Family Law

Citation(2018) 19 SAL Ann Rev 502
Date01 December 2018
Published date01 December 2018

16.1 In 2018, the Singapore courts chartered new waters when it considered issues such as whether an adoption order should be granted to a gay man who fathered a child through gestational surrogacy, and whether a child should be returned to his mother in the UK when he had been wrongfully abducted from her. There were also cases that provided principles on key areas of family law (such as guardianship applications by non-parents) while others continued the application of well-established family law principles.

16.2 Collectively, these decisions represent a continued maturation and an increasing sophistication of Singapore family law jurisprudence. In this edition of the Ann Rev, the following broad areas will be discussed: (a) the jurisdiction of the Family Justice Courts; (b) adoption; (c) custody, care and control, and access; (d) division of matrimonial assets; and (e) spousal and child maintenance.

Jurisdiction of the Family Justice Courts

16.3 The Family Justice Courts were established in October 2014 under the auspices of the Family Justice Act 20141 (“FJA”) to provide:2

… jurisdiction over family proceedings to a dedicated court system which could design the best processes and approaches to deal with an area of law which has wide-ranging society and personal impact.

They comprise the Family Division of the High Court, the Family Courts, and the Youth Courts. The jurisdiction of these courts is specifically provided for under the Supreme Court of Judicature Act,3 the FJA, and other subsidiary legislation.

16.4 One aspect of matrimonial proceedings concerns the division of matrimonial assets between husband and wife. In UDA v UDB4 (“UDA”), the Court of Appeal considered the extent of the family court's jurisdiction to divide matrimonial assets where third-party interests are claimed. In UDA, the wife's mother had intervened in the matrimonial proceedings to dispute the husband's claim that an immovable property held in her name was held on trust for the husband and the wife.

16.5 It is a “fundamental tenet” of statutory interpretation that subsidiary legislation like rules of procedure cannot confer substantive rights and are merely facilitative.5 An application to intervene could not create a new cause of action outside of s 112 of the Women's Charter6 or confer substantive jurisdiction and power on it to make orders against an intervener who was not a party to the marriage.7 Thus, the Court of Appeal held that the Family Court cannot make orders directly impacting the property rights of a third party, even though these parties may have intervened in the matrimonial proceedings. Specifically, the Family Court has no jurisdiction to do so because, while s 112 of the Women's Charter bestows on the Family Court the power to divide matrimonial assets, this power is situated in the specific context of matrimonial proceedings.8

16.6 However, the Court of Appeal's ruling does not mean third-party interests would never be entertained by the court where they related to potential matrimonial assets – the court's jurisdiction to adjudicate on such interests must be properly engaged. There are four possible situations where property ownership issues might arise out of ancillary ongoing proceedings:

(a) First scenario: The property is accepted as a matrimonial asset and the only question is its division. In this scenario, the Family Court has complete jurisdiction to divide the asset under s 112 of the Women's Charter.9

(b) Second scenario: The property is in the name of a divorcing spouse and the issue is whether the circumstances of its acquisition render it a matrimonial asset. In this scenario, the Family Court would have complete jurisdiction to divide the asset under s 112 of the Women's Charter.10

(c) Third scenario: The property is legally held in the name of one spouse who claims to be holding it on trust for a third party, while the other spouse disputes this and claims that the property is a matrimonial asset.11 If the property is legally held in the name of a spouse and a third-party interest is asserted in respect of that property, the court may make an order under s 112 of the Women's Charter because the only parties affected are the parting spouses and no order is sought by or against a third party.12 If no order is sought for the property rights vis-à-vis the third party to be determined, there remains a possibility that the spouse in whom the property legally vests may be made to account to the third party for such value of the property interest as may be claimed, and subsequently found to be owned by such third party.13

(d) Fourth scenario: The property is legally held in the name of a third party, but it is alleged that the property is held on trust for one or both of the divorcing spouses such that it forms part of the matrimonial asset pool.14 If the property is legally owned by the third party, then the ownership issues can be resolved in the following ways:

(i) The spouse who asserts the property is a matrimonial asset may obtain a legally binding confirmation from the third party that the property is a matrimonial asset and that the third party would respect and enforce any order that the court may make in relation to the property.15 If the status of the property is contested, a separate legal action would have to be commenced to determine the property rights at hand while putting on hold any s 112 proceedings until the property rights are determined.16

(ii) The spouse could drop the claim that the property is a matrimonial asset and allow the s 112 proceedings to continue without the property forming part of the matrimonial asset pool.17

(iii) The spouse may ask the court to determine whether the asset is a matrimonial asset without involving the third party's participation or making an

order directly affecting the property.18 This should only be undertaken if both spouses agree to this course of action, as proceeding in this manner could result in the disputed asset being treated as a matrimonial asset and adjustments being made to other aspects of property division.19 If both spouses do not agree to so proceed, then directions would have to be taken for separate legal proceedings to be commenced to determine the property rights in respect of the property's ownership while s 112 proceedings are stayed.20

16.7 Based on the above framework, the Court of Appeal considered that since the husband claimed that the wife's mother legally held the immovable property on trust for him and his wife, the Family Court would have to make an order against the wife's mother which they had no jurisdiction to do. The Court of Appeal thus halted the s 112 proceedings and ordered the husband to commence any civil action he might have in respect of the property against the wife and her mother within 30 days.21 In conclusion, the Court of Appeal emphasised that the jurisdiction of the family justice courts was “governed by statute and [it could] not arrogate jurisdiction to [itself] where the legislature [had] not conferred it”.22

16.8 The relationship between the Youth Court and the Family Court was considered in UNB v Child Protector23 (“UNB”). Divorce proceedings had been commenced between the father and mother pursuant to which a consent order was made that granted both parents joint custody of their children, with care and control going to the mother and access granted to the father. However, the children were referred to the Child Protection Service (“CPS”) on allegations of ill-treatment by the mother towards them. The children then began to live with the father and their contact with the mother ceased. In a subsequent application, the Family Court varied its ancillary orders and granted joint custody of the children to the parents, with care and control going to the father and Skype access granted to the mother. Overnight access to the mother was to begin once the school holidays started, but when the children were scheduled to have overnight access with the mother, they refused to leave the father's car. They were admitted by the father to KK Women's and Children's Hospital where

they were observed to be displaying post-traumatic stress symptoms. Thereafter, they were referred to the CPS for a second time.

16.9 The CPS applied to the Youth Court for care and protection orders. Interim orders were granted for the children to be placed under the supervision of an approved welfare officer while they resided with the father. On review, the Youth Court found that the children were suffering from “emotional injury” and so held that the threshold for state intervention under s 4(g) of the Children and Young Persons Act24 (“CYPA”) was established, and access was subject to the approval and review of the approved welfare officer.25 On appeal, the High Court emphasised that the children's welfare was at the forefront of its consideration in family proceedings even without a care and protection order and that it had the power to direct updated independent reports on the children, make counselling orders and well-calibrated care and access orders.26 After an analysis of the evidence, the appeal was allowed for the following reasons.

16.10 First, Debbie Ong J held that the starting point in determining whether the children needed care and protection must be the words of the relevant provisions in the CYPA. While the purpose of s 4 is to “ensure that children are protected and well cared for”, it also recognises that parents play a primary role in the parenting process and the State has a more limited role in this regard. Hence, the CPS has to be sensitive to the context in which a child's “emotional injury” was suffered;27 this was clear from a speech from the then Minister for Community Development, Youth and Sports, Dr Vivian Balakrishnan, where he had emphasised that removing a child from his family is the last resort. The morally right thing to do was to raise a...

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