CIVIL LAW CONFERENCE 2022
1.7.2022 – 2.7.2022
SESSION 3.1 : DIVORCE & MATRIMONIAL PROCEEDINGS
DATIN FOO YET NGO
Divorce
❖ In general, most areas of practice, outcome and final
judgment or order bears on material things i.e money, right
over things / objects
❖ Family law practice – it impacts loves i.e family unit which
is the very cornerstone in society
❖ Does family law require different approach?
Different Approach for Family Law
❖ Sensitive nature of issue i.e family break up
❖ High emotions family clients are most likely experiencing i.e
period of great stress
❖ Children are involved
❖ Domestic violence are involved
❖ Uneven balance power of relationship in family
❖ Lawyers to remember:
a) Anxious client / vulnerable client
b) Duty of confidentiality
c) Not a personal friend / revenge angel to client
d) If client unwilling to disclose information
e) Not to stray upon areas to be dealt by counsellors,
therapists, parenting courses
f) Promote constructive approach
g) Consider the needs of the family in particular
children’s best interest
Family Raw Requires Broad Expertise – Knowledge
beyond divorce, custody & related laws
❖ Real Property – matrimonial home, investment properties,
commercial real estate
❖ Company & Business Law – 1 spouse has family business
or business entities, family companies, for the purpose of
corporate action
❖ Tax Law – will a settlement attract a tax implication?
❖ Family Trust – where a division involves trust properties
❖ Ante & Postnuptial Agreements – does it apply in MY? Not
automatic. Will Court be bound?
❖ Criminal Law & Personal Protection Orders – violence, child
abuse
1
Examples of Wrong Advice
❖ Child taken out of jurisdiction due to bad legal advice
thereafter child not returned
❖ Parties draw up and agree to terms for joint petition but
detailed terms do not ensure rights are guaranteed such as:
a) Access right to children not expressly set out – only
“reasonable access”
b) Maintenance payments not carefully worded
c) Division of assets ensuring transfer documents are
sign in advance and deposited with solicitors
❖ Wrong advice on rights over children i.e wrong terms used
of guardianship, custody, care, control
❖ Terms for access not spelt out in detail
❖ Jurisdictional basis for divorce i.e allowing a joint petition to
be agreed on wrong jurisdictional basis which then means
later even years later one party can set aside the whole
order and all terms agreed and the other spouse may be
left high and dry
❖ Wrong advice on Asset Division
Specialist Accreditation Scheme
New South Wales
❖ Requires solicitors must have been in practice for at least 5
years before applying
❖ Mock file, written examination, stimulated interview
England & Wales
❖ Applicants must demonstrate through application and
assessment process
Membership of a Body with Code of Practice
England
❖ Resolution - a body known as Solicitors Family Law
Association (SFLA)
❖ Resolution Specialist
❖ Resolution “Code of Practice” for Members – promotes a
constructive approach to family issues; considers the needs
of the whole family in particular the best interests of children
 CIVIL LAW CONFERENCE 2022
1.7.2022 – 2.7.2022

Therapeutic Justice System

Singapore
❖ “the study of the role of law as therapeutic agent, a lens of
‘care’ that seeks to address the family legal and non-legal
disputes”
❖ Multi-disciplinary approach – where Judge is aided by
support services and lawyers
❖ Pre-Divorce – avenues to explore before considering an
action in Court’ settling dispute without court intervention i.e
counselling, neutral evaluation, mediation
❖ Post-Divorce – continued support in enforcing the Court
Order
❖ Examples:
a) Avoid sending inflammatory letters
b) Avoid alleging worst of spouse in affidavits

2
 CIVIL LAW CONFERENCE 2022
1.7.2022 – 2.7.2022

SESSION 3.2 : DISSOLUTION OF MARRIAGE ❖ Advice of welfare officers

YA DATO FAIZAH BINTI JAMALUDIN ❖ Wishes of child
Former Judge of HC ❖ Status quo
❖ Psychological assessment of the child
Court’s Jurisdiction
Maintenance of Spouse
❖ HC – judicial separation, divorce, annulment of marriage,
division of matrimonial assets, exemption from 2-year rule, ❖ Means and Needs
exemption from reference to conciliatory body ❖ Degree of fault in breakdown of marriage
❖ SC – custody, maintenance, adoption
❖ MC – maintenance orders, attachment of earnings orders Division of Assets

Applicable Statutes ❖ Duration of marriage

❖ Needs of children
❖ LRA 1976 ❖ Contribution % in acquisition of assets
❖ Guardianship Act 1961 ❖ Debts for joint benefit
❖ Married Women and Children (Maintenance) Act 1950
❖ Adoption Act 1952 Challenges for Family Court Judge
❖ Legitimacy Act 1961
❖ Civil Law Act 1956 ❖ Volume of cases – only 2 specialist Family Courts
❖ Domestic Violence Act 1964 ❖ Difference in quality of lawyers – only handful that do
❖ Child Act 2001 family law on full time basis
❖ Higher number of litigants in person – can’t afford legal
Factors Considered by Family Court Judge fees, number of times they changed lawyer
❖ Amount of maintenance and division of matrimonial assets
❖ Best interest and welfare of the child not exact science – high level of dissatisfaction with
❖ Not enough to be impartial Court’s decision
❖ Which parents custody of a child should be given ❖ Child custody – no Court child psychologists which Judge
❖ Amount of access to parent without custody have to personally conduct child interview in custody
❖ Amount of maintenance disputes
❖ Division of matrimonial assets ❖ Adversarial system not entirely suited for family law
disputes
Dissolution of Marriage ❖ Family law disputes emotionally charged
a) Marriage irretrievable broken down
❖ Death/presumption of death – 7 years of continuous absent b) Feelings of hurt, betrayal, anger, hatred, despair
❖ Divorce – Joint / Single Petition c) Fault/wrongdoings of other party are often
❖ Judicial Separation exaggerated – to paint party in the worse possible light
❖ Nullity – void / voidable marriage to prove unreasonable behavior or fault for breakdown
of marriage
Welfare of Child d) Children used as pawn in battle between husband and
wife – often made to take sides
❖ Rebuttable presumption child <7 years good to be with e) Unwillingness to compromise – for fear of being taken
mother advantage or letting the other side “win”
❖ Wishes of parents
❖ Fitness of parent
3
 CIVIL LAW CONFERENCE 2022
1.7.2022 – 2.7.2022

Final Thoughts

❖ Courts are creaking under the weight of family law disputes

filed in Court
❖ Volume of family law cases are taking physical and
emotional toll on family court judges
❖ With rising costs and challenges of modern living, number
of family law disputes is likely to increase
❖ Must look to alternative dispute resolutions i.e mediation,
arbitration

Q&A

❖ In the event there are issues of Adultery, must issue of

adultery be raised only during divorce proceeding?
You can raise adultery even in custody but must give notice

❖ In the event spouse A fills up child’s hours (until wee

hours with tuition) to deny visitation, would you as
Family Law Judge accept application from spouse B
who now applies to Court to seek custody by using this
“abuse” as ground for variation order? Will you
seriously consider this excessive tuition etc as “not in
the best interest of the child”
Must be looking into the fact, evidence – whether the tuition
is excessive or not, need expert’s evidence