Family Law

Published date01 December 2011
Date01 December 2011
AuthorDebbie ONG LLB (Hons) (National University of Singapore), LLM (Cambridge); Associate Professor, Faculty of Law, National University of Singapore.
Divorce: Making interim judgment final

15.1 Section 123 of the Women's Charter (Cap 353, 2009 Rev Ed) provides that the court has discretion to refuse to make the interim judgment of divorce final where the arrangements for the welfare of the child are not satisfactory. In AQB v AQC[2011] 3 SLR 1042 (AQB), the wife opposed the husband's application for a final judgment of divorce. The High Court held that 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. There were, in this case, interim orders for care and control, access, and maintenance of the children. The welfare of the children therefore had not been overlooked and satisfactory arrangements had been made for their welfare. Section 123(1)(a) of the Women's Charter had been met. AQB clarifies that the main purpose of s 123 of the Women's Charter and the requirement in the Women's Charter (Matrimonial Proceedings) Rules (S269/2011) for the filing of the parenting plan, is to ensure that the parties have addressed their minds to making arrangements for the welfare of the children. A final order on custody, care and control and maintenance is not necessary. It is not uncommon that disputes in these areas persist for some time. Parties seek variations when arrangements do not work out as well as they had expected, or seek enforcement of maintenance orders when the party concerned defaults on payments. Such ongoing issues should not prevent the making of the final judgment, as long as the parties have addressed the issues and worked out feasible arrangements that can enable post-divorce parenting to get off to a reasonable start.

Maintenance of child under section 70 of the Women's Charter

15.2 In AJE v AJF[2011] 3 SLR 1177 (AJE), the husband had two sons from his previous marriage, and the wife had one son, B, from her previous marriage. Both had one son, C, out of their own marriage. The High Court considered whether the husband was liable to maintain B, who was not his biological child, but whom he had been maintaining. The basis of the husband's liability is found in s 70 of the Women's Charter. The husband argued that s 70 had no application to him as B's biological father had been paying S$350 per month for B's maintenance. Further, since the husband is entitled to claim under s 70(3) of the Women's Charter from his wife any maintenance he had paid for B, it would make no sense for the court to order the husband to pay maintenance which he can recover back from his wife. The High Court rejected the arguments and held that if a child receives maintenance from his parents which is insufficient for his needs, then the non-parent who has accepted the child as a member of his family continues to have the duty to provide the child with such additional maintenance, within his means, as is reasonable for the child. The court further held, somewhat surprisingly, that (AJE at [15]):

once the person has accepted the child as a member of his family, the duty arises, and only ceases when the child ceases to be a child s 70 [of the Women's Charter] does not state that after a person has accepted the child as a member of his family, he can change his mind and stop maintaining the child. Since family acceptance is the basis for the duty, it can be argued that the duty ends only when, by circumstances not of the person's making, the quasi-familial relationship between the person and the child ends, eg, when the child renounces the relationship, or he is taken away by his parent.

15.3 The court was unable, however, to explain how s 70(3), which allows the non-parent to recover the sums from the biological parent, affects the non-parent's duty to maintain the child. Nevertheless, the learned judge concluded (AJE at [17]) that: on any reading of s 70 as a whole, s 70(3) cannot cancel s 70(1).

15.4 The High Court did not refer to a previous significant decision on s 70 of the Women's Charter: EB v EC (divorce: maintenance of stepchildren)[2006] 2 SLR(R) 475 (EB) (see (2006) 7 SAL Ann Rev 257 at paras 14.2914.30). In this case, the court had accepted Professor Leong's view (Leong Wai Kum, Principles of Family Law in Singapore (Singapore: Butterworths Asia, 1997) at p 861):

If the basis of the liability is a voluntary assumption of responsibility, it would appear that this responsibility cannot be enforced as resolutely as the duty of a parent. The duty is, as discussed below, subordinated to a parent's duty but, even without those express limits, it seems right in principle that the person cannot be forced to discharge this responsibility for a long time after he or she has clearly indicated that he or she no longer accepts it.

15.5 Woo Bih Li J noted in EB (at [21]) that the above passage does not suggest an immediate cessation of responsibility as the phrase for a long time is used and correctly proceeded on the premise that responsibility can cease eventually, although not immediately. In contrast, Kan Ting Chiu J in AJE was of the view that the non-parent cannot end the duty by ceasing to accept the child as a member of his family as long as the child remains a child.

15.6 The views of the High Court in EB and Professor Leong are principled and consistent with the broad fundamental principles of the law regulating the parent and child relationship. Parents have a primary duty to maintain their biological children, whether legitimate or illegitimate (see s 68 of the Women's Charter). Parents stand in an exalted position with respect to having authority over the upbringing of their children. They are also expected to bear the greatest responsibility for the protection, nurture and maintenance of the children. No other adult has the same primary duty to maintain. The duty of a non-parent in s 70 of the Women's Charter is subordinate to the parents' duty in that it only arises where the parents fail to maintain the child, ceases when the child is taken away by either parent and the sums spent on the child by the non-parent may be recovered as a debt from the parents. Section 70 serves its purpose as a stop-gap measure to provide for a child with immediate needs. It supports the welfare of the child by ensuring that if the child has been maintained by a non-parent, that non-parent will be required by law to maintain him or her for a reasonable period of time, possibly to enable more permanent arrangements to be made for the maintenance of the child in the long term. This view of the character and purpose of ss 68 and 70 reconciles the non-parent's duty in s 70(1) to maintain, with the provision in s 70(3) providing the right to the recovery of sums expended. The law requires the non-parent to provide the maintenance immediately required, thereby placing on him the burden of providing the sums first and recovering them as a debt subsequently, using his own resources. Therefore, even though the biological parents remain primarily responsible for all maintenance sums at the end of the day, s 70 continues to serve a valuable purpose in protecting the welfare of the child.

Custody of children

15.7 Six years after the landmark decision in CX v CY[2005] 3 SLR(R) 690 (CX v CY), the Court of Appeal in ZO v ZP[2011] 3 SLR 647 (ZO (CA)) stressed the importance of the principles enunciated therein. The High Court decision of ZP v ZO[2010] SGHC 364 was criticised in last year's review (see (2010) 11 SAL Ann Rev 368 at paras 15.1815.19). Sole custody was granted by the High Court together with a specific term that both parties must consult the child, teachers and each other on changes relating to the school, course of study or major educational milestones. The Court of Appeal returned the law on track (ZO (CA) at [9] and [10]):

it appears that the principles laid down in this decision (CX v CY) had in certain respects at least been overlooked by the court below and we therefore take this opportunity to remind all counsel not only of the significance of this decision but also (and more specifically) of the relevant principles contained therein the decision in CX v CY established that there is a clear and well-established distinction between custody on the one hand and care and control on the other.

15.8 His Honour, Andrew Phang JA explained that joint parenting best served the child's welfare (ZO (CA) at [12]):

sound and effective parenting is best achieved when both parents are involved. This is both logical and commonsensical. The input by both parents furnishes a balance that enhances the development of that child (or those children, as the case may be) until adulthood is reached. In contrast, the exclusion of one of the parents in this particular regard would absent an exceptional reason contribute towards a less balanced as well as less rounded development of the child (or children) concerned. Hence, the pronouncement made by the court in CX v CY that a joint (or no) custody order would henceforth be the norm rather than the exception. We could not agree more.

Shared care and control

15.9 Shared care and control has been more commonly ordered in recent years (see (2010) 11 SAL Ann Rev 368 at paras 15.2015.25). In AQL v AQM[2011] SGHC 264 (AQL), the High Court clarified what shared care and control means (AQL at [8]):

In my opinion, an order for shared care and control means that the child spends time living with each parent, who then becomes the child's primary caregiver for the duration that the child lives with him (or her). The right to make the day-to-day decisions on the upbringing of the child therefore rests with the parent the child is presently living with. In the context of shared care and control, it becomes meaningless to speak of access. This is because the child effectively has two homes and two primary caregivers.

15.10 The High Court found that the wife and husband appear to have markedly different ideas on how...

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