MFSL 2 - Divorce PDF

00:02 Welcome back. In the last video lecture, we dealt with the jurisdiction and powers of the Syariah Chord and also the interplay between the Syariah Chord and the Civil Chords. For this lecture, I will focus on the Syariah Chord itself, what the Syariah Chord can do and what are the typical ord...

00:02 Welcome back. In the last video lecture, we dealt with the jurisdiction and powers of the Syariah Chord and also the interplay between the Syariah Chord and the Civil Chords. For this lecture, I will focus on the Syariah Chord itself, what the Syariah Chord can do and what are the typical orders that the Syariah Chord makes. Now, the core knowledge that you are required to know, right? 00:29 will be the key differences between the divorce process in the FJC and the Sharia court, the types of orders made by the Sharia court, the types of jurisdiction of the Sharia court to hear divorce, very briefly the essential requirements of a valid Muslim marriage, grounds of divorce in the Sharia court and how they differ from that in the Family Justice Court, the types of ancillary orders and the division of matrimonial assets. 01:00 So let\'s begin with the Syariah Court itself. Now, the Syariah Court is manned by a senior president and presidents. And it is worthy to note that the profile of the Syariah Court presidents have evolved over the years. In the past, they were only from the religious side. But now, there is a fair mix between those who are from the religious sector and those who are trained 01:29 under the civil law. So you have judges who are also at work or have been called to the bar and those who are seconded from the Family Justice Court. Now then there is system called ad hoc presidents whereby there are presidents who come in, they are full-time jobs elsewhere but they are legal service officers who fill in to clear some backlog and these hearings usually happen in the evenings. 01:58 In charge of administration will be the registrar and the deputy registrar of the Sharaya Court. Now, the appeals from the Sharaya Court, they go to the Muizz Appeal Board. Muizz is the Islamic Religious Council of Singapore and the members of the appeal board are not full-time. They are made up of a panel appointed by the President of Singapore. And as of now, they are made up of judges from the Family Justice Court, the state courts. 02:27 several legal service officers, mainly DPPs, some legal officers in the stat boards, some senior lawyers who do not practice at the Charter Court and prominent religious leaders. Now, the quorum of a MUIS appeal board is three and usually the chair is the one with the legal background and the MUIS appeal board hears appeals from those in the Charter Court from Charter Court cases. 02:55 and also the registry of Muslim marriages. But for purposes of your syllabus or your course, we will only, if any, focus on appeals from the Syariah court. Now, and who appears in the Syariah court? Well, there are lawyers, and the lawyer must be someone who\'s called to the bar, right? And they need not be Muslim. So it is not uncommon to see non-Muslim lawyers in the Syariah court. 03:25 Sharia court. Well, as a test in Jamal Muhammad\'s case is that it is the competency of the lawyer that is important and not the personal religion of the lawyer. Now, so the main reason why people go to the Sharia court is to get a divorce. Now, so just a short recap from the video 03:54 divorce applications where only if the both parties are Muslims and there must be a valid Muslim marriage. But I\'ll stop here. When I say both parties must be Muslims, it does not mean that they must still be Muslims at the time of divorce. But they must both be Muslims at the time of marriage. Now, so the other one, there must be a valid Muslim marriage. I\'ll deal with them in a short while. 04:21 And the third one, a fairly new introduction since 2017, there is now a habitual residence requirement of at least three years. This basically is to take into account the growing number of foreigners that now file cases in our local share records. Okay, so it\'s very important to know therefore, if you have a foreign client especially, 04:48 whether or not they can come under the Sharia court. So in order to do that, you need to first do a background check, right? And check whether the marriage is a valid Muslim marriage. Now, just to take note, actually the marriage ceremony itself can take place anywhere. And I\'m sure some of you have seen them at various places in hotels, maybe even in your own residence. Now, 05:17 If the marriage is registered at the ROMM, the registry of Muslim marriages, the Shah record does not require you to add another layer of proof. They will accept the marriage certificate at face value that it is a valid Muslim marriage. But do take note, there could be instances where people did not register their marriage at the ROMM, having conducted the marriage ceremony. 05:47 outside the RROMM. And then there is this clause under section 109 which simply means that even if it is not registered, it does not mean it is invalid. But what it means it creates an extra layer because now you have to prove that it is a valid Muslim marriage. And where the marriage was conducted overseas, then it is likely that the Sharia court will ask your clients or you to provide the proof of validity of the Muslim marriage. 06:16 This is not in the act but this is the current practice at the Shah Rakhon. Now if there is a case that you may want to read, very interesting case called You Peh Chen, there\'s a line that says that location does not determine the validity of a Muslim marriage and that explains again when I said that it does not mean that you have to get married at the R.O.M.M. The marriage ceremony can be outside. 06:45 were to take place in another country, right? It is essential therefore for you to prove to the Sharia court that the requirements of a valid Muslim marriage have been met. And in the case of Yor Perchen, very interestingly, the same parties, the couple, went through three marriage ceremonies. First, when they were students in Boston, right? It was a valid civil marriage. And then they went to an\... 07:15 to a bookstore in London at a different point in time where they went to a Islamic marriage bureau and They also went to a marriage ceremony in a church in Singapore So it can be a bit confusing but at the end of the day to determine whether the Singapore Sharif card has jurisdiction over this couple right they the test is whether or not the elements of a valid Muslim marriage are met 07:45 You may want to read this case of Yeo Per Chin, a very interesting case. So the divorce process at the Sharia court. Now certain key differences that I would highlight is this. Now at the family justice court, it is a bifurcated system. And what do I mean? It means there are two parts. The first part is the interim judgment part on the divorce itself. 08:15 you have another part which is the ancillary issues. And the final judgment is only accepted after all the orders have been made. Now, at the Sharia court, it is not a bifurcated system. The Sharia court does not do a separate divorce hearing first and then a separate ancillary order hearing. Both the divorce and the ancillary orders are heard at the same hearing. And the orders made 08:44 by the court at the end of the day will be made together at the same judgment hearing. And the divorce certificate in the Sharikot is issued three months after the date of divorce or I\'ll come to it the expiration of the wife\'s period in which she cannot remarry. Now there\'s a simple chart here taken from the Sharikot website so you may want to actually look at the Sharikot website if you want more details on this. 09:13 So this is just a truncated version. Before the parties can even file the divorce papers, see the bottom box, the originating summons, they actually have to go through a pre-action protocol. The first one is to actually register the case first, and then the parties will be given a counseling date. And after the counseling is over, they will be given a certificate. 09:42 of completion of counselling and only with that certificate can they then go on to file the originating summons. And if the parties have children below 21, there is a mandatory parenting program. So the client cannot just walk into your office and say, I want to file a divorce tomorrow and you say, no problem. You can\'t do it. There is of course an exception. What if you want to file the OS straight away? 10:11 There is a provision which you will not be tested. Don\'t worry where you can actually apply for a waiver of the Pre-action protocol. Okay, but the is up to the discretion of the Shah record now so again The continuation after you have filed the case statement or the origin thing summons What happens is that a mediation date will be fixed? It\'s mandatory the mediation 10:40 If there is a settlement, now this is the good news, the entire case will finish on that day. So what will happen is that the military will draft up the agreement, parties with their lawyers will sign the agreement and if you can find a judge as early as possible then a judge will record the terms of the consent order and that\'s it, case over. But if there is no success at that mediation then what happens is that 11:10 A date will be fixed for a pre-trial conference and then similar to other courts, directions will be given of the filing of affidavits, all the housekeeping are to be met and then the hearing date will be set. Then at the hearing, there will be two possibilities. If the husband agrees to pronounce the talaq or the court finds that the wife has made out her case for divorce, then the judge\... 11:39 will make the order for divorce and ancillary issues. If the judge finds that the, or if the husband refuses to pronounce the tala, the divorce, and the judge finds that the wife has not made up her case for divorce, then the case will go for a haqam. Now in the past, under the old amla, the literal translation would be the word arbitration. They have dropped the word recently, so now we just use the word haqam. It\'s a process whereby, 12:08 Each party will have a religious person to be some sort of arbitrator and negotiate on behalf of the other party and they will submit a report to the president at the end of the Hakam session to say or not whether the parties should be divorced. So the rules is very different from court where there\'s no rules of evidence. It\'s where the Hakam finds that the parties cannot live together, then they just say like 12:38 There\'s no way they can live together. So we are recommending that the talaq be pronounced and the court will direct that the haqqam pronounce the talaq, okay? And then the orders will be made. And then if a party is not satisfied, there is a 30 day period to file a notice of appeal. Now, so appeals, where the directions or orders are made by a registrar or deputy registrar, then it is still in-house within the sharia court. 13:06 the appeal goes to the President of the Saraya Court. Where the order is made by a President of the Saraya Court, then you have to file a Notice of Appeal at the MUIS Appeal Board within 30 days. Now, and if the appeal is of a consent order, then leave needs to be obtained first. Now, so the orders made in the Saraya Court, this is a recap because I covered this in the\... 13:35 One, first the divorce itself, right? And then the typical ancillary orders will be the payment of Nafkah Eda by the husband to the wife, the payment of Mutaha by the husband to the wife, custody can control and access and division of assets. Now, let\'s talk about the grounds of divorce because this is where there is a very clear difference between the FJC and the sharecroft. 14:04 or within the Women\'s Charter and AMLA. Okay? To simplify for you, there\'s a table here. For Women\'s Charter, we all know, right, there\'s only one ground of divorce, which is the irretrievable breakdown of the marriage, and it\'s based on one of the following facts. And by the time you get this video lecture, we would already see a new fact, which is the DMA, a divorce by mutual agreement. Now, whereas at the Sharia Court\... 14:34 The typical divorce will be 1. The pronouncement of tala and then a bridge of marriage conditions Fasa and Holub which I\'ll go into detail in a short one. So let\'s go into the types of divorces at the Syariah court. Now the first one is the husband\'s pronouncement of the tala, usually words to the effect of I divorce you with one tala. There needs to be certainty as to the words. 15:05 but if the wife disputes that the husband has pronounced the talaq outside court, then there needs to be a proper affirmation. The Sharia court will make the husband go to the witness stand, clarify what he has said, all this will be under oath and then the court will make a finding whether or not a talaq was uttered before the Sharia court hearing. Actually this is unique 15:34 the talaq that was pronounced outside is uncertain, then what the Syarakot president will do will invite the husband to then pronounce a talaq in open court on the day of the hearing. But why the Syarakot does that is because the Syarakot needs to know whether or not that divorce is by the first talaq or the second talaq. So that\'s why the dates become very important. Because if there\'s more than three talaq, 16:03 then the parties cannot reconcile. They will have to re-solemnize the marriage and what do you call it? If, what I\'m saying is that if the divorce is, if more than three months first, as per the slide, then they need to re-solemnize the marriage. But if the divorce is more than three tala, then actually the wife has to remarry someone else and get divorced to that person before she can remarry the former husband. Okay. 16:33 Now, so the other types of divorce, okay, is this, right? The wife can, okay, just to recap, the first one, she can just tell the court, look, I want a divorce certificate because my husband has pronounced the talaq. But the next one is, oh, because he has breached the conditions of the marriage, because one of the grounds is that he has done something or he falls under the categories of fasad. And then there\'s this thing called huluk. 17:03 Now, so the divorce by way of a breach of marriage condition. Now, where do you find this this marriage condition actually on the divorce and marriage certificate itself? So what you\'re going to do is always inspect the marriage certificate. Sometimes in the old days, the the tongue, like the conditions are on the front page, OK, sometimes now they are on the reverse side of the page, so make sure when you get the marriage certificate. 17:31 look at both sides the front and the back of the page because these are important this if any of these conditions are met and if she\'s able to prove them then she will be entitled to divorce by one talaq regardless whether the husband pronounces a talaq or not okay so and also remember now because we have a lot of foreign nationals at our charia court okay do note 17:58 that the tug leg, the condition, can differ from one country to the next or there may not even be any tug leg in the marriage certificate. So if there\'s no tug leg, the wife applying for the divorce cannot ask for a divorce on this ground. So please remember to look at the marriage certificate very carefully. Now, so the other one is FASA. FASA is where\... 18:24 you open up the Amla and you\'ll find section 49.1a to g is where the wife does cannot rely on talak because the husband has not pronounced and refuses to pronounce cannot rely on taklek because he has not breached the any of the conditions so there is a list of events where the wife can rely on some may appear to be already existing under taklek so like a right the the the nanpe mom 18:54 maintenance but you can see from the ABCD onwards right there are other reasons that will justify a wife getting a divorce so if she can prove any of this you only need to prove one she will get a decree of divorce Right and there\'s also a catch-all situation with his which is G on any other ground, right? and through body of case law 19:24 what you\'ll find mainly these are cases of where one party has renounced the faith and so the the other party goes to court and say I cannot remain the spouse because he or she has renounced the faith. Okay now the other one is a divorce by the wife, holo, is not very common in Singapore, it\'s very rare because which wife would want to have to pay the husband just to be divorced? 19:52 Right? It\'s really something most wives will not agree to and this is perfectly understandable So, it\'s very rare Okay? And in Singapore, even when the husband insists that I would only agree to a divorce if it\'s by way of huluk the court will just make the wife pay a very nominal sum I mean, it can be as low as \$1 Purely symbolic Okay? Basically, this is where the husband does not want it to be known that he\'s at fault 20:21 and the wife says okay then I\'ll go along with you. Now so the types of ancillary orders. Now the typical ancillary order, the first one is the wife\'s maintenance during the period in which she cannot remarry. And it\'s a very short period, it\'s only three months and the factors are on the screen for you to see. Obviously very important is whether the husband can afford to pay, how much that he can pay. The next one is Mutaha. 20:51 And this is where it\'s actually a total up sum. It can be a lump sum payment where it\'s calculated based on the number of days of the marriage. Right? So in terms of the factors, not very different from the Nafkah Edah, but the, the, it\'s a different concept. Okay? So this is to make sure that the wife is put in a position where, okay, there\'s enough for her to move on with her life. 21:19 And in Singapore now, basically what happens is that most husbands will say, I do not have enough to pay my wife a one-off mutah because it can be a six figure sum. And usually the man will ask the court for payment by installments or to be deducted from his share of the sale proceeds in a case where the matrimonial home is sold. Now, so the orders on children. 21:48 you\'ll be glad to know that it\'s not very different from the Family Justice Court because like the Family Justice Court, the similarity that you\'ll find is that it is about the interest of the child, the best interest of the child. So if you see, if you want to do more research, you can google Muslim law in Malaysia, you\'ll find that they actually codify Muslim law. So they even have a ranking as 22:16 who gets the first priority, second priority, third priority in the event of a custody, but we do not have that in Singapore. So we rely on the best interests of the child. And what I mean here when I say not even to preserve a particular social order, what this means is that sometimes parties like husbands will say, look, the wife has committed a big sin. So the social order says\... 22:44 that if she has done so, she\'s got another lover, then she loses custody. But the appeal board in Singapore said no, we are not going to follow that because it doesn\'t mean, right, her conduct does not mean that she cannot take care of the child. And that is highlighted in cases that you can get on law net. I\'ve included a case called AE and AF, a 2011 case where the husband was pushing for the court. 23:13 to declare that the wife should not have custodial rights of the child because she was in an adulterous relationship and you can see from the quote by the appeal board that her doing so does not necessarily mean that she was a bad mother. You literally look at it from the perspective of the child. 23:41 women\'s charter or the FJC and the Shah Rai Khor practice is that a higher level is given towards the spiritual interest of the child. So the religious upbringing of the child or the exposure of the child to a religious environment is a factor that the court takes into account. And this is seen in AY and YZ. 24:10 where the appeal board, right, in overturning the Sharikot\'s order said that the best interest of the child would not only cover the physical, material and emotional aspects but also the spiritual aspects. You can read the facts for yourself. But what I want to emphasize is where I put the note at the bottom, right? Yes, while the religion of a parent is important, it may not be the tipping point. 24:38 There are case laws whereby a party has renounced the religion and yet the child record has given the care and control to that party. So at the end of the day, it does not mean the more religious the party is, then the more likely he or she will have the care and control. The court always emphasizes you look at it from the perspective of the child. Where is the child better off? And that\'s the end of the story. 25:05 the religion of the parent therefore is not necessarily the tipping point. Now excess, well it\'s very similar to the family justice court practice right, whoever does not have the care and control will get the excess and the whole body on case law which I\'m just keeping it very short here. Now so other orders on children is I just want to emphasize that the Sharikot can only make orders 25:34 right for the parents of the child not grandparents not uncles not aunties okay because that is the limitation or that\'s the only remit of the power of the sharia court it can only have jurisdiction over parties to the divorce okay not anyone else Now and one important difference between the sharia court and the family justice court is that in the family just got we often hear that 26:02 Yes, while now there is increasingly encouragement for judges to interview the children, it is not that prevalent yet. But in the Shire Record, it is. And it has been for the longest time. From the 1960s, 70s, as far back as I can remember, the Shire Record will always interview children above the age of seven where there is a dispute. Where there is concern between the parents, then the child\... 26:30 need not be brought to the Sharia court. But where there is a dispute on the child, the child will be asked to come along to the Sharia court and an interview conducted. And you may want to read AA and AB where this case talks about the weight to be given to the interview process. So in the past, it used to be 100%. The court will just follow whichever parent. 26:57 the child chooses but now know they will look at a very from a very holistic angle and and since 2022 now the presidents of the Syaray court are assisted by a child expert right someone who seconded from the counseling and psychological services of FJC. Now and the Syaray court is now very actively as well engaging outside agencies where they issue custody evaluation report 27:27 and other child-related reports. Okay, you can see for yourself, again, all these things about reports. Okay. Now, so the last part is the division of matrimonial assets. Now, the starting point, just like the Women\'s Charter, is always go and look at the definition section. So while it is section 112.10 of the Women\'s Charter, 27:57 it is 52-14 of the Amla and you will find similarities whether the asset was acquired before the marriage and whether it was substantially improved during the marriage etc. Now the principles of division of assets, this section 52-7 is based on just and equitable and you may find it worthy to compare section 52-8, A to M of Amla 28:25 with section 1, 1 to 2 of the women\'s charter because what you will find that the factors that the court must take into account in the division of assets, you can see the parallels, you can see the similarities. So you can therefore use the Family Justice Court cases at the Shah Record and a very common case that we use is a very landmark case, ANJ and ANK. 28:55 where some people call it the structured approach, some people call it ANJ. And in the Sharia court, the leading case is CY and CZ, but you can still use ANJ and ANK because all the judges know that you are referring to, which case you are referring to. And in CY and CZ, the appeal board, they more or less endorse ANJ by saying that there\'s no reason why ANJ and ANK cannot be applied in Sharia court. 29:23 because it is not inconsistent with Muslim law. Okay, the last point for you to note is that again, just like in the family justice court, where there is a third party claim, then the matter will be stayed and the parties will be asked to get it resolved at another forum at the High Court, right? Because the Amla does not give the Sharia court the power to make an order against any other person except for 29:52 the parties to the divorce proceedings. Okay, and it\'s very important to note that you cannot bring a Charite Court decision to the High Court, to the Civil Courts for appeal. Right? Someone tried in the year 2010, failed. Okay? And this is because of Section 56A of AMRA. Okay, that is all. Thank you very much. Central Topic - Divorce and Ancillary Orders - **[ Key Differences]** between the divorce process in the FJC and SYC ------- ---------------------------------------- Flags Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- ---------------------------------------- +-----------------------------------+-----------------------------------+ | FAMILY JUSTICE COURTS | SYARIAH COURT | +===================================+===================================+ | ⮚Bifurcated system. | ⮚Not a bifurcated system.  | | | | | ⮚Interim Judgement first on the | ⮚**[Decree of Divorce and | | divorce. | Ancillary Orders made together at | | | same hearing]**. | | ⮚Followed by Hearing on Ancillary | ⮚Divorce Certificate issued 3 | | Issues. | months after date of divorce ( | | | expiration of wife's iddah | | ⮚Final Judgment extracted after | period) | | all orders made ( or 3 months | | | after IJ if Consent Order on all | | | issues). | | +-----------------------------------+-----------------------------------+ - MUIS Appeal Board hears Appeal from Syariah Court (section 55(1) AMLA) and ROMM ( section 105 of AMLA). - s55(1) AMLA - s105 AMLA - Difference between SYC and MUIS Appeal Board +-----------------------------------+-----------------------------------+ | SYARIAH COURT | MUIS APPEAL BOARD | +===================================+===================================+ | ◦ Senior President and Presidents | Members of Appeal Board panel are | | -- either civil law trained (from | appointed by the President of | | FJC)  or  from religious | Singapore , upon the advice of | | education track | MUIS. ( section 55(3) of AMLA. | | | | | ◦ Ad-hoc Presidents | Composition: Judges from the FJC | | | and State Courts, legal service | | ◦ Registrar and Deputy Registrar | officers (DPPs) , legal officers | | | in statutory boards, senior | | | lawyers , prominent religious | | | leaders. | | | | | | Coram: any 3 members of the panel | | |. The Chair is usually the one | | | with legal background. | | | | | | MUIS Appeal Board hears appeals | | | from Syariah Court (section 55(1) | | | AMLA) and ROMM ( section 105 of | | | AMLA). | +-----------------------------------+-----------------------------------+ - s39 ALMA - Representation need not be muslim or formal training in islamic law - Jurisdiction of the SYC to hear divorce applications - **[Requirements]** - **[ Essential requirements]** of a valid Muslim marriage - **[Requirements]** for divorce of muslim marriage ------- -------------------------------------------------------------- Flags  Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- -------------------------------------------------------------- 1. 2. 3. 4. 5. 6. - **[No time bar]** If there has been a divorce granted by **[foreign court]**, then SG court has no jurisdiction - The Shariah Courts will still have **[jursidction]** over divorce after one spouse leaves the religion - Process - Procedure - Appeal - **[Process]** ------- ---------------------------------------- Flags Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- ---------------------------------------- +-----------------------------------+-----------------------------------+ | APPEALS AGAINST DIRECTION/ | APPEALS AGAINST FINAL ORDERS OF | | | | | ORDER OF REGISTRAR | SYARIAH COURT PRESIDENT | +===================================+===================================+ | ⮚Filing a Notice of Appeal in SYC | ⮚Filing a Notice of Appeal with | | no later than 14 days from date | the MUIS Appeal Board within 30 | | of the direction or order (Rule | days from the date of the | | 38(2) MMDR) | decision of the SYC (Rule 39(2) | | | MMDR) | | ⮚Appeal heard by President of | | | SYC (mainly interlocutory or | ⮚Appeal heard by MUIS Appeal | | interm applications, e.g. | Board  | | discovery orders, procedural | | | directions interim access) |   | | | | |   | Note: If it is an appeal of a | | | consent order, applicant would | |   | need leave of Appeal Board before | | | appeal can be filed (section | | Note: President's (appellate) | 55(2) AMLA) | | order is final. | | | | | | **[No further appeal to Appeal | | | Board (Rule 38(5) | | | MMDR]** | | +-----------------------------------+-----------------------------------+ - Types of Orders made by the SYC in divorce proceedings - Grounds for divorce in the Syariah Court. **[Do not use Women\'s charter\'s grounds]** - s46B - Pronoucement **[by husband]** - Divorce application **[by wife]** - s47 AMLA registration of husbnads pronuciation s48 AMLA - Breach of condition= **[Cerai Talik]** - s48(2) AMLA - Special conditions in the marriage contract - s47(4) AMLA - redemption = **[Khuluk]** - s49(1)(a) to (g) AMLA - judicial dissolution = **[Fasakh]** (i.e. where the husband has not pronouced the divorce or breached special conditions) - Types of Ancillary Orders - **[Nafkah Iddah]** - maintenance during the period of iddah ------- -------------------------------------------------------------- Flags  Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- -------------------------------------------------------------- - s35(2)(e) AMLA - s51 AMLA - **[mutaah] -** consolatory monetary gift to the wife upon divorce - s52(3)(b) AMLA - s35(2)(e) AMLA - Custody, care and control - Custody is based on the best interest of the child - AE v AF - custody is not fault based - AY v YZ - Child\'s spiritual interest is a relevant factor for awarding custody - Access - AI v AJ - Children\'s orders cannot cover third parties - DA and another (Intervener) v DC - Children: Judicial Interview - 7 years old - AA v AB - Custody Evaluation Report - Division of Matrimonial Assets - s52(14) AMLA - statuory definitoin of maritial assets - s52(7) AMLA just and equitable is the Court\'s starting point - Similarities between section 52(8) AMLA and s 112(2) Women's Charter - Do not plead WC factors in SYC ------- ---------------------------------------- Flags Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- ---------------------------------------- +-----------------------------------+-----------------------------------+ | s52(8) AMLA | s112(2) WC | +===================================+===================================+ | (8)  It is the duty of the Court | (2)  It is the duty of the court | | in deciding whether to exercise | in deciding whether to exercise | | its powers under subsection (7) | its powers under subsection (1) | | and, if so, in what manner, to | and, if so, in what manner, to | | have regard to all the | have regard to all the | | circumstances of the case, | circumstances of the case, | | including the following matters: | including the following matters: | | | | | \(a) the extent of the | \(a) the extent of the | | contributions made by each | contributions made by each | | party in money, property or | party in money, property or | | work towards acquiring, | work towards acquiring, | | improving or maintaining the | improving or maintaining the | | property; | matrimonial assets; | | | | | \(b) any debt owing or | \(b) any debt owing or | | obligation incurred or | obligation incurred or | | undertaken by either party for | undertaken by either party for | | their joint benefit or for the | their joint benefit or for the | | benefit of any child of the | benefit of any child of the | | parties; | marriage; | | | | |   |   | | | | | \(c) the needs of the children | \(c) the needs of the children | | (if any) of the parties; | (if any) of the marriage; | | | | |   |   | | | | | \(d) the extent of the | \(d) the extent of the | | contributions made by each | contributions made by each | | party to the welfare of the | party to the welfare of the | | family, including looking after | family, including looking after | | the home or caring for the | the home or caring for the | | family or any aged or infirm | family or any aged or infirm | | relative or dependant of either | relative or dependant of either | | party; | party; | | | | | \(e) any agreement between the | \(e) any agreement between the | | parties with respect to the | parties with respect to the | | ownership and division of the | ownership and division of the | | property made in contemplation | matrimonial assets made in | | of divorce; | contemplation of divorce; | | | | | \(f)  any period of rent-free | \(f)  any period of rent-free | | occupation or other benefit | occupation or other benefit | | enjoyed by one party in the | enjoyed by one party in the | | matrimonial home to the | matrimonial home to the | | exclusion of the other party; | exclusion of the other party; | | | | | \(g) the giving of assistance or | \(g) the giving of assistance or | | support by one party to the | support by one party to the | | other party (whether or not of | other party (whether or not of | | a material kind), including the | a material kind), including the | | giving of assistance or support | giving of assistance or support | | which aids the other party in | which aids the other party in | | the carrying on of his or her | the carrying on of his or her | | occupation or business; | occupation or business; and | | | | |   |   | | | | | \(h) the income, earning | \(h) the matters referred to in | | capacity, property and other | section 114(1) so far as they | | financial resources which each | are relevant. | | of the parties has or is likely | | | to have in the foreseeable |   | | future; | | | |   | |   | | | |   | |   | | | |  114.---(1)  In determining the | | \(i)  the financial needs, | amount of any maintenance to be | | obligations and | paid by a man to his wife or | | responsibilities which each of | former wife, or by a woman to her | | the parties has or is likely to | incapacitated husband or | | have in the foreseeable future; | incapacitated former husband, the | | | court must have regard to all the | | \(j)  the standard of living | circumstances of the case | | enjoyed by the family before | including the following matters: | | the breakdown of the marriage; | | | | \(a) the income, earning | | \(k) the age of each party and | capacity, property and other | | the duration of the marriage; | financial resources which each | | | of the parties to the marriage | | \(l)  any physical or mental | has or is likely to have in the | | disability of either of the | foreseeable future; | | parties; | | | | \(b) the financial needs, | | \(m)      the value to either of | obligations and | | the parties of any benefit | responsibilities which each of | | (such as a pension) which, by | the parties to the marriage has | | reason of the dissolution or | or is likely to have in the | | annulment of the marriage, that | foreseeable future; | | party will lose the chance of | | | acquiring. | \(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 | | | | | |  forthe 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 | | | | | |. | | | | | |   | +-----------------------------------+-----------------------------------+ - Structured Approach in ANJ v ANK - CY v CZ \[2020\] 8 SSAR 38 **[ANJ is applied in SYC]** ------- -------------------------------------------------------------- Flags  Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- -------------------------------------------------------------- - What happens when there is third party interest? - s56A AMLA - Decision of SYC and Appeal Board to be **[final]** ------- ---------------------------------------- Flags Risk; \[\"mmStockIconFlagRed\", \"\"\] ------- ----------------------------------------