarily made among themselves in accordance with
the laws of their domicile, unless we are bound by domestic law not to recognise such agreements.
[6.2.8] In TQ v TR, the Court of Appeal opined:
The legal status of a prenuptial agreement in the Singapore context is the result of the interaction of both statute law on the one
hand and the common law on the other. Put simply, where one or more of the provisions of the Act expressly covers a certain
category of prenuptial agreement, then that provision or those provisions will be the governing law. Where, however, the Act is
silent, then the legal status of the prenuptial agreement concerned will be governed by the common law. In this regard, it will be
assumed that any prenuptial agreement which contravenes any express provision of the Act and/or the general or specific legislative
policy embodied within the Act itself will not pass muster under the common law.
[6.2.9] In order for a prenuptial agreement to be recognised and upheld by a court in Singapore, the prenuptial agreement must first be
valid as a binding contract and ought generally to comply with the various legal doctrines and requirements that are an integral part of
the common law of contract. The court however retains a residual discretion to give some weight to the prenuptial agreement even if the
prenuptial agreement was to fail, in some part or in the main, to comply with all the general rules and principles of contract law. This
residual discretion arises by operation of law as the court is enjoined by statute to consider all the circumstances of the case in
matrimonial cases.
[6.2.10] A distinction is drawn between prenuptial agreements that are made in Singapore and prenuptial agreements that are foreign-
made. This distinction was addressed in TQ v TR. In TQ v TR, the Court of Appeal ruled that for foreign prenuptial agreements, the
prenuptial agreement must be validly formed in accordance with the law of the country that it was made in and must conform to general
rules and principles relating to offer and acceptance in contract law. Assuming that the prenuptial agreement is a valid contract under
the foreign law that it was made under, there is no need for such an agreement to satisfy the further requirements of the Singapore
common law of contract unless the agreement itself is repugnant to, or otherwise contravenes, any overriding public policy of Singapore.
6.3 FOREIGN PRENUPTIAL AGREEMENTS
[6.3.1] A prenuptial agreement that is made by foreigners in a foreign land under foreign law is subject to whether such an agreement is
valid and binding pursuant to that foreign law.
[6.3.2] A foreign prenuptial agreement usually raises issues of conflict of laws as the agreement would have been made by foreigners of
whom one or both of them were not domiciled in Singapore at the time of execution. Moreover, prenuptial agreements may provide the
governing law for the agreement.
[6.3.3] The validity of a contract, including marital property agreements, is governed by its proper law and the proper law is determined
by (in order of descending priority): (a) the express choice of the parties; (b) the implied choice of the parties; and (c) in the absence of
any express or implied choice of law, by ascertaining the system of law with which the agreement has the closest and most real
connection, which is presumed to be the law of the matrimonial domicile unless rebutted. 5
[6.3.4] The foreign prenuptial agreement must be valid according to the law which governs the same. The validity of the prenuptial
agreement depends on its status under the governing law of its jurisdiction.
[6.3.5] If the foreign prenuptial agreement is valid under the governing law of its jurisdiction, the validity, interpretation and effect of
the agreement are thus governed by that law.
[6.3.6] However, the enforcement of the terms of the foreign prenuptial agreement is subject to Singapore law if parties to the said
foreign prenuptial agreement have submitted themselves to Singapore jurisdiction. This occurs when divorce proceedings are
commenced in Singapore and the marriage is dissolved in accordance with the provisions of the Charter. The governing law in relation
to the ancillary matters would be Singapore law. In TQ v TR, the Court of Appeal put the issue thus:
The question is thus whether parties who seek to have ancillary matters decided in Singapore can contract to have the proprietary
incidences of their marriage governed by a regime other than that provided for under the lex fori. In our view, the governing law
relating to the ancillary matters generally is Singapore law (and, indeed, the parties did not, correctly in our view, seek to argue to
the contrary) (see also the recent English High Court decision of NG v KR (Pre-nuptial contract) [2008] EWHC 1532 at [87] where
Baron J cited (with approval) Dicey ([32] supra) vol 2 at para 18-207, which stated that the English court, in making an order for
financial provision under the Matrimonial Causes Act 1973 (c 18) (UK) (“the 1973 UK Act”), would apply its own law irrespective of
the domicile of the parties, and accepted this as “an accurate statement of Law”).
[6.3.7] As the foreign prenuptial agreement is a foreign one and which is valid by its proper law, the requirement that the said foreign
prenuptial agreement must also be valid according to the general principles of the Singapore common law of contract would not apply
subject to the proviso that the foreign prenuptial agreement is not repugnant to, or does not otherwise contravene, any overriding public
policy of Singapore. In all other respects, the legal effect of the foreign prenuptial agreement would be governed by Singapore law.
[6.3.8] For foreign prenuptial agreements where their validity under their proper law was not an issue, it would appear that as a general
guide, where prenuptial agreements which have been entered into abroad and are wholly foreign in nature, if the prenuptial agreement
was entered into by foreign nationals and that agreement is governed by (as well as is valid according to) a foreign law, the court is likely
to accord significant and critical weight to the terms of that agreement, subject to the foreign law not being repugnant to the public
policy of Singapore. It is also noteworthy that where the foreign prenuptial agreement is confined mainly to the division of matrimonial
assets, the court is more likely to uphold the same. There is however no blanket rule that such agreements will be accorded significant
weight as a matter of course. In instances of clear fraud, unconscionability or other vitiating factors, the court has the power and
discretion to disregard the agreement. Much will depend on the precise facts of the case and on the strength of the expert evidence
adduced before the court.
6.4 LOCAL PRENUPTIAL AGREEMENTS
[6.4.1] Section 112 of the Charter provides that the court, when deciding whether to exercise its powers to divide assets, has to take into
account all the circumstances of the case, “including any agreement between the parties with respect to the ownership and division of
the matrimonial assets made in contemplation of divorce” as provided for in section 112(2)(e) of the Charter.
[6.4.2] The Court of Appeal in TQ v TR had indicated (at [73]) that prenuptial agreements when properly executed and valid under its
proper law, properly constituted under contract law and having satisfied the requirements of contract law, would fall within the ambit
of section 112(2)(e) of the Charter. As such, the courts are enjoined by statute to consider, as part of all the circumstances of the case, the
prenuptial agreement, in arriving at a just and equitable division of the matrimonial assets between the parties. The Court of Appeal had
emphasised that the prenuptial agreement cannot be enforced, in and of itself and that the prenuptial agreement constitutes but one of
the factors that the court should take into account in arriving at its decision as to the proportions in which the matrimonial assets
concerned are to be distributed. Having said this, the court is not precluded from giving significant weight to the terms of the prenuptial
agreement if the circumstances warrant the same. The court decides the weight that is to be accorded to the prenuptial contract in
question insofar as the division of matrimonial assets is concerned and this is, in turn, heavily dependent on the particular facts of the
case itself.
[6.4.3] In Lian Hwee Choo, Phebe v Tan Seng Ong (“Lian Hwee Choo”), 6 the Court of Appeal had occasion to discuss and ruminate on the
interpretation and application of section 112(2)(e) of the Charter. In this case, the husband had alleged that in 1985, there was an
agreement reached between the parties on a division of the matrimonial assets and where parties had agreed that both parties thereafter
would have no further claim to future assets acquired by the other during marriage (“the Agreement”). This was the first time that the
husband had alleged the existence of the Agreement. The Court of Appeal decided that the Agreement fell outside section 112(2)(e) of the
Charter and that there was no agreement made within the meaning of section 112(2)(e) of the Charter. The Court of Appeal had referred
to TQ v TR 7 and said (at [20] of the Grounds of Decision) per Judith Prakash J:
20. It is clear from the decision of this court in TQ v TR, which dealt with a prenuptial agreement made shortly before the marriage
and some 13 years before the wife filed for divorce, that the divorce need not be imminent or even desired at the time of the
agreement. Rather, what is required is that in making the agreement, the parties must have addressed their minds to the issue of
how property should be divided in the eventuality of a divorce, notwithstanding the possibility that at the time of making the
agreement they had hoped that this eventuality would not arise. Thus, the intention that must be found by the court is that the
parties intended for the agreement to exhaustively govern the allocation of matrimonial assets upon the contingency of divorce,
whenever that might happen.
21. It follows from the foregoing that there can be two types of agreement within the meaning of s 112(2)(e) of the Charter:
“If an agreement is entered into for the purpose of dividing the assets in the context of a specifically contemplated divorce, that
will be an agreement within the meaning of s 112(2)(e) for the purpose of that divorce; but, if for some reason the divorce does
not ensue at that time and the parties reconcile and carry on, then that agreement can have no relevance in the event of a later
divorce.
On the other hand, if an agreement is a definitive one for the division of assets in the event of a divorce (whenever that might
happen and even though it may not be specifically envisaged at the time of the agreement (as is the case in a prenuptial
agreement)), the evidence must show that the agreement was intended to have such an effect. If such intention is proven, as it
was in TQ v TR, then that agreement would be admissible under s 112(2)(e).”
[6.4.4] It is clear that in addition to the formative criteria that a prenuptial agreement must be valid in accordance with contract law
principles, the prenuptial agreement must also provide that the agreement was entered into or its purpose for existing was in
contemplation of a divorce in order for the prenuptial agreement to fall within the ambit of section 112(2)(e) of the Charter. In Lian Hwee
Choo, the Court of Appeal put it thus:
17. To determine whether an agreement of the type specified in s 112(2)(e) of the Charter exists, two elements must be met: first,
there must have been an agreement with respect to the ownership and division of matrimonial assets; and second, the aforesaid
agreement must have been “made in contemplation of divorce”.
[6.4.5] The Court of Appeal in Lian Hwee Choo also clarified:
20. It is not, however, necessary that to fall within s 112(2)(e) the agreement has to have been made between parties who are already
married and contemplating an imminent divorce. It is clear from the decision of this court in TQ v TR, which dealt with a prenuptial
agreement made shortly before the marriage and some 13 years before the wife filed for divorce, that the divorce need not be
imminent or even desired at the time of the agreement. Rather, what is required is that in making the agreement, the parties must
have addressed their minds to the issue of how property should be divided in the eventuality of a divorce, notwithstanding the
possibility that at the time of making the agreement they had hoped that this eventuality would not arise. Thus, the intention that
must be found by the court is that the parties intended for the agreement to exhaustively govern the allocation of matrimonial assets
upon the contingency of divorce, whenever that might actually happen.
[6.4.6] In Wong Kien Keong v Khoo Hoon Eng, 8 Belinda Ang J ruled that in determining whether a prenuptial agreement would fall
within section 112(2)(e) of the Charter, the following was apposite:
1. That the agreement must be valid in law, and satisfy and comply with the requirements of contract law;
2. The court retains a residual discretion to give some weight to the terms of the prenuptial agreement notwithstanding that it may
fall short of the requirements imposed by contract law; and
3. Whether there are any vitiating factors to be considered that would negate the agreement, i.e. fraud, misrepresentation or
duress.
[6.4.7] In TQ v TR, 9 the Court of Appeal identified at least four broad categories of prenuptial agreements:
1. Prenuptial agreements regulating or even restricting the marital relations of the husband and wife and the incidents of the
marriage subject to the proviso that such agreements do not seek to enable them to negate the marriage or resile from the
marriage (the “Kwong Sin Hwa type of prenuptial agreement”); 10
2. Prenuptial agreements relating to the maintenance of the wife and/or the children;
3. Prenuptial agreements relating to the custody (as well as the care and control) of children; and
4. Prenuptial agreements relating to the division of matrimonial assets.
6.5 PRENUPTIAL AGREEMENTS ON REGULATING MARRIAGE
[6.5.1] So long as the terms of the prenuptial agreement do not contravene or offend public policy, the prenuptial agreement regulating
the marriage will be upheld by the court. As to this, see Kwong Sin Hwa’s case. 11
6.6 PRENUPTIAL AGREEMENTS ON MAINTENANCE
[6.6.1] It was held in Hyman v Hyman (“Hyman”) 12 that an agreement between a husband and a wife which prevented the wife from
seeking maintenance from the courts beyond the provision that was made for her in the agreement itself was void as being contrary to
public policy. Hyman was applied in Singapore in Wong Kam Fong Anne v Ang Ann Liang (“Wong Kam Fong Anne”) 13 and Chia Hock Hua
v Chong Choo Je. 14
[6.6.2] However, in TQ v TR, the Court of Appeal took the position that whilst such an agreement would be contrary to public policy,
notwithstanding, the said agreement would have some legal effect on the issue of a claim for maintenance. The fact of the existence of
the agreement and/or its terms are relevant factors for consideration by the court in reaching a decision on maintenance. A court may
endorse the terms of the prenuptial agreement where it relates to maintenance if the said terms appear to the court to be a just and fair
result in the circumstances of the claim for maintenance. It was pointed out that where a prenuptial agreement purports to set out terms
in relation to the maintenance for children, the courts will be especially vigilant and will be slow to enforce agreements that are
apparently not in the best interests of the child or the children concerned.
6.7 PRENUPTIAL AGREEMENTS ON CUSTODY ISSUES
[6.7.1] In TQ v TR, the Court of Appeal opined that there ought to be a presumption that prenuptial agreements on issues of custody are
unenforceable unless it is clear from the terms of the prenuptial agreement that the said terms are in the best interests of the child or
children.
[6.7.2] In AOO v AON, 15 the Court of Appeal affirmed the position set out in TQ v TR 16 and made it clear that any agreement made by
parties to a marriage in relation to children issues were not binding on the court.
[6.7.3] The court will always scrutinise the terms of a prenuptial agreement relating to issues concerning the children vigilantly to
ensure that the welfare and best interests of the child or children are of paramount concern and consideration rather than the will of the
parents or the interests of the parents. The court reserves the power to be the final arbiter as to whether the terms are in the best
interests of the child or children and caters to their welfare notwithstanding that the terms of the prenuptial agreement may well
coincide with the welfare of the child or the children concerned.
6.8 PRENUPTIAL AGREEMENTS ON DIVISION OF ASSETS
[6.8.1] The ultimate power resides in the court to order the division of matrimonial assets “in such proportions as the court thinks just
and equitable” in accordance with the provisions of section 112 of the Charter. As such, any prenuptial agreement which seeks to oust the
jurisdiction of the court by contract or to detract from the court’s statutorily derived power pursuant to section 112 of the Charter will
not be upheld by the court. Notwithstanding, such a prenuptial agreement may however be utilised as a tool, where relevant, to aid the
court in exercising its power pursuant to section 112 of the Charter. A prenuptial agreement relating to the division of matrimonial assets
between the spouses would fall within the ambit and meaning of section 112(2)(e) of the Charter. Section 112(2)(e) of the Charter
specifically sets out that the court has to have regard to any agreement between the parties with respect to the ownership and division of
the matrimonial assets made in contemplation of divorce.
[6.8.2] Notwithstanding the fact that a validly contracted marital agreement, whether prenuptial or postnuptial, was made, which
complied with all the requirements of contract law, the agreement is only one of the factors to be considered by the courts.
[6.8.3] This was made explicitly clear in Wong Kien Keong v Khoo Hoon Eng 17 where Belinda Ang J ruled:
18 The legal position in Singapore is now trite: the court has the overriding power to scrutinise the terms of both pre-nuptial and
post-nuptial agreements (including deeds of separation) and will do so in accordance with the principles of justice, fairness and
equity to both parties (see TQ v TR [2009] 2 SLR(R) 961 at [73]–[75]). In AOO v AON [2011] 4 SLR 1169, the Court of Appeal reiterated
in obiter that the approach towards the division of matrimonial assets set out in TQ v TR (a decision on pre-nuptial agreements) also
applied to post-nuptial agreements (at [19]):
19 Recently, Chao Hick Tin JA in AQS v AQR [2012] SGCA 3 reiterated the legal position at [35]:
“In any case, an agreement between the parties made in contemplation of divorce could not be decisive. It is only one of the
factors listed in s 112(2) of the Women’s Charter that the court must take into account as part of its overarching duty to reach a
just and equitable division in light of all the circumstances of the case. This Court affirmed in TQ v TR and another appeal [2009]
2 SLR(R) 961 at [75]
that even though post-nuptial agreements could be accorded more weight than pre-nuptial agreements, how much weight was
to be allocated to a postnuptial must ultimately depend on the precise circumstances of the case ...”
[6.8.4] The court in Wong Kien Keong v Khoo Hoon Eng 18 also balanced the issues as follows:
13 As a related observation, where parties have failed to point towards any form of inequity in the s 112(2)(e) agreement, the court is
not likely to substitute its own discretion or judgment for that of the parties, and will instead seek to uphold the agreement. Where
parties have agreed to comprehensively and conclusively organise their financial arrangements after or in contemplation of their
separation, there would be no good reason why such an agreement should not be given full weight. This approach was first observed
in Wong Kam Fong Anne v Ang Ann Liang [1992] 3 SLR(R) 902 where Michael Hwang JC considered the court’s exercise of its powers
under s 106(1) of the Women’s Charter (Cap 353, 1985 Rev Ed) (now s 112(1) of the Charter) in relation to an agreement made by the
parties prior to their divorce concerning the disposal of their matrimonial assets. While s 106(2) did not contain a provision similar
to s 112(2)(e) of the Charter, Hwang JC’s observations are useful in highlighting the importance of exercising caution when
interfering with a s 112(2)(e) agreement. At [36]:
“The deed was therefore intended as a comprehensive financial and property settlement between the parties. The deed was
made at a time when the parties had already been separated, and divorce was viewed as a real possibility, although not necessarily
in the immediate future. Under these circumstances, I considered that the onus was on the husband, who was seeking to disclaim
the effectiveness of the deed, to justify why the court should proceed to exercise its powers under s 106 in disregard of the
express intentions of the parties made in contemplation of precisely the situation which had now arisen. [emphasis added]”
[6.8.5] In respect of what weightage was to be given to prenuptial agreements, the English case of Edgar v Edgar 19 is instructive where
Ormrod J observed at page 1417:
To decide what weight should be given, in order to reach a just result, to a prior agreement not to claim a lump sum, regard must be
had to the conduct of both parties, leading up to the prior agreement, and to their subsequent conduct, in consequence of it. It is not
necessary in this connection to think in formal legal terms, such as misrepresentation or
estoppel; all the circumstances as they affect each of two human beings must be considered in the complex relationship of marriage.
So, the circumstances surrounding the making of the agreement are relevant. Under pressure by one side, exploitation of a dominant
position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of
circumstances, unforeseen or overlooked at the time of making the agreement, are all relevant to the question of justice between the
parties. Important too is the general proposition that formal agreements, properly and fairly arrived at with competent legal advice,
should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the
parties to the terms of their agreement. There may well be other considerations which affect the justice of this case; the above list is
not intended to be an exclusive catalogue. [emphasis in original]
[6.8.6] Ultimately, the weight the court accords to a prenuptial agreement is dependent on the terms of division set out in the agreement
as well as all of the circumstances of the case. Effectively, this means that not only the terms but also the parties’ conduct surrounding the
making and the execution of the agreement would be scrutinised. In addition, the prenuptial agreement must be seen and assessed in
light of the other factors set out in section 112(2) of the Charter.
6.9 CONCLUSION
[6.9.1] Prenuptial agreements, whether foreign or locally made, will be considered by the court in the exercise of its powers to divide
assets. It is a factor to be considered by the court and whether the same will be upheld and enforced by the court, will depend in the
main on whether the terms set out therein do not contravene public policy and are just and equitable.
[6.9.2] Where prenuptial agreements deal with issues of custody and/or concern children, the starting point appears to be that such
agreements are unenforceable and unlikely to be upheld or enforced by itself and will be subject to the court’s overriding power to
scrutinise these agreements to ensure that the children’s welfare is of paramount concern and not the will or interests of the parents.
[6.9.3] Where the prenuptial agreements deal with maintenance, these agreements may be upheld by the court so long as the terms do
not transgress against public policy considerations and are just and equitable in all the circumstances.
[6.9.4] Foreign prenuptial agreements dealing with the division of matrimonial assets must first be proven to be valid and binding in
accordance with the governing law of the agreement and must comply with the law of contract prevailing in that jurisdiction. Whether
the foreign prenuptial agreement will be upheld or enforced depends on the reasonableness of the terms in line with section 112 of the
Charter.
FOOTNOTES
1 [1993] 1 SLR(R) 90.
2
[1917] P 271.
3 [2009] 2 SLR(R) 961.
4 Ibid.
5 Sir Lawrence Collins (ed), Dicey, Morris & Collins on The Conflict of Laws, 14th edn, Vol 2 (Sweet & Maxwell, 2006), para 28R-030.
6 [2013] SGCA 37.
7 [2009] 2 SLR(R) 961.
8 [2012] SGHC 127.
9 [2009] 2 SLR(R) 961 at [53]–[54].
10 Kwong Sin Hwa v Lau Lee Yen [1993] 1 SLR(R) 90.
11 [1993] 1 SLR(R) 90.
12
[1929] AC 601.
13 [1992] 3 SLR(R) 902.
14 [1994] 3 SLR(R) 159.
15 [2011] 4 SLR 1169.
16 [2009] 2 SLR(R) 961.
17 [2014] 1 SLR 1342.
18 Ibid.
19
[1980] 1 WLR 1410.

2016 - 10 - 17 PAGE 165

Chapter 07: Variation of Maintenance
Chapter 7
Variation of Maintenance
Ellen Lee Geck Hoon, Michael Lee Yew Lun
and William Khoo Wei Ming
7.1 Statutory Provisions and the Orders which they Apply to 166
A. Variation of Maintenance for Wife or Ex-Wife 166
B. Variation of Maintenance for Child 167
C. Variation of Agreements for Maintenance 167
1. For wife 167
2. For child 167
7.2 Orders which can be Varied 168
A. There Must be a Subsisting Maintenance Order to be Varied 168
B. Periodic Payments / Monthly Allowance 169
C. Lump Sum Maintenance 169
7.3 Approach of the Court 170
7.4 Factors to Which the Court will have Regard 170
A. Good Cause 171
B. Mistake and Misrepresentation 172
C. Reasonable and For the Welfare of the Child 172
D. Material Change in Circumstances 173
1. Loss of employment 174
2. Gaining employment 174
3. Bankruptcy and failure of business 175
4. Decrease in salary 175
5. Decrease in wife’s cost of living 176
6. Inheritance 176
7. Effect of remarriage or cohabitation 176
8. Self-induced material adverse change 178
9. Contemplation of parties when entering into the agreement 179
7.5 Orders Which the Court may make in Variation Proceedings 180
7.6 Procedure 181
B. Variation of Maintenance Orders Made Under Part VIII 181
7.1 STATUTORY PROVISIONS AND THE ORDERS WHICH THEY APPLY TO
[7.1.1] The variation of maintenance orders is governed by different statutory provisions in the Women’s Charter (Cap 353) (the
“Charter”) in different situations. This depends firstly on whether the variation sought is in relation to maintenance ordered for the wife
or children of the marriage and secondly, whether the original maintenance order is one which was given during the subsistence of the
marriage, during the course of matrimonial proceedings, or after divorce has been granted.
A. Variation of Maintenance for Wife or Ex-Wife

[7.1.2] Section 72 governs the variation of a maintenance order granted under section 69. This is maintenance ordered in favour of a
wife during the subsistence of the marriage. Section 72 states:
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, or that person’s wife, incapacitated husband 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.
[7.1.3] Section 118 read with either section 113(1)(a) or (b) is the provision governing the variation of maintenance orders for a wife or
an ex-wife. Section 118 states:
Power of court to vary orders for maintenance

118. The court may at any time vary or rescind any subsisting order for maintenance, whether secured or unsecured, on the
application of the person in whose favour or of the person against whom the order was made, or, in respect of secured
maintenance, of the legal personal representatives of the latter, where it is satisfied that the order was based on any
misrepresentation or mistake of fact or where there has been any material change in the circumstances.
B. Variation of Maintenance for Child

[7.1.4] While variation of maintenance orders for a wife or ex-wife are governed by different provisions depending on the marital
status of the parties at the time of the order, there is no such dichotomy with regards to maintenance ordered for children.
[7.1.5] Section 72 is expressly stated to govern variation of maintenance ordered under Part VIII, that is, maintenance ordered during
the subsistence of the parents’ marriage. By virtue of section 127(2), provisions of Part VIII, including section 72, are imported into Part X
to govern the variation of maintenance ordered for a child pursuant to section 127(1). Thus, even maintenance ordered during
matrimonial proceedings or subsequent to a divorce for a child is to be varied according to the principles of section 72. Section 127(2)
states:
(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).
C. Variation of Agreements for Maintenance
1. For wife
[7.1.6] The power of the court to vary agreements made between husband and wife is contained in section 119:
Power of court to vary agreements for maintenance

119. Subject to section 116, the court may at any time and from time to time vary the terms of any agreement as to maintenance
made between husband and wife, whether made before or after 1st June 1981, where it is satisfied that there has been any material
change in the circumstances and notwithstanding any provision to the contrary in any such agreement.
[7.1.7] The Charter is silent on whether the court has the power to vary an agreement for maintenance of a wife during the subsistence
of the marriage. This is however unlikely to pose any problems in practice, as the court is not precluded from making an order for
maintenance on terms different from what was agreed upon should the wife make an application under section 69.
2. For child
[7.1.8] Again by virtue of section 127(2), the law on variation of an agreement for maintenance of child is the same regardless of the
state of the parents’ marriage. Section 73 states that:
Power of court to vary agreement for maintenance of child

73. The court may, at any time and from time to time, vary the terms of any agreement relating to the maintenance of a child,
whether made before or after 1st June 1981, notwithstanding any provision to the contrary in that agreement, where it is satisfied
that it is reasonable and for the welfare of the child to do so.
[7.1.9] The court’s power to vary an agreement for the maintenance of a child is a very wide one. So long as it is reasonable and for the
welfare of the child to do so, section 73 empowers the court to vary the terms of any agreement relating to the maintenance of a child.
This is so even if there is any provision in the agreement which purports to exclude any such variation.
[7.1.10] This is in contrast to the court’s power to vary an agreement for the maintenance of a wife, which can only be exercised where
the court is satisfied that there is a material change in circumstances of the parties.
7.2 ORDERS WHICH CAN BE VARIED

A. There Must be a Subsisting Maintenance Order to be Varied
[7.2.1] It goes without saying that before a variation can take place, there must first be a subsisting maintenance order capable of being
varied. Where a maintenance order is no longer in force, or has been replaced by the operation of another maintenance order, the court
will not have the power to order a variation. Two cases illustrate this technical yet fundamental aspect of variation.
[7.2.2] When considering an application for maintenance under section 113, if there are reasons for keeping the wife’s entitlement to
maintenance alive, the correct order for the court to make is an award of nominal maintenance, of at least $1, to preserve the wife’s
right to apply for variation in the event of a material change in the future. In Tan Bee Giok v Loh Kum Yong, 1 the Court of Appeal
clarified that when a wife’s application for a final maintenance order is dismissed, there will not be any subsisting maintenance order
for her to apply to vary in the future, even if there is a material change in circumstances. The Court of Appeal, almost nine years later in
APE v APF, 2 confirmed that Tan Bee Giok v Loh Kum Yong 3 was still good law. Addressing recent High Court decisions which suggested
that making no order on maintenance with liberty to apply, or making an order of $0, would similarly preserve the right of the wife to
subsequently apply for variation, the court held that where there was no order on maintenance, there would be no subsisting order for
variation.
[7.2.3] Similarly, once a maintenance order is no longer operating, the court will not have the power to retrospectively vary it. In AXM v
AXO, 4 the court held that once a final maintenance order under section 113(1)(b) has been granted, there will no longer be a subsisting
interim maintenance order under section 113 (1)(a) capable of being varied. Thus, even when the court wanted to do justice by reducing
the husband’s arrears in maintenance due to the interim order being too high, the technically correct way is to take into account all the
circumstances of the case, including the effect of the interim maintenance order on both parties and the depleted resources of the
husband, when deciding the amount of maintenance to be paid thereafter under the section 113(1)(b) order.
B. Periodic Payments / Monthly Allowance

[7.2.4] Where maintenance during the subsistence of marriage is in the form of monthly allowance or periodic payments, the court may
vary or rescind such order upon application by the party paying or receiving such monies. That only maintenance in the form of
monthly allowance can be varied is made explicit in section 72.
C. Lump Sum Maintenance

[7.2.5] Section 118 does not however make clear such a distinction between monthly allowances and lump sum payments. It has been
opined 5 that where lump sum maintenance is to be paid by several instalments, some of which have not been paid, it may be argued
that the court has the power to vary or rescind because such an order remains, on a literal reading, “subsisting”.
[7.2.6] The High Court in Lee Kok Yong v Lee Guek Hua 6 held that on the facts of that case, where the instalments of lump sum
maintenance should have been paid long ago, the party who has blatantly refused to make the payment is in no position to assert that
the lump sum maintenance should be varied. As such, the appellant’s application to reduce the lump sum maintenance payable to the
respondent was dismissed. The court however left open the question of whether it could have varied the order if the length of delay was
not so long, or if the non-payment was not due to a blatant refusal.
7.3 APPROACH OF THE COURT
[7.3.1] The principles guiding a court in a variation proceeding is no different from that in a fresh maintenance application. The only
difference is that it now has to take into account new facts before it, be it a material change in circumstances, or it has come to light that
there was a misrepresentation or mistake of fact. The court thus has to compare the facts known at the time of making the maintenance
order with the facts now facing the court at the variation proceedings, and decide, in light of the new facts, whether a variation is
justified. Amidst all the factors and considerations, the court decides based on the reasonableness of the maintenance claim against the
ability of the payor to pay. 7 Ultimately, it is the court’s sense of justice which demands and obtains a just solution to many a difficult
issue. 8
7.4 FACTORS TO WHICH THE COURT WILL HAVE REGARD
[7.4.1] Where an order for maintenance of wife is ordered under Part X, the court may order a variation where the order was based on
any misrepresentation or mistake of fact, or where there has been a material change in circumstances (section 118).
[7.4.2] The test for variation of a maintenance order granted under section 69 seems more permissive (which is under Part VIII that
governs maintenance from a husband to a wife as opposed to an ex-wife under Part X). What is required for variation under section 72
is a change in circumstances, as opposed to a material change under section 118. Further, the court may also take into account “other
good cause”. The court may also take into consideration any change in the standard of living, 9 though this will arguably always be a
consideration given that the court takes into account all the circumstances of the case. 10
[7.4.3] A material change in circumstances is required for an agreement for maintenance of wife to be varied by the court. 11
Agreements for maintenance of a child may however be varied as long as it is reasonable and for the welfare of the child to do so. 12
[7.4.4] By virtue of section 127(2), the principles and factors for variation of maintenance order or agreements for a child, be it pre-
divorce under Part VIII or post-divorce under Part X, are the same. This again reflects the principle that regardless of the marital
situation of the parents, their responsibilities towards their children remain the same.
[7.4.5] While there are differences in how the provisions are worded and the factors to be taken into account, the court does not seem to
have treated their requirements differently. Phang JA opined in AXM v AXO 13 that the broader scope of section 72 compared to section
118 might not make much practical difference.
A. Good Cause
[7.4.6] The phrase “good cause” is not defined and the court has a wide discretion to decide if a good cause has been shown to justify a
variation of a maintenance order under section 72. 14
[7.4.7] In TCG v TCH, 15 the court found that the husband’s relocation to Shanghai constituted good cause to vary the terms of the
consent order. Under the consent order, in addition to a general sum for the wife’s expenses, the husband was also responsible for
directly paying third parties for various expenses. The husband’s relocation meant that it would be impractical for him to continue
managing the finances of the family, and this was good cause to vary the consent order to provide that the husband was to pay a global
sum each month for the wife to manage payments to the third parties.
[7.4.8] The factors of misrepresentation and mistake of fact, which are grounds for variation under section 118, may also amount to
good cause for variation under section 72. 16
B. Mistake and Misrepresentation

[7.4.9] The ambit of mistake and misrepresentation have not been the subject of analysis by the courts in the context of family law, but
guidance can be drawn from the law of contracts. The scope of the courts’ discretion is, however, unlikely to be bound strictly by
contractual principles, 17 but rather, guided by the common sense use of the two words.
[7.4.10] But not every small mistake or misrepresentation should result in a variation. The mistake or misrepresentation must be one
concerning a material fact, something that would put an entirely different complexion on the case, and not merely something that may
have led the ancillary matters court to decide differently. 18 The test therefore sets a very high bar as to what sort of mistake or
misrepresentation can result in a variation.
[7.4.11] The approach the court should take when faced with a mistake or misrepresentation should be to decide whether in light of the
new material facts and any change in circumstances, the original maintenance order is so inappropriate that it should be varied. 19
[7.4.12] An example of a successful application for variation due to misrepresentation can be found in the case of XZ v YA. 20 In that
case, Chao JA ordered a downward variation of the husband’s maintenance sum by $1,000. The wife had misrepresented to the husband
that she would be quitting her job to look after the children, leading to the husband agreeing to the sums in the consent order. The court
however did not reduce the quantum of maintenance by the wife’s entire salary for two reasons. First, the sums set out in the consent
order were compromised amounts, as opposed to the full sum asked for by the ex-wife. Second, to reduce the maintenance amount by
the entire sum of the ex-wife’s salary would take away any incentive for the ex-wife to work even part-time, since there will be no
reason for her to work if she can receive the exact same amount from her ex-husband without working. The court was of the view that
both parties should benefit from the ex-wife’s income.
C. Reasonable and For the Welfare of the Child

[7.4.13] In deciding whether to vary an agreement for the maintenance of a child, the court possesses a wide discretion to take into
account any factor so long as it is reasonable and for the welfare of the child to so vary the agreement. 21 The Court of Appeal has read
this provision as being wide enough to encompass a material change in the circumstances of the parents as a basis for varying the
maintenance for the child. Whether or not this should result in the maintenance actually being varied is a factual inquiry that depends
on the circumstances of the case. 22
D. Material Change in Circumstances

[7.4.14] What constitutes a material change must be decided with reference to the aim of awarding maintenance in the first place,
which is for the financial preservation of the wife and child, balancing the reasonable needs of the wife and child with the ability of the
husband to make the maintenance he is ordered to pay. Thus, a material adverse change in the husband’s financial situation may justify
a variation. A material increase in the wife or child’s expenditure may also justify a variation. A material increase or decrease in the
wife’s ability to contribute to her own or her child’s maintenance may also lead to a variation of the quantum of maintenance.
[7.4.15] As such, the courts have decided that there was material change in circumstances in cases involving a husband’s loss of
employment, a significant decrease in salary, failure of the husband’s business, and bankruptcy. These impact the income of the
husband and thus his ability to meet the maintenance order. Additional expenses due to husband’s remarriage could also be taken into
account.
[7.4.16] Where the husband proves that he is no longer able to pay any sum(s) of money, or that the beneficiary is no longer in any
financial need, a maintenance order may be rescinded. 23
[7.4.17] What is clear is that even where there may be a material change in circumstances, the court has the discretion on whether to
order a variation. For example, even where the parties have divorced subsequent to a maintenance order made in favour of the wife,
the courts may not necessarily rescind the maintenance order. 24 In the same vein, where the material adverse change is due to the
applicant’s own doing, the court will not order a variation. This point is further elaborated later in this chapter.
[7.4.18] The court in DB v DC 25 eloquently summarises and articulates the task facing the family courts when hearing a variation
proceeding. Where parties suffer a material adverse change in circumstances, the guiding principle of the court seems to be that all
members of the family share in the loss. Thus, where a husband suffers a huge drop in income, he is still responsible for maintaining his
ex-wife and children. But, the standard at which he is to maintain them by cannot be at a level way beyond what he can afford in light of
the new circumstances. The courts will be guided by its sense of justice in balancing and redistributing what is available within the
family. In general, the courts tend to give the children’s needs greater priority over the needs of the adults. The parents must expect to
sacrifice some of their personal comforts so that the children do not have to experience too great a fall in their standard of living.
1. Loss of employment
[7.4.19] A husband’s loss of employment is a clear case of a material change in circumstances affecting the husband’s ability to pay
maintenance. This may lead to the court ordering a downward variation, or a suspension of the maintenance order. Where the husband
is in such a condition whereby the chances of finding alternative employment after losing his job are slim, such loss of employment may
even lead to a rescission of the maintenance order. In Wong Lai Kum v Lim Khee Tee, 26 the husband was already 71 years of age at the
time he lost his employment. The court found that he had neither any significant assets nor source of income. As such, the court
rescinded the maintenance order, as the husband was no longer able to pay any sums of money.
2. Gaining employment
[7.4.20] Conversely, gaining employment subsequent to an order of maintenance being made may constitute a material change in
circumstances. In Marychristine Knittel-Hanks (mw) v Kenneth G Hanks, 27 the court ordered an upward variation of the husband’s
contribution to the children’s maintenance. This was because at the time the consent order was made, the husband was unemployed. He
subsequently gained employment, and thus had the financial ability to contribute to his children’s maintenance.
3. Bankruptcy and failure of business

[7.4.21] Bankruptcy and failure of the husband’s business are major events which are likely to be material adverse changes. In Chua
Chwee Thiam v Lim Annie, 28 the court suspended the payment of maintenance by the husband under the agreement signed by the
parties, save for the clause on monthly contributions for food and household provisions, which was reduced from $1,000 to $500. The
husband’s company was put into receivership, and there was evidence of financial hardship suffered. The ex-wife and daughter on the
other hand were leading a lavish lifestyle.
[7.4.22] In Wong Ser Wan v Ng Cheong Ling, 29 the court ordered a downward variation of maintenance obligations under the consent
order allowed as the ex-husband’s bankruptcy constituted a material change in circumstances. His status as a bankrupt meant that he
could not readily borrow money or act as directors in many of his companies. Note that just like in Chua Chwee Thiam v Lim Annie, 30 the
court reduced the quantum of maintenance, but did not waive it entirely. In this case, the court drew an adverse inference against the
husband for failing to make full disclosure, and found that despite his bankruptcy, he had assets which could be used to settle his
indebtedness and his maintenance obligations.
4. Decrease in salary
[7.4.23] If the person ordered to pay maintenance suffers a decrease in salary such as to impact his ability to pay the maintenance sum
ordered, the court may order a downward variation. The decrease will most likely have to be significant for the change to be considered
material. The court will likely require evidence of the husband suffering some sort of hardship or financial difficulty as a result of the
decrease before it orders a downward variation. Where there is evidence that the husband is still spending lavishly on luxury goods, the
court will be unlikely to find a material change in circumstances. 31 Where the recipient wife suffers a significant decrease in salary, that
may also be a ground for an upward variation. This is subject to the caveat that such decrease in salary is not self-induced or brought
about for the purpose of evading maintenance payments or deliberately creating a material adverse change.
5. Decrease in wife’s cost of living

[7.4.24] When the wife receiving maintenance experiences a decrease in her cost of living, she will no longer need the same amount of
maintenance previously granted. One example of a reduced cost of living is when the wife relocates to a country with a significantly
lower cost of living than the place where she was living in at the time of the previous maintenance order. In Morris Richard Neil v Morris
Carolina Hernandez, 32 the High Court granted the husband’s application for a downward variation of the maintenance payable to the
wife. The main reason was that as she had relocated to Koh Samui, her cost of living and expenses would be far lower than when she
was in Singapore. There was also no longer a legal impediment to the wife seeking employment, which she could not have done in
Singapore as she was on a long-term social visit pass. She was thus responsible for contributing to her own maintenance.
6. Inheritance
[7.4.25] A wife’s inheritance of a not insubstantial sum constitutes a material change in circumstances which may result in a downward
variation, or even full rescission, of the wife’s maintenance.
[7.4.26] In Kishore Shewaram Mohinani v Padmabai d/o Ramchand Ladharam, 33 the High Court reduced the amount of maintenance
payable by the husband from $2,000 to $1,000 per month. This is because the wife’s inheritance of a half share of an estate valued at $1.8
million enhances to a not insubstantial extent her ability to meet her expenses, and correspondingly warrants modifying in the
husband’s favour his obligation to enable her to meet her expenses. The court however decided against a full rescission of the
maintenance order as the wife’s $900,000 increase in wealth was a one-off gain which was not so large as to set her up for life, taking
into account her current age (58 years) and life expectancy (85 years). The judge inferred from the husband’s failure to make full and
frank disclosure of his assets that he was in a position to continue making monthly maintenance payments of the reduced amount of
$1,000.
7. Effect of remarriage or cohabitation

[7.4.27] Where the husband remarries and takes on additional responsibilities, this will increase his expenses and may affect his
financial ability to pay the maintenance previously ordered. Whether this constitutes a material change justifying a variation depends
on the circumstances of each case. Cases such as Lim Sai Poh v Ting Leh Ming @ Tan Lay Ming 34 and THG v LGH 35 have considered that
having a new family may constitute a material change in circumstances justifying a change in maintenance. However, where the
financial ability of the husband is huge and having a new family does not have a huge impact on his finances, clearly this will not
amount to a material change.
[7.4.28] The court in TKQ v TKR 36 observed that in essence, the court has to balance two competing considerations. On one hand, the
husband would have been aware of his maintenance obligations when choosing to remarry and start a new family, and it would be his
responsibility to ensure that this does not adversely impact his ex-wife and children. Yet, a maintenance order should not be a shackle
around the lives of divorced parties, and the law should allow parties to have a fresh start in their lives, remarry and have new children.
The courts will have to take a common sense approach in each case, having due regard to the needs and financial resources of parties
and all children.
[7.4.29] Similarly, whether the ex-wife’s commencement of cohabitation with another man constitutes a material change in
circumstances depends on the facts of the case. In TKQ v TKR, 37 the court took into account the fact that the ex-wife’s new live-in
boyfriend paid for much of the increased expenses alleged, such as rent, in finding that she was capable to maintain herself and to
contribute her share of her child’s maintenance with her income. The court then made adjustments to the consent order to take into
account the new situation. Amongst them, the court cut the husband’s share of the maid’s expenses to half, since half can be attributable
to his child while the other half to the wife’s new boyfriend, whom the ex-husband should not be paying for.
[7.4.30] Where the husband’s new wife and child were already existing at the time of the maintenance order, the husband cannot then
use this new family as a reason for downward variation. In Katsuya Nishiyama v Ang Wee Sim Alice (mw), 38 the husband’s new wife and
child were not material adverse changes, as prior to the consent order, he was already maintaining the new wife (then his mistress) and
child. Thus, his remarriage did not give him any added expenses.
[7.4.31] Where the ex-husband’s application for variation appears anchored in his resentment at the ex-wife having a new live-in
boyfriend who was supporting her, rather than on the basis of any real material change in circumstances, the court will not order a
variation of maintenance for their child. 39 The court may be minded to decide differently if it was an application to vary maintenance
ordered for the ex-wife, as financial support from a new boyfriend would mean that her financial needs are reduced. While a parent’s
responsibility towards his child cannot be alienated, one is not responsible indefinitely for the provision for an ex-wife.
8. Self-induced material adverse change

[7.4.32] Where the reason for a material adverse change in circumstances is self-induced, the application for variation may not succeed.
The rationale for this is clear – the party ordered to pay maintenance cannot be allowed to purposely reduce or escape his obligation.
Thus, where the husband alleges loss of income due to his own decision to resign from several directorships because he wants to spend
more time with his children, the court has held that this cannot be a reason for varying his maintenance obligations. 40
[7.4.33] Another example would be where the adverse change in the husband’s finances is due to having to pay off huge monthly loans
incurred by his decision to purchase a property. In Katsuya Nishiyama v Ang Wee Sim Alice (mw), 41 the court found that the applicant
was the author of his financial problems, since he was an employee of a Japanese company which gave him housing allowance. His
decision to instead purchase a property, therefore increasing his expenses such that he had little left for maintenance payments, cannot
be good reason for downward variation of maintenance. Furthermore, the purchase of a house is a form of saving and investment, and
the ex-wife should not suffer for it.
[7.4.34] Conversely, the material adverse change suffered by the person receiving maintenance also cannot be self-inflicted. Recipients
should spend reasonably and within their means, rather than be allowed to go wild with their expenditure with the knowledge that the
ex-husband will have to foot the bill. In Tan Huan Eng Agnes Florence v Trevor Symes, 42 the court did not accept the wife’s increased
overdraft from legal fees as a reason for variation. This is so as to not encourage parties to incur legal fees and hire lawyers beyond their
means, with the knowledge that ancillary orders may later be varied to take the fees into account.
9. Contemplation of parties when entering into the agreement

[7.4.35] What constitutes material change justifying a variation of an agreement for maintenance necessitates a comparison of the
present circumstances of the parties with the circumstances when they entered into the agreement. Where an upcoming material
change was expected to happen and known to the parties at the time of making the agreement, the party agreeing to pay cannot then
make use of such a change in circumstances to later seek variation of the maintenance agreement.
[7.4.36] In BG v BF, 43 the husband’s loss of employment was not a reason to vary the consent order because at the time of signing the
agreement, his departure from the company was not in doubt. His departure was not an abrupt one as it was negotiated for over eight
months and began a long time before the start of negotiations for the maintenance amount. The court opined that if the husband was
not confident of meeting his obligations in view of his impending departure, he would not have signed the agreement.
[7.4.37] Similarly, failure of company could not constitute a material change in circumstances which justifies a variation of a
maintenance agreement in a consent order where the applicant was aware that his company was already not doing well and could not
reasonably have been relying on the success of his company at the time of the consent order. 44
[7.4.38] Conversely, where the parties entered into an agreement on the basis that there would be an expected positive material change
in circumstances for the husband and such expectation did not materialise, this would constitute a material change justifying a variation
of the maintenance agreement. In Tan Sue-Ann Melissa v Lim Siang Bok Dennis, 45 parties entered into an agreement for the husband to
pay two-thirds of his salary as maintenance based on assumptions and expectations of the husband’s income increasing considerably.
That expectation subsequently not materialising is considered a material change.
[7.4.39] Where matrimonial property fetched a price far higher than what was contemplated by the parties when negotiating the
consent order, this constituted a material change in circumstances which justifies a downward variation in maintenance. In AYM v AYL,
46 the court decided that any additional windfall from the higher price ($1.35 million more than what was contemplated) should be
shared equally between the parties, as opposed to the 70-30 division in favour of the wife that had been agreed upon.
7.5 ORDERS WHICH THE COURT MAY MAKE IN VARIATION PROCEEDINGS
[7.5.1] The court has a wide discretion in the types of orders it can make to do justice between the parties in a variation application.
Where the court is of the opinion that a clean break is desirable between the ex-husband and wife, the court may convert a maintenance
order in the form of monthly allowance into a lump sum order. 47
[7.5.2] In ordering a variation of maintenance, the court may also decide to backdate the variation order and have it apply
retrospectively. 48 This is usually done to allow the varied amount to commence from the date of the material adverse change. This
retrospective variation can also take the form of a suspension of the earlier maintenance order, for example, in a situation where the
husband was unemployed for a period of time before regaining employment. 49
[7.5.3] The court may also make orders which facilitate the exchange of information between parties. To allow parties to be aware of
any material change in circumstances of their former spouse, the court may order that both parties send each other their IRAS (Inland
Revenue Authority of Singapore) Notice of Assessment within 14 days of receiving them each year. 50 This allows parties to have the
information available to apply for a variation of the maintenance order.
7.6 PROCEDURE

[7.6.1] An application for variation of maintenance orders made under Part X of the Charter shall be by way of summons with
supporting affidavit filed in the original suit under which the order was made. The summons shall set out the date of the Order of Court
and the specific paragraph(s) in the Order which the applicant is seeking to vary.
[7.6.2] The supporting affidavit shall set out the grounds on which a variation of the maintenance order is sought as well as exhibiting
supporting documentary evidence to show such grounds. For example, if the reason for the application is that the applicant has had his
employment terminated, one exhibit would be a letter of termination of employment.
[7.6.3] Additionally, documents showing the financial ability and reasonable expenses of the parties and their children should be
exhibited. The Family Justice Courts Practice Directions 2015 suggests the following documents: a List of Expenses of the applicant and
children, a copy of the Order of Court which the applicant is seeking to vary, copies of the applicant’s IRAS Notices of Assessment for the
preceding three years, as well as the applicant’s payslips and bank statements for the three months immediately preceding the variation
application. Any other documents evidencing the financial positions and needs of the parties should be included to aid the court in
finding the right balance.
B. Variation of Maintenance Orders Made Under Part VIII

[7.6.4] An application for variation of a maintenance order made under section 69 is somewhat different. Section 79 of the Charter and
rule 20 of the Family Justice Rules 2014 require all applications to be made to the Family Justice Courts under Parts VII and VIII of the
Charter to be made through the same manner as an application for a summons under the Criminal Procedure Code (Cap 68) (“CPC”).
Thus, to apply for a variation pursuant to section 72, one must file a complaint in accordance with Part VIII of the CPC. This will result in
a Maintenance Summons, and the person seeking variation will be known as the “complainant”.
[7.6.5] Although utilising the criminal procedure, it is settled law that maintenance proceedings are civil in nature. 52 The rationale of
using the criminal process of complaints and summons is simply because such a procedure is cheaper and speedier, 53 ensuring that
those in need will not be hampered by costs.
[7.6.6] Applicants must also remember to bring the proceedings before the correct court. Section 72 of the Charter states that for a
maintenance ordered under Part VIII, “the court by which the order was made may rescind the order or may vary it”. There appears to
be no such restriction for maintenance ordered under Part X.
[7.6.7] The case of Wong Lai Kum v Lim Khee Tee 54 illustrates this point. This concerned three summonses by the husband seeking
variation or rescission of orders to pay maintenance to his son and ex-wife. While the High Court found that there was a material change
in circumstances and duly rescinded two maintenance orders made by the High Court and Court of Appeal under Part X, it declined to
set aside an order made by the Family Court under section 69 as the High Court was not the court which made the order.
FOOTNOTES
1 Tan Bee Giok v Loh Kum Yong [1996] 3 SLR(R) 605; [1996] SGCA 69.
2 APE v APF [2015] 5 SLR 783; [2015] SGCA 47.

3 Tan Bee Giok v Loh Kum Yong [1996] 3 SLR(R) 605; [1996] SGCA 69.
4 AXM v AXO [2014] SGCA 13.
5 See Professor Leong Wai Kum, Principles of Family Law in Singapore (Butterworths Asia, 1997), p 1008.
6 Lee Kok Yong v Lee Guek Hua (alias Li Yuehua) [2007] SGHC 26 at [19].
7 Foo Ah Yan v Chiam Heng Chow [2012] SGCA 15 at [19].
8 BG v BF [2007] 3 SLR(R) 233 at [74]–[75], quoting Wong Amy v Chua Seng Chuan [1992] 2 SLR(R) 143.
10 See factors in sections 69 and 114 of the Charter.
13 AXM v AXO [2014] SGCA 13 at [34].
14 Chew Lai Yoke Bettina v Selby Michael David [2001] SGDC 384 at [8].
15 TCG v TCH [2015] SGFC 47.
16 Chew Lai Yoke Bettina v Selby Michael David [2001] SGDC 384 at [7].
17 Ibid at [8].
18 Tan Huan Eng Agnes Florence v Trevor Symes [2005] SGDC 83 at [12].
19 Ibid at [13].
20 XZ v YA [2009] SGHC 51.
22 AYM v AYL [2014] SGCA 46 at [16].
23 Halsbury’s Laws of Singapore, Vol 11 (LexisNexis, 2006 Reissue, 2006), para [130.700].
24 See ibid; Letchme v Gopal [1980] 1 MLJ 143; [1979-80] SLR(R) 347.
25 DB v DC [2004] SGDC 145 at [8].
26 Wong Lai Kum v Lim Khee Tee [2012] SGHC 151.
27 Marychristine Knittel-Hanks (mw) v Kenneth G Hanks [1992] SGHC 332.
28 Chua Chwee Thiam v Lim Annie [1989] SGHC 38.
29 Wong Ser Wan v Ng Cheong Ling [2006] 1 SLR(R) 416; [2005] SGHC 218.
30 Chua Chwee Thiam v Lim Annie [1989] SGHC 38.
31 See TC v TD [2007] SGHC 130.
32 Morris Richard Neil v Morris Carolina Hernandez [2012] SGHC 177.
33 Kishore Shewaram Mohinani v Padmabai d/o Ramchand Ladharam [2013] SGHC 223.
34 Lim Sai Poh v Ting Leh Ming @ Tan Lay Ming [1994] SGHC 196.
35 THG v LGH [1996] 2 SLR 568.
36 TKQ v TKR [2016] SGFC 19.
37 Ibid.
38 Katsuya Nishiyama v Ang Wee Sim Alice (mw) [1994] SGHC 249.
39 See ZI v ZJ [2008] SGDC 377.
40 GAE v GAF [2014] SGDC 237.
41 Katsuya Nishiyama v Ang Wee Sim Alice (mw) [1994] SGHC 249.
42 Tan Huan Eng Agnes Florence v Trevor Symes [2005] SGDC 83.
43 BG v BF [2007] 3 SLR(R) 233; [2007] SGCA 32.
44 AYM v AYL [2014] SGCA 46 at [25]–[26].
45 Tan Sue-Ann Melissa v Lim Siang Bok Dennis [2004] SGCA 27.
46 AYM v AYL [2014] SGCA 46.
47 Ibid.
48 See AXM v AXO [2014] SGCA 13.
49 Malaysian case of Gisela Gertrud Abe v Tan Wee Kiat [1986] 2 MLJ 297, cited in AXM v AXO, ibid at [26].
50 XZ v YA [2008] SGDC 244.
51 See paragraph 77 of the Family Justice Courts Practice Directions 2015.
52 Chew Cheng Swee v Chan Chye Neo [1932] MLJ 5.
53 VP v VQ [2007] SGDC 286 at [16]–[17].
54 Wong Lai Kum v Lim Khee Tee [2012] SGHC 151.

2016 - 10 - 17 PAGE 183

Chapter 08: Ancillary Relief: Rules and Procedure
Chapter 8
Ancillary Relief: Rules and Procedure

Jinny Tan
8.1 Judge-Led Approach 184

A. Range of Powers 184
B. Allocation to an Assigned Judge 184
C. Case Conferences 185
8.2 Practice and Procedure 187
8.3 Pre-Commencement Procedure 187
A. Applications Under Section 94 Women’s Charter 187
B. Applications Under Section 121D Women’s Charter 188
C. Proceedings for Divorce, Judicial Separation and Nullity 189
8.4 Commencement of Divorce Proceedings 190
A. Writ for Divorce, Judicial Separation or Nullity 190
B. Service of Writ 192
1. Within jurisdiction 192
2. Outside jurisdiction 193
3. Substituted service 194
4. Dispensation of service 195
C. Memorandum of Appearance 195
8.5 Uncontested Divorce Proceedings 196
A. Simplified Uncontested Divorce Proceedings 196
B. Other Uncontested Divorce Proceedings 197
1. Attendance dispensed with 197
2. Attendance in open court hearings 198
8.6 Contested Divorce Proceedings 199
8.7 Withdrawal or Discontinuance 200
8.8 Ancillary Matters 201
A. Affidavits of Assets and Means 201
B. Discovery of Documents 203
C. Interrogatories 204
E. Hearing of Ancillary Matters 206
8.9 Final Judgment 207
8.1 JUDGE-LED APPROACH

[8.1.1] The Family Justice Courts (“FJC”) were established on October 1, 2014. The overarching purpose of the case management of the
FJC is to facilitate the just resolution of disputes according to law as inexpensively and as efficiently as possible with the least acrimony.
[8.1.2] When dealing with any cause or matter, the court adopts a judge-led approach to identify the relevant issues in the cause or
matter and ensure that the relevant evidence is adduced by the parties to the cause or matter. 1
A. Range of Powers
[8.1.3] In adopting such an approach, the court may, at any time after the commencement or at the hearing of any proceedings, of its
own motion or on an application by any party to the proceedings, direct any party or parties to those proceedings to appear before it, for
the court to make such order or give such direction as it thinks fit for the just, expeditious and economical disposal of the cause or
matter. 2
[8.1.4] The directions that the court may give include directing party or parties to attend mediation or counselling or participate in
family support programmes, adducing evidence relevant to the proceedings, giving of evidence orally or by affidavit, limiting the
number of affidavits and calling of witnesses. 3
[8.1.5] The FJC can also dismiss the action, strike out the defence or counterclaim or make any orders it thinks fit if any party fails to
comply with any order or directions made. 4
B. Allocation to an Assigned Judge

[8.1.6] Any case before the FJC may be placed in different tracks bearing in mind the main issues of the case. Possible tracks assigned
are:
1. Child track in which the main issues relate to custody, care and control and access of the children;
2. International track in which the main issue may involve possible abduction of children or relocation issues or issues of
appropriate jurisdiction;
3. High conflict track in which the main issues are financial and the ascertainment of value and extent of the matrimonial assets
amenable for division; and
4. Violence track in which the issue is one of physical or mental abuse. 5
[8.1.7] A case may be assigned to one or more tracks. 6
[8.1.8] Each case will then be allocated to a judge (assigned judge) who will be responsible for managing the case until final disposition.
7 The assigned judge can make orders about the way in which the case is managed or prepared for hearing, including referrals to
mediation or other alternative dispute resolutions. 8

[8.1.9] The assigned judge shall have regard to identifying and narrowing the issues in dispute as early as possible, ascertaining the
degree of difficulty or complexity of the issues, setting a hearing date early, minimising unnecessary interlocutory steps by permitting
only interlocutory steps that are directed to identifying, narrowing or resolving the issues in dispute and exploring options for
alternative dispute resolution as early as practicable. 9
C. Case Conferences
[8.1.10] Case conferences are convened to monitor the progress of the case in preparation, resolve emerging procedural and other
issues and to make any necessary directions or orders. 10
[8.1.11] At case conferences, 11 lawyers are expected to update the court on the service of the writ, status of the filing of all necessary
documents, likelihood of settlement and the court will give the necessary directions as and when required. 12
[8.1.12] The principal solicitors having conduct of the case are required to personally attend the case conferences. They have to be
thoroughly prepared to discuss all relevant matters, as the Registrar conducting the case conferences will take a holistic approach to the
case and consider all the relevant matters relating to the case. 13
[8.1.13] If the defendant has filed a Memorandum of Appearance, the first case conference is usually convened shortly after the time
had expired for the filing of the defence. If there are children to the marriage, the court will direct parties to attend a Family Dispute
Resolution Conference. Directions will be given by the court on the exchange of relevant documents and proposals before parties attend
the Family Dispute Resolution Conference.
[8.1.14] If there are no children, directions would then be given on the matter (regarding the filing of pleadings, affidavits or other
documents) so that the case can proceed expediently for a hearing, whether on a contested or uncontested basis. If the divorce is
contested, and all the papers are in order, the court will fix the matter for hearing.
[8.1.15] After the grant of the interim judgment, case conferences are convened to monitor the progress so that it can proceed
expeditiously for a hearing on the ancillary matters. Directions will be given on the filing of the Affidavits of Assets and Means and
discovery and/or interrogatories requests.
[8.1.16] At any time before the commencement of the hearing of the contested ancillary matters, where it is necessary to do, the court
may direct parties to file a Summary of Relevant Information, which states the contested issues and the net value of the assets. 14
[8.1.17] Where interlocutory applications have been filed, case conferences are also convened to give the necessary directions for
preparation of affidavits and submissions before a hearing date for the summons is given.
[8.1.18] At any stage of the proceedings, the court can direct the parties to attend mediation.
8.2 PRACTICE AND PROCEDURE
[8.2.1] The Family Justice Rules 2014 apply to all proceedings in the Family Division of the High Court, the Family Courts and the Youth
Courts. The Family Justice Courts Practice Directions 2015 set out the procedural guidelines.
[8.2.2] Templates of court documents (forms) are set out in the Family Justice Courts Practice Directions 2015 and also on the FJC
website.
8.3 PRE-COMMENCEMENT PROCEDURE
A. Applications Under Section 94 Women’s Charter

[8.3.1] Section 94 of the Women’s Charter (Cap 353) (the “Charter”) provides that no writ for divorce shall be filed in court unless at the
date of the filing of the writ, three years have passed since the date of the marriage.
[8.3.2] If a party wishes to file a divorce notwithstanding the fact that it is still within three years since the date of marriage, leave of
court is required. 15 The applicant must show that the case is one of exceptional hardship suffered by the plaintiff or of exceptional
depravity on the part of the defendant.
[8.3.3] Such application 16 must be made by an originating summons in Form 1. 17 The originating summons has to be filed together
with a supporting affidavit, exhibiting the proposed statement of claim and statement of particulars, stating:
1. The grounds of the application;

2. Particulars of the hardship or depravity alleged;
3. Whether there has been any previous application for leave;
4. Whether any and if so, what attempts at reconciliation have been made;
5. Particulars of any circumstances which may assist the court in determining whether there is reasonable probability of
reconciliation between the parties; and
6. Date of birth of each of the parties.
[8.3.4] Once the documents have been filed, the originating summons, the supporting affidavit and a copy of the Notice of Proceedings
18 must be served on the defendant at least five clear days before the date of the case conference or hearing. 19
B. Applications Under Section 121D Women’s Charter

[8.3.5] Where a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial
or other proceedings in a foreign country and the divorce, annulment or judicial separation is entitled to be recognised as valid in
Singapore under Singapore law, either party to the marriage may apply to the court for an order for financial relief. 20
[8.3.6] Leave of court has to be obtained before an application can be made for an order for financial relief. 21
[8.3.7] Such application for leave must be made by way of an originating summons. 22 The originating summons 23 is to be supported by
an affidavit, stating: 24
1. Particulars of the parties to the proceedings;

2. Particulars relating to the dissolution or annulment of the marriage or the parties’ legal separation in the foreign country and
evidence that the divorce, annulment or legal separation is recognised as valid under Singapore law;
3. Particulars of any orders for financial relief made in the foreign country;
4. The ground on which the applicant is relying to give the court jurisdiction to hear the application;
5. Whether there has been any previous application for leave; and
6. The financial relief that is sought in the application.
[8.3.8] The application must also exhibit:
1. A draft copy of the application to be filed under section 121B;

2. Copy of the foreign decree of divorce, annulment of marriage or judicial separation;
3. Any relevant decision or order on the financial relief made by the foreign court; and
4. Any relevant agreement between the parties.
[8.3.9] Once the documents have been filed, the originating summons and the supporting affidavit must be served on the defendant at
least five clear days before the date of the case conference or hearing. 25
C. Proceedings for Divorce, Judicial Separation and Nullity
[8.3.10] Rule 46 of the Family Justice Rules 2014 provides that if there is a Housing & Development Board (“HDB”) matrimonial asset to be
divided, the plaintiff must file, together with the writ (for divorce, judicial separation or nullity of marriage) either an Agreed
Matrimonial Property Plan 26 or a Proposed Matrimonial Property Plan. 27
[8.3.11] Before the filing of an Agreed Matrimonial Property Plan, the plaintiff must serve the Agreed Matrimonial Property Plan
together with the “Request for Checking for Eligibility” 28 on HDB. 29
[8.3.12] If there is no agreement between the parties, before the Proposed Matrimonial Property Plan can be prepared, the plaintiff
needs to serve on the HDB at the branch office which is in charge of the estate in which the HDB flat is located, the Standard Query 30
required under rule 46(4) of the Family Justice Rules 2014. If the HDB matrimonial asset is an Agreement for the Lease of an HDB flat,
the HDB Standard Query 31 has to be served on the HDB at the Sales Section at HDB Centre.
[8.3.13] The HDB shall give its written answers to the Standard Query within one month of the service of the query.
[8.3.14] Before filing either the Agreed Matrimonial Property Plan or the Proposed Matrimonial Property Plan, the parties’ Central
Provident Fund (“CPF”) statements should be obtained. 32 The CPF statements must show the amount of CPF monies and the amount of
accrued interest utilised by the party towards the purchase of the HDB flat, the amount of CPF monies standing in the party’s ordinary,
medisave, special and retirement (if any) accounts, whether the CPF member had pledged the HDB flat in lieu of setting aside the
Minimum Sum or any part in his or her CPF retirement account and if yes, the amount of the pledged Minimum Sum and the accrued
interest. 33
8.4 COMMENCEMENT OF DIVORCE PROCEEDINGS
A. Writ for Divorce, Judicial Separation or Nullity
[8.4.1] Every proceeding for divorce, judicial separation or nullity must be commenced by filing a writ. 34
[8.4.2] The writ is valid for 12 months beginning with the date of its issue. 35 If the writ has not been served within the 12 months, the
court may extend the validity of the writ if an application for extension is made to the court. 36 If the writ is extended, the plaintiff must
file a copy of the writ, with the first page marked with a notice of renewal. 37
[8.4.3] Together with the writ, the plaintiff must file: 38
1. Statement of Claim; 39
2. Statement of Particulars; 40
3. (If there are children), parenting plan; 41
4. (If there is an HDB matrimonial asset), a matrimonial property plan; 42 and
5. Notice of Proceedings. 43
[8.4.4] The Statement of Particulars must contain all the particulars of facts pleaded in the Statement of Claim. 44
[8.4.5] There are requirements specified in the Family Justice Courts Practice Directions 2015 which must be observed in the Statement
of Particulars. 45 The main requirements are as follows:
1. If the plaintiff claims that the court has jurisdiction based on domicile and neither the plaintiff nor the defendant is a Singapore
citizen, the basis for claiming domicile in Singapore must be specified in the Statement of Particulars;
2. If the plaintiff claims that the court has jurisdiction based on either party’s or both parties’ habitual residence in Singapore, the
details of the habitual residence, including the address(es) and duration of residence must be specified in the Statement of
Particulars; and
3. If the Statement of Claim pleads facts that are based on separation, the Statement of Particulars must contain details of the
separation, namely:
(a) The date which the parties commenced their separation;
(b) Reasons for both parties’ intention to commence separation;
(c) Duration of separation;
(d) Residential address of each party during the period of separation (if known); and
(e) If the parties have been living in separate households under the same roof for the period of separation, details must be
given on how the parties have been living in separate households.
[8.4.6] If the parties agree on the children’s arrangements, then an Agreed Parenting Plan 46 is to be filed. If there is no agreement
before the filing of the writ, then the plaintiff has to file a Proposed Parenting Plan. 47
[8.4.7] If there is an HDB matrimonial asset to be divided, and if the parties have come to an agreement on the division of the HDB
matrimonial asset, then an Agreed Matrimonial Property Plan 48 and the Particulars of Arrangements for Housing 49 must be filed
together with the writ.
[8.4.8] If there is no agreement on the division of the HDB matrimonial asset, the plaintiff needs to file a Proposed Matrimonial Property
Plan 50 together with the Particulars of Arrangement for Housing together with the writ. 51
[8.4.9] If the Statement of Claim alleges that the defendant has committed adultery with a person named, the person named must be
made a co-defendant in the action. 52
B. Service of Writ
1. Within jurisdiction
[8.4.10] After the plaintiff has filed the writ, the writ must be personally served or served by way of registered post to the defendant. 53
The writ must be served together with the Statement of Claim, Statement of Particulars, Acknowledgement of Service 54 and a
Memorandum of Appearance. 55 Where there are children to the marriage, the parenting plan must also be served. If there is an HDB
matrimonial asset to be divided, the matrimonial property plan must also be served on the defendant.
[8.4.11] If there is a co-defendant named in the writ, the plaintiff must also serve the writ on the co-defendant, 56 personally or by
registered post, together with the Statement of Claim, Statement of Particulars, Notice of Proceedings, 57 Acknowledgement of Service 58
and Memorandum of Appearance. 59
[8.4.12] If the defendant or co-defendant is represented by solicitors, the solicitors can accept service on the defendant’s or co-
defendant’s behalf. Once the document is endorsed by the defendant’s or co-defendant’s solicitors, the document is deemed to have been
duly served on the date which the endorsement was made. 60
[8.4.13] In order for a document to be deemed to have been served by registered post, 61 the document must be sent by prepaid
registered post to the party and the party has to sign and return an Acknowledgement of Service to the plaintiff’s solicitor or to the
plaintiff in person at the plaintiff’s address of service. 62
2. Outside jurisdiction
[8.4.14] The writ together with the other documents can be served personally or by registered post out of jurisdiction without leave. 63
[8.4.15] In order for a document to be deemed to have been served by registered post, 64 the document must be sent by prepaid
registered post to the party and the party has to sign and return an Acknowledgement of Service to the plaintiff’s solicitor or to the
plaintiff in person at the plaintiff’s address of service. 65 If the Acknowledgement of Service is not signed and/or not returned to the
plaintiff, the plaintiff would have to consider other forms of service.
[8.4.16] The time limited for appearance to be endorsed on the writ or entered in any notice accompanying the writ must be 21 days
after the service of the writ. 66
3. Substituted service
[8.4.17] If the plaintiff is unable to serve the writ personally or by registered post as required under rule 48, the plaintiff may apply for
leave for substituted service with another mode of service or with notice of proceedings by advertisement. 67 This is done by filing an ex
parte summons supported by an affidavit setting out the grounds of the application.
[8.4.18] Two reasonable attempts at personal service should be made before an application for an order for substituted service is filed.
In the supporting affidavit, the dates, times and outcomes of the attempts must be stated, and also why the applicant believes that such
attempts made were reasonable. 68
[8.4.19] There are different modes of substituted service which can be ordered by the court:
1. Posting on the front door at the defendant’s last known address;

2. Prepaid AR registered post/ordinary post;
3. Email; and
4. Advertisement.
[8.4.20] The Family Justice Courts Practice Directions 2015 specify the details required in the supporting affidavit for each respective
mode of substituted service. 69
[8.4.21] If leave is given to substitute the mode of service with notice of proceedings by advertisement, the form of advertisement must
be in accordance with Form 19. 70
4. Dispensation of service
[8.4.22] If the plaintiff is unable to serve the writ, the court may, in an appropriate case, dispense with the service on the defendant. 71
Once an order is made, the document shall for that purpose be deemed to have been duly served. An application for dispensation of
service is done by way of filing a summons, supported by an affidavit.
[8.4.23] Before an application for dispensation of service can be granted, the plaintiff must make attempts to locate the defendant by
contacting the defendant’s friends, relatives, and employer(s) in order to discover the address at which the defendant is residing. The
affidavit in support must also explain why an advertisement would not be effective in bringing the divorce proceedings to the
defendant’s notice.
[8.4.24] The Family Justice Courts Practice Directions 2015 specify the details which are required in the supporting affidavit for
dispensation of service. 72
C. Memorandum of Appearance
[8.4.25] A defendant who has been served with the writ may file a Memorandum of Appearance and defend it by a solicitor or in
person. The Memorandum of Appearance 73 needs to contain an address for service within jurisdiction and needs to state if the
defendant is contesting the divorce proceedings.
[8.4.26] A co-defendant who has been served may file a Memorandum of Appearance and defend it by a solicitor or in person. The
Memorandum of Appearance 74 also needs to contain an address for service within jurisdiction and states whether the co-defendant
intends to defend the action by denying the allegations.

[8.4.27] A defendant who wishes to defend all or any of the allegations made in the Statement of Claim must, within 14 days after the
expiration of the time limited for the filing of the Memorandum of Appearance, file a defence. 76
[8.4.28] A co-defendant who wishes to defend all or any of the allegations must also within 14 days after the expiration of the time
limited for the filing of the Memorandum of Appearance file a defence. 77
[8.4.29] If a defendant wishes to apply for a divorce, judicial separation or nullity in addition to defending all or any of the allegations in
the Statement of Claim, he or she must file a defence and a counterclaim 78 within 14 days after the expiration of the time limited for the
filing of the Memorandum of Appearance.
[8.4.30] If the defendant had been served with a Proposed Parenting Plan, he or she should file his or her agreement to the Proposed
Parenting Plan 79 or his or her Proposed Parenting Plan 80 setting out the defendant’s own proposals for the welfare of every dependent
child.
[8.4.31] If a Proposed Matrimonial Property Plan has been served on the defendant, the defendant must obtain his or her relevant CPF
documents and file his or her agreement to the Proposed Matrimonial Property Plan 81 or his or her own proposal in relation to the HDB
matrimonial asset. 82
[8.4.32] After 14 days after the service of the defence or the defence and counterclaim, the plaintiff has to file a Reply or a Reply and
Defence to Counterclaim. 83 The defendant may file a Reply to Defence to Counterclaim within 14 days after the service of the Reply and
Defence to Counterclaim. 84 Where a defendant in Counterclaim or a person named in the Counterclaim has filed a Defence to
Counterclaim, the defendant may file a Reply to Defence to Counterclaim within 14 days after service of the Defence to Counterclaim.
8.5 UNCONTESTED DIVORCE PROCEEDINGS
A. Simplified Uncontested Divorce Proceedings

[8.5.1] In order to simplify and expedite the process of uncontested divorce proceedings, where parties to any divorce proceedings,
having reached an agreement to proceed with the divorce proceedings on an uncontested basis and having also agreed on the various
issues relating to the ancillary matters, there is a simplified hearing track which can be requested by the parties. 85
[8.5.2] This simplified hearing track is available when the parties have reached an agreement through a Collaborative Family Practice
process (conducted by the Singapore Mediation Centre or through private mediators) or they have negotiated privately and reached an
agreement with or without the assistance of counsel.
[8.5.3] In order to apply for the simplified uncontested divorce proceedings, the applicant must select “simplified type of filing” when
filing the divorce proceedings. There are also specific documents, which must be filed together with the writ for divorce. 86
[8.5.4] In particular, the agreed terms must be typed into the template fields for the ancillary prayers as part of the orders sought for the
ancillary issues. The Statement of Particulars must contain the draft interim judgment with the ancillary issues duly signed by both
parties or their respective counsels and the consent from the defendant to the simplified uncontested divorce. 87
B. Other Uncontested Divorce Proceedings
1. Attendance dispensed with

[8.5.5] In uncontested matrimonial proceedings under sections 95 and 101, Part X of the Charter, the court may dispense with the
attendance of counsels and parties at the uncontested divorce hearing. 88
[8.5.6] The party filing the Request for Setting Down Action for Trial on an uncontested basis shall, at the same time, file the following
documents:
1. Where the plaintiff is proceeding on the Statement of Claim, the Affidavit of Evidence-in-Chief 89 to attest the veracity of the
contents found in the Statement of Claim and Statement of Particulars;
2. Where the defendant is proceeding on the counterclaim, the Affidavit of Evidence-in-Chief 90 to attest the veracity of the
contents of the counterclaim;
3. Where there is a private investigator’s report to be adduced as evidence, the Affidavit of Evidence-in-Chief of the private
investigator exhibiting the report;
4. The draft consent order incorporating the terms of the agreement (if any); and
5. The request for dispensation of the parties’ attendance at the uncontested divorce hearing. 91
[8.5.7] If all the documents are in order, the court may proceed to grant the relevant orders in chambers without requiring the
attendance of the parties.
2. Attendance in open court hearings

[8.5.8] In uncontested matrimonial proceedings under sections 105 and 106, Part X of the Charter, the uncontested divorce hearings are
conducted in open court, and the parties’ attendance is required. 92
[8.5.9] The party filing the Request for Setting Down Action for Trial on an uncontested basis shall, at the same time, file the following
documents:
1. Where the plaintiff is proceeding on the Statement of Claim, the Affidavit of Evidence-in-Chief 93 to attest the veracity of the
contents found in the Statement of Claim and Statement of Particulars;
2. Where the defendant is proceeding on the counterclaim, the Affidavit of Evidence-in-Chief 94 to attest the veracity of the
contents of the counterclaim;
3. Where there is a private investigator’s report to be adduced as evidence, the Affidavit of Evidence-in-Chief of the private
investigator exhibiting the report; and
4. The request for the uncontested divorce hearing to be held in open court. 95
[8.5.10] At the open court hearing, the lawyer will need to put to the plaintiff (or the defendant if the divorce is proceeding on the
counterclaim) in the witness box the questions, which will prove the following matters: 96
1. The marriage;
2. The particulars of the children (if any);
3. The ground on which the action is founded; and
4. The reliefs claimed.
[8.5.11] If the parties have reached an agreement on the ancillary matters, and intend to have it recorded at the open court hearing, the
lawyer shall file the draft consent order incorporating the terms of the said agreement at least seven working days prior to the open
court hearing. 97
8.6 CONTESTED DIVORCE PROCEEDINGS
[8.6.1] If the divorce proceedings are contested, an open court hearing will be convened.
[8.6.2] Once all the pleadings are completed, during the case conferences, the court will direct parties to file Affidavits of Evidence-in-
Chief. The parties need to inform the court how many witnesses will be called, and the relevance of the evidence given by each witness.
[8.6.3] The party setting the matter down for trial 98 must file a Notice for Setting Down an Action for Trial, 99 together with a bundle for
the use of the judge, consisting of one copy of the following:
1. The writ;
2. The pleadings (including any affidavits ordered to stand as pleadings), any notice or order for particulars and the particulars
given; and
3. All orders made on the summons for directions.
[8.6.4] Prior to the trial, the lawyers have to prepare the following documents to aid in the conduct of the contested divorce proceedings
and to reduce the time taken in the presentation of cases in court:
1. Bundle of documents (an agreed bundle where possible);

2. Bundle of authorities; and
3. Opening statement. 100
[8.6.5] The contested divorce is heard in an open court trial, with witnesses being put on the stand and cross-examined.
[8.6.6] At the end of the trial, the court will make an order as to whether there are grounds to grant an interim judgment or to dismiss
the claim.
8.7 WITHDRAWAL OR DISCONTINUANCE 101
[8.7.1] If the writ has not been served on the defendant, the plaintiff can discontinue the action without leave of court by filing a Notice
of Discontinuance. 102
[8.7.2] At any time before the trial, if all parties consent, the action may be discontinued without leave of court by filing a Notice of
Discontinuance 103 signed by all parties.
[8.7.3] If there is no consent, then leave of court is required before a party can discontinue an action. The court may grant leave for the
action to be discontinued on such terms as to costs.
8.8 ANCILLARY MATTERS
A. Affidavits of Assets and Means

[8.8.1] If parties were not able to reach an agreement on the ancillary matters prior to the grant of an interim judgment, the court
granting the interim judgment will adjourn the ancillary matters to chambers.
[8.8.2] After the grant of the interim judgment, parties are required to file and exchange an Affidavit of Assets and Means 104 (“AOM”).
The AOM of each party should set out all the relevant information relating to the parties’ income and expenses, assets (held jointly or in
sole name) and contributions towards the matrimonial assets (both direct and indirect contributions). 105
[8.8.3] The parties are also required to exhibit various documents referred to or in support of the information in the AOM. 106 In
particular, the parties are to exhibit (where relevant) the following documents:
1. The parties’ pay slips for the last six months before the filing of the AOM;
2. Evidence of employment, as well as evidence confirming his or her salary;
3. Notice of Assessment of Income for the past three years before the filing of the AOM;
4. A letter confirming that the Official Assignee has no objections to the matrimonial proceedings, the Statement of Affairs and the
latest Income and Expenditure Statement filed with the Official Assignee (if the party is an undischarged bankrupt);
5. Updated CPF statements, showing the contributions made by the parties towards the purchase of any immovable property and
the balance in the parties’ CPF account (if any);
6. Updated CPF Investment Account statements (if any);
7. Central Depository (Pte) Ltd statements (if any);
8. Updated search made with the Accounting and Corporate Regulatory Authority (“ACRA”) in respect of any businesses owned by
the party;
9. Any valuation report or transaction search in respect of any immoveable property owned by the parties;
10. Copy of any tenancy agreement, hire-purchase agreement, insurance policy or any letter from any insurance company showing
the surrender value of any insurance policy of the parties;
11. List of monthly expenses for him or herself and/or the parties’ child(ren);
12. Documents and receipts to prove the monthly expenses of the parties and/or the parties’ child(ren);
13. Updated bank passbooks and/or bank statements (including sole and joint accounts) showing the parties’ banking transactions
and account balances for the last three months before the filing of the AOM; and
14. Any other documents referred to or supporting the information in the AOM.
[8.8.4] On the exchange of the AOM, parties may file and serve a reply affidavit to each other’s AOM.
[8.8.5] Thereafter, no further affidavit shall be received into evidence without leave of court. 107
[8.8.6] An application for leave is to be made by way of summons and supported with an affidavit demonstrating why a reply to the last
round of affidavits is relevant and necessary to the resolution of the ancillary matters. The summons must set out the title and date of
the affidavit to which the applicant wishes to respond and the specific paragraphs of that affidavit which the applicant wishes to
respond to. The supporting affidavit must include a draft of the proposed additional affidavit, as well as highlight the new matters raised
in specific paragraphs which the applicant wishes to respond to, state whether the applicant had an earlier opportunity to address the
court on these new matters raised and the reasons why the applicant’s response would be relevant and material for the just disposition
of the case. 108
[8.8.7] There is a general duty that every party to court proceedings owes to the court to make full and frank disclosure of all relevant
information within his or her knowledge. This also applies to matrimonial proceedings.
[8.8.8] After filing and exchanging the first AOM, if there is insufficient disclosure or information disclosed by one party, the recourse
for the other party would be to ask for further discovery of documents and/or serve interrogatories.
[8.8.9] The Family Justice Rules 2014 set out the procedure in relation to discovery of documents 109 as well as interrogatories. 110
B. Discovery of Documents
[8.8.10] Before an application for discovery is filed, the party seeking the discovery must serve a written request on the other party. 111
[8.8.11] Within 14 days, a response must be served, indicating which documents or class of documents the party is willing to provide
discovery of and in what mode he or she is willing to provide such discovery. The response also should state which documents or class of
documents he or she is not willing or not able to provide discovery of. 112 The documents which the party is willing to provide, must be
provided or made available within 28 days after service of the written request, unless parties have agreed to extend the timeline for
such production of documents. 113
[8.8.12] Sometimes, at case conferences, the court may give directions for the request and responses to be sent by way of a letter instead
of the prescribed forms. The documents to be provided can also be sent to the other party by way of a letter. The court may also give
timelines which differ from the Family Justice Rules 2014.
[8.8.13] If a response is not forthcoming, or if the documents, which the party has agreed to provide, have not been provided, or the
party has notified that he or she is not willing or not able to provide discovery of the documents or the class of documents, a discovery
application can then be taken out. 114
[8.8.14] The application for discovery is in a specified form as prescribed in the Family Justice Courts Practice Directions 2015. 115
[8.8.15] At case conferences, the court may discuss the items which the party has not agreed to provide, and give an indication whether
the items requested for are relevant.
[8.8.16] The court, upon hearing the application, may make an order requiring the party to make an affidavit stating whether the
documents or class of documents requested for, have been in his or her possession, custody or power and if not in his or her possession,
custody, or power, when he or she parted with it and what has become of it. The court may also order the party to exhibit a copy or
copies of the documents or class of documents in an affidavit. 116
[8.8.17] The court will not make an order for discovery in ancillary relief before the granting of the interim judgment or before the AOM
has been filed by the parties unless the order is necessary to prevent the disposal of a party’s assets, or the order is made in conjunction
with an order preventing the disposal of a party’s assets or if there are any other exceptional circumstances which are necessary for the
making of such an order. 117
[8.8.18] The Family Justice Rules 2014 make it very clear that there is a continuing duty for parties to give discovery of all documents
throughout the proceedings. 118
C. Interrogatories
[8.8.19] Before an application for interrogatories is filed, the party seeking the interrogatories must serve a written request on the other
party. 119 Within 14 days, a response must be served, indicating which interrogatories the party is willing to answer and which he or she
is not willing or not able to answer. 120 The answers to the interrogatories must be answered by affidavit within 28 days after service of
the written request, unless parties have agreed to extend the timeline. 121
[8.8.20] If the response is not forthcoming, or if the answers to the interrogatories which the party has agreed to answer have not been
provided, or the party has notified that he or she is not willing or not able to answer any or all of the interrogatories, an application for
interrogatories can then be taken out. 122
[8.8.21] The application for interrogatories is in a specified form as prescribed in the Family Justice Courts Practice Directions 2015. 123
[8.8.22] Similar to discovery applications, at case conferences, the court may discuss the interrogatories which the party has not agreed
to answer, and give an indication whether the interrogatories requested for are relevant.
[8.8.23] The court, upon hearing the application, may make an order requiring the party to answer the interrogatories by an affidavit to
be filed within such period as the court directs. 124
[8.8.24] The court will not make an order for interrogatories in ancillary relief before the granting of the interim judgment or before the
AOM has been filed by the parties unless the order is necessary to prevent the disposal of a party’s assets, or the order is made in
conjunction with an order preventing the disposal of a party’s assets or if there are any other exceptional circumstances which are
necessary for the making of such an order. 125
[8.8.25] If insufficient answers to interrogatories have been served or ordered to have been served, the party administering the
interrogatories may ask for further and better particulars of the answers given. The court may make an order requiring a further
answer either by affidavit or on oral examination. If the person objects to answering any interrogatory on the ground of privilege, he or
she may make the objection in his or her answer.

[8.8.26] Where an order has been made for a party to produce documents and/or provide answers to interrogatories, if there has been a
failure to comply with such orders, he or she shall be liable for committal.
[8.8.27] The party may also not be able to rely on those documents (which he or she had been ordered to produce) except with leave of
court.
[8.8.28] The court may also draw an adverse inference against him or her pursuant to section 116(g) of the Evidence Act (Cap 97). 127
E. Hearing of Ancillary Matters

[8.8.29] When the case is ready for hearing, the parties or their counsels will be directed to file an Ancillary Matters Fact and Position
Sheet. 128 This document sets out each party’s position in relation to the various issues.
[8.8.30] The court will also direct parties to file submissions, which will aid the judge in the hearing of the ancillary matters.
[8.8.31] The hearing of the ancillary matters is usually held in chambers, without the parties’ attendance and submissions are made by
both parties based on the affidavits that have been filed.
[8.8.32] If parties wish to cross-examine any witnesses during the hearing of the ancillary matters, an application will have to be taken
up, supported by an affidavit, giving reasons why cross-examination is required.
[8.8.33] At the end of the hearing, the court will make an order on the ancillary matters.
8.9 FINAL JUDGMENT
[8.9.1] Where the interim judgment contains a consent order relating to the ancillary matters, unless there is an order for an
abridgement of time for the making of an interim judgment final in less than three months, a party can apply to make final an interim
judgment within three months from the date of the interim judgment.
[8.9.2] If the ancillary matters were not resolved before the interim judgment, a party can apply to make final an interim judgment if it
is within one year from the date of the interim judgment or the expiration of three months from the date of the last hearing of the
ancillary matters (whichever is later). If parties fail to extract the final judgment within the specified time, leave of court is required. 129
[8.9.3] The final judgment issued by the FJC will be made in accordance with Form 33. 130
FOOTNOTES
5 Paragraph 6(5) of the Family Justice Courts Practice Directions 2015.
11 Paragraph 86 of the Family Justice Courts Practice Directions 2015.
14 Form 243 Appendix A of the Family Justice Courts Practice Directions 2015.

20 Section 121B of the Charter.
21 Section 121D of the Charter.
29 Rule 46(3) Family Justice Rules 2014.
34 Form 3 Appendix A of the Family Justice Courts Practice Directions 2015; rule 41 Family Justice Rules 2014.
37 Rule 43(4) and (5) of the Family Justice Rules 2014; Form 5 Appendix A of the Family Justice Courts Practice Directions 2015.
41 Form 10 or Form 11 Appendix A of the Family Justice Courts Practice Directions 2015.
42 Forms 12 and 13 or Forms 13 and 14 Appendix A of the Family Justice Courts Practice Directions 2015.

65 Ibid.
77 Ibid.
78 Ibid.

103 Ibid.
108 Paragraph 77(2)–(5) of the Family Justice Courts Practice Directions 2015.
111 Rule 63(4) of the Family Justice Rules 2014; paragraph 80(2) of the Family Justice Courts Practice Directions 2015; Form 233 Appendix A of the Family Justice
Courts Practice Directions 2015.
127 Ibid.

2016 - 10 - 17 PAGE 208

Chapter 09: Trusts and Divorce
Chapter 9
Trusts and Divorce

Randolph Khoo Boo Teck
and
Jonathan Muk Chen Yeen *

A. Trust Terminology 212
B. The Intersection of Trust Law and Divorce Law 213
9.2 When Assets held on Trust become Part of the Pool of Divisible Marital Assets 215
A. Trust Assets as Matrimonial Assets 215
B. Sham Trusts 219
C. Piercing the Corporate Veil of Corporate Trustees 224
D. Trust Assets as Financial Resources under Section 114(1)(a) of the Women’s Charter 232
E. Offshore Trusts 236
F. Substantially Improved Property 238
9.3 Division of Beneficial Interests in a Trust 239
A. Fixed Trusts 239
B. Discretionary Trusts 241
1. Wish letters 241
2. Proprietary interests in a discretionary trust 243
9.4 The Court’s Supervisory Jurisdiction over a Trust 245
A. A Trustee’s Exercise of Discretion 245
1. The extent of a trustee’s discretion 246
2. The Hastings-Bass principle 247
B. The Right to Inspect Trust Documents and the Trustee’s Duty of Confidentiality 248
9.5 Power to Vary the Terms of a Trust 252
9.6 Procedural Matters 254
A. Joinder of Trustees to Divorce Actions 254
B. Injunctions 255
C. Applications to Vary Antenuptial or Postnuptial Settlements 257
9.7 Trusts Beyond the Spectre of Divorce 257
A. The Resulting Trust 257
B. The Constructive Trust 265
1. The common intention constructive trust 265
2. The remedial constructive trust 267
Conclusion
9.8 269
9.1 INTRODUCTION
[9.1.1] The genesis of the trust structure lies in the English law of equity. Some trace its historical origins to the Crusades where knights
departing for the Levant entrusted property to stewards for the years they were away from England to have their lands tended to in their
absence. 1 The law of trust was developed by the Lord Chancellors of England to prevent unconscionable trustees holding legal title to
such property from claiming as their own what they were supposed to hold on behalf of their beneficiaries. 2 The uses of trusts have
since proliferated. Today, they are ubiquitous creatures found all across the world and used for a variety of purposes. 3 They are used
extensively to provide for retirement, friends and family after death or to provide for persons in secret after death. 4 In the financial
industry, trusts are used for a myriad of purposes including wealth management, preservation and investment. 5
[9.1.2] In failed marriages involving financially sophisticated spouses, family judges and lawyers alike have the occasion to encounter
trusts when addressing questions of maintenance and division of matrimonial assets. It is here that the worlds of trust law and family
law collide. 6 Like gravitational force fields, trust law and family law seek to draw the parties’ assets into each other’s orbit. This has led to
a somewhat uneasy coexistence between both fields of law. Family lawyers have remarked unfavourably on “the strict approach
advocated by Chancery judges”. This less than friendly attitude has been reciprocated by some trust lawyers who view family law as
“lacking in curiosity and intellectual rigour” and “painting with an excessively broad brush”. 7
A. Trust Terminology
[9.1.3] The law of trusts is a complex area of law and field of study. It is not the objective of this chapter to provide comprehensive
coverage of the law of trusts. Nevertheless, a clarification as to the meaning and usage of various aspects of trust law referred to and
employed below would be helpful before proceeding further.
[9.1.4] A trust arises when one holds property on another’s behalf. The person holding property on behalf of another is typically known
as the trustee. The trustee holds the legal title to a given trust property. Control and management of the trust lies with the trustee. The
person on whose behalf the property is held is known as the beneficiary. He holds the beneficial title to the property. Beneficiaries have
enjoyment and benefit of the trust. 8 Sometimes, protectors are appointed over a trust. These are usually long-time acquaintances of the
settlor. Protectors are relied upon to enforce performance of discretionary trusts where the settlor has no close connection with the
trustee. 9 They are typically given the power to veto or authorise the trustee’s actions in certain matters. 10 Most of the time, they derive
their powers purely from the trust deed. 11
[9.1.5] A trust arrangement has three fundamental characteristics: (a) it must concern specific property; (b) the property must be held by
trustees subject to legal obligations as to how it is to be used and applied; and (c) the trustees’ obligations must be owed to the
beneficiaries of the trust, who have an entitlement to the trust property. 12 The quintessential expression of a trust is when a person
declares himself or a third party to be a trustee holding property on behalf of another. Such a person is also known as a settlor. A settlor
creates a trust by typically declaring that he holds the property on behalf of certain beneficiaries, or transfers ownership of the property
to a third party for them to hold on trust for beneficiaries. 13 Such trusts may be termed as express trusts.
[9.1.6] Trusts may also be implied. One category of such trusts is known as resulting trusts. They are found to exist even though there is
nothing which expressly evinces any intention on the part of an owner of property to create a trust over the property. Legal
presumptions as to the existence of resulting trusts arise in two situations: first, where A pays B voluntarily, or pays for a property which
is either in B’s sole name, in the joint names of A and B, or where A and B jointly purchase a property and each of them has advanced
payment towards the full purchase price. In the last situation, a resulting trusts exists in favour of A and B in proportion to their
respective payments. In the other examples, a resulting trust arises in favour of A. Secondly, where a property is transferred by A to B on
an express trust but the beneficial interest has not been fully exhausted by the trust. 14 In such a case, there subsists a resulting trust of
the unexhausted beneficial interest in favour of A.
[9.1.7] Another category of implied trusts are known as constructive trusts. Generally, a constructive trust arises in response to a
person’s unconscionable conduct such that equity requires him to hold the property for the benefit of another. 15 An example would be a
thief who possesses stolen property – he would have to hold the property on a constructive trust for the property’s rightful owner.
B. The Intersection of Trust Law and Divorce Law
[9.1.8] Section 112(1) of the Women’s Charter (the “Charter”) 16 grants power to the court to divide matrimonial assets between the parties
to a marriage, order the sale of any such asset, and divide the proceeds of sale of any such asset between the parties in a just and
equitable manner. This is a power which is statutory in origin. 17 The court is required to have regard to all the circumstances of the case
in exercising its powers of division. Additionally, section 112(2) of the Charter specifically lists several factors which the court should
consider in the exercise of such power. 18
[9.1.9] When trust assets fall within the definition of “matrimonial assets” in section 112(1), it would appear that the court is prima facie
at liberty to divide matrimonial property pursuant to its just and equitable jurisdiction. This jurisdiction is based on the deferred
community of property concept. 19 On this view, the court treats all matrimonial assets as community property under which both spouses
have a joint interest in certain property regardless of which spouse acquired the property. 20 This has been said to relate perfectly to the
character of marriage. 21 Spouses are called on in marriage to cooperate in an equal partnership of different efforts for mutual benefit.
Section 46(1) of the Charter provides that spouses “shall be bound” to cooperate with each other in safeguarding the interests of the
marriage union.
[9.1.10] It is entirely understandable that the divorce court’s powers of just and equitable asset division may appear at first blush to be
antithetical to the dictates of an express trust, which might lopsidedly skew the allocation of assets acquired during a marriage in favour
of one spouse or even third parties. The Women’s Charter ensures that the legal spouse will obtain an interest in jointly occupied
property following the dissolution of the marriage whether or not he has an interest in the property. 22 It is therefore imperative to
address the issues that arise from the conjunction of the two domains of trust and divorce law to ensure that inter-spousal trust disputes
are resolved in a principled manner. This chapter examines the following questions:
1. When do assets purportedly held on trust become considered part of a divisible pool of matrimonial assets?
2. Do beneficial interests under a discretionary trust, i.e. one in which the class of beneficiaries is determined at the discretion of
trustees, fall to be divided in a divorce?
3. When does the court exercise direct supervisory jurisdiction over a trust?
4. Can trust settlements be varied by the court?
5. What procedural or remedial measures exist with respect to joining third parties like trustees to divorce proceedings and to
restrain dissipation of trust property?
6. What is the scope for the application of implied trusts in questions of inter-spousal property disputes?
9.2 WHEN ASSETS HELD ON TRUST BECOME PART OF THE POOL OF DIVISIBLE MARITAL ASSETS
A. Trust Assets as Matrimonial Assets

[9.2.1] The scenario under which disputes arise over whether assets ostensibly forming part of an express trust should be made
available for division in a divorce, typically entails one or both of the divorcing spouses being a settlor. It is suggested that the degree of a
settlor’s retention of beneficial ownership in the disputed trust assets is the touchstone in considering whether such assets form part of
the pool of matrimonial assets. The extent to which beneficial ownership of a given asset is retained by the settlor is often manifested by
the degree of control he retains over the asset. In Gaye Williams Nee Marks v Cary Donald Williams, 23 the Singapore High Court was
concerned with deciding whether shares of a company, COL, and its subsidiary, COPL, remained in reality, beneficially owned property
of the husband in the case. The trust established by the husband was purportedly for his three sons. Yet, the terms of the trust reserved to
the husband-settlor the power to direct the trustees to mandatorily remove any beneficiary under the trust. The settlor was further
empowered to add to the trust as a beneficiary anyone chosen at the settlor’s discretion. In deciding to treat the husband as the owner of
COL, Judith Prakash JC (as she then was) held that:
In considering the husband’s position in relation to COL I derive much guidance from the following statements of Scarman LJ in
Robinson v Robinson ...
... “It is a commonplace that very wealthy men arrange their affairs to suit their own legitimate requirements, whether those
requirements be tax, family or any other type of requirement. No man is to be criticized for doing that, and certainly these
courts do not exist to impose this, that or the other financial regime upon a rich man. But these courts must keep their common
sense and they must look to the standard of life that the man nevertheless maintains - in fact, at his whole life style - and one
does not need any very great research into the authorities to observe that the courts have consistently refused to be blinded by
arithmetical science in determining the ability of a rich man to make provision for his wife and children.” ...
Having regard to the extensive powers which the husband has under the instruments of trust to dispose of the trust property in such
manner as he sees fit and to the fact that the trustees, though technically the legal owners of the trust property, take instructions
from him and can be replaced at his whim and fancy, and to the evidence generally (including the husband’s
own attitude to the companies as disclosed in a note he sent to the wife in August 1989), it is right in my judgment that the husband
be treated as the owner of COL (and thus all its assets including its tugboats, COPL and the Queensland land) for the purpose of
determining his financial ability to provide for his wife and children.
[9.2.2] In Marie Eileen Guin Nee Fernandez v Arun Guin (“Marie Eileen Guin”), 24 the Singapore High Court found that a settlor-husband’s
position as to certain assets being supposedly held on trust was contradicted by the fact that he referred to the property settled under the
trust as “my assets”. The court held that “[i]ndeed they were his assets and he never lost control over them”. The court was unimpressed
with the husband’s bare assertion that the trust was a discretionary one over which he had no control. A commentary on this case
suggests that the decision might be explained on the basis of the husband’s lackadaisical conduct – he had failed to comply with
disclosure obligations pursuant to a freezing order made against him. The court concluded that it was “kept in complete darkness and
treated with contempt” by the husband. The commentator evinces discomfort over the robustness of the decision in Marie Eileen Guin by
reiterating the view that where a spouse settles a discretionary trust supported by a wish letter from the settlor that the trust assets be
held for the benefit of the third-party beneficiaries, the settling spouse would have a stronger case in arguing that the trust was no longer
part of his or her asset. 25 He cites the example of AQT v AQU, 26 where the husband had settled a trust known as the “Bemali Trust” in the
same week that he informed his wife he wanted a divorce. The judgment indicated that the beneficial ownership of the assets under the
Bemali Trust belonged neither to the husband nor the wife 27 where the terms of the trust indicated that it was clearly for the benefit of
the children. 28 The court also observed that the wife was not against the Bemali Trust per se, but was concerned about the husband
reneging on his intentions in the future. As the court found that a Memorandum of Settlor’s wishes indicated that the trust was for the
schooling expenses of the children until they completed, among other things, their first degree the wife’s fears were held to be
unfounded. 29
[9.2.3] NI v NJ 30 involved a dispute between a husband and wife in relation to a trust which the husband had constituted on behalf of
two very young children to their marriage. Noting that the sole beneficiaries of the trust were the children, the Singapore High Court was
not inclined to regard the trust as having been created with the primary purpose of reducing the husband’s means of paying
maintenance or depriving the wife of rights in relation to the trust assets. 31 It was also clear that the settlor himself would no longer
derive benefits from the trust assets. 32 Finally, the court was convinced about the sincerity of the husband’s commitment to the children.
It was observed that this was his second marriage. The court found that there was no reason to doubt his emphatic commitment to the
long-term well-being of the children, as evidenced by amongst other factors, the fact that he remained close to his three adult children
from his first marriage. 33
[9.2.4] AQT v AQU was followed in Kwee Lee Fung Ivon v Lim Gordon (“Lim Gordon”). 34 In Lim Gordon, the court had to consider whether
a revocable discretionary trust settled by the husband, under which the potential beneficiaries were him and the children, formed part of
the matrimonial asset pool. 35 The husband contended that the trust was created in order to safeguard the children’s education from the
wife’s “irresponsible, extravagant and spendthrift ways”. 36 The wife contended that the husband was not only the settlor but a
beneficiary of the revocable trust. 37 The High Court held that the trust was not part of the divisible matrimonial property.
[9.2.5] Lim Gordon has been criticised as being a controversial decision. 38 The husband in Lim Gordon had power to revoke the trust.
The case could technically set a precedent for spouses to set up revocable trusts to shield assets from division of matrimonial assets only
to have them revoked upon finalisation of the divorce.
[9.2.6] The Privy Council decision of Tasarruf Mevduati Sigorta Fonu v Merrill Lynch Bank & Trust Co (Cayman) Ltd (“Tasarruf”)
recognised that the judgment’s creditor’s right to revoke the trust meant that he had rights tantamount to ownership over the assets. 39
Tasarruf concerned a claimant who had obtained judgment against a defendant for $30 million. The defendant failed to satisfy the
judgment debt. The claimant subsequently discovered that the defendant had established two discretionary trusts in the Cayman Islands.
The defendant and his wife were the beneficiaries of the trusts. They retained the power to revoke the trust. In the circumstances, the
claimant sought to appoint a receiver by way of equitable execution over the power to revoke the trusts. The claimant also sought an
order that the defendant assign or delegate his power of revocation to the receiver. The Privy Council allowed the claimant’s application.
It held that the judgment creditor’s ability to revoke the trust meant that he could have rights which were tantamount to ownership as
there was no invariable rule that a power was distinct from ownership. The power of revocation was not a fiduciary duty which could
not be delegated as the defendant’s only discretion was in whether to exercise the power in his own favour. 40 A similar position was
taken by the Australian High Court in Kennon v Spry. 41 The Australian apex court held that the assets under a discretionary trust in
which the husband was the settlor and trustee, with a power to appoint additional trustees and to remove trustees and vary the terms of
the trust, constituted part of the matrimonial asset pool. 42
[9.2.7] In Lim Gordon, the husband’s power of revocation could have been, like the judgment creditor in Tasarruf, taken to be indicative
of his “ownership” of the trust assets. A critique of Lim Gordon is therefore that there is a persuasive argument that the trust assets in the
case should have been considered part of the matrimonial assets. 43 Be that as it may, it might be further suggested that Lim Gordon
should be viewed in context of the character of the actors involved, and that the case should not be taken as establishing any specific
principle of law. The court found that the husband had worked extremely tirelessly to maintain and enable the family to live in comfort.
By contrast, the wife was found to have spent whatever her husband earned. 44 The wife was also held to have grossly exaggerated her
contributions and overstated her case, taking liberties with the truth, 45 cheating on the husband with various men, 46 and failing to make
full and frank disclosure of her assets. 47 These factors seemed crucial to the outcome of Lim Gordon. The decision may perhaps be best
understood in the context of an extremely unreasonable wife and an extremely hardworking and reliable husband who was regarded as
being unlikely to exercise the power of revocation in a capricious or arbitrary manner. Whether a presumed circumscribed power of
revocation would serve as a yardstick for differentiating trusts that are susceptible to asset division orders from those that are not,
remains to be seen. What can perhaps be surmised at this point is that the preponderance of authority suggests that the clear divestment
of ownership and control by the settlor, would generally put trust assets outside the pool of divisible matrimonial assets.
[9.2.8] It may be worth noting that nothing in Lim Gordon detracts from the willingness of the courts to claw back assets settled under a
trust for the purposes of depriving the other spouse of maintenance or a share of the matrimonial assets. A key consideration for this has
been the presence of circumstances evincing continuing control and ownership of assets under the putative trust by the settlor. This is
evident from the fact that Lim Gordon was decided with specific reference to AQT v AQU where Lai Siu Chiu J (as she then was)
commented: 48
[I]f the Husband had (just before the divorce) set up a trust for someone completely unrelated to his marriage, eg, his brother, it may
then be just and equitable for the Court to notionally place the [money] back into the pool of matrimonial assets. In fact, s 132 of the
[Women’s Charter] can be used to “claw-back” this asset if the Husband had disposed of it with the object of reducing his means to
pay maintenance or depriving the Wife of any rights in relation to the property ...
B. Sham Trusts
[9.2.9] The preceding discussion concerns cases where retention of ownership and control of trust assets under the formal trust
structures and terms established by the settlor, were crucial factors in determining whether the underlying assets would be treated as
marital assets. We now examine the situation of trusts about which little can be said as to the terms of the trust preserving any levers for
the settlor to pull to re-assert ownership over the trust assets. In such cases, there do not appear to be any easily traversed avenues for
trying to bring the assets under such trusts into the divisible pool of matrimonial assets. One possible argument might be to contend that
the trust is a sham.
[9.2.10] The locus classicus on the subject of sham arrangements is Snook v London and West Riding Investments Ltd. 49 Lord Diplock held
that the sham doctrine referred to acts done or documents executed by the parties to the sham which are intended to give the illusion
that rights and obligations have been created which are different from the actual rights and obligations which the parties intend to
create. 50 The doctrine has been commented to be one of general application. 51 An argument can thus be made that assets under a trust
could be in reality be owned by the settlor and not the trustee. This is more commonly known as the sham trust argument. A discernible
trend for spouses headed for divorce is to raise the sham trust argument in order to increase the assets available within the matrimonial
pool for distribution. 52
[9.2.11] Sham trusts are essentially nominee or bare trust arrangements created in order to deliberately deliver a false impression of
property ownership to third parties and the court. Should the presence of a sham trust be found, the trust will be invalid and
unenforceable. Assets falling within the sham trust will be regarded as belonging to the settlor. Here, the distinction between a sham
trust and a situation where trustees have not discharged their duties properly should be noted. The former results in the trust being
ineffective. The latter involves a validly constituted trust. 53
[9.2.12] Chng Bee Kheng & Anor (executrixes and trustees of the estate of Fock Poh Kum, deceased) v Chng Eng Chye 54 is presently the sole
reported Singapore High Court decision dealing with the issue of sham trusts. The plaintiffs were the executrixes and trustees of their
mother’s estate and the defendant was their brother. The plaintiffs claimed that the defendant was holding a property on trust for their
mother under a trust deed which he had executed. The defendant contended that it was a sham trust created in order to induce creditors
into thinking that their mother beneficially owned the property.
[9.2.13] The High Court observed that the sham trust argument was a very difficult one to make. It held that a very strong presumption
existed that parties intend to be bound by the terms of agreements which they entered into. 55 The court held that in order for a trust to
be a sham, there needs to be a common intention to mislead. It was apposite to ask whether the relevant documents intended to create
legal relationships and whether the parties actually acted according to the apparent purpose and tenor of the documents. 56 The court
further held that the subjective intention of the parties must be inquired into – did they intend for a sham agreement to be made? Here,
the court is unrestricted by the rules which usually govern contractual interpretation – the court can even have recourse to the parties’
subsequent conduct in ascertaining their mutual intention. 57 Further, it was held that the intention to create a sham trust must be
common to both the settlor and the trustee. The beneficiary’s intention is wholly irrelevant in determining whether a trust is a sham
except when a beneficiary’s intention subsequent to the creation of a trust transforms what was a properly constituted trust into a sham.
58
[9.2.14] A sham trust was found to exist in the context of family proceedings on the facts of Minwalla. 59 This case concerned a divorcing
couple that lived in properties acquired under a Panama company controlled by the husband. During the marriage, a trust had been
settled in Jersey (“the Fountain Trust”) with the company being its wholly-owned asset. While the wife continued to live in a London
property, the husband subsequently informed the wife that the company would no longer foot the household bills and that he had
divested all of his assets. A worldwide Mareva injunction was obtained against the husband for £4 million, and the husband was also
ordered to file an affidavit disclosing all his assets. The orders were breached by the husband. The wife applied for ancillary relief,
contending that the Fountain Trust was a sham. The husband asserted that he had no beneficial interest in the trust.
[9.2.15] The husband’s arguments were rejected by the court. There was a significant amount of documentary evidence attesting to the
husband’s ownership of the Fountain Trust. He was shown to have total control over his assets. 60 The court found that the trust assets
formed part of the husband’s financial resources. But Singer J did not stop there. The court went further to consider whether the trust
was a sham. In this regard, it referred to an academic paper in 2004 which stated that: 61
In order for a trust to be found a sham, both of the parties to the establishment of the trust (that is to say the settlor and the trustees
in the usual case) must intend not to act on the terms of the trust deed. Alternatively in the case where one party intends not to act on
the terms of the trust deed, the other party must at least be prepared to go along with the intentions of the shammer neither knowing
[nor] caring about what they are signing or the transactions they are carrying out.
[9.2.16] The English High Court found that the Fountain Trust was a sham as, 62 inter alia, the husband had treated the bank accounts of
the Panama company as his own. 63 Little proper accounting was done by the Panama company. 64 The husband had total investment
control over the company. 65 The husband could not even be sure which bank accounts were operative. 66 For these reasons, Singer J had
“no hesitation” in concluding that the husband never had any intention of respecting even the formalities of the structures that he had set
up and the only purpose which he had was to set up a front to protect his resources from other claims or unwelcome scrutiny and
investigation – his intention was always that the resources would be his. 67 And as the trustees went along with his intentions and never
reined him in, they too were privy to the sham. 68
[9.2.17] This decision has been criticised for two reasons. 69 First, it was said that the English High Court overstepped its boundaries in
pronouncing a Jersey trust a sham. Secondly, the decision was said to evince a misunderstanding of the law of sham. It has been said that
the requirement of a common intention requires more than just passive acquiescence with the settlor’s wishes. In CI Law Trustees Ltd v
Minwalla, 70 reckless indifference on the part of the trustee was held to be required. The mere fact that a trustee agrees with the settlor or
beneficiary concerning a course of action cannot lead to the inference that he had failed to exercise his discretion independently as the
focus is on the substance of the decision-making process. 71 On the facts of Minwalla, 72 it is questionable whether the requirement of
reckless indifference by the trustee had been fulfilled. There was evidence in that case that the trustee had regarded the husband as the
protector of the trust and the de facto principal beneficiary of it. 73 Moreover, while the husband’s use of the trust monies at his own will
might lead to assets of the trust being regarded as part of his financial resources, it is doubtful whether the requirement of a common
intention between the settlor and the trustee that the trust be a sham had been met. It has also been said that in certain circumstances, a
trust over which the settlor retains extensive control cannot be said to be a sham trust. An example of this is where the trustee does not
share in the settlor’s deceitful intention. 74 As there was evidence that the trustee in Minwalla had regarded the husband as the trust’s
protector and its de facto principal beneficiary, the trustee’s actions might not have been motivated by a common intention to effect a
sham trust.
[9.2.18] The sham trust argument was further explored in A v A and St Georges Trustees Ltd (“St Georges Trustees”). 75 This case involved
a wife who had commenced divorce proceedings and applied for ancillary relief from the courts. No children were born to the marriage,
but both parties had children from their previous marriages. At the heart of the dispute were three companies, one of which owned and
operated a chicken-processing plant. While 46% of the chicken-processing company was owned by the couple and the husband’s son, 54%
was held in two separate trusts. The first was created by the husband’s parents (“the Parents’ Discretionary Trust”). The other was created
by the husband’s brother. The trusts were run by the intervener trustee company, which had taken over from a previous trustee
company.
[9.2.19] The wife’s case was that the husband had absolute control over the trusts and treated the shares in the company which were
held by the trusts as his own. She then contended that it was a sham used to assist him in his first divorce. She also asserted that the
trustees had assumed their role on the basis that the husband was the real owner of the shares.
[9.2.20] The English High Court held in favour of the husband. It dismissed the wife’s allegations as it found insufficient evidence that the
trusts were shams. Further, it held that: 76
1. A trust which is not initially a sham cannot later turn into a sham. Once property is properly settled under a trust, it cannot lose
its character as trust property.
2. A trustee’s failure to perform his duties or the terms of the trust simply amounts to a breach of trust. The only way a properly
constituted trust can turn into a sham would be if the beneficiaries join together for that purpose with the trustees.
3. A sham trust can subsequently lose its sham character when a new trustee exercises his powers and fulfils his duties in
accordance with the trust instrument.
[9.2.21] It has been commented that the analysis in St Georges Trustees is incorrect as it did not consider the ramifications of the settlor’s
intention or lack of it in the creation of a valid trust. 77 If the trust is a sham at its inception, the consequence is that the trust was never
valid to begin with. As such, the fact that a later trustee was appointed to manage the assets is said to be beside the point. Significant
problems would also arise if the settlor died prior to the appointment of the new trustees. 78 Therefore it is argued that merely appointing
new trustees or a change of heart by the original trustees cannot cure a sham arrangement no matter how good the trustees’ intentions
are. 79 Given the jurisprudential objections to the analysis in St Georges Trustees, it remains an open question whether the Singapore
courts will agree with the English court’s views.
C. Piercing the Corporate Veil of Corporate Trustees
[9.2.22] A corporate veil may be lifted if a person has used a given company as his alter ego or a “mere extension” of himself. 80 The
jurisdiction has been described as “an extremely narrow one.” 81 Where trusts are settled under companies, spouses have sought to
pierce the corporate veil of trustee companies to increase the quantum of matrimonial assets for distribution or the financial resources of
the other party to be accounted for in the asset division exercise. This is once again symptomatic of the tension that underlies the law of
trusts and family law where one spouse seeks to uphold the trust structure whilst the other tries to cast as wide a net as possible over the
assets available for division before the court. 82
[9.2.23] In Yeo Chong Lin v Tay Ang Choo Nancy & Anor (“Yeo Chong Lin”), 83 the wife sought to pierce the corporate veil by arguing that
the husband was the alter ego of Yeo Holding Pte Ltd (“Yeo Holding”). The wife’s case was that the husband was the alter ego of Yeo
Holding and must be treated as the beneficial owner of the shares. 84 The High Court had included the shares held by the husband, the
daughters and the son into the matrimonial asset pool as Yeo Holding had been found to be the alter ego of the husband. 85 Subsequently,
the daughters filed a writ to have the ownership of their shares determined. On appeal, the husband’s case was that his daughters were
holding the shares on him as bare trustees as they had not provided consideration for them. 86 He was driven to take this position, as he
formed the view the daughters were colluding with the wife in trying to get some of the shares classified as matrimonial property. 87
[9.2.24] The High Court in Yeo Chong Lin relied on the English High Court case of W v H 88 for the proposition that “where property is
vested in a one-man company which is the alter ego of the husband, the Family Division will pierce the corporate veil, disregard the
corporate ownership and, without requiring the company to be joined as a party, make an order which has the same effect as the order
that would be made if the property was vested in the husband”. 89 The Court of Appeal, however, disagreed. It reversed the High Court
decision. It held that first, the status of the daughters’ beneficial ownership of shares in Yeo Holding was a matter to be determined in a
civil suit which had been commenced shortly after the High Court decision. 90 The court considered it unfair to the daughters to
determine the matter without them intervening in the divorce or them filing an affidavit to respond to their father’s claims that they
were bare trustees of the shares. 91 Secondly, the facts suggested that the husband had given the shares to his son in recognition of the
son’s hard work in the company. 92 Thus, it would be wrong to include the son’s shares as part of the matrimonial assets. 93
[9.2.25] The Court of Appeal further disagreed with the wife’s reliance on W v H as the company in that case had already been
considered as the alter ego of the husband. The English court was able to pierce the corporate veil to grant interlocutory relief in respect
of a property held by the husband’s company to preserve the status quo. 94 The decision whether the shares were indeed property of the
husband, was reserved to the hearing of the ancillary matters between the husband and the wife. It appears that the key difference lay in
the fact that the court was not asked to pronounce on the ownership of shares in W v H. On the other hand, the Singapore High Court in
Yeo Chong Lin had to address the question squarely before granting the relief sought. 95
[9.2.26] The feasibility of making an argument to pierce the corporate veil is now increasingly in doubt after the UK Supreme Court’s
decision in Prest v Petrodel Resources Ltd & Ors (“Prest”). In Prest, Lord Sumption JSC emphasised that “if it is not necessary to pierce the
corporate veil, it is not appropriate to do so.” 96 This decision has been criticised as relegating the remedy to one of last resort. 97 While
the position has not been expressly adopted locally, Prest has been referred to in several local judgments. 98 Specifically, it was relied
upon by the wife in argument in a recent case of TDS v TDT. 99 However, as the Family Division of the High Court had made other
findings which were determinative of the matter, it declined to make a ruling on the wife’s argument which relied on Prest. 100 Debbie
Ong JC also considered in any event that there was insufficient evidence before her to lift the corporate veil. 101
[9.2.27] The husband in Prest had been employed by several major oil-trading companies. He began to run his own group of companies
in 2001. Petrodel Resources Ltd (“PRL”), a company wholly-managed by the husband, was described as a property investment company. It
held the title to the matrimonial home and five residential investment properties in London. It also acted as a funding mechanism for
property purchases for other companies in the group. 102 The companies owned by the husband had failed to file their defence or comply
with disclosure obligations. The wife alleged that the husband had failed to comply with his obligation to make full and frank disclosure
of his financial position.
[9.2.28] Lord Sumption JSC observed that there were three possible legal bases through which the wife could succeed in obtaining relief.
First, the court might choose to disregard the corporate veil on the facts. Secondly, section 24 of the Matrimonial Causes Act 1973 103
could be seen as giving the court a power to disregard the corporate veil in divorce matters. Thirdly, the companies might be regarded as
holding the assets on resulting trust for the husband. 104
[9.2.29] Lord Sumption JSC’s leading judgment first recognised that companies were legally distinct entities from their shareholders
which possessed distinct rights and liabilities. He held that this was as much the case for companies which were wholly-owned and
controlled by one person. 105 Lord Sumption JSC also observed that the Family Division of the English courts had pursued a more liberal
approach to the piercing of the corporate veil. He reasoned that this might have stemmed from its concern to effect its statutory
jurisdiction to distribute matrimonial assets upon a divorce. 106 In Mubarak v Mubarak, 107 for instance, Bodey J held that the Family
Division would not just lift the corporate veil where the company was a sham but also where it was just and necessary to do so. This very
same reasoning had been rejected by the English Court of Appeal in Adams v Cape Industries plc. 108 The question thus arose whether the
corporate veil should be more readily pierced in matrimonial proceedings.
[9.2.30] Lord Sumption JSC answered the question in the negative. Two underlying principles were identified by him – the concealment
principle which refers to companies being used to conceal the identity of the real actors behind them, 109 and the evasion principle,
which entitles the court to disregard the corporate veil if a legal right arose against the person in charge of it independently of the
company’s involvement but where enforcement is frustrated by the interposition of a company. 110 Prest decides that only the evasion
principle justifies the piercing of the corporate veil.
[9.2.31] The UK Supreme Court was unanimous that while the husband had misapplied the companies’ assets for his own benefit, he was
neither concealing nor evading any legal obligation owed to his wife. He was also not concealing his assets from the court or evading his
legal obligations. The legal interest in the properties had been vested in the companies long before the marriage broke down. There was
also no evidence that the husband was seeking to avoid any obligations relevant to the proceedings. There was therefore no justification
for the piercing of the corporate veil. 111 The UK Supreme Court also held that no special and wider principle in this respect applied in the
context of matrimonial proceedings. 112 Of importance is the fact that while the wife failed in respect of piercing the corporate veil, she
succeeded in showing that the assets held by the companies were beneficially owned by the husband so that they held it for him on
resulting trust. 113
[9.2.32] The responses to Lord Sumption JSC’s judgment in Prest seem largely in agreement that alternative causes of actions must now
be prioritised over the corporate veil argument. 114 This is empirically evident in subsequent English case law where Prest was applied in
two later English matrimonial decisions, M v M 115 and MA v SK. 116 The first concerned a dispute over some English properties held in
the names of companies which were effectively controlled by the husband. The question was whether these companies held the
properties on trust for the husband. The wife’s cognisance of the futility of the corporate veil argument was evident as she premised her
case strongly on the existence of a resulting trust over the properties emanating from the companies to the husband. 117
[9.2.33] In M v M, a presumption of resulting trust was held to arise on the facts. The husband had earlier admitted in an affidavit that he
effectively owned the properties. The evidence to show that the arrangement was for tax mitigation purposes was unconvincing. 118
Instead, it was more likely that the husband had placed the properties in the name of the companies in order to hide his beneficial
interest in the property and defeat the wife’s claims. This was because the properties were purchased using the husband’s monies. The
companies also did not list the properties as their assets. Adverse inferences were drawn from the company directors’ failure to make
proper disclosure or attend court to give evidence. 119
[9.2.34] The English High Court in M v M also made a finding that the husband was the shadow director of the companies. He was held to
be at all times the directing mind and will of each of the companies – he alone made the decisions relating to the purchase and operation
of the companies. The company directors were found to be merely his nominees. 120 While the language of shadow directors and
“directing mind and will” is more commonly found in cases involving piercing the corporate veil and attribution of liability, 121 these
were used in M v M in the context of the resulting trust argument. In the words of Eleanor King J, “[it] would be inimical to the public
interest described by Lord Sumption if a husband was able, as the directing mind and will of a company, to resist a claim from himself as
the purchaser of the properties for a declaration that he holds the beneficial interest in the properties by way of resulting trust and
thereby defeat the legitimate claims of the wife.” It may, however, still be possible to pierce the corporate veil if this was indeed the case –
as one commentator observed, the court ultimately expressed no concluded view on the corporate veil argument given that it found for
the wife on the resulting trust argument. 122
[9.2.35] MA v SK concerned a wife’s claim relating to the ownership of several properties. One of these was a London property held by S
Investments, a company controlled by her husband. The court found that the husband was the beneficial owner of the properties held by
S Investments. The husband had paid for the purchase price of the properties. The company had indicated in its accounts that it had no
assets. Bearer shares were used by the company and the husband acknowledged that he was the beneficial owner over French properties
which were held in similar structures. 123
[9.2.36] Evidently the English courts will now resort to a range of private law solutions as long as the corporate veil is not pierced and
justice is served to the wife. 124 Prest has also led to counter arguments that spouses seeking to protect their assets from the jurisdiction
of the courts now know what has to be done to ensure that the company’s holding of the assets appears legitimate. 125 Whether the view
of Lord Sumption JSC in Prest will be followed in Singapore remains an open question. It would appear at the moment that Singapore
courts appear to be more willing to consider arguments on piercing the corporate veil. It has been argued that Singapore courts have
adopted a broader approach to piercing the corporate veil than the English courts in four respects: (a) the phrase has a broader meaning;
(b) there are more grounds on which the remedy is available; (c) it has broader effect; and (d) it is not a principle of last resort in
Singapore. 126 The examples of Alwie Handoyo v Tjong Very Sumito 127 and Raffles Town Club Pte Ltd v Lim Eng Hock Peter 128 have been
cited as indicators of the Singapore courts’ thinking on the subject. In the former case, the Court of Appeal identified two grounds on
which the corporate veil could be pierced, viz, a company used as a “device, sham or façade”, and a company which was the alter ego of
its controller. 129 In the latter situation, the Court of Appeal held that the corporate veil should not be used to protect unconscionable
directors of a claimant company acting in bad faith by using the company as a nominee to sue the defendants. 130 On the other hand,
restricting lifting of the corporate veil only to cases involving an evasion of liability might still find favour in Singapore. The Singapore
High Court has recognised that the “directing mind or will” or “alter ego” doctrines are means by which one person’s acts or omissions are
attributable to another, as distinct from lifting the corporate veil. 131 This could lay the foundation for the development of a legal position
where the corporate veil is only pierced if the evasion principle is engaged.
[9.2.37] Locally, existing authority before Prest suggests that the corporate veil seems to have been more easily lifted in the context of
family proceedings. For instance, the High Court found in Lee Chung Meng Joseph v Krygsman Juliet Angela 132 that director’s fees which
were owed to the husband should be regarded as part of the matrimonial assets as he was effectively the alter ego of a company in which
he had a 50% share. The rest of the company was owned by his sister. As such, whether the company could pay him or not was an issue
which could be easily decided unanimously with his sister. 133 With respect, the Singapore High Court might have shared the same
philosophy held by the English Court of Appeal in Nicholas v Nicholas 134 where Dillon LJ said that “[i]f the company was [a] one man
company and the alter ego of the husband, I would have no difficulty in holding that there was power to order a transfer of the property.”
135
[9.2.38] It is submitted however that there are good reasons for a more restrictive application of the corporate veil doctrine in the family
context. It has been argued that Lord Sumption JSC was concerned in Prest about piercing the corporate veil too readily in the family
context. 136 Since what is sauce for the goose is also sauce for the gander, so the argument goes, greater veil-piercing power can result in
trusts settled under companies by honest spouses being pierced unwittingly. Concerns that the strict application of commercial principles
might enable errant spouses to hide their assets behind companies can be assuaged by the point that this scenario arguably falls within
the evasion principle espoused by Lord Sumption JSC. Such a scenario may therefore be regarded as a classic case warranting a piercing
of the corporate veil, although the overriding focus must always be the spouse’s evasion of his legal obligations in matrimonial
proceedings.
[9.2.39] In light of developments in this area, it may well be prudent to pay heed to alternative bases by which a court can determine that
assets of a company belong personally to a spouse. 137 One such alternative is where the company’s property forms part of the
matrimonial asset pool by virtue of it having been built up during the course of the marriage. This was in fact the Court of Appeal’s
finding in NK v NL, 138 where the husband’s company’s assets were included as part of the matrimonial assets by virtue of its having been
built up during the marriage. 139 The Court of Appeal was cautious to clarify that it was not lifting the corporate veil. 140
D. Trust Assets as Financial Resources under Section 114(1)(a) of the Women’s Charter
[9.2.40] Where a spouse wishes to claim a share of the trust assets but cannot show that the trust amounts to a settlement which can be
varied, it can still be argued that the trust assets are a “financial resource” available to the other spouse. 141 In this regard, trust assets can
be regarded as being part of a party’s financial resources, statutorily relevant to the division of matrimonial assets under section 114(1)
(a) of the Charter. 142 Two scenarios arise, viz, the “spouse settlor scenario” and the “external settlor scenario”. 143
[9.2.41] The “spouse settlor scenario” characteristically has the following features: (a) a spouse is the settlor of the trust; (b) the settlor
spouse is a member of the beneficiary class and thus capable of benefitting under the trust; and (c) the assets under the trust are
acquired by the parties in the course of the marriage and thus matrimonial assets. 144 Judges have been typically willing to attribute such
assets to the settlor spouse as his or her financial resource. 145 This stands in contrast to the “external settlor” scenario, which is marked
by the following characteristics: (a) the settlor is an external third party; and (b) as the assets settled under the trust were not acquired
during the marriage, they are neither matrimonial assets nor acquisitions. 146 Here the courts are typically reluctant to treat trust assets
as a beneficiary spouse’s financial resource. 147 The reality of practice can give rise to an infinite variety of fact patterns which spans the
two broad categories above. It is hence of paramount importance to inquire into the substance of the trust arrangement. 148
[9.2.42] Where it is likely that trustees will exercise their discretion in favour of the spouse, the English High Court has held that the
spouse’s interest in the trust as a potential beneficiary can constitute part of his or her financial resources. 149 The likelihood of trustees
distributing trust assets to the spouse is then an important question. If the manner of distribution and the advances made to a spouse
from a trust over a sustained period of time reveals that regular distributions have been made, especially on demand by the beneficiary,
the court may find it reasonable to expect the distribution to continue in the spouse’s favour in the absence of good reasons to expect
otherwise. 150 In Browne v Browne, 151 it was found that the wife was the sole beneficiary of a Jersey trust where she appeared to be the
sole beneficiary of a Liechtenstein trust with a pattern of distribution corresponding to her demands. The wife was held to effectively
have immediate access to the assets. 152 A similar finding was made in Minwalla 153 where even though the assets were settled under a
trust, they remained readily available to the husband.
[9.2.43] Charman v Charman (“Charman”) 154 is presently the leading decision on whether trust assets are financial resources if it is likely
that a spouse would benefit from the trustees’ exercise of powers in his or her favour. 155 The parties there commenced divorce
proceedings in England. The question in issue was whether the assets under a trust known as “Dragon” should be regarded as the
financial resources of the husband. Dragon was run by Codan Trust Company Ltd. 156 The beneficiaries of the trust were the husband, the
wife, their two sons and any future children, amongst others. 157 The trustees’ powers were entirely discretionary and their power to
advance capital instead of income to a beneficiary was wide. 158 They invested the capital of Dragon in accordance with the husband’s
instructions pursuant to a letter of wishes which he had issued to them. 159 The husband also had the power to replace the trustees. 160
He was later formally given a life interest disposition of the annual income of the trust. The husband further nominated himself as the
primary beneficiary of the trust in a subsequent letter of wishes issued after the breakdown of the marriage. 161
[9.2.44] The husband in Charman contended that he had intended for the trust to be a dynastic one with the trust assets to be held for his
unborn child so they should not be aggregated with his own. 162 However, the English Court of Appeal disagreed. It held that the assets in
Dragon were to be attributed to the husband as a financial resource. It agreed with the High Court’s finding that the assets were held in a
discretionary trust and available to him on demand. The court decided that to ignore reality was to be wrong. 163 Similarly, the English
Court of Appeal held in Whaley v Whaley 164 that it was irrelevant whether the beneficiary had a proprietary interest in a trust fund. The
question instead was whether the trust assets were likely to be available to the beneficiary when a request was put forth for capital to be
advanced. 165 This was seen in Prest, where the wife succeeded in showing that various companies held seven disputed properties on
trust for the husband. 166 The husband’s companies, his alleged trustees, were joined to the proceedings. They failed to file their
respective defences or comply with disclosure orders and their refusal to cooperate was found to be deliberate. 167 The legal interest in
the properties was acquired by PRL before it commenced commercial operations and generated its own funds. Moreover, gratuitous
occupation of the company’s property as the matrimonial home of its controller was not easily justified in the company’s interests as it
could be a sham designed to conceal its beneficial owner. 168 The UK Supreme Court in Prest accordingly found that the properties owned
by PRL were held by the companies on resulting trusts for the husband and so constituted part of the husband’s financial resources.
[9.2.45] In the words of the English Court of Appeal in Minwalla, “whenever it is necessary to conduct such an enquiry, it is essential for
the court to bring to it a judicious mixture of worldly realism and of respect for the legal effects of trusts, the legal duties of trustees and,
in the case of offshore trusts, the jurisdictions of offshore courts. In the circumstances of [Charman] it would have been a shameful
emasculation of the court’s duty to be fair if the assets which the husband built up in Dragon during the marriage had not been attributed
to him.” 169 Recognition of such worldly realism seems likely in Singapore. V K Rajah JA emphasised the importance of developing the
principles of equity according to precedent, principle, policy and pragmatism. 170 Rajah JA cited Lord Goff of Chieveley who commented
that “[i]t is a truism that, in deciding a question of law in any particular case, the courts are much influenced by considerations of
practical justice, and especially by the results which would flow from the recognition of a particular claim on the facts of the case before
the courts.” 171 In light of the views offered by Rajah JA, it is submitted that it would be unsurprising for the Singapore courts to adopt the
approach of the English courts.
E. Offshore Trusts
[9.2.46] Establishing offshore trusts to place trust structures beyond the jurisdiction of the divorce has become increasingly popular
especially among high net worth individuals. 172 One motivation for this is to place jurisdictional barriers between matrimonial
proceedings and trust assets. 173 Another is premised on a settlor’s wish for a more liberal regime in respect of his powers, and these
powers are typically available from offshore trust jurisdictions. 174 Enforcing matrimonial orders where offshore trusts are concerned
can prove challenging.
[9.2.47] Seeking to overcome jurisdictional barriers that might stymie the enforcement of matrimonial assets, the English courts have
made orders to vary offshore trusts or have declared them as shams. 175 This could be in response to the extremely liberal and facilitative
regimes offered by offshore tax havens where settlors are allowed to reserve their powers to revoke a trust, appoint and remove trustees,
and exempt trustees from liability when trustees act on their sole instructions. This seriously undermines the traditional understanding
of the English trust where a trustee is held strictly to fiduciary duties towards the beneficial owners of the trust property. It gives rise to
serious concerns about whether such trusts are mere façades to further a settlor’s deceit in seeking to avoid legal and moral obligations
to spouses. 176 It has been questioned whether the English courts have overstepped their boundaries. In Minwalla, for example, it may be
recalled that the English High Court declared a Jersey trust as a sham. The judgment was declared as exorbitant by the Royal Court of
Jersey. 177 This sentiment was shared by the English Court of Appeal in Charman. 178 The Jersey court nevertheless enforced the order
from the English High Court, as it did not consider the order as being against the domestic public policy of Jersey. In its view, all that the
English judgment was seeking to achieve was to do justice by preventing the husband from evading his “legal and moral obligations to his
wife.” 179 Emphasis must be had however on the fact that it was the Jersey court which chose to give effect to the English judgment.
Without the cooperation of the Jersey court, it is likely that the English judgment will amount to nothing more than a paper judgment
incapable of being successfully enforced.
[9.2.48] It is suggested that the Singapore courts are unlikely to adopt an overly intrusive approach into offshore trusts in its division of
matrimonial assets. Such reticence is exemplified in TQ v TR and Another Appeal 180 which concerned a trust settled in Mauritius. Instead
of declaring the trust a sham or ordering the trust to be set aside, the Court of Appeal merely ordered the husband to pay an equivalent
sum into his Singapore bank account for either parent to utilise on behalf of the children. 181 The court can also treat an overseas trust as
a financial resource of the settlor spouse, 182 since the unfettered right of a settlor to add or remove beneficiaries or revoke the trust
entitles the settlor to move beneficial entitlements around at will and subject the beneficiaries’ interests to his idiosyncrasies. 183
[9.2.49] The challenge is for the Singapore courts to respect the norms of international comity but yet to be robust in exercising its
powers under section 112 of the Charter. A suggestion has been made to the effect that the English court should decline jurisdiction when
a party applies to vary an offshore trust and invites the foreign court to act as an auxiliary to any proposed variation instead. 184 Such an
approach would appear to be less intrusive and more amenable for the Singapore courts, but for the fact that this would most likely
require an element of reciprocity between the Singapore court and the foreign court. It has been pointed out that practical issues can
arise in this regard: while a letter of request can be applied for from the Singapore court to its overseas counterpart for judicial
assistance in the obtaining of evidence, insofar as trust companies are concerned, section 5(1) of the Evidence (Civil Proceedings in Other
Jurisdictions) Act 185 read with the Third Schedule to the Trust Companies Act (Cap 336) precludes a Singapore court from entertaining a
letter of request from foreign judicial authorities from compelling licenced trust companies to provide evidence in matrimonial
proceedings. 186 This being the case, it is suggested that any assistance sought from foreign courts would be limited at best if this lacuna is
left unaddressed. Legislative reform in this area might thus be necessary in order to ensure that section 112 of the Charter is not
rendered toothless in a world increasingly familiar with the reality of offshore trusts.
F. Substantially Improved Property

[9.2.50] Section 112(10) of the Charter states that any asset acquired by either or both of the parties before the marriage which has been
substantially improved during the marriage falls within the matrimonial asset pool. However, a preliminary threshold question to be
considered must be whether the asset was in fact acquired by one or both of the parties. Should the property be acquired by either party
as a trustee on behalf of another entity, such a property would conceptually properly fall outside of the matrimonial asset pool.
[9.2.51] This question arose in BG v BF. 187 The Singapore Court of Appeal was faced with a dispute between the husband and the wife
over whether proceeds from the sale of an Australian property acquired before marriage should fall within the matrimonial asset pool.
The husband had acquired the property before the parties got married on March 17, 1995. Documents were produced to show that the
husband was holding the property as a trustee on behalf of a certain Golden Harvest Trust, created before his marriage. It transpired that
his parents were unit holders under the trust. The property was sold just before June 2003, about three months after the divorce was
granted. 188
[9.2.52] The Court of Appeal held that it was a preliminary issue whether the property had been acquired by one or both parties before
the marriage. The term “acquired” was held to imply ownership. 189 It seems that the concept of ownership inherent in the court’s
judgment concerned the notion of beneficial ownership. The court held that if the “true owner” of the property was the trust and not the
husband, the property could not fall within the matrimonial asset pool for division. 190
[9.2.53] The trust was found to be a properly constituted one in the end. The Australian authorities had acknowledged that the trust was
the owner of the property and had been assessed for property tax purposes. The court concluded that neither the husband nor the wife
had “acquired” the property. 191 It was thus irrelevant whether the wife had made substantial improvements to the property. 192
[9.2.54] Substantial improvement of a property by the other spouse is essentially a question of fact. 193 A direct causal connection
between the spouse’s contribution and the property in question must be found. 194 Thus the wife’s appeal in Hoong Khai Soon v Cheng
Kwee Eng and Another Appeal 195 was rejected where she sought to argue that she was entitled to a share of the husband’s partnership in
the family business by virtue of her performing domestic chores and working as a cashier at an unrelated business. The court held that
there was no direct causal link to the substantial improvement of the asset and no basis to draw such an inference. 196 Conversely, the
High Court in TDS v TDT held that a wife had substantially improved the husband’s business as there was evidence which showed that
the husband had publicly credited his business success to his wife’s efforts in a media interview given about a year before the divorce
started. 197
9.3 DIVISION OF BENEFICIAL INTERESTS IN A TRUST
A. Fixed Trusts
[9.3.1] It is trite that each beneficiary’s interest is stated in a fixed trust. Each beneficiary is the beneficial owner of the specific interest
which he or she is allocated. 198 The interests of the beneficiaries are thus “fixed” at the outset. They cannot be changed except by the
court and unanimous consent of the beneficiaries. 199 Thus the beneficial interest in the assets of a fixed trust vests in the beneficiaries,
who can compel trustees to transfer legal title to them under the rule in Saunders v Vautier (“Saunders”). 200 Saunders further recognises
that the beneficiaries’ sui juris rights give the beneficiaries absolute entitlement to the trust property. These rights allow them to exercise
their proprietary rights to “overbear and defeat the intention of the testator or settlor to subject property to the continuing trusts, powers
and limitations of a will or trust instrument.” 201 This is however subject to the beneficiary being of adult age and under no disability. 202
[9.3.2] Where a wife is the beneficiary of a trust, the trust assets will likely fall within the matrimonial asset pool. However, if a third
party is a beneficiary under the trust, and the disposition was not made with the intention of depriving the other spouse of maintenance
or a share of the matrimonial assets, it is unlikely that the assets of the trust will fall within the matrimonial asset pool given that the
beneficial interest does not vest in either of the spouses. This distinction is borne out by an analysis 203 of the statutory trust created
pursuant to section 73 of the Conveyancing and Law of Property Act. 204 To the question whether such a trust should be considered as
part of the matrimonial assets pool where the court has power to make orders concerning the insurance policy pursuant to section 112 of
the Charter, District Judge Lim Hui Min distinguished between two scenarios: (a) where the wife is a beneficiary under the insurance
policy; and (b) where a third party is a beneficiary under the insurance policy. The court will regard the spouse’s share in the former as
part of the matrimonial asset pool. In the latter, the trust will not form part of the matrimonial asset pool unless it was settled with the
intent of depriving the other spouse of maintenance or a share of the matrimonial assets. 205
[9.3.3] It is difficult to reconcile Lim Gordon with the above as the husband settlor in that case had retained the power to revoke the
discretionary trust which was established for the benefit of his children and himself – yet, the trust was excluded from the matrimonial
asset pool. As earlier mentioned, 206 it is entirely possible for the husband to revoke the trust after the divorce proceedings have been
finalised. Should the husband do so, it is reasonable to infer that the spouse had intended to deprive the other spouse of maintenance or a
share of the matrimonial assets.
B. Discretionary Trusts
[9.3.4] A discretionary trust has been defined in Mettoy Pension Trustees Ltd v Evans 207 to be a “[case] where someone ... is under a duty
to select among a class of beneficiaries those who are to receive, and the proportions in which they are to receive, income or capital of
the trust property.” 208 Two types of discretionary trusts can arise; the first is the exhaustive discretionary trust where the trustees are
obliged to apply the whole of the trust fund or its income to the potential beneficiaries. 209 Should the trustee fail to apply the entire fund
or its income to the purpose for which the trust was established, liability can be found. 210 A second type of discretionary trust is the non-
exhaustive discretionary trust under which trustees have no obligation to apply the whole of the trust fund or its income to the class of
beneficiaries. They have a choice instead to accumulate the monies within that trust. 211 Its “inherent flexibility” is a reason why many
high-net worth individuals use it as a means of wealth transmission. 212
[9.3.5] The evolution of the trust from its traditional function of holding real property to one which has an investment function designed
to enhance the value of its assets demands that trustees have more options to allocate and distribute beneficial interests. 213 This has led
to the increasing use of the discretionary trust over the past 40 years. Under the discretionary trust, potential beneficiaries have a hope of
trust assets being appointed in their favour, but they have no definite expectation of getting those trust assets. 214
1. Wish letters
[9.3.6] Wish letters are separate documents from a trust instrument. They are typically used by settlors to indicate their wishes to
trustees. Such letters are often used to guide trustees in their exercise of discretion. 215 Their use has been said to have increased
significantly in tandem with the increased use of the discretionary trust. 216
[9.3.7] Wish letters provide two significant advantages. First, they allow trustees to be flexible in responding to unforeseen changes in
the beneficiaries’ circumstances. Secondly, they permit a settlor to present his views about the beneficiaries which would otherwise be
hurtful, impolite or undesirable if included in a document which the beneficiaries have a right to inspect. 217 Three general categories of
wish letters exist, depending on the manner in which the letters are drafted. 218
[9.3.8] The first category of wish letters consists of a legally binding letter. This is mandatory and intended to be read with the trust
instrument. It is said that a settlor can provide his trustee with a letter in which the trustee is directed to pay an income to him for the
remainder of his life and which the trustees must acknowledge by signature. 219 It is clarified that in such a situation, the real trust lies in
the letter and not the discretionary trust instrument. It is possible that such a wish letter might have the effect of turning what is a
discretionary trust into substantively a fixed trust (depending on the directions given in the letter, and the class of persons pursuant to
which instructions are given). The second category of wish letters entails letters designed to only have limited legal significance in that
trustees are merely obliged to be guided by it. Such letters are more commonly used than the first type. They reveal the purposes for
which a range of powers and discretions have been granted to trustees. Once a trustee has considered the guidance provided, he is free to
exercise his judgment independently so as to deal with the circumstances before him. 220 The final category of wish letters is those which
are merely morally binding and upon which the trustee cannot be sued for non-compliance. 221 Such a letter was found in Charman, 222
where the settlor husband issued a non-binding letter of wishes to corporate trustees, indicating his wish that trustees consult him with
regards to all matters relating to the investment or administration of a fund and to also consult his wife in like manner. 223 No legal
obligations attach to such a letter. Should the trustee act against the wishes stated in the letter, no legal liability will follow.
[9.3.9] The weight attached to a settlor’s wish letter can also depend on when the trustees exercise their discretion. If trustees make their
decision shortly after wishes have been expressed and there are no changes in circumstances, the wish letter would probably carry
significant weight. However if the decision is made much later and the settlor is no longer able to guide the trustee or if prevailing
circumstances are highly different, the importance of the wish letter might be greatly diminished. 224 One must however note the
ramifications of appointing trustees who will abide by every instruction of say, the husband. This might be evidence of a high likelihood
that capital or income from a trust would be applied in the husband’s favour, leading to a finding that the assets under the trust should
fall within the matrimonial asset pool for division with the wife, which was the case in Charman.
2. Proprietary interests in a discretionary trust

[9.3.10] An individual who falls within the class of beneficiaries under a discretionary trust has the right to be considered as a potential
recipient of the trust assets. 225 He also has the right to expect the trustees to exercise their discretion in a bona fide, fair, and reasonable
or proper manner. 226 However, he has no defined expectation under the trust. 227
[9.3.11] The court has a supervisory jurisdiction over trusts. This means that trustees can seek the court’s guidance in difficult situations.
Such applications are often made where trustees are faced with difficult decisions like whether to disclose documents to a divorcing
beneficiary and whether to assist a beneficiary in meeting a claim or an award made against him on the assumption that the trust assets
can be viewed as a part of his own resources. 228 The court’s decision is then binding on the trustees.
[9.3.12] A potential beneficiary only gains an individual proprietary interest in trust assets when an appointment is made in his favour.
229 As Lord Reid observed in Gartside v Inland Revenue Commissioner, 230 “[when] the trustees are bound to distribute the whole income
among the discretionary beneficiaries and have no power to retain any part of it or use any part of it for any other purposes, you cannot
tell what any one of the beneficiaries will receive until the trustees have exercised their discretion.” 231 Where then does the beneficial
interest of the assets to a discretionary trust lie?
[9.3.13] Some have suggested that equitable title should vest in the class of potential beneficiaries as a whole. 232 Others have rejected
the notion of a “group interest” in the trust assets since “two or more persons cannot have a single right unless they hold it jointly or in
common” and the objects of a discretionary trust do not have that. They are competing with each other for the beneficial interest. If
trustees nominate a person out of many to receive the assets, they belong to that person absolutely. 233 What is undisputed, however, is
that the equitable interest of assets under a discretionary trust is not an inchoate one, but vests in the class of potential beneficiaries. This
is because in the case of an exhaustive discretionary trust, the class of beneficiaries could theoretically demand the trustees to transfer
the legal title to them. 234
[9.3.14] It is hence arguable that beneficial interests under a discretionary trust should generally not be included in the pool of
matrimonial assets. A spouse who is a potential beneficiary under a discretionary trust has not yet “acquired” any actual beneficial
interest in the trust property. Moreover, any vesting of the beneficial title will only occur upon the trustees’ nomination or the class of
beneficiaries acting unanimously in demanding for a transfer of the legal title. An exception may arise where there is clear evidence of
the trustees’ imminent exercise of discretion in favour of a spouse. Another analogous scenario might be where a high degree of certainty
is proved to exist as to the incipient end to the trust as a result of the beneficiaries acting in concert to end the trust. In such a case, the
contingent interests under such trusts might arguably be accounted for by the court as part of the pool of divisible assets or at the very
least, part of the financial resources available to the spouse-beneficiary under section 114(1)(a) of the Charter.
9.4 THE COURT’S SUPERVISORY JURISDICTION OVER A TRUST
[9.4.1] The court’s supervisory power over the execution and administration of a trust flows from its ancient and well-established
inherent jurisdiction to do so. 235 Such a jurisdiction should not be understated; Nolan explains that this jurisdiction has been used to
justify the court’s interference in several major commercial decisions, viz, Re Lehman Brothers International (Europe Ltd) (in
administration) 236 which resulted from the collapse of Lehman Brothers in the global 2008 financial crisis and Re Worldspreads Ltd (in
special administration), 237 dealing with an investment bank placed into special administration and which had to deal with the
distribution of client monies held on statutory trusts. 238 For the same reason, a spouse falling within the class of beneficiaries of a trust
can compel the trustees of the trust to perform the obligations that they owe to him or her. In a similar fashion, a spouse who ends up as
a trustee would be well advised to be familiar with the reality that his or her actions as a trustee are open to curial scrutiny. In this
regard, the Singapore Court of Appeal has held that it would generally confine its supervision to the “honesty, integrity, and fairness with
which the deliberation has been conducted, and will not be extended to the accuracy of the conclusion arrived at”. 239 The court also
articulated its willingness to intervene if it is found that there is an absence of good faith. 240
A. A Trustee’s Exercise of Discretion
[9.4.2] Foo Jee Seng & Ors v Foo Jhee Tuang & Anor (“Foo Jee Seng”) 241 addressed the issue of whether a power to postpone the sale of
trust property was exercisable at the absolute discretion of the trustees. The Court of Appeal answered the question in the negative. It
held that its overriding aim was to effect the will of the testator as expressed from the wording of the will itself and the circumstances in
which the will was drafted. 242 Therefore, where the intention of the testator was frustrated by inaction of the trustees, it would
intervene to ensure that the trustees fulfilled their function.
[9.4.3] The parties to Foo Jee Seng were all siblings. They were the beneficiaries of their father’s will which had devised a trust for sale
over the family home. The executors of the will were Foo Jhee Tuang (“the first respondent”) and the parties’ mother. The terms of the
trust directed the executors to sell the property with a power to postpone the sale in their absolute discretion and divide the proceeds
among the beneficiaries. Upon the death of the mother, disagreements arose about how the property should be dealt with. The first
respondent wanted to postpone the sale of the property as he took the view that the family home was an ancestral home. 243
1. The extent of a trustee’s discretion

[9.4.4] The first respondent’s view was found to be untenable by the Singapore Court of Appeal. The power to postpone a sale of the
property was to be construed in light of the testator’s clear instructions to have the property sold. It was held to be impossible that the
testator would have given absolute discretion to the trustee on postponing the sale and it would seem strange if a trustee’s exercise of
discretion fell beyond the court’s purview in the absence of bad faith. 244
[9.4.5] The Court of Appeal’s decision must be contrasted with that of the High Court. The High Court held that the court must be
primarily informed by the principle of non-intervention under which the trustees have absolute discretion to do or omit to do an act as
such. The High Court decided that the court will not interfere with the decision of trustees if their conduct is informed, bona fide and free
from influence of improper motives. 245 This principle has been criticised as it is incompatible with the modern approach of the court
having the inherent power to supervise and intervene if necessary in the administration of the trust and the trustee’s obligation to
behave in a rational manner and be properly informed when exercising his or her discretion. 246
[9.4.6] The Court of Appeal in Foo Jee Seng considered the circumstances in which the trustee’s exercise of discretion would be interfered
with. Generally, the court’s supervision would only extend to the honesty, integrity and fairness of the deliberation and not the accuracy
of its conclusion. 247 Inquiries into the trustee’s decision have been something which had ebbed and waned over the years. Recent
developments hinting at public law concepts such as Wednesbury unreasonableness and the audi alteram partem rule are mentioned in
the same breath as the trustee’s exercise of his discretionary powers. 248 Regrettably, the Court of Appeal decided to leave these issues to
be decided on another occasion as it sufficed for the court to note the controversies that have arisen due to the slow encroachment of
public law principles into the realm of trust law. 249
[9.4.7] Where trustees have the power to add or exclude beneficiaries, the power cannot be exercised arbitrarily or capriciously but
responsibly. Re C Trust 250 was a Jersey case in which a divorcing couple’s young children were excluded from receiving trust monies for
their support during their grandmother’s lifetime. Briefly, the facts are that the trust was constituted for a settlor, his wife, and his son.
The son was engaged in acrimonious divorce proceedings with his wife and the settlor’s wife (the son’s mother) was determined that the
son’s wife should not benefit from the trust indirectly through her children being made beneficiaries to the trust. The son’s wife was of
modest means and the two young children were living in very cramped accommodation in South America. There was also insufficient
documentation evidencing the trustees’ reasons for making such a decision. In the circumstances, this was considered to be an
unreasonable exercise of discretion by the trustees and the decision was set aside by the court. 251
2. The Hastings-Bass principle

[9.4.8] In Pitt v Holt, 252 the UK Supreme Court considered what is known as the rule in Re Hastings-Bass (Deceased) (“Re Hastings Bass”).
253 It held that the rule was concerned with trustees who made decisions without proper consideration of relevant matters which they
ought to have considered. 254 Trustees must account for all relevant factors and ignore irrelevant factors in making their decision. 255 In
this regard, they have to apprise themselves of all the relevant facts. It is insufficient for them to subjectively think they know the
relevant facts or rely on inadequate or misleading information. 256 Should the process of decision-making be flawed and amount to a
breach of duty to take into account relevant matters, the trustees’ decision can be set aside. 257
[9.4.9] The plaintiffs in Foo Jee Seng sought to rely on the principle found in Re Hastings-Bass (Deceased) 258 to suggest that the first
respondent had failed to make an informed decision in the exercise of his discretion. 259 The Court of Appeal did not address the
application of the rule as it took the view that the facts in Foo Jee Seng were distinguishable from the facts which arose in Re Hastings
Bass. Its observations, however, gave an indication as to the potential scope of the rule’s future application.
[9.4.10] Specifically, the Court of Appeal held that the main issue in Re Hastings-Bass (Deceased) was the trustees’ misunderstanding of
the legal effect of the rule against perpetuities which resulted in unfavourable tax implications for the trust, and this was the basis upon
which the Court of Appeal distinguished that case. This was reinforced by later cases where the Court of Appeal observed involved
trustees either not obtaining or obtaining wrong advice thus leading to them exercising their discretion in a way which would attract
intervention by the court. 260 It therefore appears that the principle will only apply narrowly to situations where the trustee performs
acts which would not otherwise have but for the lack of or wrong advice.
B. The Right to Inspect Trust Documents and the Trustee’s Duty of Confidentiality
[9.4.11] The beneficiary of a trust has a right to inspect documents and obtain information regarding the trust. Prior to the Privy Council
decision of Schmidt v Rosewood Trust Ltd (“Rosewood”), 261 the position was that a beneficiary’s entitlement to view trust documents
stemmed from his status as a beneficiary – the trust documents were regarded as his own. 262 This was subject to the trustees’ obligations
of confidentiality which were taken to trump the beneficiaries’ proprietary rights. 263 In Rosewood, it was held that the true reason for
the jurisdiction to order a trust to disclose information was based on the court’s inherent jurisdiction of supervision and intervention in
the administration of the trust. Such a jurisdiction was exercised as a matter of discretion. 264 A person who had a discretionary or
proprietary interest in the trust and whose interest was not too peripheral or remote, could apply to court to invoke this power. 265
[9.4.12] The Singapore High Court considered the effect of Rosewood and a beneficiary’s right to inspection of the trust documents in
Chiang Shirley v Chiang Dong Pheng. 266 The plaintiff was the sister of the defendant and executrix of their late father’s estate. She
complained in her statement of claim that despite having requested that various items of information be provided to her, the defendant
had failed to provide such information satisfactorily. 267 A trustee’s duty to keep clear and distinct accounts of property being
administered and the duty to be constantly ready with his accounts became in issue. The High Court observed that there was authority
for the proposition that every beneficiary is entitled to inspect the trust accounts and if the beneficiary wanted copies of the accounts, he
had to pay for them. On being challenged, a trustee is also obliged to correct any errors found in his accounts. 268 A slightly different
perspective is provided by Lewin On Trusts, 269 which distilled eight legal principles established by Rosewood out of which the following
two were relevant:
1. A beneficiary has a right to seek disclosure of trust documents. This right is best approached as an aspect of the court’s inherent
jurisdiction to supervise and intervene where appropriate.
2. The court has the discretion to decide what classes of documents should be disclosed either completely or in redacted form and
what safeguards should be imposed to limit the use of the disclosed information.
[9.4.13] The High Court held that while trustees have a duty to maintain accounts and generally to provide them upon the beneficiary’s
request, the beneficiary did not have a right to keep demanding accounts and information without any respite. There had to be
reasonable intervals between the demands. The court further held that a trustee should not be considered to be in breach of trust just
because he does not always supply the required information on demand. Whether he complied with his duties to disclose the required
information was determined to be a fact-sensitive question in every case. 270
[9.4.14] A beneficiary’s right to disclosure of trust documents must however be balanced against a trustee’s obligation of confidentiality,
which will differ, depending on what kind of entity the trustee is. A trustee who is a natural person owes a general equitable duty of
confidence to the settlor. 271 Licensed trust companies owe an additional statutory duty of confidence under sections 2 and 49 read with
the Third Schedule to the Trust Companies Act. 272 As divorce is not a category listed in the Third Schedule (under which a trust company
can provide information regarding the trust), a party seeking information from the trustee company should apply for documents desired
via the usual discovery process. 273
[9.4.15] The trust deed is a document that sets out the trustees’ powers and there is nothing in principle confidential in such a document.
Wish letters aid the trustees’ confidential exercise of discretionary powers. Requests for disclosure of wish letters can hence lead to a
tension between the beneficiary’s right to disclosure and a trustee’s obligation of confidentiality. This was seen in Breakspear & Ors v
Ackland & Anor (“Breakspear”), 274 an English High Court decision involving a family discretionary trust under which the beneficiaries of
the trust were the de facto settlor and his children. The settlor requested that the trustees consider the matters stated in a wish letter
which he had issued to them. The beneficiaries requested that the wish letter be disclosed to them so they could evaluate their future
expectations under the trust. Their request was rejected by the trustees as the letter was confidential and disclosing it would lead to
division and discord between the family members. The beneficiaries brought a court action seeking for disclosure of the wish letter. The
trustees also sought sanction from the court for a future scheme of distribution.
[9.4.16] Briggs J ordered the wish letter to be disclosed in Breakspear. He held that there was nearly virtual unanimity across the
common law jurisdictions that disclosure of a wish letter or any other documents which trustees possessed, was a matter which required
an exercise of discretion as opposed to being premised on a proprietary right. 275 The court held that it was in the interests of the
beneficiaries of family discretionary trusts and the administration of the trust for the process to be regarded as a confidential one from
beginning to end. This would reduce the scope for litigation, and trustees would be encouraged to assume their role undeterred by
potential litigation. 276 Therefore whether a wish letter is to be disclosed to the beneficiaries is something which the trustees have
discretion over – they can disclose it if disclosure is in the interests of the trust being soundly administered and the discharge of their
duties. 277 On the facts Briggs J recognised that the trustees were justified in their refusal to produce the wish letter. 278 However, he
ordered disclosure of the wish letter in light of the trustees’ intention to seek court sanction for a future scheme of distribution. 279
[9.4.17] The approach in Breakspear has been lamented. Arguments have been made that it should not be accepted locally. 280 The effect
of Rosewood has been to shift the emphasis from confidentiality to accountability. This is consistent with the obligational theory of trusts
which emphasises the trustees’ duties to the beneficiaries who have a right to compel the trustees to account to them. 281 So unless
beneficiaries have a meaningful way of ascertaining the trustees’ performance of their obligations, they will not be able to compel the
trustees to perform their trust duties. 282 It is also argued that wish letters, which are key trust documents, should be more readily
disclosed by the courts in the balancing exercise which they have to embark upon. 283 This may in the main be a matter of semantics
since it is observed that in both cases a balancing of the beneficiaries’ right to inspection and the trustee’s obligation to act in the
beneficiaries’ best interests is necessary. The difference, if any, appears to be a matter of degree rather than principle.
[9.4.18] The Singapore courts may be more amenable to a more liberal approach when divorce proceedings are afoot since resolving
divorce proceedings speedily may be in the interests of the beneficiaries. The interests of the beneficiaries arguably extends to a request
for information from an excluded person. Re Representation of U, 284 for instance, concerned a Jersey trust which had been settled by a
husband’s late father. It held assets for the benefit of the husband’s children and sisters. The English High Court asked the husband to use
best endeavours to obtain copies of the trust accounts for three years. Should the accounts not be disclosed, the husband faced a risk of
having an adverse inference drawn against him. The Jersey trustee however provided very little information to the husband as there had
been no distributions from or transfers to the trust since its inception. In its view, it would be prejudicial to the interests of the trust
beneficiaries should information be provided to the husband. In the end, the Jersey trustee sought directions from the Royal Court of
Jersey, although there were two beneficiaries opposing the production of information.
[9.4.19] In the circumstances, the Jersey court acknowledged the difficult position the husband was in. It ordered the trust accounts and
accounts of the underlying companies to be disclosed. In the court’s view, failing to do so would protract the divorce proceedings and
undermine the underlying businesses of the trusts. The English High Court would then have an inaccurate and incomplete picture of the
parties’ financial position. 285 The children of the husband and the wider family would also benefit from having the divorce proceedings
determined fairly and on the basis of accurate financial information. 286
9.5 POWER TO VARY THE TERMS OF A TRUST
[9.5.1] Variation of prenuptial or postnuptial settlements is permitted in the UK by virtue of section 24(1)(c) of the Matrimonial Causes
Act 1973. In Hong Kong, this is permitted by virtue of section 6(1)(c) of the Matrimonial Proceedings and Property Ordinance. 287
Singapore has no equivalent legislation. However, section 112(1) of the Charter requires the court to divide any matrimonial asset or the
proceeds emanating from the sale of such assets between the parties in a just and equitable proportion. Section 112(2)(e) of the Charter
then requires the court to consider any agreement made between the parties with respect to the ownership and division of the
matrimonial assets made in contemplation of divorce. The court is empowered under section 112(3) of the Charter to make all orders and
give directions as may be necessary or expedient to give effect to any order under section 112 of the Charter. These are also known as
“nuptial” agreements.
[9.5.2] There has to be a connection between a trust settlement and the marriage for a settlement to be considered “nuptial”. 288 In TQ v
TR and Another Appeal, 289 the Singapore Court of Appeal considered that prenuptial agreements referred to agreements which a
husband and wife have reached before their marriage concerning what will happen in the event of a divorce. Postnuptial agreements
refer to agreements between the spouses after marriage on what will happen upon separation or divorce. 290
[9.5.3] In Compton (Marquis of Northampton) v Compton (Marchioness of Northampton) and Hussey, 291 a husband settled his money
under a trust for his two daughters and two sons. The wife was a trustee of the trusts. She had a contingent life interest in the settlements
for the daughters and a power of appointment under those in favour of the sons. The husband later executed a deed so that the property
and other investments were transferred to the wife. Following the divorce, the husband asked in court that the wife’s role be
extinguished from the date of final decree. He also asked that the wife be ordered to execute a settlement in favour of the children out of
the funds gifted to her. The wife argued that the gift to her was not a postnuptial settlement and so the court did not have the jurisdiction
to grant the husband’s application. 292 Her argument was rejected. It was held that a postnuptial settlement could settle on the power
over the disposal of the property and the property itself. 293
[9.5.4] An additional inherent jurisdiction exists in the courts to vary trusts in exceptional situations. The court can authorise trustees to
undertake acts to protect the trust assets in an emergency situation and where the trustees would ordinarily not be authorised to
perform these acts. This is also known as the salvage jurisdiction of the court. One such situation is where expenditure is necessary in
order to prevent the trust from collapse. 294
[9.5.5] The court also has the power to sanction a variation of the terms of a trust if a genuine dispute arises between the beneficiaries as
to their beneficial interests, and they arrive at a compromise. This is also known as the compromise jurisdiction of the court, and
functions as an estoppel. 295
9.6 PROCEDURAL MATTERS
A. Joinder of Trustees to Divorce Actions
[9.6.1] Rule 351 of the Family Justice Rules 2014 expressly gives the court the power to compel trustees to be party to the proceedings. 296
This is in pari materia with Order 15 rule 4 of the Rules of Court. 297 The test for joining a trustee is whether its presence before the court
is necessary or whether it would be just and convenient to determine an issue arising between either party to the proceedings and the
third party. 298 It would be a breach of natural justice for an order to be made against a third party’s financial or proprietary interest
without the party being joined to the proceedings. Such an order will not be binding on a trust if the trustees are not joined to the action.
299
[9.6.2] Orders made against a third party which directly impinge on the third party’s interests must be distinguished from orders made
for the division of the matrimonial asset pool which take into account findings made in respect of third-party issues but do not affect a
third party’s interests directly. District Judge Lim Hui Min (“Lim DJ”) raised the example in Lau Loon Seng v Sia Peck Eng (“Lau Loon
Seng”). 300 In Lau Loon Seng, the court found that certain shares which were registered in the names of third parties beneficially belonged
to the husband. Lim DJ made no order as to those shares. Lim DJ instead ordered the husband to pay the wife the value of her portion of
the shares. Lim DJ noted that in Lam Siew Lan v Lian Tong Looi (“Lam Siew Lan”), 301 a similar order was made. She observed that in both
Lau Loon Seng and Lam Siew Lan, findings were made against third parties but no orders were made which directly affected them.
[9.6.3] It is suggested that a joinder of trustees to matrimonial proceedings is only warranted when the assets of a trust are directly
concerned. This can occur in two ways: first, through an order from the court for a transfer or sale of the assets settled under the trust,
and second, if the court makes a pronouncement on the validity of the trust. Where a court order merely has an indirect effect on the
trust, it is likely that a joinder would be unnecessary. In Lau Loon Seng, for instance, the alleged trustees were not joined to the
proceedings as no transfer of shares were required. The High Court held that their rights were not affected by the court order. 302
[9.6.4] Joining trustees to an action can also aid a beneficiary in obtaining a more direct remedy. Where A proposes to make payment of
money to B but the money belongs to C in equity, C can join A as a defendant in an action against B and obtain direct payment of the
money to himself. 303
B. Injunctions
[9.6.5] The court has power under section 132 of the Charter read with rules 517 and 518 of the Family Justice Rules 2014 to issue an
interim injunction to restrain any dissipation of assets which might be aimed at frustrating the spouse’s application for financial relief.
Rules 517 and 518 are in pari materia with rules 20.3 and 20.4 of the UK’s Family Procedure Rules 2010. 304 The application must be taken
out in Form 114. It must be done by a summons supported by an affidavit. It may be made ex parte, if urgent. The court, if satisfied, can
then issue an injunction preventing disposal of assets with the intention of reducing a spouse’s assets available for payment of
maintenance or depriving a wife or former wife of rights in relation to the property or for setting aside a disposition already made with
that intention. 305
[9.6.6] Where an ex parte application for an injunction is made, paragraph 83 of the Family Justice Courts Practice Directions 2015
provides that an opponent to an ex parte application must be invited to attend the hearing of an application. Applicants must therefore
provide notice of the application to other concerned parties before the hearing. 306 The directions as to notice need not be followed if
giving of such notice “would or might defeat the purpose of the ex parte application”. 307 However, in such situations, reasons for not
adhering to the notice requirements “should be clearly set out in the affidavit prepared in support of the ex parte application”. 308
Applications for Mareva injunctions must be made in Form 239 if assets are of a worldwide nature and in Form 240 if limited to the
assets within the jurisdiction. 309 There has to be attached to the summons electronic form, an Order of Court prepared in accordance
with Form 4 or 118 of the Family Justice Courts Practice Directions 2015. 310 A range of prescribed documents are also required to be set
out in affidavit made to support ex parte applications for injunctions. 311
[9.6.7] The importance of compliance with the notice requirements was recently emphasised in Bouvier, Yves Charles Edgar & Anor v
Accent Delight International Ltd & Anor and Another Appeal. 312 The Court of Appeal held that the applicant’s non-compliance with the
equivalent notice requirements in paragraph 41(2) and (3) of the Supreme Court Practice Directions went towards the finding that the
Mareva injunction application had been taken out in abuse of the court’s process. The court reiterated the importance of complying with
the notice requirements, lest they be made a mockery of. 313
[9.6.8] A trustee can be affected by a Mareva injunction (or freezing order) in the following ways: 314
1. A freezing order may be made pursuant to the divorce proceedings restraining the person from doing certain things, including
dealing with the assets under an offshore trust.
2. An order may be made to freeze the assets of the trustee if:
(a) there is good reason for believing that these assets are the assets of the spouse;
(b) the spouse has a remedy against a third party but the remedy would be rendered worthless unless the trust assets are
frozen;
(c) the injunction against a third party is ancillary and incidental to the injunction against the spouse; or
(d) it would assist in the enforcement of an order.
[9.6.9] As enforcement problems arise where the injunction is sought in Singapore but the trustee is located overseas, a “mirror” freezing
order should be obtained where possible. 315
C. Applications to Vary Antenuptial or Postnuptial Settlements
[9.6.10] Procedurally, an application for the court to vary the terms of a prenuptial settlement must be supported with affidavit evidence.
316 Both must be filed and served on the trustees of the settlement or the settlor (if alive) and the person defending the proceedings. 317
Any person served with the affidavit will then have 14 days to file an affidavit in answer. 318
9.7 TRUSTS BEYOND THE SPECTRE OF DIVORCE
A. The Resulting Trust
[9.7.1] A resulting trust exists when property has been conveyed to another but the beneficial interest returns to the settlor. 319 A
presumption as to the existence of a resulting trust exists where assets are given to volunteers. Such a presumption may be rebutted by
showing evidence of an intention to make a gift or through the presumption of advancement. The latter presumes that a party intends to
gift his beneficial share in a property to another if they have a particular relationship with each other. 320
[9.7.2] In the UK, beneficial interests in family property in the absence of matrimonial proceedings are ascertained through the use of
ordinary common law principles. This same option is available to married couples in Singapore who can choose to effect a division of
property under section 59 of the Charter. 321
[9.7.3] One must however be cognisant of the limits within which the relevant common law property principles can work. Section 51 of
the Housing and Development Act, 322 for instance, precludes persons from being entitled to property administered by the Housing
Development Board from gaining a beneficial interest in the property under any resulting trust or constructive trust.
[9.7.4] The spouses in Chan Yuen Lan v See Fong Mun (“Chan Yuen Lan”) 323 chose not to file for divorce but entered into a civil suit
instead, to ascertain their beneficial interests in a piece of property which they owned. The reason for doing so remains a mystery. 324
The Court of Appeal affirmatively rejected the common intention constructive trust methodology adopted by the House of Lords and UK
Supreme Court’s approach in Stack v Dowden 325 and Jones v Kernott 326 respectively. Under this approach, a party is found to acquire a
beneficial interest in property when he relies to his detriment on a common intention that the beneficial interest in the property is to be
shared. The Court of Appeal remarked that English courts have found this approach to be an “appropriate tool for quantifying each
party’s share of the beneficial interest in domestic property disputes ... where the property concerned is a family home purchased in the
joint names of a cohabiting couple”. 327 However, our apex court preferred instead Lord Neuberger’s approach in the minority judgment
in Stack v Dowden. Under Lord Neuberger’s paradigm, “equitable accounting” is invoked as a mechanism for retrospectively adjusting,
after the date of acquisition of the property, the parties’ respective beneficial interests in property using a resulting trust analysis. 328 As
such, “where the only evidence available was the extent of each party’s contributions to the purchase price of the property, the beneficial
ownership of the property would be held in the same proportions as the parties’ respective contributions to the purchase price, ie, the
resulting trust analysis would apply ... this was a matter of both principle and logic”. 329
[9.7.5] Chan Yuen Lan concerned the ascertainment of beneficial interests between two octogenarians, Mdm Chan Yuen Lan (“Mdm
Chan”) and Mr See Fong Mun (“Mr See”) in a property situated at 24 Chancery Lane. The property had been placed in Mdm Chan’s sole
name. She had contributed a sum of $290,000 to its purchase. Mr See contended that this sum was obtained via an interest-free loan
made to her, that had since been had repaid. 330 Mdm Chan’s position, however, was that the parties had agreed she would be the
absolute owner of the property. She contended that the $290,000 contribution from her was her contribution towards its purchase price.
331 Mdm Chan and Mr See also disagreed on the application of the presumption of advancement. Mdm Chan contended that the
presumption should apply in her favour. Mr See argued that the documentary evidence showed that he had no such intention. 332 The
High Court opined that the common intention constructive trust analysis was a sounder solution than the resulting trust analysis when
the common intention of the parties had been proven. 333 Chan Yuen Lan accordingly provided the Court of Appeal with the opportunity
to review the law of trusts in relation to matrimonial homes and to weigh the approaches of Stack v Dowden and Jones v Kernott. Sadly,
Mdm Chan passed away shortly after the appeal was heard, though counsel for both parties acknowledged that it had no bearing on the
outcome of the appeal. 334
[9.7.6] The Court of Appeal noted that the parties did not dispute that the $290,000 initially belonged to Mdm Chan. It held that it was Mr
See’s burden to prove otherwise. As Mr See failed to do so, the $290,000 was regarded as Mdm Chan’s contribution to the purchase price.
335 The court proceeded to consider whether the presumption of advancement should operate in favour of Mdm Chan, as the property
was in Mdm Chan’s name alone. Mdm Chan had executed a power of attorney allowing Mr See and their son to manage her property. The
court concluded that there was no reason why she would do so if the property was a gift to her. Good reasons were also absent as to why
Mr See would gift his share of the property to Mdm Chan, especially when he had started an affair at around that time and his marriage
with Mdm Chan was reduced to a formal shell. The court concluded that the presumption was rebutted. 336
[9.7.7] The Court of Appeal reckoned that the sum of $290,000 constituted 15.83% of the purchase price of the property in dispute. As
Mdm Chan failed to establish that a presumption of advancement operated in her favour, the court decided that Mdm Chan held 84.17%
of the beneficial interest in the property on a resulting trust for Mr See. 337
[9.7.8] In the course of giving judgment in Chan Yuen Lan, the Court of Appeal set out analysing whether the common intention
constructive trust analysis was indeed “a sounder solution” than the resulting trust analysis. It conducted an extensive review of the law
as laid out in England in Stack v Dowden and Jones v Kernott as well as Australian and Canadian authorities. It remarked that “the
disparate approaches adopted in Commonwealth countries such as Australia and Canada to domestic property disputes reveal that no
solution is free from difficulties. Further, it is clear that the position in England has developed in response to its changing economic and
social landscape”. 338 The court came down on the side of adopting Lord Neuberger’s approach, remarking that his approach provided
pragmatic and clear guidance in a complex and difficult area of the law in the hope that unnecessary disputes and litigation would be
reduced. The Court of Appeal also opined that the approach (a) removed unclear distinctions in England between domestic and
commercial contexts; (b) prevented courts from imputing to parties intentions which they never had vis-à-vis the quantification of their
respective shares of the beneficial interest concerned, in a manifestation of “palm tree” justice to achieve a “fair” result; (c) permitted the
extension of the common intention constructive trust into the commercial context; and (d) permitted the use of the resulting trust as the
default analytical tool in the absence of any evidence of a common intention between the parties, consistent with the lack-of-intention
analysis of the resulting trust. 339
[9.7.9] The Court of Appeal further took the opportunity to set out a methodology to be adopted in analysis of a given property dispute
involving parties who had contributed unequal amounts towards the purchase price of a property and who had not executed any
declaration of trust as to how the beneficial interest in the property was to be apportioned in the future: 340
1. First, it had to be asked if sufficient evidence of the parties’ respective financial contributions to the purchase price of the
property was on hand. If such evidence existed, parties would be presumed to hold their respective beneficial interests
proportionately to their respective contributions to the purchase price. If not, parties would be presumed to hold the beneficial
interest in the same manner as the legal interest.
2. Regardless of the answer to the above question, the next question to ask is whether there is sufficient evidence of an express or
inferred common intention that the parties should hold the beneficial interest in a proportion which is different from their
respective contributions. If yes, they would hold their interests in accordance with this common intention.
3. If the answers to the questions above are both in the negative, the parties would be taken to hold beneficial interests in the
property in the same manner as the legal interest.
4. If the answer to question 1 above is yes but the answer to question 2 is no, the question would be whether sufficient evidence
existed showing that the party who paid a larger part of the purchase price of the property intended to benefit the other party
with the entire amount which he or she paid. If yes, the former would be considered to make a gift of that larger sum, and the
latter would be entitled to the entire beneficial interest.
5. If the answer to question 4 above is no, it must be asked whether the presumption of advancement still operates in order to rebut
the presumption of resulting trust in question 1. If yes, there will be no resulting trust if the property is registered in other party’s
sole name and the parties would hold the beneficial interest jointly if the property is jointly registered in their names. If not, the
parties will hold the beneficial interest in the property proportionately to their respective contributions to the purchase price.
6. Regardless of the situation when the property was acquired, should there be sufficient and compelling evidence of a later express
or inferred common intention that the parties should hold the beneficial interest in a proportion different from the beneficial
interests held at the time of the acquisition of the property, the beneficial interest would be held according to this later common
intention.
[9.7.10] Chan Yuen Lan has been criticised for several reasons. It has been commented that the common intention constructive trust
methodology provides a better solution than that established in Chan Yuen Lan, which essentially built on the foundations laid by an
earlier decision of Lau Siew Kim v Yeo Guan Chye Terence & Anor (“Lau Siew Kim”). 341 Both cases adopted a two-stage analysis which first
requires the court to ascertain whether the presumption of resulting trust arises on the facts, and then whether the presumption of
advancement applies to displace the initial presumption. This approach is said to put the doctrine of joint tenancy and the right of
survivorship under considerable strain. In most relationships, it is unlikely that the couple would have contributed equally to the
purchase price when the property was acquired. 342 Further, Chan Yuen Lan results in the presumption of resulting trust prima facie
displacing the right of survivorship in most joint tenancies, and can have the effect of presenting great instability to joint tenancies and
numerous challenges in the courts by family members seeking to displace the right of survivorship. 343
[9.7.11] The second stage of the Court of Appeal’s approach relates to the presumption of advancement. It is worth noting that in the UK,
the presumption of advancement has been statutorily displaced by section 199 of the Equality Act 2010. 344 This is also the case in Canada
by various statutes enacted by the various provinces. 345 In Singapore however, the device has been retained to temper the operation of
the presumption of resulting trust. 346
[9.7.12] The presumption of advancement has been criticised for having no judicial consensus as to its underlying basis. A survey of the
cases shows that the court has referred or impliedly approved of moral obligation, 347 intention, 348 and financial dependency 349 as its
justification. 350 It has been opined that failing to understand the underlying basis for the presumption has led to its “muddled position”
in Singapore. 351 Moreover, the traditional approach which applies the presumption only in certain categories of relationships may well
be unsatisfactory in today’s society, 352 and it implicitly draws a divide between socially recognised relationships and “relationships
which are at the periphery of social acceptability.” 353
[9.7.13] Furthermore, the presumption of advancement has been applied and expanded in an evidently unprincipled manner. This
arises out of the acknowledgement that the presumption has to be updated with the passage of time. But the manner of its expansion has
been in a piecemeal fashion. No attempt has been made to formulate a principled manner by which new categories of relationships can
be recognised. In Lau Siew Kim, the presumption of advancement was also extended to persons who are engaged and subsequently
married, 354 but not to cohabiting couples regardless of whether they are heterosexual or homosexual. 355 Hong Kong, for instance, has
extended the presumption to cohabitees. Indeed, a strong argument can be made for justifying its extension to cohabitees: if the basis of
the presumption was natural affection between the parties, the fact that parties have chosen to stay together is arguably a testament to
the presence of natural affection for each other. 356 It also remains puzzling how the presumption only operates from the husband to the
wife, but not vice versa in a day and age when the notion of men being the breadwinners of the family is increasingly an obsolete concept
and female workforce participation has increased to 58.1%. 357
[9.7.14] Yet another criticism is that the factors used in determining the strength of the presumption, viz, the nature and strength of the
parties relationship, are arbitrary and difficult to apply. 358 At times, they point in opposite directions. The example of an abusive father
and a paraplegic and dependent minor has been given to illustrate the point. While the “obligation” aspect of the presumption suggests
that the presumption of advancement should apply, the “inherent probabilities [that the father would support the child]” aspect of the
presumption suggests that it should not. 359 The presumption as it currently stands, thus seems incapable of dealing with the range of
permutations in which the state and nature of relationships can arise.
[9.7.15] It has been suggested that reforms to the operation of the presumption of advancement can be implemented such that the
presumption no longer operates as a category-based presumption. Rather it should be framed as “a single test which is flexible enough to
apply to a range of diverse factual circumstances.” 360 It is suggested that the test should be whether a particular relationship is
predictable of the arrangement of making a gift. In this regard, the nature and duration of the relationship should be investigated. 361
[9.7.16] Should the courts adhere to the current approach of extending the operation of the presumption to new categories on a case-by-
case basis, they should also have regard to indicators of social conditions, such as legislative policy, in considering whether to extend the
operation of the presumption. 362
[9.7.17] Finally, the outcome of civil judgments can be undone if parties choose to commence divorce proceedings after a decision has
been rendered. As a commentator noted, Mdm Chan would have easily been awarded 30% to 40% of the matrimonial assets under the
Charter. 363 Although the beneficial interest in the specific property will have been divided by the court, it is suggested that the respective
shares of the property will still fall within the definition of section 112(1) of the Charter and so form part of the matrimonial asset pool.
The parties’ beneficial shares will then be subject to the just and equitable jurisdiction of the court under section 112 of the Charter.
[9.7.18] Notwithstanding the various negative views above, it would appear that the court in Chan Yuen Lan was not unmindful of the
nexus between societal change and the continued employment of the presumption of advancement to property disputes stemming from
relationships of various stripes. In this regard, the Court of Appeal recalled the point made in Lau Siew Kim that in Singapore, “the
presumption of advancement still accords with the community’s contemporary societal norms and expectations in particular situations”.
364 It approved of the point and remarked that “[w]hile this view might change as our society evolves, we do not think that at present, we
ought to depart from it”. 365
B. The Constructive Trust
1. The common intention constructive trust

[9.7.19] Given the problems emanating from the resulting trust approach, commentators have advanced various suggestions to deal with
the problems inherent in the Lau Siew Kim and Chan Yuen Lan approach. 366 In this regard, the common intention constructive trust
which arises through the operation of the law, has still been advocated as a viable alternative. Leong opines that there are two ways to
advance an argument for a beneficial interest via a common intention constructive trust. 367 The first is where prior to the acquisition an
express agreement is reached between the parties that the property is to be shared beneficially. This is evidenced by express discussion
between the parties. The second is where there is no such express common intention and the parties’ conduct is relied upon to infer a
common intention. Direct contributions to the purchase price by the non-legal owner readily justify such an inference. 368 The
quantification of the beneficial interest is then based on direct evidence as to the proportion of beneficial interest which the respective
spouses hold in the land. 369 Leong suggests that in the absence of direct evidence, the maxim equality is equity can be used such that two
beneficial owners will be presumed to own half the property each. 370
[9.7.20] The use of the common intention constructive trust as a better doctrinal vehicle for analysing joint tenancies held by married
couples has found support from academics and practitioners in trust and divorce law. 371 This doctrinal vehicle is said to have the benefit
of avoiding the “untidiness of moral judgment in the application of the resulting trust approach” which necessitates the application of the
presumption of advancement and hence moral judgment. 372 A possible approach has been mooted which builds on Chan Yuen Lan and
Lau Siew Kim and operates in the following manner: 373
1. First, ascertain whether a common intention constructive trust can be found on the facts. If there is one, the court proceeds to
ascertain the quantum of the parties’ beneficial interests with the respective financial contribution of the parties as a starting
point before taking into account their non-financial contributions. 374 If not, the court proceeds to apply the presumption of
resulting trust.
2. When the presumption of resulting trust is applied, the court then seeks to find whether there is sufficient evidence that party X
intends to advance his or her share of the beneficial interest to party Y. Should the presumption of advancement be sought to be
relied upon, sufficient evidence should be adduced to establish a dependency relationship between both parties X and Y.
[9.7.21] This is not to suggest that the common intention constructive trust solution is perfect. Fresh questions and uncertainties arise in
respect of constructive trust principles. Evidentially, it is difficult to find a common intention from the parties’ course of conduct, which
includes both direct and indirect contributions, since serious questions arise as to when the common intention was formed. Next, the
extent to which non-financial contributions are sufficient to find an implied intention is unclear. 375 Finally, an approach that seeks to
ascertain the parties’ common intention yet imputes a common intention to them is hard to understand since it is unclear how such an
intention is to be found and attributed to the parties without resorting to a subjective notion of fairness. 376 No solution is likely to be a
perfect one but given the strong support had by the common intention constructive trust analysis, there is a reasonably strong case for its
adoption to be reconsidered.
2. The remedial constructive trust

[9.7.22] The remedial constructive trust is a device relied on to prevent unjust enrichment, 377 although its juridical underpinnings cause
unease for some judges. Millet J described it as a “counsel of despair which too readily concedes the impossibility of propounding a
general rationale for the availability of proprietary remedies.” 378 On the other hand, Lord Browne-Wilkinson has been more sanguine
and suggests that its introduction may provide a satisfactory basis for developing proprietary restitutionary remedies. 379
[9.7.23] Regardless, a claim was made in Wee Chiaw Sek Anna v Ng Li-Ann Genevieve (sole executrix of the estate of Ng Hock Seng,
deceased) & Anor (“Anna Wee”) 380 by an ex-husband for the imposition of a remedial constructive trust over assets allegedly undisclosed
in matrimonial asset division proceedings. This was a suit commenced by the plaintiff, the niece of the chairman of a bank 381 against the
estate of her late husband. The parties were married on December 19, 1988 and separated in August 1998. A deed of separation was
signed between the parties on December 7, 1998 and interim judgment for divorce was granted on April 27, 1999. 382 The plaintiff’s case
was that her ex-husband fraudulently misrepresented to her that he had little or no assets thus causing her to forgo the division of
matrimonial assets at the ancillary proceedings stage of the divorce when in fact he was appointed as a business advisor to a company
under two agreements. 383 The first agreement was worth a total of US$25 million, while the second agreement was worth RM900,000. 384
These agreements were the subject-matter of contention between the plaintiff and the estate of her late ex-husband. Her late ex-husband,
however, had settled the sums earned from the two agreements into four trusts. The plaintiff claimed that the trustees had been unjustly
enriched by the deceased’s fraudulent misrepresentation – the moneys they held would have been hers if not for her reliance on the
fraudulent misrepresentation which induced her to forgo asset division, and hence asked for a remedial constructive trust to be imposed
over two of the trusts.
[9.7.24] The Court of Appeal held that there was no legal basis to suggest that the moneys were not matrimonial assets as both
agreements were entered into before December 7, 1998 when the deed of separation was signed. 385 However, it also observed that the
case was not a straightforward one of simply dividing matrimonial assets. The late ex-husband possessed no legal training which would
have enabled him to understand the technicalities of when choses in action which vested after separation could be included as part of the
matrimonial asset pool. 386 It was also the plaintiff’s own case that the correspondence which immediately preceded the filing of her late
ex-husband’s affidavit was limited only to the maintenance of the children. This account was consistent with correspondence between
the parties which showed that the late ex-husband had regarded the moneys as his own and not forming part of the matrimonial asset
pool. It was therefore unlikely that the late ex-husband would have been thinking about asset division when he filed his affidavit. 387
There was thus no dishonest intent emanating from the late ex-husband and the plaintiff failed on the threshold question of whether
there was fraudulent misrepresentation.
[9.7.25] The Court of Appeal nevertheless proceeded to make certain observations about the remedial constructive trust as a remedy
should unjust enrichment be found. It held that a remedial constructive trust could not simply be premised on any fraud or wrongdoing
by the late ex-husband: vague notions of fairness and justice cannot be the sole determinants of the court’s discretion. 388 Therefore, a
remedial constructive trust can only be imposed if the payee’s conscience is affected and founded on fault. 389 In this respect, actual
knowledge or wilful avoidance of the relevant knowledge would be required. 390 The Supreme Court of Canada has further confined the
application of the remedial constructive trust as a remedy to situations in which no other remedies to remedy the injustice exist such that
the imposition of a remedial constructive trust becomes the appropriate remedy. 391 It is likely Singapore will adopt a similar position. 392
[9.7.26] Anna Wee reveals the problems which can arise when the distribution of matrimonial assets is frustrated by deeds of settlement.
Pertinently, the reason for the plaintiff’s suit based on fraudulent misrepresentation in Anna Wee was due to her forfeiture of her right to
matrimonial asset division. It is suggested however that given the high standard of proof required where dishonesty is alleged, 393 it
might perhaps have been more sensible to proceed on the basis of negligent or innocent misrepresentation instead. This was in fact the
basis upon which the Singapore High Court set aside a settlement agreement in Tiong Swee Eng v Yeo Khee Siang, 394 as the husband had
either innocently or negligently failed to disclose a property which he had and which both parties had forgotten about. 395 Should a suit
be brought on the basis of negligent or innocent misrepresentation however, the availability of proprietary remedies such as through the
imposition of a remedial constructive trust might not be available given that such remedies are often predicated upon the presence of
facts which impinge upon the defendant’s conscience and is founded on fault.
9.8 CONCLUSION
[9.8.1] The burgeoning use of trust structures in the finance industry has been especially catalysed by the relentless march of
globalisation and the liberalisation of the finance industry. 396 This in turn has led to increased migration and money flows to Singapore,
thus propelling Singapore to emerge as a leading global financial centre. As of 2015, the financial services sector constituted 12.6% of
Singapore’s Gross Domestic Product. 397 As of 2014, it saw total assets under management grow 30% year-on-year to $2.4 trillion. 398 A
significant number of high net worth individuals have also migrated to Singapore for personal reasons, for work, or simply parking
funds in Singapore to be managed.
[9.8.2] It has been observed that the number of high net worth individuals in Singapore will grow at a rate of 18.3% over the next five
years. 399 Significantly, it is not uncommon for such individuals to employ trusts for wealth structuring. 400 These developments mean the
law of trusts and the law of divorce will likely meet at the crossroads with higher frequency, and the battles fought over matrimonial
assets also likely fought with greater intensity.
[9.8.3] As lawyers acquire better understanding of the law of trusts and its interaction with the law of divorce, so too will clients be able
to repose them a higher level of trust.
FOOTNOTES
* The authors would like to thank Mr Faraaz Amzar Mohamed Farook and Mr Sim Jing En, interns of the firm, for their assistance in the preparation of this
chapter of the book.
1 Alastair Hudson, Equity and Trusts, 8th edn (Sweet & Maxwell, 2014), p 45; Andrew White, “Breathing New Life into the Contemporary Islamic Waqf: What
reforms can fiqh regarding awqaf adopt from the common law of trusts without violating Shariah?” (2006) 41 Real Property, Probate & Trusts Journal 497 has
suggested that the trust was in fact a concept derived from the Islamic wakaf which returning Crusaders brought back to Europe.
2 Chan Sek Keong, “Trusts and the rule of law in Singapore” (2013) 25 SAcLJ 365 at para 28.
3 See eg Philip H Pettit, Equity and the Law of Trusts, 12th edn (Oxford University Press, 2012), pp 15–20 for a quick summary about the various purposes for
which a trust can be established.
4 Robert Pearce, John Stevens, and Warren Barr, The Law of Trusts and Equitable Obligations, 5th edn (Oxford University Press, 2010), pp 5–6.
5 See the observations of the Law Reform Commission, Capital and Income in Trusts: Classification and Apportionment (No 315, 2009), cited by Jill Hanbury,
Modern Equity, 16th edn (Sweet & Maxwell, 2012), para 1–050; see also Tey Tsun Hang, “Reservation of Settlor’s Powers” (2009) 21 SAcLJ 513.
6 Tang Hang Wu, “Let’s call the whole thing off: divorce and trusts in Singapore” (2011) 17(9) Trusts & Trustees 855 at 856.
7 Sir James Munby, “Trusts in divorce: some preliminary remarks” (2013) 19(3) & (4) Trusts & Trustees 319 at 319.
8 Mark Harper et al, International Trusts and Divorce Litigation, 2nd edn (Jordans, 2013), p 12.
9 Mark Harper et al, International Trusts and Divorce Litigation, 2nd edn (Jordans, 2013), p 25.
10 Tang Hang Wu, “An Introduction to Trust Law in Singapore” <http://shintakuhogakkai.jp/activity/pdf/vol40_Singapore2.pdf> (accessed on May 18, 2016) at para
1.1.1.
11 Ibid.
12 Ibid, p 13; Robert Pearce, John Stevens, and Warren Barr, The Law of Trusts and Equitable Obligations, 5th edn (Oxford University Press, 2010), p 71.
13 Robert Pearce, John Stevens, and Warren Barr, ibid, p 75. Tang Hang Wu, “An Introduction to Trust Law in Singapore”
<http://shintakuhogakkai.jp/activity/pdf/vol40_Singapore2.pdf> (accessed on May 18, 2016) at para 1.1.1.
14 Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] 2 All ER 961 at 990.
15 Robert Pearce, John Stevens, and Warren Barr, The Law of Trusts and Equitable Obligations, 5th edn (Oxford University Press, 2010), p 76.
16 (Cap 353).
17 Leong Wai Kum, Elements of Singapore Family Law, 2nd edn (LexisNexis, 2013), p 500.
20 Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520 at [40]; Lau Siew Kim v Yeo Guan Chye Terence & Anor [2008] 2 SLR(R) 108 at [80].
22 Tan Yock Lin, “’Matrimonial’ Realty Under A Resulting Trust” [2011] SJLS 89 at 90.
23 [1993] SGHC 190.
24 [1994] SGHC 157.
26 [2011] SGHC 138.
27 Ibid at [6].
28 Ibid at [8].
29 Ibid.
30 [2007] 1 SLR(R) 75.
31 Ibid at [24].
32 Ibid at [25].
33 Ibid at [19].
34 [2013] SGHC 228.
35 Ibid at [45].
36 Ibid at [50].
37 Ibid at [45].
38 Tang Hang Wu, “Equity and Trusts” (2013) 14 SAL Ann Rev 339 at para 15.6.
39
[2012] 1 WLR 1721.
40 Ibid at [60] and [62].
41 [2008] HCA 56.
42 See Philip Hallen and Hayley P Bennett, “Kennon v Spry and the elephant in the room: women, divorce, and discretionary trusts in the 21st Century” (2011) 17(9)
Trusts & Trustees 829 for a more detailed treatment of the case.
44 Kwee Lee Fung Ivon v Lim Gordon [2013] SGHC 228 at [57].
45 Ibid at [58].
46 Ibid at [59].
47 Ibid at [67].
48 AQT v AQU [2011] SGHC 138 at [9].
49
[1967] 2 QB 786.
50 Ibid at 802.
51 Matthew Conaglen, “Sham Trusts” (2008) 67(1) Cambridge Law Journal 176 at 179.
52 Anthony Poulton, “Trusts and divorce: ‘sham’ revisited” (2008) 14(4) Trusts & Trustees 225 at 225.
53 Marcus Dearle, “Trusts and Divorce” in Phillipa Hewitt, David Glynn and Winnie Chow, Family Law and Practice in Hong Kong, 2nd edn (Sweet & Maxwell,
2011), para 9.043.
54 [2013] 2 SLR 715.
55 National Westminster Bank plc v Rosemary Doreen Jones [2001] 1 BCLC 98 at [59].
56 Chng Bee Kheng & Anor (executrixes and trustees of the estate of Fock Poh Kum, deceased) v Chng Eng Chye [2013] 2 SLR 715 at [53], citing TKM (Singapore) Pte
Ltd v Export Credit Insurance Corp of Singapore Ltd [1992] 2 SLR(R) 858 at [48]; and Koon Seng Construction Pte Ltd v Chenab Contractor Pte Ltd [2008] 1 SLR(R)
375 at [64].
57 Chng Bee Kheng & Anor (executrixes and trustees of the estate of Fock Poh Kum, deceased) v Chng Eng Chye, ibid at [54]–[55], citing Hitch v Stone [2001] STC 214 at
[66]; and AG Securities v Vaughan [1990] 1 AC 417.
58 Chng Bee Kheng & Anor (executrixes and trustees of the estate of Fock Poh Kum, deceased) v Chng Eng Chye, ibid at [56]–[57].
59
[2004] EWHC 2823 (Fam).
60 Ibid at [47].
61 See Minwalla v Minwalla & Ors [2004] EWHC 2823 (Fam) at [54].
62 Ibid at [59].
63 Ibid at [56].
64 Ibid.
65 Ibid.
66 Ibid.
67 Ibid at [57].
68 Ibid at [56].
69 John Rimmer, “A v A: trusts in family courts – respect at last?” (2009) 1 PCB 46 at 49.
70
[2006] WTLR 807.
71 Ibid at [52] and [72].
72 Ibid.
73 Minwalla v Minwalla & Ors [2004] EWHC 2823 (Fam) at [58].
74 See Tey Tsun Hang, “Reservation of Settlor’s Powers” (2009) 21 SAcLJ 517 at para 53 where Tey comments that it was inconsistent with judicial authority to hold
that the mere fact that the trustee had merely gone along with the shammer and not cared about the effect of the sham trust deed was sufficient to found a
sham trust.
75
[2007] EWHC 99 (Fam).
76 Anthony Poulton, “Trusts and divorce: ‘sham’ revisited” (2008) 14(4) Trusts & Trustees 225 at 228.
77 Ibid at 231.
78 Ibid.
79 Ibid.
80 Hans Tjio, Pearlie Koh and Lee Pey Woan, “Corporate Law” (Academy Publishing, 2015), para 06.050, citing NEC Asia Pte Ltd v Picket & Rail Asia Pacific Pte Ltd
[2011] 2 SLR 565 at [31] which was endorsed by the Court of Appeal in Alwie Handoyo v Tjong Very Sumito [2013] 4 SLR 308 at [96].
81 Hans Tjio, Pearlie Koh and Lee Pey Woan, ibid, para 06.027 where it is commented that the Singapore courts have accepted four bases for which to pierce the
corporate veil, namely, where the company has been used (a) to evade an existing legal obligation; (b) as a sham, façade or device; (c) to perpetrate fraud; or (d)
as an extension or alter ego of the controller.
82 See Edwin C Mujih, “Piercing the corporate veil as a remedy of last resort after Prest v Petrodel Resources Ltd: inching towards abolition?” (2016) 37(2) Company
Lawyer 39 at 46.
83 Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157.
84 Tay Ang Choo Nancy v Yeo Chong Lin & Anor (Yeo Holdings Pte Ltd, miscellaneous party) [2010] SGHC 126 at [22].
85 Ibid at [40].
86 Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157 at [41].
87 Ibid at [11].
88
[2001] 1 All ER 300.
89 Ibid at 310.
90 Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157 at [43].
91 Ibid.
92 Ibid at [48].
93 Ibid.
94 Ibid at [47].
95 Ibid at [46].
96 Prest v Petrodel Resources Ltd & Ors [2013] 3 WLR 1 at [35].
97 Stephen Bull, “Piercing the corporate veil—in England and in Singapore” [2014] SJLS 24 at 30; Tan Zhong Xing, “The New Era of Corporate Veil-Piercing:
Concealed Cracks and Evaded Issues?” (2016) 28 SAcLJ 209 at para 1; Edwin C Mujih, “Piercing the corporate veil as a remedy of last resort after Prest v Petrodel
Resources Ltd: inching towards abolition?” (2016) 37(2) Company Lawyer 39 at 49.
98 See Simgood Pte Ltd v MLC Shipbuilding Sdn Bhd & Ors [2016] 1 SLR 1129 at [202]; Manuchar Steel Hong Kong Ltd v Star Pacific Line Pte Ltd [2014] 4 SLR 832 at
[91]; and TDS v TDT [2015] SGHCF 7 at [23].
99 TDS v TDT, ibid at [23].
100 Ibid. Tan Zhong Xing, “The New Era of Corporate Veil-Piercing: Concealed Cracks and Evaded Issues?” (2016) 28 SAcLJ 209 at [20] suggests that Lord Sumption
JSC’s observations in Prest v Petrodel Resources Ltd & Ors [2013] 3 WLR 1 were endorsed by the Singapore High Court, but given that the High Court’s
comments were that Prest v Petrodel Resources Ltd & Ors [2013] 3 WLR 1 “suggests that the corporate veil can be pierced where a company is interposed for
the purpose of evading an existing legal obligation or liability”, it is suggested that a more cautious view be taken in this regard.
101 Ibid.
103 c 18 (UK).
105 Ibid at [8].
106 Ibid at [23].
107 [2001] 1 FLR 673 at 682.
108
[1990] Ch 433.
110 Ibid.
111 Ibid at [36].
112 Ibid at [37].
113 Ibid at [47]–[52].
114 See Tan Zhong Xing, “The New Era of Veil-Piercing: Concealed cracks and evaded issues?” (2016) 28 SAcLJ 209 at para 16; Stephen Bull, “Piercing the Corporate
Veil—in England and Singapore” [2014] SJLS 24 at 30.
115
[2013] EWHC 2534 (Fam).
116 [2015] EWHC 887 (Fam).
117 M v M [2013] EWHC 2534 (Fam) at [169].
118 Ibid at [146]–[163].
119 Ibid at [248].
120 Ibid at [218].
121 See Alwie Handoyo v Tjong Very Sumito & Anor and Another Appeal [2013] 4 SLR 308; Nagase Singapore Pte Ltd v Ching Kai Huat & Ors [2008] 1 SLR(R) 80;
George Raymond Zage III & Anor v Rasif David & Ors [2009] 2 SLR(R) 479; ARS v ART & Anor [2015] SGHC 78; Lim Chee Twang v Chan Shuk Kuen Helina & Ors
[2010] 2 SLR 209; and The Dolphina [2012] 1 SLR 992.
122 Tan Zhong Xing, “The New Era of Corporate Veil-piercing: Concealed Cracks and Evaded Issues?” (2016) 28 SAcLJ 209 at para 19.
123 MA v SK [2015] EWHC 887 at [79].
124 Tan Zhong Xing, “The New Era of Corporate Veil-Piercing: Concealed Cracks and Evaded Issues?” (2016) 28 SAcLJ 209 at para 16.
125 Rob George, “The veil of incorporation and post-divorce financial remedies” (2014) 130 LQR 373 at 376; Mark Harper et al, International Trust and Divorce
Litigation, 2nd edn (Jordans, 2013), p xii.
126 Stephen Bull, “Piercing the corporate veil—in England and Singapore” [2014] SJLS 24 at 39–40.
127 [2013] 4 SLR 308.
128 [2013] 1 SLR 374.
129 Alwie Handoyo v Tjong Very Sumito [2013] 4 SLR 308 at [96].
130 Raffles Town Club Pte Ltd v Lim Eng Hock Peter [2013] 1 SLR 374 at [57].
131 The Dolphina [2012] 1 SLR 992 at [231].
132 [2000] 3 SLR(R) 965.
133 Ibid at [43].
134
[1984] FLR 285.
135 Ibid at 292, cited in Rob George, “The veil of incorporation and post-divorce financial remedies” (2014) 130 LQR 373 at 373.
136 Christopher Hare, “Family Division 0, Chancery Division 1: Piercing the Corporate Veil in the Supreme Court (Again)” [2013] 72 Cambridge Law Journal 511 at
514.
137 Edwin C Mujih, “Piercing the corporate veil as a remedy of last resort after Prest v Petrodel Resources Ltd: inching towards abolition?” (2016) 37(2) Company
Lawyer 39 at 47 – it is commented that the decision in Prest necessitates a consideration of alternative remedies.
138 [2007] 3 SLR(R) 743.
139 Ibid at [50].
140 Ibid at [52].
141 Mark Harper et al, International Trust and Divorce Litigation, 2nd edn (Jordans, 2013), p 122.
142 Section 112(2)(h) read with section 114(1)(a) of the Charter requires the court to account for the parties’ respective financial resources in the division of
matrimonial assets.
143 Andrew Lynn, “Applying the Charman test to trusts in divorce: the decision of the Hong Kong Court of Final Appeal in Kan Lai Kwan v Poon Lok To Otto and
HSBC International Trustee Limited” (2015) 21(3) Trusts & Trustees 285 at 288–289.
144 Andrew Lynn, ibid at 289.
145 The English High Court for instance held in B v S (Financial Remedy: Marital Property Regime) [2012] EWHC 265 (Fam) at [46] that a postnuptial trust of
matrimonial assets was considered as a full “resource” of the husband as the trust was fully discretionary with the husband, wife and the children as
beneficiaries and the husband had effective power to replace the trustees – the trust assets was therefore attributed to the husband as his financial resource.
147 Ibid at 290.
148 Ibid at 290–291.
149
A v A and St Georges Trustees Ltd [2007] 2 FLR 467.
150 Marcus Dearle, “Trusts and Divorce” in Phillipa Hewitt, David Glynn and Winnie Chow, Family Law and Practice in Hong Kong, 2nd edn (Sweet & Maxwell,
2011), para 9.022.
151
[1989] 1 FLR 291.
152 Ibid; see also Marcus Dearle, “Trusts and Divorce” in Phillipa Hewitt, David Glynn and Winnie Chow, Family Law and Practice in Hong Kong, 2nd edn (Sweet &
Maxwell, 2011), para 9.023.
153
[2004] EWHC 2823 (Fam).
154
[2007] EWCA Civ 503.
156 Charman v Charman [2007] EWCA Civ 503 at [22].
157 Ibid at [30].
158 Ibid.
159 Ibid at [36].
160 Ibid at [32].
161 Ibid at [40].
162 Ibid at [23].
163 Ibid at [57], referring to Charman v Charman [2006] EWHC 1879 (Fam) at [79]–[80].
164
[2011] EWCA Civ 617.
165 Caroline Holley, “Access all areas: trusts and divorce—The Court of Appeal decision in Whaley v Whaley” (2011) 17(9) Trusts & Trustees 893 at 895; see also other
cases involving an application of Charman v Charman [2007] EWCA Civ 503 in Mark Harper et al, International Trusts and Divorce Litigation, 2nd edn
(Jordans, 2013) at 133–134.
166 Prest v Petrodel Resources Ltd & Ors [2013] 3 WLR 1 at [43] and [52].
167 Ibid at [47].
168 Ibid at [48] and [52].
169 Charman v Charman [2007] EWCA Civ 503 at [57] (Emphasis added).
170 Lau Siew Kim v Yeo Guan Chye Terence & Anor [2008] 2 SLR(R) 108 at [32].
171 Ibid.
172 Toby Graham, “Protecting assets from divorce—trusts and nuptial agreements: offshore trusts and community property” (2012) 18(7) Trusts & Trustees 634 at
638; Tey Tsun Hang, “Reservation of Settlor’s Powers” (2009) 21 SAcLJ 517 at para 31.
173 John Rimmer, “A v A: trusts in family courts – respect at last?” (2009) 1 PCB 46 at 46.
174 Tey Tsun Hang, “Reservation of Settlor’s Powers” (2009) 21 SAcLJ 517 at paras 27 and 30; see for example section 14 of the Cayman Islands’ Trust Law (revised
2001, as amended by the Special Trusts (Alternative Regime) Law 1997); section 3(2) of the Bahamian Trustee Act 1998; and Article 9A of the Trusts (Jersey) Law
(as amended in 2006).
175
Compass Trustees v McBarnett [2003] WTLR 461; Minwalla v Minwalla & Ors [2004] EWHC 2823 (Fam).
176 Tey Tsun Hang, “Reservation of Settlor’s Powers” (2009) 21 SAcLJ 517 at paras 49–55.
177 Re Fountain Trust [2005] JRC 99; see also Mark Harper et al, International Trust and Divorce Litigation, 2nd edn (Jordans, 2013), p 166 where it was observed
that the Jersey court expressed its unhappiness at the English court’s declaration of a Jersey trust as a sham.
178 Nicholas Francis and Jonathan Harris, “Trusts and Divorce” (2012) 18(2) Trusts & Trustees 132 at pp 144–145.
179 Re Fountain Trust [2005] JRC 99.
180 [2009] 2 SLR(R) 961.
181 TQ v TR & Anor [2009] 2 SLR(R) 961 at [27].
182 Tang Hang Wu, “Let’s call the whole thing off: divorce and trusts in Singapore” (2011) 17(9) Trusts & Trustees 855 at p 863, citing Marie Eileen Guin Nee
Fernandez v Arun Guin [1994] SGHC 157.
183 Tey Tsun Hang, “Reservation of Settlor’s Powers” (2009) 21 SAcLJ 517 at paras 39 and 40.
184 Re B Trust [2006] JRC 185 at [32].
185 (Cap 98).
187 BG v BF [2007] 3 SLR(R) 233.
188 Ibid at [33].
189 Ibid at [36].
190 Ibid.
191 Ibid at [37].
192 Ibid at [36].
193 Hoong Khai Soon v Cheng Kwee Eng and Another Appeal [1993] 1 SLR(R) 823 at [11].
194 Ibid; Lee Yong Chuan Edwin v Tan Soan Lian [2000] 3 SLR(R) 867 at [37].
195 [1993] 1 SLR(R) 823.
196 Ibid at [11].
197 TDS v TDT [2015] SGHCF 7 at [12]–[15].
198 Philip H Pettit, Equity and the Law of Trusts, 12th edn (Oxford University Press, 2012), p 77.
200 (1841) Cr & Ph 240, cited by the Court of Appeal in Leo Teng Choy v Leo Teng Kit & Ors [2000] 3 SLR(R) 636.
201 Goulding v James [1997] 2 All ER 239 at 247, cited by Attorney-General v Aljunied-Hougang-Punggol East Town Council [2015] 4 SLR 474 at [129].
202 Cheong Soh Chin & Ors v Eng Chiet Shoong & Ors [2015] SGHC 173 at [47].
203 Tang Hang Wu, “Let’s call the whole thing off: divorce and trusts in Singapore” (2011) 17(9) Trusts & Trustees 855 at 858–859.
204 (Cap 61).
205 CH v CI [2004] SGDC 131 at [34]–[44].
206 See paragraph [9.2.4] above.
207 [1992] 2 All ER 513.
208 Mettoy Pension Trustees Ltd v Evans, ibid.
209 Philip H Pettit, Equity and the Law of Trusts, 12th edn (Oxford University Press, 2012), p 79.
210 Re Lockers Settlement Trusts [1977] 1 WLR 1323.
211
McPhail v Doulton [1971] AC 424.
212 Tang Hang Wu, “An Introduction to Trust Law in Singapore” <http://shintakuhogakkai.jp/activity/pdf/vol40_Singapore2.pdf> (accessed on May 18, 2016) at para
1.1.1.
213 Tey Tsun Hang, “Reservation of Settlor’s Powers” (2009) 21 SAcLJ 517 at para 12, citing John H Langbein, “The Contractarian Basis of the Law of Trusts” (1995)
105 Yale Law Journal 625 at 628.
215 Michael Hwang and Nicholas Thio, “Why does Singapore not have a Variation of Trusts Act?” (2011) 23 SAcLJ 58 at para 18; Tey Tsun Hang, “Letters of Wishes”
(2009) 21 SAcLJ 193 at para 1; see also Sim Bock Eng, “Singapore” in John Riches (ed), The Private Wealth & Private Client Review (Law Business Research, 2012),
p 248.
216 Breakspear & Ors v Ackland & Anor [2009] Ch 32 at [6].
217 Ibid.
219 David Hayton, “English Fiduciary Standards and Trust Law” (1999) 32 Vand J Transnational Law 555 at 573.
220 Tey Tsun Hang, “Letters of Wishes” (2009) 21 SAcLJ 193 at para 8.
221 Ibid at para 2.
222
[2007] EWCA Civ 503.
223 Ibid at [33].
225
Philip H Pettit, Equity and the Law of Trusts, 12th edn (Oxford University Press, 2012), p 80, citing Tempest v Lord Camoys (1882) 21 Ch D 571; Martin v
Martin [1919] P 283; and Gartside v Inland Revenue Commissioner [1968] AC 553.
228 Ibid, p 37.
229 Philip H Pettit, Equity and the Law of Trusts, 12th edn (Oxford University Press, 2012), pp 79–80; Robert Pearce, John Stevens, and Warren Barr, The Law of
Trusts and Equitable Obligations, 5th edn (Oxford University Press, 2010), p 532; see also Brown v Higgs (1800) 5 Ves 495 at 545.
230
[1968] AC 553.
231 Ibid at 606.
232 See Robert Pearce, John Stevens, and Warren Barr, The Law of Trusts and Equitable Obligations, 5th edn (Oxford University Press, 2010), p 545, citing Re Smith
[1928] Ch 915 which followed the English Court of Appeal decision in Re Nelson [1928] Ch 920.
233 Gartside v Inland Revenue Commissioner [1968] AC 553 at 605–606.
235 Morice v Bishop of Durham (1805) 10 Ves 522.
236
[2009] EWCA Civ 1161.
237 [2015] EWHC 1719 (Ch).
238 Richard C Nolan, “The execution of a trust shall be under the controul of the court: A Maxim in Modern Times” (2015) 2 Canadian Journal of Comparative and
Contemporary Law<https://pure.york.ac.uk/portal/en/publications/the-execution-of-a-trust-shall-be-under-the-controul-of-the-court(e57d45a7-4f9f-4c24-908f-
69ff3ac66ced).html> (accessed July 4, 2016).
239 Foo Jee Seng & Ors v Foo Jhee Tuang & Anor [2012] 4 SLR 339 at [55], Re Beloved Wilkes’ Charity (1851) 3 Mac & G 440; 42 ER 330.
240 Ibid at [55].
241 [2012] 4 SLR 339.
242 Ibid at [17].
243 Foo Jee Seng v Foo Jhee Thuang [2012] 1 SLR 211 at [49].
244 Ibid at [64].
245 Ibid at [26].
247 Foo Jee Seng v Foo Jhee Thuang [2012] 1 SLR 211 at [55].
248 Ibid at [63].
249 Ibid.
250 [2012] JRC 86B.
251 Siobhan Riley and Sarah Glynn, “Divorce: defending offshore trusts” (2015) 2 PCB 67 at 69.
252 [2013] 2 AC 108.
253
[1975] Ch 25.
254 Pitt v Holt [2013] 2 AC 108 at [2].
256 Ibid.
257 John McGhee et al, Snell’s Equity, 33rd edn (Sweet & Maxwell, 2015), para 10–033.
258
[1975] Ch 25.
259 Foo Jee Seng & Ors v Foo Jhee Tuang & Anor [2012] 4 SLR 339 at [62].
260 Ibid at [63].
261
[2003] 2 AC 709.
262
O’Rourke v Darbishire [1920] AC 581.
263 Re Londonderry’s Settlement [1965] Ch 918 at 935.
264 Schmidt v Rosewood Trust Ltd [2003] 2 AC 709 at 734–735.
265 Ibid.
266 Chiang Shirley v Chiang Dong Pheng [2015] 3 SLR 770.
267 Ibid at [82].
268 Ibid at [85]–[86].
269 Lewin On Trusts, 18th edn (Sweet & Maxwell, 2008), para 23–22.
270 Chiang Shirley v Chiang Dong Pheng [2015] 3 SLR 770 at [89].
272 (Cap 336).
274 [2009] Ch 32 at [9].
275 Ibid at [52].
276 Ibid at [54].
277 Ibid at [62].
278 Ibid at [98].
279 Ibid at [101]; see Tey Tsun Hang, “Letters of Wishes” (2009) 21 SAcLJ 193 at para 26.
280 Tey Tsun Hang, “Letters of Wishes”, ibid at para 53.
281 Ibid at para 38.
282 Ibid.
283 Ibid at paras 39–43.
284 [2011] JRC 131.
285 Corinee Barnes, “Disclosure and divorce—Application by trustee for directions concerning disclosure of confidential information to an excluded person
—Representation of U [2011] JRC 131” (2012) 18(7) Trusts & Trustees 684 at 686.
286 Ibid.
287 Cap 192 (HK).
289 [2009] 2 SLR(R) 961.
290 Ibid at [43]–[45].
291
[1960] 3 WLR 476.
292 Compton (Marquis of Northampton) v Compton (Marchioness of Northampton) and Hussey [1960] 3 WLR 476 at 484.
294 See for e.g.Re Jackson (1882) 21 Ch D 786, cited in Michael Hwang and Nicholas Thio, “Why does Singapore not have a Variation of Trusts Act?” (2011) 23 SAcLJ
58 at para 20.
295
Binder v Alachouzos [1972] 2 QB 151; Michael Hwang and Nicholas Thio, “Why does Singapore not have a Variation of Trusts Act?”, ibid.
297 (Cap 322), R 5.
298
T v T [1996] 2 FLR 357.
299 Subbiah Pillai v Meenatchi d/o Kuppusamy [2012] SGDC 287 at [19].
300 [1999] 2 SLR(R) 668.
301 [2000] SGDC 33.
302 Lau Loon Seng v Sia Peck Eng [1999] 2 SLR(R) 668 at [11].
303 Singapore Civil Procedure 2016, Vol 1 Foo Chee Hock (gen ed) (Sweet & Maxwell, 2016) at para 15/4/6.
304 L 17, No 2955.
305 Section 132 of the Charter; Mark Harper et al, International Trust and Divorce Litigation, 2nd edn (Jordans, 2013), p 136.
306 Paragraph 83(1) and (2) of the Family Justice Court Practice Directions 2015. This is pursuant to Castle Fitness Consultancy Pte Ltd v Manz [1989] 2 SLR(R) 308;
and The Nagasaki Spirit [1994] 2 SLR(R) 165.
307 Paragraph 83(3) of the Family Justice Court Practice Directions 2015.
308 Ibid.
310 Ibid.
312 [2015] 5 SLR 558.
313 Ibid at [120].
314 Mark Harper et al, International Trusts and Divorce Litigation, 2nd edn (Jordans, 2013), pp 144–145.
315 Ibid, p 145.
316 Rule 90(1)(b) of the Family Justice Rules 2014.
317 Rule 90(3)(a) of the Family Justice Rules 2014.
319 Jill Hanbury, Modern Equity, 16th edn (Sweet & Maxwell, 2012), para 2–032.
320 Ibid.
321 See Debbie Ong and Valerie Thean, “Family Law” (2008) 9 SAL Ann Rev 309 at para 14.55.
322 (Cap 129).
323 [2014] 3 SLR 1048.
324 Tang Hang Wu, “A dispute in Chancery Lane: re-considering the resulting and common intention constructive trust” (2015) 79 Conv 163 at 169.
325
[2007] 2 AC 432.
326
[2012] 1 AC 776.
327 Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048 at [101].
328 Ibid at [56].
329 Ibid at [109].

330 Ibid at [25].
331 Ibid at [26].
332 Ibid at [25].
333 Ibid at [30(a)].
334 Ibid at [4].
335 Ibid at [88].
336 Ibid at [92].
337 Ibid at [88] and [162].
338 Ibid at [152].
339 Ibid at [153]–[158].
340 Ibid at [160].
341 Lau Siew Kim v Yeo Guan Chye Terence & Anor [2008] 2 SLR(R) 108.
343 Ibid.
344 c 15 (UK).
345 Tey Tsun Hang, “Singapore’s Muddled Presumption of Advancement” [2007] SJLS 240 at 252.
346 See the comments of V K Rajah JA in Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048 at [132].
347 Lau Siew Kim v Yeo Guan Chye Terence & Anor [2008] 2 SLR(R) 108 at [144]–[146].
348 Calveryly v Green (1984) 155 CLR 242, cited by Lau Siew Kim v Yeo Guan Chye Terence & Anor, ibid at [78].
349 Low Gim Siah v Low Geok Khim [2007] 1 SLR(R) 795 at [43].
350 Leong Wai Kum, Elements of Singapore Family Law, 2nd edn (LexisNexis, 2012), p 483 comments that the presumption only arises where the relationship is one
of dependence within family relationships.
351 Tey Tsun Hang, “Singapore’s Muddled Presumption of Advancement” [2007] SJLS 240 at 243–248.
352 Ibid at 248.
353 Tey Tsun Hang, “Resulting Trusts in Singapore” (2011) 23 SAcLJ 607 at para 86.
354 Lau Siew Kim v Yeo Guan Chye Terence & Anor [2008] 2 SLR(R) 108 at [128].
355 Lim Chen Yeow Kelvin v Goh Chin Peng [2008] 4 SLR(R) 783 at [123]; Sin Sai Peng v Soh Kim Lian Florence [2002] 2 SLR(R) 1163 at [33].
357 Jonathan Muk Chen Yeen, “Proposed improvements to the division of parties’ beneficial interests beyond the Women’s Charter: Chan Yuen Lan v See Fong Mun
[2014] 3 SLR 1048” (2015) 27 SAcLJ 230 at para 25, citing Ministry of Manpower, “Singapore Workforce, 2013: Employment Rate Rose to New High, Accompanied
By Stronger Real Income Growth” (November 29, 2013) <http://www.mom.gov.sg/newsroom/Pages/Press ReleasesDetail.aspx?listid=535#sthash.eViMjoa9.dpuf>
(accessed April 24, 2016).
358 Kelvin Low, “Apparent Gifts: Re-examining the Equitable Presumption” (2008) 124 LQR 369 at 731.
359 Ibid at 732.
361 Ibid.
362 Ibid.
363 Tang Hang Wu, “A dispute in Chancery Lane: re-considering the resulting and common intention constructive trust: Chan Yuen Lan v See Fong Mun [2014] 3 SLR
1048” (2015) 79 Conv 163 at 169.
364 Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048 at [152], citing Lau Siew Kim [2008] 2 SLR(R) 108 at [61].
365 Chan Yuen Lan v See Fong Mun, ibid at [152].
366 Jill Hanbury, Modern Equity, 16th edn (Sweet & Maxwell, 2012), para 2–033.
367 See also Simone Wong, “The Iniquity of Equity: A Home-Sharer’s Tale” [2008] SJLS 326 at 327–328.
369 Ibid, p 493.
370 Ibid, p 494.
371 Tang Hang Wu, “Equity and Trusts” (2007) 8 SAL Ann Rev 215 at para 13.8; Debbie Ong and Valerie Thean, “Family Law” (2008) 9 SAL Ann Rev 309 at para 14.62.
372 Tey Tsun Hang, “Resulting Trusts in Singapore” (2011) 23 SAcLJ 607 at para 89.
373 Jonathan Muk Chen Yeen, “Proposed improvements to the division of parties’ beneficial interests beyond the Women’s Charter: Chan Yuen Lan v See Fong Mun
[2014] 3 SLR 1048” (2015) 27 SAcLJ 230 at para 35.
374 Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048 at [86], where V K Rajah JA held that the court would be willing to invoke the “remedy of equitable accounting
to adjust Mr See’s and Mdm Chan’s respective shares of the beneficial interest in the Property”; Alvin See, “A Principled and Structured Approach For
Ascertaining Beneficial Interests in Property Disputes: Chan Yuen Lan v See Fong Mun [2014] SGCA 36” Singapore Law Blog (August 6, 2014) comments that this
has the effect of expanding the types of financial contribution that are relevant to the quantification of beneficial interests under the resulting trust approach.
375 Simone Wong, “The Iniquity of Equity: A Home-Sharer’s Tale” [2008] SJLS 326 at 343.
376 Ibid at 344.
377 Jill Martin, Modern Equity, 12th edn (Sweet & Maxwell, 2012), para 12–006.
378 Sir Peter Millet, ”Equity – The Road Ahead” (1995) 9 TLI 35 at 40.
379 Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669 at 716.
380 [2013] 3 SLR 801.
381 KC Vijayan, “Tycoon’s daughter fails to get share of ex-husband’s wealth” The Straits Times (October 5, 2012)
<http://news.asiaone.com/News/Latest+News/Singapore/Story/A1Story20121003-375277.html> (accessed October 23, 2016).
382 Wee Chiaw Sek Anna v Ng Li-Ann Genevieve (sole executrix of the estate of Ng Hock Seng, deceased) & Anor [2013] 3 SLR 801 at [3].
383 Ibid at [2] and [8].
384 Ibid at [8(a)] and [8(b)].
385 Ibid at [75] and [78].
386 Ibid at [78].

387 Ibid at [82].
388 Ibid at [170].
389 Ibid at [172].
390 Comboni Vicenzo & Anor v Shankar’s Emporium (Pte) Ltd [2007] 2 SLR(R) 1020 at [64].
391 Rawluk v Rawluk (1990) 65 DLR (4th) 161 at 185–186.
392 See Wee Chiaw Sek Anna v Ng Li-Ann Genevieve (sole executrix of the estate of Ng Hock Seng, deceased) & Anor [2012] SGHC 197 at [118] where the Singapore
High Court noted that the remedy is one of last resort.
393 Wee Chiaw Sek Anna v Ng Li-Ann Genevieve (sole executrix of the estate of Ng Hock Seng, deceased) & Anor [2013] 1 SLR 801 at [30].
394 [2015] 3 SLR 1141.
395 Ibid at [36].
396 Sim Bock Eng, “Singapore” in John Riches (ed), The Private Wealth & Private Client Review (Law Business Research, 2012), pp 248–249; see also Tang Hang Wu,
“Let’s call the whole thing off: divorce and trusts in Singapore” (2011) 17(9) Trusts & Trustees 855 at 856.
397 Department of Statistics Singapore, “Share of GDP by Industry” <http://www.singstat.gov.sg/statistics/visualising-data/charts/share-of-gdp-by-industry> (accessed

on April 23, 2016).
398 Channel News Asia, “Singapore’s asset management industry sees robust growth” (August 20, 2015) (accessed on April 23, 2016).
399 The Straits Times, “More millionaires choosing to relocate to Singapore over Hong Kong” (November 18, 2015) (accessed on April 23, 2016).

2016 - 10 - 17 PAGE 271

Chapter 10: The Law Relating to Children
Chapter 10
The Law Relating to Children

Raymond Yeo

10.2 The Relevant Governing Legislation 272
10.3 Definition of “Child” 274
10.4 The Orders That Can Be Made by the Court 275
A. Custody, Care and Control 275
1. Sole custody or joint custody 276
2. Care and control 278
B. Access 279
C. Financial Support for the Child 282
1. During the course of marriage 283
2. During divorce proceedings 286
3. Variation of maintenance orders 286
10.5 Factors that the Court Shall Take Into Account When Making Orders Pertaining to Children 286
A. Both Parents Are of Equal Standing 286
B. Welfare Principle 288
C. Wishes of the Parents and the Child 288
D. Maternal Bond 289
E. Continuity of Care 289
10.6 Welfare Reports 290
10.7 Other Third-Party Reports 291
10.8 Relocation 293
10.9 Hague Convention 294
10.10 Changing a Child’s Surname 295
10.1 INTRODUCTION
[10.1.1] This chapter will deal with the relevant legislations and procedures governing children in Singapore.
[10.1.2] The issues concerning the children arise when marriages are dissolved or when relationships between unmarried parents
break down. Such issues concerning the future care arrangements as well as financial support for the children must be resolved, either
amicably through parties’ agreement or by determination of the court.
[10.1.3] In the Singapore context, legislation has been passed and encapsulated in existing statutory provisions to protect children from
the traumatic effects stemming from divorce proceedings. The Family Justice Courts (“FJC”) of Singapore is empowered to direct
divorcing parties with children to undergo mandatory counseling and mediation. Failure to comply with such directions may result in
the divorce proceedings being stayed or with cost penalties ordered against the defaulting party. The purpose is to assist parties to focus
on the interest and welfare of the child and with an aim for parties to reach an agreement on the future care arrangements for the child
without engaging in protracted litigation.
[10.1.4] The main focus of the FJC and the governing legislation has always been to protect the best interest of the child. This can be
gleaned from section 123 of the Women’s Charter (Cap 353) which restricts the court from making final any judgment of divorce or
nullity of marriage or grant a judgment of judicial separation unless the court is satisfied that:
1. Arrangements have been made for the welfare of the child and that those arrangements are satisfactory or are the best that can
be devised in the circumstances; or
2. That it is impracticable for the party or parties appearing before the court to make any such arrangements.
[10.1.5] The court is of course permitted to depart from this restriction if there are special circumstances making it desirable for the
interim judgment to be made final and where the court has obtained a satisfactory undertaking from either one or both of the parties to
bring the question of the arrangements for the child before the court within a specified time.
10.2 THE RELEVANT GOVERNING LEGISLATION
[10.2.1] The relevant legislation is set out in various statutory provisions including:
1. Adoption of Children Act (Cap 4);

2. Children and Young Persons Act (Cap 38);
3. Guardianship of Infants Act (Cap 122) (“GIA”);
4. International Child Abduction Act (Cap 143C); and
5. Women’s Charter (Cap 353) (the “Charter”).
[10.2.2] The other subsidiary legislation and practice guides would include the following:
1. Family Justice Rules 2014; and

2. Family Justice Courts Practice Directions 2015.
[10.2.3] In essence, the provisions of the Charter govern children who are the subject-matter of divorce proceedings whilst provisions
of the GIA govern children of a couple who is unmarried or not undergoing divorce proceedings.
[10.2.4] There has been some debate as to the party who is entitled to make an application under the GIA.
[10.2.5] This issue was discussed in the case of CZ v DA 1 in which a grandmother of the child had alleged that the parent had neglected,
ill-treated and mentally abused the child. She had applied in the FJC under the GIA to be appointed the guardian of the child. Her
application was dismissed by the District Judge who had held:
The approach laid down by all the English cases above in a custodial fight between natural parents and a third party or non-
immediate family member, is this. The Court starts from the position that the natural parents have the primary right to have
custody of their child and it is the basic right of the child to be brought up by the persons who gave him life. It then considers
whether the parents are suitable care-givers of the child. The Court is not permitted to conduct a comparison or balancing exercise
between both households. The question is not which is the better home for the child or whether the child has a brighter future with
one or the other party.
[10.2.6] In the case of CZ v DA, the grandmother had also applied for access to the child in the event that the court did not award
custody of the child to her. This was opposed by the parents. The Family Court had held that the law does not confer on the
grandmother any right to access to the child, unlike that of a non-custodial parent. On appeal, the High Court had held that the
grandmother was, without more, not entitled to apply for an order for access to her grandchild. 2
[10.2.7] However, in a separate case of Lim Chin Huat Francis & Anor v Lim Kok Chye Ivan & Anor, 3 the Court of Appeal had to consider
an application involving two couples who wanted to adopt a little girl called Esther. The applicants were not the parents nor the
guardians appointed under the GIA. The High Court had defined the lawful guardian to be any person who has the charge of or control
over the child. The Court of Appeal held that the lawful guardian is to be a person who has the charge of or control over a child at the
material time. Thus, non-parents like the company in the case were “guardians” with the locus standi to make an application under the
GIA.
10.3 DEFINITION OF “CHILD”
[10.3.1] The statutory definition of “child” is set out at section 122 of the Charter which states as follows:
In this Chapter, wherever the context so requires, “child” means a child of a marriage as defined in section 92 but who is below the
age of 21 years.
[10.3.2] Section 92 of the Charter goes on to further define “child of the marriage” which states as follows:
means any child of the husband and wife, and includes any adopted child and any other child (whether or not a child of the
husband or of the wife) who was a member of the family of the husband and wife at the time when they ceased to live together or
at the time immediately preceding the institution of proceedings, whichever first occurred; and for the purposes of this definition,
the parties to a purported marriage that is void shall be deemed to be husband and wife.
[10.3.3] There is no equivalent statutory definition of “child” or “infant” provided for in the GIA.
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10.4 THE ORDERS THAT CAN BE MADE BY THE COURT
[10.4.1] There are various orders that can be made by the court, including:
1. Custody, care and control arrangements for the child;

2. Access arrangements for the child; and
3. Financial support for the child.
A. Custody, Care and Control

[10.4.2] It is provided for in section 124 of the Charter that:
In any proceedings for divorce, judicial separation or nullity of marriage, the court may, at any stage of the proceedings, or after a
final judgment has been granted, make such orders as it thinks fit with respect to the welfare of any child and may vary or
discharge the said orders, and may, if it thinks fit, direct the proceedings be commenced for placing the child under the protection
of the court.
[10.4.3] Whilst the provision confers the authority on the court to make orders for custody of a child, the Charter remains silent on the
strict definition of custody, care and control and access. The definitions of these terms are found in case precedents and authorities.
[10.4.4] The closest we have on the definition of custody is set out in section 126(1) of the Charter which states that the person who is
conferred custody be entitled to decide all questions relating to the upbringing and education of the child.
[10.4.5] The lack of a statutory definition of the concepts of custody and care and control was discussed by the Court of Appeal in the
case of CX v CY. 4
[10.4.6] The apex court explained that custody as a general concept is divided into two smaller packages of “care and control” and
residual “custody”. To put it simply:
1. “Care and control” concerns the day-to-day decision-making; and

2. Residual “custody” concerns the long-term decision-making for the welfare of the child.
[10.4.7] This effectively means that the parent with whom the child resides is the parent having care and control of the child. This
confers on the parent the authority over the child’s simple ordinary day-to-day activities such as the preparation for school, what the
child should have for breakfast, lunch or dinner.
[10.4.8] A custody order on the other hand gives the parent the right to decide on long-term major aspects concerning the child’s
upbringing. Such issues would invariably include health/medical, education and religion.
1. Sole custody or joint custody

[10.4.9] The provisions of the Charter do not draw a distinction between the concepts of sole custody orders and joint custody orders.
[10.4.10] We know that section 126(1) of the Charter permits the parent given custody to decide on all questions relating to the
upbringing and education of the child. This will result in the custodial parent making unilateral decisions for and on behalf of the child
to the exclusion of the other parent.
[10.4.11] The Court of Appeal in the case of CX v CY expressed its view that the preferable position in the law of custody is to preserve
the concept of joint parental responsibility. Hence, the general rule of thumb is for the court to make orders for joint custody unless
there are exceptional circumstances to warrant an order for sole custody. Such exceptional circumstances may include situations
where:
1. One parent physically, sexually or emotionally abuses the child; and

2. The relationship of the parties is such that cooperation is unsuccessful even after the avenues of mediation and counselling
have been explored, and the lack of cooperation is harmful to the child.
[10.4.12] What is clear is the Court of Appeal’s endorsement of the concept of joint custody orders. Effectively, it is no longer
appropriate to grant sole custody orders just because there is a reasonable prospect that the parties will not cooperate. Inability to
cooperate during the period of divorce or custody proceedings does not equate to an inability to agree in the future long-term interest of
the child.
[10.4.13] The Court of Appeal had also reiterated the principles enunciated in an earlier decision of Chan Teck Hock David v Leong Mei
Chuan: 5
It is our opinion that the interest of the children demands that both parents should be involved in determining what is best for
them in that regard. While as between parties there is bitterness, it does not necessarily follow that this would spill over in
determining the educational needs of the children. The court should not decree an arrangement which gives an impression to a
child that either the father or mother does not care about his welfare. As we have no doubt that both parents have and will
continue to have the children’s interest at heart, we do not think that there would be any insurmountable difficulties. In the
unlikely event that an impasse should arise, the assistance of the court should always be sought.
[10.4.14] Such an approach would encourage both parties to amicably resolve their differences and work towards a mutual decision for
the best interest of their child.
[10.4.15] Furthermore, with the court’s approach of preserving joint parental responsibility, it will also avoid the uncooperative parent
from being allowed to benefit from his or her own intended lack of cooperation.
[10.4.16] In any event, in a genuine case of an impasse, the parties will always have an unfettered right to return to court to have the
issue adjudicated and determined by the court. This, of course should only be of last resort.
[10.4.17] Many parties hold the mistaken impression that a sole custody order accords them unlimited parental rights to decide on all
issues for and on behalf of the child, including potential relocation of the child. Even with an order for sole custody, section 126(3) of the
Charter prohibits a parent from taking a child out of the jurisdiction of Singapore for more than one month without the written consent
of both parents or the leave of the court. In fact, section 126(2)(e) of the Charter empowers the court to prohibit the person given
custody from taking the child out of Singapore.
[10.4.18] Attention is also drawn to section 131(1) of the Charter which empowers the court to make orders to restrain a parent from
taking the child out of Singapore.
[10.4.19] Section 131(1) provides as follows:
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, or care and control, 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.
[10.4.20] Section 131(2) empowers the court to make such restraining orders against any third party. It should also be noted that this
provision may be invoked by any interested party.
[10.4.21] Failure to comply with the restraining order is punishable as contempt of court.
2. Care and control

[10.4.22] Simply put, the parent with whom the child resides is the parent having care and control of the child.
[10.4.23] In the past, the courts have always made orders which result in the child living with one parent and visiting the other parent
for access.
[10.4.24] However, we have since departed from the simple concept of conferring care and control orders on one parent. The FJC has
also endorsed different variations of orders including sole and shared or split care and control orders.
[10.4.25] It may be argued that these terminologies used may be semantics in nature, nothing more than labels to assuage the hurt
feelings and emotions of the other parent with whom the children do not live with for the majority of the time.
[10.4.26] However, such orders for joint or split care and control may be encouraged as they assist to help parties preserve the notion
of joint parenting responsibility. Such orders should set out in detail how the child’s time with each parent should be shared. The
apportionment of time between parents need not necessarily be on an equal basis. More importantly, as the care and control becomes
shared or split between the parents, there is no longer any referencing to the usual access terms. This is unlike the traditional order of
having one parent being the primary caregiver and the other parent having rights of access only.
[10.4.27] This concept of joint or split care and control is not unique to Singapore. It has found favour with other jurisdictions including
Hong Kong.
[10.4.28] On a very practical note, there is no reason why the courts should object to or not approve orders for joint or split care and
control so long as the orders are well thought out and in the best interest of the child. There is however one caveat, such orders do
require a high level of cooperation between the parties as they jointly shoulder the day-to-day logistics and administrative
arrangements for the upbringing of their child.
[10.4.29] The courts in Singapore take the position that siblings should not be separated unless there are very exceptional
circumstances to justify why the siblings should reside separately from each other. It is important for children with siblings to continue
to have support from each other. Even if both parties consent to an order to have the children live separately from each other, the court
will require affidavits to be filed by parties explaining why such an arrangement is in the best interests of the children.
B. Access
[10.4.30] As with the concepts of custody, care and control, there is also no statutory definition of “access”. However, section 126(2)(c)
and (d) of the Charter empowers the court to include in the order for custody the following:
(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 ...
[10.4.31] Accordingly, access is the right of the child to spend time and to maintain an ongoing relationship with the parent who does
not reside with them.
[10.4.32] Access can be denied by the court if it is established that access will not be in the best interest of the child.
[10.4.33] The parent with whom care and control vests is expected to facilitate access between the child and the other parent.
[10.4.34] Access can be loosely categorised into two forms:
1. Reasonable or liberal access; and

2. Scheduled or specified access.
[10.4.35] Reasonable or liberal access allows the parties to make access arrangements amongst themselves. This requires some level of
flexibility and cooperation between the parties. The parent will make prior arrangements with the parent having care and control to
spend time with the children including the time period for access and the venue for the handover for access to take place.
[10.4.36] Scheduled or specified access requires the details of the access arrangements to be spelt out in the order of court. This
includes setting out the details for the access period and the venue for the handover.
[10.4.37] Examples of specified access arrangements may include:
1. Weekday access on Tuesday from 6.00 pm to 9.30 pm;

2. Overnight weekend access from Friday at 6.00 pm to Saturday at 9.30 pm;
3. Alternate public holiday from 6.00 pm on the eve of the public holiday to 9.30 pm on the day of the public holiday; and
4. Half of the children’s school term breaks in March, June, September and November/December with the mother taking the first
half of the holidays.
[10.4.38] Special provisions can be made for overseas access including setting out consequential directions for the furnishing of
travelling itinerary and contact details during the overseas trip. Orders should also be put in place for the handover of the children’s
passports before and after the return of the trip. 6
[10.4.39] In certain situations, the court can also make orders for supervised access. This requires a third party to be present
throughout the duration of the access session. The third party supervising the access session can be the parent having care and control
of the child or a neutral party to be appointed by the court. 7 There are also situations where the courts do not endorse a request for
supervised access on the basis that there was no necessity for such a condition to be imposed. 8
[10.4.40] Orders for supervised access can be considered where:
1. The parent having access has not been in contact with the child and there are concerns with any potential adverse reactions by
the child during the access periods; and
2. There were previous incidents of violence and abuse by the parent having access to the child.
[10.4.41] In high conflict families, the parents may need a safe and natural environment for the children to spend time with the parent
not having care and control. Under such circumstances, it is not uncommon for the FJC to make orders for Supervised Exchange or
Supervised Visitation. Such services are provided by the Divorce Support Specialist Agency (“DSSA”). In a situation concerning
Supervised Exchange, an appropriate case worker, who is assigned to the family, will supervise the transfer of the child from the care
and control parent to the non-care and control parent. In a situation concerning Supervised Visitation, an appropriate case worker, who
is assigned to the family, will supervise the access sessions between the child and the non-care and control parent. The access session
will take place at the premises of the agency or at any other suitable area at the discretion of the case worker who will intervene only
when necessary. In most situations, the FJC can direct that a report be furnished to the court by the DSSA and a review of the access
arrangements can be called for by the FJC.
[10.4.42] It should be noted that the orders for supervised access should not continue indefinitely. It is for this reason that the courts
often schedule access reviews to chart the progress of the relationship of the child and the parent having access. Once the child reunites
and re-establishes the relationship and bonds with the parent having access, supervised access can be lifted and additional access to be
implemented on an incremental basis.
[10.4.43] With the advancement of technology, access arrangements are no longer restricted to physical visitations by the parent and
the child. Electronic access arrangements are also endorsed and approved by the courts and these can include contact through emails,
Skype, phone access and text messaging.
[10.4.44] Strict conditions can also be imposed by the courts on the access sessions. In the case of Koh Cher Hau v Seah Poh Suan, 9 the
learned District Judge had made an order prohibiting the husband from taking any other person other than persons closely related to
him to accompany him and the child for an overseas holiday. The court had reasoned that the purpose of granting the husband liberal
access to the child was basically to enable both father and son to build up a strong bond together and the presence of a third party
namely a woman having a relationship and not married to the husband/father would not be beneficial to the bonding process.
[10.4.45] In another case of Jaya Latchmee d/o Krishnasamy Maniam v Vijaya Kumaran Krishnan, 10 the court had made a specific order
that the husband was not to visit the children at their school or anywhere else outside the access hours. This was due to the fact that the
elder child had complained about the violence of the father and the embarrassment he caused her by telling her friends and teacher all
sorts of stories about the family.
C. Financial Support for the Child

[10.4.46] Pursuant to the provisions of the Charter, the court is empowered to make maintenance orders for the support of the child.
Such orders can be made either during the course of the marriage or as part of the divorce proceedings. For immediate financial
support, the court is also empowered to make interim maintenance orders pending the outcome of the divorce proceedings.
[10.4.47] Contrary to popular misconception, the duty to maintain the child does not fall on the father alone. The duty to maintain the
child falls on both parents save that the parent who earns more will bear a larger portion of the child’s expenses.
[10.4.48] This duty was considered by the FJC in Sokhvindar Kaur d/o Mohan Singh v Sukhdev Singh s/o Jaswant Singh 11 wherein the
court had held:
Although the wife had at first claimed maintenance for herself in the hearing of the ancillary matters, this claim was not proceeded
with as the wife had earlier informed the court at the hearing of the petition that she was not seeking maintenance for herself. She
was, however, claiming maintenance for the child, and it was necessary for me to consider what the expenses of both the husband
and the wife were in deciding what the maintenance of the child should be. This is because although both parents have a duty to
maintain the child (see s 68, Women’s Charter), the parent who has the greater means to do so should bear the heavier burden.
[10.4.49] This joint duty is set out in section 68 of the Charter and it provides a statutory definition of what maintenance consists of:
Except where an agreement or order of court otherwise provide, 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 costs thereof.
[10.4.50] The statutory provision in section 68 of the Charter was referred to by the Court of Appeal in AUA v ATZ 12 in which the court
had re-affirmed both parents’ duty to maintain the children when it held that:
The central principle is that each biological parent has an independent and non-derogable duty to maintain his/her children
whether directly, through the provision of such necessities as the child may need, or indirectly, by contributing to the cost of
providing such necessities.
[10.4.51] The Court of Appeal had also further opined that:
a parent cannot contract out of the obligation to provide for his/her child.
1. During the course of marriage

[10.4.52] Section 69(2) of the Charter empowers the court to make maintenance orders for a child during the subsistence of a party’s
marriage. However, what has to be established is that the parent has neglected or refused to provide reasonable maintenance for the
child.
[10.4.53] Section 69(2) also empowers the court to make the following types of maintenance orders:
1. Monthly maintenance; or
2. Lump sum maintenance.
[10.4.54] In the case of AYM v AYL, 13 the Court of Appeal had considered the principles concerning lump sum maintenance payments
and had affirmed an order made by the court below for a lump sum maintenance payment for the children. The following principles
were considered:
(a) A lump sum payment allows for a clean break in the marriage and should be availed of whenever feasible. 14 Such a clean
break may help avoid further litigation and acrimony between the parties. 15
(b) A lump sum payment should not be ordered if it would cripple the husband financially. 16
(c) A lump sum payment is appropriate where there is reason to believe that defaults in payment may be likely. 17
[10.4.55] Section 69(3) of the Charter prescribes that an application for the maintenance of the child can be made by either of the
following:
1. Any person who is a guardian or has the actual custody of the child;
2. Where the child has attained the age of 21 years, by the child itself;
3. Where the child is below the age of 21 years, any of his or her siblings who has attained the age of 21 years; or
4. Any person appointed by the Minister.
[10.4.56] The decision of the judge on the amount of maintenance to be awarded by the court depends on several factors that are set
out in section 69(4) of the Charter. These factors include:
1. The parties’ and the child’s financial needs;

2. The parties’ and the child’s income, earning capacity (if any), property and other financial resources;
3. The parties’ and the child’s physical or mental disability (if any);
4. The age of each party to the marriage and the duration of the marriage;
5. The contributions made by each of the parties to the marriage to the welfare of the family, including any contributions made by
looking after the home or caring for the family;
6. Standard of living;
The manner in which the child was being, and in which the parties to the marriage expected the child to be, educated or
7. trained; and
8. Parties’ conduct.
[10.4.57] An order for maintenance will continue in force until the child reaches 21 years of age. However, the court is empowered to
order the maintenance payable beyond the child’s 21st birthday if the child is:
1. Mentally or physically disabled;

2. Undergoing full-time National Service; 18
3. Undergoing training or studies at an educational establishment; or
4. Having any special circumstances which will justify an extension of the order.
2. During divorce proceedings

[10.4.58] As part of the divorce proceedings, the court is empowered to make maintenance orders for the child. This is set out in section
127(1) of the Charter which states as follows:
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.
3. Variation of maintenance orders

[10.4.59] It is to be noted that maintenance orders are not cast in stone. The quantum of maintenance can always be varied by way of
an application to the court.
[10.4.60] Section 72(1) allows the court to rescind or vary any order for monthly maintenance for the child provided the applicant is
able to establish on proof of a change in circumstances of the parties or child or any good cause being shown to the satisfaction of the
court. The court is also entitled to take into account the changes in the general costs of living which may have occurred since the last
order made.
10.5 FACTORS THAT THE COURT SHALL TAKE INTO ACCOUNT WHEN MAKING ORDERS PERTAINING
TO CHILDREN
A. Both Parents Are of Equal Standing

[10.5.1] Section 3 of the GIA sets out the following:
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.
[10.5.2] What is therefore clear is that the mother does not have any superior right over the father and vice versa. When considering
the issue of custody, care and control, the court must consider both parents as equals.
[10.5.3] Curiously, the equality of the parents is not spelt out in the provisions of the Charter.
[10.5.4] The factors to be taken into consideration by the court have been set out in the case of Wong Phila Mae v Shaw Harold. 19 Some
of these relevant factors would include:
1. The conduct of the parties;

2. 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;
3. A young child would be best looked after by its mother;
4. Which party can offer better security and stability; and
5. That siblings should not be separated.
[10.5.5] In the case of ABW v ABV, 20 the High Court reiterated the definition of “welfare” and stated:
The concept of welfare is not a narrow one: it has to be considered in the widest sense and is not to be measured by money or
physical comfort only. The child’s moral and religious well-being must be taken into account and his relationships with his siblings
and other relatives. It is important to maintain the ties of affection the child enjoys.
...
The decision as to what is in the best interest of any particular child depends on the circumstances of the individual case and the
individual child. However, this does not mean that the decision is a subjective one for the Judge hearing the case. Rather, a number
of relevant circumstances should be taken into account when arriving at a decision. The stability factor is but one such
circumstance. Others include:
1. The need for both parents to have an involvement in the child’s life;
2. Which parent shows the greater concern for the child;
3. The maternal bond;
4. The child’s wishes; and
5. The desirability of keeping siblings together.
[10.5.6] We shall now address some of these factors in detail.
B. Welfare Principle
[10.5.7] Both the Charter (section 125) and the GIA (section 3) stipulate that the paramount consideration is to be the welfare of the
child.
[10.5.8] However, both statutes do not provide a statutory definition of what the concept of welfare entails or encompasses.
[10.5.9] We therefore seek guidance from the case of Tan Siew Kee v Chua Ah Boey 21 wherein the High Court had held that:
The expression “welfare” under section 3 of the Guardianship of Infants Act was to be taken in its widest sense. It meant the general
well-being of the child and all aspects of his upbringing, religious, moral as well as physical. His happiness, comfort and security
also went to make up his well-being. A loving parent with a stable home was conducive to the attainment of such well being. It was
not to be measured in monetary terms.
C. Wishes of the Parents and the Child

[10.5.10] Section 125(2) of the Charter provides that 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 to:
1. The wishes of the parents of the child; and

2. The wishes of the child, where he or she is of an age to express an independent opinion.
[10.5.11] In a custody dispute, it is more often than not that both parents would wish for their child/children to be placed under his or
her custody, care and control. It comes as no surprise that the FJC has tried various ways and means to ascertain the wishes of a child
and this is done through several methods including:
1. Welfare reports;
2. Child Representatives’ reports; and
3. Expert reports.
[10.5.12] This will be dealt with in the paragraphs below.
D. Maternal Bond
[10.5.13] The Court of Appeal emphasised the importance of the presence of maternal care for a young infant child in the case of Soon
Peck Wah v Woon Che Chye. 22 The court had held:
The guiding principle in proceedings before any court with regards to the custody or upbringing of a child was that the welfare of
the child was the first and paramount consideration.
...
All other things being equal, a very important factor to bear in mind was that we were dealing with an extremely young infant. We
felt that the maternal bond between the appellant and the infant was a pivotal consideration here. The bond between the natural
mother and her child is one of the most unexplainable wonders of human nature. It should never be taken for granted or slighted.
We have all heard of the story of the mother who fought a tiger with her bare hands to save her child from the ferocious beast.
Such is the love and sacrifice of the maternal instinct. Since the beginning of civilization to this age of consumer materialism, the
mother’s love for her child remains just as strong and unchanging. This court would be doing a disservice to justice and humanity if
it turned a blind eye to the most fundamental bond of mankind – between a mother and her child, by taking the child away from
the mother.
E. Continuity of Care
[10.5.14] The concept of continuity or stability of the care arrangements was endorsed by the High Court in the case of ABW v ABV. 23
[10.5.15] The general view is that it is in the best interest of the child for status quo to be preserved with the least minimal of disruption
to be introduced to the child’s life.
[10.5.16] However, the Court of Appeal had in the case of Wong Phila Mae v Shaw Harold 24 stated that although it was not disputed that
taking a child from an environment he or she was used to was not necessarily against his or her long-term interest, it was the
circumstances of each case which would determine whether a switch was in the best interest of a child.
[10.5.17] The Court of Appeal had also in the case of Soon Peck Wah v Woon Che Chye 25 taken the child out of the respondent’s care
even though the court below had made a finding of fact that the child lacked nothing in the two years since the respondent took over his
care and control.
[10.5.18] The FJC is always mindful that the children’s living arrangements may have been unilaterally put in place by one parent in
creating a status quo to gain a tactical advantage for the custody proceedings. This was an issue that was canvassed in the case of NM v
NN 26 wherein the District Judge had stated as follows:
The father’s counsel argued that it would be in the best interest for TJ and AY to remain with the father as this was the status quo. I
disagreed. It would be wrong for a court to accept this as the status quo as it is one forced upon all parties by the unilateral act of
one parent. Further, it was the “status” from only a week before the hearing, when the father had refused to return the 2 children to
the mother.
[10.5.19] What is clear is that the factor of status quo is always a secondary consideration and should always be subject to the
paramount interest of the child.
10.6 WELFARE REPORTS
[10.6.1] Practitioners should discourage the parties from submitting affidavits/statements written by their children. If the voice of the
child has to be heard, there are several provisions that can facilitate this.
[10.6.2] Section 130 of the Charter provides:
When considering any question relating to the custody of any child, the court shall, whenever it is practicable, have regard to the
advice of a person, whether or not a public officer, who is trained or experienced in child welfare but shall not be bound to follow
such advice.
[10.6.3] Rule 30 of the Family Justice Rules 2014 also empowers the court to appoint a Child Representative in any action or proceedings
involving a child or the custody or welfare of a child. This is to be read with Part IV, paragraph 8 of the Family Justice Courts Practice
Directions 2015.
[10.6.4] There are several reports that the FJC can call for to assist the court in determining the appropriate custody and/or care and
control orders to be made. These reports can also assist the court in determining the appropriate access orders to be made for the child.
Such reports include:
1. Social welfare report;

2. Custody evaluation report;
3. Access evaluation report; and
4. Child Representative’s report.
[10.6.5] In the High Court case of Noraslenda Binte Abdul Gapor v Japar bin Ibrahim, 27 the judge had held:
... social welfare officers prepare these reports at the court’s request on a confidential basis and as independent and impartial
observers of the interaction between the child and the individual parents as well as other significant persons concerned. They also
assess the environment in which the child would be brought up by each of the parents to whom the court is likely to grant custody
care and control of the child.
[10.6.6] These reports are also often used to elicit the wishes of a child especially where the child is of sufficient maturity and where he
or she is of an age to express an independent opinion.
10.7 OTHER THIRD-PARTY REPORTS
[10.7.1] Practitioners should also discourage parties from taking their children to be evaluated by psychologists, psychiatrists or any
medical professional if they intend to rely on such reports for the proceedings.
[10.7.2] Rule 35 of the Family Justice Rules 2014 provides as follows:
Where a child is a party to or a subject of any action or proceedings, or where any action or proceedings involve the welfare or
custody of a child, a party must not, without the leave of the court, cause the child to be examined or assessed by any registered
medical practitioner, psychologist, counsellor, social worker or mental health professional for purpose of preparing expert
evidence for use in those proceedings.
[10.7.3] Part IV, paragraph 9 of the Family Justice Courts Practice Directions 2015 also provides the stipulated format for the following
documents to be prepared:
1. The application; and

2. The draft letter to the expert witness.
[10.7.4] Strict compliance with the rules is essential to ensure that the children’s interests are protected. It is not in the children’s best
interests to be subjected to numerous psychological or psychiatric assessments and evaluations especially if the parents undertake such
assessment in their search for a report in their favour.
[10.7.5] In the case of JAC v JAD, 28 the FJC had held that to subject the children to a psychological assessment in the case was
unnecessary and undesirable. The learned judge had referred to the cases of L v J 29 and BF v BG. 30
[10.7.6] In the case of L v J, 31 the High Court had disapproved the use of psychiatric assessment of children involved in custody
disputes unless directed by the court and said:
children should be kept as far away from the battlefield as possible and should not be forged into weapons into the war between
the parents.
[10.7.7] The court had also opined that
parties in every case ought first to consider whether a psychiatric assessment can truly be in the interest of the child. There must be
adequate consideration for the young and developing mind; taking care than an exercise of this nature does not exacerbate feelings
of guilt, anxiety and fear arising from the breakup of the family.
[10.7.8] In a separate case of BF v BG, 32 the District Judge had opined:
In my view, the best course of action in any custody and access dispute is for it to be resolved, whether by agreement or through a
court hearing, without the children being taken to see any counsellor or psychiatrist at all. Seeing a counsellor or psychiatrist for an
assessment in order for the custody and access disputes to be resolved (as opposed to seeing a counsellor or psychiatrist for
therapeutic purposes) may damage the child by enhancing his awareness of the dispute between the parents, making him acutely
conscious that he is the center of this dispute, and giving him the idea that his responses may have some influence in this dispute,
and that he must therefore bear some responsibility in respect of the outcome.
10.8 RELOCATION
[10.8.1] In the preceding paragraphs, we had discussed that section 126(3) of the Charter prohibits a person from taking the child who
is the subject of a custody order out of Singapore unless with the written consent of both parents or with leave of court. Accordingly,
any parent who wishes to relocate with the child out of the jurisdiction of Singapore would either have to seek the other parent’s
written consent or the leave of the court.
[10.8.2] The issue of relocation was discussed by the Court of Appeal in the case of BNS v BNT. 33 In cases of prospective relocation, the
focus by the court would still be the welfare of the children. In fact, the court had held that:
The interest of the parents must, in every case, be subordinated to that of the children. It follows from this that the impact of the
courts’ decision on the parents is not relevant per se: it is relevant only to the extent that it is shown to have an impact upon the
children.
[10.8.3] In this case, the wife had applied for a permanent relocation of the two children to Canada. The wife had succeeded at first
instance in the Family Court. 34 The husband had appealed against the decision in favour of relocation and the decision was overturned
on appeal by the High Court. 35
[10.8.4] The Court of Appeal had taken into account that the children enjoyed a meaningful relationship with their father, who had
taken active steps to be involved in the children’s lives. The Court of Appeal had no doubt that it was in the children’s best interests for
that parent-child bond to be preserved and thus were not inclined to allow relocation as that would impact adversely on the closeness
of the relationship. The Court of Appeal had upheld the High Court’s decision and had dismissed the wife’s application for a relocation of
the two children.
10.9 HAGUE CONVENTION
[10.9.1] Singapore is a Contracting State under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the
“Hague Convention”).
[10.9.2] The relevant governing legislation is set out in the International Child Abduction Act (Cap 143C) and guidance ought to be
sought from rules 162–174 of the Family Justice Rules 2014. Specific guidance has also been prescribed under Part X, paragraph 44 of
the Family Justice Courts Practice Directions 2015. Special attention should be paid to the Schedule to the International Child Abduction
Act (Cap 143C). The objective is to secure the prompt return of children wrongfully removed to or retained in any Contracting State as
well as to ensure that the rights of custody and of access under the law of one Contracting State are effectively respected in the other
Contracting State.
[10.9.3] Article 12 of the Schedule to the International Child Abduction Act (Cap 143C) provides as follows:
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the
proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year
has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child
forthwith.
The judicial or administrative authority even where the proceedings have been commenced after the expiration of the period of
one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is
now settled in its new environment.
...
[10.9.4] Article 13 of the Schedule to the International Child Abduction Act (Cap 143C) provides as follows:
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State, is not bound
to order the return of the child if the person, institution or other body which opposes its return establishes that:
(a) The person, institution or other body having the care of the person of the child was not actually exercising the custody rights
at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
(b) There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the
child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being
returned and has attained an age and degree of maturity at which it is appropriate to take account of its view.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the
information relating to the social background of the child provided by the Central Authority or other competent authority of the
child’s habitual residence.
[10.9.5] The above factors were taken into account by the Court of Appeal in the case of BDU v BDT. 36 This case involved an application
made under section 81 of the International Child Abduction Act (Cap 143C) and is centered on a 3-year-old child, his Singaporean
mother and his German father. The Court of Appeal had held that the court of the country to which the child had been brought should
be concerned only with the return of the child to his or her country of habitual residence from which he or she was first abducted,
subject only to the limited exceptions set out in Article 13 of the Hague Convention. The court is not concerned with the substantive
merits relating to the relevant issues of custody and/or care and control between the parents concerned. The court had made an order
for the return of the child with specific undertakings imposed on the parties.
10.10 CHANGING A CHILD’S SURNAME
[10.10.1] The issue of a mother unilaterally executing a deed poll to change the child’s name was addressed by the Court of Appeal in
the case of L v L. 37
[10.10.2] The Court of Appeal held that the abandonment of the surname and the assumption of another surname was not within the
scope of the child’s upbringing and education conferred upon the mother as the custodial parent. This is despite an earlier order
awarding the mother sole custody of the daughter and there is no statutory prohibition of a parent or sole custodian making such a
change of surname unilaterally.
[10.10.3] The surname of a child was a symbol of her identity and the link between the child and her father. Changing the name of a
child was a serious matter and would not be countenanced by the court unless there were compelling reasons. The mother was not
empowered by the custody order to sever the link between the child and the father by unilaterally renouncing on the child’s behalf her
surname and assuming on her behalf another surname. There was no suggestion that the father was an unfit parent or that it was
undesirable for the child to be known by her original surname.
FOOTNOTES
1 [2004] SGDC 192.
2 See CZ v DA & Anor [2004] SLR(R) 784.
3 [1999] 2 SLR(R) 392.
4 [2005] 3 SLR(R) 690.
5 [2002] 1 SLR(R) 76.
6 See case of TFW v TFX [2014] SGDC 329.
7 See VB v VC [2007] SGHC 186; TFW v TFX [2014] SGDC 329.
8 See TIX v TIY [2015] SGFC 146.
9 District Court Appeal No 5032 of 1998.
10 Divorce Petition No 1246 of 1999.
11 District Court Appeal No 5038 of 1998; Divorce Petition No 3598 of 1996.

12 [2016] SGCA 41.
13 [2014] 4 SLR 559. It should be noted that despite the decision in this case, it is not usual for the courts to order lump sum maintenance for children. However,
in this case, the court had felt that they were satisfied that a lump sum maintenance payment would be in the interests of the children’s welfare as this would
help reduce the occasion for acrimony between the parties.
14 Lee Puey Hwa v Tay Cheow Seng [1991] 2 SLR(R) 196.
15 Wan Lai Cheng v Quek Seow Kee [2012] 4 SLR 405.
16 Lee Puey Hwa v Tay Cheow Seng [1991] 2 SLR(R) 196; Neo Mei Lan Helena v Long Melvin Anthony [2002] 2 SLR(R) 616.
17 Neo Mei Lan Helena v Long Melvin Anthony, ibid; BCS v BCT [2012] SGDC 338.
18 See case of PQR v STR [1992] 3 SLR(R) 744.
19 [1991] 1 SLR(R) 680.
20 [2014] SGHC 29.
21 [1987] SLR(R) 725.
22 [1997] 3 SLR(R) 430.
23 [2014] SGHC 29.
24 [1991] 1 SLR(R) 680.
25 [1997] 3 SLR(R) 430.
26 [2006] SGDC 218.
27 [1991] SGHC 187.
28 [2014] SGDC 379.
29 [1999] SGHC 258.
30 [2004] SGDC 115.
31 [1999] SGHC 258.
32 [2004] SGDC 115.
33 [2015] SGCA 23.
34 See BNS v BNT [2014] SGDC 13.
35 See BNT v BNS [2014] 4 SLR 859.
36 [2014] 2 SLR 725.
37 [1996] 2 SLR(R) 529.

2016 - 10 - 17 PAGE 297

Chapter 11: Practice and Procedure in Relation to Children
Chapter 11
Practice and Procedure in Relation to Children

Ivan Cheong ZH

11.2 The “Golden Thread” in all Applications Concerning Children 299
11.3 Court’s Approach when Considering Applications in Relation to the Children – Move Towards Less Adversarial 301
Solutions
11.4 Implication and Consequences of Commencing Applications Regarding the Children 302
11.5 Divorce Proceedings where at least One Child of the Marriage is a Minor 303
A. Mandatory Mediation/Counselling 303
B. Upcoming Changes With a Greater Emphasis on Insulating Children Whose Parents are Divorcing: Child 305
Inclusive Resolution Process and Other Programmes
C. Relief Sought in Relation to Orders on Custody, Care and Control and Access to the Children of the Marriage As 307
Part of the Divorce Proceedings
1. Custody and care and control 308
2. Access 308
(a) Supervised access 311
(b) Assisted access 312
11.6 Preparation of Pleadings and Applications 313
A. Application For Interim Custody, Care and Control and Access During the Divorce Proceedings 313
1. Procedure after the custody summons application is filed and served 318
2. Hearing of summons 319
3. Directions and interim orders the court may give pending final orders on the summons 320
B. Applications For Custody, Care and Control and Access under the GIA 321
1. Who can file a custody application under the GIA 322
2. Form of application and procedure 324
11.7 Evidence Tendered in Support or in Reply to the Application 325
A. Parties’ Evidence 325
B. Evidence By Other Witnesses 329
C. Evidence By Experts: Assessment of Child By Psychologist or Psychiatrist 330
11.8 Children’s Views – Evidence, Judicial Interview and Child Representative 331
A. Evidence By Children – Children’s Affidavits 331
B. Judicial Interview 333
C. Child Representative 335
11.9 Breach and Enforcement of Orders – Committal 337
11.10 Costs 342
Conclusion
11.11 342
11.D.1 Originating summons 343
11.D.2 Ex parte originating summons 344

11.D.3 Summons 345
11.D.4 Notice on certain judgments 346
11.1 INTRODUCTION
[11.1.1] The law in relation to children for matters such as custody and maintenance in Singapore is primarily set out in the primary
legislation under the Women’s Charter (Cap 353), Guardianship of Infants Act (Cap 122) as well as the International Child Abduction Act
(Cap 143C). There are however a number of primary and subsidiary legislation which taken together form a comprehensive picture of
the powers available to the courts in Singapore when dealing with different matters concerning children in various proceedings. Some
of the said legislation consists of:
1. Adoption of Children Act (Cap 4);

2. Women’s Charter (Cap 353) (the “Charter”);
3. Family Justice Act 2014 (No 27 of 2014) (“FJ Act”);
4. Guardianship of Infants Act (Cap 122) (“GIA”);
5. Family Justice Rules 2014;
6. Children and Young Persons Act (Cap 38);
7. Legitimacy Act (Cap 162); and
8. International Child Abduction Act (Cap 143C).
[11.1.2] This chapter will focus on the practice and procedure where there are children below the age of majority (namely, 21 in
Singapore) for divorce proceedings and applications for custody, care and control and access. Applications involving the issues of
relocating permanently to a foreign jurisdiction with the children and where allegations of abduction of the children by one parent are
made by another will be covered in Chapter 12 (Other Applications Relating to Children).
11.2 THE “GOLDEN THREAD” IN ALL APPLICATIONS CONCERNING CHILDREN
[11.2.1] The paramount consideration to be considered by the court in deciding on the issues of custody, care and control and access is
that of the welfare of the child as expressly provided for in section 125 of the Charter. Indeed, the primary importance of the child’s
welfare trumping all other considerations for all applications concerning children was highlighted in the recent Court of Appeal
decision of BNS v BNT, 1 a case which involved a mother’s application to relocate her children overseas, as “the golden thread that runs
through all proceedings directly affecting the interests of the children”. The apex court expressly held that the paramount importance of
the child’s welfare was such that this principle alone ought to override any other consideration.
[11.2.2] This does not mean that the courts disregard all other factors as being irrelevant when considering applications for the child.
Depending on the application on hand, the court will look at, inter alia, various other factors such as the wishes of the parents of the
child, the wishes of the child where he or she is of an age to express an independent opinion (section 125(2) of the Charter), standard of
living enjoyed by the child and status quo as far as current care arrangements are concerned. What is important and solicitors should
bear in mind when advising their clients on applications concerning the children or relief sought is what would be in the child’s best
interests having regard to the precise facts and circumstances of the case on hand.
[11.2.3] Often, there is a tendency by clients as parents to conflate their own wishes with what they deem to be in the child’s best
interests. A clear distinction must be drawn between the needs affecting the welfare of the children and the beliefs of a parent no
matter how strongly held, which may often be influenced by feelings of anger and animosity towards the other parent. Clients should be
reminded that regardless of the breakdown of the marital relationship and the personal animosity between the parties, they stand in
the same parent-child relationship for which the courts have expressly endorsed the concept of joint parenting. Parties are expected to
set aside their personal misgivings and focus on parenting cooperatively for the child.
[11.2.4] Care should be taken to advise clients that their proposals or wishes should be aligned in accordance with what would be in the
children’s best interests. Demands that another parent be excluded from spending more time with the children or added obstacles
imposed in the other parent’s interaction or involvement in the children’s lives should be discouraged by encouraging the client to
consider the situation from the children’s or the other parent’s perspective. In the final analysis, the client and the practitioner should
not lose sight of the forest for the trees. In the presence of conflicting factors faced by parents and the court when considering
applications for the children, the paramount and indeed the overriding consideration would always be the children’s welfare and what
would be in the children’s best interests.
11.3 COURT’S APPROACH WHEN CONSIDERING APPLICATIONS IN RELATION TO THE CHILDREN –

MOVE TOWARDS LESS ADVERSARIAL SOLUTIONS
[11.3.1] In recent years, there has been a clear move towards a less litigious and adversarial approach in applications concerning the
children as well as for divorce proceedings where children below the age of majority are involved. The introduction of mandatory
counselling and mediation with the enactment of section 50(3A)–(3E) of the Charter in 2011 empowers the court with yet another
weapon in its arsenal of dealing with contentious issues concerning the children. Parties who have at least one child of the marriage
aged below eight years at the time the plaintiff files his or her Writ for Divorce, have to attend the compulsory counselling and
mediation programme at the Child Focused Resolution Centre (“CFRC”). 2
[11.3.2] Apart from the CFRC mandatory mediation programme, mediation in tandem with counselling is often ordered if the court is of
the view that it would be in the children’s best interests for parties to attempt mediation to see if parties can address their concerns and
at times view the issue(s) being litigated from a child-centric approach instead of their own positions which may become entrenched
during acrimonious litigation proceedings.
[11.3.3] Counselling is also ordered in many cases either during the course of applications to run concurrently with mediation or as
part of final orders made in relation to both contested applications for the children (particularly those for custody, care and control or
access) and the ancillary matters. Such counselling which may range from sessions with the trained specialist counsellors in the Family
Justice Courts (“FJC”) to parties’ enrolment in formal structured programmes such as the Child in Between programme conducted by the
Ministry of Social and Family Department or Parenting PACT, a post-order parenting workshop which aims to encourage divorced
parents to work together on co-parenting for the children.
[11.3.4] While not every contested application in relation to children may be successfully resolved at mediation and pursuant to
counselling, it is suggested that the court should avail itself of the option of ordering parties to attend mandatory mediation as much as
possible especially where parties are embroiled in litigation over issues that are not of undue urgency and the resultant deadlock is over
parties’ entrenched (and sometimes unreasonable) positions. Cases for which directed mediation would be a viable option would
include disputes over access terms to the children or the kind of access that the parent whom the children are not currently residing in
is to have.
[11.3.5] Conversely, cases involving urgent issues that need to be adjudicated by the court such as an order prohibiting a parent from
removing the children from the jurisdiction of the Singapore courts and orders for return of the children to their habitual residence in
Singapore by their very nature render mediation inappropriate. The court may still of course order parties to attend mandatory
counselling as part of its final orders made on the urgent application. At the end of the day, mediation and/or counselling are options
available to the court to defuse tensions and encourage parties to come up with a satisfactory arrangement having regard to the child.
Mediation would not be directed by the court if doing so would not be in the child’s best interest.
11.4 IMPLICATION AND CONSEQUENCES OF COMMENCING APPLICATIONS REGARDING THE

CHILDREN
[11.4.1] Clients should be advised on the means of alternative dispute resolution methods to attempt to resolve their differences
regarding the children’s issues. If an amicable resolution is not possible and litigation is the only option, care should be taken to ensure
that the orders sought are not frivolous and can, from an objective point of view, conceivably be justified as being necessary to safeguard
the child’s best interests. Clients should be discouraged from making frivolous and unnecessary applications either on a matter of
“principle” or to “buttress” their positions in the divorce proceedings. The court will consider the impact of litigation and the effect of
any orders sought by a party on his or her application on the children.
[11.4.2] In TCT v TCU, 3 a case in which the husband appealed against an interim maintenance order made in favour of the mother and
child, Valerie Thean JC held at [26] that where a child is involved, a court order (on a party’s application) impacts the child by sending a
signal to the child on the character and conduct of the parent against whom the order is granted. This would strain the parent-child
relationship which would be detrimental to the child as a strong parent-child relationship would be a source of comfort to the child
after divorce. Where a party files an application that is neither necessary nor relevant which is subsequently dismissed, the court held
at [41] that it would not hesitate to order costs against the party who filed the said frivolous application bearing in mind the impact that
such litigation has on the children.
11.5 DIVORCE PROCEEDINGS WHERE AT LEAST ONE CHILD OF THE MARRIAGE IS A MINOR
A. Mandatory Mediation/Counselling
[11.5.1] Since the introduction of mandatory mediation and counselling via the legislated amendments to the Charter, parties with at
least one minor child who file a Writ for Divorce after October 1, 2014 have to attend the CFRC programme. When filing the Writ for
Divorce, the plaintiff has to file a document known as the Proposed Parenting Plan in which he or she sets out the current care and
residential arrangements for the children and what the plaintiff’s proposed plans and orders sought for the children moving forward.
The defendant may indicate in his or her reply to the plaintiff’s Proposed Parenting Plan after he or she enters an appearance and files a
Defence and Counterclaim (if any).
[11.5.2] Where parties have at least one minor child of the marriage, the court will direct parties to attend the CFRC programme to see
if they can reach an agreement on at least the children’s issues during the compulsory child-focused mediation process. The court has
the discretion to decide when to direct parties to attend this CFRC programme. In most cases, where the divorce proceedings are
contested in the sense that the plaintiff and the defendant have either both filed pleadings asking for the divorce to be granted on their
respective pleadings or are contesting the claim, the court would usually direct parties to attend the CFRC programme before the close
of pleadings. The filing of further pleadings is usually held in abeyance pending the outcome of the CFRC programme.
[11.5.3] Under section 50(3B) of the Charter, the court may dispense with the attendance of the parties at the mandatory CFRC
mediation/counselling if it deems that it is in the interests of the parties concerned to do so. Examples where it would conceivably not be
in the parties’ or children’s interests for the mandatory mediation and counselling to occur is where family violence has been committed
either against one parent and/or the children or where the Child Protection Services is involved in the case, often when allegations of
abuse of the children have been levelled against another parent.
[11.5.4] Barring such exceptional cases, the mandatory CFRC mediation serves as an avenue to allow the parties to resolve the divorce
on an uncontested basis and to reach an agreement, if possible, on the children’s issues. It is suggested that this approach of ordering
parties to attend CFRC at an early stage before the close of pleadings where the divorce is contested should be taken as far as is
practicable as it minimises the animosity that inevitably arises with the filing of further pleadings. It is usually when attending the CFRC
programme, that parties are reminded on the futility of extensive litigation and agree to proceed on an uncontested basis for the sake of
the children. For example, parties may agree that the divorce is granted either on the claim or on both the claim and counterclaim with
or without amendments. Such a resolution would also set the stage for parties to focus on their roles as parents towards the children
and facilitate discussion on the children’s issues.
[11.5.5] Practitioners should take note of the recent Women’s Charter (Amendment) Bill 6 of 2016 that was passed by the Singapore
Parliament on February 29, 2016 which includes key amendments to the Charter and greater emphasis on a child-centric approach
when parties commence divorce proceedings. While the amendments in the Bill have yet to come into effect at the time that this chapter
was written, practitioners must be familiar with the amendments and be prepared to advise their clients accordingly. Of key note is the
implementation of a Mandatory Parenting Programme with the introduction of a new section 94A in the Charter which provides that
parties with any minor children are not to file any writ for divorce or counterclaim unless they have completed the mandatory
parenting programme or is given leave by the court to do so.
[11.5.6] The goal of this Mandatory Parenting Programme is to inform divorcing parties of the practical implications of divorce as well
as the impact on their children. This programme entails a one-time two-hour consultation session with a counsellor at a Divorce Support
Specialist Agency (“DSSA”) or agency as of yet to be determined and may also include “self-help” sections in which parties when applying
for the programme have to undergo a self-reflective portion where they would be educated on the impact of divorce on the children as
well as other issues concerning the children that should be addressed such as access and accommodation. If either party fails to attend
or complete the parenting programme, the court has unfettered discretion to make orders it thinks fit which may include but not
limited to staying the proceedings for divorce until the defaulting party completes the parenting programme or making cost orders
against the defaulting party.
[11.5.7] The new amendments (which include amendments to the provisions of the Charter by expressly specifying that the courts have
the power to review agreements, make and vary orders in relation to care and control of the children) are a step in the right direction in
that it forces parents at the outset to consider the impact that a divorce would have on the children. With this, parents would be
compelled to consider the issues in relation to the children such as care and control, care arrangements, access and maintenance sooner
rather than later. However, it remains to be seen if the knowledge imparted to parents in this mandatory programme would effectively
translate into a reduction of the amount of conflict on issues between the children and facilitating greater resolution at an earlier stage.
B. Upcoming Changes With a Greater Emphasis on Insulating Children Whose Parents are Divorcing: Child Inclusive
Resolution Process and Other Programmes
[11.5.8] Along with the existing programmes such as CFRC and options available to the court where the children’s issues are highly
contentious such as the appointment of a Child Representative to present an independent view of what would be in the child’s best
interests, 4 the court has also introduced new measures to help protect children whose parents are divorcing. 5
[11.5.9] One programme involves the Child Inclusive Resolution Process where counsellors will conduct interviews with children who
are caught in between their parents in a high-conflict divorce and are badly affected. The children’s views would then be shared with
their parents so that the parents would have a better understanding of the children’s perspective and hopefully defuse the situation by
getting them to focus on the children.
[11.5.10] Where there is disagreement between parties as to access and/or care arrangements for the children that results in one parent
being excluded from the children’s life, the court may appoint practitioners who have been trained to be equipped as Parenting
Coordinators to help the parents identify the cause of conflict and to manage the conflict by coming up with a parenting plan for the
children. Mental health and social welfare professionals will also be trained as Parenting Coordinators in the future in a nod to the
physiological and social aspects that such conflicts often have on both the children and the parents themselves.
[11.5.11] While further details as to when parents and/or their children would be directed to attend one of these programmes have not
been released at the time this chapter was written, the common thread that runs through these new initiatives is again the emphasis on
the children’s welfare and how to minimise the conflict between warring parents by focusing on cooperative joint parenting where the
children’s needs are placed first.
[11.5.12] Legal practitioners should be prepared to advise their clients that the courts will direct parents to attend these programmes if
the conflict level between the parents is so high such that the children are inevitably being adversely affected due to the parents’
animosity. Focusing on the children’s welfare and their need to have both parents remain in their life despite the breakdown of the
marriage is a positive motivating factor that would impress on parents the impact that their dispute is having on the children. As such,
the hope is that parents would be encouraged to look beyond their personal animosity towards each other and question if their
entrenched positions are held genuinely out of concern for the children’s welfare or influenced in part by the antagonistic feeling they
feel towards the other parent. If parents are able to look beyond their own personal misgivings and focus on cooperative parenting for
the children, the children’s interests would have been advanced in no small manner through the assistance of these new programmes.
[11.5.13] In this regard, while such programmes may in time come to be ordered as a matter of course or as a prerequisite to further
applications being taken up by the parties in relation to the children, they should not be viewed as a panacea to all high-conflict
situations between parents involving the children. Some conceivable situations where it would generally be inappropriate to order
parents and/or children to attend these programmes in lieu of the necessary application include orders for the urgent return of the
children to the primary residence or where there are credible allegations of abuse of the children that warrant their protection. These
programmes may (and should) however still be ordered in conjunction with the applications or as part of the final orders made on
custody applications filed by the parents so as to encourage them to focus on joint cooperative parenting for their children after
certainty is accorded by the relevant court orders.
C. Relief Sought In Relation To Orders on Custody, Care and Control and Access to the Children of the Marriage As
Part of the Divorce Proceedings
[11.5.14] The court’s power to make orders in relation to custody, care and control of the children and access are pursuant to section
124 of the Charter which empowers the court in any proceedings for divorce, judicial separation or nullity at any stage of the
proceedings to make, vary or discharge orders with respect to the child’s welfare.
[11.5.15] A child is defined under section 122 of the Charter as a child of the marriage (who may not been a child of both the husband
and wife but a member of the family of the husband and wife at the time they ceased to live together) below the age of 21 years.
Naturally, it means that a child who has attained the age of 21 is no longer a minor and no orders for custody, care and control or access
may be made even if the child is still financially dependent on the parents due to the fact that he or she is still undergoing their basic
tertiary education and other factors set out in section 69(5) of the Charter.
[11.5.16] At the outset upon commencement of the divorce pleadings, parties would state the orders they are seeking in relation to
custody, care and control and access to the minor children of the marriage in their divorce pleadings. For the plaintiff, the parent would
seek the said orders in his or her Statement of Claim which forms part of the divorce pleadings filed together with the Writ for Divorce.
The defendant would set out the said orders which he or she seeks in relation to the children in his or her defence (if a counterclaim is
not filed) or in the Defence and Counterclaim.
[11.5.17] Clients should be advised by legal practitioners as to the applicable legal principles concerning the children while stressing the
paramount importance that the court places on the welfare of the child and how parents are expected to work together to jointly parent
their children regardless of a breakdown of the marital relationship. Clients should be made to appreciate the distinction between
custody and care and control which is often confused and conflated by parents to mean the same thing. While legal practitioners are
bound to act on their clients’ instructions, it is suggested that empowering clients with the information they need to appreciate the
distinction between the legal concepts of custody and care and control as well as the impact of the intended orders they seek on the
children having regard to the facts of their case would prevent a situation where the orders sought cannot be justified as being in the
children’s best interests.
1. Custody and care and control

[11.5.18] With the benefit of advice, the client would need to consider the orders that he or she is seeking in relation to the children as
part of the final ancillary orders made during the divorce proceedings. The client would first have to decide if he or she is seeking joint
or sole custody. In the absence of any exceptional or extenuating circumstances (such as the child being physically or sexually abused
by the other parent such that continued interaction with that parent would be detrimental to the child’s welfare), the client should be
strongly advised to seek joint custody.
[11.5.19] The client would then have to consider whether he or she is asking for sole care and control or joint care and control.
Generally speaking, an order for joint care and control should only be requested if there is an ongoing arrangement between parents in
which the child is cared for by each parent for an agreed period of time and this arrangement has been working out well. An order for
shared care and control requires the cooperation of both parents to jointly parent their child and is particularly suited for cases where
parents are able to communicate amicably on all issues concerning the children or the children are already used to such a joint care
arrangement which is not disruptive to the children’s schedules. 6 If care and control is on a shared/joint basis, there would be no orders
in relation to access given that the child would be regarded to be under each parent’s care during the period of time they spend with
each parent. Likewise, there would (usually) be no order in relation to maintenance for the children (except perhaps for large items like
education or situation expenses like emergency medical expenses) as each parent would be responsible for the child’s expenses during
the period the child is under their care.
2. Access
[11.5.20] If the client is not asking for care and control or the current access arrangements between the children and the other parent
are problematic and detrimental to the children’s welfare, the client needs to state what kind of access he or she is asking for. The access
orders sought may be for reasonable access with fixed access terms to provide certainty and reduce the chance for conflict where one
parent is either being denied sufficient access to the children or whose conduct is disruptive to the children’s schedule. In many ways,
the details given and orders sought for fixed access terms depend in large part on the relationship between the parents and their ability
to cooperate on parenting issues for the children. If the relationship between parents is highly acrimonious and/or there has been
conflict between the parents on access arrangements for the children, the access terms should be clearly specified to reduce
opportunities for misunderstanding and prevent further litigation.
[11.5.21] Where access terms need to be specified and clarity is sought in the determination of the dates and times that the parent
without care and control is to spend with the children, the client should be advised on the legal position with regards to access (namely
that the children should spend as much time with the parent who does not have care and control as is reasonably possible) and how the
court is likely to order the fixed access terms. In many cases, the long school holidays (in June and December) as well as public holidays
are divided equally between the parties. Such an order may provide for the parent without care and control to have either the first or
second half of the long school holidays for the current year to be alternated with the second or first half on subsequent odd/even years.
An alternative would be for the children to spend the entire specified holidays with one parent on odd years and with the other parent
on even years. Public holidays may be shared where the children spend alternate public holidays with each parent, with separate access
orders being made for important public holidays celebrated by the family such as Christmas and Chinese New Year holidays. The access
arrangements for the long school holidays, public holidays and any other special days such as the children’s birthdays are to take
precedence over the usual weekly access orders.
[11.5.22] Additional access is often not provided for the week-long school holidays in March and September each calendar year given
the length of the holidays and the fact that the children may have school-designated activities or homework during this week-long
break. In these cases, the usual fixed weekly access is to continue.
[11.5.23] The solicitor should remind the clients while taking their instructions and working out the proposed access arrangements that
the children’s welfare and needs must be the integral consideration. Clients should not focus on what their “rights” are as a parent or
insist on access arrangements which prioritise their needs over the children’s, let alone as an avenue for inconveniencing the other
party. The proposed arrangements should factor in the children’s schedules and must enable them to spend time with not just the
parent without care and control but also with their extended family in a manner which fosters the children’s ability to bond with the
said parent. While the long school holidays are generally split, it is common that the working parent without care and control would not
be able to take leave for his or her entire share of the long school holidays in a year to spend with the children. In this case, the said
parent should first consider the care arrangements he or she has in place for the children during the parent’s share of the long school
holidays if he or she is unable to take leave during any part of this access. This should be explained by the said parent in his or her
supporting affidavit.
[11.5.24] Time spent by the children with their extended family members such as grandparents or relatives during the time that the
parent without care and control is unable to take leave from work is also beneficial to the children insofar as it fosters bonds within the
larger family and provides additional emotional support to the children where the immediate family unit is already at an end. Such
contact with other family members during the non-care and control parent’s access to the children should not be viewed unfavourably
by the other parent for these reasons as long as the parent without care and control still exercises his or her access to the children. The
rationale for access is that the children should be able to spend as much time as possible with both parents (in this case the parent
whom the children do not live with) such that they remain assured that their parents continue to remain actively involved in their lives
despite the breakdown of the marriage.
[11.5.25] On the other hand, if the parent without care and control chooses not to spend time with the children and simply fosters out
(or intends to) the care of the children to his relatives or a nanny during his or her period of access, the entire aim of access is defeated.
Clients without care and control who seek fixed access arrangements to the children after considering the children’s needs should be
advised that they should do their level best to ensure they are able to exercise access to the children as they have proposed. Doing so not
only ensures certainty for the children in the sense that they know when they would be spending time with the parent without care and
control, it also reduces any opportunity for conflict between the parties which is wont to arise if a parent fails to exercise his or her
access to the children as ordered.
[11.5.26] If the parents are able to communicate amicably between themselves on access to the children, clients may be advised that it
would be better to ask for reasonable/liberal access without specifying fixed access dates or for the parent without care and control to
arrange directly with the children for access (where they are old enough). The idea is that the less the court is required to regulate the
relationship between the parents and their children which would extend to fixing the access dates for the parent without care and
control, the better as it would be in the children’s best interests for the parents to work together on parenting their children including
the time the children spend with each parent without external interference from a third party (i.e. the court).
(a) Supervised access

[11.5.27] As regards to the type of access requested for, clients should be advised that in the absence of extenuating circumstances or
where no credible evidence exists on the facts to suggest that the parent without care and control would be unable to care for the
children during his or her access, the usual access orders are for reasonable or liberal access. Supervised access which often involves
the accompaniment of the parent with care and control or an authorised representative/family member during the other parent’s access
is seen as intrusive and is not normally ordered by the court. Supervised access by its very nature increases the opportunity for friction
and conflict between the parties given the likely resentment felt by the parent with access who feels his or her quality time with the
children is restricted by the presence of the other parent and the other parent’s concern. In more cases than not, it is this author’s
observation that supervised access often exacerbates the tensions between parties in relation to access which gives rise to greater
conflict and does little to address the concerns of the parent with care and control in requesting that the non-custodial parent’s access to
the children be supervised.
[11.5.28] The courts have recognised that supervised access in most cases would not help the development of the parent-child bond
between the child and the parent with access. It is clear that supervised access would not be ordered unless it is necessary to protect the
child such as where there is a risk of abuse or danger to the child. There must be a reasonable basis (supported by credible evidence) to
substantiate allegations of abuse or danger and a mere fear or suspicion would be wholly insufficient to justify supervised access. 7
Even where supervised access is ordered, such access is limited in duration (often not more than six months) and is often subject (as
should be the case) to review of the supervised access orders by the court at a later date. This is consistent with the court’s approach that
access is to facilitate the building of the parent-child bond between the children and the parent with access without impediment.
[11.5.29] The courts (and rightly so) have consistently taken a dim view of attempts by parents who seek supervised access not with a
view towards genuinely protecting the child but mainly to “punish the other party (parent) by making access restrictive as well as
inconvenient”. 8 It would be pertinent at this stage to stress that practitioners should advise their clients that the time spent by each
parent with the children should not be used as a means of punishing the other parent or used as leverage to compel the other parent to
agree on other ancillary matters (such as maintenance). Children are not tools to be used by either parent to gain some perceived
advantage or to address a party’s personal grievances with the other parent. With the children’s welfare as the starting and focal point,
clients’ priorities as parents would be clearer and decisions on access arrangements may be made in their best interests.
(b) Assisted access

[11.5.30] Often, the concern of custodial parents who initially request for supervised access is not that the children require protection
from the other parent but because of various reasons (such as the young ages of the children), the children appear to have difficulties
interacting with the parent who has access. In such a case, it would be more appropriate to request for assisted access which involves
the assistance of a neutral third party (a trained family counsellor) to facilitate the access at a neutral location at a designated Divorce
Support Specialist Agency (“DSSA”) such that the parent who seeks access is able to actually have access in the first place. While such
assisted access is often ordered by the court of its own motion during the course of ancillary hearings where there are problems with
regard to access and an assisted access or custody evaluation report is ordered, parties can also request for assisted access.
[11.5.31] As with supervised access, the duration of assisted access is for a fixed period of time and is not intended to be permanent
given that the aim of access is to allow the parent with access to interact freely with the children without the need for external
intervention or regulation. There is greater clarity in terms of the duration of the assisted access orders with the first round comprising
of at least eight assisted access sessions before a report is furnished by the DSSA to the court and the assisted access orders are reviewed
by the court who may order another round of assisted access or the normal reasonable access orders. The relevant report tendered by
DSSA to the court is confidential and assists the court in assessing the situation and the appropriate orders to be made at the hearing to
review the assisted access orders.
[11.5.32] In most cases, the general orders pleaded would be as follows (with the necessary modifications depending on the kind of
orders sought):
That the Plaintiff /Defendant shall be granted sole/joint custody of the children of the marriage, namely __________ (include the
children’s full name, gender and current age or date of birth) with sole/joint care and control to the Plaintiff/ Defendant and
reasonable/liberal/supervised/ assisted access to the Defendant/Plaintiff (to be defined where fixed access terms are required).
[11.5.33] Specific orders and conditions to the usual custody, care and control and access orders which the court is empowered to make
pursuant to section 126 of the Charter should also be expressly provided for. For example, the courts have on occasion granted orders
that a third party who was responsible for the breakdown of the marriage is not to be present while the parent without care and control
has access to the children.
[11.5.34] Even if fixed access arrangements are sought as part of the access orders, clients may be advised that they can retain the
element of flexibility in relation to the access orders as long as they mutually agree to any changes in writing. In such a case, the parties
can ask for an additional order that “The parties are at liberty to vary the access arrangements or agree to additional access on such
terms as they may mutually agree on in writing”.
11.6 PREPARATION OF PLEADINGS AND APPLICATIONS
A. Application For Interim Custody, Care and Control and Access During the Divorce Proceedings
[11.6.1] Often as the marital relationship breaks down and a party files his or her Writ for Divorce, they are unable to agree on care
arrangements for the children of the marriage or difficulties arise in relation to one parent having sufficient and what is perceived to be
reasonable contact (in the form of access) with the children. It is an unpleasant but common observation that as the marriage breaks
down, the personal animosity between the parties often spills over into their interaction with the children and how they interact with
each other over the children.
[11.6.2] An application for interim custody, care and control and/or access is an interim or interlocutory application (in the sense that
orders made are interim pending the final orders made at the ancillary hearing) which is commenced by way of a inter partes (meaning,
parties to be heard) summons application filed under the divorce suit. This summons application is accompanied by a supporting
affidavit filed by the applicant parent in his or her capacity as the plaintiff or defendant explaining why the summons application is
made and the reasons for the orders sought in the application. In addition to the applicant parent’s evidence as set out in his or her
supporting affidavit, the applicant may also file other affidavits by material witnesses who have personal knowledge of pertinent facts
(for example the witness is involved in the child’s care arrangements or has personally witnessed a material incident concerning the
children) in support of his or her application.
[11.6.3] Like orders sought for custody, care and control and access to made pursuant to the ancillary proceedings under the Writ for
Divorce, an application for interim custody, care and control and access orders made during divorce proceedings is made pursuant to
section 124 of the Charter. The ability of either parent or a legal guardian to apply for interim custody, care and control and access to
the child during the divorce proceedings and after the final judgment is also set out at rule 93 of the Family Justice Rules 2014.
[11.6.4] Where the applicant is a parent of the children (as opposed to a legal guardian or an interested individual who has obtained the
leave of court to intervene under rule 93 of the Family Justice Rules 2014), the applicant who would be identified in his or her role as the
plaintiff or defendant in the divorce suit would be able to state the custody orders that he or she seeks in relation to the children. For
the purposes of this chapter, unless otherwise stated, references to “custody applications” will include applications for custody, care and
control and/or access.
[11.6.5] An interlocutory custody summons application is in the form of a general summons found at Form 118 of the Family Justice
Courts Practice Directions 2015. 9 Briefly, the summons should be under the heading “In the Family Justice Courts of the Republic of
Singapore” and clearly reflect the Divorce Suit number for the divorce proceedings and under which the summons is filed. Where the
parties are also parties to the divorce proceedings, they should be reflected in their capacity as either the defendant or the plaintiff in
the divorce proceedings and should not differ in manner or form from that cited in the divorce pleadings. The parties should not be
identified as the “Applicant” and “Respondent” and the party taking up the summons should not be identified as the “Plaintiff” if he or
she is the defendant in the divorce proceedings.
[11.6.6] The practitioner should take care to note that all interim custody applications should be inter partes and should not be taken
out on an ex parte basis (in that orders are sought from the court without the other party or his or her appointed legal counsel being
present) even if the orders sought in the interim custody application are urgent in nature (an example being an urgent order for the
child who has been wrongfully removed from the care of one parent to be returned). Where the application is of utmost urgency (these
and other applications will be discussed in Chapter 12 (Other Applications Relating to Children)), it is good practice for the practitioner
to file both an ex parte application to comply with the procedural requirements and for relevant interim urgent orders, and as well as
an inter partes application asking for the substantive orders in relation to custody and the reliefs sought.
[11.6.7] The ex parte application should request for an abridgement of time for service of the application and its supporting affidavit
along with the urgent interim orders sought (for example, pending final orders on the interim custody application, the other party is not
to remove the children from Singapore). Clients should be advised that they cannot request for any orders in relation to custody, care
and control and access in an ex parte application as these are substantive reliefs (even if urgent in nature) and must be dealt with in an
inter partes application with both parties being able to present their evidence and arguments before the court.
[11.6.8] Practitioners should take note of the requirement in paragraph 83 of the Family Justice Courts Practice Directions 2015 that if
the ex parte application seeks an injunction (either a mandatory order for the other party to do an act (such as the return of the children
to their habitual residence pending the court’s determination of the substantive issues on custody), or a prohibitive order for the other
party not to do some act (such as removing the children from the jurisdiction of the Singapore court)), they are to give the other party
(or their solicitors) a minimum of two hours’ notice before the hearing of the ex parte application. The other parent (or his or her
solicitors if represented) is to be notified of the time, place and date fixed for the ex parte hearing. 10
[11.6.9] If the practitioner (as is often the case) seeks to obtain the urgent orders in the ex parte application by attending before the
Duty Judicial Officer in the FJC, he or she should ensure that the application is first filed and then notify the other party (or his or her
solicitor) of the practitioner’s intention to attend before the Duty Judicial Officer at least two hours before the practitioner does so. This
requirement to give advance notice to the other party is only waived in cases of extreme urgency or with leave of court.
[11.6.10] If it is a valid and legitimate concern that the purpose of the ex parte application may be defeated if advance notice is given
(for example where the client has credible evidence that the other parent may leave the country with the children on short notice and
the orders sought are that the other parent is not to remove the children from Singapore pending final orders to be made on the inter
partes application), such notice need not be followed. The client should be advised that the reasons for his or her inability to give the
requisite minimum two hour notice period must be stated in the client’s affirmed affidavit in support for the ex parte application. 11 It
would be insufficient and indeed inappropriate for the practitioner to simply state before the Duty Judicial Officer his or the client’s
reasons for not complying with the notice requirement without these reasons first being set out in the affirmed supporting affidavit.
[11.6.11] The inter partes application to be filed concurrently with the ex parte application should set out the substantive reliefs sought
by the client. If the issue is in relation to custody, care and control and access, the suggested prayers as set out above with amendments
to reflect the orders that the client seeks should be pleaded. Additional orders which may mirror the interim orders made (pending the
final orders made on the inter partes application) should also be stated. It is not necessary to state in the inter partes summons
application that the orders sought are interim in nature pending final orders made on the ancillary matters as this is understood. If the
party’s preference is still to indicate that these orders are interim pending the final ancillary orders, the phrase “That in the interim
pending final orders made at the ancillary hearing” may be added before the orders sought.
[11.6.12] An example of orders sought for an urgent return of the children to their place of residence before their removal by one
parent along with prayers for custody, care and control are set out below.
A sample ex parte application:
1. Time for service of this application and supporting affidavit to be abridged.

2. That in the interim pending final orders made on the [client’s role in proceedings] inter partes application in relation to custody,
care and control and access to the [children of the marriage, list names and ages], the [party against whom summons is filed] is
to return the children to the [insert details and address of children’s last place of residence before they were removed] within 2
days from the date of this Order of Court.
3. That in the interim pending final orders made on the [client’s role in divorce proceedings] inter partes application in relation to
custody, care and control and access to the [children of the marriage, list names and ages], the [party against whom summons is
filed] is not to remove the children from the jurisdiction of the Singapore Court.
4. Costs of this application be reserved to the hearing of the [client’s role in divorce proceedings] inter partes application in
relation to custody, care and control and access to the [children of the marriage, list names and ages].
A sample inter partes application:
1. That parties shall have joint custody of the children of the marriage namely [list children’s names and ages] with care and
control to the [client] and reasonable access to the children [fixed access terms to be specified if necessary].
2. That Singapore be declared the place of habitual residence of the children.
3. That pending final orders made at the ancillary hearing or as varied by the Court, the [party against whom the summons is
filed] is not to remove the children from the [place of residence] or from the jurisdiction of the Singapore Court unless with the
[client’s] express consent in writing or with leave of the Court.
4. Costs of the application to be provide for.
5. Such further and other relief as this Honourable Court may deem fit.
[11.6.13] Service of these interim custody summonses and their supporting affidavits on the other party is by ordinary service which
may be by way of post, by leaving the documents at the proper address of the person to be served or in such other manner as may be
agreed between the parties or as directed by the court. 12 Personal service of the summons and supporting affidavit is not required.
Where the other party is represented by solicitors, service may be effected by serving the summons and supporting affidavit on the said
party’s solicitor through the eLitigation platform. If an ex parte summons application is also filed, it is common practice to file both the
ex parte and inter partes summonses together but only serve the summonses after orders have been made on the ex parte summons or
directions have been given by the court. Unless leave of court has been granted, all summonses are to be served on the parties within
three days after the filing of the said summonses. 13
1. Procedure after the custody summons application is filed and served

[11.6.14] A case conference date (or urgent hearing date depending on the nature of the orders sought) is fixed by the court when the
filed summons is approved by the court and served on the other party. A summons number is fixed under the Divorce Suit and parties
(or their solicitors if they are represented) are to attend before an Assistant Registrar of the FJC on the case conference date. The court
would give timelines for the other party against whom the summons is taken out to file his or her reply affidavit followed by the
applicant’s (of the summons) final affidavit in reply. No further affidavits are to be filed by any party without leave of the court. In most
cases, leave for the filing of further affidavits would be given on a case-by-case basis where new allegations which are relevant to the
current summons application have been raised in the applicant’s second affidavit which the other party had not had the chance to
address in his or her earlier reply affidavit. Even where leave is granted by the court, any reply would be limited strictly to the new
relevant allegations as ascertained by the court and would not be a carte blanche right to reply to the entire affidavit.
[11.6.15] Given the new judge-led approach in resolving family disputes as provided for in Part 3 of the Family Justice Rules 2014, the
judge is empowered to identify the relevant issues in the matter in dispute and has the discretion to make wide-ranging directions to
ensure a “just, expeditious and economical disposal of the proceedings”. 14 In cases where there are other ongoing or recently concluded
proceedings concerning the children (for example, interim maintenance or a Personal Protection Order application made by a parent
on behalf of the children), the case may well be “docketed” before the judge who had heard or is hearing the other ongoing applications
as part of the judge-led approach. This encourages consistency in the sense that the same judicial officer is able to adjudicate on the
matter having the benefit of being apprised of all the facts and relevant history of the case. It also facilitates a more thorough
management of the case till the final ancillary hearing which lends credence to the aim of ensuring a just, expeditious and economical
disposal of proceedings.
2. Hearing of summons
[11.6.16] Pursuant to paragraph 99 of the Family Justice Courts Practice Directions 2015, parties are to file and exchange their written
submissions for all contested inter partes applications no less than three working days before the hearing date or as directed by the
court. To assist the court and to crystallise the issues in dispute and to be determined by the court, parties’ written submissions should
set out concisely the circumstances out of which the application arises, the issues arising in the applications, the arguments by the
parties (with supporting legal authorities) and reasons as to why the application should be supported or opposed. 15
[11.6.17] All summons hearings are to be heard in chambers unless otherwise directed by the court to be heard in open court. 16 In the
event that the court deems it fit that the hearing in chambers be fixed in court due to the necessity for witnesses to be cross-examined
or otherwise, clients should be briefed on what to expect in terms of procedure, conduct on the stand as well as the affidavit evidence
that clients would be tested on. Even if the hearing is heard in open court, these proceedings are still in camera in that apart from the
parties and their witnesses who have already taken the stand, they are not open to the general public or even relatives of clients unless
they themselves are witnesses in the proceedings. 17
[11.6.18] If the hearings are in chambers as is the norm, parties’ evidence is restricted solely to the affidavits filed by the parties for the
current summons application. Practitioners should advise their clients that the submissions and representations made by counsel on
their client’s behalf either for or against the application must be based on the available evidence before the court on the parties’
affidavit. While there may be a temptation to refer to instructions or material that does not form part of the evidence in the written or
oral submissions, this should be resisted at all costs. Not only would the court often reject such submissions (and it is suggested the court
should always disallow evidence “from the Bar”) as not forming part of the evidence before the court, it only reflects poorly on the
practitioner and/or to an extent the party whom the practitioner represents for not preparing his or her case properly.
[11.6.19] Where the new evidence is extremely pertinent to the summons and could not have been adduced with reasonable diligence
before the hearing or after the filing of the final round of the reply affidavit, the client or practitioner should explain this to the court
and seek leave for the appropriate witness to file a supplementary affidavit to attest to the new evidence which the client seeks to rely
on.
[11.6.20] After hearing submissions from parties’ legal counsels (or the parties themselves if they are not legally represented), the court
may either adjourn the hearing as further directions/interim orders have been given or deliver its judgement.
3. Directions and interim orders the court may give pending final orders on the summons
[11.6.21] Under the judge-led approach and as statutorily directed under section 124 of the Charter, the court has wide-ranging powers
to make orders as it thinks fit or give directions with respect to the children in any custody application before it. Some orders which the
court may make include directing parties to attend compulsory mediation and counselling sessions and adjourning the further hearing
of the summons pending conclusion of the ordered mediation/counselling sessions.
[11.6.22] Should the disputed issues pertain to care and control or access and are highly acrimonious, the court may order either a
Custody Evaluation Report (“CER”) or Access Evaluation Report (“AER”) to be prepared by trained counsellors from the Counselling and
Psychological Services of the State Court (“CAPS”). Such reports would be impartial and be based on interviews conducted by the
counsellor with the parties, the children and any other relevant witnesses. The contents of the reports are confidential and would
generally assist the court in reaching an equitable decision on the summons application which would be in the children’s best interests.
It should be noted that these reports may also be requested by clients as part of the reliefs sought under the interim custody application
especially where the dispute between parents in relation to the children is so acrimonious that one parent is effectively being excluded
from the children’s lives to their detriment. 18
[11.6.23] Practitioners should be aware that the court is generally reluctant to order such reports in interim custody applications given
the perception that this may hamper the discretion of the judge hearing the ancillary matters on whether such reports are necessary or
be compelled to give greater weight to the interim order which was reached with the assistance of such reports. It is respectfully
suggested that such a concern should not be an obstacle to the court from acting expeditiously to order the appropriate report if it is of
the view that such a report would be helpful on the facts in allowing the judge to reach a decision on the summons which would be in
the child’s best interests. The ancillary judge is not bound by any interim orders made by the court on earlier interim custody
applications although the court may take cognizance of the earlier interim orders and the relevant reports. 19
[11.6.24] Where the issue in dispute is one parent’s inability to exercise access to the children either due to difficulties during the
handover of the children for access or the children’s reluctance to go for access because of suspected parental alienation, the court may
order for an assisted transfer or assisted access to be held at one of the designated DSSA and adjourn the hearing pending the
conclusion of the specified assisted transfer/assisted access sessions. The procedure in relation to assisted access is already discussed
above and it should be stressed that assisted access, whether ordered in the interim pending final orders on the summons application or
as final orders in the application, is interim and always subject to review by the court after eight sessions have been conducted by the
DSSA. Assisted transfers may be ordered on a longer term basis and may continue until the parties feel that there are no longer any
problems with regards to handover for access such that the assistance of the DSSA to facilitate the transfer for access is necessary.
B. Applications For Custody, Care and Control and Access under the GIA
[11.6.25] The powers of the court to make orders on applications for custody, care and control and access of the children under the
Guardianship of Infants Act (Cap 122) (“GIA”) is pursuant to section 5 as set out below:
5. The court may, upon the application of either parent or of any guardian appointed under this Act, make orders as it may think fit
regarding the custody of such infant, the right of access thereto and the payment of any sum towards the maintenance of the infant
and may alter, vary or discharge such order on the application of either parent or of any guardian appointed under this Act.
[11.6.26] Applications under the GIA are commenced by way of an originating summons as found in Form 47 of the Family Justice
Courts Practice Directions 2015 20 unless there are pending proceedings by reason of which the child is a ward of the court. 21 Such
applications are taken out by parents of the children where there are no pending divorce proceedings or the parents of the children are
not in a marital relationship. GIA applications in relation to the children may also be taken out by guardians appointed under the GIA
be it a testamentary guardian appointed by a deceased parent or a court-appointed guardian. 22
1. Who can file a custody application under the GIA

[11.6.27] Practitioners should note and advise their clients that relatives or immediate family members apart from the parents of the
child who are not appointed guardians under the GIA, have no locus standi to make any application under the GIA for orders relating to
the custody, care and control and access of the children under section 5 of the GIA or even to be appointed as a guardian of the child
where the parents are still able to care for the child. It is immaterial if the relative in question happens to be the primary caregiver for
the child. Thus in CZ v DA, 23 a case involving an application by a child’s grandmother to be appointed as the guardian of the child due to
allegations of abuse by the parents, the Family Court dismissed the grandmother’s application on the basis that the natural parents’
rights for custodial authority over the children is superior to that over other parties and there were no compelling reasons to order the
child’s removal from his parents’ custody. Clients should also be advised that while contact with the child’s extended family members,
including grandparents, is beneficial to the child, third parties or family members do not have any right to demand access to the
children.
[11.6.28] An application by such a party who is neither a parent nor an appointed guardian under the GIA in the aforesaid
circumstances would be ill-advised and likely to fail. In the appeal of CZ v DA, 24 the High Court affirmed the District Judge’s order and
held that a grandparent is “without more” not entitled to apply for an access order. This dovetails with the established legal position that
non-parents and non-guardians under the GIA do not have any legal standing to bring any application under the GIA for orders relating
to the children. In the event of an exceptional situation where both parents are unable to care for the children due to reasons which
may include but are not limited to incarceration, mental incapacity or death and no testamentary guardians have been appointed, the
courts will accept applications by third parties or immediate family members to be appointed as guardians of the child. 25
[11.6.29] A non-parent and non-guardian under the GIA may still apply for leave of court to intervene in any action or proceedings in
relation to the custody of the children for an order relating to custody, education of the child or directions that proper proceedings be
taken for placing the child under the protection of the court (“ward of the court”). 26
[11.6.30] Where the parents of the child are not in a marital relationship, it is necessary for the natural father to file an application
under section 5 of the GIA to obtain the requisite orders on custody, care and control and access to have his status recognised and be
accorded the formal rights to be actively involved in the children’s life. While sections 3 and 4 of the GIA state that both parents are to
have equal rights over the child and that the child’s welfare is to be of paramount importance, there is no provision in the GIA (or the
Charter – which only covers parents who have been married) which automatically vests custodial rights in the unmarried parent.
[11.6.31] In most cases, the children of the unmarried couple would remain under the care of the natural mother who is recognised as a
single mother with the de facto powers in relation to custody and the ability to make the day-to-day decisions for the child. If the client is
the natural father who seeks greater certainty and the vesting of his custodial rights to be involved in the child’s life, the practitioner
should advise the client to file an application under the GIA for the necessary orders. If the paternity of the child is in dispute or a
potential area of contention, the natural father should be advised to include in his application a prayer that pending final orders on his
application, a paternity test is to be conducted by a reputable authority (usually the Health and Sciences Authority of Singapore).
2. Form of application and procedure

[11.6.32] The originating summons application under the GIA should set out the title as per Form 47 annexed in the Family Justice
Courts Practice Directions 2015 for an inter partes application and Form 48 27 for an ex parte application. The originating summons
(“OS”) should state the relevant provision of the statute under which the OS is commenced and the basis for which the reliefs are sought.
This would usually be under section 5 of the GIA and additional sections may be referred to where necessary. The OS should also
identify the names of the child(ren) for which the reliefs are sought and their NRIC/birth certificate or passport numbers. The party
making the application is called the plaintiff and the other parent or party should be called the defendant. Practitioners should note that
if the defendant in the OS application subsequently files his or her Writ for Divorce such that he or she is the plaintiff in the divorce
proceedings, this would not affect the roles of the parties in the OS or any subsequent applications to vary the orders made pursuant to
the GIA under the OS which would be by way of summons filed under the OS and not the divorce proceedings.
[11.6.33] An example of such an OS heading filed for orders pursuant to the GIA is set out below:
In the matter of Section 5 of the Guardianship of Infants Act (Cap 122)

And
In the matter of [Name of child (NRIC/passport number NO.)
Between
[name of party commencing application and NRIC/passport number] ... Plaintiff
And
[name of other party and NRIC/passport number] ... Defendant
[11.6.34] Service of the OS is by way of personal service on the defendant given that this is an originating process and the manner of
personal service is similar to that in relation to service of the Writ for Divorce. Where the defendant is represented by solicitors and has
given instructions to accept service of process on behalf of the defendant, an endorsement by the defendant’s solicitors to this effect
would suffice as good and effective service of the OS. 28 Practitioners should note that unlike the Writ for Divorce, it is not necessary for
any appearance to be entered by the defendant for the OS. 29
[11.6.35] The process, procedure and substantive reliefs claimed under an OS application commenced under the GIA are largely similar
to that for interim custody applications filed under section 124 of the Charter during the divorce proceedings. Practitioners should note
that while orders made on OS applications under the GIA are not interim orders in the sense that they are final and binding unless
divorce proceedings are subsequently initiated by either parent and even then until the final ancillary orders are made. In some cases,
notably those where the parents of the children who are the subject of the GIA OS application are not married, the orders made under
the OS are effectively final orders which regulate the parents’ custodial rights and obligations towards their children until varied or
discharged by a subsequent summons application filed under the GIA.
[11.6.36] Where there is an existing GIA order under the OS and divorce proceedings are commenced subsequently, the court hearing
the ancillary orders is not bound by the GIA order and is entitled to consider the issues afresh having regard to the evidence before it of
which the GIA order is but one factor the ancillary court can take into consideration. For clarity’s sake, the ancillary order should state
that it supersedes and replaces the GIA order made under the OS. 30
11.7 EVIDENCE TENDERED IN SUPPORT OR IN REPLY TO THE APPLICATION
A. Parties’ Evidence
[11.7.1] All evidence relied on by parties either in relation to the applications mentioned above or during the ancillary proceedings for
the court’s determination on the children’s issues are to be set out in parties’ affidavits. 31 Practitioners should be able to advise their
clients on the importance of having all material and relevant evidence included in their affidavits to substantiate their claims or to
rebut allegations as the case may be. Such evidence must satisfy the requirements set out in the Evidence Act (Cap 97) and the Family
Justice Rules 2014 in order to be relied on by any party. Briefly, all documentary evidence relied on must be in the English language and
documents in foreign languages must be translated and certified by an official translator authorised to make such translations for
proceedings in court. Evidence must be within the parties’ (or their witnesses’) personal knowledge and if a party seeks to rely on
hearsay evidence, the requisite service of notice to admit hearsay evidence and the requirements justifying such a request must be
complied with. 32
[11.7.2] The plaintiff (to be understood in the context of this section as the party who commences the application) should set out a brief
background of events leading up to the application. This background should include a chronology of events, the date that parties were
married and the facts necessitating the current application. The plaintiff’s affidavit should set out coherently the reasons for the
application and why the orders sought would be in the children’s best interests. This would also help in the identification of the real
issues in dispute for which the orders sought would be necessary in protecting the children’s welfare. For example, the reasons may be
the existence of an unsatisfactory state of affairs where one parent is either being obstructed from exercising his or her access to the
children by the other parent or how the current situation is detrimental to the children’s welfare.
[11.7.3] It is important that the plaintiff’s affidavit and evidence give a clear and comprehensive picture of the current unsatisfactory
situation which is adversely affecting the children’s interests and for which rectification in the form of the reliefs sought would be seen
to be protecting the children’s welfare. The applying parent should be advised that the facts and evidence referred to in the supporting
affidavit should not include tangential and irrelevant facts that have no bearing on the application or are simply included to embarrass
the other party. Practitioners should take care when taking clients’ instructions and preparing their affidavit to avoid focusing only or
mainly on the other party’s perceived faults (particularly where they are not in relation to the children) and should not harp primarily
on how the other parent is a bad parent to the children. An example of such facetious and irrelevant evidence which should not be
pleaded would include allegations of a husband’s affairs with a third party or the other parent’s failings as a spouse.
[11.7.4] This guideline would also apply to the documentary evidence that the plaintiff (and parties in general) refers to and exhibits on
affidavit. If an allegation is that a parent watches pornography in the presence of the children, it would be inappropriate to exhibits
hundreds of pages of sexually explicit images to support this contention when evidence showing the said parent was observed by the
children doing so would suffice. The practitioner should be proactive in advising their clients on the utility of including pages of
documents and evidence that do little to support their client’s position and are not material to the application on hand. Prolix affidavits
should be discouraged where unnecessary as they do little to substantiate the client’s position, have a tendency to detract from the real
issues in dispute and run the risk of being struck out. Scandalous and emotive language should also be avoided as far as possible in
affidavits. They serve no purpose apart from entrenching parties further in their positions and increasing conflict.
[11.7.5] The plaintiff’s evidence should rather focus on how the plaintiff has been caring for the children and why it would be in the
children’s best interest to remain under his or her care (on the assumption that the client is applying for care and control). The parent
should state on affidavit his or her proposed care arrangements if care and control is granted to him or her and these care
arrangements should be well thought out in that they are substantiated, workable and in the children’s best interests. As an example, a
proposal that the children be removed from the care of one parent to the plaintiff so that the plaintiff can place them under the care of a
relative or worse still, a nanny, cannot be said to be in the children’s best interests. It is the practitioner’s duty to advise his or her client
on whether the proposed care arrangements are feasible and can be said to be in the children’s best interests having regard to the
prevailing legal principles. If the client’s proposed care arrangements are inadequate or fail to address areas important to the child’s
welfare such as education or the continuation of existing enrichment classes, the practitioner should highlight this to the client who
should be encouraged to couch his or her proposals on what would be in the child’s best interests and not what is convenient to the
parent.
[11.7.6] It is important that the proposed care arrangements on the plaintiff’s affidavit are comprehensive and well thought out with
clear arrangements for accommodation and education for the children. By bearing in mind that the paramount consideration is and
always remains the welfare of the children, the importance of presenting evidence that supports how the orders sought are in the
children’s best interest, which would include the proposed care and/or access arrangements for the children, would be appreciated. An
affidavit or evidence which focuses primarily on how the other parent is a bad parent and sets out a litany of complaints without
explaining how the children’s interests would be better served under the plaintiff’s care is unhelpful and unnecessarily aggravates the
animosity between parties.
[11.7.7] If the issue in dispute is with regards to access, the plaintiff should also explain the need for the access orders he or she seeks
and why this would be in the children’s best interests. The plaintiff’s personal knowledge of the facts, the obstacles and challenges
encountered during the attempted access sessions as well as his or her personal observation of the children’s reactions and the other
parent’s conduct are all relevant and should be included in his or her affidavit as evidence. As above, clients should be advised to
recount these facts and present the evidence in a factual manner as much as possible and should refrain from giving their personal
opinions on the evidence or make acrimonious statements that serve no conceivable purpose apart from annoying the other party.
[11.7.8] The aforesaid pointers apply equally to the defendant who has to affirm his or her affidavit in reply to the application. The
practitioner whose client is served with such an application should advise his or her client on what constitutes relevant allegations that
should be addressed at length and set out the client’s own version of events along with the client’s proposal on what would be in the
children’s best interest. As is often the case, the situation on the ground is not as clear as one party portrays it to be. It is important that
the defendant explains why the orders sought by the plaintiff are not in the children’s best interests, gives his or her evidence on
affidavit as to the correct version of events and gives his or her proposal on what he or she feels would be in the children’s best
interests. The same exercise must be undertaken by the practitioner with the client in identifying what should be addressed and the
evidence to be adduced.
[11.7.9] At this stage, practitioners should note that if they are acting for the defendant who also wants care and control (as opposed to
just access), it is advisable that the defendant files his or her own application asking for the relevant orders. In this case, the defendant’s
reply affidavit to the plaintiff’s custody application may be combined together with his or her affidavit in support of his or her cross
application for, inter alia, care and control of the children in a single affidavit to save fees. Such an affidavit should however be clearly
separated into two different parts, one in reply to the plaintiff’s application and the other in support of his or her application. This is to
ensure that when directions are given for the other party to file a reply affidavit, the final affidavit in reply (in this case by the
defendant to the plaintiff’s reply affidavit to his or her cross application) would only address the facts and evidence raised for the
defendant’s application. Both applications would usually then be fixed for hearing together before a judge.
B. Evidence By Other Witnesses
[11.7.10] Practitioners should be circumspect and advise their clients carefully when a parent seeks to adduce evidence from another
witness. It must first be assessed if the witness has personal knowledge of the events or facts that the client seeks to rely on to support
his or her case. Even if the witness does have personal knowledge, the practitioner should assess if the facts that the witness is aware of
is material to the application on hand. As an example, affidavits by friends or colleagues attesting to the “wonderful” or caring nature of
a parent based on observations of the parent with his or her children are of little probative value to a custody application and serve
little purpose apart from plying the court with irrelevant information. There are instances when evidence is necessary from the
witnesses who play an integral role in caring for the children for a reasonable period of time (as opposed to, for example, babysitting
the children). These may be relatives, grandparents or even close family friends. While there are no hard and fast rules, the practitioner
must consider the relevance of the evidence with regards to the disputed issues. It is suggested that evidence as to how the witness was
an important caregiver in the children’s life, the care and living arrangements of the children between the parents and the witnesses
leading up to the current dispute would assist the court in deciding on the appropriate orders which would be in the children’s best
interests.
[11.7.11] As with the parties’ evidence, these witnesses’ evidence must be affirmed on affidavit and filed under the custody applications.
The witnesses should state their evidence including their involvement and care arrangements for the children in a concise and factual
manner without any statements of opinions as to the desirability or lack thereof of a parent as a caregiver of the children. If it is
envisaged that the witness is to continue to play an important role in the children’s lives, the witness should affirm on affidavit his or
her proposed plans on how he or she intends to remain involved in the children’s life and why this would be beneficial to the children.
[11.7.12] As a general rule, practitioners should discourage their clients from asking their employees or domestic helpers to give
evidence in their custody applications unless their evidence is clearly material to the application or is necessary to rebut a grievous
allegation (for example, abuse of the children by one parent). The courts have generally given little weight to evidence from parties’
employees and domestic helpers given that the employer-employee relationship already presupposes an obligation on the said domestic
helper or employee’s part to “support” his or her employer.
C. Evidence By Experts: Assessment of Child By Psychologist or Psychiatrist

[11.7.13] Pursuant to rule 36 of the Family Justice Rules 2014, the court when considering a custody application, may on its own motion
direct that the child be assessed by an expert (be the person a trained counsellor, psychologist or psychiatrist) and that a report be
prepared by the appointed individual on the welfare of the child. While this power is usually exercised by the court in relation to
trained counsellors from the DSSA or CAPS to produce the relevant report, the court may in certain cases direct that the child be
examined by a court-appointed psychiatrist or psychologist where it is of the view that it would be in the child’s best interests. Such a
report if prepared may be confidential subject to the directions given by the court when appointing the expert.
[11.7.14] Under rule 35 of the Family Justice Rules 2014, it is clear that neither party is to subject the child for any assessment by a third
party be the party a counsellor, social worker, medical practitioner or mental health professional for the purpose of preparing expert
evidence for use in the custody (or any) proceedings without leave of the court. Any such evidence arising out of the examination or
assessment may not be adduced without leave of the court. 33 Practitioners should advise their clients not to subject the children to
unnecessary and often traumatic assessment by such third parties where it is not required for the treatment of medical conditions and
done purely to buttress the parent’s claims for the custody application. Where the child has unfortunately been assessed by a third party
without leave of court, the ethical practitioner should impress on his or her client that such assessments should cease immediately as
they are not in the child’s best interests. The parent should be advised that such evidence may not and should not be admitted as
evidence on affidavit without first obtaining leave from the court.
[11.7.15] Should it be deemed that it is necessary for the child to be assessed by a third party, the parent who seeks to have the child
assessed must file an application seeking leave of the court to do so and this application is to be by way of summons. Even if the
evidence has already been adduced without leave, it is imperative that an application for leave to adduce the said evidence be taken out
by the parent and reasons given as to why leave was not sought prior to the child’s assessment by the expert. Practitioners should
always ensure that the appropriate leave is sought from the court before the child is subject to any assessment by a third party not
appointed by the court under rule 36 of the Family Justice Rules 2014. Such leave is necessary to ensure parents do not subject the
children to unnecessary assessments simply with a view towards obtaining evidence which they feel would support their positions in
custody applications. The parties should also not be allowed to disregard the rules by “sneaking in” such evidence on affidavit when no
leave of court has been granted. Where such a breach of the rules have taken place, it is suggested that the practitioner has failed in his
or her duty as an officer of the court to ensure that the Family Justice Rules are complied with bearing in mind that unnecessary
assessments are not in the children’s best interests. In such a situation, it is suggested that the court should not hesitate to strike out the
evidence in question on its own motion without the need for the innocent party to file an application to strike out the offensive
evidence. The court should protect its processes vigorously and not condone a flagrant breach of its rules. Acting swiftly would also be
in the children’s best interests by sending a signal that such behaviour is not to be condoned.
11.8 CHILDREN’S VIEWS – EVIDENCE, JUDICIAL INTERVIEW AND CHILD REPRESENTATIVE
[11.8.1] The importance of ascertaining the children’s wishes and views in reaching a decision which would be in the child’s best
interests is enshrined in section 125(2) of the Charter which provides that while the paramount consideration is the child’s welfare, the
court shall have regard to the wishes of the child where he or she is of an age to express an independent opinion. Previously, the
children’s wishes were often expressed to the court in the form of evidence by the children on affidavit in relation to the applications or
as expressed via interviews and observations by trained counsellors where the relevant report has been ordered by the court. The court
in reviewing the affidavits and the report prepared by the appointed court counsellor would then be cognizant to an extent of the child’s
views.
A. Evidence By Children – Children’s Affidavits

[11.8.2] Save where the child is interviewed by the court or a court-appointed specialist counsellor/expert, the child’s views and wishes
would normally be expressed either on parties’ affidavits or an affidavit filed by the child. While there is no regulation or statutory
provision setting out the circumstances under which a child is not to give any evidence on affidavit, practitioners should advise their
clients that children should not be unnecessarily involved in the proceedings and should not affirm any affidavit unless absolutely
necessary. The danger is that by affirming an affidavit for one parent in any application, the child may feel that he or she is expected to
side with one parent over the other which would subject the child to unnecessary stress. This may also cause greater friction between
the parents as well as between the child and the parent against whom the affidavit was filed.
[11.8.3] In some cases, the children themselves, who are usually older and able to express their views independently, may want to
voluntarily affirm an affidavit in an application. Practitioners should still assess on the facts and if necessary by speaking with the
children, whether the subject-matter which the children want to give evidence on is material to the application and if there are some
other more suitable means for the children’s views to be expressed to the court. As an example, if the children have certain views as
regards to access timings with the non-custodial parent, practitioners may advise their clients of the possibility of requesting that the
children be interviewed by the court to express their wishes. The client can give evidence on affidavit as to the children’s views as
expressed to him or her and ask for the appropriate report to be ordered and/or for the children to be interviewed by the court. It is
suggested that such an approach would be preferable to actively involving the children in the proceedings or applications by giving
evidence on affidavit which inevitably is viewed to favour one parent over the other and which would only increase the level of conflict.
An interview by the judge with the children or through a court-appointed specialist with the aim of producing a report would be viewed
as being less offensive given that the children’s wishes are ascertained at the direction of a neutral party (the court).
[11.8.4] Sometimes, it may be necessary for the children to affirm an affidavit given that their evidence is material to the issue in
dispute or necessary to rebut a serious allegation. As an example, the children may voluntarily give evidence on affidavit to set out their
reasons as to why a particular tertiary institution and/or course of study was chosen where this is the issue in dispute or to address an
untrue allegation of abuse of the children made by the other parent. Where the children do give evidence on affidavit, care must be
taken to ensure that such affidavits do not serve as platforms for the children or the parent to denigrate the other parent, thereby
increasing animosity. The child should explain that he or she is making this affidavit of his or her own volition. The affidavit should be
concise, factual and refrain from making any statements that would be seen as supporting one parent while putting down the other.
Emotive and certainly abusive language is not to be used.
B. Judicial Interview
[11.8.5] Since the Court of Appeal’s seminal case of ZO v ZP 34 that directs judges to conduct interviews with the child, where
appropriate, to ascertain the children’s views in accordance with section 125(2)(b) of the Charter, the courts have generally conducted
judicial interviews with children in relation to disputes on custody, care and control and access to ascertain their views. While the sole
discretion remains with the judge on whether to interview the children in custody disputes, it is established that judicial interviews with
the children are very helpful in ascertaining (directly) from the children their views without any adulterations. There are no formal
applications which must be taken up before the court may interview the children. The parents may either request for this during the
course of the proceedings/application or the court may of its own motion direct that the children be interviewed by the court. In some
cases, a request for the children to be interviewed by the judge may be added to the other substantive orders sought in relation to
custody, care and control and access when a party commences an application.
[11.8.6] The concept of judicial interviews with children in family proceedings in Singapore has been soundly endorsed and applied by
the FJC. In AZB v AZC, 35 Debbie Ong JC considered the issue of whether the children should be interviewed by the court given an earlier
decision by another High Court judge who declined to interview the children. The court held that there are good reasons to ascertain
directly the views of the children by speaking to them and this remained an important option within the judge-led family justice system
that should be used if the judge considers it appropriate in furthering the children’s interests. 36 Concerns that such interviews with the
judge would draw the children into the contentious proceedings are unfounded and the court noted that giving the children an
opportunity to express their views to the judge who would be making orders that directly impact their lives may in fact give the
children relief to the ongoing parental conflict.
[11.8.7] It is suggested that this is the correct approach and the court should as a starting point avail itself of the option of interviewing
the children to ascertain their views unless it is unnecessary on the facts or would not advance the welfare of the child. Children who
are interviewed should be old enough to express an independent opinion. As a general guideline, it is suggested that children of late
primary school-going age (10 years) and older would be able to express their views rationally. The views of older children who have
more activities and are usually more mature in their thoughts by virtue of their age should also be given greater weight insofar as the
orders which the court would be making would be directly impacting their lives.
[11.8.8] Where a parent requests that the children should be interviewed and another parent objects, it would be preferable for the
court to examine the reasons for the request, the reasons for the other parent’s objection bearing in mind the comprehensive exposition
on this issue in AZB v AZC 37 before deciding if on the facts of the case, it would be in the child’s best interests to be interviewed by the
judge. It is suggested that where part of the dispute is in relation to the child’s wishes as expressed to the parents, the court should in the
absence of extenuating circumstances interview the child to ascertain his or her wishes.
[11.8.9] The decision on whether to interview the children is strictly within the judge’s sole discretion having regard to the facts of the
case before the court. As noted by the court in AZB v AZC, judges are not compelled to interview children and there may be situations
where interviewing the children is not the best way to proceed. In assessing when judicial interviews with the children would be
appropriate in furthering the interests of the children, the court will be mindful that similar useful information may be obtained from
the parties themselves, parties’ counsels and any court appointed professionals. In the final analysis, the court’s decision as to whether
to interview the children would in large part be determined by the specific circumstances of the case and whether the information that
may be obtained from judicial interviews with the children would be helpful to the court which is making orders affecting the welfare
of the children in question.
[11.8.10] When the judge decides to interview the children, such interviews are usually conducted by the judge with the presence of a
trained family counsellor without either party and/or their legal counsel being present. The court may also decide on a less imposing
venue to interview the children and parties will be notified of the date and place where the judicial interview will be conducted by way
of a Registry’s Notice issued by the court. The whole aim is for the judicial interview of the children to be conducted in a neutral
environment where the children would be able to express their views freely without fear of offending one or both parents. As with the
reports ordered by the court (such as the Social Welfare Report and the Custody Evaluation Report), what transpires during the
interview is confidential although the court may give indications on the child’s views to parties’ counsels.
C. Child Representative
[11.8.11] Under rule 30 of the Family Justice Rules 2014, the court may appoint a Child Representative where the child is involved in or
is the subject-matter of any proceedings if it is of the view that it would be in the child’s best interests. A party to the proceedings in
question (usually the parents) may also apply for a Child Representative to be appointed. Such an application must be commenced by
way of summons with a supporting affidavit. Where there are ongoing divorce proceedings, the application to be filed is a normal
summons under the divorce suit. If not, the application would be by way of an OS under section 5 of the GIA and the subject title of the
OS should also reflect that the OS is made pursuant to rule 30 of the Family Justice Rules 2014. Where orders are also sought on the
issues of custody, care and control and access to the children, the prayer for the appointment of a Child Representative may be included
together with the other substantive reliefs requested in the appropriate summons application. When a parent requests that a Child
Representative be appointed, the parent should give evidence on affidavit as to why he or she thinks it is important for a Child
Representative to be appointed and how this would advance the child’s welfare.
[11.8.12] The Child Representative is an independent legal practitioner whose role is to “represent the child’s views and best interests in
court proceedings, thus helping to ensure that the decisions eventually made by the court are in the child’s best interests”. 38 The Child
Representative is directed to form an independent view based on the evidence on what is in the best interests of the child and what he
or she believes is in the child’s best interests.
[11.8.13] In the discharge of his or her duties to act in the child’s best interests, the Child Representative is expected to interview the
child in order to allow the child to express his or her views freely without influence and convey the child’s views accurately to the court
while ensuring that the court’s attention is drawn to matters which are relevant to advancing the child’s interests. 39 The Child
Representative as the appointed independent legal representative of the child is to ensure that the child is advised on developments in
the proceedings, facilitate the resolution of any issues in the proceedings in the child’s interests and liaising with an appointed mental
health professional to examine the child. The duties and powers of the Child Representative are very varied to give effect to the aim of
protecting the child’s welfare.
[11.8.14] In assessing what the Child Representative views to be in the child’s best interest, the Child Representative would not only
interview the child to understand the child’s views and perception on care arrangements for the child but may also interview
individuals involved in the child’s life such as relatives, teachers and other professionals who may be in contact with the child. Visits to
the child’s school and/or home environment may be arranged by the Child Representative to get a better idea of the child’s current care
arrangements and to speak with the child in a less imposing environment. The Child Representative can also arrange a conference with
the parents and their legal counsels to discuss issues relating to the child with a view towards resolving matters on the child amicably. If
an agreement is reached during the organised conference, the Child Representative will inform the court of the agreement which will
be recorded by the court (subject to parties’ confirmation) as a Consent Order.
[11.8.15] The Child Representative has to be proactive in advancing the interests of the child and should bring to the court’s attention
any matter or evidence that the Child Representative is aware of even if the child or any party to the proceedings objects to such
information being disclosed. 40 As an example, if the Child Representative has information that one parent intends to permanently leave
the country with the child on the pretext of travelling for holidays, the Child Representative is duty-bound to inform the court
expeditiously even if that parent or the child objects to such information being disclosed. Thus while the Child Representative
represents and advises the child, he or she is not bound to present recommendations based solely on the child’s views if the Child
Representative is of the view that it is not in the child’s best interests to do so. The overriding factor remains what would in the Child
Representative’s view be in the child’s best interest.
[11.8.16] Where a Child Representative has been appointed, practitioners should advise their clients that the Child Representative does
not represent them and will not take any orders or instructions from the parents even if the necessity of contacting the child may mean
such communications may at times need to be conveyed through the parents (where say, one parent is not legally represented). The
parents should not ask for any advice from the Child Representative who is in no position to do so and should refrain from interfering
in the Child Representative’s actions which are necessary for him or her to perform his or her role as directed.
[11.8.17] After a Child Representative has been appointed and he or she has performed his or her duties as set out in rule 31 of the
Family Justice Rules 2014, the Child Representative is to submit a written report to court setting out the child’s views and the matters
that the court has directed the Child Representative to address along with supporting documents within one month from the date of
appointment. The Child Representative’s report should include the proposed course of action based on the evidence and what the Child
Representative feels is in the child’s best interest. This report is to be served on the child as well as on all parties. 41 The Child
Representative’s role ends after a final court order is made on the application and the Child Representative informs the child of the
order and its consequences.
[11.8.18] The remuneration of the Child Representative is fixed by the court and is to include any disbursements reasonably incurred
by the Child Representative. 42 The costs fixed are dependent on the complexity of the issues at hand and the amount of work done by
the Child Representative. Unless otherwise ordered by the court, the remuneration of the Child Representative is to be borne by the
parties/parents in equal shares. This reflects the neutrality of the role of the Child Representative in independently advancing the child’s
interests and views without being beholden to either parent. The only exception is where parties are legally-aided.
11.9 BREACH AND ENFORCEMENT OF ORDERS – COMMITTAL
[11.9.1] A prickly problem often faced by practitioners and parties is when an order of court has been made in relation to custody, care
and control and access and a parent refuses to comply with his or her obligations under the court order. In such circumstances, where
the usual litany of correspondences between parties’ solicitors have failed to rectify the situation, a parent’s only recourse left is to apply
to the court in seeking the court’s assistance to compel the offending party to comply with the court order.
[11.9.2] The power to enforce a court order which in the case of custody, care and control and especially access, usually requires a
positive action on the part of the defaulting parent (i.e. to handover the child for access), is set out in rule 694 of the Family Justice Rules
2014. Briefly, where a party is required to do an act within a time frame specified in the order of court refuses to do so within the
specified time frame or does an act which he or she has been ordered to abstain from doing, the only mode of enforcing such an order is
to seek an order of committal against the defaulting party with leave of court. The procedure for applying for committal against the
defaulting party is set out at Division 50 of the Family Justice Rules 2014. 43 Practitioners should note at the outset that committal must
be seen to be a remedy of final resort especially in matrimonial proceedings and should only be considered where a party deliberately
and persistently refuses to obey an order of court. 44
[11.9.3] It is a two-stage process in which the party applying for an order for committal must first file an ex parte application seeking
leave of court before filing an inter partes application for an order for committal after the leave of court has been granted. Given the
relatively draconian nature of the consequences of a committal order, all procedural requirements must be strictly adhered to and any
failure to comply, even if technical, would be fatal to the application be it at the ex parte stage to obtain leave or at the inter partes
committal proceedings. 45
[11.9.4] The ex parte application for leave of court to apply for a committal order must be made by way of OS or a summons in the
proceedings and must include both a statement and a supporting affidavit verifying the facts relied on. The statement must set out the
name and description of the applicant, the name, description and address of the party against whom committal is sought and the
grounds on which committal are sought. It has been suggested by the court that for good practice, the statement should also include
details and the manner of service of the court order on the party who has breached the order. 46 This should be followed rigidly as any
defect in personal service of the court order unless otherwise dispensed with leave of the court is fatal to the committal application.
[11.9.5] For the inter partes application, it is to be made by way of an ordinary summons in the proceedings in which leave of court to
apply for committal was obtained. The same affidavit used in support of the ex parte application may be used for the inter partes
application. Practitioners must keep in mind the timelines involved and file the inter partes application within 14 days from the order in
which leave to apply for committal was given failing which the leave would lapse 47 and the party would need to seek leave afresh from
the court.
[11.9.6] The hearing of the inter partes application for committal is held in chambers and unless leave of court is granted, no other
grounds may be relied on except as set out in the statement filed by the applicant for the ex parte application for leave to apply for an
order of committal against the defaulting party. The defaulting party may elect to give oral evidence at the hearing in which case the
hearing would be held in open court (but still in camera) 48 and the defaulting party would be subject to cross-examination by the
applicant or his or her legal counsel on the evidence given.
[11.9.7] It must be stressed again that because of the draconian nature of the relief sought 49 and the consequential penalties which the
court may impose upon a party on finding him or her guilty of contempt, 50 every procedural requirement including the addition of the
appropriate penal notice in the order of court, the personal service of the court order with penal notice endorsed on the party and the
time when the said order was served must be strictly complied with. A failure to do so would mean that the committal application
would fail even if the court is substantively of the view that the order in question has not been complied with.
[11.9.8] In particular, it is this author’s observation that orders on custody, care and control and access to the children are often
difficult to be enforced by way of committal given the nature of these orders and the fact that it is practically very difficult to satisfy the
requirements necessary before committal can be granted. In many cases, the orders breached pertain to a parent’s access to the
children. The complaint of non-compliance often turns on the handover of the children for access or a parent being able to exercise
access to the children as ordered. It is clear that where the order which a parent is accused of being in default of requires him or her to
do a positive act as access orders are (as opposed to an order to abstain from doing something), a time frame within which that act must
be done should be specified and personal service of the endorsed order with the penal notice must be served on the party before the
expiration of the time within which the party was required to do the act. 51 The order of court must be endorsed with the penal notice in
Form 136 of the Family Justice Courts Practice Directions 2015, 52 which must inform the party that he or she is liable to an order for
committal if he or she fails to obey the order within the time specified in the order. Contrary to the beliefs of some practitioners, leave of
court is not required to endorse a court order with the penal notice in the appropriate form although personal service of the endorsed
court order on the party is still a requisite.
[11.9.9] Practitioners should take note of the following requirements which should be met if their client desires to enforce an order of
court by obtaining an order for committal:
1. Where the act in question requires a positive act to be done by a party, a time frame must be stated in the order of court for the
act to be done by before the party can be found guilty of contempt. 53
2. A penal notice must be endorsed on the order which requires a party to do a positive act. Access orders require a positive act on
the part of the parties and the order of court with penal notice endorsed must be served as a prerequisite to committal. 54
3. The endorsed court order with penal notice must be served on the party before the expiration of the time for which the party is
to do the act. Notices to the party’s legal counsel that he or she is in default sent prior to the expiration of the time in question
would not be sufficient. 55
[11.9.10] In access orders, the breach in question is the non-compliance of the access dates and timings. Based on the existing principles
and rigid interpretation of the rules regarding committal applications, it would appear that committal applications premised on a
breach of the access orders are unlikely to succeed. It is improbable and impractical to expect a parent to effect personal service of the
access order with penal notice endorsed on the other parent each time he or she seeks to exercise access in accordance with the order of
court given that each access session is in the strict sense of the word, a new date by which an act is to be done.
[11.9.11] It is suggested that while parents should be slow to rely on committal as a means of enforcing the order which must remain as
the last resort, the court should give effect to its orders and not allow a litigant to disregard its authority with impunity. As the apex
court has noted in Lee Shieh Peen Clement v Ho Chin Nguang, 56 respecting and obeying orders are of paramount importance and the
court should not hesitate to punish any party who fails to obey its orders. 57 Although this should be tempered within the context of
matrimonial proceedings, the court should not hesitate to find a “recalcitrant and obstructive litigant who is in continuous breach of a
mandatory court order” 58 in contempt of the court order where the breach is ongoing and contumelious.
[11.9.12] While every reasonable effort may be made especially in the context of orders in relation to children to ascertain whether the
difficulties in implementing the order are due to genuine issues concerning the children and if so to seek the necessary assistance from
the court, a vexatious and recalcitrant litigant should not be allowed to disregard his or her obligations under the court order. It is
heartening to note that the court would not shy away from committing an obstructive litigant who repeatedly refuses to comply with
court orders with contempt. In Mok Kah Hong v Zheng Zhuan Yao, 59 the Court of Appeal discussed the applicable principles and
procedures to be complied with in applying to commit a party for contempt of court and proceeded to incarcerate a husband who
repeatedly refused to comply with the court orders and opted not to purge his contempt.
[11.9.13] In the final analysis, it is for practitioners to advise their clients as to the availability of other options to encourage a party to
comply with his or her obligations under the court order. Committal should remain the final resort for a “recalcitrant and obstructive
litigant” who continuously breaches the court order.
11.10 COSTS
[11.10.1] The issue of costs in family proceedings is explored in greater detail in Chapter 16 (Costs). Suffice to state that the general
principle that costs follows the event does not apply in all circumstances to family proceedings and particularly those in relation to the
children. Where the application is with regards to custody, care and control and access of the children, the court generally wants to
emphasise the “no fault” basis on which the divorce regime is based and to minimise the animosity and discontent already inherent
between the parties. This is particularly so for applications concerning the children where the court aims to avoid any distinction being
made between a “winning” and “losing” party which would only serve to exacerbate the conflict between the parties when the emphasis
is to encourage the parents to work together and jointly parent their children.
[11.10.2] That said, practitioners should note and advise their clients that there will be cost consequences if the court is asked to
intervene unnecessarily in the family life and/or the applications taken out are clearly unnecessary. 60
11.11 CONCLUSION
[11.11.1] In conclusion, it is incumbent on the practitioner to advise his or her client that the focus must be on the children and on their
welfare in dealing with all requests or matters related to the children. While parents may have their own notion of what may be best for
the children, they should be guided by counsel to identify the children’s needs and to distinguish their wants from what would be in the
children’s best interests having regard to the applicable legal principles. Clients should be reminded that regardless of the breakdown of
the marital relationship and their personal feelings about their spouse, they both remain parents to their children and have to
cooperate on jointly parenting their children.
[11.11.2] It would be more helpful if clients are able to focus on the children and their future while considering a parenting
arrangement which would allow both parents to contribute constructively in their different roles to their children’s lives. The children
should remain reassured that regardless of the breakdown of the family unit, they can count on both their parents to play an active and
involved role in their lives. Parents in a custody dispute are often so blinded by their dislike for the other parent and fail to recognise
that by engaging in acrimonious mudslinging and entrenching themselves in their positions, the children are the ones who inevitably
suffer. Where a dispute exists such that there is a clear need for the court to adjudicate and give guidance on the matter, practitioners
should advise their clients to present the dispute and the reasons for their application in a factual manner which focuses on the
children while avoiding scathing emotional language which is unhelpful. Doing so allows the court and the parents to clearly identify
the issues in dispute so that the necessary orders may be made in the children’s best interests.
[11.11.3] Practitioners should also explore other avenues of dispute resolution with their clients be it mediation between the parties,
direct negotiations between the parties or with a trusted third party while always drawing their attention to the children and the impact
that a protracted dispute is having and would likely have on the children. Parties should also be encouraged to find their own solutions.
After all they remain parents to their children and will have to work together to effectively parent their children while providing them
the support they need.
11.12 SAMPLE DOCUMENTS
11.D.1 Originating summons

Form 47
ORIGINATING SUMMONS
IN THE FAMILY JUSTICE COURTS OF THE REPUBLIC OF SINGAPORE
O.S. No. )
of 20 . )
(Seal) )
(In the matter of )
Between
Plaintiff.
And
Defendant.
To THE DEFENDANT(S) [name]
of [address]
The Plaintiff applies for the following orders:
1.
2.
*This Summons is taken out by [to state name], solicitor for the abovenamed Plaintiff whose particulars are as follows [to state address].
*(If the Plaintiff is unrepresented) This Summons is taken out by the abovenamed Plaintiff who resides at [to state address]/(and if the
Plaintiff does not reside within the jurisdiction) whose address for service is [to state address].
*Delete where inapplicable.
Registrar.
Note:
1. This originating summons may not be served more than 6 months after the above date unless renewed by order of the Court.
2. If a defendant does not attend personally or by his counsel or solicitor at the time and place abovementioned, the Court may
make such order(s) as it deems just and expedient.
3. Unless otherwise provided in any written law, where the plaintiff intends to adduce evidence in support of an originating
summons, he must do so by affidavit, and must file the affidavit or affidavits and serve a copy thereof on every defendant not
later than 7 days after the service of the originating summons.
11.D.2 Ex parte originating summons

Form 48
EX PARTE ORIGINATING SUMMONS
O.S. No. )
of 20 . )
(Seal )
(In the matter of )
Applicant/Plaintiff.
The Plaintiff applies for the following orders:
1.
*This Summons is taken out by [to state name], solicitor for the abovenamed Plaintiff whose particulars are as follows [to state address].
*(If the Plaintiff is unrepresented) This Summons is taken out by the abovenamed Plaintiff who resides at [to state address]/(and if the
Plaintiff does not reside within the jurisdiction) whose address for service is [to state address].
*Delete where inapplicable.
Registrar.
Note:
1. Unless otherwise provided in any written law, the applicant intending to adduce evidence in support of the hearing of the
originating summons must do so by affidavit or affidavits, and such affidavit(s) must be filed with the Court at the time of filing
of the originating summons.
11.D.3 Summons
Form 118
SUMMONS
(Title as in action)
To:
Let all parties concerned attend before the Court on the date and time to be assigned for the hearing of an application for the following
order(s):
1.
2.
3.
Grounds of application: (State the grounds here) or (As set out in the affidavit of [name]).
Issued by: (Solicitors for the ).
# This form requires sealing by the Court and the signature of the Registrar.
11.D.4 Notice on certain judgments

Form 136
NOTICE ON CERTAIN JUDGMENTS
The endorsement should be in the following words or words to the following effect:
(a) In the case of a judgment or order requiring a person or body corporate to do an act within a specified time:
“If you, the within-named (or ) neglect to obey this judgment (or order) by the time therein limited, you will be liable to
process of execution for the purpose of compelling you to obey the same.”.
(b) In the case of a judgment or order requiring a person to abstain from doing an act:
“If you, the within-named disobey this judgment (or order), you will be liable to process of execution for the purpose of
compelling you to obey the same.”.
(c) In the case of a judgment or order requiring a body corporate to do or to abstain from doing the act, but it is sought to take
enforcement proceedings against a director or other officer of that order:
“If neglect to obey this judgment (or order) by the time therein limited (or in the case of an order to abstain from doing an
act), if disobey this judgment (or order), you (a director or officer of the said ) will be liable to process of execution for the
purpose of compelling the said to obey the same.”.
FOOTNOTES
1 [2015] 3 SLR 973.
2 The CFRC scheme has now along with other schemes such as the Family Resolution Chambers been subsumed under the Family Dispute Resolution (FDR)
Division in 2014 with the establishment of the Family Justice Courts. See Chapter 17. The CFRC scheme itself and mediation remains unchanged.
3 [2015] SGHCF 3.
5 Alice Chia, “New measures to protect children whose parents are getting divorced”, Channel NewsAsia, (April 6, 2016),
<http://www.channelnewsasia.com/news/singapore/new-measures-to-protect/2670370.html>. Due to the nature of the scheme, legislative endorsement is
needed and as such, the Parenting Coordination scheme is at its infancy stage.
6 See BHE v BHF [2013] SGDC 105 where the Family Court ordered shared care and control for an 8 month old infant on the basis that a prior shared care and
control agreement between the parties for the child was not detrimental to the child and the child was close to both parents. In AQL v AQM [2012] 1 SLR 840,
the High Court refused to order shared care and control given the strong clash of parenting styles and parties’ seeming inability to compromise on their child’s
care arrangements.
7 See BKJ v BKK [2013] SGDC 261 at [20]–[23].
8 BKJ v BKK [2013] SGDC 261 at [22] (Emphasis own).
9 See 11.D.3 below.
12 Rules 52 and 902 of the Family Justice Rules 2014.
14 Part 3, rules 22–28 of the Family Justice Rules 2014.
18 For a comprehensive yet succinct discussion on the difference between the various kinds of reports the court may order and when it would be most
appropriate to order these reports, see “Reports in Custody and Access Disputes – When, Why and What are they?” by the then Deputy Registrar Lim Hui Min
dated September 19, 2003 <https://www.familyjusticecourts.gov.sg/QuickLink/Documents/ReportsCustodyAccessDisputes.pdf>. The names of the agencies have
since been updated (FJJC (Family & Juvenile Justice Centre) is now CAPS and FSC (Family Service Centre) is now the appointed DSSA) and costs are no longer
payable for assisted access and assisted transfer sessions at the DSSA. The essence of the reports and procedure remains largely the same.
19 In ATZ v AUA [2015] SGHC 161, Belinda Ang J held at [98]–[100] that the ancillary court is not bound to follow an earlier order made under an OSF (family
originating summons) custody application pursuant to the Guardianship of Infants Act (Cap 122).
20 See 11.D.1 below.
21 Rules 18(2)(b) and 153 of the Family Justice Rules 2014.
22 Sections 7 and 10 of the GIA respectively.
23 [2004] SGDC 192 at [22].
24 [2004] SGHC 216.
25 In Lim Chin Huat Francis v Lim Kok Chye Ivan [1999] 2 SLR(R) 392, where the natural parents of the infant was not interested in guardianship, the High Court
and Court of Appeal regarded the appellant to be a lawful guardian having charge and care and control over the child over a material time. Also see Re
C[2003] 1 SLR(R) 502; [2002] SGCA 50 where the Court of Appeal awarded custody and care and control of the child to the maternal grandparents as the father
was incarcerated and the mother had passed away.
28 See rules 306–309 of Family Justice Rules 2014 in relation to personal service of originating processes and rule 310 which incorporates this into personal
service for OS.
29 Rule 327 of the Family Justice Rules 2014; paragraph 72(2) of the Family Justice Courts Practice Directions 2015.
30 See ATZ v AUA [2015] SGHC 161, n 19 above, where the court considered the issue at length at [98]–[103].
31 See rule 642 of the Family Justice Rules 2014 for the form of an affidavit, and rule 646 for the general contents of an affidavit.
34 [2011] SGCA 25.
35 [2016] SGHCF 1.
36 Ibid at [18]–[24].
37 [2016] SGHCF 1.
38 Recommendations of the Committee for Family Justice on the Framework of the Family Justice System dated July 4, 2014 at para 163, Appendix A, pp 47–48
<https://www.mlaw.gov.sg/content/dam/minlaw/corp/News/Family%20Justice%20Report.pdf>.
39 The list of duties that the Child Representative is to discharge subject to other directions by the court is set out at rule 31 of the Family Justice Rules 2014.
43 Rules 758–766 of the Family Justice Rules 2014.
44 See Tan Beow Hiong v Tan Boon Aik [2010] 4 SLR 870 at [63].
45 In BMP v BMQ [2013] SGHC 263, Lionel Yee JC (as he then was) held that the failure by the applicant to set out the requisite information in her statement in
support of her ex parte application for leave as required under Order 52 rule 2(2) of the Rules of Court (rule 759(2)(b) of the Family Justice Rules 2014)
warranted a setting aside of the order granting the plaintiff leave to apply for committal.
46 Ibid at [31].
49 PT Makindo v Aperchance Co Ltd [2010] SGHC 221.
50 Section 11(2) of the FJ Act where the court may order imprisonment for a term not exceeding six months and/or a fine.
51 Rules 694(a) and 696(2)(b) of the Family Justice Rules 2014.
53 In QV v QU [2008] SGCA 9, the Supreme Court allowed the appellant’s appeal against a committal order on the basis that a failure to state a timeline by which
she was required to do an act meant that the order could not be enforced by an order for committal until and unless time was specified for doing that act. As
no time was stated in the order for the wife to hand over the children’s passports to the husband, she could not be committed for contempt.
54 In GM v GN [2004] SGDC 284, the applicant’s failure to include the penal notice in the order of court was fatal to his application for committal.
55 In TAV v TAW [2015] SGFC 13, the wife’s committal application failed even though the court found that the husband had breached the order of court for which
the wife had commenced committal application (at [33]).
56 [2010] SGCA 34.
57 Ibid at [15].
58 Tan Beow Hiong v Tan Boon Aik [2010] 4 SLR 870 at [61].
59 [2016] SGCA 8.
60 TCT v TCU [2015] SGHCF 3 at [41].

2016 - 10 - 17 PAGE 347

Chapter 12: Other Applications Relating to Children
Chapter 12
Other Applications Relating to Children

Ivan Cheong ZH

12.2 Applications under the International Child Abduction Act (Cap 143C) 348
A. When can Hague Applications be Taken Out? 350
B. Procedure for Hague Application 352
C. Principles and Considerations Applicable for Hague Applications 354
1. Establishing wrongful removal or retention under article 3 355
2. Habitual residence 356
3. Article 13 exceptions to the return of the child to the country of habitual residence under the Hague 358
Convention
12.3 Removal of Children from Jurisdiction 360
A. Preventing the Removal of the Children from the Jurisdiction 361
B. Where Child has Already been Removed from the Jurisdiction of the Singapore Courts 363
1. Direct judicial communications as a tool 365
C. Applications for Leave for the Child to be Relocated Permanently from the Jurisdiction 366
D. Application to Remove a Child Temporarily from the Jurisdiction 371
12.4 Wardship in Singapore – Jurisdiction and Applications 372
A. Who may Apply to Make a Child a Ward of the Court 373
B. Process and Procedure 375
12.5 Conclusion 375
12.1 INTRODUCTION
[12.1.1] The law, practice and procedure in relation to the children which touch on the applicable legal principles as well as the
practical procedures to be observed with regard to the issues of custody, care and control and access to the children have been covered
in Chapters 10 (The Law in Relation to Children) and 11 (Practice and Procedure in Relation to Children). In this day and age, where the
ease of overseas travel and mobility of an individual is the norm, 1 the concern of a parent removing the children from the jurisdiction
of the children’s habitual residence without the other parent’s consent is a real risk that arises. It is in the children’s interests that their
welfare be protected by ensuring the proper procedures exist and principles of law are applied to prevent a parent from removing the
children wrongfully from jurisdiction and where such a wrongful removal has taken place, to make certain the expeditious return of the
children. In this chapter, we look at the other applications which are likely to be taken out in relation to children, most of which relate to
applications to prevent the removal of the children from the jurisdiction of the Singapore courts or to compel a parent in jurisdiction to
return the children to Singapore where the children have been wrongfully removed.
12.2 APPLICATIONS UNDER THE INTERNATIONAL CHILD ABDUCTION ACT (CAP 143C)
[12.2.1] The enactment of the International Child Abduction Act (Cap 143C) (“ICAA”) in 2010 was a direct result of Singapore acceding to
the Hague Convention of October 25, 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”) on December
28, 2010 and to give effect to the Hague Convention in Singapore. The ICAA came into force on March 1, 2011. Practitioners should note
at the outset that not all articles of the Hague Convention have been adopted by Singapore. The articles which have been adopted and
have the force of law in Singapore are set out in the Schedule to the ICAA.
[12.2.2] The main aims of the Hague Convention as given effect by the ICAA and set out at article 1 of the Hague Convention are to
“secure the prompt return of children wrongfully removed to or retained in any Contracting State” and “to ensure that the rights of
custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” 2 The Hague
Convention is only applicable between Singapore and the Contracting States which have formally accepted Singapore’s accession of the
Hague Convention. As of April 2016, a total of 39 Contracting States that have formally accepted Singapore’s accession and which
Singapore recognises that the Hague Convention applies to between itself and the listed Contracting States are set out in the Schedule to
the International Child Abduction (Contracting States) Order 2011. In 2016, the United Kingdom of Great Britain and North Ireland,
South Africa and various UK principalities accepted Singapore’s accession which will come into force on May 2016 (South Africa) and
June 2016 (UK). The list of Contracting States as set out in the Schedule will therefore increase as a result.
[12.2.3] The Hague Convention does not apply to Contracting States which have not formally accepted Singapore’s accession to the
Hague Convention, in which case an application under the Hague Convention (“Hague Application”) may not be taken up by a parent
where the child has been removed to (or from) a Contracting State that has not formally accepted Singapore’s accession to the Hague
Convention. While this may come as a surprise to the layperson, the practitioner must be able to identify at the outset where it is alleged
that the children have been wrongfully removed from a parent’s custody whether the country from which the children have been
removed is first a signatory to the Hague Convention and if so, whether it is a Contracting State that has formally recognised Singapore’s
accession to the Hague Convention. A Hague Application would be ruled out in the event that the above prerequisites are not satisfied.
[12.2.4] It is important to note that while some countries and regional blocs (the European Union (“EU”) as an example) have announced
that they will accept Singapore’s accession to the Hague Convention, 3 these countries (or member states in the case of the EU) have not
formally accepted Singapore’s accession to the Hague Convention. The UK and its related principalities are the only EU member states to
have formally accepted Singapore’s accession to the Hague Convention since the decision was issued by the European Court of Justice
(“ECJ”) on June 15, 2015. Where the children have been wrongfully removed to or from a foreign jurisdiction which is not a Contracting
State that has formally accepted Singapore’s accession to the Hague Convention, no existing mechanism is in place to ensure the return
of the abducted children. A parent’s only recourse is to take out the appropriate application either in Singapore and/or the foreign
jurisdiction to compel the other parent to return the children to their place of habitual residence. These applications will be discussed
below and introduces with it the inherent issues of comity of laws and the difficulty of procuring the return of the children especially
when the judicial authorities in the differing jurisdictions make conflicting orders in relation to the children.
A. When can Hague Applications be Taken Out?

[12.2.5] Hague Applications may be taken out in Singapore when a child has been removed from a foreign jurisdiction or retained in
Singapore by a parent in breach of the other parent’s custody rights. 4 Wrongful removal is defined by article 3 of the Hague Convention
as where the removal is in breach of rights of custody attributed to a person or any other body, jointly or alone, under the law of the
foreign jurisdiction which the child was habitually resident in immediately before the removal or retention. It is also a requirement that
these custodial rights were actually exercised or would have been exercised but for the wrongful removal and retention. In considering
custodial rights, the Hague Convention provides that such rights may arise in particular by operation of law, a judicial or administrative
decision or by reason of an agreement between the parties having legal effect under the law of the foreign jurisdiction.
[12.2.6] A prima facie case is made out in a Hague Application for the return of the child where (i) the child is under 16 years of age
(article 4), (ii) wrongful removal has been established and (iii) less than one year has lapsed from the date of the wrongful removal to the
commencement of proceedings before the judicial or administrative authorities of the Contracting State that the child is in (article 12).
Out of the three conditions, the first two (age of the child and wrongful removal) are prerequisites to a Hague Application. If the child is
over 16 years old and/or wrongful removal cannot be established, the Hague Convention has no effect. Where it is alleged that a child
has been wrongfully removed or retained, the parent who seeks the return of the child should be advised to make the Hague Application
within the one-year time frame or sooner. A Hague Application may still be made more than one year after the wrongful removal or
retention however if the abducting parent is able to demonstrate to the court’s satisfaction that the child has settled in his or her new
environment, this would be a complete defence to the Hague Application. 5 The court would not order the return of the child to the
Contracting State even if it accepts there was wrongful removal as the child’s current residence would effectively have supplanted the
Contracting State as the child’s new habitual residence.
[12.2.7] On the issue of wrongful removal, it may be seen that the term “custodial rights” and the question of whether the parent who
alleges his or her custodial rights have been breached are phrased broadly and it is not a prerequisite that the parents must have a court
order setting out each parent’s custodial right before it can be said that there has been wrongful removal of the children from the
foreign jurisdiction under article 3 of the Hague Convention. Where there is a prima facie case for commencing a Hague Application in
that there has been a removal of the children by a parent from the foreign Contracting State to Singapore and there is no existing court
order setting out the parents’ custodial rights, practitioners should identify whether there is wrongful removal or retention of the
children under the other recognised instances set out at article 3 of the Hague Convention.
[12.2.8] It may be necessary to obtain advice from legal practitioners in the foreign jurisdiction as to the foreign law in order to
determine that there was wrongful removal of the children to (or wrongful retention in) Singapore under the remaining limbs of the
requirements in article 3. If a Hague Application has been commenced, the court may also direct that the applicant is to obtain from the
authorities of the Contracting State where the child was habitually resident, a decision or determination that the child’s removal and
retention was wrongful within the meaning of article 3 of the Hague Convention. 6 It is suggested that for good practice and to ensure an
expeditious hearing of the Hague Application, the applicant parent should in his or her supporting affidavit filed for the application, set
out the reasons and evidence for which the removal or retention was wrongful under the laws of the Contracting State.
[12.2.9] Where a child has been wrongfully removed from his or her habitual residence in Singapore or wrongfully retained by a parent
in a Contracting State, a Hague Application is not initiated or commenced in Singapore. The parent who seeks the return of the child
should be advised that foreign judicial or administrative proceedings should be commenced in the Contracting State to secure the return
of the abducted child back to Singapore and to obtain the appropriate foreign legal representation in the Contracting State. The applicant
may contact the Singapore Central Authority (“SCA”), which is the Rehabilitation and Protection Group of the Ministry of Social and
Family Development, which would assist in the application to the foreign Central Authority of the Contracting State where the child is
held to procure the return of the child. Sufficient information and supporting documents should be provided by the applicant to the SCA
and the application form to the SCA succinctly sets out the required information. The applicant may also choose to directly initiate
administrative or judicial proceedings in the foreign jurisdiction as the case may be to secure the return of the child pursuant to the
Hague Convention.
[12.2.10] Practitioners should note that for the purposes of establishing a wrongful removal of the child from Singapore pursuant to
article 3 of the Hague Convention, it is necessary that there be an existing court order (either by way of an originating summons (OSF)
order under the Guardianship of Infants Act (Cap 122) (“GIA”) or custody orders made under the Women’s Charter (Cap 353) (the
“Charter”)) setting out the parties’ custodial rights and awarding care and control of the children to the parent who seeks the return of
the children from the foreign Contracting State. If no such custody order exists, the parent must be advised on the necessity of applying
for the relevant custody and care and control orders as per the procedure set out in Chapter 11 (Practice and Procedure in Relation to
Children).
B. Procedure for Hague Application

[12.2.11] Where the child has been wrongfully removed from a foreign Contracting State and retained in Singapore, the parent seeking
the return of the child may request for assistance from the SCA to seek the voluntary return of the child. In most cases due to the refusal
of the offending parent to return the children to the Contracting State where they were habitually resident, it would be necessary for the
applicant to commence a Hague Application in the Family Justice Courts (“FJC”) of Singapore to secure the return of the children under
the Hague Convention.
[12.2.12] A Hague Application is commenced by way of an originating summons (“OS”) under section 8 of the ICAA and is to be
accompanied by the applicant’s supporting affidavit along with affidavits of other relevant witnesses. The process for the OS is similar to
other originating summonses as set out in Chapter 11 (Practice and Procedure in Relation to Children) save that as a Hague Application,
the courts recognise the urgency of the application and the process is usually expedited with the hearing generally taking place within a
month of the filing of the application. 7 The Hague Application and supporting affidavit(s) should contain all relevant information to
assist the court in determining whether there was a wrongful removal or retention of the children in Singapore. Such information
includes but is not limited to the following:
1. Information concerning the identity of the applicant, the child in question and the person alleged to have removed or retained
the child;
2. Date and place of birth of the child;
3. Grounds and reasons on which the applicant is asking for the child to be returned;
4. All relevant and available information relating to the whereabouts of the child and the identity of the person whom the child is
presumed to be with;
5. Certified authenticated copy of any agreement between the parties in relation to the child or judicial/administrative
decisions/orders setting out the parties’ custodial rights;
6. Certificate or affidavit from the Central Authority/competent authority/qualified legal professional concerning the relevant law
of the requesting Contracting State; and
7. All other relevant documents and evidence.
[12.2.13] The court may also make interim orders in relation to care and control of and access to the child pending final orders made on
the Hague Application. The court may order pursuant to section 11 of the ICAA, pending its determination of the Hague Application (or
upon its dismissal), an injunction against any person from removing the child from Singapore. A request for such an order may be
included by the applicant in his or her Hague Application if there is a risk that the parent may leave Singapore with the child before the
Hague Application is determined. Practitioners should note that where a Hague Application is commenced, all other ongoing
proceedings in relation to custody, care and control and access to the child in the Singapore court are stayed pending final orders made
on the Hague Application. 8
C. Principles and Considerations Applicable for Hague Applications

[12.2.14] The objectives of the Hague Convention are limited in the sense that it provides a mechanism between Contracting States to
ensure a prompt return of children who have been wrongfully removed from their country of habitual residence based on the
presumption that the court of the country of the children’s habitual residence to which the children are to be returned would consider
the paramount interests of the children when deciding upon the substantive merits relating to the children’s custody. 9 In hearing a
Hague Application, the court is only concerned with the return of the children to their country of habitual residence from which they
were first abducted and is not concerned with the substantive merits relating to relevant issues of custody and/or care and control
between parents. 10
[12.2.15] In the seminal case of BDU v BDT, 11 the Court of Appeal succinctly set out the applicable legal principles and considerations
which the court should consider when hearing a Hague Application. Noting that article 19 of the Hague Convention is manifestly clear
that a decision made under the Hague Convention is not to be taken as a determination on the merits of any custody appeal, the Court of
Appeal held that the court hearing Hague Application should only be concerned with the return of the child to his or her country of
habitual residence from which he or she was abducted subject to the limited exceptions set out in article 13 of the Hague Convention
and should not delve into the merits of custody and care and control of the child. The child’s interests are not prejudiced as the
substantive issues of custody, care and control would be determined by the court of the country of the child’s habitual residence while
depriving the abducting parent of any juridical or other advantage he or she sought to gain through the abduction.
[12.2.16] Simply, this means that when deciding a Hague Application, the court would not descend into a detailed fact-finding exercise
as to what would be in the child’s interests or make any determination as to the issues of custody, care and control and access save for
the interim orders made (if any) pending the determination of the Hague Application. It is clear that when considering a Hague
Application, the court will first have to consider whether there was a breach of the applicant’s custodial rights as defined under article 3
of the Hague Convention while being satisfied that the child is under 16 years old and a period of less than one year has lapsed from the
date of the wrongful removal to the Contracting State. Once this is established, the court must then consider whether the Contracting
State which the applicant seeks the return of the child is in fact the child’s habitual residence and following from this, whether any of the
specific exceptions under article 13 of the Hague Convention apply such that the court may exercise its discretion not to order the return
of the child to his or her country of habitual residence.
1. Establishing wrongful removal or retention under article 3

[12.2.17] In ascertaining whether an applicant’s custodial rights in the requesting Contracting State have been breached and in the
absence of a judicial/administrative decision from the Contracting State setting out the applicant’s custodial rights, evidence should be
adduced by the applicant as to the law of the Contracting State to show how his or her custodial rights which he or she would otherwise
have been able to exercise have been breached due to the other parent’s abduction of the children to Singapore. Such evidence should be
by way of an affidavit affirmed by the relevant authorities or qualified legal professional in support of the applicant’s Hague Application
or a certified document exhibited in the applicant’s supporting affidavit by the relevant authorities in the Contracting State evidencing
the same.
[12.2.18] When considering whether there is wrongful removal or retention of the children in Singapore, the court will also have regard
to any agreement between the parents as to the removal of the children from the country of habitual residence. Consent or subsequent
acquiescence of the parent to the removal or retention of the children is one of the limited exceptions under article 13 that would
warrant the court exercising its discretion not to order the return of the children to the requesting Contracting State. In Clemens
Willibert Bruna v Lim Pei Ching Yvonne, 12 the Family Court dismissed the applicant husband’s Hague Application for the two-year-old
son to be returned to Switzerland as it found that the husband had through his words and conduct consented to the wife’s removal of the
child to Singapore. The husband’s subsequent regret in acquiescing to the wife’s removal of the child did not negate the clear and
unequivocal consent that he had given to the wife through his words and actions.
[12.2.19] If a parent relies on the consent or acquiescence of the other parent to the children’s removal or retention as a defence to the
Hague Application, it must be shown by the parent that such consent was given clearly and unequivocally by the other parent. The
consent given must also not have been withdrawn by the other parent prior to the actual removal and where the consent given was
withdrawn before the removal, the proper course for any dispute about the removal of consent is to be determined by the country of the
habitual residence before the child is removed. 13 At the end of the day, the court’s inquiry on whether valid consent was given which
was subsisting at the time the children were removed is a fact-centric inquiry and would depend on the circumstances of the case. This
mirrors our apex court’s own observations that the precise facts are always of first importance in any Hague Application and the
relevant principles are at best, guidelines. 14
2. Habitual residence
[12.2.20] It is recognised that there is no uniform international approach taken by the judicial authorities in the Contracting States. 15
The approach taken in assessing habitual residence of the children must thus be decided by the judicial authorities of the Contracting
States based on prevailing laws while taking into consideration the approaches taken in other jurisdictions. In Singapore, the court will
take a combined child-centric and the parents’ shared intentions approach as to where the child’s habitual residence is to be. Equal
emphasis is to be placed on both the child’s past experiences as well as the parents’ shared intentions; however, where the child is
young, greater weight will be placed on the parents’ shared intentions. In identifying the child’s habitual residence, the court would also
consider the degree of settled purpose in the jurisdiction that the child has been removed to which would consist of an analysis of the
child’s circumstances in that place and the parents’ present shared intentions regarding their child’s presence there. 16
[12.2.21] Further guidance as to the factors the court takes into consideration when assessing the child’s habitual residence is set out in
the insightful High Court case of TDX v TDY, 17 where Debbie Ong JC held that the child’s habitual residence should not be confused with
domicile but was rather the country which the child is closely connected to, having lived in it for some time and integrated into its
community and culture. In determining the child’s habitual residence, the court will consider where the child has been living and how
settled he or she is in the country, including how integrated he or she is to the country in terms of the environment, education system,
culture, language and people around him or her in the country. The court will also have to consider where the child’s parents are
habitually resident and whether one or both parents had the intention that the child should reside there. 18 It is suggested that these
factors taken into consideration as a whole are indicative of the degree of settled purpose frequently applied by the English courts in
cases where the habitual residence of the child is in dispute and provide a more comprehensive picture of the connecting factors tying a
child to a particular jurisdiction such that it may be identified as the child’s habitual residence.
[12.2.22] For the purposes of a Hague Application, the habitual residence of the child is to be determined at the time of the wrongful
removal or retention of the child. 19 It is submitted that this is correct, an abducting parent should not be allowed to rely on his or her
wrongful conduct to buttress his or her position or assert that the children’s habitual residence has changed as a result of the parent’s
wrongful conduct. However where a parent whose child has been wrongfully removed fails to initiate a Hague Application before the
expiry of the one year period, the other parent is entitled to rely on evidence to show that the child has now settled in his or her new
environment due to the passage of time as a defence to the Hague Application. Time is of the essence and Hague Applications for the
return of abducted children should be made promptly. This also lends credence to the parent’s claim that there was no consent or
subsequent acquiescence for the wrongful abduction of the children from their country of habitual residence by the other parent.
[12.2.23] As noted above, the age of the child is also an important factor in attributing the weight given to the different facts when
assessing the child’s habitual residence. Where the child is older, the assessment should include both objective facts and subjective facts
such as the child’s views. Where the child is young, a greater emphasis would be placed on objective factors such as where the child is
settled and the parents’ intentions rather than on subjective factors. The importance of the child’s age and views in a Hague Application
is further underscored by the fact that a child, who has attained a certain age and degree of maturity such that his or her views may be
taken into account, and who objects to being returned to the country of his or her habitual residence is a recognised exception under
article 13 which allows the requested Contracting State to refuse to order the return of the child.
3. Article 13 exceptions to the return of the child to the country of habitual residence under the Hague Convention
[12.2.24] Where it is established that there has been wrongful removal or retention of the children under article 3 and that the
requesting Contracting State is the habitual residence of the children at the time of the wrongful removal, the court is to order the return
of the children to the Contracting State subject to conditions or undertakings as it thinks fit 20 unless one of the limited exceptions in
article 13 are satisfied. The three limited exceptions under article 13 are:
1. The parent has consented to or subsequently acquiesced in the removal or retention of the children (article 13(a)).
2. The child objects to being returned and is old enough to express his or her views with a degree of maturity such that it is
appropriate to take into account the child’s views.
3. There is a grave risk that the child’s return would expose him or her to physical or psychological harm or otherwise place the
child in an intolerable situation (article 13(b)).
[12.2.25] The first two exceptions have been considered in the sections above and are dependent on the facts of the case. It is for the
parent who asserts that the parent commencing the Hague Application has either consented to or subsequently acquiesced in the
removal or retention of the child to discharge the burden of proving such consent. The consent given must be clear and unequivocal and
should not have been withdrawn prior to the removal of the child. It is suggested that where the child has been retained in a country
against the other parent’s wishes, wrongful retention can still be established even if the other parent had initially consented to the child
remaining in the country as long as the consent was clearly withdrawn thereafter and the request made for the child to be returned. In
BDU v BDT, the High Court found that the mother’s refusal to return the child despite the father’s clear and unequivocal withdrawal of
his consent for the child to remain in Singapore amounted to wrongful retention under the ICAA.
[12.2.26] The other limited exception is to show that there is a grave risk that the child would be exposed to harm or be placed in an
intolerable situation should he or she be returned to the Contracting State. It is clear that the standard of proof for an abducting parent
to invoke the exception under article 13(b) is an extremely high one due to the clear need to highlight the difference between choice of
jurisdiction (which is what the Hague Convention covers) and the substantive issues of custody (which should be decided by the courts
in the country of the child’s habitual residence). In BDU v BDT, the High Court and Court of Appeal had to consider the abducting wife’s
claim that the child should not be sent back to Germany, their country of habitual residence, as there was a grave risk that the child
would be placed in an intolerable situation. The High Court (and endorsed by the Court of Appeal) had no problem dismissing the wife’s
claim and finding that the wife had failed to discharge her burden of proof in establishing the article 13(b) exception. In assessing
whether the exception in article 13(b) is satisfied, the person relying on the exception must identify the specific harm which the child
would allegedly face, show that the harm would be faced and must be of a grave character. The supporting evidence to prove these
allegations must be clear and compelling. 21
[12.2.27] The Court of Appeal in the same case held that the abducting parent cannot seek to rely on his or her conduct to create a
situation of grave risk of physical and/or psychological harm to the child in order to rely on that alleged risk to argue against the return
of the child pursuant to article 13(b). 22 The wife’s claim that the child would be placed in an intolerable situation due to separation from
her if he was ordered to return to Germany clearly did not discharge the stringent burden of proof required in order to prove the
existence of the exception in article 13(b). Moreover, the court was rightfully of the view that the wife had created the situation in which
the child was wrongfully removed from Germany where he was habitually resident and could not rely on her own actions to argue that
the child would be placed in an intolerable situation if he was ordered to be returned to Germany.
[12.2.28] In BDU vBDT, the courts were of the view that the wife’s allegations of being subject to physical violence and psychological
abuse by the husband (which were denied) were not so serious such that there was evidence that grave risk of harm would result to the
child if he was returned to Germany. In summary, it is clear that allegations of the grave risk that the child would face if he is ordered to
return to the country of habitual residence would not be readily accepted by the courts to satisfy the limited exception in article 13(b).
Article 13(b) is to be applied restrictively for an expansive application would defeat the very objective of the Hague Convention. 23 The
onus is on the person opposing the return to satisfy the court that there is a grave risk (not just a real risk) that the child would come to
harm if returned and this standard is extremely high. Even if one or more of the conditions under article 13(b) (or any of the other
exceptions in article 13 for that matter) have been satisfied, the court still has the discretion on whether or not to order the return of the
child.
[12.2.29] In the final analysis, the Court of Appeal highlighted the importance of undertakings given by the parties in Hague
Applications as they are important in ensuring that the return of the child to the Contracting State would not adversely impact the child
and/or the abducting parent. Undertakings are meant to be temporary and to alleviate what may be seen as an otherwise intolerable
situation while providing the child and abducting parent with adequate protection such that the intent and spirit of the Hague
Convention are achieved to their fullest measure. 24 While undertakings should be crafted carefully and be enforceable as far as possible
in the state of habitual residence, the difficulty in ensuring strict compliance with the undertakings need not prevent the court from
exacting such undertakings from the parties under the Hague Convention.
[12.2.30] It may be seen that the Singapore courts will use, and order parties to provide, the necessary undertakings as it deems
appropriate when making an order for the return of the children to the state of habitual residence. This balances the objective of the
Hague Convention to ensure a prompt return of the child to the country of habitual residence where wrongful removal or retention is
established with the inherent and often legitimate concerns faced by the child and/or the abducting parent upon return to the country of
the child’s habitual residence.
12.3 REMOVAL OF CHILDREN FROM JURISDICTION
[12.3.1] Often, practitioners encounter clients who are faced with situations where the other parent is making plans to remove the
children from Singapore without the consent of their clients. In these cases, time is of the essence and the appropriate urgent application
for the necessary orders should be initiated. The process and procedure for such urgent applications which often require the filing of an
ex parte application (for an urgent hearing date and urgent interim injunction orders restraining the other parent from removing the
child from Singapore) and the inter partes application (for the substantive and final orders) are set out in Chapter 10 (The Law Relating
to Children).
[12.3.2] Other applications cover the unfortunate situation where the children have been wrongfully abducted to a country that is
either not a signatory to the Hague Convention or is not a Contracting State that has formally accepted Singapore’s accession to the
Hague Convention. In these cases, the orders sought in addition to the usual orders on custody, care and control also attempt to compel
the abducting parent who remains in the jurisdiction of the Singapore courts to return the children to Singapore, their country of
habitual residence. It is likely that the assistance of judicial authorities in the foreign jurisdiction may be required to enforce the
Singapore court order. The risk of the foreign judicial authorities refusing to register the Singapore court order and proceeding to hear
the substantive merits of the children’s custody with the possibility of conflicting orders cannot be discounted. In this regard, it is hoped
that the initiation of judicial conversations between the Singapore judiciary and the foreign judiciary authorities as per the mechanism
provided for in the Family Justice Court Practice Directions 2015 would assist in minimising the occurrence of such events.
[12.3.3] Applications for a parent with care and control to permanently relocate with the children overseas to a foreign jurisdiction
have seen a shift (or what would be more accurately termed a clarification) from the previous position in which great weight was placed
on whether the relocating parent’s request to relocate was reasonable in determining whether the relocation application would be
allowed to the (correct) position that the only fundamental consideration is that the welfare of the child is paramount.
A. Preventing the Removal of the Children from the Jurisdiction

[12.3.4] Section 131 of the Charter empowers the father or mother of a child to take out an injunction application where matrimonial
proceedings are pending or pursuant to an agreement between the parties or a court order, one parent has custody or care and control
of the child to the exclusion of the other to issue an injunction against the other parent or any other person not having custody of the
child to bring the child out of Singapore. This same section empowers the court to allow a parent to relocate or remove the child from
Singapore either unconditionally or subject to such conditions as it deems fit.
[12.3.5] Section 126(3) and (4) of the Charter provide that where a custody order for the child is in force, no person is to remove the child
from Singapore except with the written consent of both parties or with leave of the court. The person who has custody (or more
accurately care and control) of the child or any party who has received the written consent of the parent with care and control may
nevertheless take the child out of Singapore for a period of less than one month. It is clear from the Charter that save for the parent with
care and control who can bring the child out of Singapore for a period of less than one month, neither parent nor any other party is
allowed to remove the child from Singapore unless with the written consent of both parents or with leave of court. This is of course cold
comfort to the parent who discovers that the other parent (with care and control or otherwise) intends to remove the child permanently
from Singapore. While an application for the child to be returned pursuant to the Hague Convention may subsequently be initiated by
the parent in the foreign jurisdiction if it is a Contracting State that has accepted Singapore’s accession to the Hague Convention, it
always better to prevent the disruption caused to the child’s life by applying for an injunction against the other parent to restrain him or
her from removing the child from Singapore. Needless to say, the problems are further compounded if the child is removed to a foreign
jurisdiction that is not a signatory to the Hague Convention and the foreign jurisdiction is unlikely to recognise orders made by the
Singapore court.
[12.3.6] If there are pending matrimonial proceedings or an existing custody order made under matrimonial proceedings, an
application for an injunction restraining a parent or a third party from removing the child out of Singapore under section 131 of the
Charter is commenced by way of a summons application under the divorce suit with the supporting affidavit. Where there is an existing
order of court made under the GIA awarding care and control of the child to a parent and no ongoing divorce proceedings, the
injunction application is commenced in the same manner as described above save that the summons application would be made under
the OS filed under the GIA.
[12.3.7] In the event that there are no matrimonial proceedings and no agreement or court order granting care and control to a parent
over the other exists, it is arguable that the court has no jurisdiction under section 131(1) of the Charter to restrain a parent or third
party from taking the child out of Singapore. It is suggested that in such a situation, the parent who seeks to restrain the other parent
from removing the child from Singapore should file an OS application under section 5 of the GIA for substantive orders in relation to
custody, care and control of the child while simultaneously praying for the relevant injunction orders to restrain the other parent from
removing the child from Singapore. The parent’s custodial rights to the child and the issue of care and control of the child are sufficient
considerations which should warrant the court making the relevant interim orders to prevent the child from being removed from the
jurisdiction of the Singapore courts pending final orders on the substantive application for custody of the child.
[12.3.8] A plain reading of section 131(2) of the Charter also suggests that there is no such requirement for any pending matrimonial
proceedings or existing custody order/agreement for an application by any interested person for an injunction against any person other
than a person having custody of the child from taking the child out of Singapore. It is submitted that the term “custody of the child”
should be understood in the context of section 131(1) of a parent who by way of an agreement between the parties or an existing custody
order has physical custody or care and control of the child. It is arguable that apart from the court’s inherent powers under section 5 of
the GIA to make any orders relating to the custody, care and control of the child which would usually require the physical presence of
the child in Singapore, section 131(2) also allows parents who are undoubtedly interested parties to seek the court’s assistance in
restraining the other parent from removing the children from Singapore where the factual scenarios set out in section 131(1) of the
Charter are not met. Naturally, it is still incumbent on the applicant relying on section 131(2) for an injunction order to satisfy the court
how he or she is a person of interest entitled to file the application and why an order restraining the other party from removing the
children from Singapore would be in the children’s best interest.
[12.3.9] Practitioners should note that the Immigration & Checkpoints Authority of Singapore (“ICA”) would not automatically have
notice of any Court Injunction Order restraining a parent or third party from removing the child from Singapore. The said court order
should be served on the ICA by the applicant or his or her solicitors. For good measure, the applicant’s solicitors should also immediately
notify the ICA by way of letter and enclose a copy of the court order requesting that ICA is to do all that is necessary to ensure that the
child is not removed from Singapore in breach of the court order. A failure to comply with an injunction order restraining a party from
removing the child from Singapore is punishable as a contempt of court.
B. Where Child has Already been Removed from the Jurisdiction of the Singapore Courts
[12.3.10] In most cases, the jurisdiction of the Singapore courts to make orders related to custody, care and control of the children of the
marriage arises as a result of the children being physically present in Singapore when the relevant applications were initiated or both
parties have submitted to the jurisdiction of the Singapore courts for the divorce proceedings or other applications concerning the
children. The absence of the children at the time of the hearing of the relevant applications is clearly not fatal to the application in that
the court is able to make the necessary custody orders in the child’s best interests even if the child is not physically present in Singapore
as long as parties have submitted to the jurisdiction of the Singapore courts and Singapore is deemed to be the more appropriate forum
to determine the children’s issues due to the connecting factors to Singapore.
[12.3.11] Where the child has already been wrongfully removed by a parent to a foreign jurisdiction which is not bound by the Hague
Convention obligations between itself and Singapore, the only recourse the parent who seeks the return of the child has, is to initiate an
application for substantive custody orders and to request for a declaration that Singapore is the habitual residence for the child as well
as an order compelling the other parent (who has submitted to the jurisdiction of the Singapore courts) to return the child to Singapore
within a certain number of days from the date of the order of court. The process and procedure for initiating such applications in
Singapore are set out in Chapter 11 (Practice and Procedure in Relation to Children). Briefly, if there are no pending matrimonial
proceedings, the application should be by way of an OS under the GIA with a supporting affidavit. Where there are pending matrimonial
proceedings, the application is by way of an ordinary summons filed under the divorce suit with a supporting affidavit.
[12.3.12] Once an interim order on custody, care and control of the child as well as orders for the abducting parent to return the child
are made by the Singapore courts, the parent should be advised to seek appropriate legal representation in the foreign jurisdiction to
register and give effect to the Singapore court orders. Unfortunately, it is this author’s observation that in the absence of the Hague
Convention framework governing the prompt return of the child to the country of habitual residence, the foreign jurisdiction may
decline to give effect to the Singapore court orders and may even proceed to hear an application on the substantive custody issues for
the child. This may result in conflicting custody orders which would not be in the child’s best interests and is a disregard of the principle
of comity of laws.
[12.3.13] In TAV v TAW, 25 the court noted in the wife’s application to commit the husband for failing to comply with his obligations to
return the child to Singapore despite two orders made by the Family Court and the High Court for him to do so within a specified time
frame, that the Austrian district court had declined to register the Singapore Family Court Order for the return of the child from Austria
to Singapore as it was not “in the child’s best interests”. 26 At the time of the hearing of the wife’s committal application, the husband had
also filed further applications in Austria seeking sole custody of the son whom he had wrongfully removed from Singapore
notwithstanding an existing interim custody order that had been upheld on appeal and the fact that the husband had initiated divorce
proceedings against the wife in Singapore. 27
1. Direct judicial communications as a tool

[12.3.14] It is against this potential quagmire of cross-jurisdictional issues faced where a child has been wrongfully removed to a foreign
jurisdiction which may not give due recognition to Singapore court orders, that it is envisaged that direct judicial communications
between sitting judges of different jurisdictions when there are concurrent related proceedings involving the same parties would serve
to ameliorate many of the issues faced in international family proceedings. As set out in the explanatory note at paragraph 7 of the
Family Justice Courts Practice Directions 2015 which provides guidance on the initiation and process of direct judicial communications
in international family proceedings affecting the children, direct judicial communications should be regarded as key mechanisms to
assist judges and practitioners in resolving cases with an international element in the best interests of the children and of justice in
general.
[12.3.15] It is suggested that practitioners and judges should avail themselves of this key tool where there are ongoing proceedings
involving the children that have an international element in differing jurisdictions. The need for direct judicial communications is with
respect even more pressing when the proceedings involving the child are highly contentious, involve a removal of the child from his or
her place of habitual residence and/or there is a real risk of conflicting orders being made by the different jurisdictions. Matters which
may be the subject of direct judicial communications include as an example, ascertaining whether a mirror order may be issued in the
foreign court, confirming whether orders were made by the foreign court, scheduling the case in the foreign court to make interim
orders and ascertaining whether undertakings offered by parties in the initiating jurisdiction may be accepted and enforced by the
foreign court. 28
[12.3.16] Either party to ongoing proceedings in Singapore may raise with the judge the desirability and need for direct judicial
communications as part of the judge-led approach during any stage of the proceedings. While it is possible in rare circumstances to
request in an application that direct judicial communications be initiated by the sitting judge (an example would be where there are
already existing proceedings in a foreign jurisdiction and the applicant is seeking a mirror order in the Singapore court), it is not a
requirement that a formal application must be taken up by a party who requests that the judge initiates direct judicial communications.
The Family Justice Courts Practice Directions 2015 is unequivocal in that the sitting judge seised of the matter has the discretion on
whether he or she determines that it is desirable to initiate direct judicial communications. Before doing so, the judge is directed to
consider whether there is a question of foreign law or procedure to be clarified with the judge of the foreign jurisdiction and whether
that question may be answered by that foreign jurisdiction’s Central Authority or by any other judge in that foreign jurisdiction. 29
Where the judge deems it desirable for direct judicial communication with the foreign court, he or she is to initiate judicial
communication through the Liaison Judges. 30 The procedure and safeguards built in for any direct judicial communications are also set
out in paragraph 7 of the Family Justice Courts Practice Directions 2015.
[12.3.17] Direct judicial communications serve as a valuable tool in international family proceedings where there are multiple
proceedings in different jurisdictions. Judicious use of this tool would reduce much of the confusion surrounding the orders made in the
different jurisdictions and may facilitate the making of the necessary mirror orders in the foreign court if it is accepted that the court of
the country of the child’s habitual residence is best placed to decide on the substantive issues concerning the welfare of the child. The
overarching aim at the end of the day apart from saving considerable resources is to secure the best interests of the child.
C. Applications for Leave for the Child to be Relocated Permanently from the Jurisdiction
[12.3.18] As is the case for injunction orders restraining a party from removing the child from Singapore, the court’s power to grant
leave for a parent to relocate overseas with the children is set out in section 131 of the Charter. Where there are no existing custody
orders or agreement that a parent is to have care and control over the other, the court nevertheless retains the powers to grant a
parent’s application for leave to relocate overseas with the children pursuant to sections 5 and 11 of the GIA. 31
[12.3.19] An application to relocate overseas with the children is in essence an application for an order for leave for the children to be
permanently removed from the jurisdiction of the Singapore courts. It is commenced by way of a summons under the divorce suit or OS
if there have been pending proceedings or by way of an OS (along with the substantive custody orders) if no prior custody orders
subsists. Practitioners should note that pursuant to section 126 of the Charter which prohibits either party from removing the children
from Singapore unless with the written consent of both parents or with leave of the court, a parent who has sole custody of the children
must still apply for leave to relocate overseas with the children should the parent intends to do so. 32 A parent who intends to relocate
with the children must be advised to seek leave from the court to do so (in the absence of an agreement between the parties) before the
children are removed from the jurisdiction of the Singapore courts. Even if the children have been removed from Singapore before
leave was granted, the FJC retains jurisdiction over the children and can make substantive orders (including an order for the parent to
return the children to Singapore) if it determines that Singapore is the children’s habitual residence prior to their wrongful removal.
[12.3.20] While the paramount consideration has been (and should always be) the children’s best interests in all applications concerning
the children, the courts previously gave great weight to the care and control parent’s reason for wanting to relocate overseas with the
children as the main factor in its consideration on whether to grant the parent’s application for leave to relocate with the children.
Earlier decisions by the High Court and Family Court applied the English Court of Appeal case of Lonslow v Hennig, 33 for the proposition
that if the proposal of the custodial parent to relocate was reasonable, the court should only refuse leave if it is clearly shown (by the
parent opposing relocation) that it would be against the child’s interest and welfare. 34 In Re C(an infant), 35 the Court of Appeal endorsed
this approach and held that it is the reasonableness of the party having custody to want to take the child out of the jurisdiction which
would be determinative and always keeping in mind that the paramount consideration is the welfare of the child. 36
[12.3.21] While the Court of Appeal held that the paramount consideration is the welfare of the child, subsequent decisions by the lower
courts interpreted the apex court’s aforesaid ratio to mean that great, if not conclusive weight should be given to the reasonableness of
the care and control parent’s reasons for wanting to relocate with the children when considering a relocation application. 37 Once the
care and control parent’s request was found to be reasonable, there was a presumption that it would be in the children’s best interests to
relocate with the care and control parent and the burden of proof then shifted to the parent opposing the relocation to clearly show that
it would not be in the children’s interest and welfare. 38
[12.3.22] Since 2014, there was a noticeable shift away from placing an undue emphasis on the importance of the reasonableness of the
relocating parent’s application in determining whether relocation should be granted to focusing primarily on the welfare of the child as
the paramount and overriding consideration. In BNS v BNT, 39 Justice Judith Prakash allowed the father’s appeal against the lower
court’s decision granting the mother’s application to relocate with the children and held that the only applicable principle of law for
relocation cases is that the welfare of the child is the paramount and overriding consideration. The court noted that Re C (an infant)
should not be read out of context to mean the reasonable wishes of the relocating parent is the determinative factor in relocation cases.
While the court would be reluctant to refuse a reasonable application for relocation that does not affect the interests of the child
negatively as the child’s welfare was linked to the well-being of the primary caregiver, reluctance does not mean that the wishes of the
primary caregiver are always decisive. 40 Justice Prakash held that there is no legal presumption in favour of allowing relocation when
the primary caregiver’s desire to relocate is not unreasonable or founded in bad faith. The father in BNS v BNT had fully availed himself
of access and continued to participate meaningfully in the children’s life. The court found that the relationship between father and
children would suffer if the children were allowed to relocate and this would not be in their best interest.
[12.3.23] In TAA v TAB, 41 Debbie Ong JC upheld the lower court’s decision not to allow the father who had sole custody of the three
children from the marriage leave to relocate overseas. Noting that the previous case law showed that the courts seemed to focus more
on the custodial parent’s reasons for relocation and less on the loss of relationship with the non-custodial parent, the court endorsed BNS
v BNT for the principle that the children’s welfare is the paramount consideration and that a finding that the relocating parent’s wish to
relocate is not unreasonable should not give rise to a presumption in favour of relocation. While on the facts of the case, the father’s
wish to relocate was unreasonable, the court held that each case turned on its facts in determining what was in the child’s welfare.
Relocation was not in the children’s best interests as they would be uprooted from a stable living environment and would have lost the
healthy relationship they enjoyed with the mother.
[12.3.24] The legal position has now been conclusively settled in the recent Court of Appeal decision of BNS v BNT. 42 In upholding
Justice Prakash’s order below, the Court of Appeal held that the only fundamental legal principle in considering relocation applications is
that the welfare of the child is paramount and this principle overrides all other considerations. 43 It is clear beyond peradventure that
the primary factor that the court takes into consideration is simply the child’s welfare and that the primary caregiver’s reasonable wish
to relocate was no more than a factor which does not give rise to a presumption in favour of relocation. The word “determinative” in Re
C (an infant) should be read in context to mean that the primary caregiver’s reasonable wish was merely an important but not an
overriding factor. The court also clarified that the courts should consider the loss of relationship that the children would suffer with the
non-custodial parent if relocation was allowed for relocation applications. A distinction would also be drawn between severing a
blossoming relationship between the non-custodial parent and the children (which would be more agonising) as opposed to hampering
the development of a relationship. In the final analysis, the children’s welfare is the paramount consideration and on the facts of BNS
vBNT, the severance of the children’s close relationship with the father if relocation was allowed was a primary consideration leading to
the court’s finding that relocation would not be in the children’s best interests.
[12.3.25] It is submitted that the clarification of the applicable legal principles and the emphasis that the children’s welfare is the only
fundamental consideration for relocation applications are correct and this aligns the approach taken with all other applications
concerning the children. The erstwhile undue emphasis of the reasonable wishes of the relocating parent’s wish to relocate effectively
led to a presumption that where reasonableness is established it would follow that relocation would be in the children’s best interests
without reviewing the loss of relationship between the non-custodial parent and the children. As was noted by the Court of Appeal in
BNS vBNT, the English Court of Appeal case of Payne v Payne 44 often cited for the proposition that great weight would be placed on the
relocating parent’s reasonable wishes have since been interpreted by the English courts themselves in the proper light that the welfare
of the child was paramount while all other observations were useful only as guidance. 45
[12.3.26] Practitioners should advise clients who wish to initiate applications for leave to relocate with the children overseas to identify
not just how their request to relocate is reasonable but also show the care and living arrangements to be put in place for the country
which the parent intends to locate so as to assist the children to cope in the transition. The children’s views where they are of an age to
express an independent opinion as well as the children’s relationship with the non-custodial parent and the level of his or her
interaction with the children are other important factors which must be considered. From the recent authorities, it is clear that where a
blossoming, close relationship exists between the non-custodial parent and the children where the non-custodial parent fully avails him
or herself for access, the court will be more likely to find that relocation would affect that close parent-child bond and not be in the
children’s best interests. At the end of the day, each case turns on its specific facts and it is for the relocating parent to show how
considering the facts and circumstances of his or her case, relocation would be in the children’s best interests.
D. Application to Remove a Child Temporarily from the Jurisdiction

[12.3.27] Such requests are usually subsumed under applications for greater overseas access (usually of an interim nature) during the
children’s school holidays. Insofar as such applications are concerned, they are commenced in the usual manner by way of a summons
with supporting affidavit under the divorce suit or OS. The court approaches such applications for leave to bring the child overseas for
school holiday access as it would any access application. The considerations and process as set out in Chapter 11 (Practice and Procedure
in Relation to Children) apply with equal force to any application for leave to bring the children overseas during their school holidays. In
most cases and in the absence of any extenuating circumstances, the court would allow the applicant parent to bring the children
overseas for holiday as this would be deemed to be in the children’s best interest. The supporting affidavit for the summons application
should give the proposed itinerary and accommodation details for the intended overseas vacation, contact details wherein the children
or the non-custodial parent may be contacted in the event of an emergency and the custodial parent’s objections as perceived by the
applicant parent to the proposed overseas access.
[12.3.28] In certain cases, the application for leave to remove the children temporarily from the jurisdiction of the Singapore courts is
more long term and necessitated due to a child’s intention to continue his or her further education overseas. Such applications usually
entail a dispute between parents and/or the child over the destination of the child’s intended further education and would require the
court’s adjudication to make the necessary orders. In such applications, the applicant’s supporting affidavit for the summons application
should set out the circumstances for which the parent is of the view that it would be in the child’s best interests to further his or her
education overseas, whether the child has been offered a spot at the intended place of study and the other parent’s objections to the
child furthering his or her education at the intended institution. Where the child is mature enough to express his or her views rationally
(as would often be the case for such applications), the practitioner should advise the applicant parent on the utility of having the child
affirm an affidavit to express his or her views (subject to the considerations set out in Chapter 11 (Practice and Procedure in Relation to
Children) on evidence by the child) for such an application. The process, procedure and hearing of the applications are as set out in
Chapter 11 (Practice and Procedure in Relation to Children).
12.4 WARDSHIP IN SINGAPORE – JURISDICTION AND APPLICATIONS

[12.4.1] Unlike other common law jurisdictions like the UK and Hong Kong, there is little local jurisprudence on wardship applications
and even the existence of wardship jurisdiction in Singapore. It is suggested that the better approach is to accept that the Singapore
courts have the jurisdiction to hear wardship applications based on a purposive reading of the relevant statutes and subsidiary
legislation along with the court’s own observations on the issue of wardship jurisdiction in various cases.
[12.4.2] Local academic Professor Leong Wai Kum argues that the Family Court would exercise wardship jurisdiction through the joint
reading of the following. 46
1. Section 22 of the Family Justice Act 2014 (No 27 of 2014):

Original civil jurisdiction of High Court exercisable through Family Division
22. — (1) The part of the civil jurisdiction of the High Court which shall be exercised through the Family Division shall consist of
—
(a) the jurisdiction conferred on the High Court by sections 17(a), (d), (e) and (f) and 17A of the Supreme Court of Judicature
Act (Cap. 322);
...
2. Section 17(d) of the Supreme Court of Judicature Act (Cap 322):
Civil jurisdiction — specific
17. Without prejudice to the generality of section 16, the civil jurisdiction of the High Court shall include —
...
(d) jurisdiction to appoint and control guardians of infants and generally over the persons and property of infants;
[12.4.3] It is suggested this purposive reading of the different statutes clearly imply that the Family Division of the High Court in the FJC
has jurisdiction to hear any wardship application brought before it. Indeed a plain reading of rule 153(1)(a) of the Family Justice Rules
2014 with the GIA clearly envisages that the FJC has wardship jurisdiction for applications initiated under the GIA in the sense that there
are “other proceedings by reason of which the infant is a ward of Court”.
[12.4.4] The usefulness of wardship jurisdiction was endorsed albeit obiter dictum in Soon Peck Wah v Woon Che Chye where the Court
of Appeal observed that the effect of ordering a child to be a ward of court is that the court becomes vested with parental responsibility
of the child. 47 The Court of Appeal appeared to have implicitly acknowledged and accepted that the Singapore court exercises wardship
jurisdiction and spoke of wardship proceedings in England as if they would exactly be the same in Singapore. It has been argued that
wardship jurisdiction exists in the superior courts to enable the court to discharge its function as the final protector of every child within
its territory and that wardship jurisdiction is as broad as the particular circumstance demands. 48 It is suggested that such an approach
is preferable and is founded on the powers granted to the FJC based on a purposive reading of the primary and subsidiary legislation.
The wardship jurisdiction should be invoked by an interested party who is neither a parent nor a formally-appointed guardian and may
be regarded as an overarching power to make up for any lacuna in the law such that the court’s ability to protect the best interests of the
child is without limits.
A. Who may Apply to Make a Child a Ward of the Court

[12.4.5] It is submitted that the criteria of who can be made a ward of the court is clear and should be consistent with other applications
for children in that the court’s power to make custodial orders for the child is dependent on the child being under 21 years of age. 49 It
has also been suggested that any non-parent who is an interested party can invoke wardship jurisdiction and that this should be the
route by which a non-parent who is not a formally-appointed guardian may seek legal authority over a child. 50 There is much to
commend this view bearing in mind that the overarching aim is for the protection of the child.
[12.4.6] The courts have thus far appeared to adopt a very broad view of who would constitute a guardian within the meaning of
section 5 of the GIA and who would then be entitled to file an application for custody of the child under the GIA. In Lim Chin Huat
Francis, two couples wanted to adopt an infant and no parents were interested in the child’s guardianship. One couple filed an OS under
section 14 of the GIA which enabled an application when “an infant leaves or is removed from, the custody of his lawful guardian”. The
issue before the court was whether that couple had locus standi to bring about the application. The District Court held that the appellants
were neither the parents nor guardians appointed under the GIA as is commonly understood and thus had no locus standi to bring an
application under the GIA. On appeal, the High Court overturned the District Court’s decision and held that section 14 of the GIA also
enabled a person to seek the return of a child removed from the custody of his “lawful guardian”, which was defined to be any person
who has the charge of or control over the child. The High Court’s decision was upheld by the Court of Appeal which defined that the
“lawful guardian” must be a person who has charge of or control over a child at the material time. 51
[12.4.7] It is respectfully suggested that the definition of guardianship should not be defined so broadly as to include interested parties
with whom the child happened to be under the control of at the material time. A guardian within sections 5 or 14 of the GIA should be
restricted to an officially-appointed guardian either by virtue of section 7 or an appointment under sections 5 or 10 of the GIA. Interested
individuals who are neither a parent nor a guardian as appointed through the said sections would still have access to the court by
invoking its wardship jurisdiction. The accepted academic view is that such a dichotomy between wardship jurisdiction and
guardianship jurisdiction would allow interested parties other than parents and guardians appointed under the GIA to invoke its
provisions to ensure the protection of a child’s interests. 52 The acceptance and endorsement of wardship jurisdiction and the ability of
interested parties to invoke the same would ensure that the children’s interests always remain protected while providing a clear
demarcation between the authority of parents (and guardians appointed under the GIA) and the authority of non-parents. Professor
Debbie Ong’s astute observation that parents must be accorded freedom from intrusion (from third parties) and be given the privacy
conducive to bringing up the children in the way they consider best underscores the superior custodial rights that parents (or appointed
guardians under the GIA) have over an interested party. It should only be where the child’s parents are no longer interested in obtaining
custody or guardianship over the child that the court should exercise its wardship jurisdiction and make orders in favour of non-parents
where it is in the child’s best interests. 53
B. Process and Procedure

[12.4.8] There are no reported cases in which the courts made an express finding on wardship jurisdiction in Singapore that it is
submitted the courts possess. In ATC v ATD, 54 the father filed an OS application seeking, inter alia, an order that the children be made
wards of the Singapore court. While the hearing of the applications before the Family Court subsequently turned on the issue of the
mother’s cross-application for leave to relocate with the children overseas, the Family Court ultimately made no orders on the father’s
request that the children be made wards of the Singapore court. 55
[12.4.9] It is suggested that if a substantive application is made for the court to exercise its wardship jurisdiction by an interested party,
this should be commenced by way of an OS application based on a purposive reading of the aforesaid statutory provisions. The
procedure should then follow as per the usual OS applications commenced under the GIA.
12.5 CONCLUSION
[12.5.1] In summary, it may seen that the court has wide ranging powers at its disposal to grant various reliefs in relation to the
children. The golden thread running through all applications must first and foremost be the principle that the welfare of the children is
of paramount importance and this should trump all other considerations. Practitioners should advise their clients that the needs and
wants of parents are secondary to that of the children. Given that the overarching objective is to protect the interests of the children and
welfare, it is suggested that the court should not be slow to infer that it has wardship jurisdiction to hear valid applications from
interested parties where it is clear that the orders sought would be necessary to protect the child’s welfare.
FOOTNOTES
1 An observation on the prevalence of cross-border disputes due to the ease of cross-border movement of people and the implications arising where a marriage
breaks down and there are children of the marriage was noted by the Court of Appeal in BNS v BNT [2015] SGCA 23 at [1].
2 Article 1 of the Hague Convention.
3 Council of European Union’s (ECJ) decision dated June 15, 2015 authorising all member states to accept in the interest of the EU, the accession of Singapore to
the Hague Convention. See
<http://conflictoflaws.net/2015/all-member-states-of-the-european-union-to-accept-the-accession-of-singapore-and-andorra-to-the-hague-child-abduction-conven
tion/>.
4 Article 8 of the Hague Convention as set out in the Schedule to the ICAA.
7 The format of the OS and supporting affidavit as well as the requirement for personal service on the named defendants in the application is set out at section
44 of the Family Justice Court Practice Directions 2015.
8 Section 13 of the ICAA.
9 BDU v BDT [2014] SGCA 12 at [38].
10 Ibid at [26].
11 Ibid.
12 [2015] SGFC 12.
13
Re P J (children) (Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588.
14 BDU v BDT [2014] SGCA 12 at [47], [68] and [92].

15 BDU v BDT [2012] SGDC 363 at [53], upheld on appeal by the High Court in [2013] SGHC 106, which was upheld by the Court of Appeal.
16 BDU v BDT [2012] SGDC 363 at [54] and [57]–[58].
17 [2015] SGHCF 4.
18 Ibid at [43].
19 BDU v BDT [2012] SGDC 363 at [34].
20 Section 8(3) of the ICAA; and article 12 of the Hague Convention.
21 BDU v BDT [2013] SGHC 106 at [35].
22 BDU v BDT [2014] SGCA 12 at [49].
23 In Re D [2007] 1 AC 619 at [51].
24 BDU v BDT [2013] SGHC 106 at [55]–[57] and [82].
25 [2015] SGFC 13.
26 Ibid at [9].
27 With the imminent enactment of the Administration of Justice (Protection) Bill (Bill No 23 of 2016), the express penalties that a party who fails to comply with
a court order faces may serve as an added deterrence factor. The contempt proceedings still must be exercised in accordance with the procedure set out in the
Family Justice Rules 2014.
30 Currently the Honourable Valerie Thean JC, Presiding Judge of the FJC and the Honourable Foo Tuat Yien JC.
31 In ATC v ATD [2011] SGDC 254, the Family Court heard the mother’s summons for leave to relocate to the USA with the children which was filed under the
father’s OS for orders, inter alia, that the children be made wards of the Singapore court and that the mother be ordered not to remove the children from the
jurisdiction of the Singapore court. The Family Court proceeded to hear the mother’s application under sections 5 and 11 of the GIA.
32 In TAA v TAB [2015] SGHCF 1, the father who had sole custody, care and control of the three children of the marriage appealed against the dismissal of his
application for him to relocate to the USA with the children. The father’s appeal was dismissed as the High Court agreed amongst other matters that the
father’s reasons for wanting to relocate to the USA were unreasonable and not in the children’s best interests.
33
[1986] 2 FLR 378.
34 In Tan Kah Imm v D’Aranjo Joanne Abigail [1998] SGHC 247 and Tran Jeannie v Chioy Kok Leong [2002] SGDC 22, the High Court and Family Court respectively
allowed the applicant mothers’ applications to relocate with the children overseas as they found that the mothers’ reasons for doing so were not unreasonable
and it would be in the children’s best interest to relocate with their mother.
35 [2002] SGCA 50.
36 Ibid at 22.
37 See AYD v AYE [2012] SGHC 42 where the High Court found at [22] that the mother had a good reason for wanting to relocate to the USA with the children and
that any potential loss of access the father had to the children would weigh less than the children’s interest in being with their mother. The mother’s
application to relocate was allowed. See also ATC v ATD [2011] SGDC 254 where the Family Court allowed the mother’s application to relocate and held at [60]
and [61] that the custodial parent would normally be allowed to relocate if the parent’s reasons for doing so were reasonable and in good faith.
38 Tran Jeannie v Chioy Kok Leong [2002] SGDC 22 at [3].
39 [2014] SGHC 187.
40 Ibid at [17].
41 [2015] SGHCF 1.
42 [2015] SGCA 23.
43 Ibid at [19].
44
[2001] Fam 473.
45 [2015] SGCA 23 at [24].
46 Professor Leong Wai Kum, Elements of Family Law in Singapore, 2nd edn (2012).
47 [1997] 3 SLR(R) 430 at [32].
48 Halsbury’s Laws of Singapore – Family Law, Vol 7 (2012), [130.401] and [130.495].
50 Halsbury’s Laws of Singapore – Family Law, Vol 7 (2012), [130.496].
51 [1996] 3 SLR(R) 83 (High Court); and [1999] 2 SLR(R) 392 (Court of Appeal).
52 Professor Leong Wai Kum, Elements of Family Law in Singapore, 2nd edn (2012), p 322. See also Associate Professor Debbie Ong (as she then was), A
Grandparent’s Right to Guardianship, Custody and Access [2005] (June) Singapore Law Gazette, who opined that wardship jurisdiction would be a neater basis
in justifying the Court of Appeal decision in Lim Chin Huat Francis.
53 Associate Professor Debbie Ong (as she then was), ibid.
54 [2011] SGDC 254 at [6].
55 Ibid at [67]. No reasons were given for the court’s decision not to make any order although it may be inferred that in allowing the wife leave to relocate with
the children, it follows that it was not necessary for the children to be made wards of the court. In any event no arguments appeared to have been raised
before the court on the issue of the court’s wardship jurisdiction.

2016 - 10 - 17 PAGE 376

Chapter 13: Domestic Violence
Chapter 13
Domestic Violence
Goh Zhuo Neng *

13.2 Parties 379
A. Who May Be a Complainant? 379
B. Who May Be a Respondent? 380
13.3 Relief that the Court can Grant 381
A. Protection Order 381
B. Expedited Order 381
C. Domestic Exclusion Order 382
D. Counselling Order 382
13.4 What are the Consequences of Breach? 383
13.5. When does the Court Grant Relief from Family Violence? 384
A. Two-Stage Test 384
B. Stage 1 – What is Family Violence? 385
1. Physical violence, restraint or threats 386
2. Continual harassment 387
C. Stage 2 – When is it Necessary? 389
1. Did the complainant continue to live with the respondent after the act of violence? 389
2. Are the parties still living together or likely to remain in contact? 390
3. What is the original cause of the conflict and has it been resolved? 390
4. The severity of the incident of family violence 391
13.6 Rescission, Variation, Suspension and Revocation of Orders 391
A. Change of Circumstances 391
B. Necessity 392
13.7 Practical Matters 393
A. Preparing the Application 394
1. Where to apply 394
2. Application form: particulars of parties 394
3. Application form: particulars of family violence 394
4. Application form: authorisation for medical examination form 395
5. Meeting with the counsellor 395
B. Appearing Before the Duty Judge/Judicial Officer (“DJO”) 395
C. Issuing the Summons to the Respondent 396
D. Requirements for Service 396
E. Mentions Stage 397
1. First Mention 398
2. Counselling 398
3. After counselling 398

4. Pre-Trial Directions 399
5. Trial dates 399
F. At Trial 399
1. Sequence of witnesses 399
2. Disputed incidents that took place after the application was filed 400
3. Evidence of children 400
4. Absence of respondent 401
13.D.1 Expedited order 402
13.D.2 Personal protection order with counselling order 403
13.D.3 Personal protection order application form 405
13.D.4 Summons to a respondent 413
13.1 INTRODUCTION
[13.1.1] Remedies for family violence in Singapore are addressed by the provisions of Part VII of the Women’s Charter (Cap 353) (the
“Charter”). Unlike some of the other provisions of the Charter, these provisions apply to all persons in Singapore, regardless of whether
their family began from a Muslim or non-Muslim marriage. 1
[13.1.2] As highlighted by Professor Leong Wai Kum, 2 remedies for family violence under the Charter form part of the wider spectrum
of remedies for protection from violence which include other statutory remedies and the law of torts. These protective remedies help to
complement the punitive and deterrent remedies of imprisonment and fines under other statutes, 3 and the financial compensation and
damages offered under the common law of torts. 4
[13.1.3] When viewed in the above context, the remedies offered under the Charter to victims of family violence aim to strike a fine
balance so as to maintain the harmony of the family unit. At the end of the day, the victim might simply want protection, without the
consequences of imprisonment or financial damages that could potentially widen the rift within the family unit.
[13.1.4] In this regard, the combination of restraint and counselling options offered under the Charter (backed up with sanctions for
breach) would also help to provide such protection and guidance, so as to help parties to address the underlying tension that may have
given rise to the acts of family violence.
13.2 PARTIES
A. Who May Be a Complainant?

[13.2.1] Anyone may be a complainant in an application for protection from family violence, save where the person is a child under 21
years of age or an incapacitated person. 5 In such a scenario, the application will be made by the child or incapacitated person’s
guardian, relative or person responsible for his or her care, or by any person appointed by the Minister. 6
[13.2.2] However, if an individual below 21 years is married or has been previously married, he or she may apply on his or her own
behalf, on his or her child’s (whether adopted or step-child) behalf, or on behalf of a relative below the age of 21 that he or she is
responsible for the care of. 7
B. Who May Be a Respondent?

[13.2.3] The respondent must be a family member of the complainant. Section 64 of the Charter contains specific examples of what
constitutes a “family member”, being:
1. A spouse or former spouse of the person;

2. A child of the person, including an adopted child and a step-child;
3. A father or mother of the person;
4. A father-in-law or mother-in-law of the person; and
5. A brother or sister of the person.
[13.2.4] The definition of “family member” also extends to cover any other relative 8 of the complainant or an incapacitated person who
in the opinion of the court should, in the circumstances, in either case be regarded as a family member of the person. This would
arguably be broad enough to include the complainant’s cousins, nephews, nieces, uncles, aunties, brother or sister in-laws.
13.3 RELIEF THAT THE COURT CAN GRANT
A. Protection Order
[13.3.1] The primary remedy available to the courts is a protection order to restrain the respondent (“restrained person”) from
committing family violence against a family member (“protected person”). 9 The protection order can be made subject to specified
exceptions or conditions and for a specified term. 10
[13.3.2] To address the possibility that the restrained person may enlist non-family members to inflict family violence on the protected
person, the court may also prohibit the restrained person from inciting or assisting any person from committing family violence against
the protected person. 11
[13.3.3] When granting the protection order, the court may give any such direction as is necessary for and incident to the proper
carrying into effect of the protection order, 12 including the making of a Domestic Exclusion Order 13 or, a Counselling Order 14 or both.
An expedited order may also be granted at the time when the application for the protection order 15 is made. The nature of these orders
are addressed below.
B. Expedited Order
[13.3.4] To protect the complainant pending the hearing of the application for the protection order, the court may issue an expedited
order restraining the respondent from committing family violence against the complainant. 16 An expedited order is made where the
court is satisfied that there is imminent danger of family violence being committed.
[13.3.5] The expedited order is made at the same time when the summons to the respondent is issued. It will take effect upon the later
of the following dates: (a) the date on which notice of the making of the expedited order is served on the respondent; 17 or (b) such later
date that the court specifies. 18 An expedited order cannot be made on its own, without an application for a personal protection order
being made in the same application. 19
[13.3.6] The expedited order will cease to have effect within the earlier of the following dates: (a) the expiry of 28 days after the order is
made, 20 or (b) the date of commencement of the hearing of the application. 21 The court may also extend the duration of the order, 22
for example, from one mention date to the next or from the first date of hearing to the next hearing date where the case is part-heard.
C. Domestic Exclusion Order

[13.3.7] A domestic exclusion order will exclude the restrained person from the shared residence where the parties are or have been
living together as members of the same household. 23
[13.3.8] An application for a domestic exclusion order is normally made concurrently with an application for a protection order.
However, the application can also be made on its own, if a protection order has already been made.
[13.3.9] The scope of the exclusion can extend to a specified part of, or all of the shared residence. This is regardless of whether the
shared residence is solely owned or leased by the person against whom the order is made or jointly owned or leased by the parties. 24
However, this will not affect the title or interest that the restrained person has in the shared residence. 25
D. Counselling Order
[13.3.10] Counselling orders can be ordered at the same time a protection order is made. 26
[13.3.11] Under a counselling order, the court will usually refer the restrained or protected person or both or their children to attend
counselling provided by an agency that the Minister for Social and Family Development or the court may direct. The parties would then
be contacted by the agency that would make arrangements for the counselling to take place.
[13.3.12] When making the counselling order, the court would specify a review date for parties to attend court. 27 This review is usually
set several months later, so that parties can attend counselling, and for the counsellor to provide the court with a confidential
assessment of the counselling.
[13.3.13] At the review, the court will determine if the party or parties concerned should continue to attend counselling (with or
without a subsequent court review), or if counselling should cease.
[13.3.14] See section 13.D.1 below for a sample of an expedited order, and section 13.D.2 below for a sample of a personal protection
order containing a counselling order.
13.4 WHAT ARE THE CONSEQUENCES OF BREACH?
[13.4.1] In the event that there is wilful breach of a protection order, domestic exclusion order or expedited order (other than a breach
of the counselling order), the person contravening the order shall be guilty of an offence. 28 The breach is deemed a seizable offence
under the Criminal Procedure Code (Cap 68) (“CPC”). 29
[13.4.2] Some examples of breaches include the following:
1. Breach of protection order – Accused threatened the complainant with the words “I am going to break your face”. 30
2. Breach of expedited order – Accused sent voice messages to the complainant saying “I will do something to you if you don’t
come back home”. 31
[13.4.3] On conviction, the person will be liable to a fine not exceeding S$2,000 or to imprisonment for a term not exceeding six months
or to both and in the case of a second or subsequent conviction, to a fine not exceeding S$5,000 or to imprisonment for a term not
exceeding 12 months or to both. 32
[13.4.4] Punishment for breaches of the above orders must be pursued by way of criminal prosecution which is to be undertaken by
the relevant enforcement agency. Accordingly, the standard of proof that the courts will require to establish the breach is one of beyond
a reasonable doubt. Incidentally, if the acts amounting to a breach of the order amount to an offence under the Penal Code (Cap 224),
for example, voluntarily causing grievous hurt, the person contravening the breach may also be prosecuted for that offence. 33
[13.4.5] In the event that there is a failure to comply with a counselling order, the specific penalties that apply to the wilful
contravention of a protection order or domestic exclusion order do not apply. Instead, the failure to comply is punishable as a contempt
of court.
13.5. WHEN DOES THE COURT GRANT RELIEF FROM FAMILY VIOLENCE?
A. Two-Stage Test
[13.5.1] The court will grant a protection order to restrain a family member from committing family violence where it is satisfied on a
balance of probabilities that: 34
1. Family violence has been committed or is likely to be committed against the family member; and
2. That it is necessary for the protection of the family member for the protection order to be made.
[13.5.2] Case law has established that this is a two-stage test. So even when family violence or the likelihood of family violence has been
established, the complainant must still prove that it is necessary for the protection of the family member in order for the protection
order to be made. 35
[13.5.3] As mentioned earlier, in the case of an expedited order, the court must be satisfied that there is an imminent danger of family
violence being committed against the complainant. 36
[13.5.4] As for the domestic exclusion order and the counselling order, the court may grant them when the court is satisfied on a
balance of probabilities that it is necessary for the protection or personal safety of the complainant to make such orders. 37
B. Stage 1 – What is Family Violence?
[13.5.5] The Charter defines “family violence” as the commission of any of the following acts: 38
1. Wilfully or knowingly placing, or attempting to place, a family member in fear of hurt;

2. Causing hurt to a family member by such act which is known or ought to have been known would result in hurt;
3. Wrongfully confining or restraining a family member against his or her will; or
4. Causing continual harassment with intent to cause or knowing that it is likely to cause anguish to a family member.
[13.5.6] “Hurt” as referred to in (1) and (2) above means “bodily pain, disease or infirmity”. 39 The Charter also clarifies that “family
violence” does not include any force lawfully used in self-defence, or by way of correction towards a child below 21 years of age. 40
[13.5.7] The above definitions of family violence can be characterised broadly into two types of violence – physical violence, restraint
or threats as set out under (1) to (3) above, and continual harassment as set out under (4). Acts of family violence may also include acts
that had occurred outside of Singapore. 41
1. Physical violence, restraint or threats

[13.5.8] The spectrum of physical violence, restraint or threats that can amount to family violence is quite broad. Findings of family
violence have been made in the following cases involving a single act or repeated acts of physical violence, restraint or threats:
1. A husband prevented his wife from leaving the home by pushing her and holding on to the gate so that she could not open it. 42
2. A daughter-in-law verbally abused her elderly mother-in-law, and shook her after grabbing her by the shoulders. 43
3. A single incident where a wife repeatedly threatened to kill her husband. 44
4. Repeated physical assaults by the husband over a four-year period prior to the filing of the application. 45
5. Husband forcibly held his wife down by pushing down on her upper body (including her chest) while he grabbed her hand
phone from her. 46
6. A man had on a single occasion, slapped his sister-in-law in the face, pulled her hair, grabbed her arm and right shoulder,
stepped on her foot and threatened her to “watch out”. 47
7. A single incident where the wife hit the husband repeatedly even though he was recording a video of the assault and asking her
to stop. 48
8. Brother had slammed sister against a wall when she grabbed him in order to restrain him from attacking her friend. 49
9. Father-in-law restrained his daughter-in-law by pushing her down onto a toilet bowl. 50
2. Continual harassment
[13.5.9] Continual harassment was helpfully defined in the case of Yue Tock Him @ Yee Chok Him v Yee Ee Lim 51 as:
a course of conduct by a person, whether by words or action, directly or through third parties, sufficiently repetitive in nature as
would cause and which he ought reasonably to know would cause worry, emotional distress of annoyance to another person ...
[13.5.10] However, given the infinite ways in which people are capable of causing distress or annoyance to each other, this should not
be regarded as an exhaustive definition. That was also the view of the court in Yue Tock Him, which noted that the above definition was
“not intended to be an exhaustive definition of the term but rather one that sufficiently encompasses the facts of the present case in
order to proceed with a consideration of the law.”
[13.5.11] The acts of “continual harassment” must also be of a sufficiently serious magnitude in order to be regarded as “family
violence”. 52
[13.5.12] Consequently, the Singapore courts have taken a more cautious approach, holding that the following acts will not amount to
“continual harassment”:
1. Where the child’s parents badmouthed each other when they were talking to the child. This was in the context of an application
for a protection order for a child. 53
2. Taking out an application for a protection order. Court applications do not amount to harassment and if they are frivolous in
nature, there are adequate remedies in law, and not through the granting of a protection order. 54
3. Making a police report. In this case, the husband had made the police report after the wife had locked him out of the marital
home and told him that she would only let him in if he called the police. 55
4. The continued storage of saleable goods by the husband in the marital home, which was done for a business purpose and
without an ulterior motive. 56
5. Using more than the “minimum” amount of toilet paper in the family home. 57
6. Taking sides with the complainant’s brother and mother in their court actions against the complainant. 58
[13.5.13] In fact, when one looks at the cases where the courts have made a finding of continual harassment, these are clear cut cases
where there has been a very persistent and oppressive agenda to cause anguish to the complainant.
1. Husband repeatedly called the wife a prostitute and a woman of easy virtue, and used demeaning vulgarities on her. He also
cursed her with death. 59
2. Former husband repeatedly sent text messages to former wife, calling her a poor mother and wife and insulting her new
husband. 60
3. Wife switched off the lights and turned up the volume on television when husband was attending to business calls. She also
threw his clothes and shoes to make a mess and poured water onto his mattress. 61
4. Husband had on two separate occasions (within an 11-day period) shouted angrily at the wife, pointed his fingers at her and
banged things about. On one occasion he even broke the lid off a plastic box. 62
5. Father had lived separately from wife for four years. One day he entered the house with the assistance of one of the tenants.
After he was told to leave, he returned a few days later with the help of a locksmith who cut the lock to the house. 63
[13.5.14] At the end of the day, and given the extremely wide scope of acts that may be raised as allegations of continual harassment, a
sensible and balanced approach must be taken. After all, protection orders are meant to protect people from harmful acts, and if the
threshold is lowered to include acts that are merely unpleasant and without sufficient gravity, this may result in individuals abusing
the court process to settle their own petty personal disputes or vendettas.
C. Stage 2 – When is it Necessary?

[13.5.15] Even after a finding of family violence is made on the facts, the court still has to make its assessment of whether it is
necessary to grant a protection order.
[13.5.16] Necessity is determined by whether there are likely to be further acts of family violence committed against the particular
family member, in the event that a protection order is not granted.
[13.5.17] This is because a personal protection order is not a punitive measure to punish a person for past violence but is instead a
preventive order that serves to restrain the person concerned from committing family violence in future. Therefore, if there will be no
family violence in future, it serves no purpose to restrain the party concerned, and it must follow that a personal protection order
would not be necessary. 64
[13.5.18] In determining the likelihood of further acts of family violence, the court may take into account the following non-exhaustive
factors.
1. Did the complainant continue to live with the respondent after the act of violence?
[13.5.19] In the following cases, the courts have taken the view that a protection order was not necessary as the complainant had
continued to live with the respondent after the last act of family violence:
1. Where the complainant continued to share a bed and live with the respondent some eight months after the last act of physical
violence and appeared to only have filed the application as a response to the respondent’s verbal abuse of her parents. 65
2. Where the complainant continued to share the same bed as the respondent nearly two years after the alleged incident of
violence, and filed the application nearly four years later. 66
[13.5.20] This is a factor that has to be weighed carefully. It also involves an evaluation of the severity of the acts of violence as well as
the length of the cohabitation and its cause. Thus, it may be argued that a court should not refuse to grant a protection order simply
because there was continued cohabitation on the part of the complainant. An abused complainant may stay on and even share a bed
with the abusive respondent for a variety of reasons – to keep a family together, or purely out of fear.
2. Are the parties still living together or likely to remain in contact?

[13.5.21] If it is clear that the parties are unlikely to remain in contact, then it may not be necessary to grant a protection order.
[13.5.22] This may be the case for instance, where there is an ongoing divorce proceeding and parties are no longer living together. 67
This is especially the case where the parties do not have children. 68
[13.5.23] However, if the parties have children and are likely to interact with each other as a result of access arrangements following
the divorce, the court has to consider whether these interactions will provoke more resentment and ill will in the future and trigger acts
of family violence.
[13.5.24] As in most things, all circumstances must be considered. In cases where parties do not even have contact during their access
to the children, it would not be necessary to grant a protection order. 69 However, if the respondent still nurses a deep resentment
towards the complainant and this continues to affect the steps taken with regards the access to their children, then it would be
necessary to grant a protection order. 70
3. What is the original cause of the conflict and has it been resolved?
[13.5.25] Family violence usually arises from an underlying dispute between the parties. If it is clear that the dispute remains
unresolved and continues to be the source of frustration and resentment between the parties, there is a greater likelihood that family
violence will recur and a protection order should be granted. 71
[13.5.26] However, in cases where the dispute arises in a very specific circumstance, it might not be necessary to grant a protection
order. In the case of TED v TEE, 72 the husband had committed family violence on the wife after they had a monetary dispute in relation
to a fishing trip. There were also no previous incidents of family violence. In holding that it was not necessary to grant a protection
order, the court noted the specific nature of the dispute, and that both parties were living separately by the time of the hearing.
4. The severity of the incident of family violence

[13.5.27] If the family violence is severe in nature, then the court may grant a protection order even if there was only a single isolated
incident. In TEK v TEJ, 73 the court found it necessary to grant a protection order as the single incident of family violence involved the
respondent attacking the complainant and multiple parties (her parents and child). The police were involved and parties had to be
taken to the hospital.
13.6 RESCISSION, VARIATION, SUSPENSION AND REVOCATION OF ORDERS
[13.6.1] Under section 67(1) of the Charter, the court has the power to rescind, vary, suspend or revoke a protection order or an
expedited order. This would also include counselling and domestic exclusion orders that form part of the terms of a protection order.
[13.6.2] Here, the onus is on the applicant to prove that the circumstances have changed and there is now no longer any necessity for
the order to continue. 74
A. Change of Circumstances
[13.6.3] If there have been no changes in the circumstances or the factual situation that existed between the time that the order was
made and the time that the application was made, then the application should be dismissed. 75 However, even if circumstances have
changed, the court must still be satisfied that it is no longer necessary for the order to continue.
B. Necessity
[13.6.4] In considering whether there is a necessity for the original order to continue, the factors that the court should also take into
account are also similar to the factors that are considered in determining whether it is necessary to grant a protection order:
1. The degree of contact between the parties. If the parties are still in contact or living together, then there is a lower risk that new
incidents of family violence would occur. However if parties are no longer living together, no longer in contact and have no
reason to visit each other at all, there is probably no reason for the protection order to continue. The mere fact that the holder
of the protection order remains in fear is not a good reason to keep the protection order in force. 76
2. The amount of time that has passed since the last incident of family violence. It appears that the more time that has passed
since the last incident, the more sympathetic the court would be to an application to rescind. However, the mere passage of
time is not enough. All relevant circumstances should be taken into account, including the reason why no incidents had
occurred – the question to ask is whether it is due to the aggressor’s fear of the protection order (order still necessary), or
because the parties are no longer in contact (order not necessary). 77
3. Nature of the family violence that led to the grant of the protection order. The nature of the original family violence may
provide an insight into whether family violence may occur between the parties in the future. If the contact between the parties
is now limited to public places, and the family violence had only taken place behind closed doors, there might be some basis to
rescind the protection order. However, if the family violence had taken place in public, then it might be more difficult to
persuade the court that the protection order should be rescinded unless there is no contact between the parties. 78
4. Incidents of family violence after the protection order had been granted. If the aggressor is willing to commit further acts of
family violence against the holder of the protection order, then the court would be slow to rescind the protection order. 79
[13.6.5] However, the following allegations would not be sufficient to justify a rescission of the protection order:
1. Allegations that the earlier protection order had been wrongly granted. 80 The application to rescind is not a rehearing of the
protection order, so the court would accept the findings of fact of the court that had granted the protection order and not allow
them to be challenged. 81
2. Allegations that the protection order has been “abused” or “misused”. If the holder of the protection order becomes the
aggressor, the aggrieved party can seek police assistance or apply for a protection order. In any event, the decision to rescind a
protection order is not to punish the holder of the protection order, but to determine if the protection order is still necessary for
his or her protection. 82
13.7 PRACTICAL MATTERS
[13.7.1] The procedure for the making of an application under Part VII of the Charter for relief against family violence is of a quasi-
criminal nature. It will follow the same procedure for the making of applications for summonses heard by a District Court or
Magistrate’s Court under the provisions of the CPC, save as otherwise provided for under the Family Justice Rules 2014. 83 However, this
does not mean that applications under Part VII should be treated as criminal proceedings that are subject to criminal revision. 84
[13.7.2] In this regard, parties should familiarise themselves with the procedure under the CPC, the Family Justice Rules 2014 relating
to the trial (rules 100 and 101) in particular, as well as the Family Justice Courts Practice Directions 2015 which address pre-hearing
matters (paragraph 24(1) and (4)) and the filing and exchange of affidavits and statements (paragraph 25(2) and (3)).
A. Preparing the Application

[13.7.3] Applications under Part VII of the Charter are commenced by the same originating process as criminal complaints are under
the CPC 85 – by filing a complaint before a duty judge of the Family Court.
1. Where to apply
[13.7.4] The application would normally be made at the Protection Order Services at level one of the Family Justice Courts (“FJC”). 86
[13.7.5] If the complainant is unable to come personally to the FJC to make the application, the application can currently be made by
video link at any of the following venues:
1. Centre for Promoting Alternatives to Violence (PAVe) – Blk 211 Ang Mo Kio Avenue 3, #01-1446, Singapore 560211.
2. TRANS SAFE Centre – Blk 410 Bedok North Avenue 2, #01-58, Singapore 460410.
3. Care Corner Project StART – Blk 7A Commonwealth Avenue, #01-672, Singapore 141007.
2. Application form: particulars of parties

[13.7.6] The first step in this process requires the complainant to complete the application form, which also requires the complainant to
set out the relationship between the complainant and the respondent and particulars of both parties. If the complainant is making the
application on behalf of another person, e.g. a child, this will also be set out in the form. Copies of this form will be provided at level one
of the Registry of the FJC, and a sample of the form is set out at Document 13.D.3 below.
3. Application form: particulars of family violence

[13.7.7] Once the application form is filled out, the complainant will appear before an officer in the Protection Order Services
department of the FJC. They will then fill in a further form setting out the particulars of his or her complaint of family violence – both
the latest incident and past incidents of family violence. See Document 13.D.3 at pp 409-410.
[13.7.8] The form also requires the complainant to indicate if a police report has been lodged, or if medical attention has been sought.
4. Application form: authorisation for medical examination form

[13.7.9] If the complainant has sought medical attention in relation to the incident of family violence, they will be required to sign a
form authorising the FJC to apply for a copy of the medical examination form from the respective hospital. A sample of the
authorisation form is set out at section 13.D.3 below at page 35. This medical examination form will then be forwarded to the FJC for the
court’s reference. The complainant will have to apply for a copy of the medical report from the hospital if the complainant requires this
evidence to be presented at the hearing if the application is contested.
5. Meeting with the counsellor

[13.7.10] After the particulars of family violence have been provided, a counsellor from the Counselling and Protection Services
department of the FJC will attend to the complainant to counsel him or her on safety issues.
[13.7.11] Through this session, the counsellor will also be able to make referrals to relevant agencies. For example, if the complainant is
in need of immediate shelter, assistance will be provided to facilitate the arrangement required.
B. Appearing Before the Duty Judge/Judicial Officer (“DJO”)

[13.7.12] Once the application forms have been filled out and the session with the counsellor is completed, the complainant will appear
before the DJO to affirm or swear the complaint (as the case may be) and may be examined by the DJO on the complaint, if need be. If
the complainant is making the application from the venues referred to above, he or she will make his or her appearance by way of
video link facility.
[13.7.13] During this appearance, the DJO will consider the facts on the face of the complaint and may question the complainant on the
complaint made. The DJO will then consider whether to dismiss the application or to issue the summons to compel the attendance of the
respondent in court.
[13.7.14] If the DJO is of the view that there is an imminent danger of family violence being committed against the complainant, the
DJO will issue an expedited order.
[13.7.15] The DJO will inform the complainant verbally the order or orders he or she is making immediately after the examination or
seek further clarification or documentation from the complainant and defer his or her decision until such clarification or
documentation has been provided.
C. Issuing the Summons to the Respondent

[13.7.16] When issued, the summons will notify the respondent that an allegation of family violence has been made by the complainant
against the respondent. The summons will also contain the following information:
1. The nature of the order applied for under section 65 of the Charter, e.g. a protection order or a protection order with a domestic
exclusion order.
2. The name of the complainant and the date and location on which the latest incident of family violence was allegedly
committed.
3. A requirement that the respondent appear at Family Court 1 in the FJC to show cause as to why an order under section 65
should not be made.
4. The date and timing of the court appearance mentioned above in (3).
[13.7.17] A sample of a summons is set out at section 13.D.4 below.
D. Requirements for Service

[13.7.18] Service of the summons must as far as is reasonably practicable, be served in accordance with the mode of service referred to
in section 3(1)(a) of the CPC, 87 i.e. delivering it personally to the respondent. The respondent must, if so required by the serving officer,
acknowledge its receipt by signing on an acknowledgment slip. 88
[13.7.19] However, if personal service cannot be effected on the respondent who cannot, by the exercise of due diligence, be found, the
summons may be duly served by:
1. Leaving a copy thereof for him or her with some adult member of the respondent’s family or with the respondent’s employee
residing with him or her, 89 failing which; 90
2. The serving officer shall affix a copy of the summons to some conspicuous part of the place in which the respondent ordinarily
resides if so directed by the court. 91
[13.7.20] Service of the summons may be proved by way of an affidavit. 92

[13.7.21] Personal service is effected and attempted by the process servers of the FJC, who will prepare the affidavit of service.
E. Mentions Stage
[13.7.22] During the mentions stage, the parties will appear in Family Court 1 which is presided by a Family Court judge. During this
stage, the court will address pre-trial matters, including the exchange of affidavits and allocation of dates for trial. At all times, parties
must inform the judge of all relevant matters that may affect the hearing of the case, including: 93
1. Applications to strike out the whole part or parts of affidavits that had been exchanged, or which are to be referred to in the
proceedings.
2. The number and identity of the witnesses that will be called to give evidence and who had agreed to give evidence for the party
concerned.
3. Challenges to expert reports.
4. Related proceedings which are pending in any court, including that of the Syariah court.
1. First Mention
[13.7.23] At the first mention, the complaint would be read out to the Respondent. Parties may then resolve the matter either by the
following:
1. Complainant seeks leave to withdraw the application. In such a scenario, the complainant will be informed by the court that in
doing so, the complainant will not be able to rely on the incidents referred to in the application should the complainant decide
to file a fresh application under section 65. If the complainant understands the consequences of the withdrawal, the court will
grant leave to withdraw.
2. Respondent admits partially or fully to the allegations, and consents to the application. The court would still have to determine
if the facts admitted to by the respondent amount to family violence, and if it is necessary to grant the application. If the court is
satisfied that it is necessary to grant the application, a consent order will be made for the grant of the protection order, with or
without a counselling order.
[13.7.24] If there is no resolution at the First Mention, the judge may direct parties to go for counseling. If the judge is of the view that
the parties do not need to attend counseling, then pre-trial directions will be given by the judge on the conduct of the matter.
2. Counselling
[13.7.25] At the first mention, counselling that is directed by the judge at the First Mention will be carried out by a counsellor who is
part of the Counselling and Protection Services department of the FJC. The counselling will normally take place on the same day,
assuming there are sufficient slots for counselling. Otherwise, parties will take a further date for counselling.
[13.7.26] Where there are more than two parties involved and there is no resolution at the first mention, the parties may be referred
for group counseling in the form of a Family Conference on a date to be fixed where all the cases will be consolidated and the
counselling done at the Family Conference for a holistic resolution of all related cases.
3. After counselling
[13.7.27] At the end of the counselling session, be it on the first or subsequent mention or mentions, or the Family Conference (as the
case may be), the case may reach a resolution as referred to above. 94 However, if there is no resolution at this point and the
Respondent contests the application, then pre-trial directions will be given by the judge on the conduct of the matter.
4. Pre-Trial Directions
[13.7.28] The directions given by the judge for the conduct of the matter 95 will include the granting of adjournments for parties to
engage counsel or seek legal aid, to file affidavits or unsworn statements, or matters relating to discovery and calling of witnesses as
appropriate.
[13.7.29] The exchange of affidavits will take place between parties in Family Court 1 with a copy submitted directly to the judge for
purposes of the trial. Affidavits filed should contain only facts relevant to the application. The form of the affidavit should also be
compliant with Form 209 of Appendix A of the Family Justice Court Practice Directions 2015 as far as possible but may depart from the
standard form to meet the case as necessary. 96 The court may also exercise its discretion in certain cases to allow the filing of unsworn
statements in lieu of affidavits. 97
5. Trial dates
[13.7.30] Once the court is satisfied that parties are ready for trial, it will fix trial dates, usually within four weeks of the last mention
unless there are reasons to give an earlier or later date.
F. At Trial
1. Sequence of witnesses
[13.7.31] All hearings in the FJC are heard in camera; 98 thus other than the parties, no other person will be allowed to be present in the
court room without the court’s permission.
[13.7.32] During the trial, the parties will have the opportunity to cross-examine each other’s witnesses. In terms of procedure, the
complainant and the complainant’s witnesses will give evidence first. However if there are cross-applications, then the party whose
application was filed first will normally go first.
2. Disputed incidents that took place after the application was filed
[13.7.33] The court must not take into account evidence of a disputed incident which occurs after the application was filed. In the case
of Teng Cheng Sin v Law Fay Yuen, 99 the High Court hearing an appeal from a decision below, held that the district judge should not
have admitted evidence by the complainant of a disputed incident that had taken place two and a half months after the application was
made. 100
3. Evidence of children
[13.7.34] In cases where a child witness is brought before the court to give evidence, the court will allow a counsellor, social worker or
the like to be present with the child. In appropriate cases, the child may be permitted by court to give evidence via video-link from a
separate room.
[13.7.35] In dealing with child witnesses, the court should proceed with care when considering the evidence of a child witness. In the
case of Lee Kwang Peng v PP, 101 the then CJ Yong Pung How observed that the evidence of a child must not be accepted at face value
without some measure of corroboration. 102 At [63] and [64], he would also go on to comment that:
63 This rule was of more significance in the days before bench trials were introduced in Singapore, as an improper direction to the
jury ion the issue of corroboration warranted an acquittal upon appeal. The rationale for this rule was conveniently set out in the
judgment of Thomson CJ in Chao Chong & Ors v PP[1960] MLJ 238, namely that:
“[I]t is a matter of common knowledge that children at times find it difficult to distinguish between reality and fantasy. They
find it difficult after a lapse of time to distinguish between the results of observation and the results of imagination.”
64 Naturally, this rationale applies to different children in different degrees. Where, therefore, evidence is given by older children
whose intellectual faculties are more developed, the danger in convicting without corroboration is diminished. The rationale of the
rule makes it very difficult to lay down a guideline as to the point at which a maturing
individual, in his progress towards adulthood, crosses the line past which the judicial process considers his testimony credible
without independent evidence in support of it and this must therefore be a matter for the judge’s assess in each case.
[13.7.36] Lee Kwang Peng v PP has been applied in applications for protection orders. 103
4. Absence of respondent
[13.7.37] In the event that the respondent does not attend court, the court may proceed to hear and determine the application for a
protection or a domestic exclusion order, or an application to vary suspend or revoke such an order. 104 The court can then proceed to
examine the complainant or any witnesses called in support of the application and then decide on whether to make, vary suspend or
revoke the protection order, as the case may be. 105
[13.8.38] After an order has been made, varied suspended or revoked by the court in the absence of the respondent, it must be served
on the respondent in one of the following ways: 106
(a) By delivering it to the respondent personally;

(b) By sending it by prepaid registered post to the last known address of the place of residence or business of the respondent; and
(c) By affixing it to a conspicuous part of the last known address of the place or residence of the respondent.
The order for, or to vary suspend or revoke a protection order made in the absence of the respondent must indicate that it was made in
the absence of the respondent. 107 In the case where an order is made, the order must also be accompanied by a memorandum stating
that the respondent may apply under section 67(1) of the Charter to revoke the order. 108
13.8 SAMPLE DOCUMENTS
13.D.1 Expedited order

EXPEDITED ORDER
(SECTION 66 OF THE WOMEN’S CHARTER CAP 353)
Summons No.: SS123/2016
TO: Respondent’s Name
NRIC No.: S1234567A
OF: Address of Respondent
WHEREAS an application has been made to the Court by Complainant’s Name (hereinafter referred to as “the applicant”) for an
ORDER under Section 66 of the Women’s Charter Cap 353 restraining you from committing family violence on the applicant.
AND WHEREAS the COURT is satisfied that there is imminent danger of family violence being committed against the applicant.
NOW pursuant to Section 66 of the Women’s Charter Cap 353, it is ordered that, in the interim, you shall be restrained from committing
family violence on the applicant.
GIVEN UNDER MY HAND AND THE SEAL OF THE COURT AT SINGAPORE
DATED THIS [DATE]
No.: EO123/2016
_________________________ ________________________________
REGISTRY OFFICER DISTRICT JUDGE/MAGISTRATE
RECEIVED THE DUPLICATE OF THIS SUMMONS
ON ________________________________AT______________________________
____________________________________________________________________
(NAME & SIGNATURE OF RECIPIENT)
13.D.2 Personal protection order with counselling order

PERSONAL PROTECTION ORDER WITH COUNSELLING ORDER
UNDER SECTION 65 OF THE WOMEN’S CHARTER, CHAPTER 353
Summons No.: SS123/2016
COMPLAINANT’S NAME ... Complainant

NRIC NO.: S1234567A
COMPLAINANT’S ADDRESS
VS
RESPONDENT’S NAME ... Respondent
NRIC NO.: S1234567B
RESPONDENT’S ADDRESS
WHEREAS on the application of COMPLAINANT’S NAME AND NRIC (hereinafter referred to as “the applicant”) OF: COMPLAINANT’S
ADDRESS for an order under Section 65 of the Women’s Charter, Chapter 353.
IT IS ORDERED BY DISTRICT JUDGE GOH ZHUO NENG (UNTIL VARIED OR DISCHARGED ACCORDING TO LAW):
That you, Respondent’s Name, shall be restrained from using family violence against Complainant’s Name.
That you, Respondent’s Name shall leave and be excluded from the shared residence at ADDRESS OF SHARED RESIDENCE with effect
from 1 January 2016 until this order be varied or discharged according to the law.
AND IT IS FURTHER ORDERED:
That you, COMPLAINANT’S NAME and RESPONDENT’S NAME, shall attend counselling to be provided by the MINISTRY OF SOCIAL
AND FAMILY DEVELOPMENT or such Agency as directed by the Ministry.
That you, COMPLAINANT’S NAME and RESPONDENT’S NAME, shall report to the MINISTRY OF SOCIAL AND FAMILY
DEVELOPMENT or such agency as directed by the Ministry on such dates and at such time as may be appointed by the Ministry or
Agency from time to time.
That the case is fixed for review on DATE AND TIME OF COUNSELLING REVIEW before this Court, FAMILY COURT 1.
GIVEN UNDER MY HAND AND THE SEAL OF THE COURT
DATED THIS 1 January 2016
PPO123/2016
CGO456/2016
Note: Please refer to the following pages for the explanatory notes.
__________________________ ______________________________
COURT OFFICER DISTRICT JUDGE
13.D.3 Personal protection order application form

FAMILY JUSTICE COURTS OF THE REPUBLIC OF SINGAPORE
COMPLAINT UNDER SECTION 151
CRIMINAL PROCEDURE CODE CHAPTER 68
[REV ED] [2012]
APPLICATION FOR PERSONAL PROTECTION ORDER

Particulars of Parties (as furnished by the Complainant) and children
Complainant Details
Name (State the name of the person for whom Relationship (State how Sex ID DOB (dd/mm/yyyy) Occupation
the complainant is making application) the person for whom the
application is made is
related to the
complainant)

Children Details (to be completed if the Complainant and Respondent have children)
Name (state the name of the person for Sex ID DOB (dd/mm/yyyy) Occupation
whom the complainant is making
application)

PARTICULARS OF COMPLAINT
“Family violence” is:
(a) willfully or knowingly placing or attempting to place a family member in fear of hurt;
(b) causing hurt to a family member by such act which is known or ought to have been known would result in hurt;
(c) wrongfully confining or restraining a family member against his will; or
(d) causing continual harassment with intent to cause or knowing that it is likely to cause anguish to a family member.
____________________________
Signature of Complainant
Sworn/Affirmed before me Interpreted/attended to by

___________________________ ______________________________
Name & Signature of JO Name & Signature of Interpreter
District Judge/Magistrate Language:
Application No.: _________________ Date/Time printed: ________________
APPLICATION FOR MEDICAL EXAMINATION FORM
AUTHORISATION TO THE FAMILY JUSTICE COURTS
I, ________________________________, NRIC No._________________________ hereby consent to and authorize an officer of the Family Court to
apply, from the hospital concerned, for the medical examination form (NP306) on my behalf. I waive all privileges in respect of the
doctor and patient relationship in so far as it relates to the use of any and all information in the medical examination form for the
purpose of mediation and counseling and all other related proceedings at the Family Court.
I also understand that the said Form will not be furnished to any parties, including myself, but for the Court’s reference.
___________________________ ______________________________
Date Signature of Applicant
Explained to the Applicant by: _________________________________________
In the Language / Dialect of: __________________________________________
___________________________ ______________________________
Date Signature of Interpreter
13.D.4 Summons to a respondent

SUMMONS TO A RESPONDENT
CRIMINAL PROCEDURE CODE CAP 68 [REV ED] [2012], SECTION 115
WOMEN’S CHARTER CAP 353, SECTION 65
TO: Respondent’s Name NRIC No.: S1234567A

OF: Respondent’s Address
WHEREAS it is alleged by the applicant Complainant’s name that you have on Date that incident occurred committed family
violence against the applicant.
AND WHEREAS an application has been made by Complainant’s name for an Order under SECTION 65 of the Women’s Charter,
Chapter 353.
YOU ARE HEREBY REQUIRED to appear on the date at the hour of time in person before Family Court No. 1 at Family Justice Courts,
3 Havelock Square, Singapore 059725 to show cause why an ORDER should not be made against you restraining you from committing
family violence on the applicant.
AND YOU ARE HEREBY WARNED that if you shall, without just excuse, neglect or refuse to appear on the said date, a WARRANT may
be issued to compel your attendance.
DATED THIS 1 JANUARY 2016
SS: SS123/2016
EO: EO123/2016
____________________________ ________________________________
Registry Officer DISTRICT JUDGE/MAGISTRATE
RECEIVED THE DUPLICATE OF THIS SUMMONS
ON _________________________ AT _____________________
_____________________________________________________
(SIGNATURE OF RECIPIENT)
FOOTNOTES
* District Judge, Family Justice Courts, Singapore.
1 Section 3(2) exempts parts of the Charter from applying to any person who is married under, or to any marriage solemnised or registered under, the
provisions of the Muslim law or of any written law in Singapore or in Malaysia providing for the registration of Muslim marriages. It does not except the
provisions under Part VII.
2 Leong Wai Kum, Elements of Family Law in Singapore, 2nd edn (2012) Chapter 4, pp 131–132.
3 E.g. the Penal Code (Cap 224) and the Protection from Harassment Act (Cap 256A).
4 Although remedies for harassment would now have to take the form of a statutory tort under section 11 of the Protection of Harassment Act (Cap 256A),
which has abolished the common law tort of harassment (section 14 of the Protection of Harassment Act (Cap 256A)).
5 Section 64 of the Charter defines “incapacitated person” as “a person who is wholly or partially incapacitated or infirm, by reason of physical or mental
disability or ill-health or old age”.
7 Section 65(2)(c) of the ChartervideWomen’s Charter (Amendment) Act 2016.
8 Section 64 of the Charter states that “relative” includes a person who is related through marriage or adoption.
12 Section 65(5)(c) of the Charter.
13 Section 65(5)(a) of the Charter.
14 Section 65(5)(b) of the Charter.
16 Ibid.
17 Section 66(1)(a) of the Charter. In practice, it is the expedited order that is served on the respondent.
20 Section 66(2)(a) of the Charter.
23 See section 64 of the Charter for the definition of “shared residence”.

26 Section 65(5)(c) of the Charter.
27 Currently, this is done in Family Court No 1.
30 PP v Muhammad Noor bin Abdullah [2015] SGDC 240.
31 PP v Jeff Lim Tze Kuan [2015] SGDC 96.
33 See the case of PP v Baboo Thevan s/o Nagarasen [2006] SGDC 46.
35 Sim Tze Long v Chua Suat Kheng [2003] SGDC 125 at [11].
39 Ibid.
40 Ibid.
41 AXK v AXL [2011] SGDC 431 at [14]–[16].
42 NR v NQ [2007] SGMC 4.
43 Chu Yoke Chew v Liu Yan [2009] SGDC 334.
44 ABG v ABH [2009] SGDC 254.
45 Kavaljit Kaur v Harvinder Singh s/o Pritam Singh [2008] SGDC 192.
46 AGX v AGW [2010] SGDC 271.
47 Tan Hwee Khoon v Low Eng Tong [2011] SGDC 121.
48 AMT v AMV [2011] SGDC 114.
49 Tan Ying Hui (Chen Yinghui) v Tan Zhi Xuan [2011] SGDC 49.
50 BDJ v BDK [2012] SGDC 415.
51 Yue Tock Him @ Yee Chok Him v Yee Ee Lim [2011] SGDC 99 at [33].
52 Ibid at [42].
53 AOU v AOV [2010] SGDC 525.
54 AXJ v AXI [2011] SGDC 420 at [12].

55 Chua Li Choo v Teo Swee Theng [2005] SGDC 241 at [21].
56 BDV v BDW [2012] SGDC 433 at [96]–[100].
57 Yue Tock Him @ Yee Chok Him v Yee Ee Lim [2011] SGDC 99 at [79].
58 Ibid at [130].
59 BCM v BCN [2012] SGDC 288 at [66].
60 AXJ v AXI [2011] SGDC 420.
61 Sim Tze Long v Chua Suat Kheng [2003] SGDC 125.
62 JBV v JBW [2014] SGDC 458.
63 TEI v TEH [2015] SGFC 100.
64 Yue Tock Him @ Yee Chok Him v Yee Ee Lim [2011] SGDC 99 at [10]; applied in TCK v TCL [2014] SGDC 460 at [43].
65 Kavaljit Kaur v Harvinder Sing s/o Pritam Singh [2008] SGDC 192 at [25].
66 WO v WP [2008] SGDC 43 at [66].
67 ZU v ZV [2009] SGDC 99 at [32(b)] read with [24].
68 Kavaljit Kaur v Harvinder Singh s/o Pritam Singh [2008] SGDC 192 at [26].
69 AUL v AUM [2011] SGDC 303 at [66].
70 AXJ v AXI [2011] SGDC 420 at [22]; AMT v AMV [2011] SGDC 114 at [64]–[65].
71 AWR v AWS [2011] SGDC 410 at [93].
72 [2015] SGFC 88.
73 [2015] SGFC 89.
74 ACZ v ADC (on behalf of child B) [2009] SGDC 457; Joycelyn Toh Hui Yu v Toh Siew Luan Bette [2013] SGDC 275 at [17(e)].
75 IS v IT [2005] SGDC 188.
76 Joycelyn Toh Hui Yu v Toh Siew Luan Bette [2013] SGDC 275 at [17 (f)(i)].
77 Ibid at [17(f)(ii)].
78 Ibid at [17(f)(iii)].
79 Ibid at [17(f)(iv)].
80 Ibid at [17(a)].
81 Ibid at [17(b)].
82 Ibid at [17(d)].
83 Section 79(4) of the ChartervideWomen’s Charter (Amendment) Act 2016.
84 Tan Hock Chuan v Tan Tiong Hwa [2002] SGHC 117 at [8].
85 Section 79(4) of the ChartervideWomen’s Charter (Amendment) Act 2016.
86 Currently at 3 Havelock Square.
87 The applicable CPC provisions for applications under Part VII, including section 116(1)of the CPC, are set out in the Sixth Schedule to the Family Justice Rules
2014 under rule 131C(a).
88 Section 3(2) of the CPC.
91 Ibid.
92 Section 120 of the CPC.
94 Paragraph [13.7.23] above.
95 [13.7.24] and [13.7.27].
98 Section 10(1) of the Family Justice Act.
99 [2003] 3 SLR(R) 356.
100 Teng Cheng Sin v Law Fay Yuen [2003] 3 SLR(R) 356 at [20].
101 [1997] 2 SLR(R) 569.
102 Ibid at [62].
103 QU v QV [2008] SGDC 364 at [19]; TCV (On behalf of Child, A) v TCU [2015] SGFC 3 at [39].
104 Rule 99A(2), read with rule 99A(9) of the Family Justice Rules 2014, which applies rules 99A(2)-(7) and (8)(a) to applications to vary suspend or revoke a
protection order. The requirements in rule 99A(2)(a), (b) and (c) must be satisfied before the court proceed to hear the application. Alternatively, the court
may issue a Warrant of Arrest against the respondent.
105 Rule 99A(4) of the Family Justice Rules 2014.
106 Rule 99A(5), (6) and (7) of the Family Justice Rules 2014.
107 Rule 99A(8)(a) of the Family Justice Rules 2014.
108 Rule 99A(8)(b) of the Family Justice Rules 2014.

2016 - 10 - 17 PAGE 415

Chapter 14: Injunctive Relief in Matrimonial Proceedings
Chapter 14
Injunctive Relief in Matrimonial Proceedings

Koh Tien Hua

14.2 Injunctions In Relation to Property 417
14.3 Anton Piller Orders 423
14.4 Other Injunctions in Matrimonial Cases 428
A. Anti-Suit Injunctions 428
B. Interim Injunctions in General 431
C. Injunctive Relief Where Children are Concerned 436
14.1 INTRODUCTION
[14.1.1] An injunction is an order by a court requiring a party to do or refrain from doing something. A prohibitory injunction is an order
forbidding a party from doing an act or to continue that act. A mandatory injunction is an order requiring a party to do a positive act. A
qua timet injunction is an injunction to restrain a wrongful act or acts which are threatened or imminent but which have not as yet
commenced.
[14.1.2] In matrimonial matters, the power to grant injunctive relief is derived from:
1. Sections 22 and 25 of the Family Justice Act 2014 (No 27 of 2014) (“FJ Act”);
2. Sections 17 and 18 of the Supreme Court of Judicature Act (Cap 322);
3. Items 5 and 14 of the First Schedule to the Supreme Court of Judicature Act (Cap 322);
4. Part VII, sections 64–47 and Part X, section 132 of the Women’s Charter (Cap 353) (the “Charter”); and
5. Division 25, rules 516–533 and Division 27, rules 540–545 of the Family Justice Rules 2014.
In addition, a party may lodge a caveat against land pursuant to sections 115–130 of the Land Titles Act (Cap 157).
[14.1.3] In addition, the power to grant injunctive relief in relation to custody issues is derived from sections 26 and 131 of the Charter
and Part III, sections 8–14 of the International Child Abduction Act (Cap 143C).
[14.1.4] The power to order injunctive relief rests with a High Court judge. However, by section 26(1) and (2) of the FJ Act, a District Judge
and Registrar of the Family Courts have the power to exercise all the civil jurisdiction of the High Court referred to in section 22(1)(a) and
(b) of the FJ Act and when exercising any jurisdiction referred to in section 22(1)(a) or (b), all the powers of the High Court in the exercise
of the original civil jurisdiction of the High Court and such other jurisdiction relating to family proceedings as conferred on a Family
Court by any written law.
[14.1.5] The court may also make orders for injunctive relief under its inherent jurisdiction.
14.2 INJUNCTIONS IN RELATION TO PROPERTY
[14.2.1] A Mareva injunction is an injunction which is collateral to the main action and it is to prevent a party from removing assets out
of jurisdiction or from disposing of the assets. The effect of the Mareva injunction is to freeze the assets of the person seeking to dissipate
or dispose of the assets until the conclusion of the trial or main action. Given the effect of a Mareva injunction, the courts will be
particularly careful to ensure that it is not abused. It cannot be used to pressure the other party to come to a settlement. Neither can it be
deployed as an instrument of oppression to inflict commercial prejudice. In European Grain & Shipbuilding Ltd v Compania Naviera Euro-
Asia SA, 1 Chan Sek Keong J (as he then was) discharged the Mareva injunction on the ground, among others, that the motive of the
plaintiffs in obtaining the injunction was to obtain security for their claim. As the sole purpose of the injunction is the prohibition of
dealings by the defendant in order to defeat a judgment against him, it cannot be used to paralyse the defendant’s normal trade or the
legitimate rights of other persons against the defendant’s assets. It would therefore be an abuse of the procedure if it is used to put
pressure on the defendant and thereby extract security from him. In Choy Chee Keen Collin v Public Utilities Board, 2 the Court of Appeal
disapproved of the use of Mareva injunctions to exert pressure on the third defendant to give discovery.
[14.2.2] This injunction was named after the case Mareva Compania Naviere SA v International Bulk Carriers SA. 3 It has been described
as one of the “nuclear weapons” of civil litigation. 4
[14.2.3] In Art Trend Ltd v Blue Dolphin (Pte) Ltd & Ors, 5 Lai Kew Chai J ruled:
27 I will now say a few words about the practice of issuing Mareva injunctions in Singapore. Mareva injunctions have been issued by
the High Court in Singapore for some years now. They have been issued under s 4(8) of the Civil Law Act (Cap 30). The subsection in
terms are equivalent to the former s 45 of the English Supreme Court of Judicature (Consolidation) Act 1925, since replaced and
expanded. The latter provision was the basis on which an injunction, later known by the sobriquet Mareva injunction, was for the
first time granted in England in May 1975: see Colin Ying, “The Mareva Injunction and Pre-trial Attachment” [1981] 2 MLJ cvii. In
Singapore, they have been issued
in addition to and notwithstanding the alternative procedure which is available for the attachment of property before judgment
under Pt III of the Debtors Act (Cap 19).
28 Section 4(8) of the Civil Law Act (Cap 30) states:
“A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the court, either
unconditionally or upon such terms and conditions as the court thinks just, in all cases in which it appears to the court to be just
or convenient that such order should be made.”
29 What is “just or convenient” in any case to a court in exercising its discretion is not possible to, and obviously should not, be
encapsulated into a set of rigid principles. Each case must turn on the merits of its facts. But applicants for a Mareva injunction have
been required to observe five guidelines: The Genie [1979] 2 Lloyd’s Rep 184 at 189 per Denning MR. Since its inception, the
interlocutory remedy has grown apace and has become a potent weapon to plaintiffs. The temptation to go outside the scope of the
discretion is there.
...
31 It is timely to record what Goff J (as he then was) recently said in Searose Ltd v Seatrain UK Ltd [1981] 1 WLR 894 at 897A:
“But care must be taken to ensure that such injunctions are only given for the purpose for which they are intended, viz. to
prevent the possible abuse of a defendant removing assets in order to prevent the satisfaction of a judgment in pending
proceedings: and likewise, care must be taken to ensure that such injunctions do not bear harshly upon innocent third parties. If
the principles are not observed, a weapon which was forged to prevent abuse may become an instrument of oppression.”
32 The cornerstone of the interlocutory remedy was also emphasised by Sir Robert Megarry VC in Barclay-Johnson v Yuill [1980] 3 All
ER 190 at 194d:
“It seems to me that the heart and core of the Mareva injunction is the risk of the defendant removing his assets from the
jurisdiction and so stultifying any judgment given by the courts in the action. If there is no real risk of this, such an injunction
should be refused; if there is a real risk, then if the other requirements are satisfied the injunction ought to be granted.”
33 I should note that Sir Robert Megarry VC also stated that the fact that a defendant is not a foreigner, or is within the jurisdiction of
the courts in the United Kingdom, is not by that mere fact a bar to the granting of a Mareva injunction. But, in determining the risk of
the removal of
the assets the learned Vice-Chancellor pointed out that the defendant’s nationality, domicile and residence are material factors. To
this, I would respectfully add the course of dealings between the parties and the historical antecedents of the defendant’s business.
34 Before the injunction is issued, I also must consider the potential effect or hardship on the defendants’ business if it is granted.
[14.2.4] The requirements for the grant of Mareva relief are well established. The applicant must show (a) that he has a valid cause of
action over which the court has jurisdiction; (b) a good arguable case on the merits of the plaintiff’s claim; (c) a real risk that the
defendant will dissipate his assets to frustrate the enforcement of an anticipated judgment of the court (referred to hereafter as a “real
risk of dissipation” for short where appropriate to the context); and (d) that he has assets within the jurisdiction. If the application is for
an interlocutory injunction, the court will also consider where the balance of convenience will lie. The plaintiff must also make full and
frank disclosure of all matters in his knowledge which are material for the court to know. 6 Material facts are facts which the court
should take into account in making its decision, and even where the court finds that the applicant/plaintiff has not made a full and frank
disclosure, it does not necessarily follow that the court must discharge the Mareva injunction. The court still has discretion in the matter,
and whether or not the court would exercise its discretion depends on factors such as the particular relief sought, how serious the
material non-disclosure is or how important the undisclosed facts are, and the overall merits of the plaintiff’s case. 7
[14.2.5] A good arguable case is one which is “more than barely capable of serious argument, but not necessarily one which the judge
considers would have a better than 50 per cent chance of success”: Ninemia Maritime Corp v Trave Schiffahrtgesellschaft mbH und Co KG
(The Niedersachsen). 8
[14.2.6] In respect of a real risk of dissipation, there must be some “solid evidence” to demonstrate the risk, and not just bare assertions to
that effect: Guan Chong Cocoa Manufacturer Sdn Bhd v Pratiwi Shipping SA. 9 The Court of Appeal set out the following factors which were
relevant to the consideration of the question of risk and to the case: 10
The nature of the assets which are to be the subject of the proposed injunction, and the ease or difficulty with which they could
1. be disposed of or dissipated; i.e. the plaintiff may find it easier to establish the risk of dissipation of a bank account or of movable
chattels.
2. The nature and financial standing of the defendant’s business.
3. The length of time the defendant has been in business.
4. The domicile or residence of the defendant.
5. The defendant’s past or existing credit record. A history of default in honouring other debts may be a powerful factor in the
plaintiff’s favour – on the other hand, persistent default in honouring debts, if it occurs in a period shortly before the plaintiff
commences his action, may signify nothing more than the fact that the defendant has fallen upon hard times and has cash-flow
difficulties, or is about to become insolvent.
6. The defendant’s behaviour in response to the plaintiff’s claims: a pattern of evasiveness, or unwillingness to participate in the
litigation or arbitration, or raising thin defences after admitting liability, or total silence, may be factors which assist the plaintiff.
[14.2.7] The Court of Appeal in Guan Chong Cocoa Manufacturer Sdn Bhd 11 recognised that each of the above factors, on its own, would
not necessarily indicate a real risk. One would have to take all the relevant factors into consideration, including any explanation offered
by the defendant, and make an assessment of whether, on the facts, there was a real risk of dissipation.
[14.2.8] The plaintiff must show that he has grounds for believing that the defendant has assets within the jurisdiction and to do his best
to identify the assets which are to be the subject-matter of the injunction. The plaintiff must establish all the elements which would justify
a court granting an injunction. He must state sufficient evidence to establish a good, arguable case and a cause of action.
[14.2.9] The cases show that the Mareva injunction can apply to a wide range of assets including bank accounts (even where the account
is held in joint names with a non-party), 12 chattels, 13 (where an aircraft was the subject of a Mareva injunction), land, 14 a company’s
goodwill 15 and choses in action. 16 Mareva injunctions have also been granted in respect of assets outside the jurisdiction, i.e. a
worldwide injunction. 17
[14.2.10] In Allport Alfred James v Wong Soon Lan, 18 an interim injunction was granted to a wife restraining the husband from disposing
or otherwise dissipating the net proceeds of sale from the sale of the former matrimonial home. In Teo Siew Har v Lee Kuan Yew, 19 an
interim Mareva injunction was granted in respect of a matrimonial home the proprietor of which was not a party to proceedings in the
main action as the plaintiffs were able to show a good, arguable case that the third party held assets belonging to the defendant. In Wee
Ah Lian v Teo Siak Weng, 20 the wife applied for and obtained an ex parte interim injunction restraining the husband from dealing with,
disposing of or in any manner parting with the US$171,783.82 or any part thereof and from selling or otherwise parting with possession
of the Penang property at 27 Puncak Ria Lima, Bukit Ferringhi. Following an inter partes hearing, the ex parte interim injunction was
ordered to be continued until further order.
[14.2.11] In Lee Chi Lena v Chien Chuen Chi Jeffrey (Qian Jie, co-defendant), 21 Choo Han Teck J dismissed the wife’s appeal against the
refusal by a district judge to grant an interim injunction restraining the husband and the co-defendant from selling, transferring or in
any manner disposing or dealing with a property in Shanghai registered in his and the co-defendant’s names. The court ruled:
7 Given the time lag between the initiation of matrimonial proceedings and a final judgment of divorce, disposing matrimonial assets
and translating them into new assets by the parties in the ordinary course of living and investment is frequently necessary,
especially when each of them are seeking to begin a new life. Thus it cannot be that every decision to dispose of a matrimonial asset
by one spouse is susceptible to injunctive intervention by the other spouse. A balance must be struck. Therefore, whether or not an
injunction will be granted depends on whether the other spouse will be prejudiced by such a disposition. In determining whether
there is prejudice in this context, the court should take into account whether there are adequate matrimonial assets which will
remain to satisfy the likely division proportion a court will make in favour of the non-disposing party. Hence, in a case where there is
only one matrimonial asset of substantial value and a husband wishes to dispose of it, a court should allow a wife’s application for an
injunction because there are no adequate remaining assets to satisfy a likely award in her favour in those circumstances. On the
present facts, however, that is not the case. There are other properties of substantial value available. Counsel for the husband
estimated that the matrimonial home which is located in Singapore has a net value of $1.6m, and there are unquantified cash assets
to take into account. Counsel for the wife pointed out that there are no firm figures at this point in the proceedings. However, it is
undisputed that the matrimonial home is unencumbered, and although there is no formal valuation conducted for it, the estimated
value is not unreasonable. Hence, in my view, there are adequate matrimonial assets apart from the property which are available to
satisfy a likely division proportion in favour of the wife. Her appeal was therefore dismissed with costs.
[14.2.12] In Ghoth v Ghoth, 22 the wife sought an injunction covering her husband’s assets worldwide except for assets required to meet
his living and legal expenses. Although an injunction was granted, the Court of Appeal refused to continue the same. The Court of Appeal
ruled that a court would not ordinarily impose on a party in matrimonial proceedings a worldwide Mareva injunction as the purpose of
the injunction “was to safeguard a plaintiff from a situation in which the assets of the opposing party are run down wither with the
intention of making that party judgment-proof or at least having that effect without reasonable excuse”. Given that it was probable that
the wife would not be entitled to all of the husband’s assets, a worldwide injunction on all of his assets worldwide was not justifiable as
this was too extensive a relief. The value or the range of assets should be limited to the maximum of what she could reasonably be
expected to receive in the ancillary matters.
[14.2.13] In TIG v TIH, 23 Valerie Thean JC noted that in proceedings leading up to the hearing of the ancillary matters, the husband had
obtained a Mareva injunction against the wife on the basis that the wife had withdrawn a total of $2.75 million from their respective joint
accounts without his knowledge. The wife had also left the matrimonial home on the same day. The husband commenced a civil action
against the wife to recover the sum of $2.75 million. In that suit, he also applied for and obtained a Mareva injunction to enjoin the wife’s
and [D]’s bank accounts, whether in their sole names or otherwise. Under the injunction, the wife and [D] were allowed to withdraw from
the enjoined accounts up to $3,000 a week for their living expenses and legal fees.
14.3 ANTON PILLER ORDERS
[14.3.1] An Anton Piller order (named after the case of Anton Piller KG v Manufacturing Processes Ltd) 24 is an order made to enable a
plaintiff to enter the defendant’s premises to search for, inspect, and seize materials with the aim of preserving the same for the trial. A
defendant may also be ordered to give information concerning his activities in relation to the issues at hand.
[14.3.2] The Anton Piller order is a remedy which is usually only granted when it is essential to do so in the interests of justice. In Anton
Piller KG v Manufacturing Processes Ltd, 25 Lord Denning MR said:
It seems to me that such an order can be made by a judge ex parte, but it should only be made where it is essential that the plaintiff
should have inspection so that justice can be done between the parties: and when, if the defendant were forewarned, there is a grave
danger that vital evidence will be destroyed, that papers will be burnt or lost or hidden, or taken beyond the jurisdiction, and so the
ends of justice b defeated: and when the inspection would do no real harm to the defendant or his case ... We are prepared, therefore,
to sanction its continuance, but only in an extreme case where there is grave danger of property being smuggled away or of vital
evidence being destroyed.
Ormrod LJ said, at page 62:
I agree with all that Lord Denning MR has said. The proposed order is at the extremity of this court’s powers. Such orders, therefore,
will rarely be made, and only when there is no alternative way of ensuring that justice is done to the applicant. There are three
essential pre-conditions for the making of such an order, in my judgment. First, there must be an extremely strong prima facie case.
Secondly, the damage, potential or actual, must be very serious for the applicant. Thirdly, there must be clear evidence that the
defendants have in their possession incriminating documents or things, and that there is a real possibility that they may destroy such
material before any application inter partes can be made.
Shaw LJ, the third member of the court, said at page 62:
The overriding consideration in the exercise of this salutary jurisdiction is that it is to be resorted to only in circumstances where the
normal processes of the law would be rendered nugatory if some immediate and effective measure was not available. And, when
such an order is made, the party who has procured the court to make it must act with prudence and caution in pursuance of it.
[14.3.3] In Lock International plc v Beswick, 26 Hoffmann J said of the effects of an Anton Piller order:
In many cases it will therefore be sufficient to make an order for delivery up of the plaintiff’s documents to his solicitor or, in cases in
which the documents belong to the defendant but may provide evidence against him, an order that he preserve the documents
pending further order, or allow the plaintiff’s solicitor to make copies. The more intrusive orders allowing searches of premises or
vehicles require a careful balancing of, on the one hand, the plaintiff’s right to recover his property or to preserve important
evidence against, on the other hand, violation of the privacy of a defendant who has had no opportunity to put his side of the case. It
is not merely that the defendant may be innocent. The making of an intrusive order ex parte even against a guilty defendant is
contrary to normal principles of justice and can only be done when there is a paramount need to prevent a denial of justice to the
plaintiff. The absolute extremity of the court’s powers is to permit a search of a defendant’s dwelling house, with the humiliation and
family distress which that frequently involves.
[14.3.4] It was pointed out in the Staughton Committee Report (1992) on “the practical operation of Anton Piller orders” published by the
Lord Chancellor’s Department that:
The harm likely to be caused by the execution of the Anton Piller Order to the respondent and his business affairs must not be
excessive or out of proportion to the legitimate object of the order...the court will still have to weigh in the balance the plaintiff’s need
for the order against the injustice to the respondent in making the order ex parte without any opportunity for the respondent to be
heard. The judge who hears the application for the order should keep in mind that, in as much as audi alteram partem is a
requirement of natural justice, the making of an ex parte mandatory order always risks injustice to the absent and unheard
respondent.
[14.3.5] In Asian Corporate Services (SEA) Pte Ltd v Eastwest Management Ltd (Singapore Branch), 27 the Court of Appeal per Chao Hick
Tin JA set out the principles governing the grant of an Anton Piller order:
14 It is also settled law that to warrant the issue of an Anton Piller order four tests must be satisfied:
(a) Whether the plaintiff has shown that it has an extremely strong prima facie case.
(b) Whether the damage suffered by the plaintiff would have been very serious.
(c) Whether there was a real possibility that the defendants would destroy relevant documents.
(d) Whether the effect of the Anton Piller order would be out of proportion to the legitimate object of the order.
See Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 at 62 and Steven Gee, Commercial Injunctions (Sweet & Maxwell, 5th
Ed, 2004) at pp 491–492.
[14.3.6] In Emanuel v Emanuel & Anor, 28 the wife applied ex parte for an order that the husband or his representative, permit the person
serving the order on him together with one other person to enter the premises for the purpose of looking for, inspecting and
photographing all documents relating to the husband’s earnings, income and capital, all documents relating to the sale by the husband
and the proceeds of sale of shares in any company and of any capital asset, all bank statements and building society pass books and
documents relating thereto, all documents relating to the purchase of a property including documents relating to the provision of the
purchase price; and that the wife’s solicitor be permitted to retain all the documents obtained as a result of the order for the purpose of
copying the same. After a hearing in chambers, Wood J made the orders sought. In granting the orders, that where there was a strong
prima facie case that relevant documents which had not been produced in the past were not likely to be produced in the future and might
be removed or destroyed, justice required an Anton Piller-type order to be made, particularly as the husband had shown that he was
ready to flout the court’s authority and mislead it if he thought it to his advantage to do so thus rendering the normal process of law
nugatory and the only documents sought were those which the husband ought properly to produce.
[14.3.7] In Computerland Corp v Yew Seng Computers Pte Ltd, 29 the Court of Appeal per LP Thean JA said:
17 We cannot over-emphasise the draconian nature of the Anton Piller order and the very drastic effect and far-reaching
consequences such an order has on a defendant when it is executed. It should be granted only in an exceptional case.
[14.3.8] The Court of Appeal referred to Thermax Ltd v Schott Industrial Glass Ltd 30 and endorsed the views of Browne-Wilkinson J, who
stated:
I would emphasise that the effect of an order if made is far-reaching. First, a defendant has had no opportunity to present his case to
the court or to bring matters to the court’s attention which might alter the court’s view of the matter. It is an extreme thing for a court
to make a severe order without even giving the defendant an opportunity to be heard. Secondly, the execution of the order involves
an invasion of the rights of privacy: to the extent that the jurisdiction is exercised it is incompatible with the view that an
Englishman’s home is his castle. Thirdly, if not very carefully watched, it is capable of being abused. A plaintiff engaged in trade who
obtains an order enabling him to enter the business premises of a competitor and search that competitor’s documents may obtain a
quite unfair and wrongful commercial advantage. Therefore although the jurisdiction is a very valuable remedy in a proper case, the
courts are, and must continue to be, very circumspect in the use that is made of the procedure.
[14.3.9] In Columbia Picture Industries Inc v Robinson, 31 Scott J highlighted the serious practical effects and far-reaching consequences
produced by an Anton Piller order. He said at pages 72–73:
But notice the position that Anton Piller procedure, and its logical consequences, produces: a mandatory order is made in the absence
of the respondent and in secret; it is served upon and executed against the respondent without his having any chance to challenge
the correctness of its grant or to challenge the evidence on which it was granted.
Now let the possible and, perhaps, probable effects of an Anton Piller order be considered. The order is served and executed. If the
order is in the terms of the order in the present case and is executed as it was in the present case, there will be a wholesale removal
of all business material, whether stock-in-trade, bank statements, cheque books or correspondence. The continuance of the business
by the respondent to the order is thereby made impossible. How can a business be continued without records? How can it be
continued without stock-in-trade? It will be recalled that, in the present case, the order authorised the removal of, inter alia, the
video recorders at 8 Frederick Street. They were not, in the event, removed but, if they had been, the whole of Mr Robinson’s copying
business would for that reason alone have been closed down. It is customary, on account of the Mareva injunction accompanying
Anton Piller orders, for a copy of the order to be served on the respondent’s bankers. That was done in the present case. The almost
certain effect of that being done will be that the bankers will decline to allow any further credit to the respondent. The order will
throw such a question mark over the business of the respondent as to make any other course commercially imprudent and,
therefore, unlikely. In the present case, Barclays Bank, upon service of the order, refused to allow the defendants any further credit.
The service and execution of an Anton Piller order is likely to have on a respondent a personal as well as a commercial effect. Anton
Piller orders are often granted not simply in respect of business premises but in respect of the respondent’s home. He is required, on
pain of committal, to open the doors of his house to the plaintiffs’ representatives and to permit a search of the contents thereof. The
plaintiffs and their representatives are at liberty to search and rummage through the personal belongings of any occupant of the
house and to remove the material they consider to be covered by the terms of the order. The traumatic effect and the sense of
outrage likely to be produced by an invasion of home territory in the execution of an Anton Piller order is obvious.
[14.3.10] Thus, given the draconian nature of Anton Piller orders, the courts view as imperative that on every application for an Anton
Piller order the party seeking it must satisfy the stringent requirements laid down in the Anton Piller case and the court must scrutinise
with care the evidence produced and must be very circumspect in granting such an order. The court should and must exercise extreme
care in granting an Anton Piller order, balancing “the plaintiff’s right to recover his property or to preserve important evidence” against
“violation of the privacy of a defendant who has had no opportunity to put his side of the case”. This should be so even in a case where
there is strong evidence of any wrongdoing on the part of the defendant – depending of course on the nature of such wrongdoing – and
such order should only be granted if the court is satisfied that there is a real risk of justice being frustrated or thwarted. 32
[14.3.11] Similar to Mareva injunctions, the plaintiff will have to give an undertaking to abide by any order that the court may make as to
damages if it is determined that the plaintiff has to pay to the defendant such damages arising as a consequence of the order.
14.4 OTHER INJUNCTIONS IN MATRIMONIAL CASES
A. Anti-Suit Injunctions
[14.4.1] In AQN v AQO, 33 Choo Han Teck J had occasion to determine, inter alia, the issue of whether an anti-suit injunction ought to be
granted in respect of foreign divorce proceedings on appeal. A wife commenced proceedings for a divorce in Singapore and sought
ancillary relief. The husband commenced proceedings in New York for an order that the wife be restrained from alleged breaches of the
terms of the prenuptial agreement. The wife, in turn, applied, inter alia, for an anti-suit injunction restraining the husband from
proceeding with the New York action. The district judge denied the husband’s applications, and granted the wife an interim anti-suit
injunction restraining the husband from continuing with the New York action until the final judgment for divorce in Singapore was
given. The husband appealed the district judge’s decision. Choo Han Teck J ruled:
An anti-suit injunction is an order of the court compelling the party subject to the order to refrain from instituting or continuing with
proceedings abroad. It is an order that is made personally against the person subject to the injunction. The court has no power and
does not purport, to give the foreign court any direct orders. Nevertheless, the anti-suit injunction is recognised as an extreme
measure amounting to an indirect interference with foreign legal proceedings. In the interests of comity, the court will not grant such
an injunction easily ( Bank of America National Trust and Savings Association v Djoni Widjaja [1994] 2 SLR(R) 898 at [11] approving of
Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 (“Société Nationale”) at 892). In practice, most anti-suit
injunctions (such as the one in the present case) are sought and granted on an interim rather than on a permanent basis.
16 In determining whether an anti-suit injunction should be granted by the Singapore court, the following elements have to be
established (John Reginald at [28]–[29]):
(a) whether the defendant is amenable to the jurisdiction of the Singapore court;
(b) whether Singapore is the natural forum for resolution of the dispute between the parties;
(c) whether the foreign proceedings are prima facie vexatious or oppressive (or otherwise unconscionable);
(d) whether the grant of an anti-suit injunction would cause the defendant any injustice; and
(e) whether the institution of the foreign proceedings is in breach of any agreement between the parties.
[14.4.2] In VH v VI & Anor, 34 the wife, a French national, married a Swedish national, in Sweden. They were permanent residents of
Singapore and resided in Singapore with their two infant children who were born in Singapore and Indonesia. The wife commenced
divorce proceedings in Singapore on the ground that the marriage had broken down irretrievably because the husband had committed
adultery. The husband submitted to the jurisdiction of the Singapore courts, filing his answer to the petition and several interlocutory
applications. However, some 13 months after the commencement of the Singapore proceedings but before the matter had been fixed for
hearing, the husband commenced divorce proceedings in Sweden (“the Swedish proceedings”). He then filed an application in Singapore
for the Singapore proceedings to be stayed pending the determination of the Swedish proceedings, which application was dismissed by
the District Court. Meanwhile, the wife applied unsuccessfully in Sweden for the Swedish proceedings to be stayed. She then applied for
an anti-suit injunction in the Singapore proceedings to restrain the husband from continuing with the Swedish proceedings. An interim
injunction was issued but the husband disregarded the order and successfully applied for a divorce decree from the Swedish courts. Kan
Ting Chiu J, on appeal, ruled:
12 In an application for an anti-suit injunction, the applicant seeks to restrain another party from commencing or continuing with
proceedings in another jurisdiction on the ground that the dispute should be determined in the jurisdiction where the application is
made.
13 The tests for these applications are set in different terms, ie, the existence of a more appropriate forum for a stay order, and the
furtherance of the ends of justice for an anti-suit injunction.
...
37 The law on anti-suit injunctions in Singapore is also well settled. The Court of Appeal has made it clear in Bank of America
National Trust and Savings Association v Djoni Widjaja [1994] 2 SLR(R) 898 (“Djoni Widjaja”)
and Koh Kay Yew v Inno-Pacific Holdings Ltd [1997] 2 SLR(R) 148 that the law to be applied is that enunciated by Lord Goff of
Chieveley in the decision of the Privy Council in Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 892.
38 Lord Goff held that:
“The law relating to injunctions restraining a party from commencing or pursuing legal proceedings in a foreign jurisdiction has
a long history, stretching back at least as far as the early 19th century. From an early stage, certain basic principles emerged
which are now beyond dispute. First, the jurisdiction is to be exercised when the “ends of justice” require it: see Bushby v.
Munday (1821) 5 Madd 297, 307, per Sir John Leach VC); Carron Iron Co v Maclaren (1855) 5 HL Cas 416, 453, per Lord St Leonards
(in a dissenting speech, the force of which was however recognised by Lord Brougham, at p 459). This fundamental principle has
been reasserted in recent years, notably by Lord Scarman in Castanho v Brown & Root (UK) Ltd [1981] AC 557 and by Lord
Diplock in British Airways Board v Laker Airways Ltd [1985] AC 58, 81. Second, where the court decides to grant an injunction
restraining proceedings in a foreign court, its order is directed not against the foreign court but against the parties so proceeding
or threatening to proceed. As Sir John Leach VC said in Bushby v Munday, 5 Madd 297, 307:
‘If a defendant who is ordered by this court to discontinue a proceeding which he has commenced against the plaintiff, in
some other Court of Justice, either in this country or abroad, thinks fit to disobey that order, and to prosecute such
proceeding, this court does not pretend to any interference with the other court; it acts upon the defendant by punishment
for his contempt in his disobedience to the order of the court ...’
There are, of course, many other statements in the cases to the same effect. Third, it follows that an injunction will only be
issued restraining a party who is amenable to the jurisdiction of the court, against whom an injunction will be an effective
remedy: see, e.g. In re North Carolina Estate Co Ltd (1889) 5 TLR 328, per Chitty J. Fourth, it has been emphasised on many
occasions that, since such an order indirectly affects the foreign court, the jurisdiction is one which must be exercised with
caution: see e.g., Cohen v Rothfield [1919] 1 KB 410, 413, per Scrutton LJ, and, in more recent times, Castanho v Brown & Root (UK)
Ltd [1981] AC 557, 573, per Lord Scarman ...
[emphasis added in bold italics]”
39 In Djoni Widjaja, LP Thean JA in delivering the judgment of the court explained at [15]:
“Applying the principles here, if in this case the court in Singapore is the natural forum for the determination of the dispute, an
injunction should only be granted if the pursuit of the proceedings
by the respondent in Indonesia would be vexatious or oppressive and, in this connection, account must be taken of any injustice
to the appellants if the respondent was allowed to pursue those proceedings and also of any injustice to the respondent if he was
not allowed to do so.”
40 The law as explained requires that in deciding whether an injunction would serve the ends of justice, the court should consider
whether the Swedish proceedings are vexatious or oppressive, and the court should also consider the impact the court’s decision will
have on each of the parties.
[14.4.3] Kan J ruled that the wife had failed to satisfy the first principle, i.e. that the ends of justice required an anti-suit injunction to be
issued. The court found that the husband would suffer real prejudice if he was prohibited from carrying on further with the Swedish
proceedings which had progressed to a stage where he could apply for the divorce decree. In coming to this finding, the court took into
account the fact that the wife had allowed the Swedish proceedings to reach an advanced stage before she applied for the injunction.
Although the marriage would not be dissolved on the grounds sought by the wife, this was insufficient to constitute an injustice against
her because the husband was seeking a divorce in Sweden which he was entitled to, the breakdown of the marriage was not attributed to
her, and she could still advance and protect the interests of herself and her children in the Swedish courts.
B. Interim Injunctions in General

[14.4.4] A party may apply for an interlocutory or interim injunction for the detention, preservation or custody of any property which is
the subject-matter of the action, or as to which any question may arise or for inspection of any property in the possession of a party to the
action. This is generally applied for before or at the time of commencement of proceedings or during the proceedings but before trial. The
interlocutory injunction is a temporary order of the court which operates until a fixed date for trial.
[14.4.5] The interlocutory injunction may be applied for on an ex parte basis in cases of urgency. However, the Supreme Court Practice
Directions 2013, Part IV PD 41, following the cases of Castle Fitness Consultancy Pte Ltd v Manz 35 and The Nagasaki Spirit (No 1), 36 directs
that the applicant for the ex parte injunction ought to invite the opponent to attend at the hearing of the ex parte application. Notice of the
ex parteapplication must thus be given to the concerned parties prior to the hearing of the application. Notice may be given by way of
facsimile transmission or telex, or, in cases of extreme urgency, orally by telephone. Except in cases of extreme urgency or with the leave
of the court, the party shall give a minimum of two hours’ notice to the other parties before the hearing. The notice should inform the
other parties of the date, time and place fixed for the hearing of the application and the nature of the relief sought. If possible, a copy of
the originating process, the ex parte summons and supporting affidavit(s) should be given to each of the other parties in draft form as
soon as they are ready to be filed in court. At the hearing of the ex parte application, in the event that some or all of the other parties are
not present or represented, the applicant’s solicitors should inform the court of: (a) the attempts that were made to notify the other
parties or their solicitors of the making of the application; (b) what documents were given to the other parties or their solicitors and when
these documents were given; and (c) whether the other parties or their solicitors consent to the application being heard without their
presence. It is also provided in the Supreme Court Practice Directions that directions as to notice need not be followed if by giving such
notice, this would or might defeat the purpose of the application. The reasons for not following the directions should be clearly set out in
the affidavit prepared in support of the ex parte application.
[14.4.6] When a court grants an interlocutory injunction on an ex parte basis, this is usually for a short period as the same was granted
without the opponent having an opportunity to be heard and therefore, will be afforded the opportunity to be heard and to contest the
application for an injunction at the earliest opportunity. The applicant is expected to give an undertaking as to damages.
[14.4.7] The principles which determine whether the court will grant an interlocutory injunction are taken from American Cyanamid Co
v Ethicon Ltd (“American Cyanamid”). 37 The Court of Appeal in Reed Exhibitions Pte Ltd v Khoo Yak Chuan Thomas & Anor 38 per LP Thean
JA held that (at [12]) “... in Singapore, it has long been established that in deciding whether to grant an interlocutory injunction, the court
should apply the principles laid down in American Cyanamid. In our judgment, there is no reason why these principles should not be
followed in this case”.
[14.4.8] The cases of Chuan Hong Petrol Station Pte Ltd v Shell Singapore (Pte) Ltd (“Chuan Hong”) 39 and Singapore Press Holdings Ltd v
Brown Noel Trading Pte Ltd (“Brown Noel”) 40 adopted the balance of convenience test set out in American Cyanamid. In Challenger
Technologies Ltd v Courts (Singapore) Pte Ltd, 41 the court accepted that the principles in American Cyanamid applied:
13 The ground is well travelled in this area of the law. The principles governing whether an interim injunction should be granted
were laid down by the House of Lords in the leading case of American Cyanamid Company v Ethicon Limited [1975] AC 396
(“American Cyanamid”). The requirements, in brief, are two-fold:
(a) that there is a serious question to be tried; and
(b) that the balance of convenience lies in favour of granting an injunction.
14 I shall now turn to examine whether the requirements have been satisfied in the instant case.
15 The test laid down in American Cyanamid was whether the claimant had a “real prospect of succeeding in his claim for a
permanent injunction at the trial” (at 408). In other words, the claimant has to show that there is a serious issue to be tried. Lord
Diplock relevantly said at 407:
“The use of such expressions as ‘a probability,’ ‘a prima facie case,’ or ‘a strong prima facie case’ in the context of the exercise
of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this
form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious, in other
words, that there is a serious issue to be tried. [emphasis added]”
16 This limb was expounded upon by AP Rajah J in Hong Kong Vegetable Oil Co Ltd v Wicker [1977–1978] SLR(R) 65 at [15]:
“Principle 1 ‘provided that the court is satisfied that there is a serious question to be tried, there is no rule that the party
seeking an interlocutory injunction must show a prima facie case’. I interpreted this principle to mean that once the court is
satisfied that there is a serious question to be tried then the court is not to follow the previous practice of requiring a plaintiff
to show a prima facie case before granting him an interim injunction. Therefore, in the instant case I was of the view that I
had first to decide whether there is in fact and in law a serious question to be tried and again in my view implicit in ‘a
serious question to be tried’ is the question whether the action is properly conceived and whether all the proper, necessary
and/or interested parties are before the court so that any order made by the court can properly and effectively be
implemented. In my judgment, if these elements or any of them are not present then, because of non-compliance with this
principle alone, the motion should stand dismissed.”
17 The prospects of the plaintiff’s success are to be investigated only to a limited extent: Singapore Civil Procedure 2015 Vol I (GP
Selvam gen ed) (Sweet and Maxwell, 2015) (“Singapore Civil Procedure 2015”) at para 29/1/12. As is clear from the preceding
passages, this is a low threshold and all that has to be seen is whether the plaintiff has prospects of success, which, in substance
and reality, exist.
[14.4.9] In Marubeni International Petroleum (S) Pte Ltd v Projector SA, 42 Belinda Ang J, stated that the principles to be applied were:
10 So as not to be misunderstood, I am not agreeing with Mr Asokan that the interim order should not have been granted because of
the existence of triable issues that have to be fully considered and determined at trial. All cases on interlocutory relief emphasise that
the primary consideration of the court is to find the course that is likely to involve the lower risk of injustice if it turns out to be
“wrong” at the trial. The Court of Appeal in Singapore Press Holdings Ltd v Brown Noel Trading Pte Ltd [1994] 3 SLR(R) 114 reaffirmed
what it said in Chuan Hong Petrol Station Pte Ltd v Shell Singapore (Pte) Ltd [1992] 2 SLR(R) 1 at [89], that the strength of a party’s case
is neither a necessary nor sufficient condition for the grant of an interlocutory mandatory injunction. The existence of triable issues
is a factor to consider when deciding on the course to take. Other factors such as the conduct of the parties and whether damages are
an adequate remedy have to be considered. This “merits” threshold is a guide designed to take into account the fact that the grant of
an interlocutory mandatory injunction may involve a greater risk of injustice if it turns out to have been wrongly granted; and the
fact that the greater the degree of assurance that the plaintiff will succeed, the less the risk of injustice to the defendant. If the court
does not feel assured that the plaintiff will establish its rights at trial, there can still be circumstances when it will be appropriate to
grant an interlocutory mandatory injunction. This will be where the risk of injustice if the interlocutory mandatory injunction is
refused outweighs the injustice if it is granted.
[14.4.10] In TRW Inc v Terus Jaya Auto (S) Pte Ltd, 43 KS Rajah JC stated that:
The purpose of an interlocutory injunction is to maintain the status quo pending trial. The principle in American Cyanamid Co v
Ethicon Ltd [1975]
1 All ER 504 is that an injunction should not be granted unless otherwise damage is likely to be caused which could not be remedied
by money compensation. In a case where the grant of an injunction may result in damages not being uncompensable, the court must
determine the case according to the balance of convenience.
[14.4.11] The Court of Appeal decision in ANB v ANC & Anor and Another Matter 44 also applied the principles set out in American
Cyanamid in granting an interlocutory injunction.
[14.4.12] The principles set out in American Cyanamid do not apply when the grant of an interlocutory injunction effectively disposes of
the proceedings. In NWL Ltd v Woods, 45 Lord Diplock clarified that an evaluation of the relative strengths of the parties’ cases is
appropriate where the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action. He
said at page 625:
... In assessing whether what is compendiously called the balance of convenience lies in granting or refusing interlocutory
injunctions in actions between parties of undoubted solvency the judge is engaged in weighing the respective risks that injustice may
result from his deciding one way rather than the other at a stage when the evidence is incomplete. On the one hand there is the risk
that if the interlocutory injunction is refused but the plaintiff succeeds in establishing at the trial his legal right for the protection of
which the injunction had been sought he may in the meantime have suffered harm and inconvenience for which an award of money
can provide no adequate recompense. On the other hand there is the risk that if the interlocutory injunction is granted but the
plaintiff fails at the trial the defendant may in the meantime have suffered harm and inconvenience which is similarly
irrecompensable. The nature and degree of harm and inconvenience that are likely to be sustained in these two events by the
defendant and the plaintiff respectively in consequence of the grant or the refusal of the injunction are generally sufficiently
disproportionate to bring down, by themselves, the balance on one side or the other; and this is what I understand to be the thrust of
the decision of this House in American Cyanamid Co v Ethicon Ltd. Where, however, the grant or refusal of the interlocutory
injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the
losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the
degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is
a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application
one way rather than the other.
C. Injunctive Relief Where Children are Concerned

[14.4.13] Interlocutory injunctions may be applied to restrain a child from being taken out of Singapore. The power to do so by the court
is expressly provided for in section 131 of the Charter. The power of the court to do so may be invoked provided the following are
satisfied:
1. That an application is made;

2. Where there are matrimonial proceedings which are pending; or
3. Where there is an agreement in place or an order of court vesting custody or care and control of the child or children to one
parent to the exclusion of the other parent.
[14.4.14] The court’s powers to grant an injunction extends also to any person other than a person who has care and control of the child.
46
[14.4.15] An order that the children be returned to the place of their habitual residence may be made pursuant to section 8 of the
International Child Abduction Act (Cap 143C) which was enacted to give effect to the Convention on the Civil Aspects of International
Child Abduction. In the words of Andrew Phang JA in BDU v BDT, 47 the purport of the Convention was:
26 Put simply, the court of the country to which the child has been brought (in this case, Singapore) is – pursuant to the Hague
Convention – concerned only with the return of the child concerned to his or her country of habitual residence from which he or she
was first abducted, subject only to the limited exceptions set out in, inter alia, Art 13 of that Convention. It is not concerned with the
substantive merits relating to the relevant issues of custody and/or care and control between the parents concerned (still less is it a
Convention for the reciprocal recognition and enforcement of foreign custody orders (see David McClean, The Hague Convention on
the Civil Aspects of International Child Abduction – Explanatory Documentation prepared for Commonwealth Jurisdictions
(Commonwealth Secretariat, London, 1997) (“McClean”) at p 6). Indeed, this point is made clear beyond peradventure by Art 19 of the
Hague Convention, which reads as follows:
“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of
any custody issue. [emphasis added in bold italics]”
[14.4.16] In general, for cases on this, see BDU v BDT, 48 TKI v TKJ, 49 TOG v TOH, 50 AB v AC and Another Application, 51 TDX v TDY, 52 TBI
v TBJ. 53
[14.4.17] Interlocutory injunctions have also been applied for and ordered for the return of the child’s or children’s passports, for access
to take place and access arrangements. 54
FOOTNOTES
1 [1989] 2 SLR(R) 445.
2 [1996] 3 SLR(R) 812.
3
[1975] 2 Lloyd’s Rep 509.
4 See Bank Mellat v Nikpour [1985] FSR 87 at 92per Donaldson LJ.
5 [1981–1982] SLR(R) 633.
6
See Third Chandris Shipping Corp v Unimarine SA [1979] QB 645.
7
See Bahtera Offshore (M) Sdn Bhd v Sim Kok Beng & Anor [2009] 4 SLR(R) 365; Rasu Maritima SA v Perusahaan (Pertamina) [1978] QB 644.
8 [1983] 2 Lloyd’s Rep 600 at 605per Mustill J.
9 [2003] 1 SLR(R) 157 at [18]per Chao Hick Tin JA.
10 Taken from Steven Gee, Mareva Injunctions and Anton Piller Relief, 4th edn (1998).
11 [2003] 1 SLR(R) 157.

12
See Z v A-Z [1982] QB 558.
13
Allen v Jambo Holdings Ltd [1980] 1 WLR 1252.
14
Stockler v Fourways Estate Ltd [1983] 3 All ER 501.
15 Darashah v UFAC (UK) Ltd (1982) 79 LSG 678.
16
CBS v Lambert [1983] Ch 37.
17 See Nippon Yusen Kaisha v Karageorgis [1975] 1 WLR 1093 at 1095per Lord Denning MR; Ashtiani v Kashi [1987] QB 888 at 899F–899G and 900G–902Bper Dillon
LJ; Babanaft International Co SA v Bassatne [1990] Ch 13; Republic of Haiti v Duvalier [1990] 1 QB 202; and Derby & Co Ltd v Weldon (No 1) [1990] Ch
48.
18 [1988] 2 SLR(R) 520.
19 [1999] 3 SLR(R) 410.
20 [1992] 1 SLR(R) 347.
21 [2011] SGHC 91.
22
[1992] 2 All ER 920.
23 [2016] 1 SLR 1218.
24
[1976] Ch 55.
25 Ibid.
26
[1989] 1 WLR 1268.
27 [2006] 1 SLR(R) 901.
28
[1982] 1 WLR 669.
29 [1991] 2 SLR(R) 379.
30
[1981] FSR 289.
31
[1987] Ch 38; [1986] 3 All ER 338.
32 See Computerland Corp v Yew Seng Computers Pte Ltd [1991] 2 SLR(R) 379per LP Thean JA.
33 [2015] 2 SLR 523.
34 [2008] 1 SLR(R) 742.
35 [1989] 2 SLR(R) 308.
36 [1993] 3 SLR(R) 878.
37
[1975] AC 396.
38 [1995] 3 SLR(R) 383.
39 [1992] 2 SLR(R) 1.
40 [1994] 3 SLR(R) 114.

41 [2015] 5 SLR 679 15per George Wei J.
42 [2004] 4 SLR(R) 233.
43 [1992] SGHC 318.
44 [2015] 5 SLR 522.
45
[1979] 3 All ER 614.
47 [2014] 2 SLR 725.
48 [2014] 2 SLR 725.
49 [2016] SGFC 13.
50 [2016] SGFC 60.
51 [2004] SGDC 6.
52 [2015] 4 SLR 982.
53 [2014] SGDC 127.
54 See TFW v TFX [2014] SGDC 329; BF v BG [2004] SGDC 115.

2016 - 10 - 17 PAGE 439

Chapter 15: Costs
Chapter 15
Costs
Anamah Tan

15.2 “Costs Follow the Event” 440
15.3 A Brief Look into the Family Justice Rules 2014 Relating to Costs 449
15.4 Costs at a Glance 457
A. Fixed Costs 458
B. Two Bases on which Costs May be Taxed 458
15.1 INTRODUCTION
[15.1.1] This chapter on costs is divided into two parts—the first is a commentary on the fundamental principle of whether in a
matrimonial matter the successful litigant ought to be compensated for his or her legal costs, and that encompasses an examination of
emerging trends from decided cases. The second part comprises a brief look at the rules relating to costs under the Family Justice Rules
2014 which came into effect on February 1, 2015. At the end of this chapter, there is a table showing the different types of costs and
their effect.
15.2 “COSTS FOLLOW THE EVENT”
[15.2.1] The underlying principle behind the principle that “costs follow the event” is the cost-shifting rule which posits that the litigant
who is successful ought to be indemnified by the party that has lost, for compensation of the legal costs incurred on his or her part. 1
This means that the costs of an action are usually awarded to the successful litigant. Despite this, it has been repeatedly stated in case
law that any award of costs is at the discretion of the court. In a recent case of JBB v JBA, 2 Debbie Ong JC considered the general
principle and further discussed if costs should follow the event with regards to matrimonial proceedings.
[15.2.2] Choo Han Teck J pointed out in BMG v BMH that the principle that “costs should follow the event” is in itself “wholly
misleading” given that it is often reiterated that a matter of costs should first be “at the discretion of the court”. 3 The dominant concern
is to ensure that the “fairest allocation” of costs is achieved. 4 In determining costs, the court may depart from the general costs principle
under rule 852(2) of the Family Justice Rules 2014 and exercise its discretion according to considerations such as the “conduct of the
parties before and during the proceedings”, 5 whether parties comply with relevant pre-action protocols, 6 costs incurred unnecessarily
7 and proceedings as a result of misconduct 8 (see rules 854, 856 and 857 of the Family Justice Rules 2014 respectively).
[15.2.3] This section will examine the principles laid down by Debbie Ong JC in light of the cost provisions under the newly enacted
Family Justice Rules 2014 as well as court decisions in earlier cases. It will go on to compare Singapore’s approach with that of other
jurisdictions, such as Hong Kong and England.
[15.2.4] A Brief Introduction of the Facts of JBB v JBA. The wife commenced divorce proceedings based on the fact that the parties
had lived apart for four years immediately preceding the filing of the writ. This was challenged by the husband. She then amended her
writ to rely on the fact that he behaved in such a way that she could not be reasonably expected to live with him. The husband then
filed a defence to contest the wife’s case. The district judge then granted an interim judgment of divorce and ordered that both parties
bear their own costs. 9
[15.2.5] The husband had appealed against the interim judgment of the divorce and the wife asked for appeal costs arguing that costs
should follow the event. The husband’s appeal against the divorce judgment was dismissed and he was ordered to pay costs of the
appeal fixed at $2,000, inclusive of disbursements, to the wife. The district judge’s order on costs was not disturbed. 10
[15.2.6] The Current System. Firstly a question of who has won or lost the case is difficult to distinguish in divorce and ancillary
matters. 11 Take for instance the uncontested divorce – it is arguable that the current rule is flawed where there are uncontested
proceedings and divorce is granted. The defendant’s conduct is not reprehensible and he or she did not contest the divorce to save costs
but lost out to the plaintiff who filed for the divorce. In such cases, would it be fair to “punish” the defendant for the costs that he or she
was not willing to incur in the first place?
[15.2.7] Secondly, in the scenario of the “no-fault” divorce regime, fault on any one of the parties is irrelevant to granting the divorce
and the idea of there being a “winner” and “loser” is not supported. As per JBB v JBA, highlighting the fault of one party as a “significant
consideration” in awarding costs does not “sit well” with the no-fault regime.
[15.2.8] Minimise Acrimony and Bitterness. In the case of Chen Siew Hwee v Low Kee Guan, Andrew Phang JA opposed the general
principle and opined that while the ancillary matters are a continuation of the petition, in reality the hearing of ancillary matters are “a
discrete set of proceedings” which should not always lead to awarding costs to one party. 12 Therefore, a party who has obtained a
divorce judgment and has been awarded costs for divorce proceedings should not automatically assume that the same costs will be
awarded for ancillary matters.
[15.2.9] An important consideration is the need to minimise acrimony and unhappiness between parties as per BNH v BNI, where no
costs were ordered for the hearing of ancillary matters so as not to prolong the bitterness and the sheer burden of the litigation and to
ensure the parties would move on with their lives. 13
[15.2.10] Interests of Children. In the case of appeals, while it is clear which party has succeeded, it can be argued that costs should
not always be awarded to one party because this will only fuel feelings of animosity and bitterness between parties. 14 As seen in the
case of BNS v BNT, in providing his reasoning for making no order as to costs, Phang JA reiterated that both parties ought to focus their
attention on the welfare of their children and to ensure that their children’s interests are of utmost importance. 15 Both parties should
look to cooperate in parenting their children well after the proceedings are concluded. Ultimately, it is up to the court to exercise its
discretion as to how much it wants to depart from the general rule.
[15.2.11] Commentary. In other words, costs follow the event because a successful party has to institute proceedings in order to obtain
what he or she feels he or she already deserves and since the other party insists on conducting litigation, it is only reasonable that the
other party bears the costs that were unnecessarily incurred. However, the fact that there is a presupposed “winner” and “loser” is in
itself flawed. While this is the case for civil proceedings, it cannot be upheld to the same degree in matrimonial proceedings. Labelling
two parties as either a winner or loser is not as clear and will only exacerbate the existing bitterness which may be detrimental to
parties who are struggling to work together to parent their children. 16
[15.2.12] Often, matrimonial matters are “seldom black and white” but are up to the courts to exercise discretion in making their
judgments and distinctions. 17 Only where cases have been unnecessarily prolonged or complicated or deliberately concealing should it
then be appropriate to order costs. 18 The nature of matrimonial proceedings is one that involves children who can be emotionally
affected when they are exposed to the bitter nature of divorce proceedings. This is what distinguishes such proceedings from
commercial disputes. As per Omrod J in Povey v Povey, “the work in (family) division is more often an essay in shades of grey than in
black and white”. 19 Parties will still continue to serve their duties as parents and in most cases, the wife continues to rely on her
husband for maintenance. 20
[15.2.13] It is perhaps arguable that only in extreme cases should the granting of costs be allowed. As seen in the case of Tham Khai
Meng v Nam Wen Jet Bernadette, the marriage had irretrievably broken down on the grounds of adultery committed by the husband
but the court made no order as to costs at the conclusion of the hearing of ancillary matters. 21 The High Court decided that the wife
ought to be entitled to costs, reasoning that the ancillary hearing is “part or continuation” of the hearing of the petition. 22 Furthermore,
it followed that where a party was awarded costs at the hearing of the petition, the same order of costs should follow at hearing of
ancillaries unless there is unreasonable behaviour on the part of the party whom costs were awarded to. 23
[15.2.14] Similarly, in exceptional cases like that of Cheung Kam Yi Betty v Lin Tsun Kie, while Judith Prakash J (as she then was)
restated that costs are not generally ordered in matrimonial cases, in this case, the wife had to employ a private investigator to prove
her husband’s adultery and should therefore be entitled to be compensated. 24 Furthermore, the husband refused to participate on the
assumption that proceedings would not go through if he was not involved. As such, the exceptional facts of the case justified a
departure as the wife incurred far more costs than one would ordinarily incur.
[15.2.15] In the case of Shi Fang v Koh Pee Huat, 25 the husband’s desertion was allowed as a ground for the irretrievable breakdown of
the marriage and why the wife was granted a decree nisi and the Court of Appeal entitling her to full costs of the divorce petition.
[15.2.16] Furthermore, the notion of a “cost-shifting rule” whereby the losing party pays costs to the winning party will only be
counterproductive if parties have to dip into the pool of matrimonial assets to be divided between the parties. This amount could be
used elsewhere, such as for the purposes of the children’s education and welfare. Ordering costs will only further alter the proportions
of the asset pool.
[15.2.17] Increasing Shift Towards Use of Mediation and Away From Adversarial Litigation. Having discussed the need to
minimise acrimony and bitterness among parties as well as taking into account the interests of children, it must be noted that
Singapore has increasingly adopted the facilitative nature of mediation to help resolve family law disputes. The facilitative nature of
mediation is seen in the fact that the mediator creates a “conducive” environment for communication between the parties. 26
Counselling is undertaken by court mental health professionals who help parties gain insights into how to strengthen their relationship.
It helps parties reach a common understanding as to the developmental needs of the child and ensures smooth co-parenting after a
divorce. 27 Mediation is a mechanism used by parties to openly interact with one another and explore options through the help of a
neutral third party, usually a specially appointed judge or legal professional. 28 In cases where children are involved, parties will have
to undergo their mediation and counselling at the Child Focused Resolution Centre (“CFRC”) and all other cases at the Family Resolution
Chambers (“FRC”). 29 Since its inception in 2012, the CFRC has seen over 1,780 cases and resolved 95% of them. 30 Therefore, rather than
having to undergo adversarial court trials that “only involve more filing of affidavits and lengthy investigations”, disputes are settled
through “custody evaluation or social welfare reports”. 31
[15.2.18] As said by Sundaresh Menon CJ, the Family Justice Courts (“FJC”) and “related laws” are increasingly moving away from an
“adversarial litigation process” towards a “softer approach” which uses dispute resolution. 32 This shift has led to “greater integration”
between the courts, legal process and the broader family justice ecosystem. 33 This new approach of the FJC has also given rise to
positive changes. The introduction of Child Representatives last year helped heighten the focus on the interests of children in divorce
proceedings. 34 The FJC will order the appointment of a Child Representative where there are actions pertaining to the custody or
welfare of the child. 35 Parties may also request for the appointment of a Child Representative but they will have to explain their case
(as the appointment has to be allowed by the court) and bear the costs of appointing one. 36 Unless parties are under legal aid, they will
have to remunerate the Child Representative. 37 The starting costs are fixed at $700 and the Child Representative can apply to court for
more costs to be paid but this is dependent on the complexity of the case and if there is a lot of work to do. 38 Another example of a
positive change would be the judge-led litigation process for child and complex cases. This is where one judge handles a matrimonial
case from the beginning to its end to be able to come up with the better solution for parties given his or her full understanding of the
facts of the case. 39
[15.2.19] In citing reasons as to why alternative dispute resolution (“ADR”) is important, the Singapore government has cited that it
provides a less costly and a less adversarial method of dispute resolution to suit various conflicts. 40 It also helps courts in reducing the
litigation and cases handled by judges. 41 Furthermore, it helps maintain an “Asian way of life” in fostering a culture of settling disputes
harmoniously. 42 It is important to note that family law deals not only with legal rights and obligations but a delicate balance of
personal emotions, childcare issues and social stigma; problems which are continuous and “interdependent”. 43 The effectiveness can
be seen in that there has been a success rate where more than 85% of the 5,425 cases heard by the Family Court in 1995 were resolved
through mediation since the Family Court was set up in March 1996. 44
[15.2.20] The Position in Other Jurisdictions. As with Singapore, the courts in Hong Kong also apply the rule that “costs follow the
event”. They will also note the misconduct of parties and will order parties to pay costs where they have unnecessarily incurred costs or
caused delays in proceedings. 45 In Hong Kong, there was a significant change in the Civil Justice Reform seen in the introduction of the
summary assessment and provisional summary assessment of costs to make an order payment of a sum of money in respect to the
costs instead of ordering fixed costs. 46 Courts in Hong Kong also look at a case on all its facts and merits and will not award costs by
reference to the success of each issue raised by a party and the time spent dealing with it. 47 In the case of Z v X, it was affirmed that in
ancillary relief, there is a general application that costs should follow the event. 48 In TPL v WYY, the husband was ordered to pay costs
of and incidental to the custody application to the mother as it was found that he had been pursuing unfounded and speculative
allegations of coaching/parental alienation against the mother. 49
[15.2.21] It was stated in the Hong Kong Final Report that the principle that “costs follow the event” as the “starting point” on costs on
matrimonial and family proceedings should be “retained”. 50 The view in the Hong Kong jurisdiction is that such a principle will have
the benefit of providing the court with a “sufficiently wide discretion” on costs “in order to achieve justice and fairness between the
parties”. 51 Furthermore, it is also opposed to the UK system that there should be “no order as to costs” as such an order would have
“significant ramifications” on the landscape of matrimonial and family litigation. 52 It was further expressed that changing the law to
one that is contrary to the “costs to follow the event” would be a change of the “substantive law” but is in support of the current practice
of “Calderbank” letters and giving family judges the discretion in respect of costs. 53
[15.2.22] The general rule in Hong Kong is different from the English position whereby as mentioned earlier, no order is made for costs
to be made by one party, unless the court considers that the litigation conduct of a party justifies a cost order being made. In the case of
F v F (No 2), 54 the wife, being the successful party in ancillary relief proceedings, claimed for costs. However, her husband argued
against this on the basis that she had unnecessarily protracted the trial. Hartmann J rejected his argument and awarded costs to the
wife on the basis that she did not conduct the trial in an unreasonable manner and in pursuing her case, had no choice but to rely on “a
broad range of assertions”. 55 He further explained that just because an issue advanced in “one part” has not found favour with the
court does not mean it is not necessary in assisting the court in considering the overall strength of a case. 56 The issues brought up by
her were found to be relevant and “respectably capable of argument against the complex, multi-faceted history of how the parties came
together, lived their married life and separated” which helped the court in understanding the matter and exercising its discretion. 57
[15.2.23] With regard to children, the English court retains a wide discretion to ensure that appropriate costs orders are made. Courts
take the viewpoint that the child is the only winner and try not to cast one party as successful and the other as an unsuccessful party
obliged to pay the successful party. 58 The Court of Appeal in Re R (Minor) (Legal Aid: Costs) 59 held that an order of costs may diminish
the funds that were made available to meet the needs of the family and thus no costs should be allowed. Further, it must be noted that
an order for costs will only “pour salt on the wound” of the unsuccessful party and only lead to greater animosity between the parties.
60
[15.2.24] It must be noted that in English courts, though an application is hopeless, it may not be unreasonable as the two are not
“necessarily synonymous”. 61 In the case of Re G (Child) (Costs: Child Case), 62 a cost order was appropriate when a parent or litigant
goes “beyond the limit of what is reasonable to pursue the application”. In Hong Kong, the court departed from the usual no order as to
costs and ordered the husband to pay costs of the custody proceedings in the case of C v H. 63 In that case, the judge found the husband’s
application for care, custody and control so “hopeless” that it should not have even been brought up in the first place. 64 In this case, the
children were not so young; they were aged 13 and 17 years old so their views were taken very seriously by the court. 65 Both children
had been taken care of by their maternal side since young and both expressed their desires to live with their mother. While the
husband was granted interim access, he had never once made use of it nor communicated with his children. 66 As such, the facts of the
case made it clear that he should have had the knowledge that the case was hopeless and his insistence on pursuing the case led to
unreasonable litigation. 67
[15.2.25] In England, costs may also be ordered if parties refuse to pursue mediation. In the case of FHY v GJS, the court found that both
parties had a duty to pursue mediation or negotiation via their solicitors in order to resolve their differences and avoid the costly trial.
68 It was found that both parties did not try hard enough to ensure they reached a settlement and had to pay costs. 69 In simple terms,
the courts in England will not order a party to pay costs if doing so will “reduce” the overall level of financial provision. The paying
party has to bear the imbalance in the cost/risk ratio because it allows the receiving party to conduct itself in litigation. It is therefore
unjust that cost orders are made due to the circumstances of the party and not because of the conduct of the litigant. 70 There may also
be circumstances where the total cost liabilities are taken out from the “limited net financial resources” prior to the division of assets on
the basis of financial needs. 71 Some parties may have done everything they can to “narrow the issues” by making reasonable offers to
settle but will still end up contributing to costs from “capital” that could have been used to meet the parties’ needs.
[15.2.26] The principles set out by Debbie Ong JC in JBB v JBA earlier in awarding costs in the hearing of ancillaries are similar to those
of the UK. In the UK, the Family Proceedings (Amendment) Rules 2006 ushered in an unambiguous general rule that the court should
make no order for costs in ancillary relief proceedings unless there has been “unreasonable conduct”. 72 As opposed to making cost
orders, the court is to include consideration of costs in the overall settlement of the parties’ affairs. By factoring the litigation costs
incurred into the distribution of matrimonial assets, the issue of costs as an area of conflict is removed together with its “destabilising
effect” on financial settlements that the court would have carefully constructed. 73 The general costs principle continues to apply to the
determination of costs in Singapore’s ancillary relief proceedings unless it appears to the court that another order should be made. 74 It
can be said that the UK’s position that no cost orders be made unless the converse has been proven has been deemed as “ineffectual” in
helping to curb and punish parties who adopt a slow and unproductive approach to litigation. 75 As a result, due to the lowered
likelihood of adverse cost orders, it can be said that parties will have no incentive to resolve ancillary matters. 76
15.3 A BRIEF LOOK INTO THE FAMILY JUSTICE RULES 2014 RELATING TO COSTS
[15.3.1] Under rule 850 of the Family Justice Rules 2014, “costs” include fees, charges, disbursements, expenses and remuneration.
[15.3.2] Pursuant to rule 851 of the Family Justice Rules 2014, 77 if the costs of any proceedings not being proceedings in the Family
Division of the High Court, are taxable in the Family Division of the High Court, Division 63 shall have effect in relation to proceedings
for taxation of those costs as it has effect in relation to proceedings for taxation of the costs of or arising out of proceedings in that
court.
[15.3.3] Subject to the express provisions of any written law and of the Family Justice Rules 2014, the costs of and incidental to
proceedings in the FJC, including the administration of estates and trusts, shall be in the discretion of the court, and the court has full
power to determine by whom and to what extent the costs are to be paid.
[15.3.4] Costs to Follow the Event. In family proceedings, if the court sees it fit in its discretion to make any order as to costs, it will
order that costs follow the event except when it appears to the court that in the circumstances of the case a different order should be
made. 78
[15.3.5] An order that costs follow the event would apply, inter alia, to the costs of any amendment made without leave, the costs of any
application to extend the time fixed by the Family Justice Rules 2014 per serving or filing any document, the costs of proving facts when
a party on whom a notice to admit facts is served and refuses or neglects to admit the facts within 14 days and the costs of
discontinuing a counterclaim.
[15.3.6] The general rule is that costs should follow the event save where there are exceptional circumstances to deprive a litigant of
costs. 79 This is also the case for civil proceedings as evidenced by Order 59 rule 3 of the Rules of Court.
[15.3.7] The rule is stricter for civil proceedings where the court must “justify” its findings if it is to depart from the rule as seen in
Aurol Anthony, 80 where a successful appellant was deprived of his costs because of his “reprehensible” disregard for the court. Order
59 rule 3(2) deals with the “manner” in which the court’s discretion to order costs is to be exercised. The judge is to award costs unless it
is evident that the defendant had “brought about litigation”, did something to “occasion unnecessary litigation” and did a “wrongful act
in the course of transaction” which the plaintiff has complained of. 81
[15.3.8] Stage of Proceedings At Which Costs are to be Dealt With. In family proceedings, the courts may deal with costs at any stage
of the proceedings or after following the conclusion of the proceedings. 82 In the event of an appeal, the court hearing the appeal may
deal with costs. In the event that proceedings have been “transferred or removed to the Family Division of the High Court”, 83 the
Family Division of the High Court will deal with costs of the whole proceedings, both before and after the transfer or removal.
[15.3.9] Special Matters Have to be Taken into Account in Exercising Discretion. Under rule 854 of the Family Justice Rules 2014,
when exercising its discretion as to costs, the court must consider payment made into the court, the conduct of all parties, prior to and
during the proceedings, the conduct of the parties in relation to any attempt at resolving the matter by mediation or other means of
dispute resolution and whether the parties have followed any pre-action protocol or practice directions. 84
[15.3.10] Costs Due to Unnecessary Claims or Issues. Under rule 856 of the Family Justice Rules 2014, where a party has failed to
establish any claim or issue he or she has raised in proceedings, and has therefore protracted or added to the costs or complexity of
those proceedings, the court may order that costs of that party shall not be allowed or that any costs resulting from that claim by any
other party shall be paid by him or her to the other party. 85
[15.3.11] Costs Arising From Misconduct or Neglect. Under rule 857 of the Family Justice Rules 2014, where it appears to the court in
any proceedings that anything has been done or any omission has been made unreasonably or improperly by any party, the court may
order that costs of that party in respect of that act or omission not be allowed or order the other party costs. 86 This refers to situations
where one party conducts proceedings in a manner that leads to unnecessary costs or causes delay. 87 The court may direct the
Registrar to inquire into the act or omission and the Registrar’s powers are stipulated under rule 857 of the Family Justice Rules 2014.
[15.3.12] Costs of Taxation Proceedings. Pursuant to rule 858 of the Family Justice Rules 2014, the party whose bill is being taxed is
entitled to his or her costs of the taxation proceedings. The party liable to pay the costs of the proceedings may make “a written offer” to
pay a specific sum in satisfaction of those costs at any time before the expiration of seven days after the delivery to him or her of a copy
of the bill of costs. Where a written offer is made, the fact that it has been made must not be communicated to the Registrar until the
question of the costs of the taxation proceedings falls to be decided. The Registrar may take into account any offer made which has
been brought to his or her attention.
[15.3.13] Personal Liability of Solicitor For Costs. Subject to rule 859 of the Family Justice Rules 2014, where the court considers that
costs were “unreasonably” or “improperly” incurred in any proceedings or were wasted by the failure to conduct proceedings with
reasonable competence and expedition, the court may make against any solicitor whom it considers to be responsible a number of
orders. These include, inter alia, disallowing the costs between solicitor and client, directing the solicitor to reimburse the client costs
which the client was ordered to pay to other parties and directing the solicitor to “indemnify” other parties for the costs that are
payable by them. 88 No order shall be made against a solicitor unless he or she has been given a reasonable opportunity to appear
before the court to show cause as to why the order should not be made.
[15.3.14] Signing a Judgment For Costs Without Order. In family proceedings where a plaintiff has chosen to discontinue his or her
action or has withdrawn any particular claim, the defendant may “tax his costs of action, cause or matter” and if taxed costs are not
paid within four days after taxation, may sign judgment for them. 89
[15.3.15] Under rule 861(5) of the Family Justice Rules 2014:
(5) When an appeal is deemed to have been withdrawn under Division 59 of this Part —
(a) the respondent may —
(i) tax his costs of and incidental to the appeal; and
(ii) if the taxed costs are not paid within 4 days after taxation, sign judgment for them; and
(b) any sum of money lodged in Court as security for the costs of the appeal shall —
(i) be paid out to the respondent towards satisfaction of the judgment for taxed costs without an order of the Court;
and
(ii) the balance, if any, be paid to the appellant.
[15.3.16] Power of Registrar to Tax Costs. The Registrar of the FJC shall have the power to tax costs in instances:
(a) Where the costs of or costs arising out of any cause or matter is in the FJC;
(b) Where costs was directed by an award made on reference to arbitration under any written law;
(c) Where costs was directed by an order of court to be taxed; and
(d) Where costs was directed to be taxed or settled by or under any written law. 90
[15.3.17] Supplementary Power of Registrar. In discharging his or her function with regard to taxation costs, the Registrar will have
to consider four things. Firstly, he or she will have to take an account of any dealings in money related to the payment of costs being
taxed if the court directs. Secondly, the Registrar may require any party represented “jointly” with any other party before him or her to
be represented separately. Thirdly, the Registrar may examine any witness in those proceedings. Lastly, he or she may direct the
production of any document which may be relevant to the proceedings.
[15.3.18] Extension of Time. Under rule 856 of the Family Justice Rules 2014, the Registrar may, inter alia, “extend” the period within
which a party is required to start proceedings for taxation or do anything in connection with proceedings before him or her.
[15.3.19] Interim Certificates. A Registrar can in the course of taxation of any costs by him or her issue an interim certificate for any
part of those costs which have been taxed. In the taxation of a solicitor’s bill to his or her own client, if it appears to the Registrar that
the solicitor is “liable in connection” with the bill to pay money to the client, then he or she may “issue an interim certificate” that sets
out the amount that he or she thinks the solicitor should pay to his or her client. 91
[15.3.20] Party Liable to be Paid and to Pay Costs. When a party is both entitled to and liable to pay costs, the Registrar can tax the
costs which the party is liable and set it off against the amount he or she should be paid or he or she can “delay” issuing the certificate
for costs the party is entitled to until he or she has paid up what he or she is liable for. 92
[15.3.21] Taxation of Bill of Costs Comprised in Account. The court may direct the Registrar to tax a bill of costs comprised in an
account. 93 The Registrar must tax the costs in accordance with the direction and return the taxed bill of costs to the court.
[15.3.22] Compensatory Costs For Litigants in Person. In cases of taxation of the costs of a litigant in person, costs ought to
“reasonably compensate” the litigant for his or her time spent, together with the expenses that he or she “reasonably incurred”. 94
[15.3.23] Costs For More Than Two Solicitors. Costs for getting up the case and attendance in court of more than two solicitors for a
party will not be allowed unless the court has so certified at the hearing or upon an application made by that party within a month
after the date of judgment or order and provided the court is satisfied that the use of two solicitors is reasonable.
[15.3.24] Notification of Time Appointed For Taxation. Where taxation proceedings have been duly begun in accordance with rule
872 of the Family Justice Rules 2014, the Registrar must give to the party beginning the proceedings not less than 14 days’ notice of the
date and time appointed for taxation. 95
[15.3.25] Delivery of Bills. A party whose costs are to be taxed in any taxation proceedings must, within two days after receiving a
notice of the date and time under rule 873 of the Family Justice Rules 2014, send a copy of his or her bill of costs to every other party
entitled to be heard in the proceedings. There is no need for notice to be given to a party who has not entered an appearance or taken
part in the proceedings. This does not apply where the order for the taxation of a solicitor’s bill of costs made under the Legal
Profession Act (Cap 161) at the instance of the solicitor, gave rise to the taxation proceedings.
[15.3.26] Provisions as to Taxation Proceedings. If within a reasonable time, a party entitled to be heard in taxation proceedings does
not attend, the Registrar if satisfied by affidavit or otherwise may proceed with the taxation. He or she may also adjourn those
proceedings if he or she deems it “necessary” to do so. 96
[15.3.27] Powers of Registrar Taxing Costs Payable Out of Fund. In cases where costs are to be paid out of a fund, the Registrar may
provide directions as to the parties who are to attend on the taxation of costs and disallow the attendance of any party not entitled to
attend by virtue of the court’s directions or where the Registrar deems it unnecessary. 97 Provisions are also made for solicitors’ bill by
costs under rule 877(2)(a)–(d) of the Family Justice Rules 2014.
[15.3.28] Basis of Taxation. The amount of costs which any party is entitled to recover is the amount that is allowed after taxation on
the standard basis where (i) an order is made that one party pays the costs of another party’s proceedings, (ii) an order is made for
payment of costs “out of any fund”, or (iii) no order of costs is required save where it appears to the court to order that costs be “taxed
on the indemnity basis”. 98
[15.3.29] On taxation of costs on a “standard” basis, a reasonable amount in respect of all costs “reasonably incurred” will be allowed.
Whether costs were incurred reasonably or were reasonable in amount will be resolved in favour of the party who is paying. 99
Taxation of costs on an “indemnity” basis is where the court makes an order without indicating the basis of taxation, or makes the order
that costs are to be taxed on any other basis that is not standard or indemnity. 100
[15.3.30] On taxation on an indemnity basis, all costs are allowed except insofar as they are unreasonably incurred or of an
unreasonable amount and doubts as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in
favour of the receiving party. Despite the above, if any action is brought in the Family Division of the High Court, the plaintiff is not
entitled to more costs unless the judge certifies that there was official reason to bring the action in the High Court instead of the Family
Court or Youth Court.
[15.3.31] Costs Payable to Solicitor By His or Her Own Client. In such cases, costs will be taxed on an indemnity basis. However, it
will be presumed to have been “reasonably” incurred and reasonable in amount if within the express or implied approval of the client.
101 Costs are unreasonable if unusual in nature and the solicitor did not inform the client that they might not be allowed on taxation.
Delivery of a bill of costs by a solicitor will not prevent the solicitor from presenting a bill for an amount that is larger or otherwise for
taxation where such taxation is ordered by the court or agreed to by the solicitor and client. 102
[15.3.32] Costs Payable to Solicitor Where Money Recovered By or On Behalf of Minor. The costs payable by any plaintiff who is a
minor or a person who “lacks capacity within the meaning of Mental Capacity Act (Cap 177A)” to his solicitor in any proceedings to
which this rule applies shall be taxed under rule 879. 103
[15.3.33] Costs Payable to Trustee Out of Trust Fund. Under rule 881 of the Family Justice Rules 2014, a person who has been a party
to proceedings in the capacity of trustee or personal representative is entitled to be paid out of any fund which he or she holds in that
capacity. 104
[15.3.34] Where this rule applies, costs will be taxed on an “indemnity” basis but will be presumed to have been “unreasonably
incurred” if they were incurred “contrary” to the duty of the trustee or personal representative. 105
[15.3.35] Certificate of Registrar to be Conclusive Unless Set Aside. In cases where the bill of costs has been taxed, the solicitor must
cast up the deductions from the bill which must be checked by the Registrar and he or she must proceed to make his or her certificate
for the amount of such costs less the deductions. 106
[15.3.36] Upon the taxation of the bill costs, the certificate of the Registrar shall be conclusive as to the amount thereof. Where there is
a submission to pay in the order, the solicitor may after 48 hours issue execution of that order if there is no application for review. 107
[15.3.37] Application to Judge For Review. A party to a taxation proceeding may apply to a judge for review if he or she is not
satisfied with the allowance or disallowance in whole or in part of any item by the Registrar for any item. 108 Such an application may
be made at any time within 14 days after that decision or a longer time if the court allows it. 109 It has to be made by summons and be
heard in chambers unless the judge decides to adjourn into court. 110
15.4 COSTS AT A GLANCE
[15.4.1] The table below sets out the different types of costs and has been extracted from the Family Justice Rules 2014 as per rule 850.
111
Term Effect
“Costs” The party in whose favour an order for cost is made will be entitled to his costs of the proceedings. Where
this order is made in interlocutory proceedings, the party in whose favour it is made will be entitled to his
costs in respect of those proceedings whatever the outcome of the cause or matter in which the proceedings
arise.
“Costs The party in whose favour an order for costs is made at the conclusion of the cause or matter in which the
reserved” proceedings arise will be entitled to his costs of the proceedings in respect of which this order is made unless
the court otherwise orders.
“Costs in any This order has the same effect as an order for “costs” except that the costs is to be taxed only after the
event” conclusion of the cause or matter in which the proceedings arise.Where one party is awarded the costs for an
interlocutory matter, he is entitled to costs regardless of whether or not he is eventually successful in the
action.
“Costs here The party in whose favour this order is made will be entitled not only to his costs in respect of the
and below” proceedings in which it is made but also to his costs of the same proceedings in any lower court, tribunal or
other body constituted under any written law or in arbitral proceedings.
“Costs in the The party in whose favour an order for costs is made at the conclusion of the cause or matter in which the
cause” or proceedings arise is entitled to his costs of the proceedings in respect of which such an order is made.Where
“costs in whichever litigant is successful at the end of the trial receives costs.
application”
“Plaintiff’s The plaintiff or defendant, as the case may be, will be entitled to his costs of the proceedings in respect of
costs in the which such an order is made if judgment is given in his favour in the cause or matter in which the
cause” or proceedings arise, but he shall not be liable to pay the costs of any other party in respect of those proceedings
“Defendant’s if judgment is given in favour of any other party or parties in the cause or matter in question.To be awarded
costs in the to the named party only if he succeeds in the proceedings, but the named party does not have to pay the costs
cause” of the other party if the other party succeeds in the proceedings.
“Costs Where proceedings or any part of the proceedings have been ineffective or have been subsequently set aside,
thrown the party in whose favour this order is made will be entitled to his costs of those proceedings or that part in
away” respect of which it is made.Where costs are awarded to a non-blameworthy party to compensate him for
effort put in and expenses incurred which turn out to be “wasted” because of the blameworthy party’s
conduct.
A. Fixed Costs
[15.4.2] Fixed costs are costs where one party pays a defined sum to the other party.
[15.4.3] Instead of ordering fixed costs, a court may order that costs be taxed. This means that costs are awarded to a party but the
quantum of the costs is not fixed and is to be determined by the court at a taxation hearing having consideration to a Bill of Costs filed
and the objections raised.
B. Two Bases on which Costs May be Taxed

[15.4.4] Standard basis – the court shall allow a reasonable amount for all costs reasonably incurred, and any doubts as to whether
costs were reasonably incurred or reasonable in quantum shall be resolved in favour of the paying party.
[15.4.5] Indemnity basis – the court shall allow all costs except for costs which are of an unreasonable amount or were unreasonably
incurred, and any doubts as to whether costs were reasonably incurred or reasonable in quantum shall be resolved in favour of the
receiving party.
FOOTNOTES
1 Andrew Phang JA in Maryani Sadeli v Arjund Permanand Samtani [2015] 1 SLR 496.
2 [2015] 5 SLR 153.
3 BMG v BMH [2014] SGHC 112.
4 JBB v JBA [2015] 5 SLR 153.
5 Rule 854(b) of the Family Justice Rules 2014.

6 Rule 854(d) of the Family Justice Rules 2014.
9 Ibid.
10 Ibid.
11 Geraldine Kuah and Li Kun Hang, “Principles in the determination of costs in matrimonial proceedings under Singapore’s ‘no-fault’ divorce regime: JBB v JBA
[2015] SGHCF 6”, Singapore Law Watch Commentary August 2015.
12 Chen Siew Hwee v Low Kee Guan [2006] 4 SLR(R) 605.
13 BNH v BNI [2013] SGHC 283.
14 JBB v JBA [2015] 5 SLR 153.
15 BNS v BNT [2015] 3 SLR 973.
16 JBB v JBA [2015] 5 SLR 153.
17 Lum Cheng Yee v Lai Choon Seng [1996] SGHC 206.
18 Ibid.
19
Povey v Povey [1972] Fam 40.
20 Ibid.
21 Tham Khai Meng v Nam Wen Jet Bernadette [1997] 1 SLR(R) 336.
22 Ibid at [50].
23 Ibid.
24 Cheung Kam Yi Betty v Liu Tsun Kie [2012] SGHC 213.
25 [1996] 1 SLR(R) 906.
26 Goh Joon Seng, “Mediation in Singapore: The Law & Practice” Asean Law Association Publications 2003 at 160.
27 FJC website at <https://www.familyjusticecourts.gov.sg/Common/Pages/MediationCounselling.aspx> (last accessed on July 18, 2016).
28 Ibid.
29 Ibid.
30 Subcourts News (Issue 06/June 2013), “Child Focused Resolution Centre – Phase Two”
<https://www.familyjusticecourts.gov.sg/AboutFamilyJusticeCourts/Documents/SubCtsNews_Issue06_Jun%202013_CFRC.pdf> (last accessed on July 18, 2016).
31 Ibid.
32 TODAY Online – “Mediation ‘vital as more people turn to courts for family disputes’”
<http://www.gov.sg/news/content/mediation-vital-as-more-people-turn-to-courts-for-family-disputes> (last accessed on July 18, 2016).
33 Ibid.
34 Ibid.
35 FJC website at <https://www.familyjusticecourts.gov.sg/Common/Pages/Child-Representative.aspx> (last accessed on July 18, 2016).
36 Ibid.
37 Ibid.
38 Ibid.
39 TODAY Online – “Mediation ‘vital as more people turn to courts for family disputes’”
<http://www.gov.sg/news/content/mediation-vital-as-more-people-turn-to-courts-for-family-disputes> (last accessed on July 18, 2016).
40 Chief Justice Yong Pung How at the Asia Pacific Intermediate Courts Conference 1995 on July 20, 1995, published in Speeches and Judgments of Chief Justice
Yong Pung How.
41 Ibid.
42 Ibid.
43 Adrian Loke, “Mediation in the Singapore Family Court” (1999) 11 Sac LJ 189 at 194. See
<http://www.sal.org.sg/digitallibrary/Lists/SAL%20Journal/Attachments/237/1999-11(1)-SAcLJ-189-Loke.pdf> (last accessed on July 18, 2016).
44 Ibid.
45 See Order 62 Rule 1 Cap 4A Rules of the High Court 2011 Hong Kong.
46 Ibid.
47 Ibid.
48 Z v X [2012] 5 HKRD 791.
49 TPL v WYY [2012] HKFLR 327.
50 Hong Kong Special Administrative Region, “Review of Family Procedure Rules: Final Report” (2014)
<http://www.judiciary.gov.hk/en/other_info/fpr/final_report.pdf> (last accessed on July 18, 2016).
51 Ibid.
52 Ibid.
53 Ibid.
54 [2003] HKCFI 444; [2003] 3 HKLRD 976.
55 F v F (No 2) [2003] HKCFI 444; [2003] 3 HKLRD 976.
56 Ibid.
57 Ibid.
58 London Borough of Sutton v Davis (Costs) (No 2) [1994] 2 FLR 569 at 570.
59
[1997] 1 FCR 613; [1997] 2 FLR 95; [1996] EWCA Civ 1120; [1997] Fam Law 391.
60
Gojkovic v Gojkovic [1997] 2 FLR 95.
61
Re G (Child) (Costs: Child Case) [1999] 2 FLR 250.
62 Ibid.
63 C v H [2011] 3 HKC 305.

64 Ibid.
65
Re G (Child) (Costs: Child Case) [1999] 2 FLR 250.
66 Ibid.
67 Ibid.
68 FHY v GJS [2008] HKFLR 453.
69 Ibid.
70 Ibid.
71 Ibid.
72 The United Kingdom Department for Constitutional Affairs, “Costs in Ancillary Relief Proceedings and Appeals in Family Proceedings”, No CP(L) 29/04
(October 2004).
73 Ibid.
74 Ibid.
75 Hong Kong Special Administrative Region, Chief Justice’s Working Party on Family Procedure Rules, Review of Family Procedure Rules — Interim Report and
Consultative Paper at [382], citing T Farley-Hills, “Costs Principles” (2012) 114 (Mar) Fam LJ 9.
76 T Farley-Hills, ibid at 11. See <http://m.harbottle.com/should-the-cost-rules-in-family-proceedings-be-reconsidered/> (last accessed on July 18, 2016).
79 Order 59, rule 3 of the Rules of Court.
80 Aurol Anthony Sabastian v Sembcorp Marine Ltd [2013] 2 SLR 246.
81
Ritter v Godfrey [1920] 2 KB 47.
84 Rule 854(a)–(d) of the Family Justice Rules 2014.
87 Ibid.

99 Ibid.
100 Ibid.

2016 - 10 - 17 PAGE 461

Chapter 16: Legal Aid for Matrimonial and Family Proceedings
Chapter 16
Legal Aid for Matrimonial and Family Proceedings

Lim Hui Min
16.1 Introduction – They Came to Get Help 463

A. Guardianship of Motherless Children 463
B. Divorcing a Gambler 464
C. Protection Against Abusive Father 464
D. Helping an Abused Wife Who Poisoned Her Husband 464
16.2 Scope of Services Provided by the Legal Aid Bureau 465
A. Legal Aid 465
B. Legal Advice 467
C. Legal Assistance 467
16.3 Eligibility for Advice 467
16.4 Eligibility for Aid 468
A. Merits Test 468
B. Means Test 468
1. Capital part of the means test 469
2. Income part of the means test 470
3. Exceptional cases 472
4. Director’s discretion – has discretion in the refusal of aid, but not in the granting of aid 473
5. Public interest exception 474
16.5 Workflow and Processes 475
A. Registration and Preliminary Means Test 475
B. Legal Advice/Opening of Legal Aid File 475
C. Detailed Means Test, Form 1 Statement-Taking 475
D. Review By Legal Officer/Decision By Legal Aid Board on Grant of Aid 476
E. After the Board Meeting 476
F. Time Frame 476
G. Beyond Legal Help – Social Services Referral 477
16.6 Scope of Grant of Aid 477
16.7 Conflict Cases 477
16.8 Urgent Cases – Provisional Grant of Aid 478
16.9 Legal Aid Granted After Commencement of Proceedings 478
16.10 Legal Aid Offence 479
16.11 Stay of Proceedings Upon Application for Aid – Section 17 Notification 480
16.12 Privileges and Responsibilities of a Legally-Aided Person 481
A. Privileges 481
B. Solicitor-Client Privilege 481

C. Not Liable to Pay For Fees and Notes of Evidence 481
D. Not Liable to Pay Deposit to Official Assignee 482
E. Aided Person Not Liable For Costs Except in Certain Circumstances 482
F. Responsibilities 484
1. Liability to pay contribution 484
2. Required to pay deposit for, or to reimburse Director for, payment of out-of-pocket expenses 484
3. No other expenses payable 485
16.13 Powers of the Director In Relation to Financial Matters 485
A. Legal Aid Fund – First Charge in Respect of Contribution 486
B. Any Costs Awarded to be Paid to Director 486
C. Director Can Take Proceedings to Enforce First Charge, Recover Costs, etc. 487
16.14 Cancellation of Aid 487
A. Cancellation of Aid by Director 487
B. Effect of Cancellation 487
C. Circumstances In Which Aid Can Be Cancelled 489
D. Cancellation of Aid by Court 490
16.15 Barring order 491
16.16 Minors 491
A. Guardian Must Apply For Aid On Behalf of Minor 491
B. Director’s Powers to Make Inquiries 491
C. Means Test and Payment of Contribution 492
D. Merits Test 492
E. Minor Turning 21 Years 492
16.17 Staff and Structure of the Bureau 493
16.18 Assigned Solicitors 493
A. Appointment as an Assigned Solicitor 494
B. Assigned Solicitors’ Costs 494
C. Assignment of Cases and Discontinuance of Aid 496
D. Conduct of Proceedings by Assigned Solicitor 496
E. Discharge of Assigned Solicitor 497
“...all citizens should enjoy equality before the law and...there should be no necessity for a golden key to unlock the door to the
courtroom...It is of little comfort to the poorer citizen that the laws of his country are fair and just and that the Courts are impartial if,
in practice, he is debarred from access to the courts through lack of funds.” (Minister for Labour and Welfare Lim Yew Hock, at the
second reading of the Legal Aid and Advice Bill, in 1956) 1
“[T]he activities of the Legal Aid Bureau have spread to all the branches of the civil law, including...helping widows and dependants
claim their dues from deceaseds’ estates. They have also been most active and helpful to wives who have been deserted and left without
means of support. It is in matrimonial cases that the Legal Aid Bureau at present provides the most appreciated form of assistance.”
(Minister for Culture and Social Affairs Othman bin Wok, Parliamentary Debates, in 1977) 2
16.1 INTRODUCTION – THEY CAME TO GET HELP
A. Guardianship of Motherless Children

[16.1.1] Two children were being taken care of by their maternal grandparents. The children’s parents had been divorced soon after the
children were born. The natural mother had been incarcerated in an overseas country for drug-trafficking offences. The natural father,
who was partially blind, had not been involved in the children’s lives for many years. The grandparents applied for legal aid to obtain
guardianship orders for the children. The Legal Aid Bureau assisted the grandparents to make the necessary court application. The
natural father objected to the application, and the court fixed the matter for mediation, which the Legal Aid Bureau also assisted the
grandparents with. At the mediation session, the natural father apologised to the grandparents for not being able to care for the
children as a result of his medical condition, but expressed his deep desire to see them. The grandparents said that they were agreeable
for him to see the children, as long as it did not upset them. The parties then agreed that the natural father could have supervised access
to the children. The grandparents even invited the natural father to their house for a festive celebration later in the year, so that he
could get to know the children. 3
B. Divorcing a Gambler
[16.1.2] A loyal wife was imprisoned for committing a criminal breach of trust by forging cheques to get hold of cash, so that she could
help her gambling-addict husband clear his debts of over half a million dollars. She was forced to give birth to her only child in prison.
She went back to her husband after her release from prison, but realised that he had still not kicked the gambling habit. Also, instead of
being remorseful for what had happened to her and appreciative of her sacrifice, he quarrelled with her and even chased her out of the
house. In despair, she applied for legal aid to commence divorce proceedings. The Legal Aid Bureau helped her to obtain a divorce from
her husband, and court orders for the care and control of, and maintenance for, the child of the marriage. 4
C. Protection Against Abusive Father

[16.1.3] For many years, a mother and her two children were subjected to the father’s physical, sexual and emotional abuse. He would
also act indecently in front of their teenage daughter, by appearing nude in her presence. The mother applied for a personal protection
order (“PPO”) against her husband and sought legal aid for representation in the proceedings. The Legal Aid Bureau helped the mother
to negotiate with the father. The father eventually gave an undertaking to move out of the matrimonial flat, and not to commit family
violence against the mother and their children. It was thus not necessary to have a trial in the matter, which spared the mother and two
children from having to give evidence in the case. The matrimonial home became a safer place for the mother and children to live in. 5
D. Helping an Abused Wife Who Poisoned Her Husband

[16.1.4] A wife, who had been married for more than three decades, had suffered chronic emotional and verbal abuse from her
husband for much of this time. In desperation, she laced his food with arsenic, and was convicted and imprisoned for one year, for
poisoning him. She was already 72 years old at the time. Her husband applied to divorce her, and she applied for legal aid for the
divorce and ancillary matters, in particular the division of the matrimonial assets. With the help of the Legal Aid Bureau, which assisted
the wife both at the High Court and Court of Appeal levels, the wife managed to get a 28% share of the matrimonial assets, which
amounted to more than $2.5 million. 6
16.2 SCOPE OF SERVICES PROVIDED BY THE LEGAL AID BUREAU
[16.2.1] All the individuals in the cases above approached the Legal Aid Bureau (the “Bureau”) for help with their cases as they lacked
the resources to hire lawyers in private practice. It is individuals such as these that the Bureau was set up to help. Matrimonial and
family proceedings form the bulk of the cases done by the Bureau. In FY 2015, the Bureau had over 9,000 cases registered for legal aid,
assistance and advice, 7 slightly over half of which were matrimonial cases, such as divorce, custody of children, maintenance, and
family violence matters.
[16.2.2] The Bureau, which is governed by the Legal Aid and Advice Act (Cap 160) (“LAAA”) and the Legal Aid and Advice Regulations
(“LAAR”), provides the following services:
A. Legal Aid
[16.2.3] This is representation for court proceedings and all the work connected with the commencement and conduct of court
proceedings, such as the drafting of court documents. The Bureau will also render help after the court proceedings in certain
circumstances. For example, where the Bureau has assisted an applicant in a divorce case to obtain a court order for the sale of the
matrimonial flat, and an additional order empowering the Registrar of the Syariah Court/Family Justice Courts/Supreme Court to sign
the relevant sale documents on behalf of the other party if he or she fails to do so within a certain time frame. If that other party does
indeed fail to sign the sale documents, then the Bureau will assist the applicant to prepare the necessary documents (i.e. a cover letter
and/or an affidavit explaining the situation and the applicant’s request) and appear before the relevant duty Registrar, in order to get
him or her to sign the sale documents on behalf of the other party.
[16.2.4] Legal aid may be given for any civil proceedings (subject to certain exceptions, which are listed below): 8
1. In the High Court;

2. In the Court of Appeal;
3. In the Family Courts, District Courts and Magistrate’s Courts;
4. Before any person to whom a case is referred in whole or in part by the Supreme Court, a Family Court or District Court; 9
5. Under the Women’s Charter (Cap 353) (the “Charter”);
6. Before the Syariah Court and the Syariah Court Appeal Board under the Administration of Muslim Law Act (Cap 3); and
7. Before the Commissioner for Labour under the Work Injury Compensation Act (Cap 354).
[16.2.5] The excepted proceedings are:
1. Proceedings wholly or partly in respect of –

(a) defamation;
(b) breach of promise of marriage; and
(c) the inducement of one spouse to leave or remain apart from the other;
2. Relator actions; 10
3. Any application under the Parliamentary Elections Act (Cap 218) or the Presidential Elections Act (Cap 240A);
4. In a Family Court or District Court, proceedings for or consequent on the issue of a judgment summons 11 and, in the case of a
defendant, proceedings where the only question to be brought before the court is as to the time or mode of payment by him or
her of a debt (including liquidated damages) and costs; and
5. Proceedings incidental to any proceedings mentioned in paragraphs (1)–(4) above.
B. Legal Advice
[16.2.6] This is oral advice on questions of Singapore law, 12 which are within the scope of the matters for which legal aid can be
granted, set out in the previous section.
[16.2.7] The Bureau provides a legal advice service from Mondays to Fridays, during office hours, enabling walk-in applicants to get a
quick consultation on their legal rights and liabilities. The legal officers of the Bureau as well as the Bureau’s volunteer lawyers (see
section 16.17 – Staff and Structure of the Bureau) below for information on the Bureau’s volunteer lawyers) are rostered to be duty
officers for this legal advice service. There can be as many as 15 to 20 advice cases a day. After receiving the legal advice, those who
have cases which reveal a cause of action, and some grounds for prosecuting the same, or have some form of defence to an action filed
against them, as the case may be, will be advised to open a file. Those who do not may be referred to other sources of help for their
issues, where appropriate, such as social service agencies (see paragraph [16.5.9] (Beyond Legal Help – Social Services Referral) below).
C. Legal Assistance
[16.2.8] This is assistance with the drafting of certain legal documents, namely wills or deeds of separation.
16.3 ELIGIBILITY FOR ADVICE
[16.3.1] Legal advice can only be given to persons who are resident and present in Singapore. 13 The only exception to this is for cases
under the International Child Abduction Act (Cap 143C) (“ICAA”), where legal aid can be granted to any person who is a citizen of, or
habitually resident in, Singapore or a Contracting State. 14
[16.3.2] In addition, a person seeking legal advice is required to “satisfy the Director [of Legal Aid] that he cannot afford to obtain it in
the ordinary way”. 15 This means that the person has to pass the means test (the framework of which is detailed in the next section).
16.4 ELIGIBILITY FOR AID
[16.4.1] Legal aid and assistance can only be given to Singapore citizens and permanent residents of Singapore. 16 The only exception to
this is for cases under the ICAA, where legal aid can be granted to any person who is a citizen of, or habitually resident in, Singapore or
a Contracting State, 17 who is or will be:
1. A party to proceedings for the return of a child under section 8 of the ICAA; or
2. An applicant for a court declaration under section 14 of the ICAA that the removal of a child from Singapore or retention of a
child outside Singapore was wrongful.
[16.4.2] The person seeking legal aid also needs to pass the merits test 18 and the means test. 19
A. Merits Test
[16.4.3] Every case is referred to the Legal Aid Board for its decision before aid can be granted. The Board consists of the Director of
Legal Aid (“Director”) and not fewer than two solicitors on the Bureau’s panel. 20 The Legal Aid Board must be of the opinion that the
applicant has reasonable grounds for taking, defending, continuing or being a party to the proceedings. Otherwise, he or she cannot be
granted aid. 21 The purpose of the merits test is to weed out those cases which are frivolous, or which have a low probability of success,
so that taxpayers’ money spent on funding the applicants’ litigation is well and wisely spent.
B. Means Test
[16.4.4] There are two parts to the means test: the capital part, and the income part. The applicant must satisfy both parts, in order to
pass the means test.
1. Capital part of the means test

[16.4.5] The applicant cannot possess or be entitled to disposable capital of more than S$10,000. 22
[16.4.6] Disposable capital means property which the applicant possesses or is entitled to, but excludes: 23
1. The subject-matter of the proceedings. For example, if the applicant is claiming a $1 million sum from another person, that $1
million sum will not be included in the calculation of the applicant’s disposable capital;
2. The wearing apparel of the applicant (i.e. his or her clothing);
3. The tools of trade of the applicant. For example, if the applicant owns a lorry, but needs it for his job as a delivery man, the
value of the lorry will not be included in the calculation of the applicant’s disposable capital;
4. Household furniture used by the applicant in his or her house (for example his or her bed, tables and chairs, cupboards, etc.);
5. A property owned and exclusively used by the applicant and his or her family as their home if it is: (i) a Housing & Development
Board (“HDB”) flat; or (ii) a private property assessed at an annual value of not more than S$13,000;
6. Savings of the applicant of up to S$30,000, if he or she is aged 60 years and above;
7. The applicant’s Central Provident Fund (“CPF”) moneys, including the moneys withdrawn for investments in accordance with
the Central Provident Fund Act (Cap 36) and the Central Provident Fund (Investment Schemes) Regulations (Cap 36, Reg 9); and
8. The total surrender value of one or more life policies 24 held by the applicant up to the amount of S$46,000.
[16.4.7] If the applicant has applied for legal aid for family proceedings, a further amount of S$5,000 can be excluded in determining
the disposable capital amount, and also a private property owned and exclusively used by the applicant and his or her family as their
home, if the annual value of that property is assessed at not more than S$20,000. Family proceedings are, broadly, any proceedings
(including appeals) involving the custody, care and control and/or maintenance of any minor child of the applicant, or family violence
proceedings involving the applicant, his or her spouse, former spouse, or his or her minor child. 25
Worked example:
In this example, the applicant, who is applying for guardianship of his grandchild (which are family proceedings), has assets totalling
$404,000, but the calculation of the disposable capital amounts to only $8,000.
Item Value (S$) Taken into account Remarks

Savings in bank 9,000 Yes
Lorry used by applicant in his work as 10,000 No See 3.
a delivery man above
HDB flat 315,000 No See 5.
above
CPF moneys 20,000 No See 7.
above
Life insurance policy 50,000 Yes, but $46,000 disregarded, so only $4,000 See 8.
taken into account above
Total disposable capital =
$9,000 + $4,000 less $5,000 (as the applicant has applied for legal aid for family proceedings) = $8,000 (passes the capital part of the test).
2. Income part of the means test

[16.4.8] The applicant cannot have disposable income of more than S$10,000. 26
[16.4.9] Disposable income means the income of the applicant together with the income (if any) of the applicant’s spouse (unless it has
been disregarded – see below regarding the disregarding of the spouse’s income) during a 12-month period immediately preceding the
date of the application for legal aid (“the 12-month period”), after deducting the following items: 27
1. S$6,000 for the applicant;

2. S$6,000 for the applicant’s spouse, if the spouse’s income is not disregarded;
3. A sum capped at S$6,000 representing what the applicant and his or her spouse (if the spouse’s income is not disregarded) have
paid towards the maintenance of each of their dependants during the 12-month period;
4. A sum not exceeding S$20,000 for rent during the 12-month period;
5. The amount of the applicant’s CPF contributions during the 12-month period; and
6. The amount of the applicant’s spouse’s CPF contributions during the 12-month period, if the spouse’s income is not disregarded.
[16.4.10] The spouse’s income may be disregarded where the applicant is living separate and apart from his or her spouse and where it
appears to the Director reasonable to disregard the spouse’s income to relieve hardship. 28
Worked example:
In this example, the same applicant in the worked example above, who is separated from his wife, has an annual income of $36,000, but
the calculation of his disposable income amounts to only $8,400. The applicant’s wife’s income is disregarded, as the applicant is
separated from his wife. The applicant has two children, one of whom is over 21 years old and self-supporting (the father of the
grandchild he is applying for guardianship of), and the other who is under 21 years old, studying in a polytechnic, and dependent on the
applicant for pocket money. The applicant also supports his elderly parents.
Item Amount (S$) Deducted Remarks

Personal expenses $6,000 Yes See 1. above
Child dependant allowance $400 a month x 12 = $4,800 a Yes See 3. above
year
Elderly dependants allowance $300 a month x 12 = $3,600 a Yes See 3. above
year
Rental $600 a month x 12 = $7,200 a Yes See 4. above
year
CPF contributions $500 a month x 12 = $6,000 a Yes See 5. above
year
Total $27,600
Total disposable income = $36,000 less $27,600 = $8,400 (passes the income part of the test).
3. Exceptional cases

[16.4.11] Where an applicant has suffered from a sudden physical or mental disability which permanently and severely restricts his or
her capacity to earn an income (for example, if the applicant suffers a debilitating stroke, or gets very severely injured in a traffic
accident) and it appears to the Director in his or her absolute discretion to be reasonable to do so to relieve hardship, the Director may:
1. In determining the disposable capital of the applicant, exclude savings of the applicant of up to S$30,000.
2. In determining the disposable income of the applicant, deduct a further amount equal to:
(a) S$1,000 in the case of an applicant who has also suffered a sudden loss of income and requires legal aid to defend or take
legal proceedings as a matter of urgency; or
(b) S$2,000, in any other case.

[16.4.12] Where an applicant has suffered a sudden loss of income (for example, he or she has been terminated from his or her
employment with immediate effect) and requires legal aid to defend or take legal proceedings as a matter of urgency, and it appears to
the Director in his or her absolute discretion to be reasonable to do so to relieve hardship, the Director may:
1. Regard the amount of disposable income to be S$5,000 (instead of S$10,000) during the period of six months immediately
preceding the date of the application (“the six-month period”); and
2. Regard “disposable income” to mean the income of the applicant together with the income (if any) of the applicant’s spouse
(unless it has been disregarded) during the six-month period, after deducting the following items:
(a) S$3,000 for the applicant;
(b) S$3,000 for the applicant’s spouse, if the spouse’s income is not disregarded;
(c) A sum capped at S$3,000 representing what the applicant and his or her spouse (if the spouse’s income is not
disregarded) have paid towards the maintenance of each of their dependants during the six-month period;
(d) A sum not exceeding S$10,000 for rent during the six-month period;
(e) The amount of the applicant’s CPF contributions during the six-month period; and
(f) The amount of the applicant’s spouse’s CPF contributions during the six-month period, if the spouse’s income is not
disregarded.
4. Director’s discretion – has discretion in the refusal of aid, but not in the granting of aid
[16.4.13] The Director has no discretion to make exceptions to grant aid to any applicant who does not pass the means test or the merits
test, in accordance with the framework set out above. However, the Director may refuse legal aid if it appears to him or her
unreasonable that the applicant should receive it in the particular circumstances of the case, even if the applicant has passed both the
means and merits tests. 31
[16.4.14] For example, in a case where there are two beneficiaries of a wealthy estate, one of whom qualifies under the means test for
legal aid, and the other does not, the Director would, unless there are good reasons to the contrary (for example, the beneficiaries are
estranged, and the other beneficiary has refused and will continue to refuse to take any action in respect of the estate, just to spite the
his or her fellow beneficiary), refuse aid to the beneficiary that qualifies for aid, on the basis that the other beneficiary should be able to
afford legal representation to take out the probate or letters of administration for the estate. Another example is where the dispute
between the applicant and the other party appears to be in the nature of a commercial dispute between rival businesses, rather than a
case where the applicant is seeking to enforce or defend his or her rights as an individual, as legal aid is intended to assist individuals
who are less privileged, rather than commercial entities.
5. Public interest exception

[16.4.15] Under section 8(4) of the LAAA, the Minister may authorise the Director to grant aid to any person in any proceedings where
the Minister is of the opinion that it is in the public interest to do so, notwithstanding that the person may not have passed the means or
merits tests. An example of this is the Spyros disaster, where a Greek tanker, the Spyros, which was docked in Singapore, exploded on
October 12, 1978. The explosion killed 76 people and injured many others who were working on or around the ship at the time. The
families of the dead and injured workmen came to the Bureau for help with their compensation claims. 32 The Spyros disaster was cited
by the then Minister for Law Professor S Jayakumar during the Parliamentary Debates of July 7, 1995 as an example of when the public
interest exception under section 8(4) of the LAAA could be activated. 33 This was one of the largest industrial accidents in Singapore. It is
submitted that this case fell under the public interest exception because of the nature of the tragedy (resulting in death and severe
personal injuries), the large number of people affected, and that generally the majority of the victims were blue-collar workers.
16.5 WORKFLOW AND PROCESSES
A. Registration and Preliminary Means Test

[16.5.1] Under the Bureau’s current workflow, an applicant attending at the Bureau will be administered a preliminary means test at
the registration counter (i.e. a series of questions will be asked about his or her income and assets) and also asked to describe briefly
what his or her case is about. 34
B. Legal Advice/Opening of Legal Aid File

[16.5.2] If the applicant passes this preliminary means test, then depending on whether he or she needs legal advice or aid/assistance,
he or she will be directed to see the Duty Officer for a legal advice session, or to open a legal aid file. Sometimes, after the legal advice
session, the applicant may proceed to open a legal aid file.
[16.5.3] Those requiring legal advice would be able to see the Duty Officer within half a day. No fee is payable for applying for legal
advice or aid. 35
C. Detailed Means Test, Form 1 Statement-Taking

[16.5.4] Those applicants who have opened a legal aid file will be given an appointment for a more detailed means test, and asked to
bring supporting documents to verify their means (such as bank statements and payslips), as well as documents in support of their case.
If the applicant passes the detailed means test, he or she will then be given an appointment for a legal executive of the Bureau (who is
also a Commissioner for Oaths) to take down the facts of his or her case in a statement (“the Form 1 statement”). 36
D. Review By Legal Officer/Decision By Legal Aid Board on Grant of Aid

[16.5.5] After the statement is taken, the file will be reviewed by the Bureau’s legal officer in charge of the matter. The legal officer will
either write an opinion on the merits of the case, or assign the case out to an Assigned Solicitor who will write the opinion instead (these
are practising advocates and solicitors who are appointed to be on the Bureau’s panel to assist with legal aid and advice work. 37 See
section 16.18 (Assigned Solicitors) below for more information on Assigned Solicitors, and information on the circumstances in which
cases are assigned out). Once the opinion is ready, the case will be sent to the Legal Aid Board, who will consider the opinion and make
a decision as to whether the case has sufficient merits for aid to be granted.
E. After the Board Meeting

[16.5.6] The applicant will be informed of whether aid has been granted or refused. If aid is granted, he or she will be notified of the
terms upon which the Grant of Aid will be issued, for example that the aid is granted in respect of certain stages of the action only (for
example, negotiation between solicitors and for mediation), and not the entire action. 38
[16.5.7] Once aid is granted, then provided that the applicant accepts the terms of the Grant of Aid and pays the required contribution
(if any), he or she will be issued a Grant of Aid 39 and the legal officer or the Assigned Solicitor will proceed to deal with the matter. At
this stage, if the matter has not already been assigned out, the Director may assign the matter out to an Assigned Solicitor. 40 The Grant
of Aid must be filed in court before any step can be taken in the proceedings. 41
F. Time Frame
[16.5.8] The whole process from the registration of the case to the issue of the Grant of Aid could take from a few weeks to a few
months, depending on the complexity of the case, whether the applicant furnishes information and documents requested to the Bureau
in a timely manner, and other factors.
G. Beyond Legal Help – Social Services Referral

[16.5.9] At any point in the process, if the Bureau becomes aware that the applicant has a need for social services (because, for example,
they are experiencing family violence, financial difficulties, difficulties in parenting, etc.), it will refer the applicant to the appropriate
social services. In addition, the Bureau has staff trained in counselling and communication techniques to enable them to deal effectively
with distressed applicants.
16.6 SCOPE OF GRANT OF AID
[16.6.1] A Grant of Aid shall not relate to more than one action, cause or matter. Thus, if the applicant has more than one matter (for
example, an application for divorce, and an application for guardianship), he or she has to open separate files for each matter.
However, the Grant of Aid may include proceedings for the enforcement of any court order obtained, as well as an agreement for costs
in the aided person’s favour. 42
[16.6.2] A fresh application must be made for aid for an appeal (except for interlocutory appeals), even if aid had been granted for the
case at the first instance. The fresh application must satisfy the means and merits tests. 43
16.7 CONFLICT CASES
[16.7.1] If more than one party to the same proceedings applies for aid, both parties must satisfy the means and merits tests. In such a
situation, the Director must assign the case out to an Assigned Solicitor. 44 It cannot be handled by the Bureau’s in-house legal officers.
16.8 URGENT CASES – PROVISIONAL GRANT OF AID
[16.8.1] For urgent cases, where action has to be taken immediately to prosecute or defend the applicant’s rights, and there is no time to
wait for the detailed means tests and merits tests to be completed, section 7(e) of the LAAA empowers the Director to do so, as it states
that the Director may “take or cause to be taken such steps as may be necessary to conserve the interests of the applicant pending the
determination of his application”.
[16.8.2] Thus, pending the means and merits tests, legal advice can be given, documents drafted, meetings held with the applicant, and
court proceedings filed, defended or conducted.
[16.8.3] For the conduct of court proceedings, under regulation 7 of the LAAR, if the Director is of the opinion that the applicant
requires legal aid urgently, he or she may issue a Provisional Grant of Aid (“PGA”) to the applicant, without the merits test being passed
yet, provided the applicant has provided whatever information on his or her case that the Director may require. The Director can also
issue the PGA on condition that the applicant provides such additional information as he or she may require. 45 The PGA expires after
three months from the date that it is issued. It may be renewed by the Director for a further three months, and subsequently, by the
Legal Aid Board for such further period as the Board thinks fit. 46
[16.8.4] The PGA gives the applicant all the rights and privileges of an aided person who has been issued a Grant of Aid. In the case of
The Law Society of Singapore v Chua Swee Keng, 47 the Disciplinary Committee found that the issuance of an Emergency Certificate (the
precursor to the PGA) means that the applicant for legal aid is effectively granted aid on the date of issue. The PGA will be superseded
by a Grant of Aid. The PGA shall be cancelled if the Legal Aid Board refuses the application for a Grant of Aid. 48
16.9 LEGAL AID GRANTED AFTER COMMENCEMENT OF PROCEEDINGS
[16.9.1] If proceedings have already commenced, and any party becomes an aided person subsequently, the following applies: 49
1. The Legal Aid Fund 50 will not be liable for any costs of the proceedings incurred before the Grant of Aid was issued;
2. Any solicitor who acted for the aided person before the Grant of Aid was issued, and any solicitor who has a lien on any
documents relating to the proceedings and who has delivered up the documents subject to his or her lien, may notify the
Director of this; and
3. If moneys are recovered for the aided person in the proceedings, the Director shall pay the solicitor out of this sum the costs the
solicitor would have been entitled to on a taxation between the solicitor and his or her own client. 51 However, if the sum
recovered is insufficient to pay these costs in full and also meet the liabilities of the Legal Aid Fund in respect of the aided
person (see section 16.13 (Powers of the Director in Relation to Financial Matters) below), then the sum is to be divided between
the solicitor and the Legal Aid Fund in proportion to the amount owing to each, and the first charge for the benefit of the Legal
Aid Fund shall apply (see paragraph [16.13.2] (Legal Aid Fund – First Charge in Respect of Contribution), below).
[16.9.2] Whenever an aided person becomes a party to proceedings or a party to proceedings becomes an aided person, the Director
shall forthwith serve a copy of the Grant of Aid or PGA on every other party to the proceedings. 52
16.10 LEGAL AID OFFENCE
[16.10.1] Under section 21 of the LAAA, if at any time a person seeking or receiving legal aid or legal advice (a) knowingly makes any
false or misleading statement or representation in his or her application for legal aid or legal advice, (b) fails to make full and frank
disclosure of his or her means, or (c) fails to inform the Director of any changes to his or her means or circumstances which may render
him or her ineligible for legal aid, the person shall be guilty of an offence and shall be liable on conviction to a fine not exceeding
S$5,000 or to imprisonment for a term not exceeding six months or to both. Thus, it is important for applicants to give correct
information and provide documents about their means and their case, and also to keep the Bureau updated of any changes to their
means and circumstances. If the Bureau becomes aware that the applicant has deliberately withheld relevant information and
documents or given the Bureau false information and documents, it will report the applicant to the police for a suspected offence under
section 21 of the LAAA.
16.11 STAY OF PROCEEDINGS UPON APPLICATION FOR AID – SECTION 17 NOTIFICATION
[16.11.1] If there are ongoing court proceedings, then as soon as possible after the application for legal aid has been made, section 17 of
the LAAA requires the Director to notify all the relevant parties involved in the proceedings of the application and also to file a
notification in the prescribed form (“the Section 17 Certificate”) in the court in which the proceedings are pending, as soon as possible.
[16.11.2] Once the Section 17 Certificate is filed, then unless otherwise ordered by the court, all steps in the proceedings shall be stayed
for a period of 14 days, and during this period, the time fixed by the relevant legislation for “the doing of any act or the taking of any
step in the proceedings” shall not run.
[16.11.3] Thus, for example, if the defence of a defendant in a divorce writ is due on April 14, he or she applies for aid on April 10, the
Section 17 Certificate is issued and filed on April 12, and the defendant fails to file the defence by April 14, the plaintiff will not be
allowed to set down the case as an uncontested matter (or take any other step in the proceedings) until after April 26, which is 14 days
from April 12. The defendant also has more time to file the defence, namely 14 days from April 12, i.e. April 26.
[16.11.4] However, the filing of the Section 17 Certificate shall not prevent:
1. The making of an interlocutory order for an injunction or for the appointment of a receiver or manager or receiver and
manager;
2. An order to prevent the lapse of a caveat against dealings with land; or
3. Any other order which, in the opinion of the court before which proceedings are pending, is necessary to prevent an
irremediable justice.
[16.11.5] Also, unless otherwise ordered by the court, the filing of the Section 17 Certificate shall not prevent the institution or
continuance of proceedings to obtain, enforce or otherwise carry into effect any such order in (1)–(3) above.
16.12 PRIVILEGES AND RESPONSIBILITIES OF A LEGALLY-AIDED PERSON
A. Privileges
[16.12.1] The privileges of an aided person are set out in this section.
B. Solicitor-Client Privilege
[16.12.2] Solicitor-client privilege arises from the following relationships: 53
1. Between the applicant for legal aid and the Director and the Assigned Solicitor (if any);
2. Between the aided person and the Director and the Assigned Solicitor (if any); and
3. Between the person seeking legal advice and the Director and the Assigned Solicitor (if any).
[16.12.3] However, there is no solicitor-client privilege in respect of any information given to the Director concerning the property or
income of the applicant for legal aid. 54 In addition, an Assigned Solicitor has the duty (and shall not be precluded by solicitor-client
privilege from carrying out this duty) to disclose to the Director any information, or give any opinion, which enables the Director to
perform his or her functions under the LAAA, including information which may affect the Legal Aid Board’s decision on whether to
grant aid to the applicant. 55
C. Not Liable to Pay For Fees and Notes of Evidence

[16.12.4] An aided person is not liable to pay court fees, fees payable for service of process, or any fees due to the Sheriff or bailiff in
connection with the execution of process. 56 He or she is entitled to be supplied free of charge with a copy of the notes of evidence in any
proceedings for which he or she is an aided person. 57
D. Not Liable to Pay Deposit to Official Assignee

[16.12.5] An aided person is not liable to pay any deposit to the Official Assignee (pursuant to the rules made under section 166 of the
Bankruptcy Act (Cap 20)), where legal aid has been granted to the aided person to commence bankruptcy proceedings against a debtor.
58
E. Aided Person Not Liable For Costs Except in Certain Circumstances

[16.12.6] An aided person shall not be liable for costs to any other party to the proceedings for which legal aid has been granted to him
or her. 59 This includes disbursements for items such as private investigators’ reports. 60
[16.12.7] However, if the court is of the view that:
1. the Grant of Aid has been obtained by fraud or misrepresentation; or

2. an aided person has acted improperly in bringing or defending any legal proceedings or in the conduct of them,
the court may order the aided person 61 to pay the following costs personally: 62
i. the Director’s costs or the Assigned Solicitor’s costs;

ii. the costs of the other party; or
iii. the costs of the Director or Assigned Solicitor and the costs of the other party.
[16.12.8] If the court makes such a costs order, then the costs shall be taxed as if the aided person ordered to pay costs was not an aided
person. 63 The costs shall include court fees, fees for notes of evidence, and any sums expended or advanced by the Director to meet out-
of-pocket expenses for the case. 64
[16.12.9] In the case of TCP v TCQ, 65 for example, the court ordered the legally-aided defendant to pay nominal costs of $100, as it took
the view that his application to vary a court order was unreasonable and improper, since it was based on the same reasons as his
earlier application to set aside the court order, which had been dismissed. This had resulted in delay to the plaintiff’s own application to
vary the order, which succeeded on its merits, and also required the plaintiff to defend an application the substantive merits of which
had already been adjudicated upon. The court had also made a costs order against the legally-aided plaintiff husband in Pang Tee Gam v
Chui Ah Mui (mw). 66 In this case, the plaintiff husband had filed a writ for divorce against the defendant wife, even though he knew that
the marriage he was seeking to dissolve was invalid because he had committed bigamy, and was still married to his first wife at the time
of the marriage in question. He called an expert witness, and also insisted on cross-examining the defendant’s expert witness, even
when his own expert had agreed with the defendant’s expert witness. The defendant was put through an unnecessarily prolonged trial
and increased costs. The plaintiff could have “thrown in the towel” much sooner, once he had completed his evidence, but chose not to
do so. The court was of the view that the plaintiff should not “be allowed to abuse the system and hide behind the mantle of being
legally-aided to avoid paying the Defendant her costs”. 67 As the trial of the matter took three and a half days, the court awarded costs to
the defendant against the plaintiff in the sum of $20,000.
[16.12.10] However, it is on the whole very seldom that the court would have to make a costs order in respect of a case where the aided
person has acted improperly in bringing or defending proceedings, since this indicates that the case has no merits, and aid would
probably have been refused or cancelled at an early stage.
F. Responsibilities
[16.12.11] This section sets out the responsibilities of an aided person.
1. Liability to pay contribution

[16.12.12] The Director may require the applicant to make one or more contributions in one lump sum or by instalments in respect of
his or her legal aid case, and he or she may be required to pay it before the issue of the Grant of Aid. 68 However, the Director has the
discretion to reduce, waive or refund the contribution amount. 69 The amount of contribution fixed takes into account the applicant’s
circumstances, including factors such as the complexity of the applicant’s case, how long it will take to complete, the resources required
to handle it, as well as the applicant’s income and assets. The contribution amount can be paid in instalments. 70
[16.12.13] If the applicant does not pay the required contribution or any part of it, then the Legal Aid Fund shall have a first charge in
respect of the unpaid sum on any moneys or property which are recovered in respect of the legal aid case for which he or she was
required to pay contribution (see section 16.13 (Powers of the Director in Relation to Financial Matters) below for more information on
the first charge).
2. Required to pay deposit for, or to reimburse Director for, payment of out-of-pocket expenses
[16.12.14] The Director can require the applicant to deposit an amount with him to be used for out-of-pocket expenses for his or her
legal aid case, such as the costs for a medical report, or advertisement costs. 71 If there is any amount left over after paying for the out-
of-pocket expenses, this can be used to pay any outstanding contribution that the applicant is required to pay, and any amount left over
after this must be refunded to the applicant. 72
[16.12.15] The Director can also, in cases where the applicant would suffer hardship from having to pay the deposit, pay the out-of-
pocket expenses on behalf of the applicant first, from the Legal Aid Fund, and require the applicant to repay this amount at a later time.
73
3. No other expenses payable

[16.12.16] Aside from the payment of contribution, a deposit for out-of-pocket expenses, or reimbursing the Director for out-of-pocket
expenses paid on his or her behalf, the aided person does not need to pay any other expenses. In fact, no person who makes any
investigation or report, gives any opinion or conducts any proceedings for a legally-aided case under the LAAA shall take or agree to
take or seek from the aided person any fee, profit or reward in respect of such work. 74
16.13 POWERS OF THE DIRECTOR IN RELATION TO FINANCIAL MATTERS
[16.13.1] Generally, all moneys payable to an aided person as a result of proceedings for which he or she has been granted aid shall be
paid to the Director, and no other person shall be capable of giving a good discharge for the moneys payable, including the aided
person. 75 Upon receipt of the moneys, the Director is to make the following payments/retain the following sums, before approving the
release of any excess moneys to the aided person: 76
1. Pay to the Legal Aid Fund or the Assigned Solicitor, as the case may be, the costs of the proceedings (see section 16.18 (Assigned
Solicitors) below);
2. Retain any sum paid pursuant to an order or agreement for the payment of costs to the aided person;
3. Retain a sum equal to the amount (if any) remaining unpaid in respect of any contribution or any amount expended or
advanced to meet out-of-pocket expenses; and
4. Retain any costs of proceedings taken by the Director to enforce an order or agreement for the payment of costs to the aided
person, or for the recovery or preservation of property subject to the first charge (see paragraph [16.13.2] (Legal Aid Fund –
First Charge in Respect of Contribution) for information on the first charge).
A. Legal Aid Fund – First Charge in Respect of Contribution

[16.13.2] The Legal Aid Fund has a first charge on any property which is recovered or preserved for the aided person in the
proceedings for which aid was granted, in respect of any unpaid contribution for that matter (“the first charge”). This includes the aided
person’s rights under a settlement or compromise to bring the proceedings to an end, and any sums recovered pursuant to a costs order.
77 This means that if the aided person is awarded $5,000 in damages in his or her case, for example, and he or she has an unpaid
contribution amount of $500, the Director can take $500 out of the $5,000 in payment for the unpaid contribution amount, and release
only $4,500 to the aided person. 78
B. Any Costs Awarded to be Paid to Director

[16.13.3] Where the aided person succeeds in his or her case, the court must make a costs order in his or her favour, as if he or she had
not been an aided person. 79 However, the costs are to be paid to the Director; they are not to be pocketed by the aided person. 80 Hence,
the costs order should state that the costs shall be payable to the Director of Legal Aid. 81
[16.13.4] If an aided person who is not liable to make a contribution recovers moneys from a case, he or she must pay the Director an
amount representing the Director’s costs in handling the matter (which the Director will assess), or the amount of the Assigned
Solicitor’s bill, if the matter has been assigned out. 82 However, this does not apply if the amount recovered is $500 or less. If the amount
recovered is $500 or more, then the amount the aided person has to pay shall not exceed one-quarter of the amount recovered, or the
difference between the amount recovered and the amount of $500, whichever is the lower. 83 Thus, if the aided person recovered $800,
then he or she shall not pay the Director more than $200 (which is one-quarter of $800, and is a lower amount of the difference between
$800 and $500, i.e. $300).
C. Director Can Take Proceedings to Enforce First Charge, Recover Costs, etc.
[16.13.5] The Director may take proceedings to enforce the first charge, any costs order or any agreement for costs to be paid to an
aided person in any proceedings for which legal aid was granted. 84
[16.13.6] No Grant of Aid will be required to take out such enforcement proceedings. 85
16.14 CANCELLATION OF AID
A. Cancellation of Aid by Director
[16.14.1] The Director may cancel a Grant of Aid at any time. 86 He or she must do so by filing a notification of the cancellation in court.
The Director must also take reasonable steps to inform the aided person and the other party or his or her solicitor that the Grant of Aid
has been cancelled. Specifically, the Director must immediately issue a notice of cancellation to the aided person and the other party or
his or her solicitor. 87
B. Effect of Cancellation
[16.14.2] From the date the notification is filed:
1. The aided person shall cease to be an aided person; 88

2. The retainer of any Assigned Solicitor acting for the aided person shall be terminated immediately; 89
3. Unless otherwise ordered by the court, all steps in the proceedings shall be stayed for a period of 14 days, and time fixed by any
legislation for the doing of any act or the taking of any step in the proceedings shall not run. 90 This is intended to give the aided
person sufficient time to review his or her case and engage new solicitors, if he or she wishes to and is able to do so.
[16.14.3] Once the proceedings are over:

1. If the matter had been assigned out, the costs of the proceedings shall be taxed, or assessed in accordance with the provisions of
the LAAR, and the Legal Aid Fund remains liable to pay these costs. 91
2. The first charge still applies to any moneys recovered by the formerly aided person in the case, if he or she continues with the
case. 92 This means that if the formerly aided person eventually recovers damages of $5,000 in the case, for example, but has an
unpaid contribution amount of $500, the Director can still claim the $500 amount on behalf of the Legal Aid Fund, from the
$5,000 amount.
3. The formerly aided person is still liable for the payment of his or her maximum contribution amount, if any, up to the amount
of the costs which are taxed or assessed (in accordance with (1) above).
4. The formerly aided person is still liable to pay the Director in respect of any sums recovered through a settlement or
compromise relating to costs made in his or her favour during the period that he or she was an aided person. 93
5. The formerly aided person still remains liable for a costs order to be made against him or her for the period that he or she was
an aided person. 94
C. Circumstances In Which Aid Can Be Cancelled

[16.14.4] Aid may be cancelled in the following circumstances:
1. If the aided person requests for the cancellation. 95 For example, if he or she decides to hire his or her own private lawyer, and
manages to find the means to do so, by borrowing from friends or relatives.
2. If the aided person is in arrears of payment for more than 30 days in respect of contribution, a deposit in respect of out-of-
pocket expenses, or the repayment of any amount expended or advanced by the Director to meet out-of-pocket expenses. 96 If
the aided person really cannot afford to make the required payments, he or she may apply to the Director for a waiver of the
amounts, furnishing information and evidence of his or her inability to pay. For example, if he or she is unable to pay the
required amounts because he or she is suffering from cancer and needs to pay medical bills, he or she should forward a
memorandum from his or her doctor and a copy of the medical bills together with his or her application for waiver.
3. If the Director is satisfied that the proceedings for which aid was given have been disposed of. 97 For example, if aid was
granted for divorce proceedings, once the Certificate of Final Judgment (Divorce) has been extracted.
4. If the Director is satisfied that the aided person has died or has had a receiving order made against him or her. 98
5. If the Director is satisfied that the aided person has wilfully failed to furnish required information, or made a false statement or
false representation in respect of the required information he or she furnished. 99
6. If the Director is satisfied that the aided person is above means, after further investigation. 100
7. If the Director is satisfied that the aided person has breached any of the terms upon which a Grant of Aid was issued to him or
her. 101
8. Where the Legal Aid Board is satisfied that the aided person has required the proceedings to be conducted unreasonably, so as
to incur an unjustifiable expense which will be paid out of the moneys in the Legal Aid Fund, or has required unreasonably that
the proceedings be continued. 102
9. Where the Legal Aid Board is of the view, after receiving further information, that the aided person no longer has reasonable
grounds for taking, defending or being a party to the proceedings, or that it is unreasonable in the particular circumstances for
him or her to continue to receive legal aid. 103
[16.14.5] For the items in (5)–(9) above, the aided person must be given an opportunity to show cause why the Grant of Aid should not
be cancelled, before it may be cancelled. 104 He or she will be sent a letter setting out the reasons why the Director intends to cancel aid,
and asking him or her to explain why aid should not be cancelled, to which he or she has to respond within a certain time frame. His or
her response will be considered by the Director, or the Legal Aid Board, as the case may be, in coming to its decision on whether the
relevant ground for the cancellation of aid has been satisfied.
D. Cancellation of Aid by Court

[16.14.6] At any time during the course of a case, any other party to the proceedings (other than the aided person) or the Director, may
apply for aid to be cancelled, on the basis that the aided person has (a) wilfully failed to comply with any regulation to furnish
information; or (b) in furnishing any such information, he or she has knowingly made a false statement or false representation. The
court may make the order to cancel aid from such date as it sees fit, but must first give the aided person the opportunity to show cause
why aid should not be cancelled. 105 If the court makes the order to cancel aid, it must inform the Director straight away. 106
16.15 BARRING ORDER
[16.15.1] Where a person (including a guardian applying for aid on behalf of a minor) has applied for and been refused legal aid, or has
had his or her Grant of Aid cancelled, more than three times, and the Director is of the view that the person has abused the legal aid
system, the Director may order that any future applications by the person for aid should not be considered for a period of up to three
years from the date of the order. 107
16.16 MINORS
[16.16.1] Minors may apply for and be granted aid, and generally, they are governed by the same provisions in the LAAA and the LAAR
as aided persons who are adults, save for certain matters, which are set out in this section.
A. Guardian Must Apply For Aid On Behalf of Minor

[16.16.2] If the person who wants to apply for legal aid is a minor, then the application for legal aid needs to be made on his or her
behalf by his or her guardian. 108 If the proceedings for which the minor is seeking aid must, under the relevant rules of court, be
brought or defended by the guardian as his or her litigation representative, the applicant for legal aid on behalf of the minor must be
the guardian. 109 “Guardian” is defined as “any person whom the Director considers might properly be appointed to be the litigation
representative of the minor”. 110
[16.16.3] Before aid can be granted, the guardian must sign an undertaking to pay the Director any sums which the aided person is
required to pay the Director under the provisions of the LAAA and LAAR. 111
B. Director’s Powers to Make Inquiries

[16.16.4] The Director’s powers to make inquiries upon an application for aid being made (e.g. to require the applicant to attend
personally, furnish information, etc. – detailed in section 16.5 (Workflow and Processes) above 112 and section 16.8 (Urgent Cases –
Provisional Grant of Aid) above) 113 apply to both the guardian and the minor. 114
C. Means Test and Payment of Contribution

[16.16.5] The means test (see “Means Test” under section 16.4 (Eligibility for Aid) above) and the requirement to pay contribution (see
“Liability to pay contribution” under section 16.12 (Privileges and Responsibilities of a Legally-Aided Person) above) apply:
1. To the minor and the guardian, where the minor is unmarried and the guardian is a relative of the minor (that is, the means of
the minor and the guardian will each be considered, so each must pass the means test. Their respective incomes and assets will
not be added together for the purpose of calculating their respective disposable incomes and disposable capitals); and
2. in every other case, only to the minor. 115
[16.16.6] “Relative” is defined as the parents of a legitimate child, the adoptive parent of an adopted child, and the mother of an
illegitimate child. 116
D. Merits Test
[16.16.7] The merits test (see “Merits Test” under section 16.4 (Eligibility for Aid) above) is applicable to both the minor and the
guardian. 117
E. Minor Turning 21 Years

[16.16.8] If the minor turns 21 years while proceedings for which he or she has been granted aid are still continuing, and he or she still
requires aid, then he or she has to make a fresh application for aid on his or her own behalf. 118
16.17 STAFF AND STRUCTURE OF THE BUREAU
[16.17.1] The Bureau has in-house legal officers, as well as paralegals. The Bureau’s in-house legal officers comprise the Director of
Legal Aid, and Deputy Directors and Assistant Directors of Legal Aid, appointed by the Minister. 119 These are all qualified persons
under section 2 of the Legal Profession Act (Cap 161), 120 and have the right to appear in all Singapore courts. 121 They are also deemed
to be public servants within the meaning of the Penal Code (Cap 224). 122
[16.17.2] The in-house legal officers give legal advice and represent applicants in court proceedings. The paralegals of the Bureau assist
the legal officers by doing the first drafts of standard court documents, liaising with the applicants and handling administrative matters
for case-files. They also assist in the management of assigned files (see section 16.18 (Assigned Solicitors) below for more information on
the assignment of files).
[16.17.3] The Bureau also has a scheme under which qualified persons who do not have a practising certificate can volunteer to help in
the Bureau’s work. They are gazetted as Assistant Directors of Legal Aid and assist the Bureau in giving advice to applicants and doing
administrative court hearings.
16.18 ASSIGNED SOLICITORS
[16.18.1] The LAAA provides that the Director may maintain panels of solicitors to help in legal aid and advice work (i.e. Assigned
Solicitors). 123 These are advocates and solicitors who have practising certificates, and they assist the Bureau by representing applicants
in court proceedings (including providing an opinion to the Legal Aid Board on the merits of the case), and also sitting on the Legal Aid
Board (see “Merits Test” under section 16.4 (Eligibility for Aid) above). Assigned Solicitors handle about one-third of the Bureau’s legal
aid cases. The Bureau assigns cases out in situations of conflict (see section 16.7 (Conflict Cases) above), and also in specialised areas
such as Syariah law and medical negligence, where it has less in-house expertise.
A. Appointment as an Assigned Solicitor

[16.18.2] Any solicitor may apply to be on the Bureau’s panel, and is entitled to be appointed and to remain on the panel, unless there is
a good reason either not to appoint him or her or to remove him or her. 124 This would be if:
1. He or she does not have a practising certificate;

2. He or she requests the Director to remove him or her from the panel;
3. He or she has shown from his or her conduct in handling assigned cases or his or her professional conduct generally that he or
she is not suitable to be or to remain on the panel; and
4. For any other reason, the Director is of the opinion that the solicitor is not a suitable person to be or to remain on the panel/it is
necessary or expedient to exclude or remove the solicitor’s name from the panel. 125
[16.18.3] Any solicitor aggrieved by a decision to exclude or remove him or her from the Bureau’s panel may appeal to a High Court
judge, whose decision in the matter is final. 126
B. Assigned Solicitors’ Costs

[16.18.4] Assigned Solicitors are paid a fee for their work in giving opinions, representing the applicants in court proceedings, and
sitting on the Legal Aid Board. 127
[16.18.5] The sum payable to Assigned Solicitors for sitting on the Legal Aid Board is $50 for each sitting. 128
[16.18.6] For work done for court proceedings and rendering opinions: 129
1. If the amount claimed by the Assigned Solicitor does not exceed S$1,000, then the Director may, at his or her discretion, approve
the payment of the Assigned Solicitor’s costs without taxation.
2. If the amount claimed by the Assigned Solicitor exceeds S$1,000, then the Assigned Solicitor is entitled to the full amount
allowed on taxation of the costs for disbursements, and 50% of the amount allowed on taxation for solicitor and client costs. 130
[16.18.7] It has been held that only payments received by a solicitor directly from his or her legally-aided client in respect of costs
incurred for work done after the issue of the Grant of Aid would constitute a breach of regulation 15(1) of the LAAR, and not the prior
act of rendering a bill – see The Law Society of Singapore v Chua Swee Keng. 131 Thus if a solicitor bills his or her legally-aided client for
work done after the issue of the Grant of Aid but does not collect on the bill, he or she would not be in breach of regulation 15(1) of the
LAAR.
[16.18.8] This case also held that if the legally-aided client pays the solicitor for work done before the issue of the Grant of Aid, pursuant
to a bill rendered or fee arrangement made before the issue of the Grant of Aid, this is also not a contravention of regulation 15(1) of the
LAAR. However, it was not decided whether if the legally-aided client pays the solicitor for work done before the issue of the Grant of
Aid, pursuant to a bill rendered or fee arrangement made after the issue of the Grant of Aid, this would contravene either regulation
15(1) of the LAAR or regulation 10(2) of the LAAR (pursuant to which a solicitor may notify the Director of the amount of pre-legal aid
costs incurred in acting for a client who was subsequently granted legal aid) – see The Law Society of Singapore v Chua Swee Keng. 132
[16.18.9] It is submitted that it would not contravene either regulation, since:
1. The purpose of regulation 15(1) of the LAAR is to deal with costs incurred after the date of issue of the Grant of Aid, for which
the Bureau is responsible – the Bureau is not concerned with costs incurred before the date of issue of the Grant of Aid since it
is not responsible for paying these costs; and
2. The purpose of regulation 10(2) of the LAAR is to enable the Assigned Solicitor to collect his or her pre-legal aid costs from
moneys which are eventually recovered for the aided person, with the Bureau’s help – but if the Assigned Solicitor is able to
collect them from the aided person directly, without needing to collect it from the moneys recovered for the aided person, there
is no reason for the Bureau to stop him or her from doing so.
C. Assignment of Cases and Discontinuance of Aid

[16.18.10] The Director will decide the Assigned Solicitor a case is assigned to. The aided person will generally not be allowed to choose
which Assigned Solicitor he or she wants. However, if there is a good reason for requesting a particular Assigned Solicitor to do his or
her case (for example, if he or she is already being assisted by the Assigned Solicitor in related proceedings), then he or she may make
the request to the Director, for the Director’s consideration.
[16.18.11] An aided person may not discharge his or her Assigned Solicitor without leave from the Director. 133 Conversely, an Assigned
Solicitor may not discontinue his or her aid without the Director’s leave, though the aided person may be represented by another
solicitor. 134
D. Conduct of Proceedings by Assigned Solicitor

[16.18.12] The Assigned Solicitor, in conducting the proceedings:
1. Must get the Director’s leave to make a court application to add a further party to the proceedings, request a record of
proceedings, lodge an interlocutory appeal, instruct more than one solicitor, or set-up or set-off any right or claim having the
same effect as a cross action (other than a counterclaim or set-off arising out of the same transaction and capable of being
pleaded as a defence). 135
2. Must apply to the Director for permission to obtain an expert report or engage an expert witness if it is not within a particular
class of case where the Director has given general authority to solicitors acting for aided persons in that class to do so, or if a
higher fee than stated by the Director for that class is to be paid for that expert report or expert witness. 136
3. Must apply to the Director for approval if he or she intends to undertake an act which is unusual in nature or involves
unusually large expenditure. 137
4. May not entrust the conduct of the case to any other person. 138
5. Must give the Director updates on the progress of the case when asked, including whether the aided person has died or has a
receiving order made against him or her. 139
E. Discharge of Assigned Solicitor

[16.18.13] The Assigned Solicitor may discharge him or herself from acting for an aided person in the same circumstances as for a non-
aided client. In addition, he or she may discharge him or herself if:
1. In his or her opinion, the aided person has required him or her to conduct the proceedings in such a manner so as to incur an
unjustifiable expense to the Legal Aid Fund, or unreasonably insisted on the continuance of the proceedings; or
2. The aided person has wilfully failed to provide information required by the Assigned Solicitor, or knowingly made a false
representation in furnishing the information. 140
[16.18.14] For both situations, the Assigned Solicitor has to make a report to the Director on the circumstances in which he or she
exercised the right to discharge him or herself. 141
16.19 CONCLUSION
[16.19.1] The Bureau, with the help of its Assigned Solicitors and volunteer Assistant Directors of Legal Aid, has provided legal services
to thousands of less-privileged persons for their matrimonial and other matters, ever since the Legal Aid and Advice (Amendment)
Ordinance, 1958 (the precursor to the LAAA), came into operation on July 1, 1958. The need for its services today remains as great as
ever. The Bureau will continue to fulfil its mission in the years to come – to provide quality legal aid and advice to the less-privileged,
and enable them to get access to justice, with both passion and compassion.
FOOTNOTES
1 Singapore Parliamentary Debates, (June 6, 1956), vol 1, col 1957 at 1957–1958.
2 Singapore Parliamentary Debates, (February 22, 1977), vol 36, col 304 at 340–341.
3 GKY/4573/2010 and GKY/4575/2010.
4 JCY/8723/2011.
5 LDS/7209/2014.
6 Chan Tin Sun v Fong Quay Sim [2015] 2 SLR 195.
7 References in this chapter to: (a) legal aid shall also include references to legal assistance; (b) “legal aid” shall also be taken to mean “aid” and vice versa; and
(c) “applicant” shall mean the applicant for legal aid, advice or assistance, as the case may be, and where the reference is to an applicant for legal aid, shall
also include a reference to an “aided person”, in a situation where aid has been granted.
8 See section 5(1) of the LAAA, First Schedule, Parts I and II.
9 For example, a mediator or an arbitrator.
10 An individual who wants to assert a public (as opposed to a private) right would have to apply to the Attorney-General for his authority to commence an
action in the latter’s name. The individual would be the “relator” and the Attorney-General would sue on the relation of that individual. The relator would pay
the Attorney-General’s costs. For a discussion on relator actions in Singapore, see Tham Lijing, “Casting the Relator Action” (Introduction), [2014] (September)
Singapore Law Gazette, <http://www.lawgazette.com.sg/2014-09/>.
11 This refers to proceedings under the Debtors Act (Cap 73).
12 See section 20(2) of the LAAA.
14 See section 18 of the ICAA.
15 See section 20(4)(a) of the LAAA.
17 See section 17 of the ICAA.
19 See section 8(2)(b) of the LAAA.
21 See section 8(2)(a) LAAA.
22 See section 8(2)(b)(i), read with section 1 of the Second Schedule to the LAAA.
23 See section 4 of the Second Schedule to the LAAA.
24 A “life policy” has the same meaning as in paragraph 5 of the First Schedule to the Insurance Act (Cap 142) but does not include any investment-linked policy
as defined in paragraph 6 of the First Schedule to that Act. See section 4 of the Second Schedule to the LAAA, under the definition of “life policy”.
25 See section 8(1) of the Second Schedule to the LAAA.
26 See section 8(2)(b)(i), read with section 1 of the Second Schedule to the LAAA.
32 For more information on the Spyros disaster, see Legal Aid Bureau, “Access to Justice – 50 years of Legal Aid”, pp 19–20.
33 Singapore Parliamentary Debates, (July 7, 1995), vol 64, col 1344.
34 Under sections 6(1) and 20(4) of the LAAA, an applicant for legal aid or legal advice must make an application for it to the Director.
35 In the past, applicants for legal advice had to pay a fee of S$1 to apply for legal advice or aid. However, the requirement was removed through legislative
amendments in May 2016 – see section 15 of the Statutes (Miscellaneous Amendments) Bill No 15/2016, which was passed at the second reading on May 9,
2016.
36 Under section 7(a)–(c) of the LAAA, the Director may make inquiries on the means of the applicant and the merits of the case, require the applicant to furnish
such information and documents as the Director may require to consider his or her application for aid, and require the applicant to attend personally at the
Bureau for appointments. Regulation 3(1) of the LAAR states that any applicant for legal aid must complete the application form in Form 1 as set out in the
Schedule to the LAAR, and regulation 3(2) LAAR states that the legal aid application shall contain such information and shall be accompanied by such
supporting documents as: (a) may be necessary to enable the Legal Aid Board to determine the nature of the proceedings for which legal aid is sought, the
circumstances in which it is required, and the question whether it is reasonable for aid to be granted; and (b) for the Director to determine the disposable
income and disposable capital of the applicant.
37 See section 7(d) of the LAAA empowers the Director to refer the application or any matter arising out of the legal aid application to any Assigned Solicitor for
a report on the application or an opinion on the case.
38 See regulation 5(4) of the LAAR.
39 See regulation 5(5) of the LAAR. This Grant of Aid will be issued in Form 3 of the Schedule to the LAAR.
42 See regulation 5(1) and (2) of the LAAR.
43 See section 18 of the LAAA; regulation 5(1) of the LAAR states that a Grant of Aid may be issued in respect of the whole or a part of: (a) proceedings in a court
of first instance; or (b) proceedings in an appellate court. However, it may not be issued in respect of proceedings both in a court of first instance and in an
appellate court (other than interlocutory appeals).
44 See section 11 of the LAAA.
47 [2008] SGDSC 6 at [10.5].
49 See regulation 10 of the LAAR.
50 This is a fund into which is paid all contributions by applicants, costs recovered for an aided person, and other sums (see regulation 2A of the LAAR for details
on the payments which are supposed to be made into the Legal Aid Fund).
51 If there is no order for taxation, the Director shall fix the amount of the costs – see regulation 10(4) of the LAAR.
58 See section 12(4)(d) of the LAAA.
59 See section 12(4)(c) of the LAAA; in one case, the Court of Appeal made a costs order against a legally-aided respondent to an appeal, but the Court of Appeal
rescinded the order subsequently, after finding out that the respondent was legally-aided – see United Overseas Bank Ltd v Bebe bte Mohammad [2006] 4
SLR(R) 884 at [100].
60 See BFK v BFL [2013] SGDC 10 at [50], where the court dismissed an application by a husband for the cost of a private investigator’s report, to be deducted
from the legally-aided wife’s share of the sale proceeds in the matrimonial home, on the basis that, inter alia, such an order would contravene the relevant
provision of the LAAA.
61 For cases where a Grant of Aid has been obtained by fraud or misrepresentation, the definition of an aided person includes a formerly aided person, if the
Grant of Aid has been cancelled before the making of the order for costs – see section 14(2) of the LAAA.
62 See section 14(1) and (3) of the LAAA.

65 [2015] SGFC 57 at [16].
66 [2009] SGDC 400.
67 Ibid at [38], per District Judge Jocelyn Ong.
68 See section 9(1) of the LAAA and regulation 5(3) of the LAAR.
72 See section 13(2) and (2A) of the LAAA.
73 See section 13(3) and (5) of the LAAA.
74 See section 12(5) of the LAAA; also see the case of The Law Society of Singapore v Chua Swee Keng [2008] SGDSC 6 at [10.6], where the Disciplinary Committee
decided that the Assigned Solicitor’s request to the legally-aided complainant to pay a sum of $6,000 in respect of anticipated disbursements for a trial was a
breach of regulation 15(1) of the LAAR, which governs the payment of costs to a solicitor who acts for a legally-aided client (see section 16.18 (Assigned
Solicitors) below for more information on regulation 15(1) of the LAAR).
77 See section 9(2) of the LAAA and regulation 9(4) of the LAAR. The latter extends the application of section 9 of the LAAA in the event of the cancellation of a
Grant of Aid.
78 However the first charge does not prevent the court from allowing the damages or costs amount to be set off against other damages or costs in any case where
a solicitor’s lien for costs would not prevent it. Hence, if the aided person was awarded $5,000 on his or her claim, and the other party was awarded $3,000 on
his or her counterclaim, then notwithstanding that the aided person had an unpaid contribution amount of $500, the court could set off the $5,000 amount
against the $3,000 amount. See section 9(5) of the LAAA.
81 See the case of BFK v BFL [2013] SGDC 10 at [52], where the court specifically ordered the costs for various adjournments of hearings to be paid to the Director
of Legal Aid.
84 See section 12(6)(a) and (b) of the LAAA; In this regard, the Director has a choice of whether to require the aided person to take out such proceedings
personally, or to take out such proceedings in the Director’s own name without the aided person’s permission, if: (a) the aided person fails, refuses or is
unable to take out such proceedings, or (b) the Director is of the view that it is a reasonable and expedient course of action, having regard to the probable cost
of the proceedings and the chances of success – see regulation 14(4) of the LAAR.

90 See section 10(3) of the LAAA; section 10(4) of the LAAA states that the time during which proceedings are stayed by virtue of section 10(3) of the LAAA may
be reduced or extended by court order.
93 See regulation 9(5)(a) of the LAAR.
94 See regulation 9(5)(b) of the LAAR.
95 See regulation 8(1)(a) of the LAAR.
96 See regulation 8(1)(b) of the LAAR.
97 See regulation 8(1)(c) of the LAAR.
98 See regulation 8(1)(h) of the LAAR.
99 See regulation 8(1)(e) of the LAAR.
100 See regulation 8(1)(f) of the LAAR.
101 See regulation 8(1)(i) of the LAAR.
102 See regulation 8(1)(d) of the LAAR.
103 See regulation 8(1)(g) of the LAAR.
110 See section 2 of the LAAA.
112 See fn 36 above.
113 See fn 45 above.
114 Section 6(3)(a) of the LAAA.

123 Section 4 of the LAAA.
125 See section 4(2A) of the LAAA.
130 See regulation 15(2) and (3) of the LAAR for information on which court the costs are to be taxed in.
131 [2008] SGDSC 6 at [10.6.14].
132 Ibid at [10.9.1]–[10.9.12].
135 The set-up or set-off of any right or claim having the same effect as a cross action referred to means to bring an entirely different claim into the suit, which
would be a valid legal claim that the defendant could bring in a separate suit. For example, if A buys a sofa from a furniture store but fails to pay the full price
of $1,000, and is sued by the furniture store for the balance of $800. However, A was injured while he was in the furniture store when he slipped and fell on a
wet patch which was not cleaned up due to the store’s negligence. A’s medical expenses and the amount he feels he should get for his pain and suffering
amount to $500. As the defendant, A has the right to assert a counterclaim for damages for his fall. If A succeeds, the set-off reduces the amount owed to the
plaintiff furniture store, so that A ends up owing the store only $300.
See regulation 12(2) of the LAAR; for a definition of set-off, see <http://legal-dictionary. thefreedictionary.com/Set-off> (last accessed on May 10, 2016).
136 See regulation 12(3) and (4) of the LAAR. It should be noted that the Director has not, to date, given general authority to solicitors acting for aided persons in
any class of case to obtain expert reports or engage an expert witness. Thus, currently, an Assigned Solicitor who wishes to obtain an expert report or engage
an expert witness in any legally-aided case must apply to the Director.
137 See regulation 12(6) of the LAAR; if the Assigned Solicitor obtains approval for the act, then if and when his or her bill for the proceedings is taxed, no
question will be raised on the propriety of the act.

2016 - 10 - 17 PAGE 499

Chapter 17: Alternative Dispute Resolution in the Family Justice Courts
Chapter 17
Alternative Dispute Resolution in the Family Justice Courts

Kevin Ng and Sim Khadijah Mohammed *

17.2 ADR as an Integral Part of the Dispute Resolution Process 501
17.3 Evolution of Dispute Resolution Schemes 503
A. Counselling and Mediation, Pre-2006 503
B. Family Resolutions Chambers (“FRC”), 2006 504
C. Maintenance Mediation Chambers (“MMC”), 2007 505
D. Counselling and Psychological Services (“CAPS”), 2009 505
E. Child Focused Resolution Centre (“CFRC”), 2011 508
F. Family Dispute Resolution (“FDR”) Division, 2014 509
G. Other Complementary Dispute Resolution Schemes 510
1. Volunteer Mediator (“VM”), mid-2000s 511
2. Collaborative Family Practice (“CFP”), 2012 511
3. Parenting coordination (“PC”), 2016 512
17.4 Approach to Mediation 512
A. Benefits of Mediation in Family and Matrimonial Disputes 513
1. Mediation significantly reduces the length of proceedings 514
2. Mediation significantly reduces the acrimony in proceedings 514
3. Mediation gives parties a platform to air and manage their emotions 515
4. Mediated agreements tend to be more satisfactory and sustainable than orders imposed post-litigation 515
5. Mediation offers a more cost-effective and cheaper alternative to litigation 517
B. Multi-Disciplinary Approach Combining Judicial and Social Science Perspectives 517
C. Putting Children’s Interests at the Heart of FDR 519
17.5 The Family Dispute Resolution (“FDR”) Programme and Other Schemes 520
A. FDR Programme 520
1. FDR Conference 520
2. Intake and assessment 521
3. Counselling 522
4. Mediation or co-mediation 522
B. Other Schemes 523
1. Maintenance Mediation Chambers (“MMC”) 523
2. Private mediation 524
17.6 Mediation of Various Aspects of Divorce 524
A. The Divorce 525
B. Issues Relating to Children 525
C. Financial Issues of Maintenance and Division of Matrimonial Property/Assets 526
17.7 The Way Forward 527
A. Training and Accreditation of Family Mediators 527
B. Growing Private Family Mediation 527
C. Child-Inclusive Mediation and Counselling (“CIMC”), 2015 528
D. Parenting Coordination (“PC”), 2016 529
17.8 Conclusion 529
17.1 INTRODUCTION
[17.1.1] The evolution of family law in Singapore over the years has seen an increased emphasis on and utilisation of alternative
dispute resolution (“ADR”) mechanisms. In particular, counselling and mediation has found favour with the Family Justice Courts (“FJC”)
(known as the “Family Courts” up until September 30, 2014) over the past decade or so.
[17.1.2] Given the relational and emotional complexities of family and matrimonial disputes, the FJC has developed schemes over time
which address not only the legal, but psychological and sociological aspects of such disputes. This holistic case management approach
integrates social science principles and practices with legal remedies, thereby enabling parties to resolve both the short and long-term
consequences of divorce and other family-related disputes in as practical and sustainable a manner as possible. 1
[17.1.3] Together with the expertise of the social science and mental health professionals from the Counselling and Psychological
Services (“CAPS”) of the FJC, the judge-mediators in the Family Dispute Resolution (“FDR”) Division seek to resolve family and
matrimonial disputes through a multi-disciplinary approach.
[17.1.4] This chapter will focus on family ADR in the FJC, with a particular focus on counselling and mediation. It will explore the
benefits and usages of counselling and mediation (including current and previous schemes), how parties and lawyers can make the best
use of family counselling and mediation, and the vision of the FJC for family ADR going forward. With a better understanding of the
benefits of family ADR in Singapore, it is hoped that will bring about a greater appreciation of, support for, and use of family ADR
within the family justice eco system, as well as the community at large.
17.2 ADR AS AN INTEGRAL PART OF THE DISPUTE RESOLUTION PROCESS
[17.2.1] Over the years, the employment of counselling and mediation in resolving family and matrimonial disputes have become a
cornerstone of the FJC’s overall case-flow management, so much so that these methods have become an integral part of the family
justice process, and not merely adjunct to it. The FJC has, thus, increasingly become a forum to facilitate cooperation and
communication between parties, rather than just a place for families to litigate their respective disputes. 2
[17.2.2] This paradigm shift in mindset amongst family law practitioners and parties did not take place overnight. Instead, the shift
from the traditional adversarial type of legal culture towards one that is more cooperative, conciliatory, child-focused and child-
inclusive was a gradual one. Such a move was achieved through a series of law reforms and initiatives which included procedural and
substantive changes to family law and practice. 3 In addition, the FJC, together with its stakeholders, intensified efforts to incorporate
schemes (mandatory and voluntary) which refocused the attentions of practitioners and parties on the overall well-being (including the
psychological and emotional well-being) of the parties and of the children.
[17.2.3] In February 2015, the Chief Justice of Singapore, Sundaresh Menon emphasised the essential role of ADR as a dispute resolution
mechanism in Singapore:
[M]ediation, counselling and other types of constructive problem solving measures are not alternatives to the court process – they
are instead necessary elements of the process and are worked into the life cycle of the case...
ADR is no longer an alternative but it is part of the mainstream of dispute resolution mechanisms. These exist together with and
alongside litigation and other dispute resolution processes as part of a continuum. There isn’t and shouldn’t be a hard line that
separates court processes from other processes. 4
[17.2.4] Chief Justice Menon’s comments unequivocally illustrate that ADR mechanisms such as counselling and mediation are to be
considered an integral part of the dispute resolution process which co-exists with litigation. This is especially true within the context of
family and matrimonial disputes.
[17.2.5] In March 2016, Chief Justice Menon reiterated the importance of a diversified range of dispute resolution options and suggested
that it would be timely to embrace a paradigm shift and to understand “ADR” as a reference to “Appropriate Dispute Resolution” instead.
Chief Justice Menon also urged the Singapore courts to embrace the reality that different disputes call for different measures, and to be
equipped or redesigned to resolve disputes as appropriately as possible. 5
17.3 EVOLUTION OF DISPUTE RESOLUTION SCHEMES
[17.3.1] Over the course of the last decade or so, several dispute resolution schemes have been introduced and adopted in the FJC, so as
to give greater emphasis to the resolution of family and matrimonial disputes by more conciliatory means. In particular, several
counselling and mediation schemes were introduced as part of the overall case-flow management, namely:
1. Counselling and Mediation, pre-2006;

2. Family Resolutions Chambers (“FRC”), 2006;
3. Maintenance Mediation Chambers (“MMC”), 2007;
4. Counselling and Psychological Services (“CAPS”), 2009;
5. Child Focused Resolution Centre (“CFRC”), 2011; and
6. Family Dispute Resolution (“FDR”) Division, 2014.
[17.3.2] In most of these schemes, counselling and mediation are conducted in-house by officers of the FJC, as well as qualified
volunteers registered with the FJC. Each of these schemes is elaborated upon in further detail below.
A. Counselling and Mediation, Pre-2006

[17.3.3] Counselling and mediation were entrenched in the then Family Courts through the introduction of section 50 of the Women’s
Charter (Cap 353) (the “Charter”) in 1996. Section 50(1) and (2) provide that:
Court may refer parties for mediation or to attend counselling

50.–(1) A court before which any proceedings under this Act (other than proceedings under section 104) are being heard may give
consideration to the possibility of a harmonious resolution of the mater and for this purpose may, with the consent of the parties,
refer the parties for mediation by such person as the parties may agree or, failing such agreement, as the court may appoint.
(2) A court before which any proceedings under this Act (other than proceedings under section 65 or 66) are being heard may, if it
considers that it is in the interests of the parties or their children to do so, at any stage in the proceedings direct or advise either or
both of the parties or their children to attend counselling provided by such person as the Minister may approve or as the court may
direct.
[17.3.4] In the mid-1990s to mid-2000s, counselling was carried out by court counsellors. Mediation for matrimonial and family disputes
was conducted on an ad hoc basis by judicial officers, court interpreters, volunteer mediators and private mediation service providers. 6
B. Family Resolutions Chambers (“FRC”), 2006

[17.3.5] The FRC was formed in 2006 as a dedicated in-house mediation unit. It introduced judge-led mediation services for divorce
custody disputes and divorce ancillary matters, where both parties consented to attend mediation to resolve their disputes. Besides
judge-led mediations, co-mediation with a judge-mediator and a court counsellor or psychologist was also available, along with referral
services for in-house counselling, and for external parenting programmes such as parenting workshops. 7
[17.3.6] The FRC, through its unique judge-mediator modality, achieved a good rate of resolution. 8 This became instrumental in
encouraging more lawyers and their clients to turn to mediation to resolve their disputes without resorting to full-fledged litigation. The
FRC then started shifting the mindset of family lawyers towards mediation advocacy and the practice of mediation. This led to the
interest and growth in private family mediation and volunteer family mediation. Given that mediation at the FRC was voluntary and
only embarked upon where everyone agreed to mediate, it was determined that more could and should be done to channel parties,
particularly those with children, for counselling and mediation.
[17.3.7] The FRC and the CFRC (elaborated upon below) were merged and became part of the FDR Division on October 1, 2014.
C. Maintenance Mediation Chambers (“MMC”), 2007

[17.3.8] The MMC was set up in 2007 to handle cases of spousal and child maintenance, and the enforcement of maintenance payments.
Mediations at the MMC are conducted by court staff and volunteer mediators who are trained in family mediation. 9
[17.3.9] Unlike the voluntary FRC scheme, MMC mediations form part of the life-cycle of applications for spousal maintenance, child
maintenance or enforcement of maintenance, unless there are exceptional reasons why mediation is not appropriate (e.g. multiple
previous enforcement proceedings). Agreements reached at MMC mediations between the parties are recorded as consent orders before
a judge.
[17.3.10] Given the high rates of Litigants-in-Person (“LIPs”) involved in these types of cases, 10 the availability of this mediation scheme
results in better case management for the court and a less protracted process for the LIPs. The settlement of cases at MMC mediations
reduces the number of legal documents which needs to be prepared by the LIPs and the number of legal processes they have to go
through. The number of cases that proceed for a full trial is also significantly reduced. A sizeable portion of spousal maintenance, child
maintenance and enforcement of maintenance applications are resolved at the MMC stage by way of mediated consent orders.
D. Counselling and Psychological Services (“CAPS”), 2009

[17.3.11] Whilst not a dispute resolution scheme in and of itself, the counselling and psychological services provided by the court
counsellors play a vital role in helping with the resolution of matrimonial and family disputes.
[17.3.12] Begun in the mid-1990s to fulfil the principle of providing holistic solutions for families in crisis or conflict, the counselling
arm of the then Family Court (renamed the “Family Justice Courts” on October 1, 2014) and the psychological arm of the then Juvenile
Court (renamed the “Youth Courts” on October 1, 2014) were merged in 2002. Sharing common constituents, the two courts and divisions
began a process of integration, tackling such issues as marital breakdown, neglect and abuse, and juvenile crime in a holistic and
coordinated manner. Looking beyond individual litigants, an ecological framework tackles juvenile and family justice issues on many
levels and on many fronts. The focus of the system is on the building and maintaining of social and familial relationships. In 2009, this
group of professionals were named the Counselling & Psychological Services (CAPS).
[17.3.13] CAPS includes court counsellors, psychologists and social workers (hereinafter referred to as “court counsellors”) who provide
conciliation counselling and custody evaluation services in divorce matters, safety assessment and family conferencing (where
appropriate) in family violence cases and youth risk assessment, and facilitate Family Conferences in the Youth Courts. 11
[17.3.14] The court counsellors’ role typically falls within two broad categories, i.e. counselling or evaluation. Under the counselling
umbrella, the court counsellors’ role is to complement the ADR processes within the FJC. In this role, they are tasked with helping
divorcing couples conciliate their differences, and assisting divorcing parents to understand and further their children’s interests.
Through these conciliation counselling sessions, the court counsellors assist the parties to work out feasible and sustainable agreements
and parenting plans, which may then be recorded as a consent order by a judge or discussed further at the mediation stage. CAPS
utilises the child-focused and child-inclusive dispute resolution models as part of their conciliation work.
[17.3.15] Under the evaluation umbrella, the court counsellors’ role is to complement the litigation process within the FJC. In this role,
they are tasked with assessing child-related issues such as the parenting capacity of the parties, the suitability of proposed parenting
plans in light of the children’s needs and any risks to the children posed by the parties themselves. The court counsellors then assist the
hearing judge by preparing a Custody Evaluation Report (“CER”), Access Evaluation Report (“AER”) or Specific Issues Report (“SIR”),
following their interviews with and assessments of the parties, their children and other relevant persons such as relatives, teachers, etc.
12
[17.3.16] Apart from the above two roles, court counsellors also manage family violence matters at the FJC, namely in the applications
for Personal Protection Orders (“PPOs”). In this role, the court counsellors speak to the applicants at the time of application. During the
course of this session, the court counsellor dispenses significant information relating to the family violence complaint or proceedings,
provide therapeutic assurances if the applicant is displaying signs of trauma or anxiety, conduct a risk assessment as to the potential
harm to the applicant and the children (if any), and facilitate a safety plan, going forward. The court counsellors may also link the
applicant to relevant help services, such as Family Service Centres and crisis shelters, as part of the safety plans. The court counsellors’
risk assessment in such applications will subsequently be taken into consideration by the Duty Judge in determining if interim personal
protection (called an “Expedited Order”) is required in the interim period, pending the next court event. During the court mentions, the
court counsellors also see both parties and sometimes their families for counselling or family conferences to address the safety concerns
of applicants and general victims of the violence (including children) and to provide a platform to address underlying issues relating to
the applications for PPOs by family members in dispute.
[17.3.17] Another unique hybrid role which the court counsellors undertake is in the Youth Courts. The Restorative Justice Model
adopted by the Youth Courts is aimed at reintegrating offenders and youths at-risk and their families into society via group decision-
making. This process brings together all available community resources and relevant stakeholders with a common goal of rehabilitating
the child or young person and “restoring” him or her back as a useful and productive member of society. The decision-making process
takes place at Chamber Discussions, facilitated by the Youth Courts judge. The court counsellor participates in this process by providing
expertise in psycho-legal issues relevant in the cases discussed. This aids in the recommendations for appropriate dispositional orders
and rehabilitation programmes.
[17.3.18] The court counsellors also facilitate Family Conferences (“FCs”) directed by the Youth Courts judge to address specific issues
relevant to the rehabilitation and restoration of the youth offender to the community. The FCs are convened to serve as a platform for
the youth offender’s family, the community and the various external agencies (i.e. the youth offender’s school authorities, counsellor,
probation officer, caseworker or social worker from the homes (in some cases), psychologist, victim, the police, etc.) to come together to
collaborate in a manner which allows the multiple problems facing the youth offender and his or her family to be dealt with holistically
for the benefit of the youth offender’s rehabilitation. In some instances, apologies to the victim and his or her family, a formal caution or
reprimand and a social undertaking by the offender is also explored.
[17.3.19] Recently, FCs have also been extended to Care and Protection Order cases. The role of the FCs here aims to provide a neutral
perspective on the concerns presented by the Child Protection Services (“CPS”) and the defences made by the family. It is believed that
the concerns raised can be resolved if the family receives relevant and sufficient support from the community over a period of time.
The dialogue during the FC is aimed that invoking insights in caregivers; of their potential, abilities, capacities and knowledge, to
construct solutions that are practical and realistic to meet their essential needs.
E. Child Focused Resolution Centre (“CFRC”), 2011

[17.3.20] Realising that more is needed to be done to help children whose parents have filed for a divorce, the Singapore Ministry of
Family and Social Development (“MSF”) amended the Charter (the primary legislation in relation to marriage and divorce) in 2011. The
amendments mandated that parties who want to divorce, and who have at least one minor child, must attend a counselling and
mediation programme. The purpose was for the parties to focus on child arrangement and co-parenting issues. The Child Focused
Resolution Centre (“CFRC”) of the FJC was set up to carry out this programme.
[17.3.21] The mandatory counselling and mediation scheme started with divorcing parties with at least one minor child below the age
of eight years from September 26, 2011. The scheme was subsequently extended to parties with at least one minor child below the age of
14 years from July 1, 2013, and thereafter to parties with at least one minor child below the age of 21 years from October 1, 2014. 13
[17.3.22] It was envisaged that with the CFRC scheme, parties would come to realise that although they were divorced and no longer
husband and wife, their parental obligations were lifelong and they would have to find ways and means of cooperating with and
supporting each other in respect of co-parenting and access arrangements, and caring for their children’s needs.
[17.3.23] CFRC cases were identified early in the court process life cycle. Parties were directed to attend a CFRC Conference. Issues
relating to the children’s care arrangements, access and maintenance were explored at the CFRC Conference and at the subsequent
counselling session(s).
[17.3.24] Court counsellors would conduct one or more counselling session(s) with the parties to explore caregiving and access
arrangements, and to educate the parties on the best practices in relation to co-parenting and child development. These counselling
sessions were instrumental in assisting the parties to address underlying relational and emotional conflicts which affected the
willingness of parties to co-operate on co-parenting arrangements and other ancillary issues.
[17.3.25] At the mediation or co-mediation stage, the judge-mediator would try to resolve any outstanding issues in respect of the
divorce or ancillary matters which could not be resolved at the counselling stage. Co-mediation at the FJC is unique in that the parties’
case would be mediated by a judge-mediator together with a court counsellor or psychologist. By allowing the legal aspects of the case to
be complemented by the social science perspective, highly acrimonious parties would be able to reach solutions which were not only
legally sound, but would also have the least impact on the children and their developmental needs.
[17.3.26] The CFRC scheme gave to parties the full benefit of the legal and social science expertise that the FJC had to offer. The success
of this model prompted the FJC to employ many of the same processes and techniques in other cases involving children but not
governed by the Charter, such as applications under the Guardianship of Infants Act, (Cap 122) and applications for the relocation of
children.
[17.3.27] The CFRC and the FRC were merged under the FDR Division on October 1, 2014. The CFRC scheme is elaborated on further
under the FDR Programme section of this chapter.
F. Family Dispute Resolution (“FDR”) Division, 2014

[17.3.28] With the establishment of the FJC on October 1, 2014, the FRC, CFRC, MMC and CAPS formed the Family Dispute Resolution
(“FDR”) Division. This merger brought the various ADR schemes and programmes of the FJC under a single division, so as to create
greater synergy between the ADR teams. The operations of the FRC and CFRC were merged to allow the use of the judge-mediator and
court counsellor model for all child-related cases.
[17.3.29] The FDR Division also expanded its scope into mediation training. In 2014, the FJC (through its FDR Division), working with the
Singapore Mediation Centre (“SMC”) and the Singapore International Mediation Institute (“SIMI”), began developing the Family
Mediation Training and Accreditation Framework. 14 This framework is used for the specialised training and accreditation of family
mediation practitioners. The first Family Mediation Training and Accreditation Programme was jointly organised by the FJC and SMC in
2014, training and accrediting 24 family mediators. 15 The SMC Family Panel of mediators was formed thereafter. The second of such
programme took place in 2015, bringing the total number of trained and accredited family mediators on the SMC Family Panel to 52.
[17.3.30] In October 2015, the FDR Division relocated its divorce and child-related ADR services to its new premises at the MND
Complex at Maxwell Road. The new premises are customised and aesthetically designed and furnished to provide a more conducive
setting for counselling and mediation, and to enhance conciliation and conflict resolution. Amenities include a waiting area for children,
and meeting rooms to facilitate discussions and negotiations. 16
G. Other Complementary Dispute Resolution Schemes

[17.3.31] Apart from the court ADR schemes, other schemes supported by the FJC include the following:
1. Volunteer Mediator (“VM”), mid-2000s;

2. Collaborative Family Practice (“CFP”), 2012; and
3. Parenting Coordination (“PC”), 2016 (pilot).
1. Volunteer Mediator (“VM”), mid-2000s

[17.3.32] The VM scheme started informally in the then Family Courts in the middle of the 2000s. Over time, family lawyers and family
law academics began to volunteer their time to conduct mediation at the FRC, and later at the CFRC, on a regular basis. Non-legal
professionals also began volunteering at the MMC. The volunteers consisted of accredited and non-accredited mediators.
[17.3.33] In 2014, with the establishment of the Family Mediation Training and Accreditation Framework, all existing and new
volunteer mediators have to undergo the Family Mediation Training and Accreditation Programme or other specialised family
mediation training and assessment programme.
[17.3.34] 2015 saw the official establishment of the VM Framework in the FJC. Under this Framework, the criteria and qualifications for
placement on the court’s VM panel were established. This included the criteria and qualifications for VMs at the FDR, as well as at the
MMC. VMs are appointed for a set term, and are eligible for reappointment if the criteria for such reappointment are met. These
measures are undertaken so as to ensure the quality and integrity of the mediation services provided at the FJC are preserved.
[17.3.35] The two Frameworks aid in the building up the private family mediation scene, and put in place the standards for private
family mediation practice.
2. Collaborative Family Practice (“CFP”), 2012

[17.3.36] In 2012, the then Family Courts (through the then Subordinate Courts), together with the Law Society of Singapore, strongly
supported the introduction of the Collaborative Family Practice (“CFP”) scheme. This scheme is an interest-based approach to
negotiations dealing with and trying to resolve matrimonial disputes in the pre-litigation stage. Through this scheme, family lawyers
and social science professionals receive specialised training provided by the SMC in collaborative law. To date, there are 41 CFP
practitioners comprising of family lawyers and social science professionals.
[17.3.37] The CFP scheme involves specially trained CFP lawyers, and other family specialists such as financial advisers and child
specialists as necessary, assisting the parties to negotiate an agreement before coming to court. To create an environment conducive to
settlement, in the event that a settlement is not reached, CFP lawyers are not allowed to represent the parties in any future litigation.
[17.3.38] In the event that all issues in relation to the divorce and ancillary matters are resolved, parties may file their divorce
application under the FJC’s simplified procedure for uncontested cases. Terms agreed upon by the parties are filed as a draft consent
order for the approval of the court. This approach allows parties to proceed with the divorce in a more amicable and less stressful
manner. Parties could then focus their attention on the future, and on attending to the needs of their children.
3. Parenting coordination (“PC”), 2016

[17.3.39] Parenting Coordination is a child-focused post-order or post-separation dispute resolution process. It is designed to provide
practical assistance to parents in co-parenting, carrying out of the parenting plan as ordered by the court, and resolving parenting
issues, including child access arrangements. The PC scheme is elaborated upon in further detail below.
17.4 APPROACH TO MEDIATION
[17.4.1] Broadly speaking, from the perspective of the FJC, the objective of mediation, together with counselling (where applicable), is to
achieve a resolution of the family or matrimonial dispute in the most cooperative and conciliatory manner possible. This is to reduce
the impact of the dispute on the parties and children, as well as to achieve sustainable outcomes. Along with the mandatory counselling
and mediation under the Charter referred to in paragraph [17.3.20] above, the Family Justice Act 2014 (No 27 of 2014) (“FJ Act”) was
enacted in 2014 to empower the court to direct parties in the proceedings “to undergo such mediation or counselling, or to participate in
such family support programme or activity, as the Family Court may direct.” 17 The Family Justice Rules 2014 were also promulgated to
provide for a more proactive judge-led approach to proceedings. 18 Court practice directions related to mandatory and directed
mediation and counselling were made in 2014. 19
[17.4.2] The various legislation are in line with the FJC’s vision of “[j]ustice that protects, empowers and restores”. This unique model of
counselling and mediation offered at the FJC seeks to refocus the attention of feuding parties on the substantive issues to be resolved in
the best interests of their children, whilst sufficiently addressing the underlying relational and emotional conflicts which may cause
impasse. The counselling and mediation model is elaborated upon in the paragraphs below.
A. Benefits of Mediation in Family and Matrimonial Disputes

[17.4.3] In the book, The Art of Family Lawyering, then Associate Professor and now Judicial Commissioner Debbie Ong highlighted
three aspects of what constitutes a “successful mediation”:
1. The parties are satisfied that the mediated agreement addressed their concerns;
2. The lawyers involved see the mediated agreement as “realistic and practical” as something they might achieve through
litigation; and
3. The mediator who is a family law judge is of the view that the mediated agreement is not unfair to either party “given the
prevailing position of the law”. 20
[17.4.4] As briefly touched upon in the introduction above, the benefits of mediation in family and matrimonial disputes cannot be
overemphasised. These benefits include, but are not limited to, the following:
1. Mediation significantly reduces the length of proceedings;

2. Mediation significantly reduces the acrimony in proceedings;
3. Mediation gives parties a platform to air and manage their emotions;
4. Mediated agreements tend to be more satisfactory and sustainable than orders imposed post-litigation; and
5. Mediation offers a more cost-effective and cheaper alternative to litigation.
[17.4.5] Each of these benefits is elaborated upon in further detail below.
1. Mediation significantly reduces the length of proceedings

[17.4.6] As opposed to litigation in which the matter is likely to be a long, drawn-out conflict, mediation provides a better chance that
parental relationships survive relatively unscathed and children are better shielded against the consequences of an acrimonious
divorce.
[17.4.7] In a review of 10 years of mediation research, it was noted that parties are able to reach agreement 50–85% of the time in
divorce mediations, with mediation resolving their disputes in half the time it would ordinarily take if the matter had been litigated. 21
[17.4.8] It is significant to note that divorce and marital separation rank as second and third most stressful life events for adults,
according to the Holmes and Rahe Scale. 22 Given that mediation offers an opportunity to significantly cut down the length of the
contentious proceedings, parties can then focus on rebuilding their lives post-divorce or separation and allowing past wounds to heal.
2. Mediation significantly reduces the acrimony in proceedings

[17.4.9] Apart from reducing the length of litigation proceedings, mediation in family and matrimonial cases also significantly reduces
the acrimony in such proceedings. This is because the parties need not battle in the traditional adversarial legal war zone, but may
instead use the calmer ceasefire platform of mediation to try to communicate better and cooperate with each other in order to reach a
resolution and move forward with their lives. In this way, the battle is no longer between the parties inter se, but between the parties
and the substantive issues at hand.
[17.4.10] Additionally, the mediator serves as a neutral and impartial third party to assist parties in the resolution of their dispute.
Through careful and skilful choice of words, the mediator reminds parents to look beyond their individual wants and needs, and to
refocus their attentions on the welfare of their children. 23 This can be done through the psycho-educating of parents on social science
research findings, e.g. on the potential psychological harm of parental conflicts on children, and motivating parents to cooperate to
address the needs of their children.
3. Mediation gives parties a platform to air and manage their emotions

[17.4.11] The flexibility of the mediation process allows parties to ventilate their relational and emotional grievances in a way that the
litigation process does not. For example, the mediator can meet parties individually to provide empathetic listening and have helpful
conversations with parties to distinguish between realistic, reasonable needs and unrealistic, pain-driven demands. 24
[17.4.12] At the FJC, the option of co-mediation with a judge-mediator and a court counsellor or psychologist is also available. This may
be particularly helpful in high-conflict cases where there is concern over the children’s well-being, where the children or parties have
displayed signs of trauma or difficulty coping, or where parties’ complex emotions result in impasse.
[17.4.13] Further, by allowing the parties sufficient opportunity to be heard and to express their emotions and views, it is more likely
that parties will feel that the dispute resolution process has been a fair one. This results in parties being more accepting of the outcome
and having a more conciliatory attitude from that which would occur in the traditional adversarial process where one party necessarily
“wins”, while the other “loses”.
4. Mediated agreements tend to be more satisfactory and sustainable than orders imposed post-litigation
[17.4.14] The flexibility, impartiality and dynamic nature of the mediation process, more often than not, results in mediated
agreements which are more satisfactory to the parties and more sustainable in the long run. This is due to the fact that the terms of the
mediated agreement would have been more fully discussed and agreed upon between the parties, unlike a court order achieved
through litigation.
[17.4.15] Mediation often helps parties to find common ground which meets the interests of both parents and children, with specificity
and comprehensiveness which is difficult to achieve in a court-imposed outcome.
[17.4.16] In a 2004 study by Joan Kelly, it was found that parents with minor children who had mediated agreements reported less
conflict during the divorce process and thereafter, as compared to parents who had opted for the traditional adversarial process. In
addition, when conflicts did occur, the former category of parents used more direct and mutual styles of resolving their conflict than the
latter. 25 Parents who had reached a mediated agreement at first instance are also more likely to return to mediation should the need
for changes to the caregiving, access or maintenance arrangements arise.
[17.4.17] Robert Emery conducted a 12-year study comparing couples who went through mediation and those who went through
litigation in resolving their divorce. He made, among others, the following findings in relation to the non-resident parent’s relation with
their children 12 years after the divorce: 26
1. 28% of non-resident parents who went through the mediation route had contact with their children at least once a week, even
12 years after the divorce; this is compared to 9% of non-resident parents who went through the litigation route.
2. 52% of non-resident parents who went through mediation spoke with their children by telephone weekly, even 12 years after
the divorce; this is compared to 14% of non-resident parents who went through the litigation route.
3. Based on the reports given by residential parents, those residential parents who went through the mediation route gave non-
residential parents better “grades” in every area of parenting, as compared to residential parents who went through the
litigation route.
[17.4.18] Emery concluded that mediation is the right path, not necessarily because mediation is “good”, but that the alternative is
“disruptive”. 27 According to him, there is no ideal schedule. Any schedule can work, or none can, as making a parenting plan depends
upon the parents’ relationship. Neither judges nor psychologists possess special wisdom or mysterious tests that can tell parents what is
best for their own children. 28 To Emery, therefore, the process of mediation is what makes a difference: having a voice; taking the long-
term view; working together; learning about the children’s needs and effective co-parenting; and recognising one’s own grief and how it
causes anger and impasse.
5. Mediation offers a more cost-effective and cheaper alternative to litigation

[17.4.19] One of the major disadvantages of the litigation process is the high costs involved. One study in 1984 found that parties who
used mediation to resolve their custody and access disputes paid approximately half of the legal fees paid by parties who opted for
litigation. 29 In a more recent study in 2003, a writer makes the following observation on the costs of divorce litigation:
Adjudication of a modern divorce extracts a heavy toll on the parties and their children. Financially, divorce proceedings often
consume a large percentage of the parties’ wealth, which causes both parties to suffer a reduced standard of living immediately
after the divorce. 30
[17.4.20] With the changing social context of more highly educated and qualified parties, as well the increasing unaffordability of legal
costs, the FJC has in recent years seen a sharp increase in the number of LIPs in family and matrimonial matters. Given the truism that
divorce often wreaks havoc on the parties’ finances, mediation offers a more cost-effective and cheaper alternative to divorce litigation.
Parties may then channel their financial resources to more worthy causes such as caring for their children’s needs.
B. Multi-Disciplinary Approach Combining Judicial and Social Science Perspectives

[17.4.21] In the FJC, the judge-mediators and the court counsellors of the FDR Division use their combined knowledge and expertise in
family law with their specialised training in family mediation, counselling and the social sciences, to provide the most holistic assistance
to the feuding parties in family and matrimonial disputes. This provides the parents with critical support to orientate their roles from
marital to parental.
[17.4.22] The FDR model of counselling is a unique one that is targeted at achieving improvement in effective co-parenting between
former spouses. It is a model in which the court counsellors are expected to have specialist knowledge in the following areas:
1. Child custody disputes and parent-child dynamics (for example, parental alienation, parental estrangement and gatekeeping);
2. Domestic violence;
3. Trauma and crisis training;
4. Forensic assessments (for example, child abuse and neglect);
5. Parenting capacity assessments;
6. Child and adolescent development;
7. Mental health issues; and
8. Relevant aspects of the law.
[17.4.23] Beyond knowledge in these fields, the court counsellors are also required to have specialised skills in dispute resolution,
couple and family counselling, as well as skills in interviewing and assessment of parents and children.
[17.4.24] The inclusion of a counselling component in the FDR process is recognition that divorce is as much an emotional, relational
closure as it is a legal proceeding for the parties. The court counsellors thus complement the work of the judge-mediators in the
following ways:
1. First, with their knowledge in human behaviour, emotions and psychology, the counsellors assist the parties to process and get
a handle on their strong emotions which may immobilise the parties and cause impasse during the subsequent mediation
process.
2. Secondly, with their training in child and adolescent development and the impact of divorce on such development, the
counsellors can make age-appropriate and trauma-informed recommendations for parents to guide their children during and
beyond the divorce.
3. Thirdly, given their depth of knowledge and experience in family and marital disputes, the counsellors are well-equipped to
assess the mental well-being of the parties and children and to make the appropriate recommendations for necessary
interventions. 31
[17.4.25] The FDR model of counselling and mediation at the FJC is, therefore, a multi-disciplinary approach with, among others, the
following key features: 32
1. It is a model combining the use of the judge-mediators’ judicial and legal expertise and mediation skill sets, with the social
science expertise of the court counsellors.
2. As the judge-mediators are also judicial officers of the FJC, they bring a sense of public confidence and respect into the
mediation process which is highly valued by the parties, particularly in the Singapore and Asian context.
3. Mediation at the FDR Division is different from a purely facilitative mediation model given that it is a “judge-led” approach
involving a balance between the competing wants of the parties and what is actually achievable, given the specific factual
matrix of the case.
4. If and when parties reach a court-mediated agreement on the divorce, ancillary matters or other family disputes, the judge-
mediators can switch to their judicial role and convert such an agreement into a consent court order which binds the parties.
C. Putting Children’s Interests at the Heart of FDR

[17.4.26] While the FDR judge-mediators have the option of speaking with children directly, the more common practice is to have the
court counsellors meet with the children over one or more sessions, and to provide a written report to the judge-mediator instead.
[17.4.27] In this regard, there is a recognition that the court counsellors may be better equipped to interview and assess the children,
given their expertise and specialist training in the realm of child interviews. Judges at the FJC also recognise that the process of being
interviewed by the court may, in itself, be anxiety-inducing for children, especially those of a tender age.
[17.4.28] Court counsellors may interview and assess the children, and thereafter express views on behalf of the children. While
maintaining the neutrality of a third-party qualified observer, the children caught in the conflict are thus given a voice in the court
proceedings. The current protected confidentiality of the content of these child interviews and reports also encourage candour by the
children. 33
17.5 THE FAMILY DISPUTE RESOLUTION (“FDR”) PROGRAMME AND OTHER SCHEMES
A. FDR Programme
[17.5.1] With the above model and objectives in mind, the FDR Programme, developed and adopted from the CFRC Programme, consists
of the following stages:
1. The FDR Conference;

2. Intake and assessment;
3. Counselling; and
4. Mediation or co-mediation.
[17.5.2] The FDR Programme is focused on cases where counselling and mediation are mandatory, or where the case involves children.
At each of the stages, the children’s interests (where there are children involved) are made the primary focus of the discussions, so as to
motivate the parties towards an amicable and sustainable resolution of their disputes. For cases where there are no minor children, the
court usually directs parties straight to mediation. At present, no fees are charged to parties for any court-based counselling or
mediation services.
1. FDR Conference
[17.5.3] The FDR counselling and mediation programme will commence with parties and their lawyers (if any) attending before an FDR
Assistant Registrar (“AR”) for a FDR Conference. A court counsellor will also be present during the FDR Conference, and parties will be
expected to meet with the court counsellor immediately after the FDR Conference on the same day.
[17.5.4] The FDR Conference is significant as it is the first time that parties appear before a judicial officer for their divorce proceedings.
The conciliatory intent of the FDR Conference and the ability to raise issues and concerns directly to the AR can set the stage for
meaningful counselling and mediation sessions with the parties. 34
[17.5.5] Unlike a typical case conference at the FJC, which tends to focus on the procedural aspects of a litigated case, the FDR
Conference delves deeper into the substantive issues relating to the divorce, and the children. The AR will introduce the court
counsellor assigned to the case and explain the role of the counsellor in assisting the parties. The AR will also explain the purpose and
objectives of the FDR Programme, and to crystallise any outstanding issues pertaining to the divorce and ancillary matters, with a
particular focus on the interests of the children.
[17.5.6] Once it is assessed by the AR that the case is suitable, the AR will direct that counselling and mediation be carried out. The
counselling programme takes place immediately after the FDR Conference is completed, starting with an intake and assessment session.
Subsequent counselling sessions are arranged directly between the parties and the court counsellor. A mediation date before a judge-
mediator will be issued and parties will be directed to exchange documents and proposals ahead of the mediation. The AR is mindful
not to allow parties to capitalise on the programme in order to delay the court process.
[17.5.7] During the FDR Conference, the AR will also explore the issues of access and maintenance of the children on an interim basis,
pending the mediation session. The AR will record a consent order on the interim arrangements if there is an agreement.
2. Intake and assessment

[17.5.8] Where the case is one involving minor children below the age of 21, a court counsellor will be assigned to the case, attend the
FDR Conference and will meet the parties for intake and assessment immediately after the conference.
[17.5.9] The court counsellor will gather pertinent information about the family dynamics and the divorce, as well as conduct a risk
assessment of suicide, homicide, family violence, substance abuse, child abuse or neglect, and mental health concerns. 35 Such risk
assessment would also go some way in assisting the court counsellor’s determination of each party’s parenting capacity in relation to
their children.
[17.5.10] Apart from intake and risk assessment, the court counsellor will find out how the parties and children are coping, and refer
them for external counselling support where necessary. The court counsellor may also flag any concerns to the judge-mediator assigned
to mediate the case. Lawyers (if any) are not involved in the intake and assessment session.
3. Counselling
[17.5.11] The court counsellor’s predominant role is to assist parties in discussing and making informed decisions about their parenting
plans post-divorce, based on the needs of the children. The court counsellor also helps parties to understand the importance of effective
co-parenting in unburdening and supporting their children, and to work out a viable and sustainable co-parenting relationship with
each other. On average, divorcing parents of minor children attend between one and three counselling sessions with their assigned
court counsellor.
[17.5.12] The usual procedure would be for the parties’ counselling sessions to be completed ahead of the mediation date. However, in
some cases, parties may wish to continue attending such counselling sessions concurrently with the mediation process, (for example,
where there are strong, complex emotions at play or in cases of significant parental gatekeeping or estrangement).
[17.5.13] Any agreement reached at these counselling sessions will constitute private agreements, and will be highlighted to the
relevant judge-mediator ahead of the mediation date. Any unresolved issues will be followed up at the mediation stage. Lawyers are not
involved in the counselling sessions, although parties are encouraged to keep their lawyers informed of what transpires at the
counselling session.
4. Mediation or co-mediation
[17.5.14] The judge-mediator will use the mediation sessions with parties and their lawyers to confirm any agreed terms at the
counselling stage, and to try and resolve any outstanding matters which could not be resolved through counselling. Outstanding matters
to be resolved at mediation could include:
1. The divorce, and grounds of the divorce;

2. The ancillary matters including, but not limited to, the following:
(a) Parenting plans relating to the children (i.e. custody, care and control, access and maintenance);
(b) Maintenance of the former spouse; and
(c) The division of matrimonial property/assets; and
3. Legal and related costs.
[17.5.15] On average, divorcing parents of minor children attend between one and three mediation sessions with their assigned judge-
mediator. In cases where there are no children and/or the matrimonial assets are not substantial nor the issues complex, only one
mediation session may be required. However, the number of sessions varies from case to case. If the case does not involve minor
children, a counsellor will not be assigned to the case. However, in the event counselling is deemed necessary, the judge-mediator could
refer the parties to see a court counsellor as well.
[17.5.16] Co-mediations are generally fixed where issues are more complex and conflicts between the parties are more deep-seated.
These include cases involving third parties, the relocation of children, overseas access arrangements, complicated family relationships
and reconstituted family dynamics. The co-mediation is conducted by a judge-mediator and a court counsellor or psychologist team.
This modality takes the multi-disciplinary approach a step further, by combining the two experts and utilising them in the same session
to collectively assist parties.
[17.5.17] For the mandatory counselling and mediation cases handled under the FDR Programme in 2014, 75% achieved a full
resolution of all contested issues, while 80% achieved a full or partial resolution of contested issues. However, the true challenge is for
parties to reach a resolution in which they are able to work through their fears, anxieties, anger, disappointments and hurt in order to
retain or rebuild lasting parent-child relationships as well as supportive and effective co-parenting standards.
B. Other Schemes
1. Maintenance Mediation Chambers (“MMC”)

[17.5.18] In addition to FDR Programme, the MMC scheme is another effective and efficient use of mediation in order to better manage
applications for spousal and child maintenance, and enforcement of maintenance payments.
[17.5.19] Mediations at the MMC are conducted by trained staff mediators and volunteer mediators. These mediators play a very
important role in helping parties (who are mostly unrepresented) to achieve sustainable and legally enforceable solutions to their
financial predicaments. By resolving the bulk of the complaints filed, 36 these mediators free up valuable court resources.
2. Private mediation
[17.5.20] The FJC also works with and refers cases to the SMC, especially where matrimonial assets of the parties are of a substantial
value. Such paid mediation schemes confer advantages to parties of privacy and private facilities, choice of mediator, case management
by a secretariat, more flexibility in mediation dates (for example, expedited fixing of mediation dates) and a longer mediation duration
(for example, full day mediations).
[17.5.21] Parties are also free to appoint private family mediators from the SMC’s Family Panel or other mediation service providers to
mediate their dispute.
17.6 MEDIATION OF VARIOUS ASPECTS OF DIVORCE 37
[17.6.1] Broadly speaking, there are three main issues which may be mediated in divorce proceedings, namely:
1. Divorce and grounds of divorce;

2. Issues relating to the children; and
3. Financial issues of maintenance and division of matrimonial property/assets.
[17.6.2] It is important to note that there are no restrictions on the terms and conditions which may be agreed upon by parties in
relation to these three broad issues, so long as permissible by law. As such, the only obstacles in the way of agreement are the parties’
attitudes and willingness to explore compromise, as well as the creativity of their proposed solutions.
A. The Divorce
[17.6.3] A “contested” divorce occurs when the defendant in divorce proceedings either refuses to accept that there has been an
irretrievable breakdown of the marriage or refuses to accept the grounds of divorce as alleged by the plaintiff in his or her pleadings. In
the former case, a refusal to accept that there has been an irretrievable breakdown of the marriage could be due to a party being in
denial or not being emotionally ready for the divorce. In the latter case, however, the defendant may accept that the marriage has come
to an end, but asserts that this may be due to the actions of the plaintiff or both parties.
[17.6.4] By focusing the parties on the bigger picture in mediation, i.e. that if they agree their marriage is over, they could move on with
their lives and concentrate on their children (if any), it is often possible to find some common ground for agreement on the
circumstances which resulted in the breakdown of the marriage. 38 Parties could also be reminded that they could save on substantial
legal costs in the first stage of the divorce proceedings, and to channel such resources to their children’s future, or for their own rainy
day.
[17.6.5] Thus, parties could discuss and agree on the grounds of the divorce during the course of the mediation, as well as the specific
modifications to the particulars of the pleadings, so that the divorce may proceed on an “uncontested” basis.
B. Issues Relating to Children

[17.6.6] Divorce and marital separation are a very stressful and difficult time for parties. Parents tend to be wrapped up in their own
pain and frustrations, leading to poor judgment and bad decisions. Being absorbed in their all-consuming conflict, parents may,
knowingly or otherwise, cause their children to be caught in-between.
[17.6.7] It is therefore imperative that the topic of the impact of parental conflict on the children be explored and elaborated upon in
detail at the mediation. Judge-mediators at the FJC take the opportunity to encourage parties to look beyond their differences and to
focus on longer term, more sustainable solutions which alleviate the burden on the children. One way is to have the parents look
forward to the future of their children by asking: 39
Where do you hope your child will be in his/her life 20 years from now? Is he/she in a healthy, loving relationship? Is he/she
married? Does he/she have children? Do you think he/she will achieve all that, given your present situation and how the two of you
are handling your conflict?
[17.6.8] Judge-mediators also take the time to explain the concepts of custody, care and control, access and maintenance of the children
to the parties, including the usual orders at law, so as to prevent misconceptions and unrealistic demands. By tempering the
expectations of both parties in the course of the mediation, parties are more likely to be willing to reach a compromise on these
children’s issues.
C. Financial Issues of Maintenance and Division of Matrimonial Property/Assets

[17.6.9] Once the children’s issues have been dealt with, parties are able to have a clearer picture of their financial needs and
constraints, post-divorce. They may then have a more meaningful discussion on the issues of former spouse maintenance and division
of matrimonial property and assets. In this regard, financial issues, more often than not, tend to flow from the children’s issues. For
instance, the parent with care and control of the children may find him or herself with heavier financial responsibilities, or may wish to
stay in the matrimonial home so as to minimise disruption to the lives of the children.
[17.6.10] In mediating the issue of former spouse maintenance, parties would be made aware of the various options such as lump sum
maintenance, monthly maintenance or nominal maintenance. In particular, the legal significance of nominal maintenance ought to be
properly explained to the parties. The judge-mediator would work to manage the expectations of the parties in order to reach feasible
and sustainable solutions.
[17.6.11] During the course of the mediation on the division of matrimonial property and assets, the mediator will facilitate discussions
on each party’s direct and indirect contributions within the framework of the applicable case law. In addition, parties are expected to
have all their up-to-date financial information, documents and expense lists ready, and have considered their available housing options
post-divorce and to have made the necessary enquiries with the relevant agencies (for example, with the Housing & Development Board
(“HDB”) and the Central Provident Fund (“CPF”) Board) before attending the mediation).
17.7 THE WAY FORWARD
[17.7.1] ADR in the context of Singapore family law has evolved much in the past 20 years, particularly within the court system. The
next steps are to develop the private sector family dispute resolution landscape, and to continue to find better pathways by which to
help and support children and their parents.
[17.7.2] In this regard, the following four key areas have been identified as focus areas for family ADR:
1. Training and accreditation of family mediators;

2. Growing private family mediation;
3. Child-Inclusive Mediation and Counselling (“CIMC”); and
4. Parenting Coordination (“PC”).
[17.7.3] Each of the four key areas is elaborated upon in further detail below.
A. Training and Accreditation of Family Mediators

[17.7.4] The FJC (through its FDR Division) will continue to support training and development in the area of family mediation, and to
help grow family mediation expertise in Singapore. Using criteria set by the SIMI, and curriculum developed by the FDR Division and
SMC, this will ensure robust specialist mediation training standards. In this way, the quality of family mediation in Singapore will
continue to improve, and families in conflict will benefit from the high calibre of family mediators.
B. Growing Private Family Mediation

[17.7.5] In line with the shift in focus towards ADR in the family justice eco system, the intent behind growing the panel of family
mediators is to facilitate the growth of private family mediation practices in Singapore. This provides parties with more options in
dispute resolution, apart from mediation at the FJC. With the training and accreditation of family mediators, there will be a richer and
more varied panel of family mediators for parties to choose from.
[17.7.6] It is envisioned that these private family mediators would deal with pre-litigation family and matrimonial disputes, much like
in the case of the CFP scheme. Cases which are amicably resolved before the filing of the writ for divorce may then be placed on the
simplified uncontested track when they enter the court system. 40
[17.7.7] As in the case of the CFP scheme, private family mediators can market and differentiate their services as ADR professionals
who are able to resolve matrimonial issues without having to step into the court and are able to provide intensive family mediation to
the parties looking for privacy. These services also offer quicker appointments and turnarounds for the clients.
C. Child-Inclusive Mediation and Counselling (“CIMC”), 2015

[17.7.8] The CIMC scheme is a fairly new process involving consultation sessions with the children, usually by a trained court
counsellor and/or judge, and therapeutic feedback conversations thereafter with their parents within a counselling or mediation
framework. Piloted in 2015 by CAPS within the FDR Programme, the idea behind the CIMC scheme is to provide early intervention so as
to protect the children from further conflict and trauma, and to help with the recovery process for children affected by parental
acrimony.
[17.7.9] The CIMC scheme is generally recommended for parents at the FDR Conference stage, as a form of early intervention. The pilot
study completed in June 2015 found 75% settlement rate on children’s issues. Through the programme, majority of the children noticed
a reduction in their parents’ acrimony at the three-month review mark. Parents have also reported CIMC to be a useful programme
which helped them to understand their children better. 41
[17.7.10] With the success of the pilot study, CIMC was integrated into the FDR Programme from the third quarter of 2015 and it is
hoped that this process empowers parents to continue positive parenting and restores cooperation within the family after the divorce.
D. Parenting Coordination (“PC”), 2016

[17.7.11] The PC scheme is a child-focused post-order or post-separation dispute resolution process designed for parties undergoing
divorce or separation. It is geared to help parties, particularly those who remain in high conflict, in their transition after the divorce.
Left unresolved, the acrimony could escalate into the children being caught in-between and suffering developmental harm from the
mental stress this could cause.
[17.7.12] A Parenting Coordinator’s role is to educate and assist parents in the implementation of and compliance with their parenting
and access plans and other court orders, including conducting conflict resolution, so as to protect and sustain safe, healthy and
meaningful parent-child relationships. The court appoints a Parenting Coordinator, following the making of parenting orders, for a
certain period of time. 42
[17.7.13] In early 2016, 24 family lawyers were trained as Parenting Coordinators. The design and implementation of the scheme is
currently underway.
17.8 CONCLUSION
[17.8.1] The FJC remains committed to finding and developing methods of dispute resolution which reduce the acrimony between the
feuding parties, particularly where there are children’s interests involved. Many schemes and programmes implemented over the last
decade have positively promoted the interest and well-being of children, whilst addressing the needs and concerns of parents.
[17.8.2] Family ADR in Singapore has grown up in the last decade, due in no small part to the commitment of ADR practitioners (within
and outside the court) to honing their craft and capitalising on the favourable paradigm shift towards a better way in resolving family
and marital disputes.
[17.8.3] Family lawyers, being in the front line of such bitter conflicts, play a crucial role in working with the courts to promote
awareness and appreciation of the ADR programmes available to their clients. They are also in the forefront of the growth of private
family mediation in Singapore. It is hoped that this gradual change in mindset will have lasting positive effects on the parties and
children in the years to come.
[17.8.4] The counselling and mediation programme at the FJC utilises a unique multi-disciplinary approach combining judicial and
social science expertise to help parties resolve their conflicts amicably. This creative, fluid and tailor-made type of model provides
holistic resolution of family disputes, thereby paving the way for peace where there was acrimony, cooperation in the milieu of hatred,
and healing in the battlefield of bitterness. 43
FOOTNOTES
* District Judges, Family Justice Courts.
1 Sophia Ang, “Counselling in Divorce Proceedings” in Michelle Woodworth Cordeiro (ed), The Art of Family Lawyering, 2nd edn (The Law Society of Singapore,
2013), Chapter 12 at para 1.2.
2 Kevin Ng, “Mediation” in Michelle Woodworth Cordeiro (ed), The Art of Family Lawyering, 2nd edn (The Law Society of Singapore, 2013), Chapter 11 at para
1.2.
3 For example, the 2011 amendments to section 50 of the Women’s Charter (Cap 353) (the “Charter”) saw the implementation of mandatory counselling and
mediation for divorcing couples with minor children.
4 Chief Justice Sundaresh Menon’s speech at the Asia Pacific International Mediation Summit, February 2015 at paras 55 and 74. Found at
<http://www.supremecourt.gov.sg/news/speeches/chief-justice-sundaresh-menon--speech-delivered-at-asia-pacific-international-mediation-summit-in-new-delh
i--india>.
5 Ibid at paras 25–26.
6 Kevin Ng, “Family Mediation – The Perspective of the Family Court” in Danny McFadden and George Lim (eds), Mediation in Singapore: A Practical Guide
(Sweet & Maxwell, 2015), Chapter 12 at para 12.020.
2.7.
8 About 83% of cases referred to the FRC from 2006 to 2013 were settled following mediation.
7.10.
10 In 2015, 98% of the complainants were LIPs, while 100% of the respondents were LIPs.
11 Kevin Ng, “Family Mediation – The Perspective of the Family Court” in Danny McFadden and George Lim (eds), Mediation in Singapore: A Practical Guide
(Sweet & Maxwell, 2015), Chapter 12 at para 12.031.
14 Chief Justice Sundaresh Menon’s speech at the FJC Workplan, February 2015 at para 21. Found at
<https://www.familyjusticecourts.gov.sg/NewsAndEvent/Pages/Family-Justice-Courts-Workplan2015.aspx>.
15 Paper presented by Registrar and Senior District Judge Chia Wee Kiat at the Global Pound Conference, March 2016 at para 28.
16 Ibid at para 29.
19 Paragraphs 11–13 of the Family Justice Courts Practice Directions 2015.
20 Debbie Ong, “Mediation” in The Art of Family Lawyering, 1st edn (The Law Society of Singapore, 2005), Chapter 11 at p 157.
21 Hahn, R.A. and Kleist, D.M., “Divorce Mediation: Research and implications for family and couples counselling” (2000) 8 The Family Journal 165–171.
22 Holmes, T.H. and Rahe, R.H., “The Social Readjustment Rating Scale” (1967) 11(2) J Psychosom Res 213–218.
24 Ibid at para 11.

25 Kelly, J., “Family Mediation Research: Is There Empirical Support for the Field?” (2004) 22(1–2) Conflict Resolution Quarterly 3–35.
26 Robert E Emery, “The Truth About Children and Divorce”, Emery’s Divorce Mediation Study, found at
<http://emeryondivorce.com/divorce_mediation_study.php> (Last accessed on March 31, 2016). The study is published in Robert E Emery, Renegotiating
Family Relationships – Divorce, Child Custody and Mediation, 2nd edn (The Guildford Press, 2012).
27 Robert E Emery, Master Class Presentation Slides, National Family Mediation 30th Anniversary Celebration, September 18, 2012. Found at
<http://emeryondivorce.com/divorce_mediation_study.php>.
28 <http://emeryondivorce.com/parenting_plans.php> (last accessed March 31, 2016).
29 Pearson, J. and Thoennes, N., “Mediating and Litigating Custody Disputes: a Longitudinal evaluation” (1984) 17(4) Family Law Quarterly 497–523.
30 Dennis P. Saccuzzo, “Controversies in Divorce Mediation” (2003) 79 North Dakota Lake Review 425–437.
31 Paper presented by Registrar and Senior District Judge Chia Wee Kiat at the Global Pound Conference, March 2016 at paras 37–38.
32 Ibid at para 33.
33 Ibid at para 40.
34 Ibid at para 43.
35 Ibid at para 44.
36 Between 2007 and 2015, an average of over 88% of all applications was resolved through MMC mediation.
37 For a practical guide and checklist to help family lawyers and their clients prepare for mediation in the FJC, readers can refer to Kevin Ng, “Family Mediation
– The Perspective of the Family Court” in Danny McFadden and George Lim (eds), Mediation in Singapore: A Practical Guide (Sweet & Maxwell, 2015), Chapter
12.
6.2.
39 Ibid at para 6.3.
42 Ibid at para 59.
8.2.

2016 - 10 - 17 PAGE 531

Chapter 18: Conflict of Laws in Family Issues
Chapter 18
Conflict of Laws in Family Issues

Foo Soon Yien

18.2 Connecting Factors: Domicile and Residence 534
A. Domicile 534
1. Domicile of origin 536
2. Domicile of dependency 537
3. Domicile of choice 537
(a) Acquisition of domicile of choice 537
(b) Abandonment of domicile of choice 539
B. Residence 539
1. Habitual residence under section 93(1)(b) of the Women’s Charter 540
2. Residence under section 93(2) of the Women’s Charter 541
18.3 Formation of Marriage 541
A. Choice of Law Governing Formal Validity of Marriage 542
B. Choice of Law Governing Essential Validity of Marriage 543
1. Dual domicile rule 543
(a) Sottomayor exception 544
(b) Additional law of the forum rule where marriage is also solemnised in the forum 545
2. Intended matrimonial home rule 545
C. Women’s Charter Provisions and Conflict of Laws 547
1. Reconciling sections 105 and 108 of the Women’s Charter 547
2. Optimal reading of “in Singapore or elsewhere” 548
18.4 Matrimonial Jurisdiction and Proceedings 549
A. Matrimonial Jurisdiction of Singapore Courts 549
B. Stay of Matrimonial Proceedings 550
C. Choice of Law Governing Divorce 557
D. Choice of Law Governing Ancillary Financial Relief Following Termination of Marriage 559
18.5 Foreign Judgments and Matrimonial Proceedings 560
A. Recognition of Foreign Divorces 560
B. Financial Relief Consequential on Foreign Divorce 562
C. Enforcement of Foreign Maintenance Orders 564
18.6 Conflict of Laws and Applications for Maintenance During Subsistence of Marriage 565
A. Application For Maintenance of Wife During Subsistence of Marriage Where the Marriage Was Not in Singapore 565
B. Application For Maintenance of Wife During Subsistence of Marriage Where One Party Resides Overseas 566
18.7 Conflict of Laws and Enforcement of Maintenance Orders Obtained in Singapore Regardless of Whether Marriage 567
has Been Terminated or is Still Subsisting
A. Enforcement of Maintenance Orders By Wife Residing Overseas Against Husband in Singapore 567
B. Enforcement of Maintenance Orders By Wife Against Husband Residing Outside Singapore 568
18.1 INTRODUCTION
[18.1.1] With the modern phenomenon of increased movements across countries and the consequent rise in international marriages,
cross-border family and matrimonial disputes are becoming increasingly prevalent today. 1 There are more marriages between
Singaporeans and non-Singaporeans. The number of marriages between Singaporeans and non-residents has increased from 5,411 in
2004, and a decade later in 2014, to 6,686. 2 As parties may be connected to other countries besides Singapore, the “foreign element” 3
introduced in such marriages inevitably complicate legal issues, the determination of which is founded on the principles of conflict of
laws.
[18.1.2] Conflict of laws rules are rules of domestic law of a country which it applies in its court of law to resolve issues that arise
because of the international elements in the case. In the context of cross-border family and matrimonial disputes, conflict of laws deals
with three interdependent questions: 4
1. When a dispute arises which involves cross-border elements, which country’s court should try the case?
2. What law should be applied to determine the outcome of the dispute involving cross-border elements?
3. What is the effect of a judgment/decree given by the court of one country in the courts of another? Will the judgment/decree be
recognised or enforced?
[18.1.3] The choice of law rules within the conflict of laws direct the courts in identifying the appropriate legal system that possesses
competence to regulate juridical matters when there is contact with some system of law other than the forum. 5 In the matrimonial
context, section 108 of the Women’s Charter (Cap 353) (the “Charter”) 6 explicitly provides for the continued application of the common
law choice of law rules which was received in Singapore. This chapter discusses conflict of laws rules applicable to family and
matrimonial issues, in particular, the formation of marriages, matrimonial proceedings terminating international marriages, ancillary
financial matters, recognition of foreign judgments as well as enforcement of maintenance orders with foreign elements.
18.2 CONNECTING FACTORS: DOMICILE AND RESIDENCE
[18.2.1] “Connecting factors” provide rational premises for the application of a particular system of law to a party. 7 Connecting factors
serve to link a person to the legal system or rules which may apply to him or her in specific contexts including the validity of a marriage
and various matrimonial causes including the jurisdiction governing and recognising foreign divorces and nullity decrees.
[18.2.2] In the recent High Court decision of BDA v BDB, 8 Chao Hick Tin JA affirmed the relevance of domicile and residence as
connecting factors:
While not entirely discounting nationality as a connecting factor, nationality per se is of limited significance. In an increasingly
globalised world, multiple nationalities are becoming the norm. Residency and/or domicile are better indicators of the strength of a
party’s connection to a particular forum ...
(Emphasis added)
A. Domicile
[18.2.3] Domicile is a highly technical concept that is not easy to define. 9 Domicile is the predominant connecting factor for issues of
personal law in the common law, 10 and also plays a critical role in many legal systems in determining jurisdiction in matrimonial
proceedings and family law related matters. 11 Essentially, the notion which lies at the root of the concept of domicile is that of
permanent home. 12 A person may be said to have his or her home in a country if he or she resides in it without any intention of at
present removing from it permanently or for an indefinite period. 13 But a person does not cease to have his or her home in a country
merely because he or she is temporarily resident elsewhere; and the fact that a person contemplates that he or she might move is not
decisive. 14
[18.2.4] Where a person’s domicile is required to be determined from the facts, it is the conflict of laws that provides the rules for such
determination. 15 In this regard, it is well established that the lex fori, or the law of the forum, determines one’s domicile. 16 It should be
noted, however, that the Charter is silent beyond the presumption of domicile in Singapore of persons who are Singaporean citizens 17
and the abolition of the common law rule that a married woman is dependent on her husband for domicile. 18
[18.2.5] The High Court decision of Peters Roger May v Pinder Lillian Gek Lian 19 (“Pinder”) has affirmed that the English common law
concept of domicile applies in Singapore. The fundamental principle is that no person can be without a domicile. Everyone has an
applicable domicile at any one point in time. The object of determining a person’s domicile is to connect that person with a particular
legal system 20 which can govern his or her rights and status in personal matters such as issues relating to family and succession. 21 It
follows that a person cannot have more than one domicile at any given time. 22 One’s existing domicile continues to apply until another
displaces it. 23
[18.2.6] There are three types of domicile – the domicile of origin, the domicile of dependency and the domicile of choice.
1. Domicile of origin
[18.2.7] The domicile of origin is the domicile attributed by law to every person at birth 24 and which remains the propositus’ domicile
of origin throughout his or her life. 25 It is the father’s domicile if the child is legitimate and born within the father’s lifetime, and the
mother’s if the child is illegitimate or born after the father’s death. 26 As such, it is not necessarily the child’s place of birth or the father’s
domicile of origin. 27
[18.2.8] As the default domicile, where there is a gap in which no domicile of choice is applicable, for example, where a person
abandons his or her domicile of choice but has yet to acquire a new domicile, the domicile of origin automatically revives, even if the
domiciliary has in fact not physically returned to reside in the country of the domicile of origin. 28
[18.2.9] Conversely, the domicile of origin is “tenacious” 29 and difficult to displace. A domicile of origin persists until it has been shown
that there is a fixed and settled intention to abandon it followed by the acquisition of a domicile of choice. 30 Typically, more cogent
evidence is required to prove the change of a domicile of origin than of a domicile of choice. 31 The burden of proof required in
establishing a change in domicile from the domicile of origin is beyond a mere balance of probabilities. 32
[18.2.10] In the High Court decision of Wong Phui Lun Joseph v Yeoh Loon Goit, 33 the issue was whether the petitioner, whose domicile
of origin was Malaysia, had acquired a domicile of choice in Singapore at the time the divorce petition was presented. The court noted
that: 34
Clear evidence is required to establish a change of domicile. In particular, to displace the domicile of origin in favour of the domicile
of choice, the standard of proof goes beyond a mere balance of probabilities.
[18.2.11] On the facts, the petitioner had acquired a Singapore domicile of choice as indicated by his joining two Singapore clubs in
place of Kuala Lumpur clubs, his mistress and their three children living in Singapore, and his applying for and obtaining permanent
residence in Singapore. 35
2. Domicile of dependency
[18.2.12] While a person is affixed with a domicile of origin upon birth, a legitimate child’s applicable domicile follows any change in his
or her father’s domicile during his or her period of minority. 36 Generally, the domicile of dependency automatically changes with the
domicile of the person on whom the child is legally dependent on. 37 However, a dependant child may not take after the domicile of
choice acquired by his or her widowed mother on remarriage unless the mother intends in the interests and welfare of the child. 38
[18.2.13] Previously, under the common law, a married woman took on a domicile of dependency upon marriage, which was that of her
husband. As this has since been abolished in Singapore by section 47(1) of the Charter, a married woman is now capable of acquiring a
separate independent domicile. 39 As such, factors such as her marriage and the domicile, residence and nationality of her husband,
while relevant, will no longer be determinative of her domicile. 40
3. Domicile of choice
(a) Acquisition of domicile of choice
[18.2.14] A person has the capacity to acquire a domicile of choice upon reaching the age of majority. The High Court in Pinder 41
reiterated the classic statement on domicile of choice by Lord Westbury in George Udny v John Henry Udny: 42
Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief
residence in a particular place, with an intention of continuing to reside there for an unlimited time ...
[18.2.15] A domicile of choice is acquired by the combination of two requirements: residence in that country and the intention to
remain there permanently or indefinitely. 43 Both the fact of residence and the existence of the intention must be established to prove a
change of domicile. 44 The burden of proving a change of domicile lies on the party who alleges the change and the standard of proof is
beyond a balance of probabilities.
[18.2.16] In the words of Nourse J in Inland Revenue Commissioners v Duchess of Portland, 45 “[r]esidence in a country for the purposes
of the law of domicile is physical presence in that country as an inhabitant of it.” Residence need not be for a long period of time. A short
residence may suffice to establish a domicile of choice provided that the necessary intention is clear. 46 However, if a person intends to
reside in a country until the happening of a contingency, he or she will not be regarded as being domiciled there, unless the contingency
is an improbable one. 47 Indefinite contingencies will be disregarded. 48 If a person has two homes, each in a different country, the
relevant enquiry is which of the residences is the “chief residence”. 49 A person may acquire a domicile of choice even if the physical
residence is illegal by the law of the residence. 50
[18.2.17] Generally, the intention must be voluntary. There must be sufficiently clear evidence of “an intention to remain so firm and
positive as to exclude any intention to make an ultimate home in another jurisdiction.” 51 As observed by the High Court in Pinder: 52
Of the twin requirements for the acquisition of a domicile of choice, residence is rarely a problem; most disputes turn on the
question of whether the propositus had the requisite intention to reside permanently or indefinitely in the country of residence.
[18.2.18] In determining whether a person has the necessary intention, all relevant circumstances must be taken into account. This is a
question of fact. Residence in a country for the purposes of employment, education or some other limited purpose may negate the
intention necessary for the acquisition of a domicile of choice. 53 Where a party resides in Singapore for the sole purpose of
employment, that is clearly insufficient to acquire a domicile of choice. However, the intention to make the residence permanent may be
formed after residence has been continued for some time. As soon as that intention is formed, the acquisition of domicile of choice is
completed. 54
(b) Abandonment of domicile of choice

[18.2.19] Abandonment of domicile of choice requires the cessation of both residence and the intention to remain in that country
indefinitely. One without the other will leave the domicile unchanged. The High Court in Pinder cited Theobald 55 and Dicey as follows: 56
A person abandons his domicile of choice in a country if he (a) ceases to reside there and (b) no longer has the intention of
permanent or indefinite residence there. Both requisites must be satisfied: a domicile of choice is not lost merely by ceasing to
reside or merely by giving up the intention of permanent residence.
[18.2.20] A person may abandon a domicile of choice without acquiring a new domicile; in such a case, his or her domicile reverts to the
domicile of origin. If a new domicile of choice has been acquired, however, this would be sufficient to show the loss of the previous
domicile. 57
B. Residence
[18.2.21] Unlike domicile, residence is generally not a sufficiently strong connecting factor in matters affecting personal capacity and
status such as marriage and succession. 58 Nevertheless, it is an appropriate connecting factor or alternative criterion for the
matrimonial jurisdiction of the court. Whether an individual is resident in Singapore is largely a question of fact. 59 In general,
“residence” requires living in a country with a sufficient degree of settled purpose and continuity. 60 As mentioned earlier, the legality of
a person’s residence is not determinative. 61
1. Habitual residence under section 93(1)(b) of the Women’s Charter

[18.2.22] Habitual residence is an alternative basis to domicile for the Singapore court to exercise its matrimonial jurisdiction. Pursuant
to section 93(1)(b) of the Charter, either one of the parties must fulfil a three-year period of physical residence in order to establish
sufficient connection to Singapore. The recent High Court decision of Lee Mei-Chih v Chang Kuo-Yuan 62 clarified that the phrase
“habitually resident” is the same as “ordinarily resident”. Ordinary or habitual residence requires voluntary residence and a settled
purpose. 63 Proof of residence for three years will generally suffice, unless the other party offers evidence to show that this residence is
somehow, still, not habitual because it was more fleeting than required. This argument, however, is not easily made. 64
[18.2.23] As long as there is one continuous period of residence for three years immediately preceding the filing date of the divorce writ,
temporary absences for overseas holidays or business trips will not break the state of habitual residence. 65 On the facts of Lee Mei-Chih
v Chang Kuo-Yuan, however, while the plaintiff wife had voluntarily resided in Singapore with a settled purpose, she failed to establish
the requisite degree of continuity in residence, as her 12 months’ extended absence for both the Taiwan and New Zealand trips was
substantial when viewed against the backdrop of the mandatory three-year qualifying period. The wife was therefore not habitually
resident in Singapore within the meaning of section 93(1)(b) of the Charter and the Singapore court had no jurisdiction over the matter.
[18.2.24] In the earlier case of Helen Diane Womersley (mw) v Nigel Maurice Womersley, 66 the Singapore court held that it had no
jurisdiction to hear the divorce as neither of the parties was domiciled or habitually resident for three years in Singapore at the material
time. It rejected the wife’s argument that in considering the period of habitual residence of three years, account should be taken of the
circumstances under which she left Singapore and should therefore have regard to the fact that she would have stayed in Singapore if
the husband had provided maintenance. 67 The court rightly held that the reason for leaving Singapore before the three-year period was
irrelevant. 68
2. Residence under section 93(2) of the Women’s Charter

[18.2.25] The court’s jurisdictional powers over nullity proceedings are slightly wider than in a divorce or judicial separation. Under
section 93(2) of the Charter, where both parties to the marriage reside in Singapore at the time of the commencement of the proceedings,
the court may still grant a judgment of nullity, notwithstanding that neither party is domiciled or habitually resident in Singapore in the
preceding three years. No minimum length of residence period is prescribed in section 93(2), unlike section 93(1) which requires three
years of habitual residence. 69 Accordingly, matrimonial jurisdiction over nullity proceedings arguably requires a less substantial
connection to Singapore than proceedings for divorce and judicial separation. 70
18.3 FORMATION OF MARRIAGE
[18.3.1] Having established the concept of connecting factors, this section discusses the applicable rules in the conflict of laws which
determine the validity of a marriage with international elements. There are two aspects to the validity of a marriage: formal validity,
which requires compliance with the formalities of solemnisation, and essential validity, which requires both parties to possess the
capacity to marry. The question relevant to the choice of law rules governing the formation of marriages is: which law applies to
determine whether a marriage which is connected to more than one jurisdiction is valid? 71
[18.3.2] In this regard, the distinction between formality and capacity requirements is significant. The Singapore court, applying the lex
fori, that is, the law of the forum, determines whether to classify a matter either as one of form or capacity. 72 Once this preliminary
issue is resolved, the choice of law rules can then be applied accordingly given that different choice of law rules apply to the two distinct
aspects of validity. 73
A. Choice of Law Governing Formal Validity of Marriage

[18.3.3] The lex loci celebrationis, that is, the law of the place where the marriage was celebrated, has been established in common law
as the law governing the formal validity of a marriage. In other words, a marriage is formally valid if the formalities of the place where
the marriage was solemnised have been complied with. In Singapore, the lex loci celebrationis has been accepted as the choice of law
rule governing formal validity in the High Court decision of Arpinya Rongchotiawattana v Wee Oh Ken. 74
[18.3.4] Indeed, this common law choice of law rule is consistent with the scope of application of the Charter’s prescriptions of the
formalities of solemnisation. 75 Of the two critical formalities, section 22(1) of the Charter reads:
22.—(1) Every marriage solemnized in Singapore shall be void unless it is solemnized –

(a) on the authority of a valid marriage licence issued by the Registrar or a valid special marriage licence granted by the Minister;
and
(b) by the Registrar or a person who has been granted a licence to solemnize marriages.
(Emphasis added)
[18.3.5] The prescriptions apply only to solemnisations in Singapore, as the choice of law rule likewise dictates. 76
[18.3.6] To determine the formal validity of a marriage, only the formality and not the capacity prescriptions of the lex loci celebrationis
are applicable. Whether the capacity requirements of a particular country apply depends on the choice of law rule governing the
essential validity of a marriage, which is discussed in the next section. 77 However, this is subject to the exception where the place in
which the marriage was celebrated is also the forum where the issue on the validity of the marriage is heard. Where the marriage is
solemnised in the forum, the public policy of the forum will also require compliance with its capacity rules, even if the parties have no
personal connection and are not domiciled therein. 78 This additional rule of law of the forum on essential validity will be further
discussed below. 79
[18.3.7] In short, where parties marry outside Singapore, only the forms of the lex loci celebrationis apply to the marriage. However, if
the place in which the marriage is solemnised is also the forum, both the formality and capacity rules of the lex loci celebrationis are
applicable. 80
B. Choice of Law Governing Essential Validity of Marriage

[18.3.8] It has been argued that the scope of application of each of the Charter’s prescriptions of capacity to marry should, ideally, be
exactly in accordance with the rules of private international law in Singapore. 81 The choice of law rules in Singapore are part of private
international law, or the conflict of laws, which was received from the common law. 82 Within the common law conflict of laws, there
has been reference to several choice of law rules in determining which law is to govern one’s capacity to marry.
1. Dual domicile rule

[18.3.9] As a general rule, capacity to marry is governed by the law of each party’s antenuptial domicile. 83 In Singapore, the “dual
domicile rule”, which requires both parties to have capacity to marry by their respective antenuptial domiciles, is the only judicially
adopted choice of law rule determining the essential validity of a marriage. 84
[18.3.10] The dual domicile rule was first accepted locally in the well-known case of Re Maria Hertogh. 85 As Maria was a minor, she had
a domicile of dependency that hinged on her father’s domicile at the particular time, which was Dutch. By the law of Holland, a girl
under the age of 16 years was prohibited from marrying unless a dispensation was granted by the Queen of Holland. The court held that
as the capacity of each of the parties to a marriage is to be determined by their respective lex domicilii, the marriage was void for Maria’s
lack of capacity under Dutch law to marry at the age of 13. 86
[18.3.11] This established choice of law rule was also affirmed in the High Court decision of Arpinya Rongchotiawattana v Wee Oh Ken,
87 where the marriage was found to be invalid on the basis that the testator, who was already married, had no capacity to marry under
the law of Thailand which was his antenuptial domiciliary law.
(a) Sottomayor exception

[18.3.12] From the principle that capacity to marry depends on the law of a person’s domicile, it would seem to follow that the
incapacity of either party, under the law of his or her antenuptial domicile, to contract marriage with the other, invalidates the
marriage. 88 However, the case of Sottomayor v De Barros (No 2) 89 (“Sottomayor”) established an exception to the general rule which has
been set out in Dicey, Morris & Collins on The Conflict of Laws 90 as follows:
The validity of a marriage celebrated in England between persons of whom the one has an English, and the other a foreign, domicile
is not affected by any incapacity which, though existing under the law of such foreign domicile, does not exist under the law of
England.
[18.3.13] This exception only arises where the marriage is celebrated in the forum, one of the parties is domiciled in the forum, and the
lex domicilii of the foreign party imposes an incapacity which is not recognised by the law of the forum. 91 The implication is that the law
of the forum on the validity of the marriage should prevail over the law imposed by the foreign domicile. Indeed, the Sottomayor
exception has been explained as an instance of English public policy favouring the validity of marriage by preventing the application of
a foreign law which would otherwise be applicable. 92 In Re Maria Hertogh, however, the court considered the Sottomayor exception but
found that it did not apply in the circumstances because neither of the parties to the marriage was domiciled in Singapore.
(b) Additional law of the forum rule where marriage is also solemnised in the forum
[18.3.14] As stated earlier, another exception to the dual domicile rule is that where the forum is also the place of celebration of the
marriage, the public policy of the forum will require compliance with its capacity rules, even if the parties are not domiciled therein. 93
In such a case, both the formality and capacity prescriptions of the lex loci celebrationis (which is also the lex fori) are applicable. Thus,
parties who married in Singapore must comply with the capacity provisions in the Charter, in addition to possessing capacity to marry
according to their respective antenuptial domiciliary laws, regardless of whether they have any personal connection with Singapore.
2. Intended matrimonial home rule

[18.3.15] While the dual domicile rule is the only choice of law rule that has been adopted by the Singapore courts, it has been criticised
as “a harsh rule that tends towards finding marriages invalid.” 94 Its reliance on the concept of domicile, which itself has its flaws, is also
another weakness because domicile does not necessarily identify accurately one’s “home”. 95 As such, the English courts have developed
alternative choice of law rules where the application of the classic dual domicile rule would invalidate the marriage for lack of capacity.
Most notably, perhaps, is the “intended matrimonial home rule”, which requires the essential validity of a marriage to be determined by
the law of the place where parties intend to set up their matrimonial home at the time of marriage. 96 In essence, a marriage is valid as
to the parties’ capacity to marry if they possess such capacity by the law of their intended matrimonial home. 97
[18.3.16] The High Court of England in Radwan v Radwan (No 2) 98 applied the law of the parties’ intended matrimonial home, which
was found to be Egypt, to determine the English-domiciled woman’s capacity to contract a polygamous Egyptian marriage. Accordingly,
it was held that the wife possessed the capacity to enter into the polygamous marriage, which she would otherwise have lacked had the
court applied the wife’s English lex domicilii.
[18.3.17] The intended matrimonial home rule was also accepted by the English Court of Appeal in Lawrence v Lawrence, 99 where it
was decided by a majority that the dual domicile rule and the intended matrimonial home rule can apply in the alternative. To that
effect, a party need only possess capacity to marry either by the law of his or her antenuptial domicile or by the law of the parties’
intended matrimonial home. 100
[18.3.18] As the intention of the parties may be a highly subjective factor on which to base a choice of law rule, 101 it remains to be seen
whether the intended matrimonial home rule will be accepted in Singapore. In this respect, Leong Wai Kum has argued that having
embraced the classic dual domicile rule, any recent approach developed at the common law as an alternative also forms part of the law
in Singapore. 102 Further, section 183(2)(b) of the Charter, subtitled “Recognition of marriages contracted in Embassies, etc., in
Singapore”, refers the parties’ capacity to marry to “the law of the country of his or her domicile or under the law of the country of the
intended domicile of the parties after marriage” (emphasis added). 103 The use of the phrase “intended domicile of the parties after
marriage” can arguably be read as reference to the intended matrimonial home rule, 104 or at least lend support to “the possibility that
the parties’ future choice of a country in which they intend to settle is an acceptable connecting factor” in Singapore, as argued by
Debbie Ong JC. 105
C. Women’s Charter Provisions and Conflict of Laws

[18.3.19] The scope of application of the Charter is provided in section 3(1), which reads:
Except as otherwise provided, this Act shall apply to all persons in Singapore and shall also apply to all persons domiciled in
Singapore.
(Emphasis added)
[18.3.20] The rationale for section 3(1) is that Singapore has no interest in governing the capacity to marry of every person in the world,
but only of Singapore domiciliaries (even if they married outside Singapore), and all other persons who choose to marry in Singapore.
106 Indeed, this is consistent with the common law choice of law rules on the applicable law governing the formation of marriages, as
discussed earlier. 107
1. Reconciling sections 105 and 108 of the Women’s Charter

[18.3.21] A potential issue with regard to the proper scope of application of the Charter is the apparent inconsistency between sections
105 and 108. Section 108 of the Charter reads:
Where, apart from this Act, any matter affecting the validity of a marriage would fall to be determined (in accordance with the rules
of private international law) by reference to the law of a country outside Singapore, nothing in section 105, 106 or 107 shall –
(a) preclude the determination of the matter as aforesaid; or
(b) require the application to the marriage of the grounds or bars to relief mentioned in those sections except so far as are
applicable in accordance with those rules.
(Emphasis added)
[18.3.22] Section 108 expressly provides for the applicability of foreign law in determining the validity of a marriage and makes clear
that such reference to the requirements of a foreign legal system are not ousted by the provisions of the Charter. In the context of nullity
proceedings, the High Court in the recent decision of Sanjeev Sharma s/o Shri Sarvjeet Sharma v Surbhi Ahuja d/o Sh Virendra Kumar
Ahuja 108 held that “if the action is not stayed, a Singapore court dealing with the issue of applicable law would have to deal with the
applicable law as a matter of Singaporeconflict of laws rules, as mandated by s 108 of the Women’s Charter ...” (emphasis in original).
Indeed, it seems sufficiently clear from a plain reading of section 108 that the intention of Parliament is to preserve the applicability of
the rules of private international law with respect to the validity of marriages.
[18.3.23] While section 108 of the Charter specifically provides that the conflict of laws rules continue to apply in Singapore, section
105(b) on the grounds on which a marriage is void, appears to conflict with these principles. In particular, section 105(b)(ii) states that a
marriage celebrated outside Singapore is void if it is invalid “by the law of the place in which it was celebrated.” On its literal reading,
this appears to refer to both the formality and capacity requirements of the lex loci celebrationis, contrary to the established conflicts
rules, as discussed above. 109 It is submitted that the phrase “the law of the place in which it was celebrated” in section 105(b)(ii) refers
only to the prescriptions on formalities, and not to those relating to capacity. 110 Such a contextual purposive interpretation would then
be consistent with the established common law choice of law rules in Singapore, which provide that formal validity of a marriage is
governed by the lex loci celebrationis while essential validity is determined by the dual domicile rule.
[18.3.24] The optimal reading of the scope of application of the Charter is that it applies no more broadly than the choice of law rules
allow. 111 In view of Parliament’s intention to retain the applicability of the rules of private international law by virtue of section 108,
section 105 should thus be read in a manner consistent with and subject to the common law conflict of laws. 112
2. Optimal reading of “in Singapore or elsewhere”

[18.3.25] It is to be noted that the individual capacity provisions, namely, sections 5, 9, 10, 11 and 12 of the Charter (referred to in section
105(a)), all contain the phrase “marriage solemnized in Singapore or elsewhere.” The insertion of this phrase 113 was intended to
emphasise the continued application of the Charter’s capacity prescriptions to all Singapore domiciliaries who marry outside Singapore.
114 On their literal reading, however, these provisions apply not only to Singapore domiciliaries, but also govern every person and all
marriages celebrated everywhere in the world, even if they are wholly unconnected with Singapore. According to Leong Wai Kum, this
displaces the default scope of application stated in section 3(1) of the Charter 115 by providing, in its place, a “senselessly broad” scope of
application which does not relate rationally with the established conflict of laws rules on capacity to marry. 116
[18.3.26] For these reasons, the phrase “in Singapore or elsewhere” has been deemed unnecessary, given that Parliament’s concerns
have been addressed in light of the amendment of section 3 which now governs the general scope of application of the Charter
provisions. 117 In any case, the phrase “in Singapore or elsewhere”, unnecessary as it is, can and should only be read sensibly to be
constrained by the limits of section 3(1) of the Charter which retains the conflict of laws principles in Singapore.
18.4 MATRIMONIAL JURISDICTION AND PROCEEDINGS
A. Matrimonial Jurisdiction of Singapore Courts

[18.4.1] As matrimonial reliefs such as divorce, judicial separation and nullity of marriage terminate the marital relationship and affect
the status of the parties, sufficient personal connection must exist between one of the parties to the marriage and Singapore. 118 Any
party seeking a judgment of divorce in Singapore must satisfy the Singapore court that it has jurisdiction to entertain proceedings for
divorce. This jurisdiction is conferred pursuant to section 93(1) of the Charter, which provides that the court shall only have jurisdiction
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.
(Emphasis added)
[18.4.2] The two main alternative bases of jurisdiction are that either party is (a) domiciled in Singapore or (b) habitually resident in
Singapore for a period of three years immediately preceding the commencement of the proceedings. 119 These jurisdictional connections
ensure that Singapore has sufficient interest in the marriage and are crucial to the recognition of foreign divorce decrees. 120 Further,
section 93(2) of the Charter provides for an additional jurisdictional basis in applications for a judgment of nullity, where both parties to
the marriage reside in Singapore at the time of the commencement of the proceedings, notwithstanding that neither is domiciled or
habitually resident in Singapore in the preceding three years.
B. Stay of Matrimonial Proceedings

[18.4.3] In Singapore, the court will generally exercise its jurisdiction to hear matrimonial proceedings where the requirements in
section 93 of the Charter are satisfied. However, when faced with a suit before the Singapore courts, a defendant has the option of
applying for a stay of the matrimonial proceedings in Singapore in favour of another jurisdiction based on the established principles of
forum non conveniens.
[18.4.4] The law on stay of proceedings on the ground of forum non conveniens is well settled in Singapore and embodied in the six
principles enunciated by Lord Goff in the House of Lords decision of Spiliada Maritime Corp v Cansulex Ltd 121 (“Spiliada”). 122 This two-
stage test has been adopted by the Singapore Court of Appeal on several occasions. 123
[18.4.5] In stage one, the party seeking a stay must establish that there is another available forum which is clearly or distinctly more
appropriate than Singapore to determine the dispute. If the court concludes that there is some other available forum which prima facie
is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which
justice requires that a stay should nevertheless be refused. Under this second stage of the Spiliada test, the legal burden shifts to the
party resisting the stay to establish the existence of those special circumstances which warrant the exercise of the court’s discretion to
refuse a stay.
[18.4.6] As this is a “fact-sensitive inquiry”, “[t]he court’s consideration of all the relevant factors when applying the doctrine of forum
non conveniens and the weight to be given to these factors would depend on the nature of the dispute in question.” 124 A few recent cases
shall be discussed to examine how the Singapore courts have applied the Spiliada principles in the matrimonial context to each factual
matrix.
[18.4.7] The High Court decision of VH v VI & Anor 125 concerned an appeal against the dismissal of the husband’s application for a stay
of the Singapore proceedings and the wife’s application for an anti-suit injunction of the divorce proceedings he had later brought in
Sweden. The husband, a French national, married the wife, a Swedish national, in Sweden in 1993. They were both permanent residents
of Singapore and resided here with their two infant children. On September 13, 2005, the wife began divorce proceedings in Singapore
alleging that the husband had committed adultery. Initially the husband submitted to the jurisdiction of the Singapore courts and
participated in the Singapore proceedings. However, on October 4, 2006, the husband commenced similar proceedings in Sweden and
his application for a stay of the Singapore proceedings was dismissed. Meanwhile, the wife applied unsuccessfully for the Swedish
proceedings to be stayed and she then applied for an anti-suit injunction in Singapore to restrain the husband from continuing with the
Swedish proceedings. An interim injunction was later issued but in disregard of the order, the husband applied for and was issued a
divorce decree from the Swedish courts.
[18.4.8] On appeal, Kan Ting Chiu J reaffirmed and applied the principles in Spiliada, holding that: 126
The crucial question is not whether Sweden is the appropriate forum, but whether Sweden is the more appropriate forum than
Singapore. It is clear that Singapore is an appropriate forum for the divorce proceedings. The parties and the children are all
presently resident in Singapore. The [husband] is working in Singapore, the children are attending school in Singapore, the parties
owned several properties in Singapore, and it must not be forgotten that both parties had been content to proceed in Singapore,
before the [husband] decided to file the Swedish proceedings a year later.
[18.4.9] The court dismissed the husband’s appeal against the dismissal of the stay application, explaining that: 127
The petitioner’s right to seek a divorce on any ground allowed by the laws of Singapore should not be overlooked. Sweden could not
be said to be a more appropriate forum than Singapore simply because it allowed easier fault-free divorces. Further, the respondent
only made the application 13 months after he had participated in the proceedings, leading the petitioner and the Singapore court to
believe that he accepted Singapore to be an appropriate forum.
[18.4.10] Nevertheless, while Singapore was clearly the appropriate forum in this case, the final result was that the proceedings had
been validly concluded in the Swedish courts and thus, the wife could no longer obtain matrimonial relief in the Singapore court. 128
Subsequently, the High Court in Weschler Mouantri Andree Marie Louise v Mountri Karl-Michael 129 confirmed that “[o]ur courts cannot
grant a divorce to a petitioner whose marriage had already been dissolved by the Swedish Court whose jurisdiction we recognise.” 130
[18.4.11] In BDA v BDB, 131 the High Court adopted the Spiliada principles in the context of a free-standing maintenance application
pursuant to section 69 of the Charter. The parties were Indian nationals and became Singapore permanent residents in 2009. In October
2010, the wife left for India with their infant son while the husband remained employed and resident in Singapore. The husband filed
for divorce in India one or two months after the wife’s application for maintenance in Singapore. The husband’s petition for a stay of the
maintenance proceedings on the ground of forum non conveniens was granted at first instance and the wife appealed.
[18.4.12] In allowing the wife’s appeal, Chao Hick Tin JA reaffirmed that “[i]t is well established that the Spiliada test is applied to
determine if a proceeding commenced in Singapore ought to be stayed on the ground of forum non conveniens.” 132 This is a “factors-
based test”: the weight to be placed on the various connecting factors varies with each factual matrix. 133 The court noted that because
the husband was working and residing in Singapore, he would have a higher evidential burden to show that there was a more
appropriate forum elsewhere. Pointing out that nationality was less valuable than residency and/or domicile as an indicator of the
strength of a party’s connection to a particular forum, the court held that on the issue of maintenance, the Singapore courts were well
placed to do so especially when the husband’s earning capacity and their standard of living in Singapore prior to the separation was well
within the purview of the Singapore courts. 134 Therefore, as the husband had not discharged the burden of showing that India was
clearly or distinctly a more appropriate forum as required by stage one of the Spiliada test, the maintenance proceedings in Singapore
should not be stayed.
[18.4.13] However, a stay of proceedings was granted by the High Court in AZS & Anor v AZR. 135 In that case, the parties and their son
were French nationals. Prior to their marriage in 2000, the parties signed a prenuptial agreement in France that made numerous
references to the French Civil Code. The parties relocated to Singapore in 2006 but were not permanent residents. The husband held an
employment pass while the wife and son held dependant’s passes. They had no immovable property in Singapore and only possessed
immovable property in France and China. The husband commenced divorce proceedings in France in April 2012 and the wife filed for
divorce in Singapore in June 2012. Interim orders on maintenance and custody arrangements had already been made by the Singapore
courts, and the husband had agreed to abide by the orders.
[18.4.14] Applying the Spiliada test, Andrew Ang J allowed the appeal against the dismissal of the husband’s stay application and held
that, looking at the various factors in totality, notwithstanding that the residence of the parties gave them a real and substantial
connection to Singapore, France was clearly the more appropriate forum to hear the matter. 136 The court attached weight to the
location of the subject-matters in dispute, which mainly revolved around the prenuptial agreement which the wife herself conceded
should be adjudicated in France. Further, as this case involved concurrent divorce proceedings in both France and Singapore, the
doctrine of lis alibi pendens came into play as a significant factor that favoured a stay of the Singapore proceedings. 137 On the facts,
there were also no special circumstances warranting refusal of a stay.
[18.4.15] Most recently, the High Court in TDX v TDY 138 further extended the application of the Spiliada principles to custody
proceedings between unmarried parents. The father was born in Australia and worked in Hong Kong, while the mother was born in
Singapore and had worked and lived in Hong Kong from 2008 to 2014. The parties had a relationship while living in Hong Kong and
their child was born in Hong Kong in 2013. The mother took the child to Singapore in 2014. The father commenced proceedings in Hong
Kong, seeking the custody, care and control of the child, and also for the child to be made a ward of the Hong Kong court and returned to
Hong Kong. The Hong Kong court made an interim order on access and the child was made a ward of the Hong Kong court.
Subsequently, the mother commenced proceedings in Singapore for, inter alia, sole custody, care and control of the child to herself, and
supervised access to the father, as well as an order to prevent the father from bringing the child overseas without her consent. The
father’s application to stay the Singapore proceedings was dismissed and the father appealed.
[18.4.16] Allowing the appeal, Debbie Ong JC cited earlier local authorities and held that the doctrine of forum non conveniens remained
relevant in matrimonial proceedings, including proceedings involving the custody of children. The application of the welfare principle
in the present case involved the proper application of the doctrine of forum non conveniens, which would in turn require the court to
examine which jurisdiction was better placed to decide on issues concerning the welfare of the child. Furthermore, the court made
reference to the earlier case of AZS & Anor v AZR 139 in which lis alibi pendens was a significant factor, and held that the existence of
parallel proceedings or the fact that a foreign court has made orders in relation to the dispute must be considered when deciding
whether the Singapore proceedings ought to be stayed.
[18.4.17] Having considered all the relevant factors and circumstances of the case, Debbie Ong JC found that Hong Kong was clearly the
more appropriate forum to hear the issues concerning the child. Hong Kong was the seat of the parties’ relationship. Both parties and the
child were clearly habitually resident in Hong Kong at least until June 2014, and the child’s welfare had not changed after she was taken
to Singapore. Further, it was against the child’s welfare to have multiplicity of proceedings. As the Hong Kong proceedings had advanced
further than the Singapore proceedings and the Hong Kong court had been actively and efficiently fulfilling its obligations to the child,
the court therefore granted the father’s stay of the Singapore proceedings.
[18.4.18] As will be discussed below, if a party chooses to commence divorce and ancillary proceedings in Singapore, Singapore law
being the lex fori would likely be applicable. 140 Thus, if a party wishes for the matter to be governed by the law of a particular
jurisdiction, the proceedings should be brought in that country for the law of that forum to apply.
[18.4.19] As a matter of practice, other considerations may feature when a party is deciding whether to commence divorce proceedings
in a particular jurisdiction or to seek a stay of proceedings commenced by the other party in another jurisdiction. Assuming both
Country A and Country B have jurisdiction to hear the matter, parties can potentially choose to begin proceedings in either jurisdiction.
In such a situation, the dilemma arises: would it be “better” to commence proceedings in Country A or Country B?
[18.4.20] From a practical perspective, in deciding which forum is strategically more appropriate to commence proceedings for divorce
and/or ancillary relief, the respective matrimonial laws in the two competing jurisdictions may be a relevant consideration for the
applicant. The party concerned should consider whether the laws in that country or Singapore law would be more favourable to him or
her with regard to the ancillary matters relating to the children, division of matrimonial assets and maintenance. This is because the
applicable principles may vary from jurisdiction to jurisdiction depending on the underlying social policy and social fabric of the
country.
[18.4.21] For example, under German law, the principle of equalisation of accrued gains applies to the effect that any increase in the
spouses’ assets that occurs during the course of the marriage will be divided equally upon termination of the marriage by divorce. 141
This is contrasted with the law in Singapore where proportions are decided on a case-by-case basis and there is no starting point
presumption or norm of equal division. 142 Instead, the Singapore courts will take a “broad brush”, multi-factorial approach in arriving
at a “just and equitable” division of matrimonial assets under section 112 of the Charter. 143 The recent Court of Appeal decision in ANJ v
ANK 144 adopted a structured four-step approach as follows:
First, the court could derive a ratio which represented the parties’ respective direct contributions towards the acquisition or
improvement of matrimonial assets. Next, the court derived a second ratio which represented the parties’ indirect financial and
non-financial contributions towards the welfare of the family. The court then averaged the two ratios to derive each party’s overall
contribution to the family. The “average percentage contribution” or “average ratio” were non-binding figures – the court would
have to make adjustments as and when necessary.
...
The circumstances that could warrant shifting the “average percentage contribution” or “average ratio” in favour of one party were
diverse ... They included: the length of the marriage; the size of the matrimonial assets and its constituents; and the extent and the
nature of the parties’ indirect contributions.
[18.4.22] In this regard, where parties are connected to one or more countries besides Singapore, the specific matrimonial laws in the
respective jurisdictions would also be an important factor to be considered by parties before commencing matrimonial proceedings.
[18.4.23] Another practical consideration may also be the immigration policies which regulate a party’s eligibility to remain in
Singapore in the long term. This is especially so where an expatriate wife and children hold only dependant’s passes, linked to the
husband’s or father’s employment pass. As the dependant’s pass status is tied to the husband’s employment pass, the legal implication
once the divorce is finalised is that the foreign spouse and children (unless they are student’s pass holders) would then face the prospect
of being relocated back to their home country. It appears that the risks of separating a child from his or her parent or parents upon a
divorce remain problematic in international marriages. 145 Even if the children hold student’s passes in Singapore, there is no guarantee
that the mother would be granted a long-term visit pass. Further, there may not be anyone who would agree to be the local sponsor, for
the purposes of completing the application for a long-term visit pass. As rightly acknowledged by Debbie Ong JC, “[w]hile the welfare of
the child is the paramount consideration in family law, immigration laws and policies are not always able to support keeping parent and
child together at the expense of other considerations for society as a whole.” 146 This existing tension gives rise to real uncertainties and
difficulties encountered by foreign spouses and globalised families living in Singapore. A balance between immigration control and the
need to support spousal and parent-child relationships even after divorce ought to be struck.
[18.4.24] In short, where both the Singapore court and another foreign court would have jurisdiction to hear the matter, it would be
relevant for parties to consider which forum would be more beneficial, taking into account the matrimonial laws of the respective
countries, and to file for divorce in that forum first. In such a situation, it should also be noted that time is of the essence for the reason
that once proceedings have been commenced by one party in Singapore, it would be more challenging for the other party to convince
the Singapore courts that a stay of proceedings should be granted in favour of another more appropriate forum on the ground of forum
non conveniens. 147 This discussion demonstrates some practical effects of globalisation on the aspect of commencement of matrimonial
proceedings as well as the interplay between family law principles and a country’s stance on social issues including gender equality,
gender roles and gender neutrality towards spousal maintenance. 148
C. Choice of Law Governing Divorce

[18.4.25] Where the jurisdictional basis in section 93 of the Charter is established, the court will proceed to hear the proceedings unless
there are justifiable grounds to grant a stay based on forum non conveniens, as discussed earlier. 149 The question that arises is then:
which is the appropriate law that the Singapore courts will apply to the parties’ matrimonial dispute?
[18.4.26] It is well settled that in proceedings “[i]n England for divorce or judicial separation, the court will apply English domestic law.”
150 The appropriate common law choice of law governing divorce and judicial separation is the lex fori. Accordingly, the court should
apply the divorce law of the forum, which represents the social family policy of the state and public policy of the forum, to all divorce
proceedings heard in Singapore. 151 In this respect, Debbie Ong JC has submitted that while the personal or domiciliary law of the parties
is appropriate in the prenuptial phase in determining the parties’ capacity to enter into the marriage, the law of the forum is perhaps the
most principled “choice of law that determines if the marriage has subsequently broken down in cases where the parties are
substantially connected to the forum by the time of the proceedings.” 152
[18.4.27] In Cheshire, North & Fawcett, 153 it was stated that “[w]hilst some civil law jurisdictions are prepared to consider the relevance
of the divorce law of countries other than the forum, the general approach of the common law is to apply the law of the forum.” (Emphasis
added). The authors considered the UK Matrimonial Causes Act 1973 which contained no express saving for the rules of private
international law in the case of divorce and judicial separation, such as there is in the case of nullity and opined that this provides some
tacit support for the application of the law of the forum. 154 Similarly, the Charter has no express saving and is silent on the choice of law
matters relating to divorce and judicial separation, unlike in the case of nullity proceedings by virtue of section 108 of the Charter, as
discussed earlier. 155 As such, it may be argued that this likewise lends support to the position that the appropriate governing law for
divorce is that contained in the Charter.
[18.4.28] Indeed, this distinction was recognised in the recent case of Sanjeev Sharma s/o Shri Sarvjeet Sharma v Surbhi Ahuja d/o Sh
Virendra Kumar Ahuja 156 where the application concerned nullity proceedings. The High Court made the following observation:
While the application of the lex fori is widely accepted in the case of divorce proceedings, cases have generally preserved a
distinction between nullity and divorce, preferring not to apply it for nullity because of the possibility of arbitrary and inconsistent
results.
[18.4.29] By commencing divorce proceedings in Singapore, parties submit to the jurisdiction of the Singapore courts. As the principled
choice of law governing divorce is the lex fori, the Singapore courts are likely to apply Singapore divorce law as contained in the Charter.
D. Choice of Law Governing Ancillary Financial Relief Following Termination of Marriage

[18.4.30] The Singapore court has powers to grant ancillary relief to the parties after the termination of marriage by a divorce, judicial
separation or nullity judgment under Part X of the Charter. This ancillary jurisdiction to grant financial reliefs in respect of the division
of matrimonial assets and maintenance of the wife and children under sections 112, 113 and 127 is premised on its main jurisdiction
over matrimonial proceedings in section 93 of the Charter. 157
[18.4.31] The general rule is that whichever jurisdiction is to hear the divorce should also decide the ancillary matters as that would be
the “fairest and most expeditious way of adjudicating the entire action.” 158 The Court of Appeal in TQ v TR 159 has affirmed that the issue
of ancillary relief is a matter governed by Singapore law contained in the Charter as a statutory power in respect of ancillary matters is
invoked. 160 It was held:
... in the present situation, the parties, having submitted to the jurisdiction of our courts in so far as the granting of the decree nisi
was concerned, were now seeking to invoke our statutory powers in respect of ancillary matters. The question is thus whether
parties who seek to have ancillary matters decided in Singapore can contract to have the proprietary incidences of their marriage
governed by a regime other than that provided for under the lex fori. In our view, the governing law relating to the ancillary matters
generally is Singapore law (and, indeed, the parties did not, correctly in our view, seek to argue to the contrary) (see also the recent
English High Court decision of NG v KR (Pre-nuptial contract) [2008] EWHC 1532 at [87] where Baron J cited (with approval) Dicey
([32] supra) vol 2 at para 18-207, which stated that the English court, in making an order for financial provision under the
Matrimonial Causes Act 1973 (c 18) (UK) (“the 1973 UK Act”), would apply its own law irrespective of the domicile of the parties, and
accepted this as “an accurate statement of Law”).
(Emphasis added)
[18.4.32] This proposition also finds support in Halsbury’s Laws of Singapore on Conflict of Laws, 161 where the author observed that:
Under the Women’s Charter which provides a comprehensive legal regime to deal with matrimonial matters irrespective of foreign
elements in the situation, it is not surprising that the courts have concluded that ancillary orders after an order changing the
matrimonial status are also governed by the law of the forum even if the parties are foreign.
(Emphasis added)
[18.4.33] It is therefore clear that the applicable law governing ancillary financial reliefs would follow that which was applied to change
the matrimonial status, notwithstanding that the parties are foreign. In short, if a judgment of divorce is obtained in Singapore, the
governing law relating to the ancillary matters is Singapore law.
18.5 FOREIGN JUDGMENTS AND MATRIMONIAL PROCEEDINGS
[18.5.1] Thus far, the discussion has been in relation to matrimonial proceedings commenced in Singapore and judgments of divorce
granted by the local courts. In cases where either a party has filed an application for divorce or for ancillary financial reliefs in
Singapore but a divorce had previously been granted in another country, does the Singapore court still have the power to grant a
divorce or the jurisdiction to entertain any application in relation to ancillary matters arising from the foreign divorce? 162
A. Recognition of Foreign Divorces

[18.5.2] Apart from its matrimonial jurisdiction to grant judgments of divorce, judicial separation and nullity over marriages with
international elements where section 93 of the Charter is satisfied, the Singapore court will also recognise such judgments made by
foreign courts of competent jurisdiction in accordance with the rules of private international law. 163 It should be noted that recognition
of a foreign divorce is based on whether the foreign court had jurisdiction in accordance with the private international law of
Singapore, and not whether the parties have established the substantive ground for divorce under the domestic law of Singapore
contained in the Charter. 164
[18.5.3] Prior to the High Court decision of Ho Ah Chye v Hsinchieh Hsu Irene 165 (“Ho Ah Chye”), domicile was the only accepted basis for
recognition of a foreign divorce in Singapore. 166 In Ng Sui Wah Novina v Chandra Michael Setiawan, 167 an Indonesian decree of divorce
was recognised on the domicile basis because the husband was domiciled in Indonesia at the time of the divorce. However, Lai Siu Chiu
JC (as she then was) held that the court had no jurisdiction to deal with the ancillary matters relating to maintenance for the former wife
and the child, as the court’s powers under Part IX of the Charter were ancillary to the powers to grant a divorce or nullity or judicial
separation and could not be invoked as a Singapore court did not previously dissolve the marriage. Subsequently, Ho Ah Chye 168
expanded the jurisdictional bases of recognition of foreign divorces. In that case, KS Rajah JC recognised the Californian decree on the
basis that the wife had a real and substantial connection with the court of California by virtue of her habitual residence in the state, and
proceeded to give directions for the hearing of the division of matrimonial property. 169
[18.5.4] In light of Ho Ah Chye, apart from the traditional domicile basis, recognition will also be accorded to foreign decrees granted by
a court which would assume jurisdiction on the same grounds as the Singapore court would, and where there existed a sufficient
connection between the court granting the decree and either party to the marriage. 170 Further, in the interests of international comity,
the Singapore court will generally be slow to criticise the sufficiency of the competence of the foreign court which granted the decree or
refuse recognition of decrees that are valid by the law of the parties’ domicile. 171
B. Financial Relief Consequential on Foreign Divorce
[18.5.5] In the recent High Court decision of Harjit Kaur d/o Kulwant Singh v Saroop Singh a/l Amar Singh 172 (“Harjit Kaur”), Debbie Ong
JC summarised succinctly the law on financial relief consequential on foreign divorce:
1 Prior to 2011, where a marriage has been terminated by a foreign decree, the Singapore court could not deal with the post-
divorce issues such as division of matrimonial assets or maintenance for the former spouse. This was because the powers of the
court to divide matrimonial assets under s 112 of the Women’s Charter (Cap 353, 2009 Rev Ed) and to order maintenance under s
113 of the Women’s Charter were “ancillary” to its jurisdiction to grant a divorce, nullity or judicial separation. This was a
significant lacuna in the law ...
2 Today, this lacuna has been addressed by statutory changes to the Women’s Charter ... The Women’s Charter (Amendment) Act
2011 extended the powers in ss 112, 113 and 127 of the Women’s Charter to marriages which have been dissolved, annulled, or
where the parties to a marriage have been legally separated by means of judicial or other proceedings in a foreign country
recognised as valid under Singapore law. The new s 121B of the Women’s Charter provides that parties in such situations may
apply for financial relief under the new Ch 4A of Pt X of the Women’s Charter. The void has been filled by these provisions.
...
11 Chapter 4A sets out the following regime for the application of financial relief after a foreign divorce, nullity or judicial
separation. First, parties must satisfy the jurisdictional basis in s 121C. Next, leave of the court is required and in regard to this,
there must be “substantial ground” for the application in order for leave to be granted (see s 121D). Finally, Singapore must be
the appropriate forum to grant the reliefs (see s 121F). After fulfilling these conditions, the court may make any orders which it
could have made under ss 112, 113 or 127(1) “in the like manner as if a decree of divorce, nullity or judicial separation in respect
of the marriage had been granted in Singapore” (s 121G).
[18.5.6] In light of the recent amendments, the Singapore court’s jurisdiction in granting post-foreign divorce financial relief is no longer
ancillary in nature and can be exercised independently of its matrimonial jurisdiction. The bases of jurisdiction in Chapter 4A of Part X
of the Charter are wider than that for matrimonial jurisdiction for divorce under section 93 of the Charter. 173 To establish that the
parties have sufficient connection to Singapore, habitual residence under section 121C need only be for a period of one year immediately
preceding the date of the application for leave under section 121D or the date of the foreign judgment. In contrast, habitual residence for
three years is required to satisfy the jurisdictional grounds for divorce, as mentioned earlier. 174
[18.5.7] Pursuant to section 121D of the Charter, leave of the court is required to be obtained before an application for an order for
financial relief may be made. Under rule 40(1) of the Family Justice Rules 2014, an application for leave must be made by originating
summons. 175 Following the seminal UK Supreme Court decision of Agbaje v Agbaje, 176 the purpose of requiring leave is to serve as a
“filter mechanism” to prevent unmeritorious claims, and this would require an inquiry into the applicant’s prospects of success. The
applicant would need to show that he or she has a “substantial” or “solid” case, and that it would be appropriate for the Singapore court
to make the order. 177 In this regard, it should be noted that while the factors in section 121F(2) of the Charter are consistent with the
forum non conveniens principles, there is no need to determine if there is a clearly more appropriate forum elsewhere, as this enquiry is
not directed at a stay of proceedings. 178
[18.5.8] Where financial relief has already been made by the foreign court, the Singapore court has to be cautious not to make any
order that will allow a party to have a second bite of the cherry or offend the fundamental rule of comity as between courts of
competent jurisdiction. 179 However, leave may be granted where the financial relief by the foreign court is inadequate. Further, the
Singapore court should generally refrain from granting leave if there are possible methods of enforcing the financial relief granted by
the foreign court, even though they may be more inconvenient or costly. 180
[18.5.9] Harjit Kaur involved an appeal against the dismissal of the wife’s application for leave to apply for financial relief under section
121B of the Charter after a decree of divorce and consent order on ancillary financial issues had been ordered by the Malaysian court.
Applying the principles from the English cases and having regard to all the circumstances of the present case, Debbie Ong JC found that
there was no substantial ground for leave to be granted. The Malaysian court had made orders for financial relief and there was nothing
inadequate or unfair about the Malaysian order. On the facts, the Malaysian order which was made by consent of the parties had
already included the division of the Singapore property.
C. Enforcement of Foreign Maintenance Orders

[18.5.10] This section discusses how conflict of laws features in the enforcement of foreign maintenance orders in Singapore. Generally,
this involves the reciprocal recognition and enforcement of maintenance orders between Singapore and a foreign country. In Singapore,
the Maintenance Orders (Facilities for Enforcement) Act (Cap 168) (“MO(FE)A”) and the Maintenance Orders (Reciprocal Enforcement)
Act (Cap 169) (“MO(RE)A”), which were modelled after the English legislations, 181 enable a person in Singapore to apply for, vary and
enforce maintenance orders against a party residing in a reciprocating country. Likewise, a person in a reciprocating country may
enforce a maintenance order made by a court in a reciprocating country against a party residing in Singapore. 182 At present, both the
MO(FE)A and MO(RE)A are in force concurrently in Singapore, as section 19 of the MO(RE)A which provides for the repeal of MO(FE)A
has yet to be operative.
[18.5.11] The English position is that a foreign maintenance order cannot be enforced at common law unless it is final and conclusive.
183 In Singapore, the MO(FE)A and the MO(RE)A provide for the statutory enforcement of maintenance orders made in a reciprocating
country against a payer residing in Singapore. Foreign maintenance orders registered (or confirmed if it is a provisional maintenance
order) by a Singapore court under these statutes become enforceable in Singapore in a like manner as if they had been made under Part
VIII of the Charter. 184 The payer will then be required to make payments through the Official Assignee in Singapore. 185 Should the
payer fail to pay in accordance with the terms of the foreign order, a Magistrate’s Complaint should be made, after which a summons
will be issued to compel the attendance of the payer. 186 Further, the foreign orders which have been registered by the Singapore court
may be varied or revoked upon application commenced by a Magistrate’s Complaint. 187
18.6 CONFLICT OF LAWS AND APPLICATIONS FOR MAINTENANCE DURING SUBSISTENCE OF

MARRIAGE
[18.6.1] This section discusses how conflict of laws features in maintenance issues during the subsistence of the marriage. In particular,
applications for maintenance of the wife during the subsistence of the marriage where the marriage was not in Singapore and
applications for maintenance during the subsistence of the marriage where either party is abroad.
A. Application For Maintenance of Wife During Subsistence of Marriage Where the Marriage Was Not in Singapore
[18.6.2] Apart from section 113 of the Charter which provides for maintenance only after matrimonial proceedings for divorce, judicial
separation or nullity have commenced, a wife is also entitled to apply for maintenance from her husband during the subsistence of the
marriage by virtue of section 69(1) of the Charter:
The court may, on the application of a wife, and on due proof that her husband has neglected or refused to provide reasonable
maintenance for her, order the husband to pay a monthly allowance or a lump sum for the maintenance of that wife.
[18.6.3] As explained by Debbie Ong JC, the absence of a specific express provision on jurisdiction in section 69 of the Charter implies
that the general scope of the Charter provisions found in section 3(1)applies by default. 188 Accordingly, even if the marriage did not take
place in Singapore, the Singapore court can assume jurisdiction and order maintenance as long as the parties are either physically
present in Singapore or domiciled in Singapore.
[18.6.4] In Sithy Fatima Zafrullah v Hareed Mohamed Zafrullah, 189 the husband argued that “unless a more real and substantial
connection between the parties and Singapore” was sought, “any dissatisfied wife from any part of the world may come to Singapore and
institute proceedings against her husband who happened to be in Singapore.” While, in theory, this seemed possible, the District Court
rightly rejected the argument for the reason that the problems of enforcement of orders would prevent a wife from applying in
Singapore if the husband did not have income or financial resources in Singapore. On the facts of the case, the husband was working
and earning income in Singapore. This was a legitimate reason for making a maintenance application in the forum. The enforcement of
maintenance orders, such as by way of attachment of earnings orders, will be effective where the husband works in the forum. 190
B. Application For Maintenance of Wife During Subsistence of Marriage Where One Party Resides Overseas
[18.6.5] The procedure in relation to an application for maintenance against a husband who resides outside Singapore has been
simplified by the MO(FE)A and the MO(RE)A. Section 4 of the MO(RE)A grants the Singapore court the power to make a maintenance
order against a person residing in a reciprocating country. In other words, provided the statutory conditions are satisfied, a complainant
wife may apply for maintenance in the same manner as if the respondent husband were residing in Singapore. The provisional
maintenance order issued by the Singapore court will be sent to the respondent’s country and must be confirmed there before it
becomes effective. The procedures in each receiving country will vary depending on what mechanisms or practices have been put in
place by the competent authorities in that particular country. 191
[18.6.6] Section 79(4) of the Charter requires an application to the Family Justice Courts (“FJC”) for maintenance during the subsistence of
the marriage under section 69 of the Charter to be commenced by way of a Magistrate’s Complaint. 192 The difficulties of this are
discussed below. 193
18.7 CONFLICT OF LAWS AND ENFORCEMENT OF MAINTENANCE ORDERS OBTAINED IN SINGAPORE

REGARDLESS OF WHETHER MARRIAGE HAS BEEN TERMINATED OR IS STILL SUBSISTING
A. Enforcement of Maintenance Orders By Wife Residing Overseas Against Husband in Singapore

[18.7.1] While a wife who lives abroad may satisfy the jurisdictional grounds to invoke section 69 of the Charter where the husband
(who has financial connection with Singapore) defaults on the payment of maintenance during the marriage, a practical problem may
arise as to the mode of enforcing such maintenance orders if the wife resides abroad. Procedurally, an application for enforcement of a
maintenance order has to be commenced by filing a Magistrate’s Complaint at the FJC. This requires the complainant to be personally
present before the Magistrate or District Judge to swear or affirm the complaint. Thereafter, if the complainant fails to attend court on
the day the case is fixed for mention, the complaint may be struck off. In the case of a respondent who fails to attend court on the
mentions date, a warrant of arrest may be issued against him or her to compel his or her attendance, although bail is generally offered.
194 Pursuant to section 79(4) of the Charter and rule 20(2)(d) of the Family Justice Rules 2014, unless otherwise provided in the Family
Justice Rules 2014, all applications to a Family Court under Part VIII of the Charter for maintenance are heard in the same manner and
in accordance with the procedure for summonses issued under the Criminal Procedure Code (Cap 68).
[18.7.2] Thus, it appears that a wife who resides overseas but whose husband is in Singapore may face difficulty enforcing a
maintenance order for maintenance against her husband unless she is physically present in Singapore. It is highly onerous on the wife
to have to travel to Singapore merely for the purpose of lodging a Magistrate’s Complaint. It is costly and arrangements would have to be
made for the children to be adequately cared for during her absence. In effect, the wife and children are held ransom by a
husband/father who refuses to pay maintenance ordered against him.
[18.7.3] In such a situation, garnishee proceedings are also not an option available to the wife as an application for a garnishee order for
the enforcement of a maintenance order similarly hinges upon the commencement of enforcement proceedings by way of Magistrate’s
Complaint. 195 However, if the amount of the debt is not less than S$10,000, it is possible for the wife to take out a bankruptcy application
against the husband by first serving a statutory demand personally on him through her solicitors in Singapore. In view of these
challenges, perhaps the regime should enable wives who reside abroad to commence a Magistrate’s Complaint by way of a sworn
statement before a Notary Public, or by way of video-conference. Indeed, this present lacuna in the law ought to be addressed.
[18.7.4] While the MO(RE)A enables maintenance orders made in Singapore to be enforced in a reciprocating country which the payer
resides in, it does not seem to contemplate the situation where the payer is in Singapore but the payee resides overseas. In such a
scenario, it appears that the wife must commence a fresh action to obtain judgment on the debt to be enforced in Singapore.
B. Enforcement of Maintenance Orders By Wife Against Husband Residing Outside Singapore

[18.7.5] In relation to the enforcement of maintenance orders made in Singapore where the payer is residing overseas, section 3(1) of
the MO(RE)A is instructive:
Where the payer under a maintenance order made, whether before or after the commencement of this Act, by a court in Singapore
is residing in a reciprocating country, the payee under the order may apply for the order to be sent to that country for enforcement.
[18.7.6] A wife or former wife who is applying to enforce an existing maintenance order must provide a certified copy of that order and
the address of the payer in the reciprocating country when filing the Magistrate’s Complaint at the FJC, after which the court will send
the necessary papers to the responsible authority in that country for enforcement. 196 This procedure for transmission of maintenance
orders made in Singapore for enforcement against a payer residing in a reciprocating country is therefore useful for the wife in
situations where the husband has moved back to another country. As for the collection and enforcement of maintenance in the
reciprocating country itself, this varies from country to country and depends on the mechanisms and practices that have been put in
place by the authorities in the reciprocating country. 197
[18.7.7] Further, the Singapore court has power to vary or revoke a maintenance order which has been sent for enforcement in a
reciprocating country or a provisional maintenance order made by a Singapore court which has been confirmed by the reciprocating
country. 198
FOOTNOTES
1 TDX v TDY [2015] 4 SLR 982 at [1].
2 Singapore Parliamentary Debates, (February 19, 2016), vol 94 (Mr Tan Chuan-Jin, Minister for Social and Family Development).
3 See Lord Collins et al (eds), Dicey, Morris & Collins: The Conflict of Laws, 15th edn (Sweet & Maxwell, 2012), para 1-001.
4 Yeo Tiong Min, Laws of Singapore, Chapter 6 (The Conflict of Laws), SingaporeLaw website at
<http://www.singaporelaw.sg/sglaw/laws-of-singapore/overview/chapter-6> (Last accessed March 27, 2016).
5 Leong Wai Kum, Elements of Family Law in Singapore, 2nd edn (Singapore: LexisNexis, 2013), p 7.
6 See paras [18.3.21]–[18.3.22] below.
7 Debbie Ong, International Issues in Family Law in Singapore (Singapore: Academic Publishing, 2015), p 23, para 2.2.
8 [2013] 1 SLR 607 at [29], applied in Sanjeev Sharma s/o Shri Sarvjeet Sharma v Surbhi Ahuja d/o Sh Virendra Kumar Ahuja [2015] 3 SLR 1056 at [21].
9 George Udny v John Henry Udny (1869) 1 LR Sc & Div 441 at 449.
10 Halsbury’s Laws of Singapore, Conflict of Laws (Singapore: LexisNexis), [75.036].
11 Peters Roger May v Pinder Lillian Gek Lian [2006] 2 SLR(R) 381 at [14].
12 Lord Collins et al (eds), Dicey, Morris & Collins: The Conflict of Laws, 15th edn (Sweet & Maxwell, 2012), para 6-004.
13 Ibid.
14 Ibid.
16 Peters Roger May v Pinder Lillian Gek Lian [2006] 2 SLR(R) 381 at [17]: “The issue of whether a domicile has been changed is to be determined in accordance
with the law of the forum.” The exception is where the question arises in the renvoi context where the court of forum is applying a foreign choice of law rule in
determining the validity of the marriage.
18 See section 47 of the Charter; Leong Wai Kum, Elements of Family Law in Singapore, 2nd edn (Singapore: LexisNexis, 2013), p 188.
19 [2009] 3 SLR(R) 765 at [15].
20 Re Bhagwan Singh (deceased) [1964] MLJ 360 at 362.
24 Tan Cheng Han, Matrimonial Law in Singapore and Malaysia (Singapore: Butterworths Asia, 1994), p 24.
26 Peters Roger May v Pinder Lillian Gek Lian [2009] 3 SLR(R) 765 at [16], citing George Udny v John Henry Udny (1869) 1 LR Sc & Div 441.
28 See Tee v Tee [1974] 1 WLR 213 at 216.
29 Peters Roger May v Pinder Lillian Gek Lian [2009] 3 SLR(R) 765 at [17], citing Dicey, Morris & Collins on The Conflict of Laws, 14th edn, Vol 1 (Sweet & Maxwell,
2006), para 6-031.
30
See Winans v Attorney-General [1904] AC 287.
31 Peters Roger May v Pinder Lillian Gek Lian [2006] 2 SLR(R) 381 at [15], citing Theobald on Wills, 16th edn (Sweet & Maxwell, 2001), para 1-03.
32 Wong Phui Lun Joseph v Yeoh Loon Goit [1977–1978] SLR(R) 305 at [18].
33 [1977–1978] SLR(R) 305.
34 Ibid at [18].
35 Ibid at [22], [23] and [25].
38 See Debbie Ong, International Issues in Family Law in Singapore (Singapore: Academic Publishing, 2015), at p 40, para 2.33; Re Beaumont [1893] 3 Ch 490; Re G
[1966] NZLR 1028.
39 Sanjeev Sharma s/o Shri Sarvjeet Sharma v Surbhi Ahuja d/o Sh Virendra Kumar Ahuja [2015] 3 SLR 1056 at [43].
42 (1869) 1 LR Sc & Div 441 at 458.
45 [1982] Ch 314 at 318–319.
48
IRC v Bullock [1976] 3 All ER 353; Re Furse [1980] 3 All ER 838.
50 Mark v Mark [2005] UKHL 42 at [49]–[50].
51 Marshall v Marshall [1956] MLJ 122 at 124.
54 Wong Phui Lun Joseph v Yeoh Loon Goit [1977–1978] SLR(R) 305 at [20].
55 Theobald on Wills, 16th edn (Sweet & Maxwell, 2001), para 1-08.
58 Ibid, p 46–47, paras 2.41–2.43.
61 Mark v Mark [2005] UKHL 42 at [49]–[50].
62 [2012] 4 SLR 1115 at [5].
63 Ibid at [6].
65 Helen Diane Womersley (mw) v Nigel Maurice Womersley [2003] SGDC 186 at [7]. See also Debbie Ong and Valerie Thean, “Family Law” (2003) 4 SAL Ann Rev
243 at 244, para 13.4.
66 [2003] SGDC 186.
67 Debbie Ong, International Issues in Family Law in Singapore (Singapore: Academic Publishing, 2015), p 49, para 2.47; Debbie Ong and Valerie Thean, ibid.
68 Debbie Ong, ibid; Debbie Ong and Valerie Thean, ibid.
69 Debbie Ong, ibid, p 50, para 2.50.
70 Debbie Ong, ibid, pp 50–51, para 2.50.
73 Ibid. See the discussion in paras [18.3.3]–[18.3.18] below.
74 [1997] 3 SLR(R) 378.
76 Ibid.
77 Debbie Ong, International Issues in Family Law in Singapore (Singapore: Academic Publishing, 2015), p 78, para 3.47. See the discussion at paras
[18.3.8]–[18.3.18] below.
79 See para [18.3.14] below.
81 Leong Wai Kum, Elements of Family Law in Singapore, 2nd edn (Singapore: LexisNexis, 2013), p 18. See section 108 of the Charter.
82 Leong Wai Kum, ibid.

83 Lord Collins et al (eds), Dicey, Morris & Collins: The Conflict of Laws, 15th edn (Sweet & Maxwell, 2012), rule 74, para 17R-057; affirmed by the Singapore High
Court in Arpinya Rongchotiawattana v Wee Oh Ken [1997] 3 SLR(R) 378 at [18].
85 [1951] MLJ 164.
87 [1997] 3 SLR(R) 378.
89
(1879) 5 PD 94.
90 Lord Collins et al (eds), Dicey, Morris & Collins: The Conflict of Laws, 15th edn (Sweet & Maxwell, 2012), para 17E-107.
92 Dicey, Morris & Collins on The Conflict of Laws, 15th edn, Vol 2 (Sweet & Maxwell, 2012), para 17E-107, footnote 313.
93 See para [18.3.6] above; Debbie Ong, International Issues in Family Law in Singapore (Singapore: Academic Publishing, 2015), p 83, para 3.57.
95 Ibid.
96 Ibid, p 84, para 3.59.
97 Practitioners’ Library: Family and Juvenile Court Practice, 2nd edn (Singapore: LexisNexis, 2008), p 25.
98 [1973] 1 Fam 35.
99 [1985] 1 Fam 106.
103 Ibid.
104 Ibid.
107 See paras [18.3.3]–[18.3.18] above.
108 [2015] 3 SLR 1056 at [37].
109 See paras [18.3.3]–[18.3.11] above; Debbie Ong, International Issues in Family Law in Singapore (Singapore: Academic Publishing, 2015), p 104, para 3.96.
112 See Debbie Ong, International Issues in Family Law in Singapore (Singapore: Academic Publishing, 2015), p 105, para 3.98.
113 The Women’s Charter (Amendment) Act 1980 introduced the phrase into sections 5, 9, 10 and 11. Section 12 of the Charter was subsequently added by the
Women’s Charter (Amendment) Act 1996 and also contained the same phrase.
115 Section 3(1) of the Charter: “Except as otherwise provided, this Act shall apply to all persons in Singapore and shall also apply to all persons domiciled in
Singapore.”
117 See Debbie Ong, International Issues in Family Law in Singapore (Singapore: Academic Publishing, 2015), p 106, para 3.101.
118 Ibid, p 130, para 5.1.
119 The concepts of domicile and habitual residence have been discussed earlier at paras [18.2.3]–[18.2.24] above.
120 See paras [18.5.2]–[18.5.4] below.
121
[1987] AC 460.
122 VH v VI & Anor [2008] 1 SLR(R) 742 at [20]–[21].
123 The Court of Appeal has affirmed that the Spiliada test is applicable to Singapore in CIMB Bank Bhd v Dresdner Kleinworth Ltd [2008] 2 SLR(R) 543 and JIO
Minerals FZC v Mineral Enterprises Ltd [2011] 1 SLR 391.
124 TDX v TDY [2015] 4 SLR 982 at [17].
125 [2008] 1 SLR(R) 742.
126 Ibid at [29].
127 Ibid at [29]–[32].
128 Debbie Ong and Valerie Thean, “Family Law” (2007) 8 SAL Ann Rev 229 at 231, para 14.7.
129 [2009] SGHC 83, involving the same parties in VH v VI & Anor [2008] 1 SLR(R) 742, but which title had not been redacted.
130 Debbie Ong and Valerie Thean, “Family Law” (2009) 10 SAL Ann Rev 314 at 315, para 15.3.
131 [2013] 1 SLR 607.
132 BDA v BDB [2013] 1 SLR 607 at [21].
133 Ibid at [24].
134 Joel Lee Tye Beng, “Conflict of Laws” (2012) 13 SAL Ann Rev 180 at 182, para 11.9. See TDX v TDY [2015] 4 SLR 982 at [17]: “For example, in determining
whether maintenance proceedings should be stayed, factors such as the location of the husband’s assets and source of his income may take on a greater
significance (see e.g., BDA v BDB [2013] 1 SLR 607 at [29]).”
135 [2013] 3 SLR 700.
136 Debbie Ong, “Family Law” (2013) 14 SAL Ann Rev 358 at 358, para 16.2.
137 See TDX v TDY [2015] 4 SLR 982 at [58]: “Lis alibi pendens was a significant factor in the recent High Court decision in AZS v AZR [2013] 3 SLR 700.”
138 TDX v TDY, ibid.
139 [2013] 3 SLR 700.
140 See paras [18.4.25]–[18.4.33] below.

141 See “Current Legal Framework: Marital assets and property in Germany” at
<http://www.impowr.org/content/current-legal-framework-marital-assets-and-property-germany> (Last accessed March 27, 2016).
142 See Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520 at [33]–[35]; NK v NL [2007] 3 SLR(R) 743 at [28].
143 NK v NL [2007] 3 SLR(R) 743; affirmed in ANJ v ANK [2015] 4 SLR 1043.
144 [2015] 4 SLR 1043 at [22] and [26]–[27]. The High Court in AVM v AWH [2015] 4 SLR 1274 applied this structured four-step approach set out in ANJ v ANK.
145 Debbie Ong, International Issues in Family Law in Singapore (Singapore: Academic Publishing, 2015), p 12, para 1.19
146 Ibid, pp 12–13, paras 1.19 and 1.21.
147 See also paras [18.4.13]–[18.4.17] above for the discussion of the doctrine of lis alibi pendens and multiplicity of proceedings in AZS & Anor v AZR [2013] 3 SLR
700 and TDX v TDY [2015] 4 SLR 982.
148 Singapore Parliamentary Debates, (February 19, 2016), vol 94 (Mr Tan Chuan-Jin, Minister for Social and Family Development).
149 See the discussion in paras [18.4.3]–[18.4.17].
150 Lord Collins et al (eds), Dicey, Morris & Collins: The Conflict of Laws, 15th edn (Sweet & Maxwell, 2012), rule 85, para 18R-032.
152 Ibid, p 148, para 5.33.
153 Peter North (ed), James Fawcett and Janeen Carruthers, Cheshire, North & Fawcett: Private International Law, 14th edn (Oxford University Press, 2008), p 967.
154 Ibid, p 968.
155 Section 108 of the Charter expressly provides for the applicability of foreign law in determining the validity of the marriage. The dual domicile rule applies to
determine the essential validity of a marriage while the lex loci celebrationis governs its formal validity.
156 [2015] 3 SLR 1056 at [42].
158 AQD v AQE [2011] SGHC 92 at [4]; applied in AQN v AQO [2015] 2 SLR 523. In AQN v AQO, the High Court held at [11]: “The divorce action was commenced in
Singapore, and court having heard the divorce should hear the question of the validity of the prenuptial agreement as part of the ancillary matters.”
159 [2009] 2 SLR(R) 961 at [42].
163 Debbie Ong, International Issues in Family Law in Singapore (Singapore: Academic Publishing, 2015), p 155, para 5.47. See section 108 of the Charter which
preserves the application of the rules of private international law in the determination of the validity of marriages.
165 [1994] 1 SLR(R) 485.
167 [1992] 2 SLR(R) 111.
168 See an analysis of this case in Debbie Ong, International Issues in Family Law in Singapore (Singapore: Academic Publishing, 2015), pp 160–164, paras 5.54–5.59.
169 Practitioners’ Library: Family and Juvenile Court Practice, 2nd edn (Singapore: LexisNexis, 2008), pp 449–450.
171 Ibid, p 164, para 5.60. See also Ng Sui Wah Novina v Chandra Michael Setiawan [1992] 2 SLR(R) 111 at [26], citing Igra v Igra [1951] P 404 at 412per Pearce J.
172 [2015] SGHCF 5 at [1], [2] and [11].
174 See paras [18.4.1]–[18.4.2] above.
175 Paragraph 74 of the Family Justice Courts Practice Directions 2015 prescribes the forms of documents to be filed for proceedings under Chapter 4A of Part X of
the Charter. See paragraph 74(1) of the Family Justice Courts Practice Directions 2015: “An originating summons for leave under section 121D of the Women’s
Charter and rule 40 of the Family Justice Rules to file an application for financial relief under section 121B of the Women’s Charter shall be in Form 227 in
Appendix A to these Practice Directions.”
176 See Agbaje v Agbaje [2010] 1 AC 628 at [33] in relation to section 13(1) under Part III of the English Matrimonial and Family Proceedings Act 1984 (which is the
equivalent of section 121D(2) of the Charter).
177 Harjit Kaur d/o Kulwant Singh v Saroop Singh a/l Amar Singh [2015] SGHCF 5 at [17]–[20] and [25].
178 Debbie Ong, International Issues in Family Law in Singapore (Singapore: Academic Publishing, 2015), p 203, para 6.72. See Harjit Kaur d/o Kulwant Singh v
Saroop Singh a/l Amar Singh, ibid at [20], citing Agbaje v Agbaje [2010] 1 AC 628 at [50].
179 Harjit Kaur d/o Kulwant Singh v Saroop Singh a/l Amar, ibid at [22].
180 Ibid at [24].
181 Maintenance Orders (Facilities for Enforcement) Act 1920.
183 Lord Collins et al (eds), Dicey, Morris & Collins: The Conflict of Laws, 15th edn (Sweet & Maxwell, 2012), rule 102(1), para 18R-243.
184 See sections 6–8 of the MO(RE)A, and section 8 of the MO(FE)A.
186 Ibid, p 140.
187 Ibid.
189 MSS 1096 of 1983 (unreported).
190 Debbie Ong, “Family Law” (2012) 13 SAL Ann Rev 299 at 305–306, para 16.20; Debbie Ong, International Issues in Family Law in Singapore (Singapore: Academic
Publishing, 2015), p 121, para 414.
191 See the FJC’s website at <https://www.familyjusticecourts.gov.sg/Common/Pages/ Maintenance.aspx> (Last accessed March 27, 2016).
193 See paras [18.7.1]–[18.7.3] below.
195 Pursuant to rule 119(2) of the Family Justice Rules 2014 (“Division 5 — Garnishee proceedings under Part VIII of Act”), an application to a Family Court for a
garnishee order must be made in accordance with the procedure under section 79(4) of the Charter. See para [18.7.1] above.
196 See the FJC’s website at <https://www.familyjusticecourts.gov.sg/Common/Pages/Maintenance.aspx> (Last accessed March 27, 2016), and section 3 of the
MO(RE)A.
198 Ibid; section 5 of the MO(RE)A.

2016 - 10 - 17 PAGE 571

Chapter 19: Overview of Matrimonial Finance in other Jurisdictions
Chapter 19
Overview of Matrimonial Finance in other Jurisdictions

Chen Siyuan

19.2 Property that is held during the Marriage 574
A. UK 574
B. Australia 576
C. New Zealand 577
A. UK 577
B. Australia 581
C. New Zealand 582
19.4 Maintenance 585
A. UK 585
B. Australia 586
C. New Zealand 589
19.1 INTRODUCTION
[19.1.1] It is apparent that the family justice landscape in Singapore has transformed dramatically in just the last couple of years. 1 With
the passage of the Family Justice Act 2014 (No 27 of 2014), the Family Justice Courts (“FJC”) are now proper specialist courts presided by a
High Court judge and governed by their own Rules 2 and Practice Directions 3 for the first time. The judicial philosophy with respect to
family cases is fundamentally different from before, as judges are now supposed to assume a more inquisitorial and interventionist role
to ensure that trauma and acrimony are minimised for all parties concerned. 4 Judicial Commissioners with specific expertise in family
law have also been appointed to the High Court as part of the migration towards a de facto system of specialised judges. 5 Virtually all of
the recommendations of the 2014 Committee for Family Justice on the Framework of the Family Justice System have been implemented.
6
[19.1.2] But the changes and impending changes to the landscape are not confined to the local space, nor are they being made with a
parochial view of family law. There has been for a while a widespread recognition that marital disputes increasingly contain
international elements and involve parties from different jurisdictions who have lived in different places at different times. 7 This is an
inevitable outcome in a mobile world and a globalised economy, where divorces and remarriages are becoming more commonplace. It is
important to bear in mind that the cross-border nature of any marital dispute arising out of such circumstances implicates not only the
main divorce proceedings, but ancillary matters such as maintenance and division of matrimonial assets as well. 8 The modern family
law practitioner must thus not only be well-acquainted with the rules on conflict of laws, but should ideally have a grasp of the
municipal family laws of not just his or her own jurisdiction but various foreign jurisdictions as well.
[19.1.3] Indeed, in his speech at the Opening of Legal Year 2016, the Chief Justice of Singapore Sundaresh Menon noted that family law
“poses many challenges and ... we can learn much from the experiences of other jurisdictions.” 9 With the FJC already developing an
international family mediation framework to “address the reality that family law issues too are crossing borders”, 10 the Chief Justice has
also established an International Advisory Council comprising internationally renowned family law and social science experts to “discuss
the latest ideas in family law and practice [and] study international best practices”. 11 It is against this backdrop that this chapter is
written; though this book is obviously primarily about the law and practice of family law in Singapore, one simply can no longer afford
to ignore what is happening in other parts of the world.
[19.1.4] As a start for this edition of the book, three major common law jurisdictions that are likely to be of some familiarity to local
practitioners will be examined for the topic on matrimonial finance. The first is the UK (England and Wales to be precise). Though our
Women’s Charter (Cap 353) (the “Charter”) is unique and our family law jurisprudence has gradually come into its own right, judicial
references to English developments are still made from time to time – in other words, there are still fairly strong historical and legal ties
to the UK even in family law. 12 The second jurisdiction is Australia. Though the connection is less obvious as compared to the UK,
Singapore has strong links to the country on many other important social and economic fronts; further, Australian jurisprudence and
law reform developments have generally been well received in our case law. The third jurisdiction is New Zealand, and they are being
considered here for the same reasons just mentioned for Australia.
[19.1.5] Geographical scope aside, there is still the question of what the term “matrimonial finance” entails. This assigned term is
deliberately broad, but for this endeavour we will take it to refer to the three things most commonly associated with matrimonial
proceedings in Singapore: property that is held during the marriage; the division of matrimonial assets upon dissolution of the marriage;
and the maintenance of partners and children both during and after the marriage. 13 To be clear, as this chapter is only meant to provide
an overview, the treatment of the subject will necessarily be limited to the key legislative provisions and cases as well as the overarching
issues and principles. The chapter is not bereft of various sources in the footnotes should the reader seek to learn more about the law in
the surveyed jurisdictions.
19.2 PROPERTY THAT IS HELD DURING THE MARRIAGE
A. UK
[19.2.1] When there is a family – broadly conceived 14 – that has yet to be disintegrated by a breakdown in a relationship, but there is a
dispute over property, the first question that arises is whether the normal rules of property law should apply. The emphasis is on the
word “should”, as many probably assume that such rules would apply. This is because while “property law has been based on the
assumption that parties to a property dispute are strangers and it emphasises the rights of individuals to control their property and to
protect their rights”, “family property used by people in a relationship [are often regarded by the members] as communal, for the use of
the family as a group.” 15 Put another way, an emphasis on the formal property rights of individuals may not reflect the true intentions of
the parties or produce fair outcomes if a dispute arises. It bears mention that this problem does not arise in the context of divorce, where
the court has, pursuant to statutory powers conferred, considerable discretion on how to distribute the property upon dissolution of the
marriage. 16 To be clear, this is not to say that the court faces no difficulties when distributing assets fairly upon a divorce, but the point
simply is that the rules of property law are not imposed on the court when the marriage has broken down.
[19.2.2] The law in the UK concerning property that is held during the marriage has been described as being “based on a rather arbitrary
set of rules”. 17 This is despite the fact that knowing the precise answer as to who owns what is important as there can be serious
financial implications when the relationship breaks down, when someone becomes a bankrupt, when a third party attempts to purchase
property from a member in the family, and so forth. The possible approaches to adopt include sole ownership, community of property,
community of gains, community of common property, purchaser-based ownership, and intention-based ownership, but the current law
“does not plump for one or other of these approaches”. 18
[19.2.3] The settled core, however, appears to comprise the following propositions: 19 first, income belongs to the earner of the income;
20 secondly, there is a rebuttable presumption, depending on the purchaser’s intention, that personal property belongs to the purchaser;
21 thirdly, ownership of property can be transferred if there is effective delivery of the property with evidence that it is intended as a gift;
22 and finally, marriage, engagement, or cohabitation in and of itself does not alter ownership of property.
[19.2.4] With respect to housekeeping allowance, section 1 of the Married Women’s Property Act 1964 states that if “any question arises
as to the right of a husband or wife to money derived from any allowance made by the husband for the expenses of the matrimonial
home or for similar purposes, or to any property acquired out of such money, the money or property shall, in the absence of any
agreement between them to the contrary, be treated as belonging to the husband and the wife in equal shares.” 23 However, this statute
does not apply to cohabitants or engaged couples.
[19.2.5] With respect to real property (such as the family home, which is usually the most valuable property as between the parties), the
general law (on property and trusts) that applies is the same as if the parties were not even married. 24 There is of course the basic
distinction between legal and equitable ownership. Under the former, if the land is registered, the legal owner is the one who is
registered as the owner of the land; 25 if the land is not registered, then legal title can only be conveyed by deed. 26 Under the latter, the
law of trusts applies.
[19.2.6] Of all the different types of trusts, constructive trusts have assumed particular importance and interest in reform, especially
since it may be said that developments (that is, in the law of trusts) unique to family law have taken place over the years. 27 Suffice to say
for now that much depends on how the leading cases of Lloyds Bank v Rosset, 28 Stack v Dowden, 29 and Jones v Kernott 30 are
characterised and interpreted; different judges may reach rather different conclusions, for instance, as to how much proof is required to
establish common intent, whether detrimental reliance is even a requirement when considering the existence of a constructive trust,
how share entitlements are to be calculated in different types of relationships, and whether there is any conceptual difference between
constructive trusts and proprietary estoppel. 31
B. Australia
[19.2.7] As is consistent with the English common law heritage in this domain of law, “getting married in Australia does not change the
property rights of husband or wife. During the marriage a system of separate property applies, in the sense that his property remains his,
and her property remains hers. According to these rules, property acquired after the marriage may legally be his, or hers, or may belong
to both of them”. 32 Thus, the general position is that items of property are owned and will be owned by the spouse who made payment
while the marriage subsists, subject of course to any operative rules of equity and trusts. 33
[19.2.8] But as is also consistent with what is being debated in the UK, it is recognised that simply applying general principles of property
law and equity and trusts in all cases puts, for instance, a spouse who stays at home and who provides domestic labour rather than
money to be in a very vulnerable position, particularly in situations of bankruptcy and death. 34 In Australia as it is in the UK, the court is
only given the statutory power to divide or redistribute property if the marriage has broken down and if there is a financial dispute.
Thus, the court has no power no matter what to intervene with respect to property matters while the marriage is intact. 35 However,
unlike the UK, there does not appear to be any substantial push for this aspect of family law to be reformed.
C. New Zealand
[19.2.9] The New Zealand position on this is the same as Australia; in other words, until and unless the relationship has broken down,
the parties’ common law and equitable interests in property are unaffected by marriage, and the court only steps in when the
relationship has broken down and there is no agreement as to how the property should be divided. 36 Like Australia, there does not
appear to be any substantial push for this aspect of family law to be reformed.
19.3 DIVISION OF MATRIMONIAL ASSETS
A. UK
[19.3.1] It is important to note at the outset that “by contrast with many other jurisdictions, no formal distinction is drawn between
division of property and payment of maintenance” in the UK. 37 Under sections 21–24D of the Matrimonial Causes Act 1973, the court can
make a truly wide variety of orders, such as secured and unsecured periodical payments (otherwise known as income orders), lump sum
payments, property adjustment (including payments and transfers), the sharing of pension, the sale of assets, and even a clean break. 38
These orders can be used for any legitimate purpose and there is also great flexibility; thus, for instance, maintenance orders may be
used to achieve, in effect, a redistribution of capital wealth if there is no capital immediately available for transfer. 39
[19.3.2] At bottom, the courts are given a wide discretion in deciding how best to make provision for a spouse following a divorce. 40
However, it should be noted that if there are children, under section 25(1) of the Matrimonial Causes Act 1973, the courts, in exercising
their powers under sections 23 (pertaining to financial provision orders), 24 (pertaining to property adjustments), and 24A (pertaining to
orders for sale of property), have a duty to “have regard to all the circumstances of the case, first consideration being given to the welfare
while a minor of any child of the family who has not attained the age of eighteen.” 41 But while the child’s welfare is the first
consideration, it is not to act as an overriding consideration when other factors are in play. 42 Nor should the child’s welfare be seen in
isolation: for instance, it would be contrary to the child’s interests if either parent has to live in straitened circumstances, or it may be in
the child’s interests if the parent caring for him or her remains in the matrimonial home. 43
[19.3.3] When making an order for periodical or lump payments to either party in the marriage and making an order for property
adjustment, the court shall have regard to factors such as income, 44 earning capacity, financial needs, 45 the standard of living enjoyed
by the family before the breakdown of the marriage, 46 the age of the parties and duration of the marriage, 47 the obligations and
responsibilities of the parties, and the conduct of the parties if it would be inequitable for the court to disregard it. 48 There is no
hierarchy of factors. 49 At the same time, the court shall consider “whether it would be appropriate so to exercise those powers that the
financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just
and reasonable.” 50
[19.3.4] Ultimately, the courts will try to achieve an objectively “fair” outcome and have thus far eschewed any sort of formulaic
approach that undermines flexibility. 51 The leading cases in this regard are White v White, 52 Miller v Miller and Another Appeal, 53 and
Charman v Charman. 54 However, it has been contended that none of these cases have been able to resolve two longstanding ambiguities
in this area of the law: first, how the judicially postulated rationales that underpin a fair allocation of assets – equal sharing, need, and
compensation – can co-exist without contradiction; 55 and secondly, whether the equal sharing principle applies only to assets acquired
as a result of the parties’ joint efforts during the marriage or whether it extends to other assets acquired before, during, or after the
marriage. 56 It has further been contended that “in the vast majority of ‘normal’ (as opposed to ‘big money’) cases, the predominant
concern is to cater for both parties’ needs from all the parties’ assets ... That will often mandate unequal sharing of capital assets, a
particular concern being to house the primary carer and dependent children.” 57
[19.3.5] If there are prenuptial agreements, the court is obligated to “give effect to a nuptial agreement that is freely entered into by each
party with a full appreciation of its implications unless in the circumstances it would not be fair to hold the parties to their agreement.”
58 However, parties would be considered “unlikely to have intended that their ante-nuptial agreement should result, in the event of the
marriage breaking up, in one partner being left in a predicament of real need, while the other enjoys a sufficiency or more, and such a
result is likely to render it unfair to hold the parties to their agreement.” 59
[19.3.6] The Family Proceedings Rules 1999 have had the effect of encouraging parties to reach settlement agreements. If an agreement
is reached, it can be incorporated into a draft court order for the court’s approval, though the court can still consider the relevant
provisions in the Matrimonial Causes Act 1973 in deciding whether to approve it. 60 If a consent order is made, it is just as enforceable as
any order made by the court after contested proceedings.
[19.3.7] The power of the courts to vary orders in the context of distribution of assets upon divorce has been described as “highly
controversial”, because while a “case may be made to justify variation [as] on divorce all too often there are not sufficient assets to make
the order that the court may believe just”, militating against this is the need for finality and closure, so that the parties can move on with
their lives and plan their own futures. 61 Further, payers may “fear that if they increase their income the payee will apply to increase the
level of payments; similarly, payees may be concerned that any improvement in their standard of living will lead to an application to
reduce the level of payments.” 62 However, not all orders can be varied. Orders relating to periodical payments can be varied, 63 but not
those relating to property adjustment or lump sums. 64 In deciding whether to vary a periodical payment order, the welfare of the child
is of first consideration; other main factors include whether payments should be ended so that parties can become financially
independent and whether there has been a fundamental change in circumstances. 65
B. Australia
[19.3.8] When there are property disputes upon divorce, “the court shall, as far as practicable, make such orders as will finally
determine the financial relationship between the parties to the marriage and avoid further proceedings between them.” 66 In other
words, there is a preference for the clean break principle where circumstances permit. 67
[19.3.9] A dispute in this context, however, presupposes that no binding financial arrangements were made before, during, or after the
marriage. Absent such agreement, the court has, pursuant to section 79 of the Family Law Act 1975, considerable discretion in altering
property interests so as to achieve a just and equitable result. 68 Such proceedings are known as property settlement proceedings. Where
issues of maintenance also arise – this is discussed in the next section – this discretion is usually exercised in consideration of that. 69
[19.3.10] When dividing or redistributing the matrimonial assets, the court can consider not just property acquired by the joint efforts of
spouses, but also property owned before the marriage, gifts, inheritances, and the like. 70 Further, the court can make a variety of orders
when exercising its powers for property settlement proceedings. 71
[19.3.11] In determining the appropriate division, the court will place great weight on the different sorts of contributions made by each
spouse during the marriage (including financial and non-financial contributions) as well as the economic circumstances of each spouse
both at the time of the hearing and prospectively. 72 The approach can be described as holistic and the courts have been generally averse
to being too mathematical or precise in making the assessment. 73
[19.3.12] Part VIIIA of the Family Law Act 1975 sets out a number of comprehensive provisions governing prenuptial, postnuptial, and
separation agreements. As to whether such financial agreements are binding, section 90G requires, in the main, the following: the
agreement was signed by all the parties; the parties were duly provided independent legal advice regarding the effect of the agreement
and its advantages and disadvantages; and the agreement has not been terminated or set aside by a court. However, the case law on
section 90G has been particularly controversial, perhaps most notably with respect to the question of whether compliance is meant to be
strict or substantial. 74
C. New Zealand
[19.3.13] The Property (Relationships) Act 1976 is the main piece of legislation that addresses the issue of division of property. 75 It
regulates “the consequences of relationship breakdown by [imposing] a default property-sharing regime on married spouses ... who do
not contract out of the Act by entering into a marital agreement.” 76 It further attempts to promote the clean break approach,
“rationalised on the basis of enabling former partners to achieve certainty and finality in their financial affairs to allow them to get on
with their lives.” 77
[19.3.14] Four guiding principles are expressly stated in section 1N of the statute, and they are: men and women have equal status, and
their equality should be maintained and enhanced; all forms of contribution to the marriage are treated as equal; a just division of
“relationship property” – the term elaborated below – has regard to the economic advantages or disadvantages to the spouses arising
from their marriage or from the ending of their marriage; and questions about relationship property should be resolved as
inexpensively, simply, and speedily as is consistent with justice.
[19.3.15] There are three main sections that address the threshold definitional issues. First, section 2 defines “property” as including real
property, personal property, any estate or interest in any real or personal property, any debt or any thing in action, and any other right
or interest.
[19.3.16] Secondly, section 8 defines the aforementioned “relationship property” – that is, the property that is liable to be divided – as
including: the family home whenever acquired; family chattels whenever acquired; all property owned jointly or in common in equal
shares by the couple; all property owned by either spouse immediately before the marriage if it was acquired in contemplation of
marriage and intended for the common use or benefit of both spouses; all property acquired after the marriage began, whether for the
common use or benefit of both spouses; life insurance policies; and superannuation entitlements attributable to the relationship.
[19.3.17] Thirdly, section 9 defines what may be classified as “separate property” – or put another way, property that is not classified as
“relationship property” – to include: all property acquired by either spouse while they are not living together as a married couple; all
property acquired after the death of one by the surviving spouse; all property acquired out of separate property and the proceeds of any
disposition of separate property; and any increase in the value of separate property and any income or gains derived from separate
property. 78 Under the same section, the court has the discretion to treat separate property as relationship property if it is just in the
circumstances to do so.
[19.3.18] The determination as to what falls under “relationship property” is critical as each spouse “is entitled to share equally in ... the
family home ... the family chattels ... any other relationship property.” 79 An exception to this is if the marriage is short, or if there are
extraordinary circumstances that would render equal sharing repugnant to justice. 80 It should also be noted that under section 15 of the
Property (Relationships) Act 1976, the court may make orders to redress economic disparities. Specifically, if on the division of
relationship property, the court is satisfied that after the marriage, the income and living standards of one spouse are likely to be
significantly higher than the other spouse, the court may, for the purpose of compensating the latter, order the former to pay a sum of
money or transfer property to the other spouse. However, as this section requires the court to speculate on the likely earning capacity of
each spouse, the responsibilities of each spouse, and all other relevant circumstances, it has been criticised as being “difficult to apply in
a principled manner”. 81 Indeed, it has been observed that the courts are “guarded” in applying section 15 of the Act. 82
[19.3.19] If parties wish to opt out of the default equal-sharing regime under the Property (Relationships) Act 1976, they can enter into
two main types of agreements. The first can be made before or during the marriage (known as prenuptial and postnuptial agreements
respectively) and addresses issues regarding the status, ownership, and division of their property during their joint lives or when one of
them dies. 83 The second is meant to resolve existing property differences between spouses (known as settlement or compromise
agreements) and is normally made on or after separation or the death of a spouse. 84 While parties are free to customise their own
agreements, such agreements must comply with a number of strictly enforced formalities or they would be void. For instance, the
agreement must be in writing and the party to the agreement must have had independent legal advice before signing the agreement. 85
19.4 MAINTENANCE
A. UK
[19.4.1] For unmarried couples – which include couples who are engaged and cohabitants – there is no obligation on either partner to
support the other. But if there are children involved, an obligation to maintain arises, and this will be elaborated below when
maintenance of children is discussed. For married couples, there are four statutory provisions that govern the obligation for spousal
maintenance during marriage (for maintenance after the breakdown of the marriage, see the section above on division of matrimonial
assets).
[19.4.2] First, section 1 of the Domestic Proceedings and Magistrates’ Courts Act 1978 states that “Either party to a marriage may apply to
a magistrates’ court for an order under section 2 of this Act on the ground that the other party to the marriage (a) has failed to provide
reasonable maintenance for the applicant; or (b) has failed to provide, or to make a proper contribution towards, reasonable
maintenance for any child of the family; or (c) has behaved in such a way that the applicant cannot reasonably be expected to live with
the respondent; or (d) has deserted the applicant.” Section 2 of the same statute provides that orders for periodical payments and lump
sums can be made. 86
[19.4.3] Secondly, section 27 of the Matrimonial Causes Act 1973 provides that orders for periodic payments and lump sums can be
made, but without the monetary limit that exists under the Domestic Proceedings and Magistrates’ Courts Act 1978. 87 It has to be shown
that the respondent failed to provide reasonably for the spouse or a child of the family. The couple must be married for this statute to
apply.
[19.4.4] Thirdly, sections 22 and 22A(4) of the Matrimonial Causes Act 1973 make it possible for a party to apply for interim lump sum
maintenance while divorce, nullity, or judicial separation proceedings are pending.
[19.4.5] Finally, section 40 of the Family Law Act 1996 can require the payment of rent if an occupation order is made.
[19.4.6] For the maintenance of children, the Child Maintenance and Other Payments Act 2008 is meant to supersede any prior
legislation as well as the work of the Child Support Agency. 88 Expected to come into full effect by 2017, this statute applies to married
parents, civil partners, and unmarried partners. The intention behind the new law is that “most couples will reach agreements
themselves and they will not need to rely on the Government to help them.” 89 The government organisation, Child Maintenance Options,
will offer advice and help people reach their own agreements for maintenance. If the parties cannot agree, then they will apply to Child
Maintenance Service that will help manage a maintenance account.
[19.4.7] Apart from the Child Maintenance and Other Payments Act 2008, there is the Children Act 1989, 90 which requires married and
unmarried parents to support their children. Under section 15, various parties, but usually a parent or guardian, can apply for a
financial order. The parties who are liable to pay include biological parents and adoptive parents; the court can order payment or even a
transfer of property. The factors the court will take into account include income, financial needs of the parent and the child, disabilities
of the child, and the manner in which the child was being or was expected to be educated or trained. 91 Parents are not allowed to enter a
contract that prevents them from applying for a financial order. 92
B. Australia
[19.4.8] There are three main provisions in the Family Law Act 1975 that govern spousal maintenance. 93 First, section 74(1) gives the
court the power to make “such order as it considers proper for the provision of maintenance” with respect to the maintenance of a party
to a marriage.
[19.4.9] Secondly, section 72(1) provides that a “party to a marriage is liable to maintain the other party, to the extent that the first-
mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years; (b) by reason of age or
physical or mental incapacity for appropriate gainful employment; or (c) for any other adequate reason”.
[19.4.10] The third and most critical provision is section 75(2), which provides a broad range of factors that the court has to take into
account, such as the age and state of health of the parties, the income, property, and financial resources of the parties, whether either
party has the care or control of a child of the marriage who has not reached 18 years of age, the responsibilities of either party to support
any other person, the duration of the marriage, a reasonable standard of living, and the terms of any order made or proposed to be made
under section 79 (which relates to the alteration of property interests). 94
[19.4.11] Maintenance orders can be of an interim or periodic nature, 95 and can also be part of a property settlement order. 96 Long-
term maintenance awards are uncommon, as spouses are expected to become self-supporting where possible. 97 Under sections 82 and
83, the court has the power to order spousal maintenance orders to cease 98 and spousal maintenance orders to be modified,
respectively. 99 Applications for maintenance should be made within 12 months of the divorce becoming final. 100
[19.4.12] For the maintenance of children, section 3 of the Child Support (Assessment) Act 1989 states that the parents of a child have a
duty to maintain the child, and that such a duty: is not of lower priority than the duty of the parent to maintain any other child or
another person; has priority over all commitments of the parent other than commitments necessary to support him or herself and any
other child or person that the parent has a duty to maintain; and is not affected by the duty of any other person to maintain the child or
any entitlement of the child or another person to an income-tested pension, allowance, or benefit. 101 Further, this duty is not changed by
separation and divorce, where the child lives or the amount of time spent with a parent, or the remarriage of either parent. 102
[19.4.13] Parents can make child support arrangements in a variety of ways and involving different levels of state involvement, but the
most common approach is for parents to seek a child support assessment (via the Department of Human Services, which is responsible
for administering the country’s Child Support Scheme) and then to make transfers privately (which are commonly termed child support
agreements, and can include parenting plans). 103
[19.4.14] Under the Child Support (Assessment) Act 1989, there are various formulas that can be used to determine the rate of child
support, depending on the circumstance: using the incomes of both parents in a single child support case; 104 using the incomes of both
parents in multiple child support cases; 105 and using the income of one parent. 106
[19.4.15] There appears to be many concerns about the viability of these formulas, however, though legislative change has yet to occur.
107 At any rate, section 117 of the Child Support (Assessment) Act 1989 permits the court to depart from the formulas, provided that
grounds for departure (as set out in the provision) can be satisfied. Parents can also sidestep the Child Support Scheme by entering into
child support agreements. Such agreements, which can be set aside by the court, are governed by sections 80C, 80E, and 136 of the Child
Support (Assessment) Act 1989. 108
[19.4.16] Apart from the Child Support (Assessment) Act 1989, there is the aforementioned Family Law Act 1975. However, a court
cannot make a child maintenance order under this statute if an application under the Child Support (Assessment) Act 1989 could have
been made. 109 The objectives of child maintenance under the Family Law Act 1975 are: that children have their proper needs met from
reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and that
parents share equitably in the support of their children. 110 An application can be made by either parent, the child, a grandparent, or any
other person concerned with the care, welfare, or development of the child. 111 The matters to be taken into account when determining
the financial support necessary for the maintenance of a child include the proper needs of the child, the income, earning capacity,
property, and financial resources of the child, and any special needs of the child. 112
C. New Zealand
[19.4.17] Spousal maintenance is governed by the Family Proceedings Act 1980. 113 Essentially, there is no liability to pay maintenance
unless provided for by the statute, though parties are free to reach a voluntary agreement regarding such maintenance. 114 The clean
break principle also applies to spousal maintenance, and maintenance obligations are usually a short-term measure. 115 Unsurprisingly,
cases are necessarily determined on their particular facts. 116
[19.4.18] During the marriage, “each party is liable to maintain the other party to the extent that such maintenance is necessary to meet
the reasonable needs of the other party, where the other party cannot practicably meet the whole or any part of those needs”. 117 The
circumstances in which the court would consider for this purpose are: the ability of the parties to be or to become self-supporting; the
responsibilities of each party; the standard of living of the parties while they are living together; any physical or mental disability; any
inability of a party to obtain work; and the undertaking by a party of a reasonable period of education or training designed to increase
that party’s earning capacity. 118 The responsibility to maintain does not arise unless at least one of the said circumstances is proven. 119
[19.4.19] After the marriage, each spouse is liable to maintain the other spouse “to the extent that such maintenance is necessary to meet
the reasonable needs of the other spouse ... where the other spouse ... cannot practicably meet the whole or any part of those needs”. 120
The circumstances in which the court would consider for this purpose are: the ability of the spouses to become self-supporting; the
responsibilities of each spouse; the standard of living of the spouses while they lived together; and the undertaking by a spouse of a
reasonable period of education or training designed to increase that spouse’s earning capacity. 121 The responsibility to maintain does
not arise unless at least one of the said circumstances is proven. 122
[19.4.20] Although the Property (Relationships) Act 1976 and Family Proceedings Act 1980 are linked in the sense that the former
recognises that maintenance may be dealt with as part of the division of property, 123 “the absence of a unified approach between the
different elements of a relationship breakdown may be observed in the overlap between spousal maintenance to meet ‘reasonable needs’
and compensation for economic disparity under the [Property (Relationships) Act 1976] ... It is currently unclear how, and in what order,
claims for spousal maintenance and economic disparity should be determined”. 124
[19.4.21] For the maintenance of children, the Child Support Act 1991 is the main legislation. The level of financial support “to be
provided by parents for their children is to be determined according to their relative capacity to provide financial support and their
relative levels of provision of care”; further, “parents with a like capacity to provide financial support for their children should provide
like amounts of financial support”. 125 A child qualifies for child support if he or she is under 18, not living with another person in a
relationship, is not financially independent, or is a citizen or ordinarily resident in New Zealand. 126
[19.4.22] As it is with Australia, various statutory formulas are provided in determining the amount of child support payable. 127 Parents
can bypass the statutory regime by entering into voluntary agreements, provided that the procedural requirements are met and the
agreements are accepted by the Commissioner of Inland Revenue. 128
FOOTNOTES
1 For an overview, see Chen Siyuan, “An Overview of the Impending Changes in the Family Justice Landscape” Singapore Law Blog (August 10, 2014).
2 Family Justice Rules 2014.
3 Family Justice Courts Practice Directions 2015.
4 See generally Chen Siyuan, “Family Law”, in Teo Keang Sood and Goh Yihan (eds), 16 Singapore Academy of Law Annual Review (2015).
5 See Chen Siyuan and Eunice Chua, Civil Procedure in Singapore, 2nd edn (Wolters Kluwer Law & Business: 2016), General Introduction.
6 The report is available here: <https://www.mlaw.gov.sg/content/dam/minlaw/corp/News/Family%20Justice%20Report.pdf>. Other recommendations include

having social workers and medical professors more involved in the process, especially in custody disputes.
7 For the situation in Singapore, see <http://population.sg/population-in-brief/files/population-in-brief-2015.pdf>.
8 See generally Chen Siyuan, “Family Law”, in Teo Keang Sood and Goh Yihan (eds), 16 Singapore Academy of Law Annual Review (2015).
9 Sundaresh Menon, “Response by Chief Justice Sundaresh Menon: Opening of the Legal Year 2016” at p 9. See <http://www.straitstimes.com/singapore/singapore-
set-to-be-top-centre-for-resolving
-commercial-disputes>.
10 On the wider front, the creation of the Singapore International Mediation Centre and Singapore International Commercial Court in 2014 to complement the
Singapore International Arbitration Centre is part of a push to make Singapore a hub offering any parties involved in an international legal dispute the full
suite of legal services.
11 Sundaresh Menon, “Response by Chief Justice Sundaresh Menon: Opening of the Legal Year 2016” at pp 9–10. See
<http://www.supremecourt.gov.sg/Data/Editor/Documents/Response
%20by%20CJ%20-%20Opening%20of%20the %20Legal%20Year%202016%20on%2011%20
January%202016%20(Checked%20against %20Delivery%20110116).pdf>.
12 See also Chen Siyuan, “Family Law: Local in Law, Guided by Judicial Discretion” in Goh Yihan and Paul Tan (eds), Singapore Law: 50 Years in the Making
(Academy Publishing: 2015), p 527.
13 For the other books in this series, the term has also been taken to mean maintenance and the division of matrimonial assets.
14 In the UK, this can include spouses, civil partners, and unmarried couples.
15 Jonathan Herring, Family Law, 7th edn (Pearson: 2015), p 166.
16
See also the seminal decision of White v White [2001] 1 AC 596, which will be considered later in this chapter.
18 Ibid. See also Joanna Miles, “Marital Agreements and Private Autonomy in England and Wales” in Jens Scherpe (ed), Marital Agreements and Private Autonomy
in Comparative Perspective (Hart: 2012), p 90: “English law knows no concept of community of property between spouses. The property implications of the
common law doctrine of unity were swept away by late nineteenth-century legislation that introduced a separate property regime during marriage.
Henceforth, husband and wife were to be treated as separate individuals, each equally and independently capable of earning wealth and owning property ...
like those who are legal strangers to each other.”
19 Jonathan Herring, ibid, p 170.
20
See for instance Heseltine v Heseltine [1971] 1 All ER 952.
21 See for instance Re Whittaker (1882) 21 Ch D 657.

22 See for instance Re Cole [1904] Ch 175.
23 See also section 70A of the Civil Partnership Act 2004 and section 200 of the Equality Act 2010.
24
See for instance Pettitt v Pettitt [1970] AC 777; Gissing v Gissing [1971] 1 AC 886. Note that if there has been an improvement made to the property, this may
create an interest in the property: see section 37 of the Matrimonial Proceedings and Property Act 1970. On the issue of the right to occupy the home, see
Jonathan Herring, Family Law, 7th edn (Pearson: 2015), pp 192–194.
25 See the Land Registration Act 2002.
26 Section 52(1) of the Law of Property Act 1925 and section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.
27
See Jonathan Herring, Family Law, 7th edn (Pearson: 2015), pp 176–184; Crossco No 4 Unlimited v Jolan Ltd [2011] EWCA Civ 1619.
28
[1991] 1 AC 107.
29
[2007] UKHL 17.
30
[2011] UKSC 53.
31 See Jonathan Herring, Family Law, 7th edn (Pearson: 2015), pp 177–186.
32 Owen Jessep, “Marital Agreements and Private Autonomy in Australia” in Jens Scherpe (ed), Marital Agreements and Private Autonomy in Comparative
Perspective (Hart: 2012), p 19.
33 Ibid.
34 Ibid.
35 This is so even if a financial agreement is made during the marriage, as it would only be recognised for the purposes of the Family Law Act 1975 upon the
breakdown of the marriage.
36 Margaret Briggs, “Marital Agreements and Private Autonomy in New Zealand” in Jens Scherpe (ed), Marital Agreements and Private Autonomy in Comparative
Perspective (Hart: 2012), p 262. New Zealand recognises de facto and same-sex relationships.
37 Joanna Miles, “Marital Agreements and Private Autonomy in England and Wales” in Jens Scherpe (ed), Marital Agreements and Private Autonomy in
Comparative Perspective (Hart: 2012), p 93.
38 See Jonathan Herring, Family Law, 7th edn (Pearson: 2015), pp 227–232. See also G v G [2012] EWHC 167.
Comparative Perspective (Hart: 2012), p 93. As to the growing distinction between matrimonial and non-matrimonial assets, see Rossi v Rossi (2007) 1 FLR
790.
40 It was even held in Co v Co [2004] EWHC 287 that the court can take into account factors not set out in the relevant statutory provisions if such factors are
relevant.
41 See also Schedule 5 to the Civil Partnership Act 2004.
42
Suter v Suter and Jones [1987] 2 FLR 232.
43
E v E (Financial Provision) [1990] 2 FLR 233; B v B (Financial Provision: Welfare of Child and Conduct) [2002] 1 FLR 555. Another example is that a court
will generally not expect a parent caring for young children to seek employment: Leadbeater v Leadbeater [1985] 1 FLR 789.
44
While the resources of a third party cannot be taken into account in assessing a spouse’s assets, it may have some bearing on that spouse’s projected needs:
Atkinson v Atkinson (No 2) [1996] 1 FLR 51.
45
This is usually understood in the context of the lifestyle assumed by the parties: Robson v Robson [2010] EWCA Civ 1171; RK v RK [2012] 3 FCR 44.
46
See also A v A (Financial Provision) [1998] 2 FLR 180.
47 Unsurprisingly, shorter marriages, particularly those involving young couples, tend to result in less substantial awards, though exceptions may arise when
there are children, when the couple has lived apart for the most part, or when the couple had cohabited for a long time before marrying: Jonathan Herring,
Family Law, 7th edn (Pearson: 2015), p 240.
48 Section 25(2) of the Matrimonial Causes Act 1973. See also Schedule 5 to the Civil Partnership Act 2004.
49 Robson v Robson [2010] EWCA 1171.
50 Section 25A(1) of the Matrimonial Causes Act 1973. See also Schedule 5 to the Civil Partnership Act 2004.
51
See Miller v Miller and Another Appeal [2006] 2 AC 618; [2006] UKHL 24 at [4]: “Fairness is an elusive concept. It is an instinctive response to a given set of
facts. Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective
process of logical reasoning. Moreover, they change from one generation to the next.”
52
[2001] 1 AC 596.
53
[2006] UKHL 24. Lord Nicholls wrote at [1]: “These two appeals concern that most intractable of problems: how to achieve fairness in the division of
property following a divorce ... in seeking a fair outcome there is no place for discrimination between a husband and wife and their respective roles.
Discrimination is the antithesis of fairness. In assessing the parties’ contributions to the family there should be no bias in favour of the money-earner and
against the home-maker and the child-carer. This is a principle of universal application. It is applicable to all marriages.”
54
[2007] EWCA Civ 503.
55 See also Jonathan Herring, Family Law, 7th edn (Pearson: 2015), p 215: “Proceedings for financial orders on divorce is a controversial issue. There is a wide
range of competing policies that the law seeks to hold together. There is a desire to ensure that on divorce a fair redistribution of the property takes place so
that one party is not unduly disadvantaged by the divorce. On the other hand, there is the desire to enable to the parties to achieve truly independent lives
after the divorce.”
Comparative Perspective (Hart: 2012), p 94. The author continues at p 95: “While there is now a greater awareness of the long-term impact of giving up paid
employment to undertake caring responsibilities in the home, such sacrifices tend to be addressed by means other than including a specifically compensatory
element in that party’s share of the assets. In lower-income cases, the ongoing effect of sacrifices made during the marriage will be dealt with as an aspect of
that party’s needs; in higher-income cases, the sharing principle may produce more than the spouse could ever have earned from paid employment ... In other
cases the principle seems irrelevant, either because the spouse had no developed career prior to marriage, or because giving up work was a ‘lifestyle choice’
rather than a necessity.”
57
Ibid, p 95 (emphasis in original). See also Jones v Jones [2011] EWCA Civ 41.
58 Radmacher v Granatino [2010] UKSC 42 at [75].
59 Ibid at [81]. On the requirement or non-requirement of full disclosure, see V v V [2011] EWHC 3230; BN v MA (Maintenance Pending Suit: Prenuptial Agreement)
[2013] EWHC 4250.
60
Harris v Manahan [1997] 2 FCR 607.
62 Ibid.
63
Jones v Jones [2000] 2 FCR 201; Hamilton v Hamilton [2013] EWCA Civ 13.
64
Omelian v Omelian [1996] 2 FLR 306.
65
North v North [2007] 2 FCR 601. See also section 31(7) of the Matrimonial Causes Act 1973.
66 Section 81 of the Family Law Act 1975. For unmarried partners, section 90ST applies.
67 Belinda Fehlberg, Rae Kaspiew, Jenni Millbank, Fiona Kelly, and Juliet Behrens, Australian Family Law: The Contemporary Context, 2nd edn (Oxford University
Press: 2015), p 277.
68 For unmarried partners, section 90SM applies. See also Stanford v Stanford (2012) 247 CLR 108; Chapman v Chapman [2014] FamCAFC 91.
69 See section 75 of the Family Law Act 1975.
70 As to the definition of “property”, see section 4 of the Family Law Act 1975; Kennon v Spry; Spry v Kennon (2008) 238 CLR 366; Pope v Pope [2012] FamCA 204.
71 Section 80 of the Family Law Act 1975, which also applies to maintenance.
Perspective (Hart: 2012), p 20. Parties are required to give full and frank disclosure of their financial circumstances in property settlement proceedings. There
is a general duty of disclosure under rule 13.01 of the Family Law Rules 2004 and a specific duty of disclosure as regards earnings, income, vested and
contingent interests in property, trusts, and so forth under rule 13.04 of the same.
73 See for instance Norbis v Norbis (1986) 161 CLR 513; In the Marriage of: Renata Ferraro Appellant/Wife and Ruggero Ferraro Respondent/Husband [1992] FamCA
64; Bolger & Headon [2014] FamCAFC 27.
Perspective (Hart: 2012), pp 32–38.
75 The statute applies to unmarried and same-sex couples as well.
77 Ibid, p 260.
78 See also sections 8, 9A, and 10 of the Property (Relationships) Act 1976.
79 Section 11(1) of the Property (Relationships) Act 1976.
80 Sections 13 and 14 of the Property (Relationships) Act 1976.
82 Ibid.
83 See section 21 of the Property (Relationships) Act 1976.
84 See sections 21A and 21B of the Property (Relationships) Act 1976.
85 Section 21F of the Property (Relationships) Act 1976.
86 See also Jonathan Herring, Family Law, 7th edn (Pearson: 2015), p 174: “In calculating the level of spousal maintenance, the first consideration is the welfare of
any minors ... Sums that are awarded are usually small ... if someone is on income support, it would only be appropriate to order a nominal sum. Applications
under this statute [are cheaper] and is therefore the most popular.”
87 See section 2 of the Domestic Proceedings and Magistrates’ Courts Act 1978.
88 See also section 8 of the Child Support Act 1991.
90 For stepchildren, see section 25(4) of the Matrimonial Causes Act 1973.
91 Schedule 1 to the Children Act 1989. If the parent is not the legal parent, additional factors, such as whether he or she had assumed responsibility for
maintenance, come into play. See also H v P (Illegitimate Child: Capital Provision) [1993] Fam Law 515; A v A (A Minor: Financial Provision) [1994] 1 FLR
657; C v F (Disabled Child: Maintenance Orders) [1999] 1 FCR 39; Re P (A Child) (Financial Provision) [2003] 2 FCR 481; Re N (A child) (Payments for
Benefit of Child) [2009] 1 FCR 606.
92
Morgan v Hill [2006] 3 FCR 620.
93 For unmarried partners, see section 90SF of the Family Law Act 1975.
94 See also In the Marriage of Kelly (No 2) (1981) 7 Fam LR 762; In the Marriage of: John Frank Bevan Appellant/Husband and Merrien Denise Bevan Respondent/Wife
(1993) 19 Fam LR 35; In the Matter of Norma Jill Mitchell Appellant/Husband and Anthony Lewis Mitchell Respondent/Husband [1995] FamCA 32; Drysdale v
Drysdale [2011] FamCAFC 85; Freestone v Freestone [2013] FamCAFC 190.
95 See Belinda Fehlberg, Rae Kaspiew, Jenni Millbank, Fiona Kelly, and Juliet Behrens, Australian Family Law: The Contemporary Context, 2nd edn (Oxford
University Press: 2015), pp 356–360.
96 Section 77A of the Family Law Act 1975.
98 This occurs upon the death of the party being maintained and may occur upon the remarriage of the party being maintained.
99 To modify the order, the court must be satisfied of any of the following grounds: that the circumstances of a person whose benefit the order was made have so
changed or the circumstances of the person liable to make payments have so changed to justify it doing so; the cost of living has changed to such an extent to
justify it doing so; in the case of a consent order, that the amount ordered was not proper or adequate; or that material facts were withheld from the court.
100 For unmarried partners, applications must be made within two years of the breakdown of the relationship. If the applications (for either spouses or partners)
are not made in time, special permission needs to be sought from the court.
101 Sections 5 and 24 of the Child Support (Assessment) Act 1989 define parents and children that would be caught by section 3.
102 But where there is misattributed paternity, section 143 of the Child Support (Assessment) Act 1989 may apply.
Press: 2015), p 244.
104 Sections 35 and 36 of the Child Support (Assessment) Act 1989.
Press: 2015), pp 245–250. These concerns include children’s costs being under-estimated, the creation of disincentives for parents to work, and under-reported
income.
108 See also Keane v Keane [2013] FamCA 332.
109 Section 66E of the Family Law Act 1975.
110 Section 66B of the Family Law Act 1975.
111 Section 66F of the Family Law Act 1975. As to who qualifies for a child, see section 66L of the Family Law Act 1975.
112 Section 66J of the Family Law Act 1975.
113 This includes unmarried partners and same-sex couples, though there is no obligation to maintain the partner for unmarried partners during the course of
their relationship.
114 See sections 2, 58(2), and 68(2) of the Child Support Act 1991.
116 See for instance Z v Z (No 2) [1997] 2 NZLR 258; C v G [2010] NZFLR 497.
117 Section 63(1) of the Family Proceedings Act 1980.

120 Section 64(1) of the Family Proceedings Act 1980. This is subject to section 64A, which requires spouses to assume responsibility for own needs within a
reasonable period of time.
123 Section 32(1) of the Property (Relationships) Act 1976.
Perspective (Hart: 2012), p 265. See also M v B (economic disparity) [2006] 3 NZLR 660.
125 Section 4 of the Child Support Act 1991.
126 Section 5 of the Child Support Act 1991. As to who constitutes a parent for the purposes of child maintenance, see section 7.
127 Part 2 of the Child Support Act 1991. In particular, section 30 considers the liable parent’s income percentage, the liable parent’s care cost percentage, and the
child expenditure amount for a qualifying child.
128 Part 3 of the Child Support Act 1991.

2016 - 10 - 17 PAGE 593

Chapter 20: Overview of Syariah Law in Family Matters
Chapter 20
Overview of Syariah Law in Family Matters

Halijah Mohamad

20.2 Marriage – Registry of Muslim Marriages (ROMM) 596
A. Marriages 596
B. Consent of Wali (Male Guardian) 598
C. Marriage Between Muslims and Non-Muslims 598
D. Polygamy 598
E. Revocation of Divorce 599
20.3 Divorce – Syariah Court 600
A. Jurisdiction of the Syariah Court 600
B. Are the Parties Muslims? 601
C. Were Parties Married Under Provisions of Muslim Law? 601
D. Renunciation of Islam by One Party 603
E. Muslim and Civil Marriages Between Same Parties 603
F. Foreign Marriages 603
G. Grounds For Divorce 604
H. Annulment 606
20.4 Ancillary Issues 606
20.5 Children and Parent-Child Relationship 606
A. Welfare and Best Interest of the Child 607
B. Children’s Wishes 608
C. Children Below Age of Discernment 608
D. Joint Custody 608
E. Illegitimate Children 609
F. Variation 609
20.6 Mutaah 609
20.7 Division of Assets 612
A. Assets Acquired During Marriage 612
B. Assets Acquired Before Marriage 613
C. Gifts/Inheritance 614
D. How Do Courts Divide Matrimonial Assets – Just and Equitable Proportions 615
E. Non-Economic and Other Factors in Section 52(8)(a)–(m) of the AMLA 616
F. Renovations 622
G. Rentals Collected By One Party 622
H. Proceeds From Previous Home Used Towards Purchase of Current Matrimonial Home 623
I. Indirect Contribution 624
J. Husband’s Indirect Contribution 624
K. Marriages With No Children 627

20.8 Foreign Divorces 628
20.9 Variation 629
20.10 Enforcement of Syariah Court Orders 632
20.11 Concurrent Jurisdiction 633
20.12 Appeals 635
20.13 Decision of the Syariah Court and the Appeal Board is Final 636
20.14 General “Non-Muslim” Laws 637
A. Maintenance of Wife and Children 637
B. Family Violence 637
C. Adoption of Children 637
D. Legitimacy 638
20.15 Succession to Property and Distribution of Muslim Estates 638
A. Specific Assets 641
B. Immovable Property (Joint Tenancy) 641
C. Fatwa 2008 642
D. Use of Nuzriah 642
E. CPF Moneys 643
F. Fatwa 2010 644
G. Insurance Policies 644
H. Fatwa March 2012 645
I. Joint Bank Accounts – Fatwa 2016 646
J. Estate Planning – Options For Muslims 646
20.16 Singapore Syariah Appeals Report (SSAR) 647
20.1 INTRODUCTION
[20.1.1] In Singapore, generally, all areas of laws apply to Muslims and non-Muslims equally. However, there are selected areas of
personal laws (family and inheritance matters) which apply exclusively to Muslims. In personal laws involving family and inheritance
matters, there is thus a separate legal regime with different legislations (the Women’s Charter (Cap 353) (the “Charter”) being the
primary family statute supplemented by various other statutes for non-Muslims, and the Administration of Muslim Law Act (Cap 3)
(“AMLA”) for Muslims) and different judicial systems for Muslims (the Syariah Court) and for non-Muslims (the Family Justice Courts
(“FJC”)).
[20.1.2] Historically, the enactment of the Mohammedan Marriage Ordinance 1880 (“MMO”) was the official recognition by the British
colonial authorities of the status of Muslim personal laws. This ordinance formally provided for the registration of Muslim marriages
and divorces and appointments of kadis (Islamic judges) to facilitate the administration of Muslim marriages and divorces. MMO has
since been repealed and replaced by the Mohammedan Ordinance 1923 which later became the Muslim Ordinance 1957. The Muslim
Ordinance 1957 established the Syariah Court. The Muslim Ordinance has also been repealed and replaced by the AMLA, which came
into effect in 1968. The AMLA was enacted for the purposes of protecting and safeguarding the Islamic religion in line with article 152(2)
of the Constitution of Singapore which provides as follows:
The government shall exercise its functions in such manner as to recognize the special position of the Malays ... and accordingly it
shall be the responsibility of the government to protect, safeguard, support, foster and promote their political, educational,
religious, economic, social and cultural interests and the Malay language.
[20.1.3] In consonance with article 152(2) of our Constitution, the AMLA sets out the provisions for regulating Muslim religious affairs
and the framework for how Islamic law in Singapore is applied. It provides for the establishment of three institutions: (i) Majlis Ugama
Islam Singapura (“MUIS”) or Muslim Religious Council, and its constitution of (ii) the Registry of Muslim Marriages (“ROMM”) and (iii) the
Syariah Court and its appellate body, the Appeal Board, outlining their respective structures, authorities and powers.
[20.1.4] MUIS is the organisation that administers and regulates Muslim religious affairs in Singapore and it has considerable executive
powers. The ROMM registers, regulates and administers Muslim marriages. The Syariah Court deals with Muslim divorces and ancillary
issues following a divorce and issuance of Certificate of Inheritance for estates of deceased Muslims. Parties dissatisfied with the
decisions of the Registrar or kadis of the ROMM and Presidents (judges) of the Syariah Court may appeal to the Appeal Board (the apex
appellate body in Islamic law here in Singapore).
20.2 MARRIAGE – REGISTRY OF MUSLIM MARRIAGES (ROMM)
[20.2.1] The ROMM is the institution for registration of marriages and remarriages, application for polygamous marriages and
registration of revocation of divorces (“rujuk” or reconciliation).
A. Marriages
[20.2.2] Marriages where both parties are Muslims must be registered at the ROMM. 1 Where both parties are Muslims, the couple is
therefore precluded from solemnising or registering the marriage at the Registry of Marriages (“ROM”), where non-Muslim or civil
marriages are solemnised or registered.
[20.2.3] Whether a party or both parties are Muslims can be disputed and this must be determined first before the ROMM can proceed
to solemnise the marriage. A mere proclamation that one is a Muslim may not suffice and had been seen to be unacceptable to the
ROMM. In Zainuddin bin Mohamed & Sharifah Alphia bt Syed Ali, 2 the parties (bride and groom) belonged to the Ahmadiyyah sect, which
had in the Muslim world been declared to be non-Muslims as they do not adhere to the fundamental belief that Prophet Muhammad
was the last prophet, although they do believe in the same tenets of a monolithic religion and articles of faith in Islam. Their application
to solemnise their marriage at the ROMM was rejected on the basis that they were non-Muslims. Their appeal to the Appeal Board
against the ROMM’s decision was dismissed as the Appeal Board accepted their non-Muslim status, relying on MUIS’s fatwa which
declared that the Ahmadiyyahs are a deviationist group and considered to be non-Muslims. As they were considered to be non-Muslims,
the AMLA cannot apply to them and consequently, provisions in the ROMM and Syariah Court cannot be available to them. They were
advised to solemnise their marriage at the ROM.
[20.2.4] Similarly, in Re Amir bin Amat, 3 the parties (bride and groom) appealed against the decision of the kadi (Registrar of the
ROMM) rejecting their application to register their marriage at the ROMM, on the basis that they were adherents of the Ahmadiyyah
faith, a group which has been considered by MUIS’s fatwa to be deviationists and non-Muslims. The appeal was dismissed. The Appeal
Board agreed that being non-Muslims, they have no right to apply for the solemnisation of their marriage at the ROMM nor to appeal to
the Appeal Board.
[20.2.5] Before solemnising a marriage between two Muslims, the kadi (Registrar) must “make full inquiry in order to satisfy himself
that there is no lawful obstacle according to the Muslim law or [the AMLA] to the marriage and shall not perform the ceremony until he
is so satisfied”. 4 In Jamie Johan Hashim v Siti Rohani bt Jalani, 5 the kadi rejected an application for a solemnisation (made on May 22,
2013) on the grounds that it had come to his attention that the parties had undergone an informal “marriage ceremony” on January 15,
2012 (a ceremony that did not conform with legal requirements and therefore appeared prima facie void as a matter of law). The parties
appealed against the kadi’s decision. The Appeal Board expressed concerns that the facts which had been presented to the ROMM were
yet to be independently considered, assessed and investigated and that the truth of the events provided by the parties had yet to be
ascertained. It appeared that no substantive inquiries had been made of the factual account provided by the parties. The Appeal Board
set aside the kadi’s decision and remitted the matter back to the ROMM to make the necessary inquiries on whether any lawful
impediment to marriage between the parties did indeed exist.
[20.2.6] Marriages solemnised under Muslim law must be registered within seven days with the ROMM 6 but an extension may be
granted for up to three months. 7 In Mazmarina bt Yusoff, 8 the Appeal Board allowed the registration of marriage out of time after
ascertaining that the marriage was valid.
[20.2.7] However, registration or non-registration does not affect the validity of a Muslim marriage. 9 What must be ascertained is
whether the mandatory conditions or essential requirements of a marriage in accordance with Muslim law have been met.
B. Consent of Wali (Male Guardian)
[20.2.8] Under strict Muslim law, a woman cannot marry unless with consent of her wali 10 (a male next of kin, usually her father,
brother, grandfather or uncles). Where the woman has no wali or where the wali unreasonably withholds his consent, the marriage
may be solemnised with the approval of the kadi (Registrar of the ROMM). 11 In Re Abu Samah bin Md Dros, 12 the bride (aged 23 and a
half years) and the groom (aged 26 and a half years) applied for the kadi to be the bride’s wali as her father had refused to consent to the
marriage. After conducting an inquiry, the kadi granted the application and solemnised the marriage by “wali hakim”. 13 The father
appealed against the kadi’s decision. The Appeal Board dismissed his appeal as the grounds for his refusal, i.e. that the groom’s family
did not know Islamic law and he had placed the bride under a spell and had confined her in their home, were found to be
unsubstantiated and unreasonable. The Appeal Board found no satisfactory or lawful ground for the father to refuse his consent and
opined that it would be against the interests of the community to refuse to solemnise the marriage.
C. Marriage Between Muslims and Non-Muslims
[20.2.9] Marriages between a Muslim and a non-Muslim are permissible since 1976 14 but it is a civil marital union under the purview
of the Charter and the provisions of the AMLA are not applicable to it.
D. Polygamy
[20.2.10] Polygamy is permitted for Muslim men in Singapore. 15 An application to contract a polygamous marriage must be made at
the ROMM. The Registrar (kadi) will conduct an inquiry for purposes of permitting or disallowing the said application. The inquiry
focuses primarily on the financial ability of the applicant to afford to maintain a second wife and family, his ability to treat his present
wife and potential second wife fairly and equitably and whether there is any “good” or “benefit” arising from the potential second
marriage.
[20.2.11] The present wife will be interviewed at this inquiry but her consent is not a pre-condition to granting approval for the second
marriage. There are cases where the present wife disagreed to the second marriage but the application was approved. This was seen in
Saheeda Banu v Osman Mohamed Sabeer 16 where the existing wife objected to her husband’s application for polygamy but the Appeal
Board granted approval for the husband to register his second marriage as he was a man of considerable income and had given a
written undertaking to provide his existing wife and children at least 30% of his income and to house each wife in separate homes.
Conversely, there are cases where the existing wife agreed to the polygamous marital union but the application for polygamy was
disallowed. In ReAdam bin Arifin, 17 the kadi rejected the husband’s application for polygamy despite his existing wife’s consent to the
second marriage. On appeal, the Appeal Board granted him permission to register the second marriage as there was evidence that the
existing wife and potential second wife had a cordial relationship with each other and the potential second wife had been involved with
the first family, including helping out by giving tuition to the children. The husband earned between $3,000 and $4,000 a month. The
Appeal Board was also satisfied that he would be able to treat both wives fairly and equitably.
[20.2.12] Whether there is any good reason or benefit that will arise in the intended second marriage depends on the facts of each case.
In Re Ja’afar bin Kassim, 18 the Appeal Board dismissed the husband’s appeal against the ROMM’s decision in disallowing his application
for a second wife as the husband had failed to convince the kadi that there was a good reason to allow his application. The Appeal Board
noted that mere financial ability and consent of his existing wife were insufficient grounds to allow the application.
E. Revocation of Divorce
[20.2.13] Under Muslim law, a divorce can be revoked within the period of eddah, the period within which a divorced woman or widow
is forbidden to remarry (generally, 100 days from the date of divorce). If the revocation of divorce or rujuk is consented by both parties,
it must be registered at the ROMM within seven days. 19 If there is no consent, the ROMM must refer the matter to the Syariah Court for
the court to adjudicate whether the rujuk is valid or lawful under Muslim law. If the Syariah Court determines that the rujuk is indeed
lawful, the parties are required to register the said rujuk at the ROMM within three months. 20 Despite the strict statutory timelines, in
Abdul Jabar bin Johar v Saripah bt Latiff, 21 the Appeal Board granted an extension of time to register the rujuk out of time as the non-
registration within the mandatory time lines was not due to the fault of the parties but administrative lapses and issues in the Syariah
Court.
[20.2.14] An appeal from the decision of the ROMM in all the above matters shall lie to the Appeal Board.
20.3 DIVORCE – SYARIAH COURT
A. Jurisdiction of the Syariah Court

[20.3.1] The Syariah Court being a judicial institution, functions like the FJC and is empowered to hear disputes relating to marriage,
divorces, betrothal, nullity of marriage or judicial separation and ancillary issues on division of matrimonial assets upon divorce,
payment of emas kahwin, 22 marriage expenses (hantaran belanja), mutaah (or consolatory gift payable to the wife upon divorce) 23 and
presumption of death of a spouse. 24
[20.3.2] The Syariah Court has exclusive jurisdiction in cases in which (a) all parties are Muslims or (b) where parties were married
under the provisions of Muslim law. 25
[20.3.3] As the jurisdiction of the Syariah Court is statutorily conferred, it cannot exercise jurisdiction unless expressly provided in the
AMLA. In Madiah bt Atan v Samsuddin bin Surin, 26 the parties had registered their consensual divorce before the kadi but no orders
were recorded with regards to their Housing & Development Board (“HDB”) flat as the kadi lacked the powers and jurisdiction to make
orders on ancillary issues. The husband had agreed to transfer his share of the flat to his wife but before the transfer could be effected,
he had absconded. The wife commenced an action in the High Court seeking a declaration as regards the parties’ interest in the flat. The
High Court declined jurisdiction. On appeal to the Court of Appeal, the Court of Appeal set aside the High Court decision and held that
the civil court has jurisdiction. This was because the Syariah Court had no occasion to exercise its jurisdiction as the divorce had already
been concluded and validly registered by the kadi. The Syariah Court’s jurisdiction had thus not been invoked as the divorce registration
had been effected by the kadi. The Syariah Court can only hear ancillary issues consequent upon a divorce. Absent a divorce application,
the Syariah Court has neither jurisdiction nor power to hear ancillary issues. As the Syariah Court has no jurisdiction over the property
dispute, civil court is empowered to hear and adjudicate the issue.
B. Are the Parties Muslims?

[20.3.4] Before hearing a divorce or nullity application, the Syariah Court must first determine whether the parties are indeed Muslims
or otherwise. The jurisdiction of the Syariah Court does not extend over parties simply because they proclaim themselves to be Muslims.
Neither can the Syariah Court decline jurisdiction merely on the basis that the parties or one of them declare that he or she is a non-
Muslim. There must be a determination as to whether they are indeed Muslims or not. In Mohamad Roslan bin Ahmad @ Royston Wu
Chiren v Yong Tien Sin (Yang Tianxin) @ Amelia Yong, 27 the husband, a Muslim and the wife, a non-Muslim first contracted a civil
marriage. Later, the wife converted to Islam and they underwent a Muslim marriage. A few years after the marriage, the wife
renounced Islam and reverted to Christianity. During the divorce proceeding in the Syariah Court, the wife argued that she was a non-
Muslim as her conversion to Islam was invalid on ground that she had been issued with only a temporary conversion certificate (and
not a permanent conversion certificate). The Syariah Court rejected her claim that she was not a Muslim when she underwent the
Muslim marriage and held that since both parties were Muslims when the marriage was registered with the ROMM and it was a valid
Muslim marriage, the Syariah Court had jurisdiction over the divorce proceedings.
C. Were Parties Married Under Provisions of Muslim Law?
[20.3.5] Whether the marriage is one “where the parties were married under the provisions of Muslim law” 28 must first be determined
by the Syariah Court before it becomes seized of jurisdiction over the proceeding. The Syariah Court will look into both the substance
and form of the marriage and the circumstances surrounding the marriage. A marriage certificate alone will not be sufficient. In
Othman bin Abdul Rahman v Norsiah bt Abdul Latip, 29 the Appeal Board held that the marriage certificate of a couple who had
solemnised a marriage in Golok, Thailand, could not be accepted as proof that all the conditions necessary for a valid Muslim marriage
had been met by the marriage ceremony which they had undergone there and held that the Syariah Court was correct in ruling that it
had no jurisdiction to hear the divorce application.
[20.3.6] In Yeo Pei Chern (Yang Peizhen Freda) v Isa Seow Zheng Xin @ Mohammed Isa Abdullah, 30 the parties (the husband was a
Muslim and the wife a non-Muslim) had first undergone a civil marriage in 1997 in the US. This was followed by the parties undergoing
a Muslim marriage in London in 2000. During the divorce proceedings, the wife claimed that there was no valid Muslim marriage as her
conversion to Islam before the Muslim marriage was invalid. The Appeal Board held that the evidence showed that the wife’s
conversion to Islam may not be genuine and valid and there was inconclusive evidence that the London Muslim marriage had been
made “under the provisions of Muslim law” 31 and accordingly held that the Syariah Court had no jurisdiction to hear the matter.
[20.3.7] In Mohamad Roslan bin Ahmad @ Royston Wu Chiren v Yong Tien Sin (Yang Tianxin) @ Amelia Yong, 32 the parties (wife was
non-Muslim and the husband was a Muslim) first solemnised a civil marriage under the Charter. This was followed by the wife’s
conversion to Islam and the parties solemnising a Muslim marriage at the ROMM. A few years later, the wife renounced Islam and
reverted to her former faith, Christianity. During the divorce, wife applied to have the then Family Courts hear the matter on grounds
that the civil court has jurisdiction as she was a non-Muslim and there was a civil marriage certificate. The Family Courts dismissed her
application, stating clearly that the Syariah Court has jurisdiction over the divorce proceedings. The husband then commenced a divorce
application in the Syariah Court. In the Syariah Court, the wife argued that the Syariah Court had no jurisdiction on the ground that the
Muslim marriage was invalid and a mere ceremonial formality as her conversion to Islam was a mere formality as she had been issued
with only a temporary conversion certificate and not a permanent conversion certificate. The Syariah Court held that her conversion to
Islam was valid and the Muslim marriage was accordingly valid, and as such the Syariah Court has jurisdiction over the divorce
proceedings.
D. Renunciation of Islam by One Party

[20.3.8] In cases where one party renounces Islam during the marriage and therefore becomes a non-Muslim, the Syariah Court will
nevertheless continue to be seized of jurisdiction in the divorce or nullity proceeding. In Salbiah bt Abdul Salam v Abdul Shariff s/o
Moideen, 33 the Syariah Court annulled the marriage on the basis of the wife’s declaration that she had reverted to her Ahmadiyyah faith
and had thus become a non-Muslim. The wife appealed against the Syariah Court’s order, disputing the Syariah Court’s jurisdiction but
the Appeal Board dismissed her appeal, stating clearly that the Syariah Court has jurisdiction to annul the marriage.
[20.3.9] In similar vein, in Hamida d/o Mahamood v Rauf @ Suppiah Rengaiyan, 34 the Syariah Court annulled the marriage as the wife
had apostatised by reverting back to her Ahmaddiyah faith which she had formally renounced before solemnising the marriage. The
wife appealed against the decision but the Appeal Board dismissed her appeal.
E. Muslim and Civil Marriages Between Same Parties

[20.3.10] In cases where parties had first contracted a non-Muslim marriage under the Charter as one party was originally a non-
Muslim and they subsequently solemnised a Muslim marriage at the ROMM by virtue of the conversion to Islam by the non-Muslim
spouse, the Syariah Court has jurisdiction to hear the divorce or nullity application. 35
F. Foreign Marriages
[20.3.11] The Syariah Court has jurisdiction where parties were married under the provisions of Muslim law. 36 If the marriage is
solemnised in Singapore, there is hardly any room to dispute that the Syariah Court has jurisdiction to hear the divorce or nullity
application. The provision therefore envisages cases where the marriage was solemnised outside Singapore. Where a marriage had
been solemnised and/or registered in a foreign jurisdiction, in the past, parties were able to obtain a “re-registration” certificate from the
ROMM. The ROMM is no longer prepared to issue such a certificate.
[20.3.12] The case of Re Ja’afar bin Kassim 37 makes clear that the ROMM cannot register a foreign marriage. In this case, the husband
who has an existing wife of more than 28 years, had solemnised another marriage with his then business partner (an Indonesian
citizen) in Indonesia and taken her as his second wife. He then applied to register his Indonesian marriage in Singapore. His application
was rejected as there is no provision in the AMLA to empower the ROMM to register and solemnise a marriage that had already taken
place in another jurisdiction.
[20.3.13] If parties wish to initiate divorce proceedings in the Syariah Court for marriages registered/solemnised out of jurisdiction, they
are required to provide an opinion that the said marriage is valid according to Muslim law. The Syariah Court will proceed to hear the
application only if it is satisfied that the said marriage is indeed valid according to Muslim law.
G. Grounds For Divorce

[20.3.14] There are different grounds for divorce for a Muslim husband and a Muslim wife. A Muslim man may divorce his wife
through pronouncement of talak. A Muslim woman may apply for divorce on grounds of breach of taklik (marriage promises or
conditions), 38 fasakh 39 or kholok. 40
[20.3.15] Taklik are special conditions or promises made by the husband after the marriage ceremony. In Singapore, they are in a
standard printed form in the marriage certificate. The taklik stated in the marriage certificate are as follows: (i) failure on the part of the
husband to maintain his wife for at least four months, (ii) causing of injury to her, (iii) causing damage to her property, (iv) deserting his
wife for a period of four months or more, and (v) causing his wife to lose her self-respect. If the wife complains to the Syariah Court that
her husband has breached any of these conditions and her complaints are substantiated, she will be entitled to a divorce. Taklik may or
may not be found in marriages solemnised and/or registered outside Singapore and if there is no taklik, the wife may not proceed with a
divorce on grounds of breach of taklik.
[20.3.16] Fasakh is a judicial decree where the court dissolves the marriage based on various grounds, namely, the husband’s failure to
provide maintenance for a period of three months, the husband’s imprisonment for a period of three years upwards, the husband’s
failure to perform his marital obligations, the husband’s impotency, the husband’s insanity or that he is suffering from some chronic
disease the treatment of which would be lengthy or impossible and which is such as to make the continuance of the marriage
relationship injurious to the wife, the husband’s cruelty towards his wife including the husband’s inequitable treatment of his wife if he
has more wives than one. 41
[20.3.17] Kholok is divorce by redemption. If the husband disagrees to grant the wife a divorce and there is little likelihood of the wife
obtaining a divorce by way of breach of taklik or fasakh, the parties can agree to a divorce by redemption where the wife makes
payment of an amount (assessed by the Syariah Court) to the husband in exchange for the husband granting her a divorce.
[20.3.18] In the event the Syariah Court finds insufficient evidence to prove the grounds of divorce based on breach of taklik or fasakh
or there is no agreement to divorce by way of kholok, the wife’s divorce application will not be dismissed. Instead, the matter will be
referred to hakam (arbitration). 42 Parties are then directed to attend the hakam session together with their respective hakam. The
hakam would advise the husband to pronounce the talak or make a recommendation for the husband to delegate his authority to
pronounce the talak to his wife (talak tafwid) or the court may direct the husband’s hakam to pronounce the talak on the husband’s
behalf. The case of Azman bin Abd Rani v Rahmah bt Ramli 43 provides an instructive clarification of the legal status and effect of a
divorce pronounced by the husband’s hakam. In this case, the Appeal Board held that such a divorce is considered as an irreconcilable
divorce where the parties are prohibited from marrying each other (talak bain or irrevocable divorce).
[20.3.19] The powers and authority of the hakam are strictly confined to the issue of divorce (marital status). They are prohibited from
making any recommendations with regards to ancillary matters. In Musa bin Md Taib v Noraidah bt Rabani, 44 the hakam had
recommended a divorce by kholok via payment of $10 from the wife to the husband. Pursuant to the said recommendation, the Syariah
Court decreed such a divorce. The husband appealed, arguing that the Syariah Court was wrong in relying on the hakams’
recommendation. The Appeal Board disagreed with him and ruled that the hakams had acted properly and had exercised their powers
stipulated in section 47(4) of the AMLA correctly and that the husband had given the hakam full authority to effect a divorce. The
redemption money is part and parcel of a kholok divorce and contrary to the husband’s argument, the redemption money is not an
ancillary issue and accordingly the hakams had acted within their scope of power in determining the amount. His appeal was dismissed.
H. Annulment
[20.3.20] Apostasy or renunciation of Islam by one party (or both parties to the marriage) is a ground to annul a marriage. 45
20.4 ANCILLARY ISSUES
[20.4.1] Consequent to a divorce, the Syariah Court will make orders on ancillary matters, namely, nafkah eddah (wife’s maintenance
for three months post-divorce), mutaah (consolatory gift akin to compensation to the wife, usually based on the length of the marriage),
unpaid hantaran (akin to dowry), issues with regards to children of the marriage and division of matrimonial assets.
20.5 CHILDREN AND PARENT-CHILD RELATIONSHIP
[20.5.1] After a divorce had been decreed by the Syariah Court, it can make orders on minor children (children under 21 years of age)
of the marriage. The powers of the Syariah Court to hear and adjudicate on issues pertaining to the children must be consequential
upon a divorce as the powers to do so are ancillary in nature. 46 In other words, absent a divorce application, the Syariah Court cannot
hear matters with regards to the children of the marriage. As such, if there is no divorce proceeding in the Syariah Court, disputes over
custody, care and control and access must be heard and resolved in the civil court under the provisions of the Guardianship of Infants
Act (Cap 122).
[20.5.2] If the civil proceeding is not concluded by the time a divorce summons had been issued in the Syariah Court, it must be stayed,
unless both parties agree that the civil proceeding with regards to the children’s issues shall remain and continue in the civil court. 47 In
such case, both parties must first undergo counselling in the Syariah Court to obtain the necessary certificate to continue the civil
proceeding. However, if one party wishes to continue the civil proceeding in the face of objection by the other party, an application for
leave (to continue the civil proceeding) must be made in the Syariah Court. 48 If leave is granted by the Syariah Court for the civil
proceeding to continue, a continuation certificate will be issued and the parties can proceed with the civil proceeding until its
conclusion. In such an event, the Syariah Court will not make any order on the children when the divorce is concluded.
[20.5.3] In Zunaidah bt Sahul Hamid v Cheong Kong Chuan, 49 the parties were divorced in the Syariah Court and ancillary orders on
children and division of assets were made by the Syariah Court. There were also various post-divorce applications made by both parties
on the ancillary issues. While one of the post-divorce applications was still underway, the husband then made an application for leave
for the ancillary issues on the children and division of assets to be reopened and reheard in the civil court. The Syariah Court granted
leave for the husband to commence proceedings in civil court. On appeal by the wife, the said order was set aside on the ground that the
husband had opted for the Syariah Court to hear and adjudicate the ancillary issues and he is thus stopped from asking another forum
(the civil court) to rehear and reopen or vary the ancillary order. Leave was thus not granted for the ancillary issues on the children
(and division of matrimonial assets) to be brought in the civil court.
A. Welfare and Best Interest of the Child

[20.5.4] In deciding issues pertaining to the children, the guiding principle is the welfare and best interest of the child. This has been
established in numerous cases. In Jasmin Ismail Frost @ Melor bt Ismail v Adam Alexander Frost @ Adam Frost, 50 the Appeal Board
reiterated that “we need to emphasize that in deciding as to who is to have care and control, the paramount consideration is the best
interest of the child. Islamic law requires that the parents must place the best interest of the child before their own” and “that while we
are mindful of the father’s concerns and wishes, or for that matter those of the mother, this must be balanced against the law in Islam
that requires the needs and welfare of the child to be placed before their own.” Further on, the Appeal Board stated that “in our view,
the best interest of the child would not only cover the physical, material and emotional aspects but also the spiritual aspect” of the
child’s upbringing.
B. Children’s Wishes
[20.5.5] Children who are above seven years are deemed as mummayiz (capable of reason or having attained age of discernment) and
would usually be interviewed by the court to ascertain their wishes (as to which parent they wish to stay with upon the parents’
divorce). The views of the children are not the sole determining factor. In deciding what is in their best interest, the court may disregard
the children’s views if in the opinion of the court, it would be in their best interest to remain in the care of the other parent. In
Rosemawati bt Rafdi v Md Hisham bin Ibrahim @ Edward James Khoo, 51 the Appeal Board granted care and control of the two daughters
to their mother despite the children’s wishes to remain with their father, as the Appeal Board was of the view that it would be in their
interest to be with their mother who would be a better caregiver to them in respect of their daily living needs and to inject them with a
regular dose of discipline tempered with leniency now and then.
[20.5.6] Similarly, in Daud Salim @ Liem Sin Thang v Hayati bt Atnaw, 52 although the children, aged 18 and 12, had chosen to stay with
their father, the Appeal Board disallowed the father’s appeal to have care and control of the daughter and son as the Appeal Board
deemed that his lifestyle was such that “he could hardly be said to be a suitable role model for his teenage daughter and 12 year old son
as they would be influenced by the apostate father and also his live in girlfriend.”
C. Children Below Age of Discernment

[20.5.7] Generally speaking, care and control of children below the age of discernment are usually granted to the mother.
D. Joint Custody
[20.5.8] Orders on joint custody of the children are now the norm in the Syariah Court. In Shaik Md Danial bin Abd Manan v Nor
Adyanati Adanan, 53 the Appeal Board laid to rest any concerns that the concept of joint custody may not be accepted in Islam and
declared that the concept of joint custody is in consonance with Islamic law.
[20.5.9] In Zaini bin Ibrahim v Rafidah bt Abd Rahman, 54 the Syariah Court granted sole custody of the two sons to the wife. On appeal
by the husband, the Appeal Board varied the sole custody order to a joint custody order, following the Court of Appeal decision in CX v
CY 55 and reiterated that the welfare or interest of the child is the paramount consideration in custody matters.
[20.5.10] In Rosmala bt Md Salleh v Oma-R-Uddin Ali-Koppe, 56 the Syariah Court made a joint custody order for a three year old child.
The wife appealed against the said order, seeking an order for sole custody. But she was unable to prove a material change in
circumstances to justify the change. The Appeal Board dismissed her application.
E. Illegitimate Children
[20.5.11] According to strict Islamic law, a child born within six months of solemnisation of the parents’ marriage is considered an
illegitimate child, with the biological father not having paternity rights. However, case law as seen in the decision of Raja Jumira bt R
Azwar v Syed Iskandar bin Hashim 57 has indicated that the biological father may nonetheless be granted joint custody as long as he can
show to the court that it would be in the child’s best interest to have a joint custody order made.
F. Variation
[20.5.12] Any variation of orders made pertaining to the children must be made in the court which issued the original order. In Hafiani
bt Abdul Karim v Mazlan bin Redzwan, 58 the parties had obtained a divorce in the Syariah Court and they had recorded a consent order
that the husband shall have custody of their child. Two years later, the mother applied for custody of her child in the High Court. The
High Court dismissed her application, making clear that since the custody order was made by the Syariah Court, any variation of the
order must be decided under the same legal regime of the AMLA and that the Syariah Court was not functus officio the moment it made
the custody order and it had power within its jurisdiction to make variation orders. The civil court therefore cannot vary orders which
had been made by the Syariah Court.
20.6 MUTAAH
[20.6.1] Mutaah is a consolatory gift which a husband has to pay to his wife upon a divorce. The amount of mutaah payable is
dependent on the husband’s financial means and ability to pay, and the status of the wife.
[20.6.2] It is the financial means and ability of the husband at the time of the divorce (not after the divorce) that will determine the
amount of mutaah to be awarded to the wife. In Asmah Bee bt Md Din v Selamat bin Sarkawi, 59 the wife argued that the husband’s
financial condition after the divorce (i.e. his increase in salary, acquisition of a new car and maintenance of a new wife) justifies an
increase in mutaah. The Appeal Board disagreed and disallowed her appeal for an increase.
[20.6.3] The following cases may provide a guide as to the quantum of mutaah to be ordered by the Syariah Court:
Rosman bin Taib v Arfah bt Sanip 60 Husband earned about $2,500 per $4 per day of marriage(9 years)
month
Md Yazid bin Yatin v Fazilah bt Jaafar 61 Husband earned $3,500 per month $4 per day of marriage(9 years)
Abdul Mutalib bin Abd Majeed v Surinah Husband earned about $2,500 per $4 per day of marriage(16 years)
bt Sapar 62 month
[20.6.4] Where the husbands are in better financial position, the following cases may be illustrative as to the range of mutaah ordered:
Yusri bin Md Mohsen v Nooraine bt Husband earned about $20,000 per $20 per day of marriage(11 years)
Minhaj 63 month
Mark Adrian Walter v Faridah bt Awall Husband earned about $25,000 per $20 per day of marriage(18 years)
64 month
Ahmad Kamal Gilani v Namazie Farah Husband was a self-employed $32 per day(5years 7 months)
65 businessman
Hatz Walter @ Muhammad v Suhana bt Husband earned about $10,000 per $10 per day of marriage
Ahmad 66 month
Lubna bt Sheikh Othman v Khalid bin Husband claimed he earned $8,000 per $8 per day of marriage(21 years)
Omar Abdat 67 month but the court found that he
probably earned more
Anuar bin Osman v Rohana Jiman 68 Husband used to earn $8,000 to $12,000 $9 per day of marriage(about 14 years)
per month but since then, his income
had reduced as he had lost sight in one
eye
[20.6.5] In Halimahton bt Salleh v Aeon Oral Smith, 69 the husband appealed against mutaah ordered at $65,700 for a 12-year marriage
(at $15 per day of marriage). He was working with the United Nations (based in Darfur, Sudan) earning about $15,000 per month. His
appeal for a decrease in the amount of mutaah ordered by the Syariah Court was dismissed.
[20.6.6] Mutaah is payable from the date of marriage until the date of divorce. In Sanimah bt Sudin v Md Kamal bin Md Haniba, 70 the
husband argued that mutaah was payable until the date of the breakdown of the marriage, earlier than the date of his pronouncement
of the talak in the Syariah Court. The Syariah Court disagreed and held that it was payable until the date of the talak. He appealed. The
Appeal Board held that mutaah is extended to the date the talak is pronounced, i.e. that whatever the husband’s position about the date
of breakdown or termination of the marriage might be, the court looks at the date of pronouncement of talak for purposes for
quantifying the amount of mutaah.
[20.6.7] It is not uncommon for the husband to argue that his wife’s misconduct (nusyus or disobedience) justifies non-payment of
mutaah. Such arguments had been rejected. Even if there is evidence of nusyus, the court would not deny the wife the right to obtain
mutaah on divorce. This is held by the Appeal Board in Siti Zaharah bt Nabi v Nanwi bin Salleh. 71 The Appeal Board referred to the cases
of Piah bt Said v Che Lah bin Awang 72 and Rokiah bt Hj Abd Jalil v Md Idris bin Shamsuddin 73 in opining that the wife being nusyus is not
a ground to deny her the right to obtain mutaah if she is divorced.
[20.6.8] This is reiterated by the Appeal Board in several other cases including Thameemul Ansari s/o Jainullabudeen v Farzana Begum
d/o OK Md Haniffa 74 and Dali bin Md Noor v Rubaidah bt Tabri, 75 where the Appeal Board approved of the case Mehrunnisha bt Peer
Mohamed v Abdul Rahman bin Mastan 76 in which the trial judge ruled that it is settled law that mutaah is payable notwithstanding that
the wife is the cause of the divorce. There are other authorities on this. See Maspahlela bt Mashor v Rasede bin Salleh, 77 Md Ghouse s/o
Ismail Sahed v Zarinah Bivi Ghousee, 78 and Roslan bin Baseri v Zauiah bt Jantan. 79
20.7 DIVISION OF ASSETS
[20.7.1] The 1999 AMLA amendments incorporated provisions of the Charter with regards to division of matrimonial assets. Section
52(7) and (8)(a)–(m) of the AMLA mirror factors stipulated in section 112(1)–(2) and section 114 of the Charter, which the court must
have regard to in the division of matrimonial assets.
[20.7.2] Matrimonial assets are statutorily defined. The 1999 AMLA amendments incorporated section 112(10) of the Charter. Section
52(14) of the AMLA defines property to be divided upon divorce as:
(a) any asset acquired before the marriage by one party or both parties to the marriage which has been substantially improved
during the marriage by the other party or by both parties to the marriage; and
inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage.
A. Assets Acquired During Marriage

[20.7.3] Assets acquired during marriage are clearly not limited to only the matrimonial home but include other assets, e.g. commercial
properties used for investments, cash in bank, savings, share portfolio, Central Provident Fund (“CPF”) moneys, club memberships,
business assets, vehicles, pension, gratuity, employment benefits such as stock options, insurance policies, jewellery other than what
may be of insignificant value or perhaps what the court regards as possessing only sentimental value.
[20.7.4] It is now trite law that CPF moneys acquired in the course of the marriage are assets to be divided upon divorce. In this regard,
see Khadijah bt Omar v Md Yusoff bin Seeni Rawther 80 and Siti Zaharah bt Nabi v Nanwi bin Salleh. 81
[20.7.5] Similarly, it is also established law that gratuity or pension which has been received or will be received by one party or both
parties, will be regarded as assets divisible upon divorce. See Zainal Abidin bin Hasim v Joriah bt Salleh 82 and Saniah bt Amit v Syed
Hussin bin Syed Ali. 83 In Awiah bt Othman v Md Salleh bin Md Tawil, 84 the marriage lasted 24 years. The wife has care and control of
their two children. The wife had made about 28% financial contribution to the purchase of the HDB matrimonial flat. The husband
would have a total CPF moneys amounting to $214,300 (i.e. refund when flat is sold, balances in ordinary, special and investment
accounts). The wife would have total CPF moneys of $103,700 (i.e. refund when flat is sold, balances in ordinary, special and investment
accounts). The Syariah Court awarded the wife 50% share of net sale proceeds when the flat is sold and $30,000 of her husband’s CPF
moneys. The wife appealed, seeking a share of husband’s gratuity (a sum of $325,000). Her appeal for a share in the husband’s gratuity
was allowed. The Appeal Board granted her 35%, i.e. $113,759.96. The orders on her 50% share of net sale proceeds of the flat and
$30,000 share of her husband’s CPF moneys were not set aside.
B. Assets Acquired Before Marriage

[20.7.6] Assets acquired before marriage will not be divided unless it has been substantially improved during marriage by the other
party or both parties to the marriage. The improvements must be substantial. Deminimis (insignificant) improvement will not be taken
into account.
[20.7.7] In Rosnah bt Sanjar v Zakaria bin Mahmud (Salmah bt Md Salleh, Intervener), 85 the matrimonial flat was originally owned by
the husband’s mother (the intervener). It was acquired several years before the couple got married. Two months after his marriage, the
husband was added as co-owner. The wife’s name was not added as co-owner but in the course of the marriage, she had paid for
renovations done to the flat. Upon the divorce, the wife was granted half of the husband’s 50% share in the flat, as she had improved the
flat through the renovations which she had paid for.
[20.7.8] In Anuar bin Osman v Rohana bt Jiman, 86 the wife had bought a Malaysian property just before the marriage using some
moneys loaned from her mother and serviced the monthly mortgage using the rentals of the said property. During the divorce, the
husband claimed a share, arguing that he had made contributions by providing a guarantee for the mortgage (although he produced no
evidence to support his case). His appeal for a share of the Malaysian property was dismissed.
[20.7.9] In Hamdan bin Tahir v Manisah bt Patham, 87 the Syariah Court held that a HDB flat acquired and fully paid by the husband
before the marriage was one of the matrimonial assets which was subject to division upon divorce. The husband appealed against this
decision, contending that the said flat, having been acquired before the marriage, could not be considered as a matrimonial asset, and
should not be the subject-matter of division upon divorce. The Appeal Board disagreed with him and ruled that the HDB flat can be
subjected to distribution irrespective of whether it was acquired before or during the marriage. The HDB flat was held to be a
matrimonial asset on the ground that it had been used by the parties and their three children as their matrimonial home (not on the
basis of substantial improvement on the part of the wife as she had made no improvements to the flat in the course of the marriage).
C. Gifts/Inheritance
[20.7.10] Generally, gifts or inheritance acquired by one party in the marriage cannot be divided upon divorce unless it has been
substantially improved during the marriage by the other party or by both parties to the marriage. If the asset is a gift but had been used
as the matrimonial home, it can be divided upon divorce. 88
D. How Do Courts Divide Matrimonial Assets – Just and Equitable Proportions

[20.7.11] Section 52(7) and (8) of the AMLA mandates the court to consider all the circumstances of each case in determining just and
equitable proportions of division of the pool of assets. Some factors which the court should take into account are listed in section 52(8)
(a)–(m) of the AMLA, which states as follows:
(a) the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining
the property;
(b) any debt owing or obligation incurred or undertaken by either party for the 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 dependent of either party;
(e) any agreement between the parties with respect to the ownership and division of the property 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;
(h) the income, earning capacity, property and other financial resources which each of the parties has or is likely to have in the
foreseeable future;
(i) the financial needs, obligations and responsibilities which each of the parties has or is likely to have in the foreseeable future;
(j) the standard of living enjoyed by the family before the breakdown of the marriage;
(k) the age of each party and the duration of the marriage;
(l) any physical or mental disability of either of the parties; and
(m) the value to either or the parties of any benefit (such as a pension) which, by reason of the dissolution or annulment of the
marriage, that party will lose the chance of acquiring.
[20.7.12] The list enumerated in section 52(8) of the AMLA is not exhaustive. Like the civil courts, the Syariah Court recognises the
importance of both economic and non-economic activities in the marriage. The court will give due weight to both financial and non-
financial contribution, direct or indirect, by the parties in the acquisition of the assets and to the marriage. The courts have repeatedly
reminded that direct contribution is merely one of the factors to be taken into account. Indirect contribution, while difficult to monetise,
is equally important. The needs of the children will also be considered.
[20.7.13] In Mohd Ajis bin Samon v Jamaliah bt Drahman, 89 the Appeal Board sent a timely reminder that section 52(7) of the AMLA
requires the court to divide matrimonial assets upon divorce to achieve the objective of a just and equitable distribution and in doing so,
section 52(8) of the AMLA mandates that the court must have regard to all the circumstances of the case, and in particular the matters
enumerated in (a)–(m). The matters there comprise both financial and non-financial contributions and the court must consider the
contributions made not just by one party but by both. The court can adopt a broad brush approach of the issues and make a
determination on the basis of what it considers as just and equitable division.
[20.7.14] In Abdul Bashir s/o Aidek v Asiah bt Md Hassan, 90 the Appeal Board emphasised that there is not to be any starting
presumption of an equal division of matrimonial assets and reiterated that the proper proportion to be given to each party must be fact-
specific to each case, and recognition must be given to both economic and non-economic efforts by each party to the marriage. In that
case, the Appeal Board also issued a reminder to parties to particularise their claims and to provide the court with the necessary factual
information to enable the court to arrive at an appropriate outcome.
E. Non-Economic and Other Factors in Section 52(8)(a)–(m) of the AMLA

[20.7.15] Cases have shown that the factors listed in section 52(8)(a)–(m) of the AMLA including non-monetary contributions, needs of
minor children of the marriage, length of the marriage and the parties’ respective financial situation and resources will be taken into
account in the division of matrimonial assets.
[20.7.16] In Rosman bin Taib v Arfah bt Sanip, 91 the marriage lasted just under 10 years (March 2000 to November 2009). The wife was
granted custody, care and control of their two children. The wife had contributed about 24% and the husband 76% towards the
purchase price of their matrimonial HDB flat. The trial judge awarded the wife 60% share of the net sale proceeds. The husband
appealed, seeking a lower share and the wife cross-appealed, seeking a higher share. The Appeal Board dismissed both the appeal and
the cross-appeal.
[20.7.17] In Mohamad Ausman s/o Mohamad Ashraf v Maria d/o Berang Kuty, 92 the marriage lasted eight years (January 1992 to January
2000). All three children were in the wife’s care. The wife had contributed 58.29% towards the purchase of their HDB matrimonial flat.
The husband had contributed 41.71% to the purchase of their HDB matrimonial flat. The court awarded the wife 75% share of the sale
proceeds and 25% share to the husband. Both parties were ordered to make the necessary refund into his or her CPF accounts from
their respective 75%–25% share. The husband appealed against the order on division, seeking a lower share. The wife cross-appealed,
seeking a higher share. Both the appeal and the cross-appeal were dismissed by the Appeal Board.
[20.7.18] In Romi Nazri bin Rohman v Hartini bt Hassan, 93 the marriage lasted about nine years with three children aged eight, six and
four years, all in the wife’s care. The wife had made no “direct” payment towards the purchase of the matrimonial flat. The Appeal Board
took into account her share of the government housing grant ($20,000) which had been allocated entirely to the husband, as she was
under 21 years of age when the said flat was bought. Taking into account this sum, it translated into her contribution being 13.8% (the
husband’s contribution was 86.2%). The matrimonial home was rented out and the husband had collected the rental proceeds for about
two years – average rental for similar-sized flats was about $2,350 per month – totaling about $56,400. The Appeal Board took the view
that the wife should be given a half-share of the said rental income ($28,200). Taking the wife’s share of the rental income, the wife’s
monetary contribution was thus increased to 33.2%. The Appeal Board granted the wife 50% share of the sale proceeds of their
matrimonial flat. The wife was also granted $50,000 of the husband’s CPF moneys (about 20% of the difference between their respective
CPF moneys).
μμ_llbo
[20.7.19] In Vicenta Viray Gotengco @ Siti Aishah bt Abdullah v Noor Md bin Hazan, 94 the wife of a 13-year marriage who had care and
control of three minor children had made about 13% financial contribution in the purchase of the matrimonial flat. Selling the flat
would not yield any profit. Instead, a loss would be incurred. The Appeal Board took into account that after refund into their respective
CPF accounts when the flat is sold, the husband would have a total of about $128,823.51 CPF moneys. The wife would have about
$19,249.49 CPF moneys. The Appeal Board took into account the liability she had incurred on behalf of her husband (she had paid for
the car as he had failed to do so although he was using the car) as well her indirect contributions. She was awarded 65% of the sale
proceeds (before refund is made into their respective CPF accounts). To ensure that the wife would eventually receive what she should
be entitled to according to the order, the husband was ordered to transfer the sum of $71,000 from his CPF ordinary account into the
wife’s CPF ordinary account after the sale of the flat (and he has received refund of about $128,823 into his CPF account).
[20.7.20] In Hazlina bt Osman v Md Fawzi Suleiman, 95 the marriage lasted 12 years (from 1995 to 2007). The trial judge ordered the
matrimonial HDB flat to be transferred to the wife upon her making a full refund (of about $70,000) into the husband’s CPF account for
the CPF moneys he had used towards the purchase of the flat. In addition, the wife was entitled to $10,000 of the husband’s CPF ordinary
account moneys. The wife appealed against the said decision, asking for partial refund of only 50% of the husband’s CPF moneys used to
purchase the said flat. The Appeal Board assessed the financial strengths and positions of both parties. With refund of 50% into his CPF
account, the husband would have $46,069.73. The wife would have $151,567.14 (her CPF moneys and the net equity of the HDB flat of
about $108,880). As the wife had made about 58% financial contribution to the purchase of the said flat, the Appeal Board awarded her
75% share of the aggregate value of the matrimonial assets. Her appeal for the flat to be transferred to her with only 50% refund into
the husband’s CPF account was allowed.
[20.7.21] In Mohd Hassan bin Ali v Rosmah bt Khalid, 96 the marriage lasted about 12 years. Their two children were in the wife’s care.
The younger child had disability (cerebral palsy). The wife had made 30% financial contribution towards the purchase of the
matrimonial flat. The trial judge awarded her 60% share of the net proceeds of sale. On appeal, her share was increased to 90% share of
the net proceeds of sale. The Appeal Board took into account the refund of $117,000, which the husband would receive into his CPF
account when the flat is sold. The wife would receive a refund of only $58,000 into her CPF account. The net proceeds of sale of the flat
after paying the outstanding mortgage and refund into the respective CPF accounts of the husband and wife, would amount to about
$74,000. By giving the wife 90% share of the net proceeds (about $66,600), the Appeal Board was in fact giving parties an equal division
of the sales proceeds, i.e. wife would receive $66,600 from net proceeds of sale and a refund of $58,000 into her CPF account. The
husband would receive $7,400 from net proceeds of sale and a refund of $117,000 into his CPF account. The husband would receive a
total of $124,400. The wife would receive $124,000, i.e. equal ratio of the aggregate value of the matrimonial assets.
[20.7.22] In Mohd Irwan bin Abdullah Teo v Salijah bt Abdul Latef, 97 the parties were married for about 12 years. The wife was granted
custody of three young children aged nine, six and four years. The wife had made about 18% financial contribution to the purchase of
the matrimonial HDB flat. The Appeal Board granted the wife 60% of the net proceeds of sale of the matrimonial home.
[20.7.23] In Zaiton bt Hashim v Salleh bin Abd Ghafar, 98 the marriage lasted 12 years. Custody of the two children was granted to the
wife. The wife had made about 42% financial contribution to the purchase of the matrimonial flat. On appeal, the Appeal Board
increased the wife’s share of the net proceeds of sale when the flat is sold to 70%.
[20.7.24] In Latifah bt Abu Samah v Muhammad Khair bin Bujang, 99 the parties were married for about 12 years. The wife was granted
custody of two children aged 11 and eight years. The wife had made about 30% contribution to the purchase of the flat. The matrimonial
flat had to be rented out for about four years to finance the husband’s full-time tertiary education in Australia. The Syariah Court
awarded the wife 60% of the net proceeds of sale. On appeal, the Syariah Court order was set aside. The Appeal Board increased the
wife’s share of the net sale proceeds to 75%. The Appeal Board also took into account the fact that (i) the wife was running the household
and single-handedly providing for the family for the three-year period when the husband was studying in Australia; and (ii) the wife
had contributed a sum of $73,000 (out of their jointly acquired $120,000) for the husband’s tertiary education.
[20.7.25] In Abdul Mutalib bin Abd Majeed v Surinah bt Sapar, 100 the marriage lasted 16 years with one child (with special needs). Care
and control of child was granted to the wife. The wife had contributed 37% towards the purchase of their HDB flat. The wife was granted
75% share of net sale proceeds of the flat and about 22.5% of the husband’s CPF moneys. The husband had total CPF moneys amounting
to $266,286 while the wife had total CPF moneys amounting to $114,121.
[20.7.26] In Azizah bt Amin v Md Nizam bin Ismail, 101 the marriage lasted 17 and a half years with three children. Care and control of
all children was granted to the wife. The wife had made 37% contribution towards the purchase of their matrimonial home. The wife
was awarded 70% share of net sale proceeds of the matrimonial home and $150,000 of the husband’s CPF moneys. He earned about
$25,000 per month.
[20.7.27] In Zubaidah bt Hassim v Abu Bakar bin Kassim, 102 the marriage lasted about 15 years with four children. The wife’s parents
and the parties had bought a flat together, which they then sold, with the sale proceeds divided equally between four of them. The
husband and the wife had received $140,000 in cash, out of which they had used $96,000 as part payment for their present home. The
husband paid $42,609 and the wife paid $15,165 (27%) for the present home using their respective CPF moneys. Upon divorce, the
Syariah Court granted the wife 40% share of the sale proceeds. The wife’s appeal for a bigger share was allowed. The Appeal Board
increased her share to 62.5% taking into account the cash of $96,000 from their previous flat, which had been used to pay for the present
flat. Half of the said $96,000 was attributed to the wife and factored in as her contribution to the purchase of the present flat. The Appeal
Board also took into account her indirect (monetary and non-monetary) contributions in the marriage.
[20.7.28] In Md Noor bin Ali v Sarmah bt Ali, 103 the marriage lasted 18 years with five children. Care and control of all children was
granted to the wife. The wife had made 45% contribution towards the purchase of their HDB flat. The wife was awarded 80% share of
net sale proceeds of the flat.
[20.7.29] In Shak Ban bin Md Ludin v Rosnah bt Parman, 104 the marriage lasted 20 years with four children. The wife made no
contribution towards the HDB flat. The wife was awarded 50% share of net sale proceeds of the flat. The husband was allowed to retain
his business and his CPF moneys.
[20.7.30] In Abdul Latheef bin Omar v Maria bt Chabar, 105 the marriage lasted about 20 years. By the time the appeal was heard, all
three children were in the care of the husband. The wife had contributed about 35% towards the matrimonial home. A sale will result in
no profit. The trial judge ordered that the flat be sold and the net sale proceeds (if any) be divided 65% to the wife and 35% to the
husband. The husband was also given the option to have the flat transferred to him. Further, a sum of $65,000 was ordered to be
transferred from the husband’s CPF account into the wife’s CPF account. On appeal by the husband, the order with regards to transfer of
$65,000 into the wife’s CPF account was not set aside (save for a minor adjustment). The Appeal Board took note that if the flat was to be
transferred to the husband, all that the wife would get after 20 years marriage would be her CPF refund which is far less than her
husband. Hence, the lower court’s order was not set aside.
[20.7.31] In Lubna bt Sheikh Othman v Khalid bin Omar Abdat, 106 the marriage lasted 21 years with two children. Care of one child was
granted to the wife and the other to the husband. The wife had contributed 10% towards the purchase of their HDB flat, using her CPF
moneys. The wife was awarded 60% share of net sale proceeds of their HDB flat (taking into account that cash of $36,000 paid for the
present flat was from net sale proceeds of a previous HDB flat and therefore the wife had made contribution in cash from her share of
the said $36,000, as well as the 10% which she had paid using her CPF moneys).
[20.7.32] In Saniah bt Amit v Syed Hussin bin Syed Ali, 107 the marriage lasted 30 years with three children (all were adults). The wife
had made insignificant contribution towards the purchase of the matrimonial home. The wife was awarded $312,729, about 35% share
of aggregate value of all assets including sale proceeds of flat, the husband’s CPF moneys, and the husband’s gratuity of $449,754.
[20.7.33] In Rubaidah bt Tabri v Dali bin Md Noor, 108 the marriage lasted 36 years with four children – three adults and one minor. Care
and control of the youngest child was granted to the wife. The wife had made 64% contribution towards the purchase of the HDB flat.
The wife was awarded 70% share of net sale proceeds of the HDB flat. The Appeal Board took into account the husband’s circumstances
namely that he was in poor health, almost blind, unemployed and receiving monthly government pension of $1,075.
[20.7.34] In Sanimah bt Sudin v Md Kamal bin Md Haniba, 109 the marriage lasted 26 years with three children – two adults and one
minor. Care and control of the youngest child was granted to the wife. The wife had made no contribution towards purchase of the HDB
flat. The wife was awarded a one-third share of the HDB flat.
[20.7.35] In Nafsiah bt Md Hanapiah v Azmat bin Naif, 110 the marriage lasted 23 years with two children. Care and control of both
children was granted to the wife. The wife had made 15% contribution towards the purchase of the HDB flat. The wife was awarded 50%
share of the HDB flat, the share being computed on the basis before refund is made into each party’s CPF account when the HDB flat is
sold. Both parties were ordered to make necessary refunds into their respective CPF accounts from their respective 50% share. To give
effect to actual moneys the wife is to receive, the husband was ordered to transfer $87,000 from his CPF account into the wife’s CPF
account after the HDB flat is sold.
F. Renovations
[20.7.36] This must be taken into account in the division of assets as mandated by section 52(8)(a) of the AMLA. Renovation costs which
a party can prove to have paid for, could constitute the party’s monetary contribution towards the matrimonial property as noted in Jam
Hari bin Jaafar v Fatimah bt Saayan 111 and Suriayani bt Mardona v Amran Raswa. 112
G. Rentals Collected By One Party

[20.7.37] This will be taken into account in division of assets as mandated by section 52(8)(f) of the AMLA. In Md Ajis bin Samon v
Jamaliah bt Drahman, 113 the parties had two properties, one at Tampines and the other at Changi. The Tampines condominium was
rented from 2005 to February 2013 and total rentals were estimated at $197,500. The Changi flat was rented from June 2009. Total rental
until February 2013 was $57,200. The wife had taken all the rentals and not shared it with the husband. The Appeal Board took into
account the husband’s share of rentals (and the husband’s indirect contributions) and varied the Syariah Court order granting him 27%
share of net sale proceeds of the Tampines condominium and 2% share of net sale proceeds of the Changi flat, to 40% share for both
properties.
[20.7.38] In Romi Nazri bin Rohman v Hartini bt Hassan, 114 the Appeal Board took into account the fact that the husband had collected
rental from the parties’ flat (for about two years and estimated at $56,400) and factored the wife’s half-share of it (about $28,200) as her
direct financial contribution in the purchase of the matrimonial flat. The wife made no CPF contribution to the purchase of the
matrimonial flat. The housing grant of $40,000 was credited into the husband’s CPF account but the Appeal Board ruled that $20,000
must be attributable to the wife. Taking these factors into account, the wife’s share in the matrimonial flat was increased.
[20.7.39] In Norazlin bt Md Noordin v Md Hamdan bin Abd Razak, 115 the husband claimed that the wife had not paid him his share of
rental proceeds of their matrimonial flat amounting to $16,500 (total rentals received was $33,000). The Appeal Board found that the
wife was “very economical in explaining how much rental proceeds were retained by her.” The Appeal Board varied the order to
surrender the flat to HDB, to an order to sell the flat. The Appeal Board stated that it would have awarded the wife 60% share as she had
care and control of the child of the marriage but as she had failed to account for the husband’s share of rental proceeds, the Appeal
Board ordered equal division of net sale proceeds.
H. Proceeds From Previous Home Used Towards Purchase of Current Matrimonial Home
[20.7.40] This will be taken into account in division of assets as mandated by section 52(8)(a) of the AMLA and attributed to both parties.
In Zubaidah bt Hassim v Abu Bakar bin Kassim, 116 it was a 15-year marriage with four children, all in the wife’s care. The wife had
contributed 27% towards the purchase of their present flat using her CPF moneys. $96,000 of the purchase price of the present flat was
from the net sale proceeds of the previous HDB flat. The Syariah Court awarded the wife 40% share of the present flat. The Appeal Board
took into account the fact that the cash payment for the couple’s present HDB flat came from the net sale proceeds of their previous HDB
flat. The Appeal Board attributed half of the cash payment to the wife on the basis that the wife had a share in their previous HDB flat
and the net sale proceeds should have been shared equally between the husband and the wife. The Appeal Board thus increased the
wife’s share of net sale proceeds to 62.5%.
I. Indirect Contribution
[20.7.41] It is trite law that the traditional role of being a homemaker and caregiver of the children is considered as the party’s indirect
contribution in the acquisition of matrimonial assets and will be taken into account in the division upon a divorce. However, indirect
contributions can extend beyond the “customary” or “usual” role of being a wife and doing household chores and being the primary
caregiver of the children. In Latifah bt Abu Samah v Md Khair bin Bujang, 117 the wife was working, running the household and taking
care of the children as well as providing for the family single-handedly for three years when the husband was pursuing a full-time
tertiary education. She also helped with the husband’s expenses in acquiring his tertiary education. These factors were taken into
account in the division of their matrimonial HDB flat. The Appeal Board increased the wife’s share of net sale proceeds of the HDB flat to
75% (from 60% ordered by the Syariah Court).
J. Husband’s Indirect Contribution

[20.7.42] The court had issued reminders that indirect contributions are not to be exclusively attributed to the wife. The husband’s
indirect contribution must also be given due recognition. In Md Ajis bin Samon v Jamaliah bt Drahman, 118 the Appeal Board set aside the
lower court’s order and reiterated that “what is required is equal consideration to the contributions of both parties and not that of one
party alone for a just and equal distribution to be made. It is simply not one or the other spouse’s indirect contribution that must be
given their full value but that both spouses’ indirect contribution must be taken fully into account.” The Appeal Board set aside the
Syariah Court order granting the wife 73% of net sale proceeds of their Tampines property and 98% of net sale proceeds of their Changi
property, and ordered that the division for both the Tampines and Changi properties be in the ratio of 40% to the husband and 60% to
the wife. The Appeal Board took into account the cash contributions which the husband had made towards purchase of the Tampines
condominium, the husband’s contribution in the upkeep of the flats (payment of property tax, maintenance charges, home insurance,
telephone bills, and Town Council charges). The Appeal Board also took into account rentals from both properties which had been
collected and kept by the wife, her financial position which is better than the husband’s, lack of evidence that the wife had paid the
husband’s debts, the husband’s indirect contributions as he too had worked hard during the marriage and provided for the family as
well as the fact that he had helped look after the children and the home, and the fact that the younger minor child was already 19 years
old (and would be close to being an adult).
[20.7.43] In Abdul Latheef bin Omar v Maria bt Chabar, 119 the marriage lasted 20 years and 10 months. There were three children aged
17, 13 and 11 years. At the divorce proceeding, one child was ordered to be with the father and two children to be with their mother.
The wife had contributed 35% towards the purchase of the matrimonial home. The husband had contributed 65%. The wife had far less
CPF moneys than the husband. The Syariah Court awarded the wife 35% share of the net sale proceeds (a sale will not likely to result in
any significant profit). By the time the appeal was heard, all three children were in the husband’s care. The Appeal Board took into
account the indirect contributions of both parties. After the sale of the matrimonial flat and refund into the parties’ respective CPF
accounts, the husband would have about $255,000 in CPF moneys. The wife would have $108,000. Taking into account that nafkah eddah
and mutaah payable to the wife would have amounted to about $21,500, the wife was awarded only $43,000 of her husband’s CPF
moneys. The Appeal Board commented and noted that in this case, it had considered the indirect contributions of both parties towards
the purchase of the flat and stated that “Section 52(8) AMLA requires the court to do so and not just the indirect contributions of one
party. In a case of single working spouses, there would be often be no difficulty in establishing and assessing the non-working spouse’s
indirect contributions but in a case where both spouses are working, the task is a lot harder. However, in a case where both spouses are
working, we consider it would be erroneous to simply conclude that a working wife is the only one who has made indirect contributions
or the one who has made the greater indirect contributions while the husband is accorded no indirect contribution whatsoever. We
believe the facts of each case must be examined to fairly and justly determine what the direct contributions are.”
[20.7.44] In Md Fadly bin Saaid v Raba’ah bt Roszini, 120 the Appeal Board noted that the trial judge had erred in his approach in
considering only the wife’s non-financial contributions (to the matrimonial home). It noted that with regard to non-financial
contribution, under section 52(8) of the AMLA, it is clear that the contributions of both parties, whether it be financial, non-financial,
direct or indirect, must be taken into account and not just the contributions of one party. In this case, the trial judge had failed to take
into account the non-financial contributions of the husband and there can be no dispute that like the wife, the husband too, had made
non-financial contributions as a father and to borrow the words of the judge, was a “custodial parent of the 2 children”.
[20.7.45] In Fadly’s case, the marriage lasted about nine years. The elder child, aged nine years, was in the care of the husband while the
younger child, aged five years, was in the care of the wife. The wife had contributed about 54% towards the purchase of the HDB flat.
The husband had contributed about 46%. The trial judge awarded the wife 80% share of the net sale proceeds of the HDB flat. On appeal
by the husband, the order was set aside. The Appeal Board reduced the wife’s share to 55%.
[20.7.46] In Faizal bin Yahya v Zairinah bt Md Zain, 121 the marriage lasted about 16 years. All three children were in the care of the
husband. One of the children required special medical treatment and schooling. The wife had contributed 56% towards the purchase of
the matrimonial home. The husband had contributed about 46%. The trial judge awarded the wife 80% share of the net sale proceeds.
On appeal by the husband, the Appeal Board stated that the contribution of both parties must be taken into account and not just the
wife’s (as both the wife and husband worked throughout the marriage). The Appeal Board set aside the order and reduced the wife’s
share to 60%.
[20.7.47] In Farida bt Hj Md Thamby v Hj Md bin Ibrahim, 122 the wife had made about 56% contribution towards the purchase of the
matrimonial flat. The children were in the wife’s care. The Syariah Court awarded the wife 60% share of the net sale proceeds. Her
appeal for an increase to 80% share was dismissed as the Appeal Board looked at the parties’ contributions in totality and noted that a
global view would have to be taken into account to reach an end result which must be a decision that is just and equitable and in
accordance with Islamic principles. The Appeal Board ruled that in taking the global view of the facts in that case, the apportionment
arrived at by the trial judge was not manifestly unfair or inequitable, such that it should be varied.
K. Marriages With No Children
[20.7.48] In Anuar bin Osman v Rohana bt Jiman, 123 the marriage lasted 16 years with no children. The wife had made no financial
contribution towards the purchase of the HDB matrimonial flat. On appeal by the husband, the wife was granted 35% share of the net
sale proceeds of the HDB flat and 25% share of the aggregate value of other assets including the parties’ CPF moneys, their insurance
policies, the husband’s investments and bank accounts (total value is $887,571, of which $60,891 is the wife’s assets).
[20.7.49] In Shajahan bin Alaudin v Rezina Khan d/o Abd Rahim, 124 the marriage lasted about six years with no children. The parties had
two properties: (i) the Ballota Park flat, and (ii) the Toh Avenue condominium. The wife had made about 43% financial contribution to
the Ballota Park flat and about 11% contribution towards the Toh Avenue condominium. On appeal by the husband, the Appeal Board
granted the wife about 54% share of the Ballota Park flat and 21% share of the Toh Avenue condominium.
[20.7.50] In Azliana bt Abdullah v Md Tanvir s/o Harrat Khan & Abdullah bin Hj Roslan, 125 the marriage lasted from November 2004 to
March 2011 (less than seven years) with no children. The husband is a Pakistani who came to Singapore and was conferred a permanent
resident status in Singapore by virtue of his marriage to the Singaporean wife and was working here. The wife had paid about 76% of
the purchase of their HDB flat. The Syariah Court ordered that the said flat be transferred to her and her father (intervener) with full
refund to be made into the husband’s CPF account. The wife had waived mutaah and nafkah eddah as well as her claim for unpaid
hantaran of $10,000 and these were taken into account in making the order that the HDB flat be transferred to the wife and her father.
[20.7.51] In Yusheda bt Yusoff v Md Nazly bin Md Taha, 126 the marriage lasted from January 2001 to December 2010 (about nine years)
with no children. The wife had contributed 46% to the HDB flat. The Syariah Court awarded her 50% share of the net sale proceeds and
a further sum of $15,000 of her husband’s CPF moneys.
[20.7.52] In Hosairi bin Kalil v Zaliha bt Othman, 127 the marriage lasted 10 years, from 1999 to 2009 with no children. The wife had paid
$232,654 for the HDB flat (using her CPF moneys). The husband had paid $198,814 (using his CPF moneys). As the husband was above 55
years of age at the time of divorce and when the flat was sold, only $62,349 was refunded into his CPF retirement account. The trial
judge awarded the wife 60% share of the net sale proceeds (after payment of outstanding mortgage, refund into the wife’s CPF ordinary
account and refund into the husband’s CPF retirement account). The net sale proceeds was $33,407. The husband appealed, arguing that
he had lost about $136,465 as only a sum of $62,349 was refunded into his CPF retirement account (instead of the full sum of $198,814).
He asked for the wife to make up the difference (to pay him $33,407, i.e. the entire cash net sale proceeds and an additional sum of
$68,449). The Appeal Board allowed the appeal (in part) and ordered that the husband should receive the entire net cash sale proceeds
of $33,407 (instead of only 40% of the said sum) but disallowed his claim that the wife pays him the additional sum of $68,449. The
Appeal Board took into account the fact that his actual financial contribution was $198,814 (and not merely the refund of $62,349 into
his CPF retirement account).
20.8 FOREIGN DIVORCES
[20.8.1] If a divorce has been decreed or obtained in a foreign jurisdiction, the Syariah Court has no powers to hear and adjudicate on
ancillary issues such as payment of mutaah or nafkah eddah and the division of assets. This is in contrast to civil divorces which had
been obtained overseas. The 2011 amendments to the Charter allowed parties who have divorced (or whose marriage has been
annulled) abroad to seek ancillary reliefs (such as maintenance and division of assets) here. 128 Unfortunately, similar amendments
have not been made to the AMLA to enable litigants who have divorced overseas to apply for ancillary issues to be heard in the Syariah
Court.
[20.8.2] In Haniszah bt Atan v Zainordin bin Mohd, 129 the High Court, in an appeal from the FJC, ruled that a Muslim couple (both
husband and wife are Singaporeans) who had divorced in a Johor Syariah Court, is not entitled to have the civil court hear an
application for division of their matrimonial HDB flat, as those married under Muslim law are specifically excluded from Part X of the
Charter. Debbie Ong JC observed that there is a lacunae that arose from the separation of powers between the Syariah Court and the
civil courts and it is an area deserving of a review for possible law reform.
20.9 VARIATION
[20.9.1] The 1999 AMLA amendments to section 52(6) of the AMLA allows variation of any orders made by the Syariah Court on any of
the following grounds: (i) misrepresentation, (ii) mistake of fact, and (iii) any material change in circumstances. A further ground “for
any other good cause” was added in the 2008 AMLA amendments. The last ground came into effect in January 2009.
[20.9.2] In Raj Mohamed N Abd Rahim v Roshon Beevi NA Md Gani, 130 variation to an order made in 1991 was allowed as there was
material change in circumstances, namely that the husband had not complied with the 1991 order to buy a new flat for the wife and
child. He did so only after a lapse of eight years, rendering the wife homeless for that period. Additionally, the husband had stopped
paying the monthly mortgage of the new HDB flat after a few years. The wife sought a variation order for him to pay the outstanding
mortgage loan for the new HDB flat in one lump sum (instead of via monthly instalment payments as stated in the 1991 order). She
feared that the husband having reached 55 years of age, would have no funds in his CPF ordinary account to continue with the monthly
mortgage payments using his CPF moneys, which he had hitherto been paying. There is also likelihood that the husband may leave
Singapore as he had bought a property in Australia. The husband’s appeal against the variation order was dismissed as the Appeal
Board was persuaded that there was material change in circumstances to justify a variation of the original 1991 order.
[20.9.3] In Zakaria bin Mahmud v Rosnah bt Sanjar, 131 a variation was allowed by the Appeal Board as there was change in
circumstances since the first Appeal Board Order and Supplemental Order were made. The husband and his mother had since
proceeded to sell the HDB flat without adherence to the Appeal Board Order and Supplementary Order. They had acted in disregard of
the said orders causing the proceeds of sale to be distributed contrary to the Appeal Board Order and Supplementary Order. The Appeal
Board therefore varied the distribution to ensure that the wife would receive her half-share of the husband’s 50% share of the sale
proceeds (sale price less outstanding mortgage). The husband was ordered to look to other sources of funds to make the full refund into
his CPF account (and not from the sale proceeds). The shortfall in the sum received by the mother was ordered to be a debt payable by
the husband to his mother.
[20.9.4] In Rosmala bt Md Salleh v Oma-R-Uddin Ali Koppe, 132 the Appeal Board dismissed the appeal by the wife against an order
disallowing her variation application on custody and access of the child. The trial judge was unconvinced that there was any material
change in circumstances as the allegations made by the wife to justify her variation application were the very same allegations she had
made at the divorce hearing (before the custody and access order was made by the Syariah Court). The wife’s submissions were not new
and had already been exhaustively examined and considered by the trial judge. Her grounds were thus a rehash of the very same
arguments made in the lower court. There was thus no change in circumstances. The Appeal Board found that there were no fresh
information or developments to support the wife’s contentions that there was a material change in circumstances and dismissed her
appeal.
[20.9.5] In Rohnah bt Kassim v Abd Kadir bin Md Hussein, 133 the wife had consented to orders that there shall be no nafkah eddah and
mutaah, custody of the youngest child to be granted to the husband and the matrimonial flat to be sold and net sale proceeds to be
divided equally. The wife later applied to set aside the consent order on grounds that the husband had misrepresented to her that he
was “broke” and unable to maintain her, that he wanted custody of the youngest child because he would be lonely and needed someone
to accompany him to Australia. The wife said that after the divorce she discovered that the husband had been having an extramarital
affair and that his lover had been accompanying him to Australia and he was not “broke”. The Appeal Board allowed the variation as the
facts and circumstances leading up to and after the consent order showed that there were grave doubts as to whether the husband had
represented all the relevant facts fairly to the wife to arrive at the terms recorded. The order involved the wife giving up her rights to
nafkah eddah and mutaah, custody of her youngest child and a share in flat. Allowing the consent order to remain would in fact lead to
injustice. The Appeal Board was unimpressed with the conduct of the husband in denying the wife access to the youngest child after the
divorce. This was taken into account in believing or disbelieving the wife when she argued that the husband had made
misrepresentations to her when she agreed to the consent order.
[20.9.6] In Md Yusoff bin Majeed v Masitah bt Md Noor, 134 the wife had applied for divorce after 28 years of marriage with three
children. The Syariah Court decreed a divorce and made (by consent) orders that the wife waive mutaah and nafkah eddah, for joint
custody of the youngest minor child with care and control to the wife and reasonable access to the husband, that the matrimonial HDB
flat be sold and the net sale proceeds to be divided equally between the husband and the wife. About six months later, the wife applied
for a variation seeking that the husband pays her mutaah and nafkaheddah and that the husband transfers $50,000 from his CPF account
into her CPF account. The trial judge dismissed her application on mutaah but allowed her claim for a share of the husband’s CPF
moneys and ordered the husband to transfer $60,000 from his CPF ordinary account and special account into the wife’s CPF ordinary
account and special account. The husband appealed against the said order. The Appeal Board dismissed his application on grounds that
the Syariah Court was correct in taking the view that the issue of the husband’s CPF moneys was not before the lower court and as such,
parties could not have consented not to include it as part and parcel of the ancillary issues. The Appeal Board stated that the doctrine of
res judicata per se is not a ground for not reopening the new issue. There must be some additional element, such as a collateral attack on
a previous decision, some dishonesty or successive actions amounting to unjust harassment. The Appeal Board went further to
investigate whether it should take the drastic step of depriving a litigant an opportunity to have his or her claim or defence heard in
court. The Appeal Board stated that the power of “shutting out” a litigant must be exercised only after scrupulous examination of the
circumstances including ascertaining if there had been an abuse of process. Looking at the facts of the case, the Appeal Board ruled that
it cannot be said that there was a collateral attack upon the previous decision when the wife applied for her share of the husband’s CPF
moneys. The wife was not challenging the previous decision nor is she asking to alter them. There were bona fide reasons for not asking
for a share of the husband’s CPF moneys as the wife said she did not know that she could make such a claim and this was supported by
the fact that in her Case Statement, she did not seek such a share and during the mediation session before coming to a settlement, there
was no discussion on the husband’s CPF moneys. There was also no unjust harassment of the husband by the wife as there was no
repeated litigation, which would amount to oppression. The Appeal Board held that it would be unjust and inequitable in the
circumstances of the case not to allow the wife to proceed with her claim for a share of the husband’s CPF moneys.
[20.9.7] Cheong Kong Chuan v Zunaidah bt Shahul Hamid 135 is the first reported decision on a variation application which was allowed
relying on the new ground of “for any other good cause”. The parties had divorced in August 2009. Their matrimonial HDB flat was
ordered to be sold with the wife getting 70% share and the husband 30% share. The HDB flat was not sold and in November 2010, the
original order was varied by consent: the HDB flat will be transferred to the husband with partial refund into the wife’s CPF account of
$213,000 instead of $231,773 (the sale would result in a loss and as a consequence, the wife would receive only partial and not full
refund into her CPF account). No transfer took place. In March 2011, the wife applied to vary the order for a transfer to her instead. The
wife’s application was dismissed. In 2012, the wife took out another variation application for the HDB flat to be transferred to the
husband with full refund into the wife’s CPF account (by January 2013, the wife had withdrawn and used her CPF moneys amounting to
$254,718.95 for the HDB flat). She argued that property prices had increased and therefore the order should be varied to allow full
refund into her CPF account. The Syariah Court allowed the application. The husband appealed. His appeal was allowed in part. The
Appeal Board ruled that there was no material change in circumstances on the basis that property process had increased. The rise or fall
in property market does not constitute material change of circumstances. However, the Appeal Board noted that on the facts of case,
there is sufficiently good cause to warrant variation of the (November 2010) consent order. The wife had continued to pay the monthly
mortgage to the HDB through deductions from her CPF account from November 2010. The wife’s position had changed to her detriment
and to the husband’s advantage as a result of her continued payment of CPF moneys after November 2010. The court therefore cannot
allow the husband to receive a windfall. If the wife did not pay the monthly mortgage, the HDB may repossess the flat. As the wife had
agreed to accept a shortfall in her CPF refund of $18,473 in November 2010, the Appeal Board took this into account and ordered that
the wife’s CPF be refunded in full when the husband takes over the HDB flat less the sum of $14,000. The Appeal Board was balancing
countervailing considerations of the need to ensure fidelity to the consent order and the need to give voice to an equitable solution in
the case.
20.10 ENFORCEMENT OF SYARIAH COURT ORDERS
[20.10.1] With the 2009 amendments to the AMLA, an order issued by the Syariah Court is now deemed and treated to be an order
issued by the District Court (for enforcement purposes). 136 The previous requirement of first registering an order from Syariah Court in
the state court before enforcement action can be started is now made redundant.
[20.10.2] The 2009 AMLA amendments also enabled orders on mutaah and nafkaheddah to be enforced in the FJC. The entire gamut of
enforcement machinery provided in the Charter 137 (such as garnishee order, imprisonment, fine, attachment orders, as well as the
recent measures against defaulters, i.e. ordering defaulters to post a banker’s guarantee against future defaults, making defaulters
attend financial counselling and performing community service, requesting access to employment information of defaulter from the
CPF Board in order to facilitate the direct deductions from the defaulter’s wages, enabling women to report maintenance amount owed
to designated credit bureaus as this would affect the credit standing of the defaulter, making them more hesitant in defaulting) is now
available for enforcement of orders on mutaah and nafkah eddah.
[20.10.3] Breach of orders on issues relating to children including non-compliance with access order or delivery of children to one
party, can be mediated in civil court (the FJC) by lodging a complaint. If the mediation process fails to result in a satisfactory outcome,
the aggrieved party may lodge a Magistrate’s Complaint in the Crime Registry in States Court. 138 Upon prosecution and conviction, the
accused person may be subject to a penalty of imprisonment or payment of a fine.
[20.10.4] In cases involving orders for the sale or transfer of ownership of a property and one party defaults or fails to comply, the
other party may apply for a “proxy powers” order which enables the Syariah Court to execute the necessary documents to effect the sale
or transfer of ownership on behalf of the defaulting party. 139
20.11 CONCURRENT JURISDICTION
[20.11.1] The 1999 AMLA amendments provide concurrent jurisdiction to both the Syariah Court and civil court in two specific areas,
namely (i) issues pertaining to custody, care and control and access of children, and (ii) disposition and division of matrimonial assets.
140 Muslim parties are thus given a choice to have these two ancillary matters heard in the Syariah Court or civil court. If the parties
have elected to apply to the civil court for these ancillary matters, they will be bound by the non-Muslim law that is administered and
adjudicated by the civil court.
[20.11.2] As mentioned earlier, if no divorce proceedings have commenced in the Syariah Court, Muslim parties can apply to the civil
court to adjudicate issues on their children or disposition or division of matrimonial assets. However, once a divorce summons has been
issued in the Syariah Court, the civil proceeding must be stayed unless both parties agree that it shall continue in civil court or leave had
been granted from the Syariah Court for the civil proceedings to continue (while a divorce proceeding is in progress in the Syariah
Court).
[20.11.3] In Pereira Dennis John Sunny v Faridah bte V Abdul Latiff, 141 the High Court held that the divorce proceeding in the Syariah
Court commenced when the wife issued the originating summons on March 29, 2016. The husband had earlier, on November 6, 2015,
commenced the High Court civil action against his wife for declarations on his rightful beneficial shares in respect of four properties
held in the parties’ joint names. The High Court held that since the civil proceedings were commenced before the Syariah Court divorce
proceedings were commenced, there is therefore no basis for the court to invoke section 17A(3)(a) of the Supreme Court of Judicature
Act (Cap 322) to order a mandatory stay of the civil proceedings. The High Court held that the juxtaposition of subsection 35A(1) with
subsection 35A(2) of the AMLA clearly showed that the civil proceeding should be stayed only if the civil proceedings are commenced
after the Syariah Court divorce proceeding has been commenced. The High Court further held that no discretionary stay of the civil
proceedings pursuant to Order 92 Rule 4 of the Rules of Court is justified as there are no compelling reasons offered by the wife.
[20.11.4] It must be noted that once parties had opted for the forum (i.e. either the Syariah Court or the civil court), they are not allowed
to have a change of mind and to ask for another forum under a different legal regime to adjudicate and hear the ancillary issue. In
Zunaidah bt Sahul Hamid v Cheong Kong Guan, 142 a divorce had been decreed by the Syariah Court which also made orders on ancillary
matters on the children and division of assets. There were also several post-divorce variation applications which had been made in the
Syariah Court. The husband then had a change of mind and sought to have the ancillary issues on the children and division of assets
reopened and heard in civil court. The Appeal Board disallowed the application.
20.12 APPEALS
[20.12.1] All decisions made by the ROMM and orders made by the Syariah Court are appealable to the Appeal Board within 30 days of
the decision or order. 143 The Appeal Board may confirm or reverse or vary the decision or order, or remit the matter back to the ROMM
or the Syariah Court for rehearing or retrial.
[20.12.2] Fresh or new evidence may be tendered to the Appeal Board if leave is granted (after the hearing of a Notice of Motion). 144
[20.12.3] The Syariah Court hears appeals for interlocutory orders (e.g. interim orders pertaining to children or discovery application).
The Appeal Board is not empowered to hear appeals on interlocutory orders. This is held in Jofri bin Jaffar v Norrashida bt Jumadi. 145 In
this case, the Syariah Court had decreed a divorce and made orders on ancillary issues. Three years later, the wife’s brother made an
application to the Syariah Court to set aside the decree and ancillary orders on grounds that his sister (the wife) lacked mental capacity
(and there was no declaration under the Mental Disorders and Treatment Act (Cap 178) from the civil court) and that he be appointed as
her Litigation Representative. The Syariah Court made no orders on the prayers sought in the application. Before going into the merits
of the application, the Syariah Court first held that it had the power to make a finding of fact whether a person was of unsound mind for
purposes of rule 11(2) of the MMDR. 146 The wife’s brother appealed against this “preliminary” finding. His appeal was dismissed. The
Appeal Board stated that there is no provision in the AMLA for it to hear such an appeal as it was an order that does not deal with the
final rights of the parties and the Syariah Court had not made any orders with regards to the prayers in the brother’s application. As an
aside, the Appeal Board noted that the Syariah Court was correct in ruling that it has the power to appoint a Litigation Representative,
which is not limited to a Committee of Person under the Mental Disorders and Treatment Act (Cap 178) but also to “any person related
by blood or marriage” to the person of unsound mind. The Appeal Board referred to the case of Muktar Bibi bt Abdul Rahman @ Mukhtar
Bibi bt Abdul Man bin Fateh Din v Zaidah Begum bt Mohd Amin. 147
20.13 DECISION OF THE SYARIAH COURT AND THE APPEAL BOARD IS FINAL
[20.13.1] Subject to provisions in the AMLA, decisions made by the Syariah Court and the apex court (the Appeal Board) shall be final
and conclusive. It cannot be challenged, appealed against, reviewed, quashed or called into question in any court and shall not be
subject to certiorari, prohibition, mandamus or injunction in any court on any account. 148 In Mohamed Yusoff bin Mohd Haniff v Umi
Kalsom bt Abas (AG, non-party), 149 the parties were divorced in the Syariah Court in August 2003 and the Syariah Court made various
ancillary orders including the sale of their matrimonial HDB flat and division of the net sale proceeds. After the HDB flat was sold, a
dispute arose with regards to the distribution of the sale proceeds. The husband had turned 55 years of age and was not required to
make the necessary refund into his CPF account when the HDB flat was sold. A variation order was made, taking this into account. The
husband was dissatisfied and he appealed to the Appeal Board. The Appeal Board remitted the matter back to the Syariah Court.
Pursuant to this, the Syariah Court heard the matter and made orders on the distribution of the net sale proceeds. The husband was
dissatisfied and he appealed to the Appeal Board. His appeal was dismissed. The husband then applied for leave to commence civil
proceedings but leave was not granted by the Syariah Court. The husband then commenced an application in High Court for leave for
judicial review of the Syariah Court order which varied the distribution of the net sale proceeds. The High Court dismissed his appeal
stating that “Section 56A AMLA provides that subject to the Act, a decision by Syariah Court or Appeal Board is final and conclusive and
no decision or order of the Court or Appeal Board shall be challenged, appealed against, reviewed, quashed or called into question in
any court and shall not be subject to any Quashing Order, Prohibition Order, Mandatory Order or injunction in any court on any
account.”
20.14 GENERAL “NON-MUSLIM” LAWS
[20.14.1] Although specific provisions in the Charter 150 or areas of laws do not apply to Muslims or those married under Muslims laws,
there are many other provisions in the Charter or areas of laws where Muslims are not excluded and of application to both Muslims and
non-Muslims.
A. Maintenance of Wife and Children

[20.14.2] Application for maintenance of a Muslim wife and children continues to be heard in the civil court as provisions in the
Charter 151 apply to Muslims and non-Muslims alike. It must be pointed out that a divorced Muslim woman is not entitled to claim
maintenance for herself against her former husband (after the divorce has been registered).
B. Family Violence
[20.14.3] Application relating to domestic and family violence must be made in the FJC as the provisions on family violence in the
Charter 152 apply to Muslims and non-Muslims alike. There is no provision with regards to domestic violence in the AMLA. The Syariah
Court has no jurisdiction to hear any applications relating to domestic violence.
C. Adoption of Children
[20.14.4] Although adoption is not recognised as a mode of establishing paternity under Muslim law, it is recognised as part of
customary laws in many parts of the Muslim world. In Singapore, Muslims are permitted to adopt children or be adopted. The
application for the adoption of children is made in the FJC as the Adoption of Children Act (Cap 4) applies to Muslims and non-Muslims
alike.
[20.14.5] It must however, be noted that adopted children are not permitted to be beneficiaries of their deceased Muslim parent’s estate.
Neither can the adopted parents be beneficiaries to a deceased Muslim child’s estate. Under strict Islamic laws, the adopted father
cannot be the wali for the adopted daughter’s marriage.
D. Legitimacy
[20.14.6] According to the Shafiee school of law, when a child is born to a woman who is married to a man after six months from the
date of the marriage or within four years of termination of the marriage, the mother not having remarried, the paternity of the child is
established with the husband. The provisions of the Legitimacy Act (Cap 162) are not applicable to Muslims.
20.15 SUCCESSION TO PROPERTY AND DISTRIBUTION OF MUSLIM ESTATES
[20.15.1] In Singapore, the estate of a deceased Muslim must be distributed in accordance with Islamic law 153 or faraid. In the case of
any Muslim person domiciled in Singapore dying intestate, the estate and effects shall be distributed according to the Muslim law as
modified where applicable by Malay custom. As such, the Intestate Succession Act (Cap 146) does not apply to Muslims. Muslims are
allowed to dispose of their estate by will but the general principle of Muslim law is that testamentary disposition may not exceed one-
third of the estate of the deceased. 154
[20.15.2] A personal representative of any deceased Muslim estate (like those for non-Muslim estates) is required to apply for grant of
probate or letters of administration. The provisions of the Probate and Administration Act (Cap 251) (and the relevant provisions of the
Family Justice Act 2014 (No 27 of 2014) and the Family Justice Rules 2014) apply to Muslims. Application for grant of probate or letters of
administration must be made in the FJC as the Syariah Court is not empowered to hear such applications. The primary difference
between applications for Muslim and non-Muslim estates is that a Certificate of Inheritance must be filed and submitted in the
application for grant of probate or letters of administration for the estate of a deceased Muslim. As mentioned earlier, the Syariah Court
is empowered, under section 115 of the AMLA, to issue Certificates of Inheritance that serve to certify the persons entitled to share/s in
the estate of a deceased Muslim according to the different schools of Muslim law. Application for a Certificate of Inheritance is done
online at the Syariah Court’s website on inheritance: see <www.faraid.gov.sg>.
[20.15.3] The Certificate of Inheritance states the prescribed shares of any combination of persons (beneficiaries/heirs), based on the
query and information submitted to the Syariah Court. The identity card (or passport) details of the deceased and the beneficiaries must
be stated in the application. The applicant is now required to affirm a Statutory Declaration declaring that the information contained in
the application is true, correct and complete. The usual penalties for making any false declaration in the said application for a
Certificate of Inheritance can be imposed. This is to deter anyone submitting false, incomplete or misleading information to obtain a
Certificate of Inheritance with wrong or inaccurate beneficiaries and/or shares in the deceased’s estate.
[20.15.4] The automatic (or specified) faraid beneficiaries are spouses (surviving husband or wife), children, and parents. When the
deceased leaves no son or father, part of his or her estate will go to his or her siblings or grandparents. When the deceased leaves no
male heir, part of the estate goes to Baitul Mal (the Muslim Treasury administered by MUIS akin to an institutional trustee for Muslim).
When the deceased leaves no faraid heirs, the estate goes to Baitul Mal. Unborn, illegitimate, 155 or adopted children do not inherit the
estate of deceased Muslims.
[20.15.5] The forum for any dispute over the succession or inheritance is the civil courts as there is no provision for the Syariah Court to
adjudicate over such matters.
[20.15.6] Wills can be prepared to distribute the testator’s estate after his or her death, to appoint executors of his or her estate and to
appoint guardians of infant children. As mentioned earlier, the general principle of Muslim law is that testamentary disposition may not
exceed one-third of the estate of the deceased. 156 It is permissible to will out one’s assets to non-Muslims, foster parents, siblings,
adopted children, adopted parents, child out of wedlock, stepchild, step-parents, certain maternal relatives such as maternal aunt or
maternal grandfather, or any unrelated third parties, e.g. friends, charitable causes or organisations, etc., so long as it does not exceed a
one-third share. According to the Shafiee school (majority of Muslims in Singapore are of the Shafiee school) a testator may not make a
bequest in favour of any of his or her legal heirs, i.e. he or she cannot reduce or enlarge the shares of those who by law are entitled. A
legacy in favour of a legal or legitimate heir can only take effect with the unanimous consent of the co-heirs.
[20.15.7] Beneficiaries can agree amongst themselves to vary apportionment of their shares. In Shiraz Abidally & Anor v Husain Safdar,
157 the testator executed his will in 1992 bequeathing one-third of his property to his grandchildren and other persons. In November
2000, he prepared a letter of wishes stating that all the cash in his three joint bank accounts should be distributed equally amongst his
two sons and four daughters “not according to Muslim law.” In May 2003 (two days after the testator’s death), all his children agreed to
comply with the letter of wishes. The next day, the will was discovered. On same day, moneys in the joint bank account of defendant and
the deceased were distributed equally by the second defendant on terms of an indemnity prepared by the plaintiff (one of the sons). In
August 2003, the plaintiff objected to equal distribution and sought distribution according to Muslim law. The plaintiff claimed that at
the time he had consented to equal distribution, he was unaware of the existence of the will although he knew that under Muslim law
male heirs are entitled to twice the shares of female heirs. The High Court noted that the consent and agreement made by the children
was given in the context of the letter of wishes and not in the context of the will (leaving only two-thirds of the estate). The Court of
Appeal observed that in Muslim law, there was no impediment to an agreement to divide the estate equally. The children’s agreement to
distribute equally the estate based on two-thirds of the estate under the will was thus not inconsistent with Muslim law.
[20.15.8] Beneficiaries may choose to renounce their share in the estate but in the event of subsequent dispute, such renunciation will
be subjected to rigorous scrutiny by the court. This is seen in Mahidon Nichair bt Mohd Ali v Dawod Sultan Kamaldin, 158 where the Court
of Appeal set aside a Deed of Renunciation executed by three siblings purportedly agreeing to renounce their respective shares and
interests in their late father’s estate (a property at 4 Merryn Terrace Singapore) in favour of their mother and one brother (the
defendant). The Court of Appeal found that the said deed is invalid on the basis that the three siblings did not fully appreciate the nature
and effect of the document which they were signing and that they had executed it in the mistaken belief that it was an instrument
necessary to appoint the defendant as the sole administrator of their father’s estate.
[20.15.9] A Muslim will must comply with the provisions in the Wills Act (Cap 352) as to the formalities, e.g. the execution of the will
must be properly witnessed. Section 3(1) and (2)(a)–(d) of the Wills Act (Cap 352) does not apply to Muslims. 159
A. Specific Assets
[20.15.10] Due to the nature of distribution in each case, attention must be given to specific assets for distribution in a Muslim estate,
namely, immovable property, CPF moneys, and insurance proceeds.
B. Immovable Property (Joint Tenancy)
[20.15.11] It was held in Shafeeq Salim & Anor v Fatimah bt Abud Bin Talib & Ors 160 that the common law principle of rights of
survivorship of an immovable property held as joint tenants applies to Muslims. In this case, the husband and wife had bought a
condominium as joint tenants in April 1998. The husband died in May 2005 leaving behind his wife, two children, a sister and 10
nephews. Administrators of the estate (the deceased’s nephews) commenced an action against the deceased’s wife, asking for a half-
share in the condominium, which they claimed belonged to the estate of the deceased and should be distributed according to Muslim
law. The Certificate of Inheritance stipulated that there were 12 beneficiaries. The wife of the deceased had 10/40 shares. The claimants
had written to the Fatwa Committee who replied (in 2007) that half of the property was considered as inheritance and should be
distributed in accordance with Islamic law. The claimants mounted their claim against the widow relying on the 2007 fatwa. 161 The
widow resisted, arguing that she and the deceased were joint tenants. As such, when her husband passed away, the right of survivorship
entitled her to the entire condominium. The High Court and on appeal, the Court of Appeal, held in favour of the survivor (the wife).
[20.15.12] The High Court dismissed the claimants’ case. The High Court held that it is not bound by the 2007 fatwa and made clear that
there are no specific laws, which prevented the laws on rights of survivorship in a joint tenancy of immovable properties held by
Muslims, to apply to Muslims. The deceased’s half-share therefore passed to the widow upon his death and the said half-share did not
form part of the estate of the deceased.
[20.15.13] The Court of Appeal affirmed that the right of survivorship of joint tenants applies to Muslims, and that secular law overrides
Islamic law in rights of survivorship of joint tenancy in immovable property. The court commented that the MUIS 2007 fatwa was
inconsistent with general law.
[20.15.14] This case puts to rest any doubts as to whether secular law overrides Islamic law in respect of joint tenancy in property. As
such, if a property is held by two Muslims as joint tenants, upon the death of one owner, the entire property passes to the surviving joint
owner.
C. Fatwa2008
[20.15.15] In 2008, MUIS issued a fatwa which suggests the use of Islamic legal instruments that can harmonise civil and religious laws,
while at the same time providing an option for Muslims who wish to follow the laws of inheritance (or faraid). It suggests legal
instruments such as nuzriah 162 that Muslims may use if they wish to convey their intention for jointly held property to vest in the
surviving joint tenant, upon death of the other joint tenant. The instrument would serve as an expression of religious intent by the joint
tenant and its effect on the ownership will be similar to the concept of right of survivorship. It added that joint ownership under Syariah
laws is identical with communal property, family property and harta sepencarian (assets acquired during marriage). That joint tenancy
although not known under Syariah law, is not prohibited (haram). It may be created by an agreement (based on trust and hibah ruqba).
163
D. Use ofNuzriah
[20.15.16] On the use of the instrument of nuzriah, the case of Mohamed Ismail bin Ibrahim v Mohd Taha bin Ismail, 164 is instructive. On
the facts of the case, the use of testamentary nuzriah was questioned and rejected by the court. In this case, the testator died leaving a
wife, three sons and seven daughters. He had made a will leaving: (a) one-third of his estate in the form of a nuzriah giving one son, four
daughters, two grandsons and his wife certain shares, (b) one-third of his estate to be given to two mosques (Ba’Alwi and Muhajirin),
and (c) one-third of this estate to be divided amongst faraid beneficiaries. Two of the deceased’s children commenced an action against
another son (executor of the estate), claiming that the portion of the deceased’s will with regard to the nuzriah was invalid. They argued
that the “will” contravenes Muslim law in that it purports to distribute two-thirds of the estate (and not the permissible one-third). The
estate was worth about $2.1 million. The defendant (executor of estate) had written to the Fatwa Committee for an opinion on the
validity of will. The Fatwa Committee had issued a fatwa in February 1998 opining that the nuzriah is valid and that the one-third share
of the estate for the mosques is from the balance after distribution of the nuzriah portion, i.e.nuzriah (nine parts), two mosques (six
parts) and faraid beneficiaries (12 parts). The claimants refused to accept the above. They commenced an action in the High Court
seeking a declaration that the will is valid as regards the shares to the two mosques (one-third) but the remaining two-thirds should be
distributed according to faraid, and that the portion on the nuzriah was invalid. The High Court ruled that section 60 of the AMLA
mandates that Muslims can only will away one-third of their estate. As such, the one-third nuzriah portion in the deceased’s will
transgressed this. The nuzriah portion was thus held to be invalid.
[20.15.17] Based on the above decision, nuzriah will be held to be invalid if it is used to dispose of any asset held in the deceased’s sole
name, in contravention of faraid laws.
E. CPF Moneys
[20.15.18] It is common knowledge that CPF members can expressly provide that upon his or her death, moneys in his or her CPF
account shall be payable to persons nominated. In the absence of a nomination, moneys will be paid to the Public Trustee for disposal in
accordance to any written law.
[20.15.19] Before August 2010, the MUIS fatwa had advised that for Muslims, the position was that the deceased’s CPF moneys must be
distributed to the faraid beneficiaries of the deceased, regardless of whether or not a nomination has been made by the deceased.
Where a CPF nomination has been made, MUIS’ position (then) was that such nominee(s) should hold the CPF moneys in trust for the
faraid beneficiaries.
[20.15.20] This was inconsistent with the legal position which was decided by the High Court in Saniah bt Ali v Abdullah bin Ali. 165 In
this case, the deceased nominated his stepsister to receive all his CPF moneys upon his death. The deceased’s brother, who was entitled
to the whole of the deceased’s estate under faraid, brought an action to recover the CPF moneys from the stepsister. The High Court held
that the deceased’s CPF moneys do not form part of the estate of deceased, that the fatwa issued by MUIS is merely an opinion and is not
binding on the court which has full jurisdiction to decide on the matter, and as such, the nominee (stepsister) is entitled to the deceased’s
CPF moneys.
F. Fatwa 2010
[20.15.21] In August 2010, MUIS issued a fresh fatwa stating that it now recognises a CPF nomination as a valid form of hibah (gift inter
vivos). The nominee may accept the deceased’s CPF moneys in his or her own right as the rightful beneficiary (not as a trustee for the
faraid beneficiaries).
G. Insurance Policies
[20.15.22] Policyholders of life, endowment, accident and health insurance policies are given two options as regards who will receive
the proceeds from their policy in the event of their demise. They have the options of either making a revocable or irrevocable
nomination to identify and name the beneficiary.
[20.15.23] In September 2009, amendments were made to the Insurance Act (Cap 142) (the “Insurance Act”) with regards to such
nominations. 166 Policyholders can either use a revocable or irrevocable nomination to name the beneficiaries of their choice. If they
use an irrevocable nomination (under section 49L of the Insurance Act), the policies automatically become trust policies. Only spouse
and/or children can be nominated. The nomination can only be revoked if the existing beneficiaries give consent to it.
[20.15.24] If policy holder makes a revocable nomination (the beneficiaries can be any entity, i.e. individuals such as siblings, parents,
nieces, nephews including spouses and/or children, etc., or associations, corporations, etc.), it can be revoked at any time without the
need for the consent of the nominees.
[20.15.25] The amendments to the Insurance Act (Cap 142) was soon followed by an amendment to section 111(1) and (2) of the AMLA.
167 Unfortunately, the AMLA amendment caused concern and disquiet in the insurance industry. Insurance companies were reluctant
and hesitant to accept revocable nominations made by Muslims. Insurers, fearing that faraid beneficiaries will commence legal action
against them if moneys are released to the nominee(s) named by policy holders, referred issues on revocable nominations to MUIS in
order to ascertain the restrictions, if any, applicable under the various schools of Islamic law. There was thus considerable uncertainty
and confusion as to whether it is permissible for Muslims to make revocable nominations and whether the nominees were entitled to
the proceeds legally or whether they are holding the proceeds on trust for the faraid beneficiaries.
[20.15.26] The uncertainty has to some extent, been clarified now. MUIS had released an Irsyad (guidelines) in 2011, advising that upon
the death of a policy holder, the proceeds of the insurance policy where a revocable nomination had been made, is not considered to be
part of the estate which is subjected to the restrictions of Muslim law.
H. Fatwa March 2012

[20.15.27] MUIS released a general fatwa in March 2012 on the revocable nomination of insurance policies. The fatwa sanctioned the
use of revocable nomination as a “new form of hibah (gift)” 168 made during the lifetime of policyholder. The fatwa also emphasises that
the principles of Syariah and secular law will continue to be upheld, that no injustice should be done to any party and that it is also the
moral obligation of Muslims to assist in settling debts of the estate.
[20.15.28] The fatwa has brought about a measure of clarity to the issue. Nevertheless, amendments to section 111 of the AMLA is still
required to make the legal position clear and unequivocal to all parties, in particular insurers.
I. Joint Bank Accounts – Fatwa 2016

[20.15.29] In March 2016, MUIS announced that it will be releasing another fatwa with regards to joint bank accounts when one account
holder dies. The fatwa addressed two scenarios. In the event that the contribution of each account holder can be ascertained and
determined, the deceased’s share should be distributed according to his or her faraid beneficiaries. In the event that the contributions of
each party cannot be ascertained or determined with certainty, the moneys in the account shall be considered to have been equally
contributed by both parties and the deceased’s 50% share shall be distributed according to his or her faraid beneficiaries.
It must be pointed out that it remains to be seen whether this will be the position which will be adopted by the civil courts if a dispute as
to the deceased’s share is challenged and litigated in court.
J. Estate Planning – Options For Muslims

[20.15.30] In view of the laws on succession and distribution of Muslim estates, it may be necessary to take steps in estate planning.
There are some options open to Muslims with regards to estate planning.
[20.15.31] As regards immovable property, one option is to hold immovable property as joint tenants. If this is done, it will be useful to
execute a nuzriah to make clear that the intention is for the surviving owner to hold the said property upon the death of the other
owner. However, it must be emphasised that if a nuzriah is not executed, under common law, the rights of survivorship will apply to the
said property. Any challenge by faraid beneficiaries of the deceased disputing the survivor’s rights to have the deceased’s share will
probably fail.
[20.15.32] Another option is to hold an immovable property as tenants in common and specify the share of each owner. Upon death,
estate of the deceased will receive its share in property in accordance with Muslim inheritance laws.
[20.15.33] As regards CPF moneys and proceeds of insurance policies, nominating beneficiaries for CPF moneys and insurance policies
will ensure that these assets do not form part of the estate upon the death of the testator.
[20.15.34] It is also helpful and instructive to execute a will to identify and name beneficiaries for a one-third share of the estate.
20.16 SINGAPORE SYARIAH APPEALS REPORT (SSAR)
[20.16.1] In May 2012, the Singapore of Academy of Law launched its maiden publication of Singapore Syariah Appeals Report (“SSAR”),
a collection of significant decisions made by the Appeal Board on appeals from decisions of Registrar/kadi in the ROMM and judges in
the Syariah Court. The SSAR is a compilation of reported decisions of the Appeal Board from 1980 until 2010. The maiden publication
comes in five main volumes divided into specific topics, namely:
(i) Volume 1 – Divorce and Dissolution of Marriages;

(ii) Volume 2 – Ancillary Matters;
(iii) Volume 3 – Custody;
(iv) Volume 4 – Jurisdiction, Powers & Procedures; and
(v) Volume 5 – Marriage.
[20.16.2] There is also a volume containing consolidated tables and index and headnotes of the reported cases. Like any other law
reports, this publication serves as a useful source of reference and guide on reported decisions and is a valuable tool to practitioners.
The writer understands that it is being updated for decisions made after 2010.
FOOTNOTES
1 Section 89 of the AMLA.
2 (Appeal No 19/1997).
3 (1994) 5 SSAR 90 (Appeal No 12/1993).
4 Section 95(2) of the AMLA.
5 (Appeal No 39/2013).
8 (Appeal No 38A/1996).
10 According to section 2 of the AMLA, it means the lawful guardian according to the Muslim law for purposes of marriage of a woman who is to be married.
11 Section 95(3) of the AMLA read with rule 4 of the Muslim Marriage and Divorce Rules (1999) (“MMDR”).
12 (1990) 5 SSAR 31 (Appeal No 1/1990).
13 Kadi solemnising the marriage of a woman in place of a guardian under section 95(3) of the AMLA.
14 Women’s Charter (Amendment) Act 1976, section 3(4) of the Charter as amended.
15 Section 96 of the AMLA read with rule 5 of the MMDR.
16 (1998) 5 SSAR 164 (Appeal No 5/1998).

17 (1999) 5 SSAR 168 (Appeal No 16/1998).
18 (2010) 5 SSAR 179 (Appeal No 37/2009).
19 Section 102(2) and (3) of the AMLA.
21 (Appeal No 16/2013).
22 Section 2 of the AMLA: emas kahwin means the obligatory marriage payment due under the Muslim law by the husband to the wife at the time the marriage is
solemnised, whether paid in cash or in kind, or payable as a debt with or without security.
23 Section 35(2)(a)–(e) of the AMLA.
26 [1998] 2 SLR(R) 327.
27 Summons No 28677, unreported.
29 (1990) 5 SSAR 15 (Appeal No 4/1989).
30 (2007) 4 SSAR 146 (Appeal No 23/2007).
33 (Appeal No 12/1998).
34 (Appeal No 32/2001).
35 See Noor Azizan bt Colony (alias Noor Azizan bt Mohamed Noor) v Tan Lip Chin (alias Izak Tan) [2006] 3 SLR(R) 707; Yeo Pei Chern (Yang Peizhan Freda) v Isa
Seow Zheng Xin @ Mohammed Isa Abdullah (2007) 4 SSAR 146 (Appeal No 23/2007); Mohamad Roslan bin Ahmad @ Royston Wu Chiren v Yong Tien Sin (Yang
Tianxin) @ Amelia Yong Summons No 28677, unreported.
37 (2010) 5 SSAR 179 (Appeal No 37/2009).
41 Section 49(1)(a)–(g) of the AMLA.
43 (1998) 1 SSAR 93 (Appeal No 14/1997).
44 (Appeal No 13/2013).
45 See Salbiah bt Abdul Salam v Abdul Shariff s/o Moideen (Appeal No 12/1998); Hamida d/o Mahamood v Rauf @ Suppiah Rengaiyan (Appeal No 32/2001; Mohamad
Roslan bin Ahmad @ Royston Wu Chiren v Yong Tien Sin (Yang Tianxin) @ Amelia Yong Summons No 28677, unreported.
46 Section 52(3)(a) of the AMLA.
47 Section 35A(1) of the AMLA.
48 Section 35A(2) of the AMLA.
49 (Appeal No 37/2011).
50 (Appeal No 45/2014).
51 (Appeal No 15/2010).
52 (2003) 3 SSAR 124 (Appeal No 15/2001).
53 (2008) 3 SSAR 163 (Appeal No 25/2007).
54 (2007) 3 SSAR 135 (Appeal No 26/2006).
55 [2005] 3 SLR(R) 690.
56 (2006) 3 SSAR 153 (Appeal No 30/2006).
57 (Appeal No 21/2010).
58 [1995] 3 SLR(R) 738.
59 (1997) 2 SSAR 52 (Appeal No 11/1995).
60 (Appeal No 5/2010).
61 (Appeal No 4/2013).
62 (Appeal No 24/2010).
63 (2008) 2 SSAR 172.
64 (Appeal No 2/2013).
66 Summons No 1576 of 1999, unreported.
67 (2008) 2 SSAR 158.
68 (2010) 2 SSAR 196.
69 (Appeal No 22/2014).
70 (1996) 2 SSAR 35 (Appeal No 27/1993).
71 (2007) 1 SSAR 127 (Appeal No 15/2007).
72 [1993] 3 JH (Journal Hukum) 220.
73 [1989] 3 MLJ ix.
74 (2008) 4 SSAR 175 (Appeal No 39/2008).
75 (2010) 2 SSAR 221 (Appeal No 12/2010).

76 Syariah Summons No 35661/2010 and (Appeal No 3/2010).
77 (Appeal No 6/2007).
78 (Appeal Nos 21 and 22/2007).
79 (Appeal No 6/2010).
80 (2001) 3 SSAR 109 (Appeal Nos 2 and 3/2000).
81 (2007) 1 SSAR 127 (Appeal No 15/2007).
82 (2009) 2 SSAR 180 (Appeal No 38/2008).
83 (2002) 2 SSAR 127 (Appeal No 24/2001).
84 (Appeal No 19/2009).
85 (2005) 2 SSAR 139 (Appeal No 17/2005).
86 (2010) 2 SSAR 196 (Appeal No 17/2009).
87 (Appeal No 26/2011).
88 Hamdan bin Tahir v Mansah bt Patham (Appeal No 26/2011).
89 (Appeal No 4/2013).
90 (Appeal Nos 43 and 44/2013).
91 (Appeal No 5/2010).
92 (Appeal No 7/2001).
93 (Appeal No 5/2012).
94 (2010) 2 SSAR 209 (Appeal No 29/2009).
95 (2009) 3 SSAR 174 (Appeal No 12/2008).
96 (Appeal No 7/2006).
97 (1996) 1 SSAR 50 (Appeal No 14/1995).
98 (1990) 2 SSAR 111 (Appeal No 24/1998).
99 (1998) 2 SSAR 84 (Appeal No 38/1996).
100 (Appeal No 24/2010).
101 (Appeal No 17/2011).
102 (2000) 2 SSAR 122 (Appeal No 18/2000).
103 (Appeal No 34/2000).
104 (2000) 2 SSAR 119 (Appeal No 16/1999).
105 (2010) 3 SSAR 180 (Appeal No 33/2009).
106 (2008) 2 SSAR 158 (Appeal No 3/2007).

107 (2002) 2 SSAR 127 (Appeal No 24/2001).
108 (2010) 2 SSAR 221 (Appeal No 12/2010).
109 (1996) 2 SSAR 35 (Appeal No 27/1996).
110 (2008) 2 SSAR 173 (Appeal No 24/2007).
111 (1996) 2 SSAR 46 (Appeal No 8/1995).
113 (Appeal No 4/2013).
114 (Appeal No 5/2012).
115 Motion No 4A/2011.
116 (2000) 2 SSAR 122 (Appeal No 18/2000).
117 (1998) 2 SSAR 84 (Appeal No 38/1996).
118 (Appeal No 4/2013).
119 (2010) 3 SSAR 180 (Appeal No 33/2009).
120 (Appeal No 14/2010).
121 (Appeal No 4/2010).
122 (2000) 4 SSAR 78 (Appeal No 23/1999).
123 (2010) 2 SSAR 196 (Appeal No 17/2009).
124 (Appeal No 36/2010).
127 (2009) 2 SSAR 187 (Appeal No 12/2009).
128 Section 121GG of the Charter.
129 [2016] SGCHF 5.
130 (2003) 4 SSAR 102 (Appeal No 9/2003).
131 (2006) 4 SSAR 126 (Appeal No 27/2005).
132 (2006) 3 SSAR 153 (Appeal No 30/2006).
133 (1998) 4 SSAR 62 (Appeal No 7/1997).
134 (Appeal No 31/2012).
135 (Appeal No 8/2013).

137 Sections 71, 71A–71C of the Charter.
139 Section 53A of the AMLA.
140 Section 35A of the AMLA, read with section 17A(2) of the Supreme Court of Judicature Act (Cap 322).
141 [2016] SGHCR 9.
142 (Appeal No 37/2011).
143 Sections 103 and 55 of the AMLA.
144 Rule 42 of the MMDR.
145 (Appeal No 16/2011).
146 Rule 11(2) of the MMDR: the committee of a person of unsound mind appointed under section 9(1) of the Mental Disorders and Treatment Act (Cap 178) or any
person related by blood or marriage to the person of unsound mind may apply to the court to represent that person of unsound mind in any proceedings in
the court to which the person of unsound mind is a party.
147 (2008) 1 SSAR 119 (Appeal No 19/2006).
148 Section 56A of the AMLA.
149 [2010] SGHC 114.
150 Section 3(2) of the Charter provides: “(2) Parts II to VI and Part X and sections 181 and 182 shall not apply to any person who is married under, or to any
marriage solemnized or registered under, the provisions of the Muslim law or any written law in Singapore or in Malaysia providing for the registration of
Muslim marriages”.
151 Part VIII, sections 68–71 of the Charter.
152 Part VII, sections 64–67 of the Charter.
155 Illegitimate children can inherit their mother’s estate even if they have other legitimate siblings.
157 [2007] SGCA 16.
158 [2015] SGCA 36.
159 Section 111(20)(a) of the AMLA.
160 [2010] SGCA 11.
161 A fatwa is a ruling or opinion or advice by an authorised Islamic body on questions of Muslim law. In Singapore, the Fatwa Committee is within MUIS. See
sections 31 and 32 of the AMLA.
162 The literal meaning is a vow and according to section 2 of the AMLA, it means an expressed vow to do any act or to dedicate property for any purpose allowed
by the Muslim law. As an instrument for estate planning, it is a written document where the testator expresses his or her intention of transferring his or her
ownership in an asset to another party within a specific time before his or her death.
163 A unique type of gift where the testator transfers his or her ownership of an asset to another party which will take effect only upon his or her death and in the
event the beneficiary dies before testator, the ownership of the asset reverts back to the testator.
164 [2004] 4 SLR(R) 756.
165 [1990] 1 SLR(R) 555.
166 Sections 49L and 49M of the Insurance Act.
167 Section 111(1) of the AMLA: “Notwithstanding anything in the provisions of the English law or in any other written law, no Muslim domiciled in Singapore
shall, after 1 July 1968, dispose of his property by will, or by any nomination under section 49M(2) of the Insurance Act (Cap 142), except in accordance with
the provisions of and subject to the restrictions imposed by the school of Muslim law professed by him.”
168 See <www.officeofthe mufti.sg/Fatwa/revocable-insurance-nomination.html>.

2016 - 10 - 17 PAGE 648

Index
Index
Abduction of children. See INTERNATIONAL CHILD ABDUCTION

Access to children. See also CUSTODY, CARE AND CONTROL OF CHILDREN
Access Evaluation Report (AER), [10.6.4], [17.3.15]
confidentiality, [11.6.22]
expert evidence, [11.7.13]
order for, [11.6.22]
reluctance of court to order, [11.6.23]
advice as to legal principles, [11.5.17], [11.5.21]
allocation of case to child track, [8.1.6]
alternative dispute resolution, exploring, [11.11.3]
application for interim order. See CUSTODY OR ACCESS INTERIM ORDERS
arrangements without court interference, [11.5.26]
assisted access, [5.2.13], [11.5.30]–[11.5.34]
Divorce Support Specialist Agency (DSSA), [5.2.13], [10.4.41], [11.5.30], [11.6.24]
interim order for, [11.6.24]
limited duration, [10.4.41], [11.5.31]
neutral location, [11.5.30]
neutral third party, assistance of, [11.5.30]
order for, [5.2.13], [5.2.17]
report by DSSA, [11.5.31], [11.7.13]
review of orders, [11.5.31]
sample order, [5.2.17]
assisted transfer, order for, [5.2.14], [11.6.24]
best interests of child, [10.1.4], [11.2.1]–[11.2.4], [11.5.12], [11.5.17], [11.5.23]
advising parents to focus on, [11.11.1], [11.11.2]
Child Representative representing, [10.6.3], [11.8.11]–[11.8.18]
denial of access where not in, [10.4.32]
persons representing, [10.6.1]–[10.6.6]
wishes of child and, [11.8.1]
breach of orders. See CUSTODY OR ACCESS ORDERS: ENFORCEMENT
child, definition, [10.3.1]–[10.3.3], [11.5.15]
Child Representative. See CHILD REPRESENTATIVE
children’s needs having priority, [11.5.23], [11.5.25]
children’s views and wishes, [11.8.1]–[11.8.18]
affidavits, [11.8.2]–[11.8.4]
best interests and, [11.8.1]
Child Representative, [10.6.3], [11.8.11]–[11.8.18]
court considering wishes of child, [11.8.1]
judicial interview, [11.8.3], [11.8.5]–[11.8.10]
reports to ascertain, [10.6.1]–[10.6.6]
concept of access, [5.2.3], [10.4.30], [10.4.31]
costs, [11.10.1]
unnecessary court intervention, [11.10.2]
counselling. See MEDIATION AND COUNSELLING
definition, [5.2.3], [10.4.30], [10.4.31]
denial by court, [10.4.32]
divorce proceedings. See also DIVORCE PROCEEDINGS INVOLVING CHILDREN
advice to clients, [11.15.12], [11.5.17]
application during. See CUSTODY OR ACCESS INTERIM ORDERS
child of the marriage, [11.5.15]
clarification of terms, [11.5.21]
conflict as to access arrangements, [11.5.10], [11.5.20]
court’s power to make, vary or discharge orders, [11.5.14]
evidence. See EVIDENCE IN CUSTODY OR ACCESS APPLICATIONS
final ancillary orders, [11.5.18]
fixing access terms, [11.5.20]
general orders pleaded, [11.5.32]
interim orders in. See CUSTODY OR ACCESS INTERIM ORDERS
mediation and counselling. See MEDIATION AND COUNSELLING
orders pleaded, [11.5.32]–[11.5.34]
relief as part of, [11.5.14]–[11.5.17], [11.5.20]–[11.5.34]
statement as to orders sought, [11.5.16], [11.5.20]
type of access, [11.5.27]–[11.5.34]
electronic access, [10.4.43]
enforcement of orders. See CUSTODY OR ACCESS ORDERS: ENFORCEMENT
examples, [5.2.17], [10.4.37]
extended family members, contact with, [11.5.24]
factors to be taken into account, [10.5.1]–[10.5.19]
conduct of parties, [10.5.4]
continuity of care, [10.5.14]–[10.5.19]
equal standing of parents, [10.5.1]–[10.5.3]
expert reports, [10.5.11]
maternal bond, [10.5.5], [10.5.13]
schedules of children, [5.2.16]
welfare of child, [10.5.5], [10.5.7]–[10.5.9]
welfare reports, [10.6.1]–[10.6.6]
wishes of parent and child, [10.5.4], [10.5.10]–[10.5.12]
Family Justice Court jurisdiction, [1.3.1], [3.1.1]
FDR Conference dealing with, [17.5.7]
fixed terms, [11.5.20]
holidays, [5.2.15], [11.5.21], [11.5.22], [11.5.23]
order allowing for variation of, [11.5.34]
form of order, [11.5.32]
Guardianship of Infants Act (GIA), under. See CUSTODY OR ACCESS ORDERS UNDER GIA
holidays, [5.2.15], [11.5.21], [11.5.22], [11.5.23]
interim orders. See CUSTODY OR ACCESS INTERIM ORDERS
interlocutory injunctions, [14.4.17]
jurisdiction, [3.3.1]–[3.3.6]
legal position, advising client on, [11.5.21]
less adversarial solutions, [11.3.1]–[11.3.5]
liberal access, [5.2.12], [10.4.34], [10.4.35]
mediation. See MEDIATION AND COUNSELLING
non-custodial parent giving care to another, [11.5.25]
non-specified access where parents amicable, [11.5.26]
orders for, [5.2.12]–[5.2.16]
enforcement. See CUSTODY OR ACCESS ORDERS: ENFORCEMENT
GIA, under. See CUSTODY OR ACCESS ORDERS UNDER GIA
interim. See CUSTODY OR ACCESS INTERIM ORDERS
part of divorce proceedings, [11.5.32]–[11.5.34]
overnight access, [5.2.15], [5.2.17]
overseas trips, [5.2.15], [10.4.38]
return of passports after, [10.4.38]
parent with care and control facilitating, [10.4.33]
personal animosity of parents, [11.5.23], [11.5.29], [11.6.1]
phone access, [10.4.43]
psychological or psychiatric assessment of child, [10.7.1]–[10.7.8], [11.7.13]
best interests of child, [10.7.4], [10.7.7]
disapproval of use, [10.7.5], [10.7.6]
leave of court, [10.7.2], [11.7.14]
application for, [11.7.15]
assessment without, [11.7.14], [11.7.15]
necessity for, [11.7.14], [11.7.15]
potential damage to child, [10.7.8]
strict compliance with rules, [10.7.4]
public holidays, [11.5.21]
reasonable access, [5.2.12], [5.2.17], [10.4.34], [10.4.35]
fixed terms, [11.5.20]
sample order, [5.2.17]
without fixed terms, [11.5.26]
reasonableness of timing, [5.2.16]
s 124 Women’s Charter, under–
interim application, [11.6.3]
part of divorce proceedings, [11.5.14]
scheduled/specified access, [5.2.15], [10.4.34], [10.4.36]
examples, [5.2.17], [10.4.37]
school holidays, [5.2.15], [11.5.21], [11.5.22], [11.5.23]
shared care and control, orders not necessary where, [11.5.19]
Skype access, [10.4.43]
specific conditions, [5.2.15], [10.4.44], [10.4.45], [11.5.33]
supervised access, [5.2.13], [10.4.39], [11.5.27]–[11.5.29]
DSSA services, [5.2.13], [10.4.41]
family violence incidents, [5.2.13]
increasing opportunity for conflict, [11.5.27]
orders for, [5.2.13], [10.4.39], [11.5.27]–[11.5.29]
parent-child bond not helped, [10.4.44], [11.5.28]
punish other party, sought to, [11.5.29]
reasonable basis, [11.5.28]
reasons for, [10.4.40]
review of orders, [10.4.42], [11.5.28]
supervised exchange order, [10.4.41]
supervised visitation order, [10.4.41]
third party supervising, [10.4.39]
terms of, [11.5.20], [11.5.21], [11.5.33]
flexibility, [11.5.34]
types of access, [10.4.34], [11.5.27]–[11.5.34]
variation of orders–
order allowing for, [11.5.34]
power of court, [11.5.14]
welfare of child paramount, [10.1.4], [10.5.7]–[10.5.9], [11.2.1]–[11.2.4], [11.5.23]
definition of welfare, [10.5.5], [10.5.9]
Adoption of children
legislation, [11.1.1]
Muslims, [20.14.4]
adopted father cannot be wali, [20.14.5]
inheritance law, [20.14.5], [20.15.4], [20.15.6]
law applicable to, [20.14.4]
non-parents non-guardians, by, [10.2.7]
Adultery
divorce, ground for, [2.4.3]–[2.4.9]
act of, [2.4.4]
agreement as to facts, [2.4.4]
before 3 years of marriage, [2.2.2]
consensual sexual intercourse, [2.4.4]
costs of action, [15.2.13], [15.2.14]
establishing, [2.4.3]
exceptional depravity, [2.2.2]
intervention by third parties, [2.4.9]
intolerable to live with defendant, [2.4.7], [2.4.8]
lack of documentary evidence, [2.4.6]
period of living with defendant after, [2.4.8]
standard of proof, [2.4.5]
unreasonable behaviour, proceedings based on, [2.4.6]
judicial separation as proof of, [2.7.4]
Affidavit of assets and means (AOM)
directions at case conference, [8.1.15]
discovery where insufficient disclosure, [8.8.8]
divorce proceedings, [8.8.2]–[8.8.8]
documents to be exhibited with, [8.8.3]
exchanging, [8.8.2], [8.8.4]
family violence applications–
exchange of, [13.7.29]
facts relevant to application, [13.7.29]
form, [13.7.29]
service, proof of, [13.7.20], [13.7.21]
filing, [8.8.2]
full and frank disclosure, duty of, [8.8.7]
insufficient disclosure, [8.8.8]
interim judgment, filing after, [8.8.2]
interrogatories where insufficient disclosure, [8.8.8]
leave to file further affidavit, [8.8.5], [8.8.6]
reply by other party, [8.8.4]
Affidavits
assets and means. See AFFIDAVIT OF ASSETS AND MEANS
custody or access applications. See EVIDENCE IN CUSTODY OR ACCESS APPLICATIONS
directions at case conference, [8.1.15], [8.1.17]
divorce application, [8.3.3]
service on defendant, [8.3.4]
evidence-in-chief, of–
contested divorce proceedings, [8.6.2]
uncontested divorce proceedings, [8.5.6], [8.5.9]
financial relief after foreign proceedings, application for, [8.3.7]
FJC directions in relation to, [8.1.4]
injunction, application for, [9.6.5]
variation of maintenance orders, application for, [7.6.1]
grounds, setting out, [7.6.2]
variation of trust settlement, application for, [9.6.10]
Alternative dispute resolution
child-centric approach, [11.3.2], [11.5.5], [11.5.7], [11.5.12], [17.2.2]
counselling and mediation. See MEDIATION AND COUNSELLING
diversified range of options, [17.2.5]
essential role of, [17.2.3]
evolution in Singapore, [17.3.1]–[17.3.39], [17.8.1], [17.8.2]
family and matrimonial disputes, [17.1.1], [17.2.1]
Family Justice Courts, [17.1.1]–[17.1.4]
CAPS. See COUNSELLING AND PSYCHOLOGICAL SERVICES (CAPS)
cornerstone of case management, [17.2.1]
in-house officers, conducted by, [17.3.2]
making best use of, [17.1.4]
multi-disciplinary approach, [17.1.3], [17.4.21]–[17.4.25], [17.8.4]
psychological and sociological aspects, dealing with, [17.1.2]
schemes introduced by, [17.3.1]
schemes supported by, [17.3.31]
future of, [17.7.1]–[17.7.13]
integral part of dispute resolution process, [17.2.4]
shift from adversarial litigation to, [15.2.17], [17.1.1], [17.2.1]–[17.2.5]
benefits, [15.2.18], [15.2.19], [17.4.3]–[17.4.20]
costs implications, [15.2.19], [17.4.19], [17.4.20]
gradual process, [17.2.2]
Ancillary relief after termination of marriage
access to children. See ACCESS TO CHILDREN
adjournment to chambers, [8.8.1]
affidavit of assets and means (AOM), [8.8.2]–[8.8.8]
discovery where insufficient disclosure, [8.8.8]
documents to be exhibited with, [8.8.3]
exchanging, [8.8.2], [8.8.4]
filing, [8.8.2]
full and frank disclosure, duty of, [8.8.7]
insufficient disclosure, [8.8.8]
interim judgment, filing after, [8.8.2]
interrogatories where insufficient disclosure, [8.8.8]
leave to file further affidavit, [8.8.5], [8.8.6]
reply by other party, [8.8.4]
children–
access. See ACCESS TO CHILDREN
custody. See CUSTODY, CARE AND CONTROL OF CHILDREN
maintenance. See MAINTENANCE OF CHILDREN
orders relating to welfare of, [5.1.3]
choice of law, [18.4.30]–[18.4.33]
costs, [5.9.1]–[5.9.10], [15.2.8]
case-by-case basis, [5.9.8]
considerations, [5.9.3], [5.9.4]
discretion of court, [5.9.2]
follow the event, [5.9.2], [5.9.6]
general principles, [5.9.2]–[5.9.4]
interim judgment for divorce, [5.9.5]–[5.9.10]
no order for costs, [5.9.10]
part of divorce hearing, [5.9.7]
power of FJC, [5.9.1]
separate award on merits, [5.9.9]
custody of children. See CUSTODY, CARE AND CONTROL OF CHILDREN
discovery of documents, [8.8.10]–[8.8.18]
affidavit ordered by court, [8.8.16]
application for, [8.8.13], [8.8.14]
case conference, discussion at, [8.8.15]
continuing duty, [8.8.18]
failure to comply with orders on, [8.8.26]–[8.8.28]
Family Justice Rules, [8.8.9]
insufficient disclosure in affidavits, [8.8.8]
interim judgment, order before granting of, [8.8.17]
response to request, [8.8.11]
application where not forthcoming, [8.8.13]
time for providing documents, [8.8.11]
timelines given by court, [8.8.12]
written request, service of, [8.8.10]
division of assets. See DIVISION OF MATRIMONIAL ASSETS
divorce granted overseas. See FINANCIAL RELIEF ON FOREIGN DIVORCE
fact and position sheet, [8.8.29]
Family Court orders, [5.1.2]
Family Justice Court orders, [4.1.1]
financial relief, [5.1.7], [5.1.8]
foreign divorce. See FINANCIAL RELIEF ON FOREIGN DIVORCE
hearing of, [8.8.29]–[8.8.33]
chambers, in, [8.8.31]
cross-examination of witnesses, [8.8.32]
order at end of, [8.8.33]
submissions, [8.8.30], [8.8.31]
High Court, transfer to, [5.1.2]
injunctions. See INJUNCTIONS
interim judgment–
consent order in, [8.9.1]
filing affidavit of assets and means after, [8.8.2]
not resolved before, [8.8.1], [8.9.2]
interrogatories, [8.8.19]–[8.8.28]
further and better particulars, request for, [8.8.25]
insufficient answers, [8.8.25]
order for party to answer, [8.8.23]
response not forthcoming, [8.8.21]
time for response, [8.8.19]
judge-led approach, [8.1.1], [8.1.2]
jurisdiction to make orders, [4.1.2]–[4.1.5]
maintenance–
children. See MAINTENANCE OF CHILDREN
ex-spouse. See MAINTENANCE OF EX-SPOUSE
mediation, orders following, [5.8.1]–[5.8.4]
orders by FJC, [4.1.1], [5.1.2], [8.8.33]
foreign proceedings, [4.1.4]
jurisdiction to make, [4.1.2]–[4.1.5]
mediation, following, [5.8.1]–[5.8.4]
overseas divorce or separation, [4.1.4], [8.3.5]
financial relief, [5.1.8], [8.3.5]–[8.3.9]
powers of court, [5.1.2]
setting aside orders, [3.4.28]–[3.4.44]
children’s issues, [3.4.29]
consent orders, [3.4.32], [3.4.42]
court’s power, [3.4.28]
default judgment, [3.4.33]–[3.4.40]
division of assets, [3.4.28], [3.4.32]–[3.4.44]
maintenance of children, [3.4.31]
maintenance of wife or ex-wife, [3.4.30]
miscarriage of justice, [3.4.40]
nature of orders, [3.4.32]
principles of law, [3.4.36], [3.4.41], [3.4.43]
signature of documents, [5.7.1]–[5.7.4]
delay or difficulty, [5.7.3]
order for Registrar of FJC to sign, [5.7.2]–[5.7.4]
party neglecting or refusing to sign, [5.7.1]
submissions from parties, [8.8.30], [8.8.31]
Syariah Court, divorce in, [4.1.5]
what is, [5.1.1]
Annulment. See NULLITY OF MARRIAGE
Ante-nuptial agreement. See PRENUPTIAL AGREEMENT
Anti-suit injunctions
definition, [14.4.1]
foreign divorce proceedings, [14.4.1]–[14.4.3], [18.4.7]
interests of justice, [14.4.2]
matrimonial cases, [14.4.1]–[14.4.3]
principles, [14.4.2]
requirements for grant of, [14.4.1], [14.4.2]
Anton Piller orders
abuse, potential for, [14.3.8]
business material, [14.3.9]
effect of execution on, [14.3.9]
unfair and wrongful commercial advantage, [14.3.8]
case named after, [14.3.1]
documents, delivery up, [14.3.3]
draconian nature, [14.3.7], [14.3.10]
effects, [14.3.3], [14.3.7]–[14.3.9]
ex parte order, [14.3.3], [14.3.4]
respondent not having opportunity to be heard, [14.3.4], [14.3.8]
exceptional cases, grant only in, [14.3.7]
extreme care in awarding, [14.3.10]
harm likely to be caused, [14.3.4]
whether out of proportion to object of order, [14.3.5]
interests of justice, essential in, [14.3.2], [14.3.4]
invasion of privacy, [14.3.8], [14.3.10]
no alternative way of ensuring justice, [14.3.2]
principles for grant of, [14.3.5]
real possibility of destruction of documents, [14.3.5]
search for and seizure of documents, [14.3.1]
serious damage likely to plaintiff, [14.3.5]
strong prima facie case, [14.3.5], [14.3.6]
undertaking as to damages, [14.3.11]
when may be granted, [14.3.2]
Appeal
Family Division of High Court, to, [1.4.5]
composition of court, [1.4.5]
Family or Youth Court, from, [1.4.5]
Tribunal for the Maintenance of Parents, form, [1.4.5]
interim maintenance order, against, [11.4.2]
legal aid, fresh application for, [16.6.2]
Muslim proceedings, [20.12.1]–[20.12.3]
Appeal Board, to, [20.1.4], [20.12.1]–[20.12.3]
finality of decision on, [20.13.1]
fresh evidence, [20.12.2]
interlocutory orders, for, [20.12.3]
ROMM decisions, [20.12.1]
Singapore Syariah Appeals Report, [20.16.1], [20.16.2]
Syariah Court, from, [20.1.4], [20.12.1]
Assisted access. See also ACCESS TO CHILDREN
Divorce Support Specialist Agency (DSSA), [5.2.13], [10.4.41], [11.5.30], [11.6.24]
interim order for, [11.6.24]
neutral location, [11.5.30]
neutral third party, assistance of, [11.5.30]
order for, [5.2.13], [11.5.30]–[11.5.34]
example, [5.2.17]
report by DSSA, [11.5.31], [11.7.13]
review of orders, [11.5.31]
Assisted transfer
order for, [5.2.14], [11.6.24]
Australian law
child maintenance, [19.4.12]–[19.4.16]
child support agreements, [19.4.15]
child support assessment, [19.4.13]
departure from formulas, [19.4.15]
formulas for, [19.4.14]
Child Support Scheme, [19.4.13]
duty of parents, [19.4.12]
Family Law Act, order under, [19.4.16]
variety of arrangements, [19.4.13]
division of matrimonial assets, [19.3.8]–[19.3.12]
agreement between parties, [19.3.12]
avoiding further proceedings, [19.3.8]
binding financial arrangements not made, [19.3.9]
clean break principle, [19.3.8]
contributions by each spouse, [19.3.11]
gifts and inheritances, [19.3.10]
holistic approach, [19.3.11]
just and equitable, [19.3.9]
prenuptial/postnuptial agreements, [19.3.12]
property owned before marriage, [19.3.10]
property settlement proceedings, [19.3.9]
separation agreements, [19.3.12]
maintenance, [19.4.8]–[19.4.16]
children, [19.4.12]–[19.4.16]
factors to be taken into account, [19.4.10]
interim orders, [19.4.11]
legislation governing, [19.4.8]
periodic orders, [19.4.11]
power of court to order, [19.4.8]
spouse, [19.4.8]–[19.4.11]
matrimonial finance, [19.1.4]
property held during marriage, [19.2.7]–[19.2.8]
general rules of property, [19.2.8]
marriage not altering rights, [19.2.7]
no power to intervene, [19.2.8]
separation of property, [19.2.7]
Bankruptcy
maintenance order, variation of, [7.4.15], [7.4.21], [7.4.22]
Case conferences
children involved, [8.1.13]
children not involved, [8.1.14]
directions at–
affidavits of assets and means, [8.1.15]
discovery and interrogatories, [8.1.15], [8.8.12]
Family Dispute Resolution Conference, to attend, [8.1.13]
interlocutory applications filed, where, [8.1.17]
mediation, to attend, [8.1.18]
summary of relevant information, to file, [8.1.16]
interim judgment, after, [8.1.15]
interlocutory applications filed, where, [8.1.17]
lawyer’s role at, [8.1.11]
memorandum of appearance filed, where, [8.1.13]
principal solicitors–
attendance at, [8.1.12]
preparation for, [8.1.12]
purpose, [8.1.10]
Case management
ADR. See ALTERNATIVE DISPUTE RESOLUTION
allocation of cases in FJC–
assigned judge, to, [8.1.8], [8.1.9]
child track, [8.1.6]
high conflict track, [8.1.6]
international track, [8.1.6]
one or more tracks, to, [8.1.7]
possible tracks, [8.1.6]
violence track, [8.1.6]
case conferences. See CASE CONFERENCES
judge-led approach, [1.9.2], [1.9.3], [8.1.1]–[8.1.18]
Central Provident Fund (CPF) accounts
CPF Board, order requesting information from, [2.1.7]
matrimonial assets, as, [4.2.50], [5.6.2]
charging orders, [5.6.19]
injunction against removal or disposal, [5.6.20]
Muslim divorce, [20.7.3]–[20.7.5]
division of assets, [20.7.17]–[20.7.21], [20.7.30]
orders relating to, [5.6.16]–[5.6.21]
division of assets, [5.6.21]
maintenance not included, [5.6.21]
specific wording, [5.6.17], [5.6.19]
specified amount, [5.6.18]
Muslim distributions of estates, [20.15.18]–[20.15.21]
absence of nomination, [20.15.18]
CPF nomination, [20.15.19]
estate planning, [20.15.33]
Fatwa 2010, [20.15.21]
legal position, [20.15.20]
MUIS Fatwa, [20.15.19]
Changing surname of child
mother unilaterally changing, [10.10.1]–[10.10.3]
Child abduction. See INTERNATIONAL CHILD ABDUCTION
Child Focused Resolution Centre (CFRC)
Family Justice Courts, part of, [17.3.20]
formation in 2011, [17.3.20]
mandatory counselling and mediation programme, [11.3.1], [11.5.1]–[11.5.4], [15.2.17], [17.3.21]
CFRC Conference, [17.3.23]
children’s care, access and maintenance, [17.3.23]
co-mediation stage, [17.3.25]
counselling sessions, [17.3.24]
court direction to attend, [11.5.2]
dispensing with attendance, [11.5.3]
divorce where at least one minor child, [11.3.1], [11.5.1], [17.3.21]
early stage of contested proceedings, [11.5.4], [17.3.23]
mediation stage, [17.3.25]
processes applied to other cases, [17.3.26]
purpose, [11.5.4], [17.3.22]
success of, [17.3.26]
timing of attendance, [11.5.2], [11.5.4]
merger with FRC into FDR Division, [17.3.7], [17.3.27], [17.3.28]
scheme introduced by FJC, [17.3.1]
Volunteer Mediator scheme, [17.3.32]
Child in Between programme
counselling in divorce cases, [11.3.3]
Child-Inclusive Mediation and Counselling (CIMC) scheme
consultation with children, [11.5.9], [17.7.8]
FDR Conference stage, at, [17.7.9]
FDR Programme, part of, [17.7.8]
introduction of, [2.1.4], [17.7.8]
objectives, [11.5.9], [17.7.8]
success of pilot study, [17.7.9], [17.7.10]
Child maintenance. See MAINTENANCE OF CHILDREN
Child Protection Services (CPS)
family conferences, [17.3.19]
Child Representative
advising child on developments, [11.8.13]
application for appointment of, [11.8.11]
other reliefs, inclusion with, [11.8.11]
summons under divorce suit, [11.8.11]
appointment of, [1.9.4], [1.9.5], [10.6.3], [11.8.11]
best interests of child–
interview to understand, [11.8.13], [11.8.14]
proactive in advancing, [11.8.15]
representing, [10.6.3], [11.8.11]–[11.18.14], [15.2.18]
conference with parents, [11.8.14]
costs, [11.8.18], [15.2.18]
custody or access applications, [11.8.11]–[11.8.18]
divorce proceedings, [11.5.8], [11.8.11]
duties and powers, [11.8.13]
Family Justice Courts, [1.9.4]
independent legal practitioner, [11.8.12]
interview with child, [11.8.13], [11.8.14]
interview with relatives and teachers, [11.8.14]
parents interests not represented by, [11.8.16]
parents not to ask advice of, [11.8.16]
parents’ role not affected, [1.9.5]
remuneration, [11.8.18], [15.2.18]
report to court, [10.6.4], [11.8.17]
role, [1.9.4], [11.8.12], [11.8.13]
end of, [11.8.17]
neutrality of, [11.8.12], [11.8.18]
visits to home and school, [11.8.14]
Child support. See MAINTENANCE OF CHILDREN
Children. See also MINORS
adoption. See ADOPTION OF CHILDREN
age of majority, [5.3.3]
applications involving, [11.1.1], [12.1.1], [12.5.1]
abduction. See INTERNATIONAL CHILD ABDUCTION
best interests of child, [10.1.4], [11.2.1]–[11.2.4]
costs, [11.10.1], [11.10.2]
dismissal, costs on, [11.4.2]
divorce. See DIVORCE PROCEEDINGS INVOLVING CHILDREN
factors to be considered, [10.5.1]–[10.5.19], [11.2.2]
frivolous or unnecessary, [11.4.1]
“golden thread”, [11.2.1]–[11.2.4], [12.5.1]
implications and consequences, [11.4.1], [11.4.2]
jurisdiction to hear, [3.3.1]–[3.3.6]
legislation, [11.1.1]
minor children, [11.1.2]
orders court may make, [10.4.1]
parent-child relationship not affected, [11.2.3]
practice and procedure, [11.1.2]
welfare of child paramount, [10.1.4], [11.2.1]–[11.2.4], [12.5.1]
wishes of child, [11.2.2]
wishes of parents, [11.2.2], [11.2.3]
care of. See CUSTODY, CARE AND CONTROL OF CHILDREN
changing surname of, [10.10.1]–[10.10.3]
child of the marriage, definition, [10.3.2]
definition of child, [5.2.1], [10.3.1]–[10.3.3]
division of matrimonial assets–
assets used or enjoyed by, [4.2.16]
needs of, [4.2.55], [4.2.56]
divorce proceedings involving. See DIVORCE PROCEEDINGS INVOLVING CHILDREN
Family Justice Courts focus on interests on, [10.1.4]
family violence. See FAMILY VIOLENCE
governing legislation, [10.2.1]–[10.2.7]
law relating to, [10.1.1]–[10.1.5]
legitimacy. See LEGITIMACY OF CHILDREN
mediation, involvement in. See MEDIATION AND COUNSELLING
Muslim divorce. See MUSLIM DIVORCE: CUSTODY OF CHILDREN
orders court can make regarding, [10.4.1]
passports–
injunction to return, [14.4.17]
return after overseas access, [10.4.38]
protection from traumatic effects of divorce, [10.1.3]
removal from Singapore. See REMOVAL OF CHILDREN FROM SINGAPORE
rights in the family, [2.1.5]
surname, changing, [10.10.1]–[10.10.3]
wardship. See WARDSHIP
welfare, orders relating to, [5.1.3]
Women’s Charter provisions, [10.1.4], [10.2.3]
wrongful removal, [12.1.1]
foreign jurisdiction, from. See HAGUE APPLICATION
Singapore, from. See REMOVAL OF CHILDREN FROM SINGAPORE
Chinese customary marriage
cut-off date, [2.9.1], [2.9.2]
intestacy case, [2.9.3]
primary and secondary wives, [2.9.3]
recognition in law, [2.9.3]
validity, [2.9.1]–[2.9.3]
void after cut-off date, [2.9.2]
Choice of law
ancillary relief, [18.4.30]–[18.4.33]
general rule, [18.4.31]
same jurisdiction as divorce, [18.4.31]–[18.4.33]
divorce, [18.4.18]–[18.4.29]
ancillary relief, [18.4.30]–[18.4.33]
appropriate common law choice of law, [18.4.26]
division of property, approach to, [18.4.21]
forum non conveniens, [18.4.18]–[18.4.25]
general approach of common law, [18.4.27]
immigration policies, consideration of, [18.4.23]
lex fori, [18.4.18], [18.4.26], [18.4.28], [18.4.28]
matrimonial laws, consideration of, [18.4.20]–[18.4.22]
more beneficial forum, [18.4.19]–[18.4.24]
strategically more appropriate forum, [18.4.20]
welfare of child, [18.4.23]
nullity proceedings, [18.4.27], [18.4.28]
rules, [18.1.3]
validity of marriage, [18.3.2]
essential validity, [18.3.8]–[18.3.18]
formal validity, [18.3.3]–[18.3.7]
Collaborative Family Practice (CFP)
CFP lawyers not to represent parties in future litigation, [17.3.37]
commencement of scheme, [17.3.36]
interest-based approach to negotiations, [17.3.36]
private family mediation, [17.7.6], [17.7.7]
scheme supported by FJC, [17.3.31]
settlement of matter through, [17.3.38]
simplified uncontested divorce proceedings, [1.9.8], [17.3.38]
specially trained CFP lawyers, [17.3.37]
Commissioner for oaths
registrar, deputy or assistant registrar as, [1.4.9]
Committal order
custody or access order, breach of, [11.9.2]
contempt, [11.9.9], [11.9.11]
costs, [11.10.1], [11.10.2]
evidence at hearing, [11.9.6]
ex parte application for leave, [11.9.3], [11.9.4]
service of order, details of, [11.9.4]
statement and affidavit, [11.9.4]
hearing of application, [11.9.6]
importance of enforcing orders, [11.9.11]
inter partes application, [11.9.3], [11.9.5]
affidavit, [11.9.5]
time limit, [11.9.5]
penal notice, endorsement of order with, [11.9.8]
form, [11.9.8], 11.D.4
service of endorsed order, [11.9.8], [11.9.9]
prerequisites, [11.9.9]
remedy of last resort, [11.9.2], [11.9.11], [11.9.13]
repeated refusal to comply, [11.9.12]
strict adherence to procedure, [11.9.3], [11.9.7]
Committee for Family Justice
recommendation for FJC, [1.1.1]
Community Justice Centres
Court Friend scheme, [1.9.6]
Conflict of laws
choice of law rules. See CHOICE OF LAW
connecting factors, [18.2.1]–[18.2.25]
domicile. See DOMICILE
residence. See RESIDENCE
cross-border family and matrimonial disputes, [18.1.1]
choice of law rules, [18.1.3]
questions dealt with by rules, [18.1.2]
domestic law rules, [18.1.2]
foreign divorces–
financial relief. See FINANCIAL RELIEF ON FOREIGN DIVORCE
recognition of, [18.5.2]–[18.5.4]
foreign prenuptial agreements, [6.3.2]
forum non conveniens. See FORUM NON CONVENIENS
maintenance orders. See MAINTENANCE: CONFLICT OF LAWS
marriage, validity of. See VALIDITY OF MARRIAGE
matrimonial jurisdiction. See JURISDICTION IN MATRIMONIAL PROCEEDINGS
questions dealt with by rules, [18.1.2]
rules, [18.1.2], [18.1.3]
validity of marriage. See VALIDITY OF MARRIAGE
Women’s Charter, [18.1.3]
application, [18.3.19]–[18.3.26]
Constructive trust
common intention constructive trust, [9.7.19]–[9.7.21]
ascertaining beneficial interests, [9.7.20]
contributions to purchase price, [9.7.19]
difficulties with, [9.7.21]
joint tenancies, [9.7.20]
non-financial contributions, [9.7.21]
operation of law, through, [9.7.19]
resulting trust compared, [9.7.4], [9.7.5], [9.7.8], [9.7.10], [9.7.20]
divorce and, [9.7.19]–[9.7.26]
implied trust, [9.1.7]
property ownership during marriage, [19.2.6]
remedial constructive trust, [9.7.22]–[9.7.26]
assets undisclosed in division of matrimonial assets, [9.7.23]–[9.7.25]
dishonest intent, whether, [9.7.24], [9.7.26]
fraudulent misrepresentation, [9.7.23], [9.7.26]
settlement agreement and, [9.7.26]
unconscionable conduct, [9.1.7], [9.7.25]
unjust enrichment, preventing, [9.7.22], [9.7.25]
when arises, [9.1.7], [9.7.19]
Costs
ancillary matters, [5.9.1]–[5.9.10], [15.2.8]
case-by-case basis, [5.9.8]
follow the event, [5.9.2], [5.9.6]
interim judgment for divorce, [5.9.5]–[5.9.10]
no order for costs, [5.9.10]
part of divorce hearing, [5.9.7]
power of FJC, [5.9.1]
separate award on merits, [5.9.9]
Calderbank letters, [15.2.21]
Child Representative, remuneration of, [11.8.18], [15.2.18]
children, applications involving, [11.10.1], [15.2.12]
complicated nature of, [15.2.12]
interests of children, [15.2.10]
conduct of parties, consideration of, [15.3.9]
English approach [15.2.22], [15.2.26]
misconduct or neglect, [15.3.11]
costs here and below, [15.4.1]
costs in any event, [15.4.1]
costs in the cause/application, [15.4.1]
costs reserved, [15.4.1]
costs thrown away, [15.4.1]
current system, [15.2.6]
defendant’s costs in the cause, [15.4.1]
definition, [15.3.1], [15.4.1]
discretion of court, [5.9.2], [15.2.2], [15.2.21], [15.3.3]
considerations, [5.9.3], [5.9.4], [15.3.9]
ADR, shift towards, [15.2.17]–[15.2.19]
adultery cases, [15.2.13], [15.2.14]
ancillary matters, [5.9.1]–[5.9.10], [15.2.8]
children’s interests, [15.2.10], [15.2.12]
conduct of parties, [15.2.22], [15.2.26], [15.3.9]
desertion case, [15.2.15]
extreme cases, [15.2.13], [15.2.14]
interim judgment, [15.2.5]
mediation, shift towards, [15.2.17]–[15.2.19]
minimising acrimony and bitterness, [15.2.9], [15.2.12]
“no fault” regime, [15.2.7]
uncontested, [15.2.6]
“winner/loser” concept, [15.2.7], [15.2.11], [15.2.23]
English approach, [15.2.22]–[15.2.26]
child as winner, [15.2.23]
conduct of parties, [15.2.22], [15.2.26]
general rule of no costs order, [15.2.22], [15.2.26]
hopeless application, [15.2.24]
reasonableness of litigation, [15.2.24]
refusal to pursue mediation, [15.2.25]
fairest allocation, [15.2.2]
Family Division of High Court, taxable in, [15.3.2]
Family Justice Courts, [5.9.1], [15.3.3]
Family Justice Rules 2014, [15.2.2], [15.2.3], [15.3.1]–[15.3.37]
application, [15.3.2]
costs to follow the event, [15.3.4]–[15.3.7]
definition of costs, [15.3.1]
discretion of court, [15.2.2], [15.3.3]
taxation of costs, [15.3.16]–[15.3.37]
types of costs, [15.4.1]
fixed costs, [15.4.2]
taxation instead of, [15.4.3]
follow the event, [5.9.2], [11.10.1], [15.2.1], [15.2.2]
amendment without leave, [15.3.5]
ancillary matters, [5.9.6]
application of order, [15.3.5]
cost-shifting rule, [15.2.1], [15.2.16]
court to justify departure from rule, [15.3.7]
discontinuance of counterclaim, [15.3.5]
English approach, [15.2.22]–[15.2.26]
exceptional circumstances, [15.3.6]
extension of time, application for, [15.3.5]
Family Justice Rules, [15.2.2], [15.3.4]–[15.3.7]
general rule, [5.9.2], [11.10.1], [15.2.2], [15.3.6]
Hong Kong approach, [15.2.20]–[15.2.22]
notice to admit facts not complied with, [15.3.5]
other jurisdictions, position in, [15.2.20]–[15.2.26]
“winner/loser” concept, [15.2.7], [15.2.11], [15.2.23]
indemnity basis, [15.3.28]–[15.3.30], [15.4.5]
trustee, costs payable to, [15.3.34]
interlocutory proceedings, order in, [15.4.1]
judgment for costs without order, [15.3.14]
appeal deemed withdrawn, [15.3.15]
signing, [15.3.14]
legally aided person, [16.12.6]–[16.12.10]
Assigned Solicitor’s costs, [16.18.4]–[16.18.9]
cancellation of aid, effect, [16.14.3]
fraud or misrepresentation by, [16.12.7]
generally not liable, [16.12.6]
incurred after grant of aid, [16.18.7], [16.18.9]
incurred before grant of aid, [16.18.8]
nominal costs, [16.12.9]
payment to Director, [16.13.3], [16.13.4]
taxation of, [16.12.8]
cancellation of aid, [16.14.3]
unreasonable or improper application, [16.12.9], [16.12.10]
when liable for, [16.12.7]–[16.2.10]
litigant in person, [15.3.22]
matrimonial assets, use of, [15.2.16]
matrimonial proceedings, [15.1.1]
matters to be taken into account, [5.9.3], [5.9.4], [15.3.9]
mediation–
implications of shift towards, [15.2.17]–[15.2.19]
refusal to pursue, [15.2.25]
misconduct or neglect, [15.3.11]
more than two solicitors, [15.3.23]
order for, [15.4.1]
overview, [15.1.1]
plaintiff’s costs in the cause, [15.4.1]
reserved, [15.4.1]
solicitor’s personal liability, [15.3.13]
stage of proceedings for dealing with, [15.3.8]
standard basis, [15.3.28], [15.3.29], [15.4.4]
taxation of–
adjournment of proceedings, [15.3.26]
basis of, [15.3.28]–[15.3.30], [15.4.4]–[15.4.5]
bill of costs comprised in account, [15.3.21]
certificate of registrar, [15.3.35]
conclusive as to amount, [15.3.36]
costs of taxation proceedings, [15.3.12]
costs payable out of fund, [15.3.27], [15.3.28]
costs payable to solicitor by client, [15.3.31]
court order for, [15.4.3]
delivery of bills, [15.3.25]
directions as to parties to attend, [15.3.27]
extension of time, [15.3.18]
fixed costs, instead of, [15.4.3]
indemnity basis, [15.3.28]–[15.3.30], [15.4.5]
interim certificates, [15.3.19]
litigant in person, [15.3.22]
minor, costs recovered by, [15.3.32]
non-attendance of party, [15.3.26]
notice of time appointed for, [15.3.24]
party liable to be paid and to pay, [15.3.20]
reasonably incurred, [15.3.29], [15.3.30]
registrar’s powers, [15.3.16], [15.3.17], [15.3.27]
review, application for, [15.3.37]
standard basis, [15.3.28], [15.3.29], [15.4.4]
trustee, costs payable to, [15.3.33], [15.3.34]
unreasonably incurred, [15.3.30], [15.3.31]
types of, [15.4.1]
unnecessarily or improperly incurred, [15.2.11], [15.3.13]
party’s liability, [15.2.11]
solicitor’s personal liability, [15.3.13]
unnecessarily prolonged case, [15.2.12]
unnecessary claims or issues, [15.3.10]
Counselling
children, cases involving. See MEDIATION AND COUNSELLING
Family Dispute Resolution. See FAMILY DISPUTE RESOLUTION (FDR)
family violence cases–
applicant meeting with counsellor, [13.7.10], [13.7.11]
arrangements to attend counselling, [13.3.11]
CAPS role, [17.3.16]
combination of restraint and counselling options, [13.1.4]
counselling order, [13.3.10]–[13.3.14]
application. See FAMILY VIOLENCE APPLICATIONS
review by court, [13.3.12], [13.3.13]
sample, [13.3.14], 13.D.2
when court may grant, [13.5.4]
family conferencing, [13.7.26], [17.3.16]
mentions stage, [13.7.25], [13.7.26]
pre-trial directions after, [13.7.27]
referrals to help services, [13.7.11], [17.3.16]
resolution of case after, [13.7.27]
risk assessment, [17.3.16]
FDR Programme. See FAMILY DISPUTE RESOLUTION (FDR)
mediation with. See MEDIATION AND COUNSELLING
Counselling and Psychological Services (CAPS)
access evaluation report (AER), [11.6.22], [17.3.15]
child-focused and child-inclusive models, [17.3.14]
conciliation counselling, [17.3.13], [17.3.14]
court counsellors, [17.3.13]
counselling role, [17.3.14]
evaluation role, [17.3.13], [17.3.15]
Custody Evaluation Report (CER), [11.6.22], [17.3.15]
custody evaluation services, [11.6.22], [17.3.13]
divorce cases, counselling in, [17.3.14]
evaluation role, [17.3.13], [17.3.15]
Family Justice Courts, part of, [17.1.3]
family violence cases, [17.3.13], [17.3.16]
personal protection order applications, [17.3.16]
formation of, [17.3.12]
holistic solutions, [17.3.12]
merger into FDR Division, [17.3.28]
role in matrimonial and family disputes, [17.3.11]
specific issues report (SIR), [17.3.15]
Youth Courts, role in, [17.3.13], [17.3.17]
Court Friend
role, [1.9.6]
unrepresented litigants, [1.9.6]
Criminal proceedings
Family Division of High Court, appeals to, [1.4.5]
Youth Court jurisdiction, [1.4.8]
Cross-border family disputes. See INTERNATIONAL FAMILY DISPUTES
Custody, care and control of children. See also ACCESS TO CHILDREN
advice as to applicable legal principles, [11.5.17]
allocation of case to child track, [8.1.6]
application for interim order. See CUSTODY OR ACCESS INTERIM ORDERS
best interests of child, [10.1.4], [11.2.1]–[11.2.4], [11.5.12], [11.5.17], [11.8.1]
continuity of care, [10.5.15], [10.5.19]
persons representing, [10.6.1]–[10.6.6]
prenuptial agreement, [6.7.1], [6.7.3], [6.9.2]
“bird-nest” living arrangement, [5.2.9]
breach of orders. See CUSTODY OR ACCESS ORDERS: ENFORCEMENT
care and control, [5.2.3], [5.2.9], [10.4.6], [10.4.22]–[10.4.29]
apportionment of time between parents, [10.4.26]
“bird-nest” living arrangement, [5.2.9]
concept of, [5.2.3], [10.4.6], [10.4.7], [10.4.22]
cooperation between parties, [10.4.28]
day-to-day decision-making, [10.4.6], [10.4.7]
joint/split care, [10.4.26]–[10.4.28], [11.5.19]
orders, [5.2.9]–[5.2.11], [10.4.24]–[10.4.29]
parents with whom child resides, [10.4.7], [10.4.22]
shared care and control, [5.2.10], [5.2.11], [11.5.19]
siblings generally not separated, [10.4.29]
sole care and control, [10.4.24], [11.5.19]
child, definition, [5.2.1], [10.3.1]–[10.3.3], [11.5.15]
affidavits, [11.8.2]–[11.8.4]
reports to ascertain, [10.6.1]–[10.6.6]
concepts, [10.4.4]–[10.4.8]
care and control, [5.2.3], [10.4.6], [10.4.7]
custody, [5.2.3], [10.4.6]
lack of statutory definition, [10.4.5]
costs, [11.10.1]
court’s power to make orders, [11.5.14]
custody orders, [5.2.1]–[5.2.8], [10.4.8]
conditions, [5.2.6]
definition of custody, [5.2.3]
issues requiring consultation, [5.2.7]
joint custody, [5.2.4], [10.4.12]–[10.4.15], [11.5.18]
long-term decisions, [5.2.3], [10.4.6], [10.4.8]
removal of child requiring consent, [5.2.8], [10.4.17]
sole custody, [5.2.5], [10.4.9]–[10.4.11], [11.5.18]
welfare of child paramount, [5.2.2]
definition, [10.4.4]–[10.4.8]
distinction between concepts, [11.5.17]
divorce proceedings. See also DIVORCE PROCEEDINGS INVOLVING CHILDREN
advice to clients, [11.15.12], [11.5.17]
child of the marriage, [11.5.15]
court’s power to make, vary or discharge orders, [11.5.14]
defence stating orders sought, [11.5.16]
disagreement as to care arrangements, [11.5.10], [11.6.1]
general orders pleaded, [11.5.32]
interim orders in. See CUSTODY OR ACCESS INTERIM ORDERS
orders pleaded, [11.5.32]–[11.5.34]
personal animosity of parents, [11.6.1]
relief as part of, [11.5.14]–[11.5.19]
statement of claim stating orders sought, [11.5.16]
enforcement of orders. See CUSTODY OR ACCESS ORDERS: ENFORCEMENT
conduct of parties, [10.5.4]
expert reports, [10.5.11], [10.6.1]–[10.7.8]
maternal bond, [10.5.5], [10.5.13]
security and stability of parties, [10.5.4]
siblings not being separated, [10.5.4]
welfare of child, [5.2.2], [10.5.5], [10.5.7]–[10.5.9]
wishes of parent and child, [10.5.4], [10.5.10]–[10.5.12]
young infant’s need of mother, [10.5.4], [10.5.13]
form of order, [11.5.32]
forum non conveniens, [3.5.5], [18.4.15]–[18.4.17]
welfare of child, [3.5.5], [3.5.6], [18.4.16]
Guardianship of Infants Act, under. See CUSTODY OR ACCESS ORDERS UNDER GIA
inability of parents to cooperate–
joint custody, not bar to, [10.4.12]
return to court for determination, [10.4.16]
injunctions, power to grant, [14.1.3]
joint care and control, [10.4.26], [11.5.19]
joint custody, [5.2.4], [10.4.12]–[10.4.15], [11.5.18]
inability to cooperate during divorce not affecting, [10.4.12]
orders, [10.4.9], [10.4.12]
preserving joint parental responsibility, [5.2.4], [10.4.15]
legal concepts, explaining to client, [11.5.17]
mediation and counselling. See MEDIATION AND COUNSELLING
orders for, [10.4.2]–[10.4.29]
authority of court to make, [10.4.3]
care and control, [5.2.3], [5.2.9], [10.4.6], [10.4.22]–[10.4.29]
custody, [5.2.1]–[5.2.8], [10.4.8]
enforcement. See CUSTODY OR ACCESS ORDERS: ENFORCEMENT
joint custody, [10.4.12]
part of divorce proceedings, [11.5.32]–[11.5.34]
sole custody, [10.4.9]–[10.4.11], [11.5.18]
prenuptial agreement, [6.4.7], [6.7.1]–[6.7.3], [6.9.2]
proceedings heard by FJC, [1.3.1]
psychological or psychiatric assessment of child, [10.7.1]–[10.7.8], [11.7.13]
leave of court, [10.7.2], [11.7.14]
necessity for, [11.7.14], [11.7.15]
removal of child from Singapore, [5.2.8]
consent required, [5.2.8], [10.4.17]
rescission of order, [3.4.29]
residual custody, [10.4.6]
setting aside order, [3.4.29]
shared care and control, [5.2.10], [5.2.11], [11.5.19]
access orders not necessary, [11.5.19]
circumstances where ordered, [5.2.11]
maintenance orders not necessary, [5.3.5], [11.5.19]
recommended by welfare report, [5.2.11]
siblings generally not separated, [10.4.29], [10.5.4]
sole care and control, [10.4.24], [11.5.19]
sole custody, [5.2.5], [10.4.9]–[10.4.11], [11.5.18]
access orders. See ACCESS TO CHILDREN
exceptional circumstances, [5.2.5], [10.4.11], [11.5.18]
inability to cooperate during divorce not grounds for, [10.4.12]
limits to authority, [10.4.17]
orders, [10.4.9]
removal of child requiring consent, [5.2.8], [10.4.17]
specific orders and conditions, [11.5.33]
variation of order, [3.4.29]
voice of the child, persons representing, [10.6.1]–[10.6.6]
welfare of child paramount, [5.2.2], [10.1.4], [10.5.7]–[10.5.9], [11.2.1]–[11.2.4], [11.8.1]
definition of welfare, [5.2.2], [10.5.5], [10.5.9]
prenuptial agreement, [6.7.1], [6.7.3], [6.9.2]
welfare reports, [5.2.11], [10.6.1]–[10.6.6]
Women’s Charter provision, [10.4.2], [10.4.3]
Custody or access interim orders
Access Evaluation Report (AER), [10.6.4], [17.3.15]
affidavits–
evidence by, [11.6.18]
leave to file further, [11.6.14], [11.6.19]
reply, time for, [11.6.14]
service of, [11.6.13]
submissions and representations based on, [11.6.18]
supporting application, [11.6.2]
Assistant Registrar of FJC, attendance before, [11.6.14]
assisted access, [11.6.24]
assisted transfer, [11.6.24]
case conference date, [11.6.14]
chambers, hearing in, [11.6.17], [11.6.18]
conflict as to access arrangements, [11.6.1]
costs, [11.10.1], [11.10.2]
Counselling and Psychological Services (CAPS)–
evaluation services, [17.3.13], [17.3.15]
reports, [11.6.22], [17.3.15]
directions court may give, [11.6.21]–[11.6.24]
judge’s discretion, [11.6.15]
divorce proceedings, application during, [11.6.1]–[11.6.24]
case “docketed” before judge, [11.6.15]
same judicial officer, [11.6.15]
evidence. See also EVIDENCE IN CUSTODY OR ACCESS APPLICATIONS
affidavits, [11.6.2], [11.6.18]
“from the Bar”, court disallowing, [11.6.18]
new, leave to submit, [11.6.19]
written submissions, [11.6.16], [11.6.18]
ex parte application, [11.6.6]–[11.6.10], [11.6.12]
abridgement of time for service, requesting, [11.6.7]
concurrent inter partes application, [11.6.6], [11.6.11]
Duty Judicial Officer in FJC, attendance before, [11.6.9]
notice to other party, [11.6.9]
waiver of notice requirement, [11.6.9], [11.6.10]
filing, [11.6.9], [11.6.13]
injunction, seeking, [11.6.8]
notice to other party of hearing, [11.6.8], [11.6.9]
sample, [11.6.12]
urgent orders, for, [11.6.6]–[11.6.10]
waiver of notice requirement, [11.6.9], [11.6.10]
Hague Application, pending, [12.2.13], [12.2.16]
hearing of summons, [11.6.16]–[11.6.20]
adjournment, [11.6.20]
chambers, in, [11.6.17], [11.6.18]
court’s options after, [11.6.20]
evidence by affidavit, [11.6.18]
open court, in, [11.6.17]
oral submissions, [11.6.18]
practice directions, [11.6.16]
highly acrimonious dispute, [11.6.22]
inter partes application, [11.6.2]
concurrent ex parte application, [11.6.6], [11.6.11]
service after orders made on, [11.6.13]
sample, [11.6.12]
interlocutory application, [11.6.2]
judge-led approach, [11.6.15], [11.6.21], [11.8.6], [15.2.18]
leave to file further affidavits, [11.6.14], [11.6.19]
legal guardian, application by, [11.6.3]
mediation and counselling, order to attend, [11.6.21]
open court, hearing in, [11.6.17]
orders court may make, [11.6.21]–[11.6.24]
Access Evaluation Report (AER), [11.6.22]
assisted transfer/access, [11.6.24]
Custody Evaluation Report (CER), [11.6.22]
mediation and counselling, to attend, [11.6.21]
parent, application by, [11.6.3], [11.6.4]
parties, identification in summons, [11.6.5]
procedure after filing summons, [11.6.14]–[11.6.20]
s 124 Women’s Charter, under, [11.6.3]
service of application, [11.6.13]
summons, [11.6.2], [11.6.5]
form, [11.6.5], 11.D.3
hearing of, [11.6.16]–[11.6.20]
identification of parties, [11.6.5]
inter partes, [11.6.2], [11.6.6]
number, [11.6.14]
statement of reliefs sought, [11.6.11]
urgent orders, [11.6.6]
ex parte application, [11.6.6]–[11.6.10]
utmost urgency, [11.6.6]
filing and exchanging, [11.6.16]
Custody or access orders: enforcement
access order breach–
application unlikely to succeed, [11.9.10]
non-compliance with dates and times, [11.9.10]
complaint of non-compliance, [11.9.8]
contempt, non-compliance as, [11.9.9], [11.9.11]
costs, [11.10.1]
court assistance, [11.9.1]
efforts to ascertain cause of non-compliance, [11.9.12]
importance of enforcing orders, [11.9.11]
notice of default insufficient, [11.9.9]
obstructive litigant, [11.19.11]–[11.9.13]
order of committal, [11.9.2]
difficulty of enforcement by, [11.9.8]
evidence at hearing, [11.9.6]
ex parte application for leave, [11.9.3], [11.9.4]
service of order, details of, [11.9.4]
statement and affidavit, [11.9.4]
hearing of application, [11.9.6]
inter partes application for, [11.9.3], [11.9.5]
affidavit, [11.9.5]
time limit, [11.9.5]
remedy of last resort, [11.9.2], [11.9.11], [11.9.13]
requirements for obtaining, [11.9.9]
strict adherence to procedure, [11.9.3], [11.9.7]
penal notice, endorsement of order with, [11.9.8]
form, [11.9.8], 11.D.4
leave not required, [11.9.8]
prerequisite for committal, [11.9.9]
service of endorsed order, [11.9.8], [11.9.9]
power of court, [11.9.2]
recalcitrant litigant, [11.19.11]–[11.9.13]
refusal to comply, [11.9.1]
service of endorsed order, [11.9.8]
before expiry of time to act, [11.9.9]
personal service, [11.9.8]
time frame for compliance, [11.9.9]
vexatious litigant, [11.9.12]
Custody or access orders under GIA
court-appointed guardian, by, [11.6.26]
form, [11.6.32], 11.D.1, 11.D.2
grandparent, by, [10.2.5], [11.6.27], [11.6.28]
no pending divorce proceedings, [11.6.26]
originating summons, [11.6.26], [11.6.32], [11.6.33]
parents not in marital relationship, [11.6.26], [11.6.30]
procedure, [11.6.35]
relatives, standing of, [11.6.27], [11.6.28]
service, [11.6.34]
subsequent writ for divorce, [11.6.32]
testamentary guardian, by, [11.6.26]
who may apply, [10.2.4], [11.6.27]
costs, [11.10.1], [11.10.2]
divorce proceedings commenced subsequently–
application for GIA filed, [11.6.32]
existing GIA order not binding, [11.6.36]
orders final unless, [11.6.35]
finality of orders, [11.6.35]
grandparent, application by, [10.2.5], [11.6.27], [11.6.28]
access, right to, [10.2.6]
court’s starting position, [10.2.5]
interim custody application compared, [11.6.35]
jurisdiction, [3.3.3]
non-parent, non-guardian–
adoption, application for, [10.2.7]
application by, [10.2.7], [11.6.27], [11.6.28]
leave to intervene, [11.6.29]
ward of court, proceedings to make child, [11.6.29]
originating summons, [11.6.26], [11.6.32]
ex parte, [11.6.32], 11.D.2
example, [11.6.33]
inter partes, [11.6.32], 11.D.1
requirements, [11.6.32]
service, [11.6.34]
parents not in marital relationship, [10.2.3], [11.6.26], [11.6.30]
application by natural father, [11.6.30], [11.6.31]
children in care of mother, [11.6.31]
equal rights of parents, [11.6.30]
finality of orders, [11.6.35]
paternity test, [11.6.31]
power of court to make, [11.6.25]
process, procedure and relief claimed, [11.6.35]
relatives, no standing to apply, [11.6.27], [11.6.28]
removal of child from Singapore, preventing–
application for order, [12.3.7]
court’s power to make order, [12.3.8]
injunction where order existing, [12.3.6]
scope of Act, [10.2.3]
service of summons, [11.6.34]
standing to apply, [11.6.27]
Death
interim judgment of divorce–
application by executor to make final, [3.4.7]
death of one party, [3.4.7]
maintenance order expiring on–
ex-wife, secured order, [5.4.5]
ex-wife, unsecured order, [5.4.4]
incapacitated former husband, [5.5.3]
presumption of, [2.6.1]
divorce, [2.6.1]
Desertion
actual, [2.4.18]
constructive, [2.4.18], [2.4.19]
costs of action, [15.2.15]
inferred intention, [2.4.18]
intention to end marriage, [2.4.18], [2.4.19]
periods of reconciliation, [2.4.17]
judicial separation, [2.7.3]
proof of, [2.7.4]
rescission where reasonable cause, [2.7.3]
Direct judicial communications
concurrent related proceedings, [12.3.14]
international family proceedings, [12.3.15], [12.3.17]
practice direction, [12.3.14], [12.3.16]
raising desirability with judge, [12.3.16]
removal of child cases, [12.3.2], [12.3.14]–[12.3.16]
Discontinuance
counterclaim, costs where, [15.3.5]
before trial, by consent, [8.7.2]
before writ served, [8.7.1]
costs, terms as to, [8.7.3]
leave of court, [8.7.3]
notice of, [8.7.1], [8.7.2]
Discovery of documents
ancillary matters in divorce proceedings, [8.8.10]–[8.8.18]
affidavit ordered by court, [8.8.16]
continuing duty, [8.8.18]
response to request, [8.8.11]
time for providing documents, [8.8.11]
timelines given by court, [8.8.12]
adverse inference, [8.8.28]
committal, liable for, [8.8.26]
leave to rely on documents, [8.8.27]
Discretionary trusts
definition, [9.3.4]
division of assets on divorce–
beneficial ownership of assets, [9.2.2], [9.2.7]
division of beneficial interests, [9.3.4]–[9.3.14]
financial resources, assets as, [9.2.43], [9.2.44]
judgment creditor’s right to revoke, [9.2.6]
matrimonial asset pool, whether included in, [9.2.4], [9.2.5]
proprietary interests, [9.3.10]–[9.3.14]
revocable trust, [9.2.4]–[9.2.7], [9.3.3]
exhaustive, [9.3.4]
high net worth individuals, [9.3.4]
increasing use of, [9.3.5]
memorandum of settlor’s wishes, [9.2.2]
non-exhaustive, [9.3.4]
proprietary interests in, [9.3.10]–[9.3.14]
court’s guidance, [9.3.11]
equitable title to assets, [9.3.13]
evidence of trustees’ imminent exercise of discretion, [9.3.14]
matrimonial asset pool, whether included in, [9.3.14]
potential beneficiary gaining, [9.3.12]
right to be considered as potential recipient, [9.3.10]
supervisory jurisdiction of court, [9.3.11], [9.4.1]
types, [9.3.4]
wish letters, [9.2.2], [9.3.6]–[9.3.9]
advantages, [9.3.7]
beneficiary’s right to inspect, [9.4.15]–[9.4.17]
categories of, [9.3.7], [9.3.8]
confidentiality, [9.4.15]–[9.4.17]
guiding trustees in exercise of discretion, [9.3.6], [9.3.8]
key trust documents, [9.4.17]
legally binding, [9.3.8]
morally binding, [9.3.8]
non-binding, [9.3.8]
settlor, by, [9.2.2], [9.3.6]–[9.3.9]
weight attached to, [9.3.9]
Dismissal of action
children, applications involving, [11.4.2]
divorce proceedings, order whether grounds for, [8.6.6]
FJC, power of, [8.1.5]
Dispensation of service
writ for divorce, judicial separation or nullity, [8.4.22]–[8.4.24]
affidavit supporting, [8.4.24]
attempts to locate defendant before, [8.4.23]
Division of matrimonial assets
adverse inference, [4.2.84]–[4.2.91]
additional assets awarded to other spouse, [4.2.89]
failure to explain withdrawals, [4.2.87]
just and equitable result, [4.2.90], [4.2.91]
non-disclosure, [4.2.84], [4.2.85]
prima facie case, [4.2.85]
uncooperative behaviour, [4.2.87]
undisclosed assets, [4.2.88], [4.2.91]
agreement between spouses, [4.2.92]–[4.2.102], [6.2.1], [6.4.1]–[6.4.7], [6.8.1]–[6.8.6], [6.9.1]
addressing division of assets, [4.2.96], [6.4.1], [6.8.1]–[6.8.6]
Australia, [19.3.12]
conclusive weight, [4.2.95]
court having regard to, [4.2.93], [4.2.95], [6.2.3], [6.2.4], [6.4.2], [6.8.2], [6.8.3]
court’s powers, not detracting from, [4.2.92], [6.2.3], [6.8.1]
exhaustively governing allocation, [4.2.96], [4.2.97]
foreign agreement, [6.2.7], [6.2.10], [6.3.1]–[6.3.5], [6.9.4]
independent legal advice, [4.2.99]
interpretation of s 112(2)(e), [6.4.3]–[6.4.6], [6.8.1]
just and equitable division, [6.4.2]
legal status, [4.2.93], [6.2.1]–[6.2.10], [6.8.1]
local agreement, [6.4.1]–[6.4.7]
made in contemplation of divorce, [4.2.94]
mediated settlements, [4.2.100]
New Zealand, [19.3.19]
not enforceable in and of itself, [4.2.95], [6.2.5], [6.4.2]
postnuptial. See POSTNUPTIAL AGREEMENT
prenuptial. See PRENUPTIAL AGREEMENT
repudiated by parties, [4.2.102]
unfair, whether, [4.2.99]
validly contracted agreement, [6.8.2]
weight given to, [4.2.95], [4.2.98], [4.2.101], [6.2.6], [6.2.9], [6.8.3]–[6.8.6]
allocation of case to high conflict track, [8.1.6]
ancillary orders by FJC, [4.1.1]
divorce granted overseas, [4.1.4]
apportionment of value, [5.6.22]
Australia, [19.3.8]–[19.3.12]
binding financial arrangements not made, [19.3.9]
clean break principle, [19.3.8]
contributions by each spouse, [19.3.11]
gifts and inheritances, [19.3.10]
holistic approach, [19.3.11]
just and equitable, [19.3.9]
property owned before marriage, [19.3.10]
average ratio, [4.2.62]–[4.2.65]
cases illustrating, [4.2.65]–[4.2.75]
children raised to adulthood, [4.2.64]
factors shifting, [4.2.64]
large pool of assets, [4.2.64]
long marriage, [4.2.64]
“broad brush” approach, [4.2.78]–[4.2.80]
financial contributions, [4.2.79]
children of the marriage–
assets used or enjoyed by, [4.2.16]
homemaker’s contribution in raising, [4.2.64]
needs of, [4.2.55], [4.2.56]
choice of law governing, [18.4.21]
classification methodology, [4.2.81]
global assessment compared, [4.2.81]
multiple classes of assets, [4.2.83]
clean break principle, [19.3.8], [19.3.13]
community of property principle, [4.2.2]
conduct of parties, [4.2.58]–[4.2.60], [9.2.7]
contributions during marriage, [4.2.1]
Australian approach, [19.3.11]
financial. See financial contributions below
non-financial. See non-financial contributions below
CPF accounts, [4.2.50], [5.6.2]
charging orders, [5.6.19]
injunction against removal or disposal, [5.6.20]
Muslim divorce, [20.7.3]–[20.7.5], [20.7.17]–[20.7.21], [20.7.30]
specific wording, [5.6.17], [5.6.19]
specified amount, [5.6.18]
criminal acts of one party, [4.2.58]–[4.2.60]
date for identifying pool, [5.6.3]
date for valuing assets, [5.6.3], [5.6.4]
deferred community of property regime, [4.2.2], [9.1.9]
equal division, rejection as norm, [4.2.42], [4.2.43]
factors to be considered, [4.2.46]–[4.2.60]
all circumstances of case, [4.2.47]
children, needs of, [4.2.55], [4.2.56]
conduct of parties, [4.2.58]–[4.2.60], [9.2.7]
fact situation of each case, [4.2.48]
financial contributions, [4.2.50]–[4.2.53]
just and equitable division, for, [4.2.47]
list not exhaustive, [4.2.57]–[4.2.60]
non-financial contributions, [4.2.5], [4.2.54]
financial contributions, [4.2.50]–[4.2.53]
attributable direct contributions, [4.2.52]
“broad brush” approach, [4.2.79]
documentary evidence, [4.2.50]
“income” approach, [4.2.51], [4.2.52]
last drawn salary, ratio based on, [4.2.53]
long marriages, [4.2.51]
mingling of finances, [4.2.51]
ratio of, [5.6.5]
unattributable direct contributions, [4.2.52]
four-step process, [5.6.5]
full and frank disclosure, [4.2.84]
adverse inference from lack of, [4.2.84]–[4.2.91]
gender neutral application, [4.2.6], [4.2.7]
German law approach, [18.4.21]
global assessment, [4.2.81]
HDB flat. See HDB MATRIMONIAL ASSET
homemakers, contribution of, [4.2.5], [4.2.54]
both spouses working full-time, [4.2.7]
husband as homemaker, [4.2.6]
raising children to adulthood, [4.2.64]
just and equitable division, [4.2.39]–[4.2.102]
“broad brush” approach, [4.2.78]–[4.2.80], [18.4.21]
equal division, rejection as norm, [4.2.42], [4.2.43]
German law distinguished, [18.4.21]
multi-factorial approach, [4.2.46]–[4.2.60]
prenuptial agreements and, [6.4.1]
statutory power of court, [9.1.8]–[9.1.10]
“structured” approach, [4.2.61]–[4.2.77]
trends from past cases, [4.2.40], [4.2.41]
trusts and, [9.1.10]
“uplift” methodology, rejection of, [4.2.44], [4.2.45]
legal aid where abusive husband, [16.1.4]
long marriage–
average ratio, affecting, [4.2.64]
mingling of finances, [4.2.51]
marriage as partnership, as, [4.2.3]–[4.2.5]
matrimonial assets. See also MATRIMONIAL ASSETS
acquired before marriage, [4.2.16]–[4.2.18], [5.6.1]
acquired during marriage, [4.2.10]–[4.2.15], [5.6.1]
definition, [4.2.8], [5.6.1]
gifts, [4.2.27]–[4.2.35]
Mareva injunction. See MAREVA INJUNCTIONS
Muslim divorce, [20.7.2]–[20.7.10]
qualifying words, [4.2.22]–[4.2.26]
substantial improvement, [4.2.19]–[4.2.21]
trust assets. See TRUSTS AND DIVORCE
windfalls, [4.2.36]–[4.2.38]
matrimonial home, [5.6.2]
orders for sale or transfer of, [5.6.15], [5.6.22]
mediation, [17.6.9], [17.6.11]
orders following, [5.8.1]–[5.8.4]
Muslim divorce. See MUSLIM DIVORCE: DIVISION OF ASSETS
New Zealand, [19.3.13]–[19.3.19]
clean break approach, [19.3.13]
equal status of contributions, [19.3.14]
equal status of men and women, [19.3.14]
guiding principles, [19.3.14]
just division of relationship property, [19.3.14]
opting out of default equal-sharing regime, [19.3.19]
property, definition, [19.3.15]
Property (Relationships) Act 1976, [19.3.13]
relationship property, [19.3.16]
court’s discretion to treat property as, [19.3.17]
determination of, [19.3.18]
entitlement to equal share of, [19.3.18]
just division of, [19.3.14]
separate property distinguished, [19.3.17]
separate property, definition, [19.3.17]
“broad brush” approach, [4.2.80]
homemaker, [4.2.5]–[4.2.7], [4.2.54]
ratio of, [5.6.5]
apportionment of value, [5.6.22]
CPF accounts, [5.6.16]–[5.6.21]
matrimonial home, [5.6.15], [5.6.23]
property held during marriage. See PROPERTY HELD DURING MARRIAGE
ratio of contributions, [5.6.5]
setting aside order, [3.4.28], [3.4.32]–[3.4.44]
consent orders, [3.4.32], [3.4.42]
“structured” approach, [4.2.61]–[4.2.77]
average ratio, [4.2.62]–[4.2.65]
cases illustrating, [4.2.65]–[4.2.75]
guide only, [4.2.76], [4.2.77]
ratio of direct contributions, [4.2.62]
ratio of indirect contributions, [4.2.62]
trusts and. See TRUSTS AND DIVORCE
United Kingdom, [19.3.1]–[19.3.7]
both parties’ needs, [19.3.4]
discretion of courts, [19.3.2]
factors to be considered, [19.3.3]
Family Proceedings Rules 1999, [19.3.6]
maintenance not distinguished from, [19.3.1]
objectively fair outcome, [19.3.4]
order for property adjustment, [19.3.3]
prenuptial agreements, [19.3.5]
regard to all circumstances of case, [19.3.2]
settled agreements, [19.3.6]
variation of orders, [19.3.7]
variety of orders possible, [19.3.1]
welfare of children, [19.3.2]
“uplift” methodology, [4.2.44], [4.2.45]
rejection of, [4.2.45]
valuation, date for, [5.6.3], [5.6.4]
Women’s Charter, [2.1.7], [4.2.2], [4.2.3], [4.2.4], [6.2.3], [9.1.8]–[9.1.10]
Divorce
ancillary relief. See ANCILLARY RELIEF AFTER TERMINATION OF MARRIAGE
application to present writ. See WRIT FOR DIVORCE
breakdown of family unit, [2.1.3], [2.1.4]
children involved. See DIVORCE PROCEEDINGS INVOLVING CHILDREN
commencement of proceedings for. See WRIT FOR DIVORCE
contested proceedings. See DIVORCE PROCEEDINGS
courts’ handling of, [2.1.3], [2.1.4]
family law, importance of, [2.1.5]
foreign country, in. See FOREIGN MATRIMONIAL PROCEEDINGS
grounds for. See GROUNDS FOR DIVORCE
HDB matrimonial asset involved. See HDB MATRIMONIAL ASSET
interim judgment. See INTERIM JUDGMENT OF DIVORCE
jurisdiction. See JURISDICTION IN MATRIMONIAL PROCEEDINGS
marriage preparation programmes to reduce risk of, [2.1.8]
Muslim. See MUSLIM DIVORCE
overview, [2.1.1]–[2.1.8]
prenuptial agreement. See PRENUPTIAL AGREEMENT
presumption of death and, [2.6.1]
proceedings for. See DIVORCE PROCEEDINGS
setting aside interim order. See SETTING ASIDE
simplified proceedings. See DIVORCE PROCEEDINGS: UNCONTESTED
trusts and. See TRUSTS AND DIVORCE
uncontested proceedings. See DIVORCE PROCEEDINGS: UNCONTESTED
Women’s Charter governing, [2.2.1], [2.3.1], [3.2.1]
Muslim law marriages excluded, [3.2.1]
three year rule, [2.2.1], [8.3.1]
writ for. See WRIT FOR DIVORCE
Divorce proceedings
children involved. See DIVORCE PROCEEDINGS INVOLVING CHILDREN
co-defendant–
filing defence, [8.4.28]
memorandum of appearance, [8.4.26]
commencement of, [8.4.1]–[8.4.9]
writ. See WRIT FOR DIVORCE
contested, [8.6.1]–[8.6.6]
affidavits of evidence-in-chief, [8.6.2]
bundle of authorities, [8.6.4]
bundle of documents, [8.6.3], [8.6.4]
documents required, [8.6.4]
notice for setting down action for trial, [8.6.3]
open court hearing, [8.6.1], [8.6.5]
opening statement, [8.6.4]
witnesses–
informing court of number of, [8.6.2]
questioning and cross-examination, [8.6.5]
costs. See COSTS
defence–
co-defendant filing, [8.4.28]
defendant filing, [8.4.27]
reply, [8.4.32]
defence and counterclaim, [8.2.49]
reply, [8.4.32]
defendant–
defence and counterclaim, [8.2.49]
filing defence, [8.4.27]
proposed matrimonial property plan, [8.4.31]
proposed parenting plan, [8.4.30]
discontinuance, [8.7.1]–[8.7.3]
before trial, by consent, [8.7.2]
before writ served, [8.7.1]
costs, terms as to, [8.7.3]
notice of, [8.7.1], [8.7.2]
dismissal, order whether grounds for, [8.6.6]
final judgment, [8.9.1]–[8.9.3]
application for making, [8.9.1], [8.9.2]
failure to extract in time, [8.9.2]
form, [8.9.3]
forum non conveniens, [3.5.4]
injunctions. See INJUNCTIONS
interim judgment, [2.5.1]–[2.5.4]
ancillary matters not resolved before, [8.8.1], [8.9.2]
application to make final, [8.9.1], [8.9.2]
consent order as to ancillary matters, [8.9.1]
costs, [15.2.5]
no application to make final, [2.5.3]
order as to whether grounds for, [8.6.6]
presumption of death and divorce, [2.6.1]
rescission, [2.5.4]
show cause for not making final, [2.5.2]
material fact, [2.5.4]
time for making final, [2.5.1]
joinder of trustees, [9.6.1]–[6.4.4]
address for service, [8.4.25], [8.4.26]
intention to defend action, [8.4.25], [8.4.26]
service with writ, [8.4.10]
notice for setting down action for trial, [8.6.3]
pleadings, [8.4.27]–[8.4.32]
stay. See STAY OF PROCEEDINGS
uncontested. See DIVORCE PROCEEDINGS: UNCONTESTED
writ, commencement by. See WRIT FOR DIVORCE
Divorce proceedings involving children
access orders–
part of divorce proceedings. See ACCESS TO CHILDREN
μμ_zkg9
agreed parenting plan, [8.4.6]
best interests of child, [10.1.4], [11.2.1]–[11.2.4], [11.5.12], [11.5.17]
CFRC mandatory counselling and mediation programme, [11.3.1], [11.5.1]–[11.5.4], [15.2.17], [17.3.21]
counselling sessions, [17.3.24]
processes applied to other cases, [17.3.26]
purpose, [11.5.4], [17.3.22]
Child Inclusive Resolution Process, [11.5.9]
costs, [11.10.1]
counselling. See mediation and counselling below
custody, care and control orders–
part of divorce proceedings. See CUSTODY, CARE AND CONTROL OF CHILDREN
Divorce Support Specialist Agency, consultation with, [11.5.6]
family violence or abuse allegations, [11.5.13]
dispensing with mandatory mediation and counselling, [11.5.3]
high conflict divorce, [11.5.9], [11.5.13]
joint cooperative parenting, focus on, [11.5.13]
jurisdiction to hear, [3.3.1]–[3.3.6]
legal practitioners advising clients, [11.5.12]
maintenance orders during, [10.4.58]
making interim order final–
satisfactory arrangements for children, [3.4.3]–[3.4.6]
Mandatory Parenting Program, [11.5.5], [11.5.6]
mediation and counselling. See also MEDIATION AND COUNSELLING
assessment of children, [17.4.26]–[17.4.28]
cases where appropriate, [11.3.4]
cases where inappropriate, [11.3.5]
CFRC mandatory programme, [11.3.1], [11.5.1]–[11.5.4], [17.3.21]–[17.3.26]
child-centric approach, [11.3.2], [11.5.5], [17.2.2]
counselling sessions, [17.3.24], [17.5.11]–[17.5.13]
FJC counsellors, [11.3.3]
interim order to attend, [11.6.21]
mandatory, [11.3.1], [11.5.1]–[11.5.4], [17.3.21], [17.5.2]
multi-disciplinary approach, [17.4.21]–[17.4.25], [17.8.4]
option for court to order, [11.3.4]
Parenting Coordinators, [11.5.10], [17.3.39], [17.7.11]–[17.7.12]
purpose, [11.5.4], [17.3.22]
urgent issues, cases involving, [11.3.5]
minor, at least one child is, [11.3.1], [11.5.1]–[11.5.34]
Parenting Coordination (PC) scheme, [17.3.39], [17.7.11]–[17.7.12]
proposed parenting plan, [8.4.6], [11.5.1]
defendant’s reply to, [8.4.30], [11.5.1]
protection from traumatic effects of divorce, [10.1.3]
satisfactory arrangements for children, [3.4.3]–[3.4.6]
welfare of child paramount, [10.1.4], [11.2.1]–[11.2.4], [11.5.12]
Divorce proceedings: uncontested
affidavits of evidence-in-chief, [8.5.6], [8.5.9]
attendance dispensed with, [8.5.5]–[8.5.7]
documents to be filed, [8.5.6]
request for, [8.5.6]
costs, [15.2.6]
counterclaim, [8.5.6]
matters to question defendant on, [8.5.10]
draft consent order, [8.5.6], [8.5.11]
mediation to allow, [17.6.5]
open court hearings, [8.5.8]–[8.5.11]
agreement reach on ancillary matters, [8.5.11]
matters to question plaintiff on, [8.5.10]
proceedings requiring, [8.5.8]
private investigator’s report, [8.5.6], [8.5.9]
request for setting down action for trial–
attendance dispensed with, [8.5.6]
open court hearing, [8.5.9]
simplified uncontested proceedings, [1.9.7], [8.5.1]–[8.5.4]
application, [8.5.3]
collaborative family practice process, agreement through, [8.5.2]
matter settled through CFP, [1.9.8], [17.3.38]
simplified hearing track, [8.5.1], [8.5.2]
statement of particulars, [8.5.4]
when available, [1.9.8], [8.5.2]
Divorce Support Specialist Agency (DSSA)
assisted access, [5.2.13], [11.5.30], [11.6.24]
report on, [11.5.31], [11.7.13]
supervised access, [5.2.13], [10.4.41]
Documents
templates of court documents, [8.2.2]
variation of maintenance orders, application for, [7.6.2], [7.6.3]
writ for divorce, to be filed with, [8.4.3]
Domestic violence. See FAMILY VIOLENCE
Domicile
abandonment of, [3.2.3]
cessation of residence and intention to remain, [18.2.19]
domicile of choice, [18.2.19]–[18.2.20]
domicile of origin revived, [18.2.8], [18.2.20]
new domicile not acquired, [18.2.8], [18.2.20]
acquisition of, [18.2.14]–[18.2.18]
age of majority, reaching, [18.2.14]
burden of proof, [18.2.9], [18.2.15]
contingency, residence until, [18.2.16]
intention to remain, [3.2.5], [18.2.3], [18.2.15], [18.2.17], [18.2.18]
residence, [18.2.15], [18.2.16]
all persons must have, [3.2.6], [18.2.5]
change of–
burden of proof, [3.2.6], [18.2.9], [18.2.15]
child, [18.2.12]
evidence of, [18.2.9], [18.2.10]
child–
at birth, [3.2.6], [18.2.7], [18.2.12]
changing when father’s changes, [18.2.12]
domicile of choice on reaching majority, [18.2.14]
illegitimate, [3.2.6], [18.2.7]
legitimate, [3.2.6], [18.2.7]
taking widowed mother’s on remarriage, [18.2.12]
concept, [18.2.3]–[18.2.6]
connecting person with legal system, [18.2.2]–[18.2.25]
default domicile, [18.2.8]
domicile of choice, [2.3.5], [3.2.5], [3.2.7], [3.2.8], [18.2.14]–[18.2.20]
abandonment, [3.2.3], [18.2.8], [18.2.19]–[18.2.20]
acquisition, [18.2.14]–[18.2.18]
change, evidence of, [18.2.9], [18.2.10]
homes in more than one country, [3.2.6], [18.2.16]
residence in, [18.2.15], [18.2.16]
domicile of dependency, [18.2.12]
child, [18.2.12]
married woman, abolition, [18.2.4], [18.2.13]
domicile of origin, [18.2.7]–[18.2.11]
birth, at, [3.2.6], [18.2.7], [18.2.12]
evidence of change, [18.2.9]
persistence of, [18.2.9]
revival where domicile of choice abandoned, [18.2.8], [18.2.20]
English common law concept, [18.2.5]
foreign divorce, basis for recognition of, [18.5.3]
habitual residence distinguished, [12.2.21]
intended matrimonial home rule, [18.3.15]
lex fori determining, [18.2.4]
married woman–
different domicile from husband, [2.1.6], [18.2.13]
taking husband’s, abolition, [18.2.4], [18.2.13]
matrimonial jurisdiction, basis for, [2.3.1], [3.2.4], [18.2.3], [18.4.1], [18.4.2]
domicile in Singapore, [2.3.1]–[2.3.5], [3.2.3]–[3.2.9, [18.4.1]
either party, [2.3.3], [3.2.4]
object of determining, [18.2.5]
only one at a time, [18.2.5]
permanent home, [18.2.3]
presumption of, [2.3.4], [3.2.3], [18.2.4]
question of fact, [18.2.4]
residence as evidence of, [3.2.9], [18.2.15], [18.2.16]
Singapore citizen, [3.2.3], [18.2.4]
temporary residence elsewhere, [18.2.3]
types, [18.2.6]
voluntary residence, [3.2.5], [3.2.8]
Enforcement of orders
custody/access orders. See CUSTODY OR ACCESS ORDERS: ENFORCEMENT
English law. See UNITED KINGDOM LAW
Evidence
affidavits. See AFFIDAVITS
children, by, [13.7.34]–[13.7.36]
corroboration, [13.7.35]
counsellor or social worker present, [13.7.34]
family violence proceedings, [13.7.34]–[13.7.36]
video link, [13.7.34]
custody/access applications. See EVIDENCE IN CUSTODY OR ACCESS APPLICATIONS
expert. See EXPERT EVIDENCE
family violence proceedings–
affidavits, [13.7.29]
children, [13.7.34]–[13.7.36]
sequence of witnesses, [13.7.32]
unsworn statements, [13.7.29]
FJC directions in relation to, [8.1.4]
Evidence in custody or access applications
affidavits–
all relevant material included in, [11.7.1]
children, [11.8.2]–[11.8.4]
children’s views and wishes on parents’, [11.8.2]
defendant’s cross-application, [11.7.9]
defendant’s reply, [11.7.8], [11.7.9]
interim applications, [11.6.2], [11.6.18], [11.6.19]
parties, [11.7.1]–[11.7.9]
plaintiff, [11.7.2]–[11.7.7]
prolix, [11.7.4]
requirements, [11.7.1]
unhelpful, [11.7.6]
witnesses, [11.7.10]–[11.7.12]
assessment of child by expert, [11.7.13]
necessity for, [11.7.14], [11.7.15]
unnecessary, [11.7.14]
without leave, [11.7.14], [11.7.15]
access timings, as to, [11.8.3]
affidavits, [11.8.2]–[11.8.4]
older children, [11.8.3]
parties’ affidavits, in, [11.8.2]
voluntary affidavits, [11.8.4]
employees or domestic helpers, [11.7.12]
English language, [11.7.1]
evidence “from the Bar”, court disallowing, [11.6.18]
expert evidence, [11.7.13]–[11.7.15]
CAPS report, [11.6.22], [11.7.13]
counsellor, [11.7.13], [11.7.14]
DSSA report, [11.5.31], [11.7.13]
leave of court to have child assessed, [10.7.2], [11.7.14]
necessity for, [11.7.14], [11.7.15]
psychologist or psychiatrist, [10.7.1]–[10.7.8], [11.7.13]
disapproval of use, [10.7.6]
foreign language, [11.7.1]
hearsay, notice to admit, [11.7.1]
interim applications–
affidavits, [11.6.2], [11.6.18]
leave to file further affidavits, [11.6.14], [11.6.19]
judicial interview with child, [11.8.5]–[11.8.10]
ability of child to express views, [11.8.7]
advantage of, [11.8.3], [11.8.5]
age of child, [11.8.7]
best interests of child, [11.8.8]
counsellor, presence of, [11.8.10]
discretion of judge, [11.8.5]
endorsement of concept, [11.8.6]
neutral environment, [11.8.10]
objection by other parent, [11.8.8]
request for, [11.8.3], [11.8.5]
venue, [11.8.10]
who may be present, [11.8.10]
material to application, [11.7.10]
parties’ evidence, [11.7.1]–[11.7.9]
acrimonious statements, avoiding, [11.7.7]
affidavits, [11.7.1]–[11.7.9]
background of events, [11.7.2]
child’s best interests, focus on, [11.7.5]–[11.7.8]
children’s views and wishes, [11.8.2]
current situation, view of, [11.7.3]
defendant’s cross-application, affidavit supporting, [11.7.9]
defendant’s reply affidavit, [11.7.8], [11.7.9]
facts, sticking to, [11.7.7]
hearsay, notice to admit, [11.7.1]
irrelevant information, [11.7.3]
personal knowledge, [11.7.1], [11.7.7]
plaintiff’s affidavit, [11.7.2]–[11.7.7]
prolix documents, [11.7.4]
proposed care arrangements, [11.7.6]
statutory requirements, [11.7.1]
translation of foreign documents, [11.7.1]
witnesses’ evidence, [11.7.10]–[11.7.12]
affirming on affidavit, [11.7.11]
employees or domestic helpers, [11.7.12]
proposed plans for involvement, [11.7.11]
relatives or close friends, [11.7.10]
relevance, [11.7.10]
Expedited orders. See FAMILY VIOLENCE ORDERS
Expert evidence
custody or access application, [11.7.13]–[11.7.15]
CAPS report, [11.6.22], [11.7.13]
counsellor, [11.7.13], [11.7.14]
DSSA report, [11.5.31], [11.7.13]
leave of court to have child assessed, [10.7.2], [11.7.14]
psychologist or psychiatrist, [10.7.1]–[10.7.8], [11.7.13]
disapproval of use, [10.7.6]
Family conferences
care and protection order cases, [17.3.19]
Counselling and Psychological Services (CAPS), [17.3.16], [17.3.18]
family violence cases, [17.3.13], [17.3.16]
purpose, [17.3.18]
Youth Court, [17.3.13], [17.3.18]
Family Courts. See also FAMILY JUSTICE COURTS
ancillary relief orders, [5.1.2]
appeal to Family Division of High Court, [1.4.5]
district judges or magistrates presiding, [1.4.6], [3.1.4]
Family Justice Court, part of, [1.4.1], [3.1.2]
Family Justice Rules applicable, [8.2.1]
jurisdiction, [1.4.7], [3.1.1]
legal aid for proceedings in, [16.2.4]
exceptions, [16.2.5]
presiding judge of FJC sitting in, [1.4.3]
registrar, [1.4.9], [1.4.10]
registry, [1.6.1], [1.6.2]
subordinate courts, [3.1.4]
supervisory and revisionary jurisdiction of High Court over, [1.4.2], [3.1.3]
transfer of proceedings–
from High Court, [1.5.2]
to High Court, [1.5.1], [5.1.2]
Family Dispute Resolution (FDR). See also MEDIATION AND COUNSELLING
Assistant Registrar–
direction for counselling and mediation, [17.5.6]
explaining objectives of programme, [17.5.5]
FDR Conference before, [17.5.3]–[17.5.7]
Child-Inclusive Mediation and Counselling (CIMC) scheme, [11.5.9], [17.7.8]
FDR Conference stage, at, [17.7.9]
FDR Programme, part of, [17.7.8]
introduction of, [2.1.4], [17.7.8]
success of pilot study, [17.7.9], [17.7.10]
children’s interests, [17.4.26]–[17.4.28], [17.6.6]–[17.6.8]
co-mediation, [17.4.12], [17.5.16]
high conflict cases, [17.4.12]
counselling model, [17.4.22]–[17.4.25]
counselling sessions, [17.5.11]–[17.5.13]
agreement reached at, [17.5.13]
concurrently with mediation, [17.5.12]
lawyers not involved, [17.5.13]
procedure, [17.5.12]
purpose, [17.5.11]
court counsellors–
assessing children, [17.4.26]–[17.4.28]
attending FDR Conference, [17.5.8]
co-mediation, [17.4.12], [17.5.16]
complementing skills of judge-mediator, [17.4.24]
counselling sessions, [17.5.11]–[17.5.13]
meeting with, [17.5.3]
predominant role, [17.5.11]
specialist dispute resolution skills, [17.4.23]
specialist knowledge, [17.4.22]
divorce issues that may be mediated, [17.6.1]
children, [17.6.6]–[17.6.8]
common ground, finding, [17.6.4]
division of property, [17.6.9], [17.6.11]
financial issues, [17.6.9]–[17.6.11]
grounds of divorce, [17.6.3]–[17.6.5]
maintenance, [17.6.9], [17.6.10]
terms and conditions unrestricted, [17.6.2]
uncontested basis, to allow, [17.6.5]
external counselling, referral to, [17.5.9]
Family Mediation Training and Accreditation Programme, [17.3.29]
volunteer mediators, [17.3.33]
FDR Conference, [17.5.1], [17.5.3]–[17.3.7]
access and maintenance issues, [17.5.7]
Assistant Registrar, before, [17.5.3]
children, application involving, [8.1.13]
conciliatory intent, [17.5.4]
court counsellor attending, [17.5.8]
direction to attend, [8.1.13]
substantive issues raised, [17.5.5]
FDR Division, [17.3.28]–[17.3.30]
formation in 2014, [17.3.28]
new premises, [17.3.30]
training of mediators, [17.3.29], [17.3.33], [17.7.4]
FDR Programme, [17.5.1]–[17.5.17]
fees not charged, [17.5.2]
improving effective co-parenting, [17.4.22]
intake and assessment, [17.5.8]–[17.5.10]
judge-led mediation, [17.4.25]
judge-mediators–
co-mediation, [17.4.12], [17.5.16]
judicial officers of FJC, [17.4.25]
skills and expertise, [17.4.25]
switching to judicial role, [17.4.25]
Maintenance Mediation Chambers (MMC), [17.5.18], [17.5.19]
mandatory counselling and mediation, [17.5.2]
mediation sessions, [17.5.14]–[17.5.17]
co-mediation, [17.4.12], [17.5.16]
divorces involving children, [17.5.15]
matters to be resolved, [17.5.14]
resolution of issues, [17.5.17]
merging of programmes, [17.3.28]
combination of skills, [17.4.25]
judge-mediator and court counsellor, [17.4.12], [17.4.21]
key features, [17.4.25]
reasons for counselling component, [17.4.24]
specialist knowledge of counsellors, [17.4.22]
specialist skills of counsellors, [17.4.23]
private mediation, [17.5.20]–[17.5.21]
resolution of issues, [17.5.17]
training of family mediators, [17.3.29], [17.3.33], [17.7.4]
Volunteer Mediator scheme, [17.3.33]–[17.3.35]
Family Division of High Court. See also FAMILY JUSTICE COURTS
appeals to, [1.4.5]
Judicial Commissioners, [19.1.1]
jurisdiction, [1.4.2], [3.1.3], [3.1.5]
actions in personam, [3.1.6]
appellate, [1.4.5], [3.1.3]
definition, [3.1.7]
divorce. See JURISDICTION IN MATRIMONIAL PROCEEDINGS
guardianship, [3.1.6]
maintenance, [3.1.6]
original, [1.4.4], [3.1.3], [3.1.5]
statutorily derived, [3.1.7]
submission to, [3.1.6]
supervisory and revisionary, [1.4.2], [3.1.3]
Supreme Court of Judicature Act, under, [3.1.6]
Syariah Court, concurrent jurisdiction, [3.1.6]
wills and probate, [3.1.6]
powers of High Court, [1.4.4]
registrar, [1.4.9], [1.4.10]
registry–
centralised, [1.6.1], [1.6.2]
former system, [1.6.1]
specialised judges, de facto system, [19.1.1]
Family Justice Courts (FJC)
ADR. See ALTERNATIVE DISPUTE RESOLUTION; MEDIATION AND COUNSELLING
allocation of cases–
assigned judge, to, [8.1.8], [8.1.9]
child track, [8.1.6]
high conflict track, [8.1.6]
international track, [8.1.6]
one or more tracks, to, [8.1.7]
possible tracks, [8.1.6]
violence track, [8.1.6]
ancillary orders, [4.1.1]
foreign proceedings, [4.1.4]
jurisdiction to make, [4.1.2]–[4.1.5]
assigned judge, [8.1.8], [8.1.9]
allocation of cases to, [8.1.8]
role of, [8.1.9]
assistant registrars, [1.4.9]
jurisdiction, powers and duties, [1.4.10]
background, [1.2.1]
case conferences. See CASE CONFERENCES
case management. See CASE MANAGEMENT
Child Representatives, [1.9.4], [1.9.5]
confidentiality of proceedings, [1.7.1]
counselling. See COUNSELLING
mediation with. See MEDIATION AND COUNSELLING
cross-border issues, [1.10.1]
new initiatives, [1.10.1], [19.1.1]
deputy registrar, [1.4.9]
establishment, [1.1.1], [8.1.1]
Family Courts. See FAMILY COURTS
Family Division of High Court. See FAMILY DIVISION OF HIGH COURT
family-specific services, [1.2.2]
future initiatives, [1.10.1]–[1.10.3]
in camera proceedings, [1.7.1]–[1.7.3]
International Advisory Council, [1.10.2]
judge-led approach, [1.9.2], [1.9.3], [8.1.1]–[8.1.18], [15.2.18]
interim custody/access order applications, [11.6.15], [11.6.21]
judicial interviews, [11.8.6]
jurisdiction. See JURISDICTION
matters heard by, [1.3.1], [3.1.1]
new initiatives, [1.9.1]–[1.9.8]
open court, power to hear matter in, [1.7.1]
orders for just, expeditious and economical disposal of proceedings, [1.9.2], [1.9.3], [8.1.3]
philosophy, [1.2.1], [1.2.2], [19.1.1]
powers, range of, [8.1.3]–[8.1.5]
Practice Directions. See FAMILY JUSTICE COURTS PRACTICE DIRECTIONS
Presiding Judge, [1.4.3], [3.1.2]
Registrar, [1.4.9]
appointment, [1.4.9]
order to sign documents, [5.7.2]–[5.7.4]
registry controlled by, [1.6.2]
registry, [1.6.1], [1.6.2]
simplified uncontested proceedings, [1.9.7]
matter settled through CFP, [1.9.8], [17.3.38]
when available, [1.9.8]
specialised body of courts, [1.2.2], [19.1.1]
structure, [1.4.1]–[1.4.10]
unrepresented litigants, [1.9.6]
compensatory costs, [15.3.22]
support for, [2.1.4]
variation of maintenance orders, [7.6.4]
procedure, [7.6.4]–[7.6.7]
wardship applications. See WARDSHIP
witnesses–
directions re calling of, [8.1.4]
disallowing publication of particulars, [1.7.3]
removal or redaction of particulars, [1.7.2]
Youth Courts. See YOUTH COURTS
Family Justice Courts Practice Directions
direct judicial communications, [12.3.14], [12.3.16]
family violence applications, [13.7.2]
procedural guidelines, [8.2.1]
service of writs–
dispensation of, [8.4.24]
substituted, [8.4.20]
Family Justice Rules
application of, [8.2.1]
applications involving children, [11.1.1]
Committee, [1.8.1]
costs. See COSTS
family violence applications, [13.7.1], [13.7.2]
judge-led approach, [1.9.2], [1.9.3], [17.4.1]
mediation approach, [17.4.1]
purposes for making, [1.8.2]
Working Party, [1.10.3]
Family Resolutions Chambers (FRC)
counselling services, [17.3.5]
formation in 2006, [17.3.5]
judge-led mediation, [17.3.5], [17.3.6]
merger with CFRC into FDR Division, [17.3.7], [17.3.27], [17.3.28]
referrals to parenting programmes, [17.3.5]
voluntary mediation, [17.3.6]
Family violence
allocation of case to violence track, [8.1.6]
application for protection. See FAMILY VIOLENCE APPLICATIONS
breach of order. See FAMILY VIOLENCE ORDERS
child under 21 years–
application by, [13.2.2]
application on behalf of, [13.2.1]
married, [13.2.2]
complainant, [13.2.1]–[13.2.2]
application by. See FAMILY VIOLENCE APPLICATIONS
child under 21 years, [13.2.1], [13.2.2]
incapacitated person, [13.2.1]
continual harassment, [13.5.5], [13.5.7], [13.5.9]–[13.5.14]
acts amounting to, [13.5.13]
acts not amounting to, [13.5.12]
court applications not amounting to, [13.5.12]
definition, [13.5.9], [13.5.10]
sensible and balanced approach, [13.5.14]
sufficiently serious magnitude, [13.5.11]
Counselling and Psychological Services (CAPS), [17.3.16]
case management, [17.3.16]
personal protection order applications, [17.3.16]
counselling order. See FAMILY VIOLENCE ORDERS
definition, [13.5.5]–[13.5.7]
examples, [13.5.8]
hurt–
causing to family member, [13.5.5]
meaning, [13.5.6]
placing family member in fear of, [13.5.5]
Muslims, provisions applicable to, [20.14.3]
orders against. See FAMILY VIOLENCE ORDERS
overview, [13.1.1]–[13.1.4]
physical violence, [13.5.7], [13.5.8]
protection for victims, [2.1.7], [13.1.2], [13.1.13]
remedies for, [13.1.1]–[13.1.3]
application for. See FAMILY VIOLENCE APPLICATIONS
balance with maintaining family unit, [13.1.3]
combination of restraint and counselling options, [13.1.4]
orders. See FAMILY VIOLENCE ORDERS
tort, in, [13.1.2]
respondent, [13.2.3]–[13.2.4]
family member, [13.2.3], [13.2.4]
summons to. See FAMILY VIOLENCE APPLICATIONS
restraint, [13.5.5], [13.5.7], [13.5.8]
safety plan, CAPS facilitating, [17.3.16]
threats, [13.5.7], [13.5.8]
types, [13.5.7]
what constitutes, [13.5.5]–[13.5.14]
Women’s Charter provisions, [13.1.1]
Muslims, applicable to, [20.14.3]
options for relief, [13.1.4]
protection under, [2.1.7], [13.1.2]
wrongfully confining or restraining, [13.5.5], [13.5.8]
Family violence applications
absence of respondent at hearing, [13.7.37], [13.7.38]
affidavits–
exchange of, [13.7.29]
facts relevant to application, [13.7.29]
form, [13.7.29]
service, of, [13.7.20], [13.7.21]
unsworn statements in lieu of, [13.7.29]
appearance before DJO, [13.7.12]–[13.7.15]
children’s evidence, [13.7.34]–[13.7.36]
corroboration, [13.7.35]
counsellor or social worker present, [13.7.34]
video link, [13.7.34]
counselling, [13.7.10], [13.7.11], [17.3.16]
family conference, [13.7.26], [17.3.16]
group counselling, [13.7.26]
mentions stage, [13.7.25], [13.7.26]
pre-trial directions after, [13.7.27]
referrals to help services, [13.7.11], [17.3.16]
resolution of case after, [13.7.27]
Counselling and Psychological Services (CAPS) role, [17.3.16]
disputed incidents occurring after filing of, [13.7.33]
duty judge/judicial officer (DJO)–
affirming or swearing complaint before, [13.7.12]
appearance before, [13.7.12]–[13.7.15]
decision to dismiss complaint or issue summons, [13.7.13]
expedited order, issue of, [13.7.14]
informing complainant of orders made, [13.7.15]
questioning of complainant by, [13.7.13]
evidence–
affidavits, [13.7.29]
children, [13.7.34]–[13.7.36]
witnesses, [13.7.32]
FJC Protection Order Services, [13.7.4], [13.7.7]
form, [13.7.6], 13.D.3
legal aid, [16.1.3]
medical attention sought, where, [13.7.8], [13.7.9]
medical examination form authorisation, [13.7.9], 13.D.3
mentions stage, [13.7.22]–[13.7.30]
counselling, [13.7.25], [13.7.26]
Family Court 1, [13.7.22]
first mention, [13.7.23], [13.8.24]
informing judge of relevant matters, [13.7.22]
particulars of complaint, [13.7.7], [13.7.8], 13.D.3
particulars of parties, [13.7.6], 13.D.3
police report lodged, whether, [13.7.8]
preparation of, [13.7.4]–[13.7.9]
pre-trial directions, [13.7.28]
adjournment of trial, [13.7.28]
counselling, after, [13.7.27]
exchange of affidavits, [13.7.29]
procedure, [13.7.1]–[13.7.9]
quasi-criminal nature, [13.7.1]
risk assessment by CAPS, [17.3.16]
service of summons, [13.7.18]–[13.7.21]
acknowledgment of receipt, [13.7.18]
affidavit of, [13.7.20], [13.7.21]
personal, [13.7.18], [13.7.21]
personal service not possible, [13.7.19]
proof of, [13.7.20]
setting down for trial, [13.7.30]
summons to respondent, [13.7.16]
DJO’s decision to issue, [13.7.13]
information required, [13.7.16]
sample, [13.7.17], 13.D.4
service, [13.7.18]–[13.7.21]
trial, [13.7.31]–[13.7.38]
absence of respondent, [13.7.37], [13.7.38]
child witnesses, [13.7.34]–[13.7.36]
disputed incidents after application filed, [13.7.33]
in camera, [13.7.31]
sequence of witnesses, [13.7.32]
trial dates, fixing, [13.7.30]
video link–
application by, [13.7.5]
children’s evidence by, [13.7.34]
where to apply, [13.7.4], [13.7.5]
witnesses–
children, [13.7.34]–[13.7.36]
cross-examination of, [13.7.32]
sequence of, [13.7.32]
Family violence orders
absence of respondent, made in, [13.7.37], [13.7.38]
breach, [13.4.1]–[13.4.5]
conviction, [13.4.3]
criminal offence, [13.4.1]
examples, [13.4.2]
penalties, [13.4.3]
counselling order, [13.3.10]–[13.3.14]
arrangements to attend counselling, [13.3.11]
protection order with, [13.3.3], [13.3.10], [13.3.14], 13.D.2
review by court, [13.3.12], [13.3.13]
review date, specifying, [13.3.12]
sample, [13.3.14]
domestic exclusion order, [13.3.7]–[13.3.9]
effect, [13.3.7]
protection order with, [13.3.3]
scope of exclusion, [13.3.9]
shared residence, exclusion from, [13.3.7], [13.3.9]
expedited order, [13.3.3]–[13.3.6], 13.D.1
date of effect, [13.3.5]
duration, [13.3.6]
extension of, [13.3.6]
imminent danger of family violence, [13.3.4], [13.5.3], [13.7.14]
issue by DJO, [13.7.14]
personal protection order–
grant at time of application for, [13.3.3], [13.3.5]
protection pending hearing for, [13.3.4]
same application as, [13.3.5]
risk assessment by CAPS, [17.3.16]
sample, [13.3.14], 13.D.1
time for making, [13.3.3], [13.3.5]
family violence, definition. See FAMILY VIOLENCE
legal aid to negotiate, [16.1.3]
necessity for, [13.5.1], [13.5.15]–[13.5.27]
assessment of, [13.5.15]
cause of conflict, whether resolved, [13.5.25], [13.5.26]
changes, [13.6.4]
continued cohabitation with respondent, [13.5.19], [13.5.20]
likelihood of further acts, [13.5.16], [13.5.18]
likelihood of remaining in contact, [13.5.21]–[13.5.24]
preventative order, not punitive, [13.5.17]
severity of acts of violence, [13.5.20], [13.5.27]
single incident, [13.5.26], [13.5.27]
unresolved dispute, [13.5.25]
personal protection order (PPO), [13.3.1]–[13.3.3]
counselling order, with, [13.3.3], [13.3.10], [13.3.14], 13.D.2
directions for proper carrying into effect, [13.3.3]
exceptions or conditions, [13.3.1]
expedited order pending, [13.3.3], [13.3.4]
same application, [13.3.5]
inciting or assisting violence, prohibiting, [13.3.2]
legal aid to apply, [16.1.3]
necessary, whether, [13.5.1], [13.5.15]–[13.5.27]
preventative, not punitive, [13.5.17]
primary remedy, [13.3.1]
restrained person, [13.3.1]
sample, [13.3.14], 13.D.2
specified term, [13.3.1]
test for grant of, [13.5.1]–[13.5.27]
when court will grant, [13.5.1]
procedure to obtain. See FAMILY VIOLENCE APPLICATIONS
rescission, suspension or revocation [13.6.1]–[13.6.5]
absence of respondent at hearing, [13.7.37], [13.7.38]
allegations insufficient to justify, [13.6.5]
change of circumstances, [13.6.3]
contact between parties, [13.6.4]
incidents after order granted, [13.6.4]
misuse, allegation of, [13.6.5]
necessity, [13.6.4]
onus of proof, [13.6.2]
time since last incident, [13.6.4]
wrongly granted, allegation, [13.6.5]
test for grant of, [13.5.1]–[13.5.27]
family violence, [13.5.1], [13.5.5]–[13.5.14]
imminent danger of family violence, [13.3.4], [13.5.3]
necessity, [13.5.1], [13.5.15]–[13.5.27]
standard of proof, [13.5.1], [13.5.4]
two-stage test, [13.5.2]
trial procedure. See FAMILY VIOLENCE APPLICATIONS
variation, [13.6.1]–[13.6.5]
change of circumstances, [13.6.3]
necessity, [13.6.4]
what constitutes family violence. See FAMILY VIOLENCE
Faraid. See MUSLIM SUCCESSION LAW
Fasakh
Muslim divorce based on, [20.3.16]
husband disagreeing, [20.3.17]
insufficient evidence to prove, [20.3.18]
Financial relief
divorce, judicial separation or nullity, on, [5.1.7]
foreign country, in. See FINANCIAL RELIEF ON FOREIGN DIVORCE
orders for, [5.1.7]
Financial relief on foreign divorce
application for, [5.1.8], [8.3.5]–[8.3.9], [18.5.5]
jurisdictional basis, [18.5.5], [18.5.6]
leave of court, [8.3.6], [18.5.7]
substantial ground for, [18.5.5], [18.5.7]
conditions for grant, [5.1.8], [18.5.5]
Family Justice Court orders, [4.1.4], [5.1.8], [18.5.5]
financial relief already granted by foreign court, [18.5.8]
dismissal of application for leave to apply, [18.5.9]
leave to apply where inadequate, [18.5.8]
method of enforcing, [18.5.8]
jurisdiction of Singapore court, [18.5.5]
bases of, [18.5.6]
habitual residence, [18.5.6]
independent of matrimonial jurisdiction, [18.5.6]
sufficient connection to Singapore, [18.5.6]
leave to apply, [8.3.6], [18.5.7]
appeal against refusal of, [18.5.9]
documentation required, [8.3.8]
particulars required, [8.3.7]
period of habitual residence prior to, [18.5.6]
dismissal of application, [18.5.9]
purpose of requiring, [18.5.7]
relief already granted by foreign court, [18.5.8]
no longer ancillary in nature, [18.5.6]
position prior to 2011, [18.5.5]
Singapore as appropriate forum, [18.5.5], [18.5.7]
summary of law on, [18.5.5]
validity of order in Singapore, [8.3.5]
Women’s Charter, Ch 4A, [8.3.5], [18.5.5]
introduction of, [2.1.7], [4.1.4], [18.5.5]
Foreign maintenance orders
enforcement in Singapore, [18.5.10]
English position, [18.5.11]
FJC jurisdiction, [1.3.1], [3.1.1]
reciprocating country, in, [18.5.10], [18.6.5]
registered orders enforceable in Singapore, [18.5.11]
summons to attend, [18.5.11]
Maintenance Orders (Facilities for Enforcement) Act, [18.5.10]
FJC jurisdiction under, [3.1.1]
orders registered under, [18.5.11]
Maintenance Orders (Reciprocal Enforcement) Act, [18.5.10]
enforcement of foreign orders, [18.5.11]
enforcement of Singapore orders, [18.7.4], [18.7.5]
payments through Official Assignee, [18.5.11]
revocation of, [18.5.11]
variation of, [18.5.10], [18.5.11]
Foreign matrimonial proceedings
financial relief no longer, [18.5.6]
jurisdiction over, [18.5.3]
anti-suit injunctions, [14.4.1]–[14.4.3], [18.4.7]
recognition of divorce, annulment or separation, [18.5.2]–[18.5.4]
ancillary matters, jurisdiction over, [18.5.3]
domicile as basis, [18.5.3]
entitlement to, [8.3.5]
international comity, interests of, [18.5.4]
jurisdiction on same grounds as Singapore court, [18.5.4]
private international law, rules of, [18.5.2]
real and substantial connection, [18.5.3]
sufficient connection between court and party, [18.5.4]
Foreign prenuptial agreements
conflict of laws, [6.3.2]
division of matrimonial assets, [6.3.6], [6.9.4]
divorce proceedings commenced in Singapore, [6.3.6]
enforcement subject to Singapore law, [6.3.6]
anti-suit injunction, [14.4.1]
valid according to contract law principles, [6.3.7]
forum non conveniens application, [18.4.13], [18.4.14]
governing law–
agreement providing for, [6.3.2]
ancillary matters, in relation to, [6.3.6]
determining proper law, [6.3.3]
divorce proceedings commenced in Singapore, [6.3.6]
status under, [6.3.4]
validity under, [6.3.3]–[6.3.5]
proper law, determining, [6.3.3]
public policy, not repugnant to, [6.3.7], [6.3.8]
Singapore-made distinguished, [6.2.10]
status under governing law, [6.3.4]
submission to jurisdiction, [6.3.6]
valid according to Singapore contract law principles, [6.3.7]
valid under law of country, [6.2.7], [6.2.10], [6.3.1]–[6.3.5]
weight given to, [6.3.8]
Forum non conveniens
burden of proof, [3.5.2], [3.5.12], [18.4.5]
choice of law governing divorce, [18.4.25]–[18.4.29]
division of property, approach to, [18.4.21]
immigration policies, consideration of, [18.4.23]
lex fori, [18.4.18], [18.4.26], [18.4.28], [18.4.28]
matrimonial laws, consideration of, [18.4.20]–[18.4.22]
more beneficial forum, [18.4.19]–[18.4.24]
strategically more appropriate forum, [18.4.20]
welfare of child, [18.4.23]
custody proceedings, [3.5.5], [18.4.15]–[18.4.17]
lis alibi pendens, [18.4.16]
seat of parents’ relationship, [18.4.17]
unmarried parents, [18.4.15]
welfare of child, [3.5.5], [3.5.6], [18.4.16]
divorce proceedings, [3.5.4], [18.4.7]–[18.4.10]
choice of law, [18.4.18]–[18.4.29]
interim orders on maintenance and custody, [18.4.13]
marriage already dissolved in other jurisdiction, [18.4.10]
fact-sensitive inquiry, [18.4.6]
holistic and practical approach, [3.5.13]
limitation periods, [3.5.7], [3.5.8]
lis alibi pendens situations, [3.6.1]–[3.6.5], [18.4.14], [18.4.17]
maintenance application, [18.4.11]
more appropriate forum, [3.5.3], [3.5.6], [3.5.8], [3.5.11], [18.4.5], [18.4.8]
appropriate, meaning, [3.5.11]
divorce proceedings, [18.4.24]
location of subject matters, [18.4.14]
prima facie more appropriate, [3.5.11], [18.4.5]
nationality less valuable than residency/domicile, [18.4.12]
natural forum, [3.5.2]
prenuptial agreement made overseas, [18.4.13], [18.4.14]
Spiliada test, [3.5.1]–[3.5.12], [18.4.5], [18.4.12]
application in Singapore courts, [18.4.6], [18.4.8], [18.4.11]
factors-based test, [18.4.12]
stay of proceedings, [3.5.1]–[3.5.13], [18.4.3]–[18.4.24]
appeal against, dismissal of, [18.4.9], [18.4.14]
choice of law and, [18.4.18]–[18.4.29]
considering all circumstances of case, [3.5.11]
justifiable grounds to grant, [18.4.25]
lis alibi pendens, [3.6.3]–[3.6.5], [18.4.14], [18.4.17]
more appropriate forum, [3.5.3], [3.5.6], [3.5.8], [3.5.11], [18.4.5], [18.4.8], [18.4.14], [18.4.24]
other available forum, [3.5.2], [3.5.3], [3.5.7], [18.4.5]
personal or juridical advantage lost, [3.5.9]
principles for grant, [3.5.2], [18.4.4]
special circumstances warranting, [3.5.3]
two-stage test, [3.5.3], [3.5.11], [18.4.4]
time-barred claim, [3.5.7], [3.5.8]
unavailability of relief, [3.5.7], [18.4.10]
absence of jurisdiction distinguished, [3.5.7]
welfare of child, [3.5.5], [3.5.6], [18.4.16]
Freezing orders. See MAREVA INJUNCTIONS
Gifts
matrimonial assets, [4.2.27]–[4.2.30]
both spouses, gift to, [4.2.27]
gifts between spouses, [4.2.31]
inter-spousal re-gifts, [4.2.31], [4.2.35]
Muslim divorce, [20.7.10]
new asset, used to acquire, [4.2.28]–[4.2.30]
one spouse only, gift to, [4.2.27]
“pure” inter-spousal gifts, [4.2.31], [4.2.32]
qualifying words, [4.2.23], [4.2.25]
retaining nature as, [4.2.28]–[4.2.30]
substantial improvement, [4.2.19]–[4.2.21], [4.2.33]–[4.2.35]
third-party gifts, [4.2.31], [4.2.33], [4.2.34]
Grounds for divorce
adultery, [2.4.3]–[2.4.9]
act of, [2.4.4]
agreement as to facts, [2.4.4]
before 3 years of marriage, [2.2.2]
consensual sexual intercourse, [2.4.4]
costs of action, [15.2.13], [15.2.14]
exceptional depravity, [2.2.2]
intervention by third parties, [2.4.9]
intolerable to live with defendant, [2.4.7], [2.4.8]
lack of documentary evidence, [2.4.6]
period of living with defendant after, [2.4.8]
unreasonable behaviour, proceedings based on, [2.4.6]
agreement on facts, [2.4.1]
burden of proof, [2.4.1]
desertion, [2.4.17]–[2.4.19]
actual, [2.4.18]
constructive, [2.4.18], [2.4.19]
costs of action, [15.2.15]
inferred intention, [2.4.18]
periods of reconciliation, [2.4.17]
intolerable to live with defendant–
adultery, [2.4.7], [2.4.8]
unreasonable behaviour, [2.4.11]
irretrievable breakdown of marriage, [2.4.1]
“matrimonial offence” theory replaced by, [2.4.5]
judicial separation as proof of, [2.7.4]
list of situations, [2.4.1]
mediation in relation to, [17.6.3]–[17.6.5]
Muslim divorce, [20.3.14]–[20.3.19]
fasakh, [20.3.14], [20.3.16]
kholok, [20.3.14], [20.3.17]
taklik, [20.3.14], [20.3.15]
talak, [20.3.14]
mutual consent, by, [2.4.21]
“non-fault” grounds, [2.4.2], [2.4.20]
presumption of death, [2.6.1]
separation for 3 years with consent, [2.4.20]–[2.4.25]
consent of both parties to divorce, [2.4.24]
not communicated to other party, [2.4.23]
one party only, [2.4.23]
living under same roof, [2.4.25]
mental requirement, [2.4.23]
“non-fault” ground, [2.4.2], [2.4.20]
physical requirement, [2.4.23]
proof of, [2.4.25]
what constitutes separation, [2.4.22]
separation for 4 years without consent, [2.4.26]–[2.4.27]
intention to end marriage, [2.4.27]
what constitutes separation, [2.4.22], [2.4.27]
unreasonable behaviour, [2.4.10]–[2.4.16]
adultery, [2.4.6]
applicable tests, [2.4.11]
application dismissed, [2.4.12]
cumulative effect, [2.4.11], [2.4.14], [2.4.15]
examples, [2.4.13]
intolerable to live with defendant, [2.4.11]
watering down facts, [2.4.13]
whether reasonable to live with defendant, [2.4.11]
Guardianship of Infants Act
applications involving children, [10.2.3], [11.1.1]
custody or access orders. See CUSTODY OR ACCESS ORDERS UNDER GIA
entitlement to made application under, [10.2.4]
Family Division of High Court, [3.1.6]
lawful guardian–
officially appointed, [12.4.7]
return of child to, [12.4.6]
legal aid for guardianship application by grandparents, [16.1.1]
wardship applications. See WARDSHIP
Hague Application
affidavit in support, [12.2.12], [12.2.17]
age of child, [12.2.6], [12.2.16], [12.2.23]
breach of parent’s custody rights, [12.2.5]
child’s interests, [12.2.15], [12.2.16]
commencement of, [12.2.12]
considerations, [12.2.14]–[12.2.30]
establishing wrongful removal, [12.2.17]–[12.2.19]
agreement between parents, [12.2.18]
consent or acquiescence, [12.2.18], [12.2.19]
unequivocally given, [12.2.19], [12.2.25]
withdrawn, [12.2.19], [12.2.25]
evidence, [12.2.17]
exceptions to return of child, [12.2.24]–[12.2.30]
consent or acquiescence of parent, [12.2.18], [12.2.19], [12.2.24], [12.2.25]
unequivocally given, [12.2.19], [12.2.25]
withdrawn, [12.2.19], [12.2.25]
intolerable situation, [12.2.24], [12.2.26]–[12.2.29]
objections of child, [12.2.23], [12.2.24]
risk of harm, [12.2.24], [12.2.26]–[12.2.29]
allegations of abuse, [12.2.28]
burden of proof, [12.2.26], [12.2.27], [12.2.28]
undertakings by parties, [12.2.29], [12.2.30]
Family Justice Courts, in, [12.2.11]
habitual residence, assessing, [12.2.20]–[12.2.23]
child’s experiences and parents’ shared intentions, [12.2.20]
degree of settled purpose, [12.2.20]
domicile distinguished, [12.2.21]
judicial authorities of Contracting States, by, [12.2.20]
lack of uniform international approach, [12.2.20]
residence of parents, [12.2.21]
time of wrongful removal, at, [12.2.22]
injunction to return child, [14.4.15]
interim custody/access orders, [12.2.13], [12.2.16]
international child abduction, [12.2.3], [12.2.5]–[12.2.8]
legal advice, eligibility for, [16.3.1], [16.4.1]
merits of custody not issue, [12.2.14], [12.2.15]
no existing order as to rights, [12.2.7]
originating summons, [12.2.12]
prerequisites, [12.2.3]
prima facie case for return of child, [12.2.6]
principles, [12.2.14]–[12.2.30]
procedure, [12.2.11]–[12.2.13]
return of child/ren–
aim of Convention, [12.2.14], [12.2.16]
exceptions, [12.2.24]–[12.2.30]
interlocutory injunction, [14.4.15]
prima facie case for, [12.2.6]
seminal case, [12.2.15]
taking out in Singapore, [12.2.5]
time for making, [12.2.6], [12.2.22]
wrongful removal from foreign jurisdiction, [12.2.5]–[12.2.8]
breach of custodial rights, [12.2.5], [12.2.17]
direction to obtain determination as to, [12.2.8]
establishing, [12.2.17]–[12.2.19]
less than one year from, [12.2.6], [12.2.16]
Hague Convention. See also INTERNATIONAL CHILD ABDUCTION
application between Singapore and Contracting States, [12.2.2]
acceptance of Singapore’s accession, [12.2.2]–[12.2.4]
application for return of child under. See HAGUE APPLICATION
articles adopted in Singapore, [12.2.1]
Contracting States, [12.2.2]
International Child Abduction Act adopting, [10.9.2], [12.2.1]
objectives, [10.9.2], [12.2.2], [12.2.14]
overview, [12.1.1]
return of child under, [10.9.3]–[10.9.5]
Singapore as Contracting State, [10.9.1]
Hakam (arbitrator)
Muslim divorce–
ancillary matters beyond scope of power, [20.3.19]
powers and authority of, [20.3.19]
recommendations by, [20.3.18], [20.3.19]
referral to, [20.3.18]
Hantaran
waiver by wife, [20.7.50]
HDB matrimonial asset
CPF housing grant, [5.6.8]
refund after sale, [5.6.12]
transfer without refund, [5.6.14]
division orders, [5.6.7]–[5.6.14]
costs and expenses of sale/transfer, [5.6.11]
net sale proceeds, division of, [5.6.9]
one party retaining flat, [5.6.10]
refund of CPF moneys, [5.6.12]
transfer to one party, [5.6.10]
without CPF refund, [5.6.14]
minimum occupation period, [5.6.8]
Muslim divorce, [20.7.9], [20.7.16], [20.7.17], [20.7.25], [20.7.28], [20.7.31]–[20.7.35]
Syariah Court jurisdiction, [20.3.3]
writ for divorce, judicial separation or nullity involving–
agreed matrimonial property plan, [8.3.10], [8.4.7]
request for checking eligibility, [8.3.11]
service on HDB, [8.3.11]
agreement for lease, standard query for, [8.3.12]
CPF statements, [8.3.14], [8.4.31]
documents required, [8.4.3], [8.4.7], [8.4.8]
particulars of arrangements for housing, [8.4.7], [8.4.8]
proposed matrimonial property plan, [8.3.10], [8.4.8]
defendant’s agreement to, [8.4.31]
standard query, [8.3.12]
written answers to, [8.3.13]
High Court
ancillary relief orders, [5.1.2]
Family Division. See FAMILY DIVISION OF HIGH COURT
jurisdiction, [3.1.3], [3.1.6], [3.1.7]
legal aid available, [16.2.4]
transfer of proceedings–
from Family Court, [1.5.1], [5.1.2]
to Family Court, [1.5.2]
Housing & Development Board (HDB) property
ascertainment of beneficial interests, [9.7.3]
HDB flats, [5.6.7]
matrimonial asset. See HDB MATRIMONIAL ASSET
minimum occupation period, [5.6.8]
In camera proceedings
Incapacitated former husband
definition, [5.5.3]
maintenance orders, [4.3.1], [5.1.6], [5.5.1]–[5.5.4]
commencement of new law, [5.5.1]
considerations, [5.5.1]
expiry of order, [5.5.2]
generally. See MAINTENANCE OF EX-SPOUSE
Inheritance
maintenance order, variation of, [7.4.25], [7.4.26]
Muslim law. See MUSLIM SUCCESSION LAW
Inheritance (Family Provision) Act
Injunctions
anti-suit injunctions, [14.4.1]–[14.4.3]
foreign divorce proceedings, [14.4.1]–[14.4.3], [18.4.7]
Anton Piller orders. See ANTON PILLER ORDERS
children, cases involving, [14.4.13]–[14.4.17]
access, [14.4.17]
extension to person other than custodian, [14.4.14]
International Child Abduction Act, under, [14.1.3], [14.3.15]
passports, return of, [14.4.17]
return to place of habitual residence, [14.4.15]
custody matters, power to grant in, [14.1.3]
freezing orders. See MAREVA INJUNCTIONS
interlocutory. See INTERLOCUTORY INJUNCTIONS
just or convenient to make, [14.2.3]
mandatory, [14.1.1]
Mareva. See MAREVA INJUNCTIONS
matrimonial matters–
anti-suit injunctions, [14.4.1]–[14.4.3], [18.4.7]
Anton Piller orders. See ANTON PILLER ORDERS
children, involving, [14.4.13]–[14.4.17]
interlocutory injunctions, [14.4.4]–[14.4.12]
Mareva injunctions. See MAREVA INJUNCTIONS
power to grant in, [14.1.2]
power to grant–
custody matters, [14.1.3]
Family Court judge or registrar, [14.1.4]
High Court judge, [14.1.4]
inherent jurisdiction, [14.1.5]
matrimonial matters, [14.1.2]
prohibitory, [14.1.1]
property, in relation to, [14.2.1]
detention, preservation or custody, [14.4.4]
quia timet injunction, [14.1.1]
removal of child from Singapore. See REMOVAL OF CHILDREN FROM SINGAPORE
trusts and divorce proceedings, [9.6.5]–[9.6.9]
compliance with notice requirements, [9.6.7]
ex parte application for, [9.6.6]
Mareva injunctions, [9.6.6]–[9.6.9]
restraining dissipation of assets, [9.6.5]
Insurance policies
irrevocable nomination of beneficiary, [20.15.22], [20.15.23]
consent to revocation, [20.15.24]
spouse or children as beneficiaries, [20.15.23]
trust policy, creating, [20.15.23]
matrimonial assets, [5.6.2]
Muslim distribution of estate, [20.15.22]–[20.15.28]
Fatwa 2012, [20.15.27], [20.15.28]
revocable nominations, [20.15.25]–[20.15.27]
upholding principles of Muslim and secular law, [20.15.27]
revocable nomination of beneficiary, [20.15.22], [20.15.23]
Muslims, [20.15.25]–[20.15.27]
who can be beneficiaries, [20.15.24]
Interim custody/access orders. See CUSTODY OR ACCESS INTERIM ORDERS
Interim injunctions. See INTERLOCUTORY INJUNCTIONS
Interim judgment of divorce
ancillary matters not resolved before, [8.8.1], [8.9.2]
application to make final, [3.4.1]–[3.4.7], [8.9.1], [8.9.2]
ancillary relief applications concluded, after, [3.4.2]
death of one party, after, [3.4.7]
time for, [3.4.1]
consent order as to ancillary matters, [8.9.1]
costs, [15.2.5]
making final, [3.4.1]–[3.4.7]
children, satisfactory arrangements for, [3.4.3]–[3.4.6]
death of one party, [3.4.7]
time for, [3.4.1]
no application to make final, [2.5.3]
order as to whether grounds for, [8.6.6]
presumption of death and divorce, [2.6.1]
setting aside or rescission, [2.5.4], [3.4.8]–[3.4.27]
abuse of process/deception of court, [3.4.9], [3.4.10], [3.4.18]
ancillary orders, interest in, [3.4.27]
court’s own motion, [3.4.9]
court’s power, [3.4.8], [3.4.9]
irregularity, [3.4.11]
jurisdictional requirement, [3.4.23]
material facts test, [3.4.13], [3.4.17], [3.4.18], [3.4.21], [3.4.22], [3.4.25]
merits of case, [3.4.12], [3.4.16]
“patently clear” test, [3.4.10], [3.4.18], [3.4.20], [3.4.22]
Saudi Eagle test, [3.4.13], [3.4.14], [3.4.17]
service not properly effected, [3.4.11]
standing requirement, [3.4.23], [3.4.24], [3.4.26]
substantive requirement, [3.4.23], [3.4.25]
uncontested proceedings, [3.4.9]
show cause for not making final, [2.5.2]
material facts not disclosed, [2.5.4]
time for making final, [2.5.1]
Interim maintenance order
ancillary proceedings in progress, [4.3.27]
over-assessment, curing, [4.3.28], [4.3.29]
rescission or variation not possible after final order, [4.3.29]
when court may make, [4.3.27]
Interlocutory injunctions
American Cyanamid principles, [14.4.7]–[14.4.12]
balance of convenience test, [14.4.8], [14.4.10]
children, cases involving, [14.4.13]–[14.4.17]
access, [14.4.17]
extension to person other than custodian, [14.4.14]
International Child Abduction Act, under, [14.1.3], [14.3.15]
passports, injunction to return, [14.4.17]
return to place of habitual residence, [14.4.15]
detention, preservation or custody of property, [14.4.4]
evaluation of relative strengths of parties’ cases, [14.4.12]
ex parte application, [14.4.5]
hearing of, [14.4.5]
notice of, [14.4.5]
lowering risk of injustice, [14.4.9]
maintaining status quo pending trial, [14.4.10]
matrimonial cases, [14.4.4]–[14.4.12]
children, involving, [14.4.13]–[14.4.17]
merits threshold, [14.4.9]
notice of application, [14.4.5]
principles for grant of, [14.4.7]–[14.4.12]
purpose, [14.4.10]
real prospect of claim succeeding, [14.4.8]
serious question to be tried, [14.4.8]
short duration, [14.4.6]
uncompensable damage likely, [14.4.10], [14.4.12]
undertaking as to damages, [14.4.6]
urgent application, [14.4.5]
International Advisory Council, [1.10.2]
International child abduction
allocation of case to international track, [8.1.6]
Hague Convention, [10.9.1], [12.2.1]
application between Singapore and Contracting States, [12.2.2]
acceptance of Singapore’s accession, [12.2.2]–[12.2.4]
application under. See HAGUE APPLICATION
articles adopted in Singapore, [12.2.1]
Contracting States, [12.2.2]
objectives, [12.2.2], [12.2.14]
Singapore as Contracting State, [10.9.1]
injunction to return child, [14.4.15]
interim custody/access orders, [12.2.13], [12.2.16]
International Child Abduction Act, [10.9.2], [12.2.1]
applications under, [1.3.1], [11.1.1], [12.2.1]–[12.2.30]
enactment, [12.2.1]
injunctions, power to grant, [14.1.3], [14.3.15]
Schedule, [10.9.2]
legal advice, eligibility for, [16.3.1], [16.4.1]
overview, [12.1.1]
proceedings heard by FJC, [1.3.1], [3.1.1], [12.2.11]
risk of, [12.1.1]
Singapore Central Authority (SCA), [12.2.9]
assistance from, [12.2.9]
wrongful removal, [12.1.1]
foreign jurisdiction, from. See HAGUE APPLICATION
Singapore, from. See REMOVAL OF CHILDREN FROM SINGAPORE
International family disputes
challenges of, [19.1.3]
child abduction. See INTERNATIONAL CHILD ABDUCTION
choice of law. see CHOICE OF LAW
conflict of laws. See CONFLICT OF LAWS
direct judicial communications, [12.3.15], [12.3.17]
divorce. See FOREIGN MATRIMONIAL PROCEEDINGS
English law. See UNITED KINGDOM LAW
implications of cross-border disputes, [19.1.2]
increase in, [18.1.1]
International Advisory Council, [1.10.2], [19.1.3]
international family mediation framework, [19.1.3]
maintenance. See MAINTENANCE: CONFLICT OF LAWS
matrimonial finance–
Australian law. See AUSTRALIAN LAW
meaning, [19.1.5]
NZ law. See NEW ZEALAND LAW
other jurisdictions, [19.1.4]
UK law. See UNITED KINGDOM LAW
matrimonial proceedings–
foreign. See FOREIGN MATRIMONIAL PROCEEDINGS
new initiatives to deal with, [1.10.1], [19.1.1]
removal of children. See REMOVAL OF CHILDREN FROM SINGAPORE
validity of marriage. See VALIDITY OF MARRIAGE
Interrogatories
ancillary matters in divorce proceedings, [8.8.19]–[8.8.28]
further and better particulars, request for, [8.8.25]
insufficient answers, [8.8.25]
order for party to answer, [8.8.23]
response not forthcoming, [8.8.21]
time for response, [8.8.19]
adverse inference, [8.8.28]
committal, liable for, [8.8.26]
leave to rely on documents, [8.8.27]
Intestate Succession Act
Muslims, not applicable to, [20.15.1]
Joint bank accounts
Muslim distribution of estate, [20.15.29]
Joint tenancy
Muslim succession law–
distribution of estate, [20.15.11]–[20.15.14]
fatwa 2007, [20.15.11]–[20.15.13]
right of survivorship, [20.15.11]–[20.15.14]
secular law overriding, [20.15.13], [20.15.14]
Judge-led approach
child and complex cases, [15.2.18]
Family Justice Courts, [1.9.2], [1.9.3], [8.1.1]–[8.1.18]
interim custody/access order applications, [11.6.15], [11.6.21]
judicial interviews, [11.8.6]
mediation, [17.3.5], [17.3.6], [17.4.1], [17.4.25]
Judicial interview with child
custody or access proceedings, [11.8.5]–[11.8.10]
ability of child to express views, [11.8.7]
advantage of, [11.8.3], [11.8.5]
counsellor, presence of, [11.8.10]
discretion of judge, [11.8.5]
endorsement of concept, [11.8.6]
neutral environment, [11.8.10]
objection by other parent, [11.8.8]
request for, [11.8.3], [11.8.5]
venue, [11.8.10]
who may be present, [11.8.10]
Judicial separation
alternative to divorce, [2.7.1]
choice of law, [18.4.27]
commencement of proceedings, [8.4.1]
desertion, on ground of, [2.7.3]
rescission where reasonable cause, [2.7.3]
divorce grounds, [2.7.2]
effect of grant of, [2.7.2], [2.7.5]
personal reasons, [2.7.1]
pleadings, [8.4.27]–[8.4.32]
rescission of judgment, [2.7.3]
service of writ. See also SERVICE
acknowledgement of, [8.4.10], [8.4.13]
co-defendant, on, [8.4.11]
dispensation of, [8.4.22]–[8.2.24]
documents to accompany, [8.4.10]
outside jurisdiction, [8.4.14]–[8.4.16]
personal, [8.4.10]
registered post, by, [8.4.10], [8.4.13], [8.4.15]
solicitors accepting, [8.4.12]
substituted service, [8.4.17]–[8.4.21]
within jurisdiction, [8.4.10]–[8.4.13]
writ for, [8.4.1]
documents to be filed with, [8.4.3]
extension of validity, [8.4.2]
FJC Practice Directions, [8.4.5]
notice of renewal, [8.4.2]
parenting plan, [8.4.6]
service of, [8.4.10]–[8.4.24]
statement of claim, [8.4.3]–[8.4.5], [8.4.9]
statement of particulars, [8.4.3]–[8.4.5]
validity, [8.4.2]
writ of divorce–
alternative to, [2.7.1]
judgment proof of grounds, [2.7.4]
not bar to, [2.7.2]
Jurisdiction
children’s issues, [3.3.1]–[3.3.6]
child out of jurisdiction, [3.3.1]–[3.3.4]
special circumstances, [3.3.2]–[3.3.4]
residence in Singapore, [3.3.1], [3.3.5], [3.3.6]
definition, [3.1.7]
divorce. See JURISDICTION IN MATRIMONIAL PROCEEDINGS
Family Courts, [1.4.7], [3.1.1]
Family Division of High Court, [1.4.2], [3.1.3], [3.1.5]
actions in personam, [3.1.6]
appellate, [1.4.5], [3.1.3]
divorce, [3.1.6], [3.2.1]–[3.2.10]
guardianship, [3.1.6]
maintenance, [3.1.6]
original, [1.4.4], [3.1.3], [3.1.5]
submission to, [3.1.6]
Syariah Court, concurrent jurisdiction, [3.1.6]
wills and probate, [3.1.6]
forum. See FORUM NON CONVENIENS
matrimonial proceedings. See JURISDICTION IN MATRIMONIAL PROCEEDINGS
Supreme Court of Judicature Act, under, [3.1.6]
Youth Courts, [1.4.8], [3.1.1]
Jurisdiction in matrimonial proceedings
children’s issues, [3.3.1]–[3.3.6]
domicile in Singapore, [2.3.1]–[2.3.5], [3.2.3]–[3.2.9], [18.2.3], [18.4.1], [18.4.2]
concept of. See DOMICILE
domicile of choice, [2.3.5], [3.2.5], [3.2.7], [3.2.8], [18.2.14]–[18.2.20]
either party, [2.3.3], [3.2.4]
presumption of, [2.3.4], [3.2.3], [18.2.4]
residence as evidence, [3.2.9], [18.2.15], [18.2.16]
Singapore citizen, [3.2.3], [18.2.4]
voluntary residence, [3.2.5], [3.2.8]
habitual residence in Singapore, [2.3.1], [2.3.6], [3.2.4], [3.2.10], [18.2.22]–[18.2.24], [18.4.1], [18.4.2]
concept of. See RESIDENCE
minimum qualifying period, [2.3.7], [3.2.10], [18.2.22]
principles, [3.2.10], [18.2.22]
nullity proceedings, [2.3.1]–[2.3.8], [3.2.4], [18.2.25]
less substantial connection required, [18.2.25]
“marriage”, meaning, [2.3.1]
residence in Singapore, [18.2.25], [18.4.2]
void or voidable marriage, ground of, [2.3.1], [2.3.8]
petitioner’s claim for, [2.3.2]
Women’s Charter, [2.3.1]–[2.3.6], [3.2.1]–[3.2.10], [18.2.22]
habitual residence under, [18.2.22]–[18.2.24]
marriages governed by, [3.2.2]
residence under, [18.2.25]
Kholok
Muslim divorce by, [20.3.14], [20.3.17]
hakam recommendation for, [20.3.19]
Legal aid
application for–
appeal, fresh application, [16.6.2]
eligibility tests. See LEGAL AID: ELIGIBILITY
false or misleading statement in, [16.10.1]
minor, on behalf of, [16.16.4]
no fee for, [16.5.3]
procedure, [16.5.1]–[16.5.8]
time frame, [16.5.8]
application where proceedings pending, [16.11.1]
interlocutory order not prevented, [16.11.4]
notice to parties, [16.11.1]
orders not prevented, [16.11.4]
proceedings not prevented, [16.11.5]
section 17 certificate, [16.11.1], [16.11.2]
stay of proceedings, [16.11.2], [16.11.3]
Assigned Solicitors. See LEGAL AID: ASSIGNED SOLICITORS
Assistant Directors, [16.17.1], [16.17.3]
barring order, [16.15.1]
cancellation of, [16.14.1]
barring order after 3 times, [16.15.1]
circumstances, [16.14.4]
court, by, [16.14.6]
Director, by, [16.14.1]
effect, [16.14.2], [16.14.3]
filing notification court, [16.14.1]
informing aided person, [16.14.1]
notice of, [16.14.1]
opportunity to show cause, [16.14.5]
stay of proceedings, [16.14.2]
taxation of costs of proceedings, [16.14.3]
civil proceedings, [16.2.4]
conflict cases, [16.7.1]
assignment to Assigned Solicitor, [16.7.1], [16.18.1]
contribution by aided person. See LEGALLY AIDED PERSON
court proceedings, assistance with, [16.2.3]
Director of Legal Aid, [16.4.3], [16.17.1]
Assistant Directors, [16.17.1], [16.17.3]
cancellation of aid by, [16.14.1]
charge on unpaid contribution, [16.12.13], [16.13.2]
proceedings to enforce, [16.13.5]
costs awarded, payment to, [16.13.3], [16.13.4]
discretion to reduce, waive or refund contribution, [16.12.12]
discretion to refuse aid, [16.4.13], [16.4.14]
enforcement proceedings, [16.13.5]
grant of aid not required, [16.13.6]
minors, inquiries in relation to, [16.16.4]
out-of-pocket expenses, payment of, [16.12.15]
payment of moneys to, [16.13.1]
powers in relation to financial matters, [16.13.1]–[16.13.6]
divorce proceedings–
abusive husband, [16.1.4]
gambling-addict husband, [16.1.2]
stay on application for aid, [16.11.3]
duty officer, meeting with, [16.5.2], [16.5.3]
eligibility. See LEGAL AID: ELIGIBILITY
false or misleading statement, [16.10.1]
grant after proceedings commenced, [16.9.1]
aided person becoming party to proceedings, [16.9.2]
fund not liable for costs incurred before, [16.9.1]
party to proceedings becoming aided person, [16.9.2]
payment to solicitor, [16.9.1]
solicitor notifying Director, [16.9.1]
Grant of Aid, [16.5.7], [16.6.1]
acceptance of terms, [16.5.7]
after proceedings commenced, [16.9.1], [16.9.2]
filing in court, [16.5.7]
issue of, [16.5.7]
notification of terms, [16.5.6]
one action, for, [16.6.1]
procedure after, [16.5.6]–[15.5.7]
provisional (PGA), [16.8.1]–[16.8.4]
scope of, [16.6.1], [16.6.2]
grant or refusal, [16.5.5]
Legal Aid Board decision, [16.4.3], [16.5.5]
guardianship application by grandparents, [16.1.1]
legal advice, [16.2.6]–[16.2.7]
eligibility for, [16.3.1]–[16.3.2]
international child abduction cases, [16.3.1]
means test, [16.3.2]
operation of service, [16.2.7]
questions of Singapore law, [16.2.6]
session, [16.5.2]
Legal Aid Board, [16.4.3]
Assigned Solicitors sitting on, [16.18.1]
decision on grant, [16.4.3], [16.5.5]
Legal Aid Bureau, [16.2.1], [16.19.1]
examples of cases dealt with by, [16.1.1]–[16.1.4]
governing legislation, [16.2.2]
in-house legal officers, [16.17.1], [16.17.2]
legal advice, [16.2.6]–[16.2.7]
legal aid, [16.2.3]–[16.2.5]
legal assistance, [16.2.8]
number of cases, [16.2.1]
paralegals, [16.17.2]
purpose, [16.2.1], [16.19.1]
services, [16.2.3]–[16.2.8]
staff and structure, [16.17.1]–[16.17.3]
trained counsellors, [16.5.9]
volunteers, [16.17.3]
workflow and processes, [16.5.1]–[16.5.9]
legal aid file–
one for each action, [16.6.1]
opening, [16.5.2]
review, [16.5.5]
Legal Aid Fund–
costs incurred before grant, not liable for, [16.9.1]
first charge on unpaid contribution, [16.12.13], [16.13.2]
payment of costs to, [16.13.1]
legal aid services, [16.2.3]–[16.2.5]
legal assistance services, [16.2.8]
legally aided person. See LEGALLY AIDED PERSON
means test. See LEGAL AID: ELIGIBILITY
minors, [16.16.1]–[16.16.8]
application by guardian, [16.16.2]
Director’s power to make inquiries, [16.16.4]
guardian, definition, [16.16.2]
means test, [16.16.5], [16.16.6]
merits test, [16.16.7]
relative, definition, [16.16.6]
turning 21 years, [16.16.8]
undertaking by guardian, [16.16.3]
more than one party in same proceedings, [16.7.1]
offence, [16.10.1]
personal protection order application, [16.1.3]
privileges of legally aided person. See LEGALLY AIDED PERSON
Provisional Grant of Aid (PGA), [16.8.1]–[16.8.4]
conduct of court proceedings, [16.8.3]
Grant of Aid superseding, [16.8.4]
pending means and merits tests, [16.8.2]
rights and privileges of aided person, [16.8.4]
urgent cases, [16.8.1]–[16.8.4]
public interest, grant in, [16.4.15]
responsibilities of legally aided person. See LEGALLY AIDED PERSON
scope of grant, [16.6.1], [16.6.2]
section 17 certificate, [16.11.1]–[16.11.5]
services, [16.2.3]–[16.2.5]
social services referral, [16.5.9]
stay of proceedings on application for, [16.11.2]
stay of proceedings on cancellation of, [16.14.2]
terms of grant–
acceptance, [16.5.7]
notification, [16.5.6]
time frame, [16.5.8]
urgent cases, [16.8.1]–[16.8.4]
Provisional Grant of Aid, [16.8.1]–[16.8.4]
Legal aid: Assigned Solicitors
appeal against refusal of, [16.18.3]
disqualification from, [16.18.2]
assignment of cases to, [16.5.7], [16.18.1]
Director’s decision, [16.18.10]
opinion on merits, for, [16.5.5]
requesting particular solicitor, [16.18.10]
conduct of proceedings by, [16.18.12]
actions requiring Director’s leave, [16.18.12]
updating Director on progress, [16.18.12]
conflict cases assigned to, [16.7.1], [16.18.1]
costs, [16.18.4]–[16.18.9]
Director’s power to pay, [16.13.1], [16.18.6]
fee for work, [16.18.4], [16.18.6]
sum payable, [16.18.5]
discharge by aided person, leave for, [16.18.11]
discharge of self, [16.18.13]
grounds for, [16.18.13]
report to Director, [16.18.14]
discontinuation of aid, leave for, [16.18.11]
duty of disclosure, [16.12.3]
expert evidence, permission regarding, [16.18.12]
Legal Aid Board, sitting on, [16.18.1]
merits test, on panel for, [16.5.5], [16.18.1]
opinion on merits of case, [16.5.5]
removal or exclusion, [16.18.2]
appeal against, [16.18.3]
role of, [16.18.1]
solicitor-client privilege, [16.12.2], [16.12.3]
termination of retainer, [16.14.2]
Legal aid: eligibility
advice, for, [16.3.1], [16.3.2]
appeal, fresh application for, [16.6.2]
Director’s discretion, [16.4.13], [16.4.14]
excepted civil proceedings, [16.2.5]
exceptional cases, [16.4.11]–[16.4.15]
Director’s discretion, [16.4.13], [16.4.14]
public interest, [16.4.15]
sudden loss of income, [16.4.12]
sudden physical or mental disability, [16.4.11]
international child abduction cases, [16.3.1], [16.4.1]
Legal Aid Board decision, [16.4.3]
means test, [16.4.2], [16.4.4]–[16.4.10]
advice for, [16.3.2]
capital part, [16.4.5]–[16.4.7]
detailed, [16.5.4]
disposable capital property, [16.4.5]–[16.4.7]
exclusions, [16.4.6], [16.4.7]
family proceedings, [16.4.7]
disposable income, [16.4.8]–[16.4.10]
deductions, [16.4.9]
spouse’s income disregarded, [16.4.10]
exceptions to requirement to pass–
sudden loss of income, [16.4.12]
sudden physical or mental disability, [16.4.11]
Form 1 statement, [16.5.4]
income part, [16.4.5]–[16.4.10]
legal advice, for, [16.3.2]
minor, [16.16.5], [16.16.6]
preliminary, [16.5.1]
provisional grant of aid pending, [16.8.1]
supporting documents, [16.5.4]
merits test, [16.4.2], [16.4.3]
Assigned Solicitors on panel, [16.5.5], [16.18.1]
minor, [16.16.7]
provisional grant of aid pending, [16.8.1]
minors, [16.16.1]–[16.16.7]
inquiries by Director, [16.16.4]
means test, [16.16.5], [16.16.6]
permanent resident of Singapore, [16.4.1]
preliminary means test, [16.5.1]
Singapore citizen, [16.4.1]
Legally aided person
becoming party to proceedings, [16.9.2]
cancellation of aid–
barring order after 3 times, [16.15.1]
circumstances, [16.14.4]
effect, [16.14.2], [16.14.3]
informing of, [16.14.1]
opportunity to show cause, [16.14.5]
contribution, [16.12.12]
amount, [16.12.12]
Director’s discretion to reduce, waive or refund, [16.12.12]
first charge on unpaid sum, [16.12.13], [16.13.2]
grant of aid on payment of, [16.5.7]
liability to pay, [16.12.12]
costs, [16.12.6]–[16.12.10]
Assigned Solicitor, [16.18.4]–[16.18.9]
disbursements included, [16.12.6]
fraud or misrepresentation, where, [16.12.7]
generally not liable, [16.12.6]
nominal, [16.12.9]
payment to Director, [16.13.3], [16.13.4]
taxation of, [16.12.8]
cancellation of aid, [16.14.3]
unreasonable or improper application, [16.12.9], [16.12.10]
when liable for, [16.12.7]–[16.2.10]
court fees, not liable for, [16.12.4]
exception, [16.12.8]
deposit for out-of-pocket expenses, [16.12.14]
Director may pay, [16.12.15]
reimbursing Director for, [16.12.15]
deposit to Official Assignee, not liable for, [16.12.5]
fees, not liable for, [16.12.4]
exception, [16.12.8]
notes of evidence supplied free to, [16.12.4]
party to proceedings becoming, [16.9.2]
privileges, [16.12.1]–[16.12.10]
costs, [16.12.6]–[16.12.10]
fees, [16.12.4]
responsibilities, [16.12.11]–[16.12.16]
contribution, [16.12.12], [16.12.13]
deposit for out-of-pocket expenses, [16.12.14], [16.12.15]
Legitimacy of children
annulment of marriage and, [2.8.7]
Legitimacy Act–
Muslims, not applicable to, [20.14.6]
Muslim law, [20.14.6]
illegitimate children, [20.5.11]
custody of, [20.5.11]
inheritance, [20.15.4], [20.15.6]
Lis alibi pendens
common plaintiff situations, [3.6.1]
considerations for court, [3.6.3]
estoppel problems, [3.6.3], [3.6.5]
existing proceedings in another jurisdiction, [3.6.1], [3.6.2]
forum election doctrine, [3.6.1], [3.6.3]
forum non conveniens, [3.6.1], [3.6.4], [18.4.14]
genuine proceedings, [3.6.5]
reasons for avoiding, [3.6.5]
refusal of stay, [3.6.3]
reversed party situations, [3.6.1]
same parties and issues, [3.6.1], [3.6.3]
stay of proceedings, [3.6.3]–[3.6.5]
Litigants in person
compensatory costs, [15.3.22]
increase in number of, [17.3.10], [17.4.20]
Maintenance Mediation Chambers (MMC) mediations, [17.3.10]
support for, [2.1.4]
Maintenance
Australia, [19.4.8]–[19.4.16]
children, [19.4.12]–[19.4.16]
spouse, [19.4.8]–[19.4.11]
conflict of laws. See MAINTENANCE: CONFLICT OF LAWS
during marriage. See MAINTENANCE OF SPOUSE
ex-spouse. See MAINTENANCE OF EX-SPOUSE
foreign orders. See FOREIGN MAINTENANCE ORDERS
New Zealand, [19.4.17]–[19.4.22]
children, [19.4.21]–[19.4.22]
ex-spouse, [19.4.19]–[19.4.20]
spouse, [19.4.17]–[19.4.18]
United Kingdom, [19.4.1]–[19.4.7]
children, [19.4.1], [19.4.6], [19.4.7]
division of assets not distinguished from, [19.3.1]
ex-spouse, [19.3.1]–[19.3.3]
interim lump sum pending divorce proceedings, [19.4.4]
periodical or lump sum payments, order for, [19.3.1], [19.3.3], [19.4.3]
rent, payment of, [19.4.5]
spouse, [19.4.1]–[19.4.5]
unmarried couples, [19.4.1]
variation of order. See VARIATION OF MAINTENANCE ORDER
wife. See MAINTENANCE OF SPOUSE
Maintenance: conflict of laws
application for maintenance of wife, [18.6.1]–[18.6.6]
foreign marriage, [18.6.2]–[18.6.4]
husband working and earning income in Singapore, [18.6.4]
one party residing overseas, [18.6.5]–[18.6.6]
reciprocating country, [18.6.5]
enforcement of foreign orders, [18.5.10], [18.5.11]
English position, [18.5.11]
FJC jurisdiction, [1.3.1], [3.1.1]
reciprocating country, [18.5.10], [18.6.5]
registered orders enforceable in Singapore, [18.5.11]
summons to attend, [18.5.11]
enforcement of Singapore orders, [18.7.1]–[18.7.7]
husband residing overseas, [18.7.5]–[18.7.7]
collection and enforcement of maintenance, [18.7.6]
documentation required, [18.7.6]
transmission of orders, [18.7.6]
reciprocating country, [18.7.4], [18.7.5]
revocation of order, [18.7.7]
variation of order, [18.7.7]
wife residing overseas, [18.7.1]–[18.7.4]
attendance by complainant, [18.7.1]
bankruptcy application, [18.7.3]
fresh action to obtain judgment, [18.7.4]
garnishee proceedings not available, [18.7.3]
procedural difficulties, [18.7.1], [18.7.2]
Maintenance Orders (Facilities for Enforcement) Act, [18.5.10]
Maintenance Orders (Reciprocal Enforcement) Act, [18.5.10]
enforcement of foreign orders, [18.5.10], [18.5.11]
enforcement of Singapore orders, [18.7.4], [18.7.5]
recognition of divorce, annulment or separation, [18.5.2]–[18.5.4]
Maintenance Mediation Chambers (MMC)
formation in 2007, [17.3.8]
mediated consent orders, [17.3.10]
mediations, [17.3.8], [17.5.19]
court staff and volunteer mediators, by, [17.3.8]
litigants in person, [17.3.10]
part of maintenance application process, [17.3.9]
settlement of cases at, [17.3.10], [17.5.19]
merger into FDR Division, [17.3.28]
purpose of scheme, [17.5.18]
Maintenance of children
age of majority, [5.3.3]
amount, [5.3.2], [5.3.4]
appeal against interim order, [11.4.2]
assessment of amount, [5.3.2]
Australia, [19.4.12]–[19.4.16]
child support assessment, [19.4.13], [19.4.15]
Child Support Scheme, [19.4.13]
duty of parents, [19.4.12]
Family Law Act, order under, [19.4.16]
formulas for determining amount, [19.4.14]
departure from, [19.4.15]
variety of arrangements, [19.4.13]
court’s power to make orders, [5.1.4], [10.4.46]
definition of maintenance, [10.4.49]
disabled child, [5.3.2], [5.3.3]
over 21 years, [5.3.3]
during course of marriage, [10.4.52]–[10.4.57]
duration of order, [10.4.57]
factors determining amount, [10.4.56]
lump sum payment, [10.4.53], [10.4.54]
monthly payments, [10.4.53]
neglect or refusal to provide, [10.4.52]
types of orders, [10.4.53]
who can apply, [10.4.55]
during divorce proceedings, [10.4.58]
duty to maintain child, [5.3.1], [10.4.47]–[10.4.51]
both parents, [10.4.47]–[10.4.50]
contracting out not permitted, [10.4.51]
independent and non-derogable, [10.4.50]
education expenses, [5.3.4]
addition order for, [5.3.4], [5.3.7]
examples of orders, [5.3.7]
expenses to be covered, [5.3.4]
FDR Conference dealing with, [17.5.7]
interim maintenance orders, [10.4.46]
liability period, [5.3.3]
lump sum payments, [5.3.6]
mode of payment, order for, [5.3.5]
monthly payments, [5.3.5], [5.3.7]
education expenses in addition to, [5.3.4], [5.3.7]
national service, child serving, [5.3.3]
New Zealand, [19.4.21], [19.4.22]
formulas for determining amount, [19.4.22]
level of support, [19.4.21]
qualification for, [19.4.21]
orders relating to, [5.1.4], [5.3.1]–[5.3.7]
prenuptial agreement, [6.4.7], [6.6.1], [6.6.2], [6.9.3]
shared care and control, orders not necessary, [5.3.5], [11.5.19]
tertiary education, enrolled in, [5.3.3]
types of orders, [10.4.53]
United Kingdom law, [19.4.6], [19.4.7]
Child Maintenance Options, [19.4.6]
obligations of parents, [19.4.1], [19.4.6], [19.4.7]
variation of order. See also VARIATION OF MAINTENANCE ORDER
agreement, variation of, [7.1.8]–[7.1.10]
changes in general costs, [10.4.60]
proof of change in circumstances, [10.4.60]
quantum of maintenance, [10.4.59]
reasonable and for welfare of child, [7.1.8], [7.1.9], [7.4.3], [7.4.13]
responsibilities to child, [7.4.4]
statutory provisions, [7.1.4], [7.1.5]
Maintenance of ex-spouse
agreement to compound maintenance, [4.3.23]
amount, determining, [4.3.11]–[4.3.16], [5.4.1]
accustomed standard of living, [4.3.13], [5.4.2]
commonsense holistic manner, [4.3.12]
considerations, [4.3.11], [5.2.1]
lump sum award, [4.3.19], [5.2.3]
misconduct, effect of, [4.3.15], [4.3.16]
potential inconsistency with reality, [4.3.12]
sense of justice, [4.3.14]
Women’s Charter requirements, [4.3.11]
ancillary orders by FJC, [4.1.1], [5.1.5]
divorce granted overseas, [4.1.4]
appeal against interim order, [11.4.2]
application for, [4.3.3]–[4.3.6]
nominal maintenance, [4.3.5]
only one permitted, [4.3.3]
arrears, [4.3.24]–[4.3.26]
death of defaulter, [4.3.25]
recoverable as debt, [4.3.25]
remarriage, declaration as to, [2.1.8], [4.3.26]
time limit for recovery, [4.3.24]
unsecured maintenance, [4.3.25]
backdating, [4.3.28]
interim order overly generous, [4.3.28]
basis for grant, [4.3.8]–[4.3.10]
death of party, order expiring on–
incapacitated former husband, [5.5.3]
secured order, [5.4.5]
unsecured order, [5.4.4]
dismissal of application–
no further application, [4.3.3]
short marriage, career woman, [4.3.6]
duration of order, [4.3.7]
duty to provide, [4.3.1]
expiry of order–
secured order, [5.4.5]
final maintenance order, [4.3.27]
over-assessment in interim order, curing, [4.3.28], [4.3.29]
financial dependency during marriage, unrelated to, [4.3.10]
financial preservation principle, [4.3.8]
FJC jurisdiction, [1.3.1]
former wife, [4.3.1], [5.4.1]–[5.4.6]
homemaker spouse not disadvantaged, ensuring, [4.3.9]
incapacitated former husband, [4.3.1], [5.1.6], [5.5.1]–[5.5.4]
commencement of new law, [5.5.1]
considerations, [5.5.1]
definition, [5.5.3]
expiry of order, [5.5.2]
interim maintenance order, [4.3.27]–[4.3.29]
ancillary proceedings in progress, [4.3.27]
over-assessment, curing, [4.3.28], [4.3.29]
rescission or variation not possible after final order, [4.3.29]
legal duty, [4.3.1]
lump sum orders, [4.3.17], [5.4.3]
appropriate multiplier, [4.3.19]–[4.3.22]
calculating amount, [4.3.19]
variation, [7.2.5], [7.2.6]
when appropriate, [4.3.17]
mediation, [17.6.9], [17.6.10]
division of property and, [19.4.20]
nominal maintenance, order for–
not automatically granted, [4.3.5]
preserving entitlement, [4.3.4], [7.2.2]
preserving right to apply for variation, [7.2.2]
varied, whether may be, [7.2.2], [7.2.3]
one-sidedness of provision, [4.3.2]
orders relating to, [4.1.1], [5.1.5]
unsecured, [5.4.4]
periodic payments, [4.3.18]
payee spouse likely to remarry, [4.3.18]
principles, [4.3.8]–[4.3.10]
division of assets, supplementing, [4.3.9]
financial preservation, [4.3.8]
relative economic disparities, evening out, [4.3.10]
remarriage–
declaration as to liabilities, [2.1.8], [4.3.26]
order expiring on, [5.4.4], [5.4.5]
statutory directives, [4.3.11]-[4.3.16]
United Kingdom, [19.3.1]–[19.3.3]
division of assets not distinguished, [19.3.1]
periodical or lump sum payments, order for, [19.3.1], [19.3.3]
Women’s Charter, [2.1.7], [4.3.1], [4.3.9], [4.3.10]
determining amount, [4.3.11]–[4.3.16]
enforcement of, [2.1.7]
Maintenance of Parents Act
Maintenance of spouse
application for–
Magistrate’s Complaint, by, [18.6.6]
one party residing overseas, [18.6.5]–[18.6.6]
Australia, [19.4.8]–[19.4.11]
factors to be taken into account, [19.4.10]
interim or periodic orders, [19.4.11]
power of court to order, [19.4.8]
neglect or refusal by husband to provide, [18.6.2]
New Zealand, [19.4.17]–[19.4.19]
factors to be considered [19.4.18]
obligations of parties, [19.4.18]
rescission of order, [7.1.2], [7.1.16]
beneficiary no longer in need, [7.4.16]
husband unable to pay, [7.4.16]
wife’s inheritance, [7.4.25]
United Kingdom, [19.4.1]–[19.4.5]
failure to provide, [19.4.2], [19.4.3]
periodical or lump sum payments, order for, [19.4.3]
foreign orders, application to, [18.6.3]
Muslims, applicable to, [20.14.2]
Mandatory mediation and counselling. See MEDIATION AND COUNSELLING
Mandatory Parenting Program
consultation with Divorce Support Specialist Agency, [11.5.6]
divorce involving children, [11.5.5], [11.5.6]
goal of, [11.5.6]
self-help sections, [11.5.6]
Mareva injunctions
abuse, danger of, [14.2.1], [14.2.3]
assets to which injunction can apply, [14.2.9]
assets within jurisdiction, [14.2.4]
grounds for believing, [14.2.8]
identification of, [14.2.8]
bank accounts, [14.2.9], [14.2.13]
case named after, [14.2.2]
chattels, [14.2.9]
choses in action, [14.2.9]
collateral to main action, [14.2.1]
company goodwill, [14.2.9]
effect, [14.2.1]
ex parte interim injunction, [14.2.10]
full and frank disclosure of material facts, [14.2.4]
good arguable case, [14.2.4], [14.2.5]
identification of subject-matter, [14.2.8]
interim injunction, [14.2.10]
interlocutory remedy, [14.2.3]
judicial comment on, [14.2.3]
just or convenient to make, [14.2.3]
land, [14.2.9]
matrimonial assets, in relation to, [14.2.11]
joint accounts, [14.2.13]
proceeds of sale of matrimonial home, [14.2.10]
property in joint names, [14.2.11]
worldwide injunction, [14.2.12]
real risk of dissipation, [14.2.4], [14.2.6], [14.2.7]
relevant considerations, [14.2.6]
requirements for grant, [14.2.4]
trusts and divorce proceedings, [9.6.5]–[9.6.9]
abuse of process, [9.6.7]
trustee affected by, [9.6.8]
trustee located overseas, [9.6.9]
valid cause of action, [14.2.4]
worldwide injunction, [14.2.12]
Marriage
annulment. See NULLITY OF MARRIAGE
assets of. See MATRIMONIAL ASSETS
breach of promise of–
legal aid not available, [16.2.5]
breakdown of, [2.1.3]
courts’ handling of, [2.1.3], [2.1.4]
divorce. See DIVORCE
Chinese customary marriage, [2.9.1]–[2.9.3]
cut-off date, [2.9.1], [2.9.2]
intestacy case, [2.9.3]
primary and secondary wives, [2.9.3]
recognition in law, [2.9.3]
validity, [2.9.1]–[2.9.3]
void after cut-off date, [2.9.2]
cross-cultural and cross-national marriages, [2.1.3]
validity of. See VALIDITY OF MARRIAGE
divorce. See DIVORCE
family unit, [2.1.1], [2.1.2]
breakdown of, [2.1.3], [2.1.4]
empathic blending, [2.1.2]
importance of, [2.1.1], [2.1.2]
homemaker spouse, role of, [4.2.5]
international elements. See VALIDITY OF MARRIAGE
licence–
marriage preparation before issue of, [2.1.8]
remarriage for, declaration of maintenance orders, [2.1.8]
Muslim. See MUSLIM MARRIAGES
nullity. See NULLITY OF MARRIAGE
partnership, as, [4.2.3]–[4.2.5], [9.1.9]
polygamous. See POLYGAMOUS MARRIAGE
preparation programmes, [2.1.8]
property held during. See PROPERTY HELD DURING MARRIAGE
Registry of Marriages, [20.2.2]
solemnisation in Singapore, [18.3.4], [18.3.5] [20.2.2]
validity of. See VALIDITY OF MARRIAGE
Women’s Charter–
formal requirements, [18.3.4]
governed by, [3.2.1], [3.2.2]
validity under, [18.3.4], [18.3.19]–[18.3.26]
Matrimonial assets
acquired before marriage, [4.2.16]–[4.2.18], [5.6.1]
general exclusion, [4.2.16]
holiday or investment home, [4.2.18]
Muslim divorce, [20.7.6]–[20.7.9]
qualifying words, [4.2.24]
recreational purposes, used for, [4.2.18]
situations where included, [4.2.16]
substantial improvement, [4.2.16], [4.2.19]–[4.2.21]
used or enjoyed by both parties or their children, [4.2.16]
acquired during marriage, [4.2.10]–[4.2.15], [5.6.1]
after breakdown of marriage, [4.2.12]
assets left out of pool, [4.2.15]
date for determining, [4.2.11]–[4.2.13]
during marriage, meaning, [4.2.11]
interim or final judgment as date, [4.2.11]–[4.2.14]
Muslim divorce, [20.7.3]–[20.7.6]
bank accounts, [5.6.2]
club memberships, [5.6.2]
costs of proceedings, use to pay, [15.2.16]
CPF moneys, [4.2.50], [5.6.2]
date for identifying, [5.6.3]
date for valuing, [5.6.3], [5.6.4]
definition, [4.2.8]–[8.4.38], [5.6.1]
division of. See DIVISION OF MATRIMONIAL ASSETS
examples, [5.6.2]
freezing orders. See MAREVA INJUNCTIONS
gift or inheritance, [4.2.27]–[4.2.30]
both spouses, gift to, [4.2.27]
gifts between spouses, [4.2.31]
inter-spousal re-gifts, [4.2.31], [4.2.35]
“pure” inter-spousal gifts, [4.2.31], [4.2.32]
immovable properties, [5.6.2]
insurance policies, [5.6.2]
investments, [5.6.2]
Mareva injunctions. See MAREVA INJUNCTIONS
Muslim divorce. See MUSLIM DIVORCE: DIVISION OF ASSETS
personal effects, [5.6.2]
property held during marriage, [4.2.1], [4.2.2]
Australia, [19.2.7]–[19.2.8]
general rules of property, [4.2.2], [19.2.1], [19.2.8]
marriage as partnership, [4.2.3]–[4.2.5]
marriage not altering rights, [4.2.1], [19.2.3]
separation of property regime, [4.2.2]
United Kingdom, [19.2.1]–[19.2.6]
qualifying words, [4.2.22]–[4.2.26]
stocks and shares, [5.6.2]
substantial improvement, [4.2.19]–[4.2.21], [5.6.1]
asset acquired before marriage, [4.2.16], [4.2.19]
direct causal connection, [4.2.21]
efforts of other party or both parties, [4.2.20]
gift or inheritance, [4.2.19], [4.2.27], [4.2.33]–[4.2.35]
qualifying words, [4.2.26]
trust assets. See TRUSTS AND DIVORCE
valuation, date for, [5.6.3], [5.6.4]
windfalls, [4.2.36]–[4.2.38]
lottery winnings, [4.2.36]
one spouse, to, [4.2.36]
sale of property, [4.2.37], [7.4.39]
variation of maintenance agreement, [7.4.39]
Matrimonial finance
assets. See MATRIMONIAL ASSETS
Australian law. See AUSTRALIAN LAW
maintenance. See MAINTENANCE
meaning, [19.1.5]
Muslim divorce. See MUSLIM DIVORCE
NZ law. See NEW ZEALAND LAW
other jurisdictions, [19.1.4]
property held during marriage. See PROPERTY HELD DURING MARRIAGE
Matrimonial jurisdiction. See JURISDICTION IN MATRIMONIAL PROCEEDINGS
Matrimonial proceedings
annulment. See NULLITY OF MARRIAGE
conflict of laws. See CONFLICT OF LAWS
divorce. See DIVORCE; DIVORCE PROCEEDINGS
foreign. See FOREIGN MATRIMONIAL PROCEEDINGS
stay. See STAY OF PROCEEDINGS
Mediation and counselling. See also FAMILY DISPUTE RESOLUTION (FDR)
ancillary orders following, [5.8.1]–[5.8.4]
benefits, [15.2.18], [15.2.19], [17.4.4]–[17.4.20]
agreements more satisfactory than orders, [17.4.14]–[17.4.18]
cheaper than litigation, [15.2.19], [17.4.19], [17.4.20]
finding common ground, [17.4.15]
less conflict during process, [17.4.16]
less disruptive for children, [17.4.18]
platform to air and manage emotions, [17.4.11]–[17.4.13]
reducing acrimony, [17.4.9], [17.4.10]
reducing caseloads, [15.2.19]
reducing length of proceedings, [17.4.6]–[17.4.8]
certification of family mediators, [2.1.4]
CFRC. See CHILD FOCUSED RESOLUTION CENTRE (CFRC)
Child in Between programme, [11.3.3]
Child-Inclusive Mediation and Counselling (CIMC) scheme, [11.5.9], [17.7.8]–[17.7.10]
children, applications involving, [5.2.18], [11.3.1]–[11.3.5]
ancillary orders following, [5.8.1]–[5.8.4]
assessment by court counsellor, [17.4.26]–[17.4.28]
best interests of child, [11.3.2], [11.3.5], [17.4.2]
CFRC mandatory programme, [11.3.1], [11.5.1]–[11.5.4]
court’s power to order, [5.2.18]
less conflict during process, [17.4.16]
less disruptive, [17.4.18]
success of mediation, [17.4.17]
Collaborative Family Practice (CFP), [17.3.36]–[17.3.38], [17.7.6]
co-mediation with judge-mediator and counsellor, [17.4.12], [17.4.21]
cost-effectiveness, [15.2.19], [17.4.19], [17.4.20]
court counsellors. See FAMILY DISPUTE RESOLUTION (FDR)
court’s power to order, [5.2.18]
division of matrimonial property, [17.6.9], [17.6.11]
orders following, [5.8.1]–[5.8.4]
divorce issues, [17.6.1]–[17.6.11]
children, [17.6.6]–[17.6.8]
common ground, finding, [17.6.4]
division of property, [17.6.9], [17.6.11]
financial issues, [17.6.9]–[17.6.11]
grounds of divorce, [17.6.3]–[17.6.5]
maintenance, [17.6.9], [17.6.10]
terms and conditions unrestricted, [17.6.2]
uncontested basis, to allow, [17.6.5]
divorce where at least one minor child, [11.3.1], [11.5.1]
assessment of children, [17.4.26]–[17.4.28]
CFRC Programme, [11.3.1], [11.5.1]–[11.5.4], [17.3.21]–[17.3.26]
child-centric approach, [11.3.2], [11.5.5], [17.2.2]
counselling sessions, [17.3.24], [17.5.11]–[17.5.13]
impact of conflict on children, [17.6.7]
interim order to attend, [11.6.21]
issues which may be mediated, [17.6.6]–[17.6.8]
mandatory, [11.3.1], [11.5.1]–[11.5.4], [17.3.21], [17.5.2]
Parenting Coordinators, [11.5.10], [17.3.39], [17.7.11]–[17.7.12]
purpose, [11.5.4], [17.3.22]
success of mediation, [17.4.17]
facilitative nature, [15.2.17]
Family Court, pre-2006, [17.3.3]
ad hoc basis, [17.3.4]
court counsellors, [17.3.4]
court referrals, [17.3.3]
Family Dispute Resolution. See FAMILY DISPUTE RESOLUTION (FDR)
Family Justice Courts–
approach to mediation, [17.4.1]–[17.4.28]
direction to attend, [1.9.2], [8.1.4], [8.1.18]
FDR Division. See FAMILY DISPUTE RESOLUTION (FDR)
objective of mediation, [17.4.1]
specialist counsellors, [11.3.3]
Family Mediation Training and Accreditation Programme, [17.3.29]
Family Resolutions Chambers (FRC), [17.3.5]–[17.3.7]
judge-led mediation, [17.3.5], [17.3.6]
merger into FDR Division, [17.3.7], [17.3.27], [17.3.28]
voluntary mediation, [17.3.6]
FDR model. See FAMILY DISPUTE RESOLUTION (FDR)
fees not charged, [17.5.2]
flexibility, [17.4.11], [17.4.14]
judge-led approach, [17.3.5], [17.3.6], [17.4.1], [17.4.25]
judge-mediators. See FAMILY DISPUTE RESOLUTION (FDR)
key areas for development, [17.7.2]
private family mediation, [17.7.5]–[17.7.7]
training and accreditation of mediators, [17.7.4]
litigants in person, [17.4.20]
MMC mediations, [17.3.10]
maintenance issues, [17.6.9], [17.6.10]
Maintenance Mediation Chambers. See MAINTENANCE MEDIATION CHAMBERS (MMC)
mediated agreement, [17.4.3]
addressing concerns, [17.4.3]
fair to both parties, [17.4.3]
more satisfactory than orders, [17.4.14]–[17.4.18]
percentage of cases reaching, [17.4.7]
realistic and practical, [17.4.3]
mediator’s role, [17.4.10]
MMC. See MAINTENANCE MEDIATION CHAMBERS (MMC)
FDR model of counselling, [17.4.22]
judge-mediator and court counsellor, [17.4.12], [17.4.21], [17.4.25]
key features, [17.4.25]
reasons for counselling component, [17.4.24]
specialist knowledge of counsellors, [17.4.22]
specialist skills of counsellors, [17.4.23]
objective, [17.4.1]
opportunity to be heard, [17.4.11]–[17.4.13]
Parenting Coordination (PC) scheme, [17.3.39], [17.7.11]–[17.7.12]
Parenting PACT workshop, [11.3.3]
private family mediation, [17.5.20]–[17.5.21], [17.7.5]–[17.7.7]
advantages, [17.5.20], [17.7.5]
CFP scheme, [17.3.36]–[17.3.38], [17.7.7]
future of, [17.7.5]–[17.7.7]
paid schemes, [17.5.20], [17.5.21]
SMC Family Panel, [17.5.21]
SMC, referrals to, [17.5.20]
standards for, [17.3.35]
reducing impact of dispute, [17.4.1]
shift from adversarial litigation to, [15.2.17]–[15.2.19], [17.2.1]–[17.2.5]
benefits, [15.2.18], [15.2.19], [17.4.3]–[17.4.20]
costs implications, [15.2.19], [17.4.19], [17.4.20]
gradual process, [17.2.2]
Singapore Mediation Centre–
Family Panel, [17.3.29], [17.5.21]
mediation training, [17.3.29], [17.3.36]
referral of case to, [17.5.20]
successful mediation, what constitutes, [17.4.3]
training of family mediators, [17.3.29], [17.7.4]
FDR Division, [17.3.29], [17.7.4]
Volunteer Mediator, [17.3.31]–[17.3.35]
Memorandum of appearance
divorce, nullity or judicial separation proceedings, [8.4.25]
Mental Health (Care and Treatment) Act
Minors. See also CHILDREN
divorce proceedings involving. See DIVORCE PROCEEDINGS INVOLVING CHILDREN
legal aid, [16.16.1]–[16.16.8]
application by guardian, [16.16.2]
Director’s power to make inquiries, [16.16.4]
guardian, definition, [16.16.2]
means test, [16.16.5], [16.16.6]
undertaking by guardian, [16.16.3]
taxation of costs recovered by, [15.3.32]
Misrepresentation
variation of maintenance orders, [7.3.1], [7.4.1], [7.4.9]–[7.4.12]
downward variation due to, [7.4.12]
good cause, amounting to, [7.4.8]
inappropriateness of original order, [7.4.11]
scope of court’s discretion, [7.4.9]
wife or ex-wife maintenance, [7.1.3]
variation of orders in Muslim divorce, [20.9.1], [20.9.5]
Mistake of fact
variation of maintenance orders, [7.3.1], [7.4.1], [7.4.9]–[7.4.12]
variation of orders in Muslim divorce, [20.9.1]
Muslim divorce
ancillary issues, [20.4.1]
children. See MUSLIM DIVORCE: CUSTODY OF CHILDREN
division of assets. See MUSLIM DIVORCE: DIVISION OF ASSETS
foreign divorces, [20.8.1], [20.8.2]
hakam not to make recommendations on, [20.3.19]
orders on, [20.4.1]
Syariah Court jurisdiction, [20.3.3]
appeals, [20.12.1]–[20.12.3]
interlocutory orders, for, [20.12.3]
Singapore Syariah Appeals Report, [20.16.1]
arbitration, referral to, [20.3.18]
children. See MUSLIM DIVORCE: CUSTODY OF CHILDREN
civil marriage before Muslim marriage, [20.3.6], [20.3.7], [20.3.10]
division of assets. See MUSLIM DIVORCE: DIVISION OF ASSETS
enforcement of orders, [20.10.1]–[20.10.4]
fasakh, [20.3.16]
grounds for, [20.3.14]–[20.3.19]
fasakh, [20.3.14], [20.3.16]
kholok, [20.3.14], [20.3.17]
taklik, [20.3.14], [20.3.15]
talak, [20.3.14]
hakam (arbitrator)–
ancillary matters beyond scope of power, [20.3.19]
powers and authority of, [20.3.19]
recommendations by, [20.3.18], [20.3.19]
referral to, [20.3.18]
hantaran, [20.4.1]
waiver by wife, [20.7.50]
husband disagreeing to, [20.3.17]
irrevocable divorce, [20.3.18]
jurisdiction of Syariah Court, [20.3.1]–[20.3.13]
all parties Muslim, [20.3.2], [20.3.4]
concurrent with civil courts, [20.11.1]–[20.11.4]
exclusive, [20.3.2]
HDB assets, [20.3.3]
parties married under Muslim law, [20.3.2], [20.3.5]–[20.3.7]
statutorily conferred, [20.3.3]
kholok, by, [20.3.14], [20.3.17]
mutaah, [20.4.1], [20.6.1]–[20.6.8]
amount payable, [20.6.1], [20.6.3], [20.6.4]
appeal against order, [20.6.5]
enforcement of orders on, [20.10.2]
financial means of husband, [20.6.2]
foreign divorce, [20.8.1]
period for which payable, [20.6.6]
variation of order, [20.9.5], [20.9.6]
waiver by wife, [20.7.50], [20.9.5]
wife’s misconduct, effect, [20.6.7], [20.6.8]
nafkah eddah, [20.4.1]
waiver by wife, [20.7.50], [20.9.5]
civil marriage first, [20.3.6], [20.3.7], [20.3.10]
determination by Syariah Court, [20.3.5]
marriage certificate insufficient proof, [20.3.5]
substance and form of marriage, [20.3.5]
redemption, by, [20.3.17]
renunciation of Islam by one party, [20.3.4], [20.3.6]–[20.3.9]
annulment, ground for, [20.3.20]
whether marriage under Muslim law, [20.3.6], [20.3.7]
revocation (rujuk), [20.2.13]
appeal from decision of ROMM, [20.2.14]
consent of both parties, [20.2.13]
eddah period, [20.2.13]
extension of time to register, [20.2.13]
registration by ROMM, [20.2.1], [20.2.13]
Syariah Court, reference to, [20.2.13]
timelines, [20.2.13]
Syariah Court, [20.1.4]
ancillary issues, orders on, [20.4.1]
concurrent jurisdiction with civil courts, [20.11.1]–[20.11.4]
enforcement of orders, [20.10.1]–[20.10.4]
functioning like FJC, [20.3.1]
jurisdiction, [20.3.1]–[20.3.13]
variation of orders, [20.9.1]–[20.9.7]
taklik, breach of, [20.3.14], [20.3.15]
talak, pronouncement of, [20.3.14]
mutaah payable to date of, [20.6.6]
talak bain, [20.3.18]
talak tafwid, [20.3.18]
change of circumstances, [20.9.1], [29.9.2]
good cause, [20.9.7]
grounds, [20.9.1]
misrepresentation, [20.9.1], [20.9.5]
mistake, [20.9.1]
Muslim divorce: custody of children
appeals, [20.12.1]–[20.12.3]
children below age of discernment, [20.5.7]
children’s wishes, [20.5.5], [20.5.6]
choice of Syariah Court or civil court, [20.11.1]
civil proceedings, [20.5.1]
application to reopen matter in, [20.5.3], [20.11.4]
certificate to continue, [20.5.2]
leave to continue, [20.5.2]
stay on issue of summons, [20.5.2]
enforcement of orders, [20.10.3]
joint custody, [20.5.8]–[20.5.10]
mediation of complaints, [20.10.3]
Syariah Court–
orders by, [20.4.1], [20.5.1], [20.5.3]
power to adjudicate on, [20.5.1]
whether divorce proceedings in, [20.5.1], [20.5.2]
variation of orders, [20.5.12], [20.9.1], [20.9.4]
change in circumstances, [20.9.4]
Muslim divorce: division of assets
Administration of Muslim Law Act, [20.7.1]
appeals, [20.12.1]–[20.12.3]
children, needs of, [20.7.12], [20.7.15]
choice of Syariah Court or civil court, [20.11.1]
CPF moneys, [20.7.3]–[20.7.5], [20.7.17]–[20.7.21], [20.7.30]
enforcement of orders, [20.10.1], [20.10.4]
equal division, no presumption of, [20.7.14]
financial and non-financial contributions, [20.7.11], [20.7.13]
list not exhaustive, [20.7.12]
non-economic factors, [20.7.15]–[20.7.36]
weight given to, [20.7.12]
foreign divorce, [20.8.1], [20.8.2]
indirect contribution, [20.7.41]
homemaker, [20.7.41]
husband, [20.7.42]–[20.7.47]
wife, [20.7.41]
just and equitable proportions, [20.7.11]–[20.7.14]
marriages with no children, [20.7.48]–[20.7.52]
matrimonial assets, definition of, [20.7.2]
assets acquired before marriage, [20.7.6]–[20.7.9]
guarantee for mortgage, [20.7.8]
renovations to matrimonial property, [20.7.7], [20.7.36]
substantial improvement during marriage, [20.7.6]
assets acquired during marriage, [20.7.3]–[20.7.5]
CPF moneys, [20.7.3], [20.7.4], [20.7.5]
gratuity or pension, [20.7.5]
matrimonial home, [20.7.3]
gifts or inheritance, [20.7.10]
matrimonial home–
asset acquired during marriage, [20.7.3]
contributions to purchase price, [20.7.16]–[20.7.35], [20.7.43]–[20.7.52]
HDB flat, [20.7.9], [20.7.16], [20.7.17], [20.7.25], [20.7.28], [20.7.31]–[20.7.35]
loss would be incurred by selling, [20.7.19], [20.7.30]
proceeds from previous home used to purchase, [20.7.40]
renovations to, [20.7.7], [20.7.36]
rental income from, [20.7.18], [20.7.37]–[20.7.39]
share of government housing grant, [20.7.18]
non-economic factors, [20.7.15]–[20.7.36]
proxy powers order, [20.10.4]
rental income, [20.7.37]–[20.7.39]
Syariah Court–
choice of civil court or, [20.11.1]
enforcement of orders of, [20.10.1]–[20.10.4]
foreign divorce, no power where, [20.8.1]
jurisdiction, [20.3.1]–[20.3.13]
change in circumstances, [20.9.1], [29.9.2]
good cause, [20.9.7]
grounds, [20.9.1]
mistake, [20.9.1]
Muslim marriages
Administration of Muslim Law Act, [20.1.1], [20.1.2]
Ahmadiyyah sect, [20.2.3], [20.2.4]
appeals from ROMM decisions, [20.12.1]
application to solemnise marriage at ROMM, [20.2.3]
appeal against rejection of, [20.2.3]–[20.2.5]
both parties Muslim, [20.2.2], [20.2.3]
consent of wali, [20.2.8]
adopted father cannot give, [20.14.5]
determining whether parties Muslim, [20.2.3]
inquiry by kadi as to obstacles, [20.2.5]
marriage between Muslim and non-Muslim not considered, [20.2.9]
non-Muslims not eligible, [20.2.3], [20.2.4]
one party Muslim, [20.2.3]
polygamous marriage, [20.2.10]–[20.2.12]
application for, [20.2.1], [20.2.10]
good reason or benefit, [20.2.10], [20.2.12]
inquiry by kadi, [20.2.10]
interview with present wife, [20.2.11]
objection by present wife, [20.2.11]
registration, [20.2.1], [20.2.2]
extension of time for, [20.2.6]
time for, [20.2.6]
validity of marriage not affected, [20.2.7]
Registry of Muslim Marriages (ROMM), [20.1.3], [20.1.4]
appeal from decision, [20.2.14]
functions, [20.1.4], [20.2.1]
polygamous marriage, application for, [20.2.1], [20.2.10]
registration of marriages, [20.1.4], [20.2.1], [20.2.2]
validity, [20.2.7]
Muslim succession law
adopted children, [20.14.5], [20.15.4], [20.15.6]
automatic faraid beneficiaries, [20.15.4]
Baitu Mal, estate going to, [20.15.4]
Certificate of Inheritance, [20.15.3]
application for, [20.15.2], [20.15.3]
penalties for false information, [20.15.3]
issue by Syariah Court, [20.1.4], [20.15.2]
probate application, filed with, [20.15.2]
CPF moneys, [20.15.18]–[20.15.21], [20.15.33]
absence of nomination, [20.15.18]
CPF nomination, [20.15.19]
Fatwa 2010, [20.15.21]
legal position, [20.15.20]
MUIS Fatwa, [20.15.19]
disputes, forum for, [20.15.5]
beneficiaries agreeing to vary apportionment, [20.15.7]
beneficiary renouncing share, [20.15.8]
CPF moneys, [20.15.18]–[20.15.21], [20.15.33]
Fatwa 2007, [20.15.11]–[20.15.13]
Fatwa 2008, [20.15.15]
Fatwa 2010, [20.15.21]
Fatwa 2012, [20.15.27], [20.15.28]
Fatwa 2016, [20.15.29]
immovable property, [20.15.11]–[20.15.14], [20.15.31]
insurance policies, [20.15.22]–[20.15.28], [20.15.33]
joint bank accounts, [20.15.29]
joint tenancies, [20.15.11]–[20.15.14], [20.15.31]
nuzriah, use of, [20.15.15]–[20.15.17], [20.15.31]
specific assets, [20.15.10]
estate planning, [20.15.30]–[20.15.34]
immovable property, [20.15.31], [20.15.32]
faraid, [20.15.1]
Fatwa Committee, [20.15.11]
request for opinion from, [20.15.11], [20.15.16]
general rule, [20.15.1], [20.15.6]
illegitimate children, [20.15.4], [20.15.6]
immovable property, [20.15.11]–[20.15.14]
estate planning, [20.15.31], [20.15.32]
joint tenancies, [20.15.11]–[20.15.14], [20.15.31]
tenancy in common, [20.15.32]
insurance policies, [20.15.22]–[20.15.28], [20.15.33]
Fatwa 2012, [20.15.27], [20.15.28]
revocable nominations, [20.15.25]–[20.15.27]
intestacy, [20.15.1]
joint bank accounts, [20.15.29]
joint tenancies, [20.15.11]–[20.15.14]
Fatwa 2007, [20.15.11]–[20.15.13]
right of survivorship, [20.15.11]–[20.15.14]
secular law overriding Islamic law, [20.15.13], [20.15.14]
letters of administration, application for, [20.15.2]
no faraid beneficiaries, [20.15.4]
no male heir, [20.15.4]
nuzriah, use of, [20.15.15]–[20.15.17]
contravention of faraid laws, [20.15.17]
Fatwa 2008, [20.15.15]
immovable property, [20.15.31]
probate, application for, [20.15.2]
testamentary disposition not to exceed one-third of estate, [20.15.1], [20.15.6]
will identifying and naming beneficiaries, [20.15.34]
unborn children, [20.15.4]
wills, [20.15.6]
application of Wills Act, [20.15.9]
beneficiaries agreeing to vary apportionment, [20.15.7]
beneficiary renouncing share, [20.15.8]
compliance with Wills Act formalities, [20.15.9]
disposition not to exceed one-third of estate, [20.15.1], [20.15.6]
identifying and naming beneficiaries, [20.15.34]
legal entitlements not to be changed, [20.15.6]
Muslims
Administration of Muslim Law Act, [20.1.1], [20.1.2]
FJC proceedings under, [1.3.1], [3.1.1]
framework for application of Islamic law, [20.1.3]
non-application to non-Muslims, [20.2.3]
purposes, [20.1.2]
regulation of Muslim affairs, [20.1.3]
adoption of children, [20.14.4], [20.14.5]
areas of personal laws applicable to, [20.1.1]
divorce. See MUSLIM DIVORCE
custody of, [20.5.11]
inheritance. See MUSLIM SUCCESSION LAW
kadis, [20.1.2]
appeal from decision of, [20.1.4], [20.16.1]
legitimacy of children, [20.5.11], [20.14.6]
Majlis Ugama Islam Singapura (MUIS), [20.1.3], [20.1.4]
marriage. See MUSLIM MARRIAGES
marriage between Muslim and non-Muslim, [20.2.9]
Mohamedan Marriage Ordinance 1880, [20.1.2]
Mohammedan Ordinance 1923, [20.1.2]
Muslims Ordinance 1957, [20.1.2]
Singapore law generally applicable to, [20.1.1]
succession to property. See MUSLIM SUCCESSION LAW
Syariah Court. See SYARIAH COURT
Women’s Charter provisions applicable to, [20.14.1]–[20.14.6]
Mutaah
amount payable, [20.6.1], [20.6.3], [20.6.4]
appeal against order, [20.6.5]
financial means of husband, [20.6.2]
Muslim divorces, [20.4.1], [20.6.1]–[20.6.8]
period for which payable, [20.6.6]
waiver by wife, [20.7.50], [20.9.5]
wife’s misconduct, effect, [20.6.7], [20.6.8]
Nafkah eddah
Muslim divorces, [20.4.1]
waiver by wife, [20.7.50], [20.9.5]
New Zealand law
clean break approach, [19.3.13]
equal status of contributions, [19.3.14]
equal status of men and women, [19.3.14]
guiding principles, [19.3.14]
just division of relationship property, [19.3.14]
opting out of default equal-sharing regime, [19.3.19]
property, definition, [19.3.15]
Property (Relationships) Act 1976, [19.3.13]
relationship property, [19.3.16]
court’s discretion to treat property as, [19.3.17]
entitlement to equal share of, [19.3.18]
just division of, [19.3.14]
separate property distinguished, [19.3.17]
separate property, definition, [19.3.17]
maintenance, [19.4.17]–[19.4.22]
children, [19.4.21]–[19.4.22]
ex-spouse, [19.4.19]–[19.4.20]
spouse, [19.4.17]–[19.4.18]
property held during marriage, [19.2.9]
Nullity of marriage
bars to relief, [2.8.6]
choice of law, [18.4.27], [18.4.28]
commencement of proceedings, [2.8.5], [8.4.1]
consent invalid, [2.8.3], [2.8.5]
contested application, [2.8.4]
decree nisi, setting aside. See SETTING ASIDE
decree of nullity, [2.8.1], [2.8.4]
effect of grant, [2.8.1], [2.8.7]
inability to consummate, [2.8.3]
invalid marriage, [2.8.2]
jurisdiction, [2.3.1]–[2.3.8], [3.2.4]–[3.2.10], [18.2.25]
domicile. See DOMICILE
less substantial connection required, [18.2.25]
“marriage”, meaning, [2.3.1]
residence in Singapore, [18.2.25], [18.4.2]
void or voidable marriage, ground of, [2.3.1], [2.3.8]
lack of capacity, [2.8.2]
legitimacy of children and, [2.8.7]
marriage outside Singapore invalid, [2.8.2]
mental disorder, [2.8.3], [2.8.5]
Muslim marriage not registrable, [2.8.2]
pleadings, [8.4.27]–[8.4.32]
pregnancy by another person, [2.8.3], [2.8.5]
plaintiff unaware of, [2.8.5]
refusal to consummate, [2.8.3], [2.8.4]
same sex parties, [2.8.2]
second marriage, [2.8.2]
service of writ. See also SERVICE
acknowledgement of, [8.4.10], [8.4.13]
personal, [8.4.10]
setting aside grant of. See SETTING ASIDE
subsisting prior marriage, [2.8.2]
time limit to apply, [2.8.5]
types of annulment, [2.8.1]
underage party, [2.8.2]
unjust to grant, [2.8.6]
unwillingness to consummate, [2.8.3]
venereal disease, [2.8.3], [2.8.5]
plaintiff unaware of, [2.8.5]
void marriage, [2.8.2]
legitimacy of children, [2.8.7]
voidable marriage, [2.8.3]–[2.8.7]
bars to relief, [2.8.6]
legitimacy of children, [2.8.7]
writ for, [8.4.1]
parenting plan, [8.4.6]
service of, [8.4.10]–[8.4.24]
validity, [8.4.2]
Nuzriah
Muslim distribution of estate, [20.15.15]–[20.15.17]
contravention of faraid laws, [20.15.17]
Fatwa 2008, [20.15.15]
immovable property, [20.15.31]
Offshore trusts
avoiding jurisdiction of divorce, [9.2.46]
divorce and, [9.2.46]–[9.2.49]
enforcement of matrimonial orders, [9.2.46]
financial resource, as, [9.2.42], [9.2.45], [9.2.48]
high net worth individuals, [9.2.46]
international comity, norms of, [9.2.49]
Jersey trust, [9.2.14], [9.2.17], [9.2.42], [9.2.47]
jurisdictional barriers, [9.2.46], [9.2.47]
orders varying, [9.2.47]
reciprocity with foreign courts, [9.2.49]
sham, declaration as, [9.2.14], [9.2.17], [9.2.47]
Singapore courts’ approach, [9.2.48], [9.2.49]
Originating summons
custody/access application under GIA, [11.6.26], [11.6.32]
ex parte, [11.6.32], 11.D.2
example, [11.6.33]
inter partes, [11.6.32], 11.D.1
service, [11.6.34]
ex parte, 11.D.2
forms, 11.D.1, 11.D.2
Hague Application, [12.2.12]
wardship application, [12.4.8], [12.4.9]
Parenting Coordination (PC)
child-focused post-order or post-separation process, [17.3.39], [17.7.11]
introduction of scheme, [17.7.11]
Parenting Coordinators, [11.5.10], [17.7.12]
appointment of, [17.7.12]
number of trained, [17.7.13]
role of, [17.7.12]
purpose of scheme, [17.3.39], [17.7.11]
scheme supported by FJC, [17.3.31]
Polygamous marriage
application to ROMM for, [20.2.1], [20.2.10]
application for, [20.2.1], [20.2.10]
good reason or benefit, [20.2.10], [20.2.12]
inquiry by kadi, [20.2.10]
interview with present wife, [20.2.11]
objection by present wife, [20.2.11]
rejection of, [20.2.11], [20.2.12]
illegal under Women’s Charter, [2.1.6]
Muslim men, permitted for, [20.2.10]
nullity on ground of, [2.8.2]
Postnuptial agreement
division of matrimonial assets, [4.2.92]–[4.2.102], [6.1.5], [6.8.3]
agreement addressing, [4.2.96]
breach of, [4.2.102]
court to have regard to, [4.2.93], [4.2.95], [6.8.2], [6.8.3]
court’s powers, not detracting from, [4.2.92]
repudiated agreement, [4.2.102]
weight given to, [4.2.95], [4.2.98], [4.2.101]
independent legal advice, [4.2.99], [19.3.12]
legal status, [4.2.93]
made in contemplation of divorce, [4.2.94], [6.8.3]
New Zealand approach, [19.3.19]
not enforceable in and of itself, [4.2.95]
prenuptial distinguished, [4.2.98]
separation agreement, [4.2.98]
settlement agreement, [4.2.99], [6.1.5], [6.8.3]
trust settlement, variation of, [9.5.1]–[9.5.5]
application procedure, [9.6.10]
compromise jurisdiction of court, [9.5.5]
salvage jurisdiction of court, [9.5.4]
Prenuptial agreement
agreement to separate after marriage, [6.1.2], [6.1.3]
Brodie type, [6.1.2]–[6.1.4]
categories of, [6.4.7]
custody of children, [6.4.7], [6.7.1]–[6.7.3], [6.9.2]
unenforceable agreement, [6.7.1], [6.7.2]
definition, [6.1.1], [6.1.5]
division of matrimonial assets, [4.2.92]–[4.2.102], [6.1.5], [6.2.1], [6.4.1]–[6.4.7], [6.8.1]–[6.8.6], [6.9.1]
agreement addressing, [4.2.96], [6.4.7], [6.8.1]–[6.8.6]
breach of agreement, [4.2.102]
court having regard to, [4.2.93], [4.2.95], [6.2.3], [6.2.4], [6.4.2], [6.8.2], [6.8.3]
court’s powers, not detracting from, [4.2.92], [6.2.3], [6.8.1]
foreign agreement, [6.2.7], [6.2.10], [6.3.1]–[6.3.5], [6.9.4]
interpretation of s 112(2)(e), [6.4.3]–[6.4.6], [6.8.1]
legal status of agreement, [4.2.93], [6.2.1]–[6.2.10]
local agreement, [6.4.1]–[6.4.7]
repudiated agreement, [4.2.102]
United Kingdom, [19.3.5]
weight given to, [4.2.95], [4.2.98], [4.2.101], [6.2.6], [6.2.9], [6.8.3]–[6.8.6]
evading marital obligations, purpose of, [6.1.2], [6.1.3]
foreign, [6.2.7], [6.3.1]–[6.3.8], [6.9.4]
anti-suit injunction, [14.4.1]
division of matrimonial assets, [6.3.6], [6.9.4]
forum non conveniens application, [18.4.13], [18.4.14]
local distinguished, [6.2.10]
validity, [6.2.7], [6.3.1]–[6.3.8]
independent legal advice, [4.2.99]
legal status, [4.2.93], [6.2.1]–[6.2.10]
foreign agreement, [6.2.7], [6.3.1]–[6.3.8]
interaction of statute and common law, [6.2.8]
valid as binding contract, [6.2.9]
local, [6.4.1]–[6.4.7]
foreign distinguished, [6.2.10]
made in contemplation of divorce, [4.2.94], [6.4.1], [6.8.3]
maintenance, relating to, [6.4.7], [6.6.1], [6.6.2], [6.9.3]
against public policy, [6.6.1], [6.9.3]
New Zealand approach, [19.3.19]
not enforceable in and of itself, [4.2.95], [6.2.5], [6.4.2]
overview, [6.1.1]–[6.1.5]
postnuptial agreement distinguished, [4.2.98], [6.1.5]
postponing cohabitation and consummation of marriage, [6.1.3]
prenuptial settlement distinguished, [6.1.5]
public policy, whether contrary to, [6.1.2]–[6.1.4]
foreign agreement, [6.3.7], [6.3.8]
maintenance, relating to, [6.6.1]
regulating marriage, [6.5.1]
void agreement, [6.1.2]–[6.1.4], [6.6.1], [6.9.3]
regulating marital relations, [6.1.3], [6.4.7], [6.5.1]
religious or customary ceremony after registry marriage, for, [6.1.4]
settlement agreement, [4.2.99], [6.1.5]
Singapore law approach, [6.2.1]
Singapore, made in, [6.4.1]–[6.4.7]
trust settlement, variation of, [9.5.1]–[9.5.5]
void where against public policy, [6.1.2]–[6.1.4], [6.6.1], [6.9.3]
Presumption of advancement
arbitrariness of factors determining, [9.7.14]
category-based presumption, [9.7.15], [9.7.16]
cohabiting couples, application to, [9.7.13]
criticism of, [9.7.12]–[9.7.17]
husband to wife, only applicable to, [9.7.13]
resulting trust, rebutting presumption of, [9.7.1], [9.7.5]–[9.7.12]
societal change and, [9.7.18]
statutory displacement in UK, [9.7.11]
suggested reforms to operation, [9.7.15]
test for, [9.7.15]
underlying basis, [9.7.12]
unprincipled application of, [9.7.13]
Presumption of death
absence for seven years or more, [2.6.1]
divorce, [2.6.1]
reasonable grounds, [2.6.1]
Private family mediation
advantages, [17.5.20], [17.7.5]
CFP scheme, [17.3.36]–[17.3.38], [17.7.7]
future of, [17.7.5]–[17.7.7]
paid schemes, [17.5.20], [17.5.21]
SMC Family Panel, [17.5.21]
SMC, referrals to, [17.5.20]
standards for, [17.3.35]
Probate and Administration Act
Property held during marriage
Australia, [19.2.7], [19.2.8]
general rules of property, [4.2.2], [19.2.1], [19.2.8]
legal vs equitable ownership, [19.2.5]
marriage as partnership, as, [4.2.3]–[4.2.5]
marriage not altering rights, [4.2.1], [19.2.3]
separation of property regime, [4.2.2]
Singapore, [4.2.1], [4.2.2]
United Kingdom, [19.2.1]–[19.2.6]
constructive trusts, [19.2.6]
family home, [19.2.5]
gifts, [19.2.3]
housekeeping allowance, [19.2.4]
income belongs to earner, [19.2.3]
normal rules of property, [19.2.1]
personal property, [19.2.3]
real property, [19.2.5]
transfer of property, [19.2.3]
trusts, [19.2.6]
Protection orders. See FAMILY VIOLENCE ORDERS
Psychological or psychiatric assessment of children
custody or access disputes, in, [10.7.1]–[10.7.8], [11.7.13]
leave of court, [10.7.2], [11.7.14]
necessity for, [11.7.14], [11.7.15]
Registrar
commissioner for oaths, as, [1.4.9]
registry controlled by, [1.6.2]
taxation of costs. See COSTS
Registry
Family Justice Courts, [1.6.1], [1.6.2]
former system, [1.6.1]
Registry of Muslim Marriages (ROMM)
appeal from decision of, [20.2.14]
establishment, [20.1.3]
functions, [20.1.4], [20.2.1]
registration of marriages. See MUSLIM MARRIAGES
revocation of divorces. See MUSLIM DIVORCE
Relator actions
legal aid not available, [16.2.5]
Removal of children from Singapore
child already removed from jurisdiction of courts, [12.3.10]–[12.3.17]
absence at hearing, [12.3.10]
court’s powers, [12.3.10]
direct judicial communications, [12.3.2], [12.3.14]–[12.3.16]
interim custody order, [12.3.12]
legal representation in foreign jurisdiction, [12.3.12]
mirror order in foreign court, [12.3.15]
registration of order in foreign jurisdiction, [12.3.12]
refusal of, [12.3.2], [12.3.13]
substantive custody orders, application for, [12.3.11]
consent of both parents, [5.2.8], [10.4.17], [10.8.1]
consent of parent with custody, [12.3.5]
country not under Hague Convention, to, [12.3.2], [12.3.5]
custody order, child subject of, [5.2.8], [10.4.17]
direct judicial communications, [12.3.2], [12.3.14]–[12.3.16]
concurrent related proceedings, [12.3.14]
international family proceedings, [12.3.15], [12.3.17]
practice direction, [12.3.14], [12.3.16]
raising desirability with judge, [12.3.16]
foreign judicial authorities–
assistance to enforce Singapore order, [12.3.2], [12.3.12]
judicial communications with, [12.3.2], [12.3.14]–[12.3.16]
refusal to register Singapore order, [12.3.2], [12.3.13]
Hague Convention, [10.9.1]
application for return under, [10.9.3], [12.2.9]
existing court order, [12.2.10]
foreign legal representation, [12.2.9]
Contracting State, removal to, [12.2.9]
country not signatory, removal to, [12.3.2], [12.3.5]
Immigration & Checkpoints Authority of Singapore (ICA)–
notification of order to, [12.3.9]
service of order on, [12.3.9]
injunction to prevent, [10.4.18]–[10.4.21], [12.3.1], [12.3.4], [14.4.13]
custody of child, meaning, [12.3.8]
custody order or agreement existing, [12.3.4], [12.3.6], [14.4.13]
ex parte application, [12.3.1]
GIA custody orders, [12.3.6]
court’s power to make, [12.3.8]
existing order, [12.3.6]
ICA, service on, [12.3.9]
interested person, application by, [12.3.8]
interlocutory injunction, [12.3.1], [14.4.13]
matrimonial proceedings pending, [12.3.4], [12.3.6], [14.4.13]
no proceedings pending or order existing, [12.3.7], [12.3.8]
non-compliance as contempt, [10.4.21], [12.3.9]
parent’s custodial rights, [12.3.7]
summons application under divorce suit, [12.3.6]
third party, against, [10.4.20]
urgent interim injunction, [12.3.1]
Women’s Charter, under, [10.4.18]–[10.4.21], [12.3.4], [12.3.8]
leave of court, [10.4.17], [10.8.1], [12.3.5]
custody order in force, [12.3.5]
permanent relocation, [12.3.18]–[12.3.26]
temporary removal, [12.3.27]–[12.3.28]
legal aid, eligibility for, [16.4.1]
passports, injunction to return, [14.4.17]
permanent relocation, leave for, [10.8.3], [12.3.18]–[12.3.26]
application for, [12.3.3], [12.3.5], [12.3.19]
arrangements to assist children to cope, [12.3.26]
burden of proving best interests, [12.3.21]
custody order in force, [12.3.5]
effect on relationship with other parent, [10.8.4], [12.3.22], [12.3.23]
hampering development, [12.3.24]
severing blossoming relationship, [12.3.24], [12.3.26]
power of court to grant, [12.3.4], [12.3.18]
primary caregiver, wishes of, [12.3.22]
reasonableness of request, [12.3.20]–[12.3.22], [12.3.25]
shift away from emphasis on, [12.3.3], [12.3.22]
weight formerly given to, [12.3.3], [12.3.20]
summons under divorce suit, [12.3.19]
welfare of child paramount, [12.3.3], [12.3.20]–[12.3.23]
overriding principle, [12.3.22], [12.3.24]
sole custody, parent with, [10.4.17]
temporary removal, leave for, [12.3.27]–[12.3.28]
education overseas, [12.3.28]
greater overseas access, application for, [12.3.27]
school holidays, [12.3.27]
views of child, [12.3.28]
urgent interim injunction, [12.3.1]
written consent of both parents, [12.3.5]
Rescission
ancillary orders–
interim judgment for divorce or nullity, [2.5.4], [3.4.8]–[3.4.27]
court’s power, [3.4.8], [3.4.9]
merits of case, [3.4.12], [3.4.16]
Saudi Eagle test, [3.4.13], [3.4.14], [3.4.17]
Residence
connecting person with legal system, [18.2.2], [18.2.21]–[18.2.25]
habitual residence in Singapore, [3.2.10], [18.2.22]–[18.2.24]
circumstances of leaving, [18.2.24]
continuous period of residence, [18.2.23]
matrimonial jurisdiction, basis for, [2.3.1], [3.2.4], [18.2.22]
minimum qualifying period, [2.3.7], [3.2.10], [18.2.22]
principles, [3.2.10]
proof of, [18.2.22]
settled purpose, [18.2.22]
temporary absences, [18.2.23]
voluntary residence, [18.2.22]
matrimonial jurisdiction, basis for, [2.3.1], [3.2.4], [18.2.22]
habitual residence in Singapore, [2.3.1], [2.3.6], [3.2.4], [3.2.10], [18.2.22]
nullity proceedings, [18.2.25]
requirement for, [18.2.21]
Women’s Charter–
habitual residence, [18.2.22]–[18.2.24]
residence, [18.2.25]
Resulting trusts
ascertainment of beneficial interests–
civil suit, [9.7.4]
commencing divorce proceedings after, [9.7.17]
common law property principles, [9.7.2], [9.7.3]
constructive trust compared, [9.7.4], [9.7.5], [9.7.8], [9.7.10], [9.7.20]
contribution to purchase price, [9.7.5]–[9.7.9]
Housing and Development Board property, [9.7.3]
resulting trust analysis, [9.7.4]
assets given to volunteers, [9.7.1]
common intention constructive trust compared, [9.7.4], [9.7.5], [9.7.8], [9.7.10], [9.7.20]
contribution to purchase price, [9.7.5]–[9.7.9]
beneficial ownership in same proportions, [9.7.4]
evidence of, [9.7.9]
unequal, [9.7.9]
default analytical tool, [9.7.8]
definition, [9.1.6], [9.7.1]
divorce and, [9.1.6], [9.7.1]–[9.7.18]
implied trust, [9.1.6]
methodology for analysis, [9.7.9]
presumption of, [9.1.6], [9.7.1], [9.7.10]
evidence of intention to make gift rebutting, [9.7.1]
presumption of advancement rebutting, [9.7.1], [9.7.5]–[9.7.12]
rebuttal of, [9.7.1], [9.7.6]
right of survivorship in joint tenancy and, [9.7.10]
presumption of advancement, [9.7.5]–[9.7.18]
criticism of, [9.7.12]–[9.7.17]
rebutting presumption of, [9.7.1], [9.7.5]–[9.7.12]
Revocation of divorce (rujuk)
appeal from decision of ROMM, [20.2.14]
consent of both parties, [20.2.13]
eddah period, [20.2.13]
extension of time to register, [20.2.13]
Muslim law, under, [20.2.13]
registration by ROMM, [20.2.1], [20.2.13]
Syariah Court, reference to, [20.2.13]
timelines, [20.2.13]
Separation agreement. See also POSTNUPTIAL AGREEMENT
division of matrimonial assets, [4.2.98]
Service
acknowledgement of service, [8.4.10], [8.4.13]
attempts to locate defendant before, [8.4.23]
registered post, by, [8.4.15]
time for appearance, [8.4.16]
personal, [8.4.10]
advertisement, by, [8.4.21]
application for leave, [8.4.17]
attempts at personal service before, [8.4.18]
ex parte summons for, [8.4.17]
modes of, [8.4.19]
Setting aside
ancillary orders, [3.4.28]–[3.4.44]
consent orders, [3.4.32], [3.4.42]
division of assets, [3.4.28], [3.4.32]–[3.4.44]
interim judgment for divorce or nullity, [3.4.8]–[3.4.27]
court’s power, [3.4.8], [3.4.9]
merits of case, [3.4.12], [3.4.16]
Saudi Eagle test, [3.4.13], [3.4.14], [3.4.17]
service not properly effected, [3.4.11]
nullity, grant of, [2.8.4]
decree nisi, [3.4.9]–[3.4.27]
Sham trusts
argument, [9.2.10], [9.2.13]
assets owned by settlor not trustee, [9.2.10]–[9.2.12], [9.2.15]
bare trust arrangement, [9.2.11]
company ownership, [9.2.18], [9.2.19]
divorce and, [9.2.9]–[9.2.22]
doctrine of, [9.2.10]
intention of parties, [9.2.13], [9.2.15]–[9.2.17]
invalid and unenforceable, [9.2.11]
Jersey trust, [9.2.14], [9.2.17], [9.2.47]
losing sham character, [9.2.20], [9.2.21]
nominee trust arrangement, [9.2.11]
offshore trusts declared, [9.2.47]
proving, [9.2.13]
sham at inception, [9.2.20], [9.2.21]
total control over assets, [9.2.15], [9.2.16]
trustee failures distinguished, [9.2.11], [9.2.17], [9.2.20]
use of trust monies, [9.2.17]
valid at inception, [9.2.20]
Singapore Mediation Centre
Family Panel, [17.3.29], [17.5.21]
mediation training, [17.3.29], [17.3.36]
referral of case to, [17.5.20]
Solicitor
case conferences–
preparation for, [8.1.12]
costs. See also COSTS
payable to solicitor by client, [15.3.31]
personal liability for, [15.3.13]
service, accepting, [8.4.12]
Spousal maintenance. See MAINTENANCE OF SPOUSE
Standard of proof
divorce, grounds for–
adultery, [2.4.5]
unreasonable behaviour, [2.4.16]
domicile of choice, acquisition of, [18.2.15]
family violence orders, [13.5.1], [13.5.4]
State Courts
Family and Juvenile Justice Division (FJJD), [1.2.1]
Stay of proceedings
forum non conveniens. See FORUM NON CONVENIENS
legal aid–
cancellation of, [16.14.2]
lis alibi pendens, [3.6.3]–[3.6.5], [18.4.14]
Striking out
defence or counterclaim–
FJC, power of, [8.1.5]
Substituted service
advertisement, by, [8.4.21]
application for leave, [8.4.17]
attempts at personal service before, [8.4.18]
ex parte summons for, [8.4.17]
modes of, [8.4.19]
Summary of relevant information
direction to file, [8.1.16]
Summons
custody or access interim order, for, [11.6.2], [11.6.5]
form, [11.6.5], 11.D.3
hearing of, [11.6.16]–[11.6.20]
identification of parties, [11.6.5]
inter partes, [11.6.2], [11.6.6]
number, [11.6.14]
statement of reliefs sought, [11.6.11]
general form, 11.D.3
Supervised access. See also ACCESS TO CHILDREN
DSSA services, [5.2.13], [10.4.41]
family violence incidents, [5.2.13]
increasing opportunity for conflict, [11.5.27]
orders for, [5.2.13], [10.4.39], [11.5.27]–[11.5.29]
parent-child bond not helped, [10.4.44], [11.5.28]
punish other party, sought to, [11.5.29]
reasonable basis, [11.5.28]
review of orders, [10.4.42], [11.5.28]
supervised exchange order, [10.4.41]
supervised visitation order, [10.4.41]
third party supervising, [10.4.39]
Supreme Court
family law jurisdiction, [1.2.1]
Syariah Court
Administration of Muslim Law Act establishing, [20.1.3]
ancillary issues–
orders on, [20.4.1]
ancillary order by FJC where divorce in, [4.1.5]
Appeal Board, [20.1.3], [20.1.4]
appeals to, [20.1.4], [20.12.1]–[20.12.3], [20.16.1]
finality of decisions, [20.13.1]
fresh evidence before, [20.12.2]
Singapore Syariah Appeals Report, [20.16.1], [20.16.2]
divorces. See MUSLIM DIVORCE
establishment, [20.1.3]
Family Division of High Court, concurrent jurisdiction, [3.1.6]
functioning like FJC, [20.3.1]
jurisdiction, [20.3.1]–[20.3.13]
all parties Muslim, [20.3.2], [20.3.4]
concurrent with civil courts, [20.11.1]–[20.11.4]
exclusive, [20.3.2]
HDB assets, [20.3.3]
renunciation of Islam by one party, [20.3.4], [20.3.6]–[20.3.9]
statutorily conferred, [20.3.3]
revocation of divorce, reference to, [20.2.13]
Syariah law
divorce. See MUSLIM DIVORCE
marriage. See MUSLIM MARRIAGES
succession. See MUSLIM SUCCESSION LAW
Taklik
Muslim divorce on basis of, [20.3.14], [20.3.15]
Talak
Muslim divorce by pronouncement of, [20.3.14]
mutaah payable to date of, [20.6.6]
talak bain, [20.3.18]
talak tafwid, [20.3.18]
Taxation of costs. See COSTS
Transfer of proceedings
Family Court to High Court, [1.5.1]
High Court to Family Court, [1.5.2]
Tribunal for the Maintenance of Parents
Trusts
beneficiaries, [9.1.4]
beneficial title to property, [9.1.4]
interest in fixed trust, [9.3.1]
property held for, [9.1.5]
right to inspect trust documents, [9.4.11]–[9.4.19]
trustees’ obligations to, [9.1.5]
characteristics of, [9.1.5]
constructive. See CONSTRUCTIVE TRUSTS
declaration of, [9.1.5]
discretionary. See DISCRETIONARY TRUSTS
divorce and. See TRUSTS AND DIVORCE
express trust, [9.1.5]
failed marriages and, [9.1.2]
high net worth individuals, [9.8.1], [9.8.2]
discretionary trusts, [9.3.4]
offshore trusts, [9.2.46]
wealth structuring, [9.8.2]
implied trusts, [9.1.6]
constructive trust, [9.1.7]
resulting trust, [9.1.6]
law of equity, [9.1.1]
lawyers’ understanding of, [9.8.3]
matrimonial assets. See TRUSTS AND DIVORCE
offshore. See OFFSHORE TRUSTS
protectors, [9.1.4]
purpose of, [9.1.1], [9.3.5]
resulting. See RESULTING TRUSTS
settlor, [9.1.4], [9.1.5]
sham. See SHAM TRUSTS
terminology, [9.1.3]–[9.1.7]
trust law and family law, [9.1.2]
trustee, [9.1.4]
divorce and. See TRUSTS AND DIVORCE
obligations to beneficiaries, [9.1.5]
property held by, [9.1.5]
protector’s authority over, [9.1.4]
uses of, [9.1.1], [9.8.1]
when trust arises, [9.1.4]
Trusts and divorce
beneficial ownership of assets, [9.2.1]
company assets, [9.2.22]–[9.2.39]
company shares, [9.2.1], [9.2.2]
degree of control, [9.2.1]
children, trust for benefit of, [9.2.2], [9.2.3]
claw-back where trust to deprive other spouse, [9.2.8]
constructive trust. See also CONSTRUCTIVE TRUSTS
common intention, [9.7.19]–[9.7.21]
remedial, [9.7.22]–[9.7.26]
court intervention–
compromise jurisdiction, [9.5.5]
honesty, integrity and fairness issues, [9.4.1], [9.4.6]
principle of non-intervention, [9.4.5]
salvage jurisdiction, [9.5.4]
speedy and just resolution, [9.4.18], [9.4.19]
supervisory jurisdiction, [9.3.11], [9.4.1]–[9.4.19]
trustee’s exercise of discretion, [9.4.2]–[9.4.10]
varying terms of trust, [9.5.1]–[9.5.5]
discretionary trust, [9.3.4]–[9.3.14]
assets as financial resources, [9.2.43], [9.2.44]
beneficial ownership of assets, [9.2.2], [9.2.7]
definition, [9.3.4]
judgment creditor’s right to revoke, [9.2.6]
matrimonial asset pool, whether part of, [9.2.4], [9.2.5]
proprietary interests in, [9.3.10]–[9.3.14]
revocable, [9.2.4]–[9.2.7], [9.3.3]
trustees seeking court’s guidance, [9.3.11]
types, [9.3.4]
wish letters, [9.2.2], [9.3.6]–[9.3.9]
disclosure to beneficiaries, [9.4.15]–[9.4.17]
division of beneficial interests, [9.3.1]–[9.3.14]
discretionary trusts, [9.3.4]–[9.3.14]
fixed trusts, [9.3.1]–[9.3.3]
company assets, [9.2.22]–[9.2.39]
financial resources, [9.2.40]–[9.2.45]
just and equitable, [9.1.8]–[9.1.10]
offshore trusts, [9.2.46]–[9.2.49]
piercing the corporate veil, [9.2.22]–[9.2.39]
principles of, [9.1.8]–[9.1.10]
sham trusts, [9.2.9]–[9.2.22]
substantially improved property, [9.2.50]–[9.2.54]
trust assets, [9.1.9], [9.2.1]–[9.2.8]
Women’s Charter requirements, [9.1.8]–[9.1.10]
divorce law and trust law, [9.1.8]–[9.1.10]
court’s approach, [9.2.45]
discretionary trust, [9.2.43], [9.2.44]
external settlor, [9.2.41]
offshore trusts, [9.2.42], [9.2.45], [9.2.48]
spouse settlor, [9.2.41]
trust assets as matrimonial assets, [9.2.41]
trust assets not matrimonial assets, [9.2.41]
trustee discretion in favour of spouse, [9.2.42]
fixed trust, [9.3.1]–[9.3.3]
beneficiary’s entitlement to property, [9.3.1]
division of beneficial interests in, [9.3.1]–[9.3.3]
matrimonial asset pool, whether part of, [9.3.2]
Saunders v Vautier, rule in, [9.3.1]
third party as beneficiary, [9.3.2]
wife as beneficiary, [9.3.2]
husband as settlor, [9.2.1], [9.2.41]
injunctions, [9.6.5]–[9.6.9]
Mareva injunction, [9.6.6]–[9.6.9]
restraining dissipation of assets, [9.6.5]
issues arising, [9.1.10]
joinder of trustees to divorce action, [9.6.1]–[6.4.4]
aiding beneficiary to obtain direct remedy, [9.6.4]
necessary or just, whether, [9.6.1]
third party interests, [9.6.1], [9.6.2]
trust assets directly concerned, [9.6.3]
just and equitable division, [9.1.9], [9.1.10]
Mareva injunction (freezing order), [9.6.6]–[9.6.9]
abuse of process, [9.6.7]
trustee affected by, [9.6.8]
trustee located overseas, [9.6.9]
claw-back where trust to deprive other spouse, [9.2.8]
company assets, [9.2.22]–[9.2.39]
company shares, [9.2.1], [9.2.2]
court’s power to divide, [9.1.9]
disputes over availability, [9.2.1]
fixed trust, [9.3.1]–[9.3.3]
ownership and control, [9.2.1]–[9.2.9]
revocable discretionary trust, [9.2.4]–[9.2.7], [9.3.3]
sham trusts, [9.2.9]–[9.2.22]
substantially improved, [9.2.50]–[9.2.54]
trust assets as, [9.1.9], [9.2.1]–[9.2.8]
avoiding jurisdiction of divorce, [9.2.46]
enforcement of matrimonial orders, [9.2.46]
financial resource, as, [9.2.42], [9.2.45], [9.2.48]
international comity, norms of, [9.2.49]
Jersey trust, [9.2.14], [9.2.17], [9.2.42], [9.2.47]
jurisdictional barriers, [9.2.46], [9.2.47]
orders varying, [9.2.47]
reciprocity with foreign courts, [9.2.49]
sham, declaration as, [9.2.14], [9.2.17], [9.2.47]
Singapore courts’ approach, [9.2.48], [9.2.49]
beneficial ownership of properties, [9.2.35]
company as separate legal entity, [9.2.29]
concealment principle, [9.2.30], [9.2.31]
English approach, [9.2.25]–[9.2.36], [9.2.38]
evasion principle, [9.2.30], [9.2.31]
husband alter ego of company, [9.2.23], [9.2.24], [9.2.37]
inappropriate where not necessary, [9.2.26]
increasing quantum of matrimonial assets, [9.2.22]
interlocutory relief to preserve status quo, [9.2.25]
just and necessary, [9.2.29]
liberal approach, [9.2.29]
not justified, [9.2.31]
private law solutions, [9.2.36]
property investment company, [9.2.27]
resulting trust, [9.2.28], [9.2.32], [9.2.33]
shadow director, husband as, [9.2.34]
Singapore approach, [9.2.36], [9.2.37]
statutory power of court, [9.2.28]
tax mitigation arrangement, [9.2.33]
writ to determine ownership of shares, [9.2.23]
procedural matters, [9.6.1]–[9.6.10]
resulting trust. See RESULTING TRUSTS
beneficiaries, [9.4.11]–[9.4.17]
continual demands for accounts, [9.4.13]
copies, charge for, [9.4.12]
court’s supervisory jurisdiction, [9.4.11]–[9.4.19]
application to invoke, [9.4.11]
discretion to exercise, [9.4.11], [9.4.12]
excluded person, request from, [9.4.18], [9.4.19]
prejudice to beneficiaries’ interests, [9.4.18]
trust deed, [9.4.15]
trustee’s duty of confidentiality and, [9.4.11], [9.4.14], [9.4.15]
trustee’s failure to provide information, [9.4.12]
wish letters, [9.4.15]–[9.4.17]
sham trusts, [9.2.9]–[9.2.22]
argument, [9.2.10], [9.2.13]
assets owned by settlor not trustee, [9.2.10]–[9.2.12], [9.2.15]
bare trust arrangement, [9.2.11]
company ownership, [9.2.18], [9.2.19]
doctrine of, [9.2.10]
initially valid trust, [9.2.20]
intention of parties, [9.2.13], [9.2.15]–[9.2.17]
invalid and unenforceable, [9.2.11]
Jersey trust, [9.2.14], [9.2.17], [9.2.47]
losing sham character, [9.2.20], [9.2.21]
nominee trust arrangement, [9.2.11]
offshore trusts declared, [9.2.47]
proving, [9.2.13]
sham at inception, [9.2.20], [9.2.21]
total control over assets, [9.2.15], [9.2.16]
trustee failures distinguished, [9.2.11], [9.2.17], [9.2.20]
use of trust monies, [9.2.17]
substantially improved property, [9.2.50]–[9.2.54]
acquired before marriage, [9.2.50], [9.2.52]
properly constituted trust, [9.2.53]
sale of property, [9.2.51]
principle of non-intervention, [9.4.5]
reasons for intervention, [9.4.1]
trustee’s duty of confidentiality, [9.4.11]
equitable duty, [9.4.14]
right to inspect documents and, [9.4.11], [9.4.14]
trust company, [9.4.14]
wish letters, disclosure of, [9.4.15]–[9.4.17]
absence of good faith, [9.4.1]
absolute discretion, [9.4.5]
adding or excluding beneficiaries, [9.4.7]
court supervision, [9.4.1]–[9.4.10]
extent of trustee’s discretion, [9.4.4]–[9.4.7]
Hastings-Bass principle, [9.4.8]–[9.4.10]
honesty, integrity, and fairness, [9.4.1], [9.4.6]
intention of testator frustrated by inaction, [9.4.2]
postponing sale of trust property, [9.4.2]–[9.4.4]
rule against perpetuities, [9.4.10]
unreasonableness, [9.4.6], [9.4.7]
without proper consideration of relevant matters, [9.4.8]
trusts beyond spectre of divorce–
constructive trust, [9.7.19]–[9.7.26]
resulting trust, [9.7.1]–[9.7.18]
variation of terms of trust, [9.5.1]–[9.5.5]
dispute between beneficiaries, [9.5.5]
exceptional situations, [9.5.4]
nuptial agreements, [9.5.1], [9.5.2]
postnuptial settlement, [9.5.1], [9.5.2], [9.5.3]
prenuptial settlement, [9.5.1], [9.5.2]
preventing trust from collapse, [9.5.4]
United Kingdom law
both parties’ needs, [19.3.4]
maintenance not distinguished from, [19.3.1]
objectively fair outcome, [19.3.4]
order for property adjustment, [19.3.3]
prenuptial agreements, [19.3.5]
regard to all circumstances of case, [19.3.2]
settled agreements, [19.3.6]
welfare of children, [19.3.2]
Family Proceedings Rules 1999, [19.3.6]
foreign maintenance orders, enforcement of, [18.5.11]
Singapore law based on UK law, [18.5.10]
judicial references to, [19.1.4]
maintenance, [19.4.1]–[19.4.7]
children, [19.4.1], [19.4.6], [19.4.7]
division of assets not distinguished from, [19.3.1]
failure to provide, [19.4.2], [19.4.3]
periodical or lump sum payments, order for, [19.3.1], [19.3.3], [19.4.3]
unmarried couples, [19.4.1]
Matrimonial Causes Act 1973, orders under, [19.3.1]
property held during marriage, [19.2.1]–[19.2.6]
general rules of property, [19.2.1]
housekeeping allowance, [19.2.4]
income belongs to earner, [19.2.3]
personal property, [19.2.3]
real property, [19.2.5]
transfer of property, [19.2.3]
trusts, [19.2.6]
Unreasonable behaviour
adultery, [2.4.6]
applicable tests, [2.4.11]
application dismissed, [2.4.12]
cumulative effect, [2.4.11], [2.4.14], [2.4.15]
examples, [2.4.13]
intolerable to live with defendant, [2.4.11]
watering down facts, [2.4.13]
whether reasonable to live with defendant, [2.4.11]
Unrepresented litigants. See LITIGANTS IN PERSON
Validity of marriage
capacity to marry, [18.3.1], [18.3.8]–[18.3.18]
antenuptial domicile, law of, [18.3.9]
choice of law rules, [18.3.6], [18.3.8]–[18.3.18]
dual domicile rule, [18.3.9]–[18.3.14]
essential validity, [18.3.1], [18.3.8]–[18.3.18]
formality distinguished, [18.3.2]
girl under 16 years, [18.3.10]
intended matrimonial home rule, [18.3.15]–[18.3.18]
law of forum, [18.3.6], [18.3.13]
person already married, [18.3.11]
essential validity, [18.3.8]–[18.3.18]
formal validity, [18.3.3]–[18.3.7]
private international law, part of, [18.3.8]
conflict of laws, [18.3.1]
Women’s Charter provisions, [18.3.19]–[18.3.26]
alternative to intended matrimonial home rule, [18.3.17]
criticism, [18.3.15]
marriage also solemnised in forum, [18.3.14]
respective antenuptial domiciles, capacity in, [18.3.9]
Sottomayor exception, [18.3.12]–[18.3.13]
tendency to find marriages invalid, [18.3.15]
essential validity, [18.3.1], [18.3.8]–[18.3.18]
choice of law rules, [18.3.6], [18.3.8]–[18.3.18]
formality distinguished, [18.3.2]
law of forum, [18.3.6], [18.3.13]
formal validity, [18.3.1], [18.3.3]–[18.3.7]
capacity distinguished, [18.3.2]
choice of law rules, [18.3.3]–[18.3.7]
common law choice of law rule, [18.3.4]
formality requirements only, [18.3.6]
lex loci celebrationis, [18.3.3], [18.3.6], [18.3.7], [18.3.23]
acceptance in Singapore, [18.3.18]
alternative to dual domicile rule, [18.3.17]
domicile, reliance on concept of, [18.3.15]
subjectiveness of intention, [18.3.18]
international elements, [18.3.1]
lex fori
capacity under, [18.3.6], [18.3.13]
classification of matter under, [18.3.2]
prevailing over lex domicilii, [18.3.13]
Muslim marriage–
consent of wali, [20.2.8]
mandatory conditions, [20.2.7]
polygamous, [20.2.10]–[20.2.12]
registration or non-registration not affecting, [20.2.7]
polygamous marriage–
dual domicile rule, [18.3.11]
Muslim, [20.2.10]–[20.2.12]
public policy of forum, [18.3.6]
solemnisation in Singapore, [18.3.4], [18.3.5]
Sottomayor exception, [18.3.12]–[18.3.13]
Women’s Charter, [18.3.19]–[18.3.26]
applicability of foreign law, [18.3.21]–[18.3.24]
application to persons in Singapore, [18.3.19], [18.3.20]
marriage solemnized in Singapore or elsewhere, [18.3.25], [18.3.26]
optimal reading of scope, [18.3.24]–[18.3.26]
reconciling sections 105 and 108, [18.3.21]
Variation of maintenance orders
application where order made under Pt VIII–
correct court, [7.6.6], [7.6.7]
criminal procedure, [7.6.5]
Family Justice Courts, to, [7.6.4]
maintenance summons, [7.6.4]
procedure, [7.6.4]–[7.6.7]
application where order made under Pt X–
affidavit supporting, [7.6.1], [7.6.2]
documentary evidence, [7.6.2], [7.6.3]
grounds, affidavit setting out, [7.6.2]
procedure, [7.6.1]–[7.6.3]
backdating variation order, [7.5.2]
bankruptcy of payer, [7.4.15], [7.4.21], [7.4.22]
change in circumstances. See material change in circumstances below
child maintenance–
agreement, variation of, [7.1.8]–[7.1.10], [7.4.3]
application procedure, [7.6.4]–[7.6.7]
changes in general costs, [10.4.60]
proof of change in circumstances, [10.4.60]
quantum of maintenance, [10.4.59]
reasonable and for welfare of child, [7.1.8], [7.1.9], [7.4.3], [7.4.13]
contemplation of parties entering agreement, [7.4.35]–[7.4.39]
court’s approach, [7.3.1]
ex-wife, maintenance for–
cohabitation with boyfriend, [7.4.29], [7.4.31]
interim orders, [7.2.2], [7.2.3]
lump sum orders, [7.2.5], [7.2.6]
misrepresentation or mistake, [7.1.3], [7.3.1], [7.4.1], [7.4.9]–[7.4.12]
retrospective variation not possible, [7.2.3]
statutory provisions, [7.1.3]
subsisting maintenance order, [7.2.2], [7.2.3]
factors court will consider, [7.4.1]–[7.4.39]
all circumstances of case, [7.4.2]
change in standard of living, [7.4.2]
good cause, [7.4.2], [7.4.6]–[7.4.8]
misrepresentation or mistake, [7.3.1], [7.4.1], [7.4.9]–[7.4.12]
reasonableness, [7.1.8], [7.1.9], [7.4.3], [7.4.13]
welfare of child, [7.1.8], [7.1.9], [7.4.3], [7.4.13]
good cause, [7.4.2], [7.4.6]–[7.4.8]
information exchange, orders facilitating, [7.5.3]
IRAS Notices of Assessment–
court order to provide, [7.5.3]
inclusion with application, [7.6.3]
lump sum, [7.2.5], [7.2.6]
conversion of monthly allowance to, [7.5.1]
material change in circumstances, [7.3.1], [7.4.3], [7.4.14]–[7.4.39]
adverse change, [7.4.14], [7.4.18]
agreement, variation of, [7.1.6], [7.1.7], [7.4.3], [7.4.35]–[7.4.39]
all members of family sharing loss, [7.4.18]
bankruptcy, [7.4.15], [7.4.21], [7.4.22]
change in circumstances, [7.3.1], [7.4.3], [7.4.14]–[7.4.39]
children’s needs having priority, [7.4.18]
contemplation of parties entering agreement, [7.4.35]–[7.4.39]
court taking into account, [7.3.1]
decrease in salary, [7.4.15], [7.4.23]
decrease in wife’s cost of living, [7.4.24]
ex-wife cohabiting with boyfriend, [7.4.29], [7.4.31]
failure of business, [7.4.15], [7.4.21], [7.4.37]
gaining employment, [7.4.20]
guiding principle, [7.4.18]
high price for sale of home, [7.4.39]
increase in expenditure, [7.4.14]
inheritance, [7.4.25], [7.4.26]
loss of employment, [7.4.15], [7.4.19], [7.4.35]
proof of, [10.4.60]
relocation of wife, [7.4.24]
remarriage of husband, [7.4.15], [7.4.27], [7.4.28], [7.4.30]
self-induced adverse change, [7.4.17], [7.4.32]–[7.4.34]
sense of justice, [7.4.18]
wife or ex-wife maintenance, [7.1.6], [7.1.7], [7.1.10], [7.4.3]
windfall, [7.4.39]
misrepresentation or mistake, [7.3.1], [7.4.1], [7.4.9]–[7.4.12]
downward variation due to, [7.4.12]
monthly allowance, [7.2.4]
conversion to lump sum, [7.5.1]
orders court may make, [7.5.1]–[7.5.3]
orders which can be varied, [7.2.1]–[7.2.6]
lump sum orders, [7.2.5], [7.2.6]
subsisting maintenance order, [7.2.1]–[7.2.3]
procedure, [7.6.1]–[7.6.7]
relocation of husband, [7.4.7]
relocation of wife, [7.4.24]
remarriage of husband, [7.4.15], [7.4.27], [7.4.28]
new family already existing, [7.4.30]
rescission of order, [7.1.2], [7.1.16]
beneficiary no longer in need, [7.4.16]
husband unable to pay, [7.4.16]
wife’s inheritance, [7.4.25]
retrospective variation, [7.2.3], [7.5.2]
statutory provisions, [7.1.1]–[7.1.5]
United Kingdom, [19.3.7]
wife, maintenance for–
agreement, variation of, [7.1.6], [7.1.7]
change in circumstances. See material change in circumstances above
during subsistence of marriage, [7.1.2], [7.1.7]
misrepresentation or mistake, [7.1.3], [7.3.1], [7.4.1], [7.4.9]–[7.4.12]
Women’s Charter provisions, [7.1.1]–[7.1.5]
Voluntary Sterilization Act
Volunteer Mediator scheme
appointment of mediators, [17.3.34]
commencement of, [17.3.32]
scheme supported by, [17.3.31]
VM Framework, [17.3.34]
VM panel, [17.3.34]
qualification of mediators, [17.3.34]
standards for private family mediation, [17.3.35]
training of mediators, [17.3.33]
Wali
Muslim marriage, consent to, [20.2.8]
adopted father cannot give, [20.14.5]
Wardship
application to make child ward of court, [12.4.5]
cross-application for leave to relocate overseas, [12.4.8]
guardian, who constitutes, [12.4.6]
interested party, by, [12.4.9]
lack of local jurisprudence on, [12.4.1]
locus standi, [12.4.6]
no legal guardian, [12.4.6]
non-parent, non-guardian, [11.6.30], [12.4.5], [12.4.6]
procedure, [12.4.8], [12.4.9]
who may apply, [12.4.5]–[12.4.7]
child under 21 years, [12.4.5]
Family Court jurisdiction, [12.4.2]
jurisdiction, [12.4.1]–[12.4.4]
Family Court, [12.4.2]
Family Justice Court, [12.4.3], [12.4.4]
guardianship jurisdiction distinguished, [12.4.7]
Guardianship of Infants Act, under, [12.4.3]
inferring, [12.5.1]
lack of local jurisprudence on, [12.4.1], [12.4.8]
usefulness, [12.4.4]
overarching aim to protect child, [12.4.5]
who can be made ward of court, [12.4.5]
Windfalls
lottery winnings, [4.2.36]
one spouse, to, [4.2.36]
sale of property, [4.2.37], [7.4.39]
variation of maintenance agreement, [7.4.39]
Witnesses
ancillary matters, hearing of, [8.8.32]
divorce proceedings–
informing court of number of, [8.6.2]
questioning and cross-examination, [8.6.5]
directions re calling of, [8.1.4]
disallowing publication of particulars, [1.7.3]
removal or redaction of particulars, [1.7.2]
Women’s Charter
access orders. See ACCESS TO CHILDREN
amendments to, [2.1.7], [2.1.8]
application–
divorce provisions, [3.2.1], [3.2.3]
family violence provisions, [13.1.1]
marriage provisions, [3.2.1]
children, applications involving. See CHILDREN
divorce. See DIVORCE; WRIT FOR DIVORCE
equality between husband and wife, basis for, [2.1.6]
evolution of, [2.1.7]
family violence remedies. See FAMILY VIOLENCE
foreign proceedings, ancillary orders, [2.1.7], [4.1.4]
important family law legislation, [2.1.6]
injunctions, power to grant, [14.1.2], [14.1.3]
legal aid for proceedings under, [16.2.4]
maintenance of ex-spouse, [2.1.7], [4.3.1], [4.3.9], [4.3.10]
determining amount, [4.3.11]–[4.3.16]
enforcement of, [2.1.7]
incapacitated ex-husband, [4.3.1]
marriage governed by, [3.2.1], [3.2.2]
validity of, [18.3.4], [18.3.19]–[18.3.26]
marriage preparation programmes, [2.1.8]
Muslims, provisions applicable to, [20.14.1]–[20.14.6]
overview, [2.1.6]
polygamy illegal under, [2.1.6]
property rights during marriage, [4.2.2]
protection for battered spouse, [2.1.7]
rights and duties of husbands and wives, [2.1.6]
uniqueness, [19.1.4]
variation of maintenance orders. See VARIATION OF MAINTENANCE ORDERS
Writ for divorce
adultery alleged, where, [8.4.9]
application to present, [2.2.1], [8.3.1]
three year rule, [2.2.1], [8.3.1]
within three years of marriage, [2.2.1]–[2.2.3], [8.3.2]
commencement of proceedings by, [8.4.1]
grounds. See GROUNDS FOR DIVORCE
judicial separation–
alternative to, [2.7.1]
judgment proof of grounds, [2.7.4]
not bar to, [2.7.2]
memorandum of appearance to, [8.4.25]
parties to, [2.3.2]
petitioner’s claim for jurisdiction, [2.3.2]
pleadings subsequent to, [8.4.27]–[8.4.32]
proposed parenting plan, [8.4.6], [11.5.1]
service of. See also SERVICE
personal, [8.4.10]
three years since marriage, [2.2.1], [8.3.1]
time restriction, [8.3.1]
validity, [8.4.2]
within three years of marriage, [2.2.1], [8.3.2]
application for leave, [2.2.1], [8.3.3]
originating summons, by, [8.3.3]
exceptional hardship or depravity, [2.2.1]–[2.2.3], [8.3.2]
difficulty of establishing, [2.2.2]
matter of degree, [2.2.3]
leave required, [8.3.2]
Women’s Charter, [2.2.1], [2.3.1], [8.3.1]–[8.3.4]
Writ for judicial separation or nullity
commencement of proceedings by, [8.4.1]
memorandum of appearance to, [8.4.25]
pleadings subsequent to, [8.4.27]–[8.4.32]
proposed parenting plan, [8.4.6]
service of. See also SERVICE
personal, [8.4.10]
validity, [8.4.2]
Youth Courts. See also FAMILY JUSTICE COURTS
Chamber discussions, [17.3.17]
Counselling and Psychological Services (CAPS), [17.3.17]
family conferences, [17.3.13], [17.3.18]
role of court counsellor, [17.3.13], [17.3.17]
criminal jurisdiction, [1.4.8]
district judges or magistrates presiding, [1.4.6], [3.1.4]
family conferences, [17.3.13], [17.3.18]
presiding judge of FJC sitting in, [1.4.3]
registrar, [1.4.9], [1.4.10]
registry, [1.6.1], [1.6.2]
restorative justice model, [17.3.17]
subordinate courts, [3.1.4]
youth risk assessment, [17.3.13]

Law and Practice of Family Law in Singapore

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Law and Practice of Family Law in Singapore

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2016