Family Law

• Author: HO Wei Jing, Tricia1 LLB (Singapore Management University); Lecturer, School of Law, Singapore University of Social Sciences.
• Publication year: 2021
• Citation: (2021) 22 SAL Ann Rev 479
• Date: 01 December 2021

17.1 A major change in the family justice system in 2021 is the establishment of the Appellate Division of the High Court (“High Court (Appellate Division)”). Previously, first instance family matters that were on appeal from the Family Division of the High Court would be adjudicated by the Court of Appeal. With the introduction of the High Court (Appellate Division), it is envisioned that the bulk of family matters would be fully and finally dealt with at this level. This review examines the implications that flow from the establishment of the new High Court (Appellate Division) on procedural and substantive law, in particular on the law of division of matrimonial assets. This review will also cover cases involving divorce and child welfare.

I. Court structure

17.2 Given the novelty of the High Court (Appellate Division), some time will be required before any meaningful commentary on its impact on both the judicial system and jurisprudence can be made. The focus, in the meantime, should be on figuring out the manner in which the High Court (Appellate Division) operates and how, if necessary, appeals can still be made from decisions made by the High Court (Appellate Division) and any ancillary applications.

17.3 UJM v UJL2 (“UJM”), as the first decision on leave to appeal from a decision of the High Court (Appellate Division) (“AD/CA Leave Application”), is instructive in this regard. UJM was the result of protracted legal proceedings in which the wife sought financial relief from the Singapore court following the parties' divorce in Karachi, Pakistan. The application was first made to the Family Court, where a District Judge granted the requisite leave and also ordered that the husband pay interim maintenance of $1,500 per month for the children and the wife. The parties then appeared before the General Division of the High Court (“High Court (General Division)”) where the judge varied the maintenance orders and also ordered the husband to pay the wife

in excess of $2.5m in three instalments. This decision of the High Court (General Division) was affirmed by the High Court (Appellate Division) in an ex tempore decision.

17.4 It should be preliminarily noted that the husband's application in UJM was dismissed on the basis that it had been filed out of time with no explanation. The Court of Appeal's observations in relation to the AD/ CA Leave Application were thus obiter dicta. The Court of Appeal began by emphasising that the High Court (Appellate Division) was not meant to be seen as a further tier of appeal and that it was the final appellate court in a vast majority of cases.3 The statutory scheme was summarised thus:4

17.5 The “Threshold Merits Requirement” must be assessed with reference to the facts and circumstances of the case, with the adjudicated point having weighty ramifications going beyond the disputing parties — for instance, appeals engaging new questions of law of general application or those involving conflicting decisions of the Court of Appeal or High Court (Appellate Division).5 In turn, the “Discretionary Appropriateness Requirement” requires the Court of Appeal to consider6 (a) the “rare and exceptional” situation where it is required to resolve a point of law; or (b) where it is required to adjudicate to further the interests of the administration of justice. Thereafter, the Court of Appeal has the flexibility to consider any and all relevant matters. With the above statutory scheme

in place, AD/CA Leave Applications need not be assessed in accordance with the traditional common law rules for leave to appeal against the decision of the High Court (General Division), as set out in Lee Kuan Yew v Tang Liang Hong.7 In particular, Parliament had made clear that AD/CA Leave Applications were to be assessed differently “in terms of both the criteria and the stringency of review” [emphasis in original].8

17.6 Overall, UJM made clear (and repeatedly emphasised) that the AD/CA Leave Application regime provided a “tightly confined and highly limited avenue” for appeal,9 and that it would only be granted in “rare and exceptional” cases [emphasis in original].10 Indeed, the Court of Appeal cautioned that parties had to be circumspect and realistic in bringing any AD/CA Leave Applications, and unmeritorious applications would be met with costs consequences.11 This was reflected on the very facts of UJM itself, where the husband was found to have failed to even satisfy the Threshold Merits Requirement. While there were “interesting” legal questions before the High Court (General Division), these had not been raised before the High Court (Appellate Division), and the latter had only dealt with questions of fact. As a result, the application before the Court of Appeal was also bereft of questions of law.12

17.7 On the point of the court's structure, UJN v UJO13 (“UJN”) is also a useful judgment relating to leave to adduce further evidence for an appeal to the High Court (Appellate Division). Woo Bih Li JAD affirmed that the critical test remained that of whether there were special grounds, as set out in Ladd v Marshall,14 to allow such evidence. Further, Woo JAD emphasised that a court should generally be disinclined to allow fresh evidence on appeal that is inconsistent with the applicant's position below.15 Even where the evidence was credible, this had to be balanced against the interest of finality in proceedings, the interest to hold parties to their positions as a matter of fairness to the opponent and the court and the wastage of court resources.16 Applying these principles in UJN, Woo JAD held that it was in the interests of justice to allow the husband to adduce evidence in respect of a bonus received, which could have shown

that the judge below had made an error. The other categories of evidence were, however, rejected as they represented a change in the husband's position taken before the lower court.17

II. Divorce

17.8 In 2021, another area of family law that developed was the law on divorce. On 2 May 2021, the Ministry of Social and Family Development (“MSF”) released a consultation paper on how to reduce acrimony in divorces.18 As part of the public consultation, MSF proposed an amicable divorce option where parties may be allowed to jointly file for divorces without relying on any fault-based facts. This is a welcome step, given that Singapore had already committed to a no-fault divorce regime in 1980 that led to the irretrievable breakdown of marriage becoming the sole ground for divorce in Singapore.19

17.9 Following the consultation, the Women's Charter (Amendment) Bill 202120 was read for the first time in parliament on 1 November 2021. It introduced a sixth fact to the Women's Charter 196121 for divorcing parties to rely on to show the irretrievable breakdown of marriage: that the spouses agree that the marriage has irretrievably broken down.22 As the Women's Charter (Amendment) Bill has yet to come into force at the time of writing this edition, the sixth fact will be examined more closely in the subsequent editions. That being said, the state of divorce law in 2021 highlighted certain circumstances that demonstrate why change in this area of family law is essential.

17.10 In VTP v VTO23 (“VTP”), the General Division of the High Court (Family Division) (“HCF”) considered the sole question whether the Family Justice Courts could grant an interim judgment of divorce based on the fact that the husband's irresponsible financial behaviour made it unreasonable to expect the wife to continue living with him under s 95(3)(b) of the Women's Charter.24 The Family Court answered that question in the affirmative and the husband appealed against the decision.

17.11 The wife in VTP claimed that the husband engaged in numerous instances of financial irresponsibility such as investing the sum of $50,000 in a business that eventually became insolvent against her objections, making Foreign Exchange investments without her knowledge that left him in debt, registering her name in a multi-level marketing business without her knowledge or consent, becoming a bankrupt, and the non-payment of debts and fines incurred by the husband that the wife eventually repaid.25 These findings of fact were not disturbed on appeal and such conduct was found to amount to unreasonable behaviour. In holding that the wife had met the legal threshold of behaviour to justify the grant of an interim judgment, the HCF also placed weight on the District Judge's findings that the husband's behaviour had taken an emotional toll on the wife to the extent that it affected her health and that the wife had “implored the husband to behave more responsibly and honestly in the managing of finances that affect her and the children”.26

17.12 VTP suggests that the legal threshold to meet, when the fact of behaviour under s 95(3)(b) of the Women's Charter is relied upon to obtain a divorce in the Family Justice Courts, is a high one. While this may be so in contested divorce proceedings, the threshold for meeting the same requirement in uncontested proceedings tends to be much lower in practice.

17.13 In uncontested proceedings, the procedure is such that facts claimed in the court documents are rarely verified and/or supported by objective evidence. Given that cumulative behaviour consisting of a series of minor acts over a continued period of time may be sufficient to amount to behaviour that satisfies s 95(3)(b) of the Women's Charter,27 interim judgments of divorce may be granted on much lower thresholds, especially when both the parties attest to agreed facts in an uncontested divorce.

17.14 Following from that, it is conceivable that the parties may conspire to obtain a faster divorce even if the facts of their case do not actually meet the high legal threshold for behaviour that is applied in contested proceedings. The presence of two different thresholds when proving behaviour under s 95(3)(b)...