Family Law
| Author | Debbie ONG LLB (Hons) (National University of Singapore), LLM (Cambridge); Associate Professor, Faculty of Law, National University of Singapore. Valerie THEAN MA (Cambridge), LLM (Harvard); Director, Legal Policy Division/Industry Development Division, Ministry of Law. |
| Published date | 01 December 2008 |
| Date | 01 December 2008 |
| Citation | (2008) 9 SAL Ann Rev 309 |
14.1 In last year”s review ((2007) 8 SAL Ann Rev 229 at 231—232, paras 14.8—14.12), it was pointed out that the High Court in TQ v TR[2007] 3 SLR 719 did not apply the established conflict of laws rule in determining the validity of a foreign prenuptial agreement. In that case, a prenuptial agreement, prepared by a Dutch civil law notary in the Netherlands, was executed about two weeks before the parties married in the Netherlands in 1991. The parties lived in London after the marriage for a few years before finally moving to Singapore. The High Court appeared to apply the law of the parties” domicile in deciding whether it was a valid and enforceable contract.
14.2 The Court of Appeal decision in TQ v TR[2009] SGCA 6 at [32] has corrected this and rightly applied the proper law to determine the validity of a foreign contract:
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 (see Dicey, Morris & Collins on The Conflict of Laws vol 2 (Sir Lawrence Collins ed) (Sweet & Maxwell, 14th Ed, 2006) (‘Dicey’) at para 28R-030). The law of the domicile of the parties would therefore be relevant (if at all) only at the third stage.
14.3 A more detailed explanation of how the proper law may be ascertained on the facts may be found in Debbie Ong, ‘Prenuptial Agreements and Foreign Matrimonial Agreements: TQ v TR’(2007) 19 SAcLJ 397—408.
14.4 In YZ v ZA[2008] SGDC 191, the wife sought a divorce relying on s 95(3)(e) of the Women”s Charter (Cap 353, 1997 Rev Ed), alleging that the parties had lived apart for at least four years. The husband counterclaimed that the marriage had broken down due to the wife”s desertion for at least two years. The District Court found that the wife had left the matrimonial home more than four years ago and thus s 95(3)(e) had been proved. As the wife had a reasonable cause to leave the husband, there was no desertion by her. The court granted a divorce based on the wife”s petition. The husband appealed to the High Court on the ground that the District Court should have dismissed the wife”s claim and allowed his counterclaim instead. Dismissing his appeal, the Honourable Chief Justice Chan Sek Keong said in Ho Kiang Fah v Toh Buan Eileen[2009] SGHC 19 (at [7]):
This was a case where the self-esteem of the appellant compelled him to appeal so as to have his version of the breakdown of the marriage (viz, that the respondent had deserted him without any justification) vindicated by the court. With respect, the appeal was an exercise in futility as there was no basis on which this court could find fault with the DJ”s ruling that the condition set out in s 95(3)(e) of the Women”s Charter had been satisfied and that the respondent had not deserted the appellant.
14.5 The High Court explained (Ho Kiang Fah v Toh Buan Eileen[2009] SGHC 19 at [9]) that:
The alleged matrimonial fault on the part of the respondent could not debar her from the relief which she was entitled to under the law, and the court had a judicial duty to grant her a dissolution of the marriage since she had succeeded in showing that the condition set out in s 95(3)(e) of the Women”s Charter had been satisfied.
14.6 This case reinforces the position taken in Chai Mei Ling v William Cheng[1999] 2 SLR 487 that once a spouse has proven one of the five facts in s 95(3), only very rare and exceptional circumstances would prevent a divorce from being granted. Once a fact has been proven, there is hardly any discretion in the court to deny the grant of a divorce. The case further clarifies that a divorce can be granted based on more than one fact proven under s 95(3). Indeed, it is not uncommon to have uncontested divorces granted based on both spouses” claim and counterclaim.
14.7 The principle of joint parenting in CX v CY[2005] 3 SLR 690 was applied in YN v YO[2008] SGDC 286 (‘YN v YO’). The mother of a four-year-old child sought sole custody. One of the reasons given was that the father of the child engaged in ‘bisexual activities’. This was not disputed by the father”s counsel who described the father as ‘not ordinary’. The District Court awarded joint custody of the child and care and control to the mother, holding (YN v YO, at [ 11]) that:
There was no evidence, in law or fact or both, that the Husband would not be able to contribute to the welfare of the child, especially in the areas of education and health. I was also of the view there was no evidence to suggest that the Husband with his lifestyle could not be a good father. I was, therefore, of the view that the child should not be deprived of the father”s inputs on these areas as he grows up. See CX v CY[2005] 3 SLR 690.
14.8 This case rightly affirms that good parenting is not necessarily inconsistent with less common lifestyles or habits. Likewise, adultery, which was previously a matrimonial offence, has not in itself been a reason for suggesting that one cannot be a good parent. Any order which has some effect of depriving a child of his parent”s fullest involvement in his life is a drastic step which can adversely affect the child”s welfare.
14.9 In contrast, the District Court in YB v YC[2008] SGDC 279 ordered sole custody because the father had not shown that he was serious about carrying out his parenting role. Here, the court noted that the father had not seen his three children regularly for four years and was still prepared to wait until proceedings are concluded before exercising access to them. The court might have been reluctant to order joint custody as the father seemed undeserving of it. However, instead of ordering sole custody, this might have been a case where no order of custody is appropriate. First, this case did not fall within any of the circumstances envisaged by the Court of Appeal in CX v CY[2005] 3 SLR 690 where a sole custody order is apt. Further, it has been observed in Re G (guardianship of an infant)[2004] 1 SLR 229 at [8] that:
Where there is no immediate or pressing need for the question of custody to be settled, one should seriously consider whether an order for sole custody is in the best interest of a child, who should, without more, be entitled to the guidance of both parents.
14.10 Making no custody orders generally achieves the same result as ordering joint custody without the psychological effect on parties that one has ‘won’ and the other has ‘lost’. The law may be stronger, ironically, by refraining to intervene too readily in the parent and child relationship by an order of sole custody. Instead of pushing away this father who has not shown the court to be committed to parenting, the law should encourage his participation in parenting. In CX v CY[2005] 3 SLR 690 at [28], the Court of Appeal remarked that no or joint custody ‘also encourages the parent who does not reside with the child to continue to play his or her role in joint parenthood’. The mother in YB v YC[2008] SGDC 279 already had care and control of the children; it was she who would continue to have a major influence in their lives. The question was whether it was necessary at that point in time for a court to make a drastic order that would totally deprive the father of further involvement in the major aspects of the children”s lives.
14.11 In YG v YH[2008] SGHC 166, the parties had joint custody of the children. The father sought specific orders that, amongst others, parties were to agree to the choice of schools and the mother was to consult and inform the father of ‘all decisions pertaining to the children”s health’. The High Court decided that (at [9]):
[T]he parties should take a sensible approach towards the exercise of those rights (of joint custody). It is not in the interest of the children for the parents to be overly insistent on or calculative in respect of their rights. I make no order as to (iii) in [6] above as the right to make decisions on the choice of schools for his children is already part of the Husband”s right to joint custody of his children. … The Wife does not have to consult the Husband on every minor health issue of the children, eg, cold, cough and fever, but is to consult the Husband on every intended hospital admission or hospital procedure unless it is not possible to do so, as in the case of an emergency. If any of the children is hospitalised on an emergency basis, the party having physical care of the child at the time of hospitalisation is to inform the other party as soon as is practicable, for example, within two hours of the start of the emergency.
14.12 Two comments may be made of this aspect of the case. First, joint parenting requires a cooperative spirit and it is not in the welfare of the children for either party to be too insistent on being consulted over every minor matter. It follows that the court should not intervene unnecessarily by making too many detailed specific orders. Second, it raises the issue of which matters fall within the bundle of rights called ‘custody’ and which under ‘care and control’.
14.13 It has been suggested in Debbie Ong and Lim Hui Min, ‘Custody & Access: Caring or Controlling?’ in Developments in Singapore Law between 2001 and 2005 (Teo KS ed) (Singapore Academy of Law, 2006) ch 15, at pp 580—640, para 64 that:
Singapore should adopt definitions of “custody” and “care and control” which would strike a balance between minimising the opportunities for parental conflict and ensuring the involvement of both parents in major decisions affecting the child”s life. The...
To continue reading
Request your trial