B24 FLP Divorce Guide PDF

B24 FLP 1. Matters to consider before filing for divorce 1. **[Step 1]**: Explain the rationale to the client 1. **[Step 0]**: Is there a possibility of divorce by mutual agreement (s95A WC)? 2. **[Step 2]**: Give advice as to external assistance for **[re...

B24 FLP 1. Matters to consider before filing for divorce 1. **[Step 1]**: Explain the rationale to the client 1. **[Step 0]**: Is there a possibility of divorce by mutual agreement (s95A WC)? 2. **[Step 2]**: Give advice as to external assistance for **[reconciliation]** 2. Possibility of Reconciliation s139F(1) WC 3. **[Mandatory]** mediation and counselling **[s139I WC]** - FDR Conference - Counselling session / intake & Assessment session - **[s94A WC]** - Mandatory counselling , if children are involved - Mediation session - Guidelines for successful mediation - Preparation for mediation 4. mediation counseling family support programs **[s139 J WC]** (not covered under Part 10) 5. Uncontested divorces - Custody, care and control, and Access - Maintenance - Division of Assets Prior to mediation - Documents required 6. Court may advise parties to attend **[private mediation]** 7. Legal practitioner\'s duty to inform client of **[amicable settlement]** under **[Rule 15A LPR]** - Advantages of mediation - **[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 3. Step 3: Substantive advice 2. Pre-writ 4. 1\. Section 94A Women's Charter -- Parenting Programme 5. 2\. Also known as the Mandatory Co-Parenting Programme (CPP) formerly known as the Mandatory Parenting Programme 3. Nullity (void marriages / voidable marriages) 6. 3\. To know the **[distinction]** between void and voidable marriages  **[If a marriage is void, it is void whether a judgement is obtained - void ab initio] voidable marriage is one that will be regarded by every court as a valid subsis\^ng marriage un\^l a decree annulling it has been pronounced by a court of competent jurisdic\^on...'** 8. 4\. s105 WC -- **[Void marriages]** 9. 5\. s106 WC -- **[Voidable marriages]** - 6\. **[s107 WC]**r -- **Bars** to relief where marriage is voidable 4. Divorce (**[Stage 1]**) 7. Jurisdiction 10. 7\. **[s93 WC]** -- Domicile / habitual residence read with section 3(5) Women's Charter 8. Statutory restrictions -- Parties have to be married for at least **[3 years]** to apply for divorce UNLESS the plaintiff can prove exceptional hardship or depravity by the defendant 11. 8\. **[s94 WC]** - promote the sanctity of marriage and ensure that parties do not rush in and out of marriage without any thought of the consequences. 12. 9\. Exceptions of **exceptional hardship** suffered by plaintiff / exceptional depravity on part of defendant - Exceptional hardship - To hold that the husband should nevertheless wait three years before seeking a divorce appears to be visiting the wrongs of the wife on him. - Exceptional Depravity: having sexual intercourse with different women and filming the ex for future 9. **[Grounds for divorce - There is only one ground for divorce: irretrievable breakdown of the marriage]** 13. 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). - s95WC - 11\. One sole ground for divorce -- irretrievable breakdown - **[s95A WC]** - 12\. Section 95A(1)(a) to (f) Women's Charter - **[6 factor to establish irretrievable breakdown]** - **[s95A(1)(a) WC]**- Two things about Adultery - **[s95A(2) WC]** - 6 month bar - **[s95A(1)(b) WC]**- Respondent\'s unreasonable behavior - **[s95A(3) WC]** - 6 month bar - **[s92 WC]** - Desertion \> 6 months with intention - **[s95A(1)(d) and (e) WC]** - Separation - **[s95A(6) WC]** - Divorce by mutual agreement \[New 1 July 2024\] - 13\. Restrictions found in sections 95A(2), (3), (4), (5), (6), (7) Women's Charter 14. **[Secondary requirement: Just and reasonable]** (interest of the children) - **[Unilateral desire]** of one spouse to make a further attempt at reconciliation is not good enough reason to withhold judgement of divorce. Partie\'s conduct is irrelevant once the 4 year separation was established as fact. **[Financial hardship]** alone was insufficient to resist the grant of a divorce decree. Judicial Discretion: The judge emphasized that Parliament did not intend for the dissolution of a marriage to depend on the discretion of the court. Instead, it is a matter of fact that must be proved, and the court must weigh the pros and cons based on the evidence presented456. **[This approach ensures that the decision is based on objective criteria rather than subjective judgment]**. 15. **[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.]** 5. Where there are **[no divorce proceedings]** 6. Ancillary matters (divorce proceedings - **[Stage 2]**) 10. 15\. Ancillary matters would comprise of primarily: 16. **[Identify who is the child (s92 WC)?]** 17. a\) Custody care and control and access -- sections 124, 125 and 126 Women's Charter - **[s124 WC]** - Court may make orders on the welfare of the child - **[s125 WC]** - Paramount consideration to be welfare of child (**[Welfare Principle]**) - 16\. **[Section 125]** Women's Charter -- **[paramount consideration to be welfare of child]** - Relevant Principles of the **[Welfare Principle]** - 17\. Section 125(2)(a) Women's Charter -- wishes of **[parents]** - 18\. Section 125(2)(b) Women's Charter -- wishes of the **[child]** - **[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]** - 21\. ZO v ZP \[2011\] SGCA 25- Ascertaining child's wishes - 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 - **[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.]** - \- Young child - **  **While *Soon Peck Wah* was helpful in the determina\^on of who should be granted care and control and it cannot be denied that a young child requires a mother's daily care, note that the case should not be taken out of its context. **[The court in *Soon Peck Wah* made it clear that the decision was not intended to revive the old presump\^on of maternal custody]**. Parliament had also mandated that neither parent should have a be\^er claim to the custody of the child. Therefore, cannot jump to the conclusion that *Soon Peck Wah* equates to a judicial preference for mothers to have custody of young children **where all things are equal.** - 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.** 18. **[s3 and 5 GIA]** - Unmarried parents 11. **[Access]** **[s126 (2B)(a), (b) and (c) WC]** 19. 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?]** - Importance of access (BKJ v BKK) - Reasonable access - Table of comparison of the different kinds of access 20. Reports - 34\. **[Section 130]** Women's Charter -- Court to have regard to advice of welfare officers - s126(3) WC 21. Judicial interviews of children 22. **[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**] 23. **[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. 12. Division of matrimonial assets (**[Before maintenance is ordered]**) 24. **[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. 25. 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 - USB v USA - identification of marital 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.]** - Discounting on items not connected to the marriage - TNC and TND - 54\. Section 112(2)(a) to (h) Women's Charter -- **[non-exhaustive factors]** that the Court takes into consideration in dividing assets to achieve just and equitable - Cases: Reaching a just and equitable division - Chapter 4A - Division of matrimonial assets for Foreign divorce 26. **[Date]** of determining pool of assets and valuation / **[methodology]** in grouping assets - 57\. ARY v ARX & Anor Appeal \[2016\] SGCA 13 - \[1\] Default position of operative date to determine pool of assets (Interim Judgment) - \[2\] the date of separation - 58\. BPC v BPB & Anor \[2019\] SGCA 3 - \[3\]- Date for determination of pool of matrimonial assets (Interim Judgment); - \[4\] - Date for valuation of matrimonial assets (ancillary matters hearing) - 59\. NK v NL \[2007\] 3 SLR(R) 743 - \- Difference between **[classification methodology]** and **[global assessment methodology]** - 60\. UTQ v UTR \[2019\] SGHCF 13 - \- Difference between classification methodology and global assessment methodology and which would apply 27. **[Full and frank disclosure / adverse inference]** - 75\. UZN v UZM \[2020\] SGCA 109 - \- When an adverse inference can be drawn and - 2 methodologies to redress a lack of full and frank disclosure 28. 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]** - 77\. Distinction to be drawn with section 126(4) Women's Charter 13. Maintenance 29. **[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. 30. 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]** - s69 (3) WC - In the context of ancillary matters - **[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]** - b\) Maintenance for child -- **[section 127]** read with section 69 Women's Charter - **[d) Division of matrimonial assets -- section 112 WC]** - **[s112(10) Definition of \"Matrimonial Asset\"]** - **[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 - 73\. UYP v UYQ \[2020\] 1 SLR 551 - \- Difficulties in applying the structured approach in ANJ v ANK - 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)]** - **[Lock Yeng Fun c/f Lim Choon Lai - both reached equal division conclusion]** - 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 - **[s112(2) WC Factors the court will consider when exercising powers to order division of matrimonial assets]** - (2)  It is the duty of the court in deciding whether to exercise its powers under subsection (1) and, if so, in what manner, to have regard to all the circumstances of the case, including the following matters: (a) the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets; (b) any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage; (c) the nee*d*s of the children (if any) of the marriage; (d) the extent *o*f the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party; (e) any agreement b*e*tween the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce; (f) any period of rent-*f*ree occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party; (g) the giving of assistanc*e* or support by one party to the other party (whether or not of a material kind), including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business; and (h) the matters referred to in *s*ection 114(1) so far as they are relevant. - **[s114 Factors in assessing maintenance to be paid]** - \(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future; (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; (c) the standard of living enjoyed by the family before the breakdown of the marriage; (d) the age of each party to the marriage and the duration of the marriage; (e) any physical or mental disability of either of the parties to the marriage; (f) the contributions made by each of the parties to the marriage to the welfare of the family, including any contribution made by looking after the home or caring for the family; and (g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage that party will lose the chance of acquiring. 31. **[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]** - 45\. APE v APF \[2015\] SGHC 17 - \- Assessment of factors by the Court when determining quantum of maintenance - 46\. WBU v WBT \[2023\] SGHCF 3 - \- Court's approach in apportioning maintenance between parents - **[s70 WC - Duty of the Non-parent (step-parent) to maintain the child (non-biological children)]** Firstly, the non -parent must have voluntarily assumed parental responsibility for the child\'s maintenance. Secondly, the non - parent\'s duty only arises when the child\'s parents have failed to maintain the child. 32. **[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]** - Nominal maintenance of \$1 - **[s117 WC duration of the maintenance order]** 33. **[s118 WC Variation of maintenance -]** - 51\. Tan Bee Giok v Loh Kum Yong \[1996\] SGCA 69 - \- Subsisting Order for maintenance required before a variation application can be made - 52\. APE v APF \[2015\] SGCA 47 - Preservation of wife's rights to maintenance 7. Part VII women\'s Charter 14. 81\. Sections 64 to 67 Women's Charter -- applications for Personal Protection Orders 15. 82\. Section 64 Women's Charter -- statutory definition of applicant, family violence as well as family members 34. Who can the complainant/ applicant 35. Who is \"Family member\" 16. 83\. Section 65(1) Women's Charter - applicant must prove **[family violence]** committed and protection order necessary 36. Stage 1: Was there **[family violence]** or likely to have family violence committed? - What is not \"family violence\" - What is \"family violence\" 37. Stage 2: Is a Protection Order a **[necessary?]** 38. Stage 3: **[Type of orders]** the Court can make - 1\. Protection Order (current s 65(1) / new s 60A): - 2\. Expedited Order (current s 66(1) / new s 61(2)) - 3\. Domestic Exclusion Order (current s 65(5)(a) / new s 60B(2)(a) - 4\. Counselling Order (current s 65(5)(b) / new s 60E): - 5\. NEW: stay away order & no contact order (new s 60B(b) & (c)) - 6\. NEW: Mandatory Treatment Order (new s 60F) - 7\. NEW: Electronic monitoring order (new s 60C) - 8\. NEW: Removal order, care and supervision order (new s 60D) 39. Consequences of breach 40. Rescission, Variation, Suspension and revocation of orders 41. Procedure - Application - Service of Summons / Mentions - Matters dealt at trial 17. New role of the **[protector]** 18. 84\. Exceptions to family violence - any force lawfully used in self-defence or by way of correction towards a child below 21 years of age 19. 85\. Section 65(1) Women's Charter -- standard of proof -- balance of probabilities 20. Therapeutic Justice 42. 87\. The doctrine of therapeutic justice was discussed in the following cases: a) VDZ v VEA \[2020\] SGCA 75, para 75 to 79 - - Therapeutic **[justice is a necessity]** 43. b\) VDX v VDY \[2021\] SGHCF 2, para 40 - Clients will accept advice of counsel even as they are in a **[vulnerable state]** 44. **[Rule 15(2) and (3) PCR]** 45. Rule 15A PCR 21. Amicable settlement of disputes 46. 88\. Sections 139A to 139J of Women's Charter 47. 89\. Section 139I -- mandatory mediation and counselling (where there are divorce proceedings and where parties have one or more children below 21 years of age)