B24 FLP Divorce Proceedings Guide (PDF)

B24 FLP Matters to consider before filing for divorce **[Step 2]**: Give advice as to external assistance for **[reconciliation]** **[Mandatory]** mediation and counselling **[s139I WC]** Legal practitioner\'s duty to inform client of **[amicable settlement]** under **[Rule 15A LPR]** **[MSF ma...

B24 FLP Matters to consider before filing for divorce **[Step 2]**: Give advice as to external assistance for **[reconciliation]** **[Mandatory]** mediation and counselling **[s139I WC]** Legal practitioner\'s duty to inform client of **[amicable settlement]** under **[Rule 15A LPR]** **[MSF mandatory co-parenting programme]** All parents with children below 21 years old are required to attend the Mandatory Co-Parenting Programme (CPP) before filing for divorce Divorce (**[Stage 1]**) Jurisdiction 7\. **[s93 WC]** -- Domicile / habitual residence read with section 3(5) Women's Charter 1. a. b. 2. 3. - - - **[Grounds for divorce - There is only one ground for divorce: irretrievable breakdown of the marriage]** 10\. **[s95(2) read with s95A WC]** - That the marriage has irretreviable broken down is the Sole ground (Primary) for divorce, and it is just and reasonable to grant divorce (Secondary). **[s95A WC]** 12\. Section 95A(1)(a) to (f) Women's Charter - **[6 factor to establish irretrievable breakdown]** 13\. Restrictions found in sections 95A(2), (3), (4), (5), (6), (7) Women's Charter **[Secondary requirement: Just and reasonable]** (interest of the children) **[Wong Siew Boey subjective / objective tests]** [Firstly], whether R's behaviour has been such that the petition can no longer reasonably be expected to live with him is essentially a **finding of fact.** Court must take into account the **[cumulative effect]** of active, passive behaviour that affected the marriage.. [Secondly], whether the petitioner **actually** finds it intolerable to live with the respondent must be **[answered subjectively: whether his attitude was reasonable is irrelevant.]** - - - - - - - - - - Ancillary matters (divorce proceedings - **[Stage 2]**) 15\. Ancillary matters would comprise of primarily: **[Identify who is the child (s92 WC)?]** a\) Custody care and control and access -- sections 124, 125 and 126 Women's Charter **[s125 WC]** - Paramount consideration to be welfare of child (**[Welfare Principle]**) 16\. **[Section 125]** Women's Charter -- **[paramount consideration to be welfare of child]** 1. 2. a. b. Relevant Principles of the **[Welfare Principle]** **[s126 WC]** - **[Custody Orders]** subject to conditions while custody involves overarching, significant decisions about a child\'s upbringing, care and control focus on the child\'s daily life and immediate needs. Both concepts are crucial in ensuring the child\'s well-being and stability. Custody (**[s126 WC]**) **Custody** refers to the **[legal right to make significant decisions about a child\'s life]**. This includes major decisions such as the child\'s education, religion, and major healthcare choices. Custody can be either sole, where one parent has the exclusive right to make these decisions, or joint, where both parents share this responsibility **[Definition of \'custody\' c/f Care and control]** **[19. To understand the distinction between joint custody and sole custody]** 20\. CX v CY \[2005\] 3 SLR(R) 690 - **[Joint custody] it was crucial that the courts recognised and promoted joint parenng so that both parents could connue to have a direct involvement in the child's life. The making of joint or no custody orders was very much in the welfare of the child, and it reminded the parents that the law expected both of them to co-operate to promote the child's best interest.** Care and control **[s126 (2A) s126(2B)(a) & (b) WC] Care and control**, on the other hand, **[pertains to the day-to-day living arrangements and decisions for the child]**. This includes everyday tasks such as feeding, transportation, and bedtime routines. Essentially, care and control determine who the child lives with on a daily basis and who makes the smaller, routine decisions1 22\. Definition of care and control **[\[Post divorce]**\] 24\. To understand the distinction between sole care and control, shared care and control and split care and control +-----------------------------------+-----------------------------------+ | Shared care and control | \-  Time that children spends | | | with each parent is split between | |   | 2 parents -  May not necessarily | | | be an equal split -  Not as | | | common in Singapore, but quite | | | common in other jurisdictions - | | | but recently the Courts have been | | | supporting shared C&C for young | | | children | +-----------------------------------+-----------------------------------+ | Sole care and Control | \-  Sole care and control is the | | | norm - one with C&C, other has | | | access -  The designated parent | | | then becomes the primary | | | caregiver | +-----------------------------------+-----------------------------------+ | Split care and control | \-  Where the children are split | | | between 2 parents -  Uncommon | | | (eg. where siblings are split | | | between parents, one with each) | +-----------------------------------+-----------------------------------+ |   |   | | | | |   |   | +-----------------------------------+-----------------------------------+ |   |   | | | | |   |   | +-----------------------------------+-----------------------------------+ |   |   | | | | |   |   | +-----------------------------------+-----------------------------------+ **[Sole care and control c/f shared care]** **[Split care and control]** 23\. Soon Peck Wah v Woon Che Chye \[1997\] 3 SLR(R) 430 **[In the context of Singapore law, there is no presumption of \"maternal custody\" for all young infants.]** 25\. Wong Phila Mae v Shaw Harold \[1991\] 1 SLR(R) 680 - Factors considered for continuity of care by one parent **- The conduct of the pares;** **- The wishes of the parents and the wishes of the child where he or she is of an age to be able to express an independent opinion;** **- A young child would be best looked aer by its mother;** **- Which party can offer beer security and stability; and,** **- That siblings should not be separated.** **- We also agree that the fact that one parent is more capable of providing material comfort for a child does not necessarily render that parent a beer parent and thus entle him or her to the custody of the child. In the final analysis it is an exercise in weighing the relevant factors which oen conflict.** **[Access]** **[s126 (2B)(a), (b) and (c) WC]** 29\. To understand concept of access and the different types of access Orders including supervised / unsupervised access / structured access / liberal access as well as conditions that may be attached to access Orders **[Is access the right of the parent to spend time with the child or is access the right of the child to spend time with both parents?]** Table of comparison of the different kinds of access +-----------------------------------+-----------------------------------+ | **Interim Access** | [*KJ v BKK*  \[2013\] SGDC | | | 261] -  In * NM v NN* | |   | [ \[2006\] SGDC | | | 218]  , District | | | Judge May Loh stated: | | | | | | **-  "In summary, interim | | | applica ons concerning a child's | | | care arrangements should be | | | conducted with cau on.** | | | | | | \-  The objec ve of the court, | | | aided by counsel, ** would be to | | | establish care arrangements that | | | enable the child to have equal | | | access to either parent, pending | | | final determina on of the | | | issue.** | | | | | | \-  This may be an ar ficial | | | construct but is indeed the most | | | useful way forward in such an | | | interim stage of proceedings. -  | | | All too o en, par es are focused | | | on pu ng forth their own care | | | arrangement as being in the best | | | interests of the child. | | | | | | **-  Pending a final report and | | | ruling, due process should be | | | observed to balance the interests | | | of the child with the | | | availability of a process for | | | each party to make representa ons | | | as to the suitability of his or | | | her care arrangement.** | | | | | | \- ** The arguments should not | | | center on the immediate | | | preferences of the  child**  , as | | | these are best le to | | | professionally trained counselors | | | for their review and | | | recommenda ons. Furthermore, the | | | court frowns upon involving | | | minors of such a tender age. | | | | | | \- ** Instead, par es should | | | focus on equal par cipa on in the | | | process with a view toward a | | | healthy working rela onship as | | | divorced co-parents in the near | | | future.** | | | | | | \- ** As observed earlier, the | | | obvious excep ons regarding the | | | child's safety and health would | | | apply.** | | | | | | \-  In the present case, no such | | | excep ons were argued by the | | | father to jus fy his ac on." -  | | | Although equal access to both | | | parents may not always be | | | possible because of the | | | circumstances of the case, * NM v | | | NN*  does ** highlight the | | | importance of gran ng** | | | | | | **generous interim access orders | | | where possible.** | | | | | |   | +-----------------------------------+-----------------------------------+ | **Overnight Access** | [*BKJ v BKK*  \[2013\] SGDC | | | 261]  | |   | | | | \-  In JQ v JR [ \[2005\] SGDC | | | 93]  , District Judge | | | May Loh stated: | | | | | | \-  " ** The court approaches the | | | issue of overnight access from | | | the perspec ve of the child's | | | best interests and his rights.** | | | - ** The child should be equally | | | en tled to overnight access with | | | the father as he is with the | | | mother, unless there is evidence | | | to disprove either party's | | | eligibility. Such evidence would | | | be toward proving a history of | | | abusive or negligent paren ng.** | | | | | | \-  MC submi ed that no effec ve | | | bonding occurred during overnight | | | access and as such the father | | | would not 'lose out' if denied | | | overnight access; instead the | | | young child would require a | | | stable familiar environment to | | | sleep well. | | | | | | \- ** While I accept that | | | familiarity for a young child is | | | important, such a factor should | | | be reviewed in the context of a | | | custody dispute. The child's | | | parents have separated and any | | | familiar environment has been | | | shaken. The relevant frame of | | | analysis should be how to | | | establish an environment in which | | | the child can have reasonably | | | equal access to both parents.** | | | | | | \- ** The court's goal within | | | this frame of facts is how to | | | ensure the child is not | | | unreasonably denied the | | | opportunity to experience | | | balanced access to both | | | parents.** | | | | | | \-  Li gants o en cite the age of | | | the child as a reason to a empt | | | to deny the other | | | | | | parent overnight access. | | | ** However, it is important to | | | note that the age of the child in | | | itself is not a strong reason for | | | allowing or denying the other | | | parent overnight access. The key | | | considera on is the benefit or | | | harm to the child if overnight | | | access is or is not granted.** | | | | | |   | +-----------------------------------+-----------------------------------+ | **Supervised Access** | [*BKJ v BKK*  \[2013\] SGDC | | | 261] -  In * ZB v ZC* | |   | [ \[2008\] SGDC | | | 186]  , District | | | Judge Khoo Oon Soo stated: -  | | | "The law rela ng to access is | | | clearly spelt out in the case of | | | * BG v BF* | | | [ \[2007\]]  | | | | | | [3 SLR 233]  . ** The | | | non-custodian parent must be | | | given opportuni es to bond** | | | | | | **with the child**  . A careful | | | assessment of the evidence shows | | | there was no abuse of any kind by | | | the child's father. The Social | | | Welfare Report confirms the boy | | | to be a ached to him. He was | | | certainly comfortable with the | | | father. I cannot see any reason | | | why there should be supervised | | | access for such a rela onship. - | | | ** Furthermore, I have stated | | | earlier, their son must have me | | | with his paternal grandparents | | | and paternal rela ves.** | | |  Supervised access will restrict | | | this dimension of bonding as it | | | restricts access to the father. | | | ** The child must have the me | | | and opportunity to be in the | | | environment of his father and his | | | father's family members." ** | | | | | | **-  As such, access should, as | | | far as possible, be unsupervised | | | and supervised access should only | | | be ordered if there are strong | | | reasons to do so.** | | | | | | \-  It is clear from the case law | | | that access is a very important | | | issue. ** Access allows the | | | development of the parent-child | | | bond and is o en very important | | | for the child's psychological | | | well-being.** | | | | | | **-  In many cases, supervised | | | access would not be helpful for | | | the development of this | | | parent-child bond as the presence | | | of the non-custodial parent (who | | | would o en not be on par cularly | | | good terms with the parent having | | | access) would not contribute to | | | comfortable and open interac on | | | between the child and the parent | | | having access.** | | | | | | **-  As such, supervised access | | | should be avoided unless it is | | | necessary to protect the child.** | | | | | |   | +-----------------------------------+-----------------------------------+ | **Unsupervised Access** | [*IX v TIY*  \[2015\] SGFC | | | 146]  | |   | | | | \- ** It is trite law that on the | | | issues rela ng to a child, that | | | the paramount considera on is the | | | welfare and best interests of the | | | child.  Taking into** | | | | | | **considera on the totality of | | | the evidence before me, I was of | | | the view that there was no reason | | | for access by the Husband to be | | | supervised.** | | | | | | \-  The Wife had not raised any | | | allega ons of abuse by the | | | Husband and her sole basis for | | | asking for the access to be | | | supervised by her appeared to be | | | the fact that she did not trust | | | the Husband with the child. The | | | Wife seems to think that the | | | Husband's rights to access was | | | somehow linked to his lack of | | | "a empts to redeem himself" in | | | her eyes. | | | | | | **-  The Wife must accept the | | | fact that par es are now divorced | | | and will be moving on separately | | | with their lives. While they will | | | both con nue to have a joint | | | responsibility towards the child | | | as parents, this does not and | | | should not allow one parent to | | | impose their views or control the | | | other as far as the child was | | | concerned.** | | | | | |   | +-----------------------------------+-----------------------------------+ | liberal access | Liberal access allows the parties | | | to make access arrangements | | | amongst themselves. This requires | | | some level of flexibility and | | | cooperation between the parties. | | | The parent will make prior | | | arrangements with the parent | | | having care and control to spend | | | time with the children including | | | the time period for access and | | | the venue for the handover for | | | access to take place. | +-----------------------------------+-----------------------------------+ Reports 34\. **[Section 130]** Women's Charter -- Court to have regard to advice of welfare officers **[Parent Abduction across borders]** **[BDU v BDT (HC) and BDU v BDT (CA)]** - Legal Principles and Considerations under ICAA and the Hague Convention [ **Primary concern under Article 13b of the Hague Convention was the return of the child to the country of habitual residence, not the substantive merits of custody issues**] **[Relocation (BNS v BNT \[2015\] SGCA 23)]** Tests and Considerations Impact on Child\'s Welfare: The court must consider how the relocation will affect the child\'s emotional and psychological welfare. Primary Caregiver\'s Stability: The court assesses whether the primary caregiver\'s desire to relocate is reasonable and how it affects the child\'s welfare. Relationship with the Left-Behind Parent: The court evaluates the strength of the child\'s relationship with the left-behind parent and the potential impact of relocation on this relationship. Division of matrimonial assets (**[Before maintenance is ordered]**) **[Prenuptial agreements (TQ v TR)]** The legal status of prenuptial agreements in Singapore is influenced by both statute law (specifically the Women's Charter) and common law. Agreements that contravene express provisions or legislative policies of the Women's Charter will not be upheld. The court emphasized that while prenuptial agreements can be given significant weight, especially if they are valid under foreign law and entered into by foreign nationals, they are not automatically enforceable. 53\. Section 112 Women's Charter -- when does the Court have power to order division of assets; the division must be one that is just and equitable **[What are the matrimonial assets?]** Practical advice on what constitutes matrimonial assets 55\. Section 112(10) Women's Charter -- **[statutory]** definition of matrimonial assets s112 (10) WC \[1\] - s112(10)(a) WC - **[converted]** \[2\] - s112(10)(b) WC - **[quintessential]** \[3\] - Assets that **[do not fulfil]** either limb of s112(10) \[4\] - **[Gifts]** and **[inheritance]** Definition of Matrimonial Assets: Under Section 112(10) of the Women's Charter, matrimonial assets include any asset acquired before or during the marriage that is ordinarily used or enjoyed by both parties or their children, or has been substantially improved during the marriage by either party. **[Exclusion of Gifts]**: Assets acquired by one party at any time by gift or inheritance are excluded from the pool of matrimonial assets **[unless they have been substantially improved during the marriage by the other party or both parties.]** Pure inter-spousal gifts Pure Inter-Spousal Gifts: Pure inter-spousal gifts are assumed to be **[part of the matrimonial assets, as they embody the initial effort of the donor spouse]** CLC v CLB \[2023\] 1 SLR 1260 (CA): The cases of Chen Xiaohui and Wanlai Cheng are important decisions in this area of law. **[Third party interests Existence of Third-Party Interest:]** The court assumes that third-party interests exist if there is evidence to support such claims. Priority of Claims: The court assumes that third-party claims may take priority over the claims of the spouses if the third party has a stronger legal or equitable interest. **[Windfalls - Assumption of joint enterprise The court assumes that the marriage is a joint enterprise, and any financial windfalls during the marriage are part of the matrimonial assets, unless proven otherwise.]** **[Date]** of determining pool of assets and valuation / **[methodology]** in grouping assets 59\. NK v NL \[2007\] 3 SLR(R) 743 \- Difference between **[classification methodology]** and **[global assessment methodology]** **[Full and frank disclosure / adverse inference]** 75\. UZN v UZM \[2020\] SGCA 109 International issues in Family Practice (including relocation) **Even if you have sole custody and care and control, you still must seek leave and apply to Court** 76\. **[Section 126(3)]** Women's Charter -- removal of child out of the jurisdiction of Singapore unless with **[written consent of both parents or leave of Court]** Maintenance **[43. Section 68 Women's Charter -- duty of both parents to maintain the child;]** Except where an agreement or order of court otherwise provides, **it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody or the custody of any other person, and whether they are legi\^mate or illegi\^mate,** either by providing them with such accommoda\^on, clothing, food and educa\^on as may be reasonable having regard to his or her means and sta\^on in life or by paying the cost thereof. 40\. Distinction between a claim for **[maintenance during the course of the marriage]** and **[maintenance sought as part of the ancillary matters]** and when they are applicable 41\. Section 69 Women's Charter -- maintenance for wife / incapacitated husband and child **[during the course of the marriage]** **[After commencement of divorce proceedings (Ancillary)]** **[Purpose is that of financial preservation that is not the same as under s69]** 42\. **[Section 113 WC]** -- maintenance for wife / former wife or incapacitated husband or incapacitated former husband where **[divorce proceedings have been filed]** **[After the Divorce]** **[d) Division of matrimonial assets -- section 112 WC]** **[Trends:]** Proportion of division and methods adopted by the Court in deriving an Order that is just and equitable Consider practical ways to achieve division Discuss possible outcomes and practical issues, e.g. whether one can afford the mortgage if one retains the property Check if desired options are feasible with HDB and CPF (CPF is still matrimonial asset where acquired during the marriage) 72\. UBM v UBN \[2017\] SGHCF 13 - Rationalizing the application of structured approach against past decisions and cases Dual -income marriage then structured approach 69\. ANJ v ANK \[2015\] SGCA 34 - **Structured** approach is to have **[equal emphasis]** on the **[financial and non-financial contributions]** of the parties **[Long single-income marriage inclines towards equal division]** 70\. TNL v TNK & Anor Appeal \[2017\] 1 SLR 609 - **[rejection]** of ANJ\'s structured approach in single-income marriages \- Single income household / long marriage -- towards equal division **[Appeals will not be sympathetically received where the potential adjustment is less than 10%.]** **[There is no Equal Contribution Presumption: The court does not start with the assumption that both parties have contributed equally. Instead, it evaluates the specific contributions of each party. (Lim Choon Lai v Chew Kim Heng)]** Assets purchased during marriage may be recognized as purchased at different times, even though the operative date was the date of decree nisi. The court takes into account any debts or liabilities incurred by either party for the benefit of the family. Settlement Agreement: The court assesses whether the division proposed in the settlement agreement is just and equitable, considering the length of the marriage and the contributions made by each party **[s114 Factors in assessing maintenance to be paid]** - a. b. c. d. e. f. g. - **[Maintenance of child]** **[s122 WC Childe must be \< 21 y.o.]** 44\. **[Section 69(4)(a) to (h) WC]**-- **[factors for Court's consideration when determining quantum for child]** **[Maintenance of spouse]** 47\. Distinction between sections 69 (during the marriage) and 113 (Post divorce) Women's Charter 48\. **[Section 69(4)WC]** -- **[factors]** for consideration when determining quantum of maintenance for **[spouse/ incapacitated husband]** **[during the course of the marriage]** 49\. **[Section 114WC]** -- **[factors]** for consideration when determining quantum of maintenance for spouse **[where divorce proceedings have been filed]** **[s117 WC duration of the maintenance order]** **[s118 WC Variation of maintenance -]** Part VII women\'s Charter 83\. Section 65(1) Women's Charter - applicant must prove **[family violence]** committed and protection order necessary based on the **[balance of probabilities]** Stage 1: Was there **[family violence]** or likely to have family violence committed? Stage 2: Is a Protection Order a **[necessary?]** Stage 3: **[Type of orders]** the Court can make Consequences of breach Therapeutic Justice **[Rule 15(2) and (3) PCR]**