All you need to know about "Marriage/Divorce" under the SG Law

[Big Sexy]

The court has granted a parent access to the children, but the children don't want to see him/her. Both parents want the children to go for access. What can the parents do?

You cannot force your children to be happy about seeing the access parent. But the parents can take steps to try and repair the relationship between him/her and the children. Both parents can attend parenting classes conducted by Famcare to understand how their children may be feeling and to obtain information on how they can help their children adjust. The custodial parent can facilitate access by actively encouraging the children to go for access. In cases where the children display great distress in the access arrangements, the parties may approach Famcare to conduct counselling for the children to address the underlying emotional issues and to assist them to deal with their parents' separation or divorce.

[Big Sexy]

My spouse isn't letting me see my children even though there is a court order to let me see my children. What can I do?

You may wish to take out committal proceedings (i.e. to send the person to jail/or fine the person for failing to obey a court order) against your spouse, to compel your spouse to obey the court order by letting you see your children. Your spouse may be liable to fine or a jail term if the court finds that he/she has been in contempt of court by breaching the court order. You may wish to seek legal advice on how to go about taking out committal proceedings, and the chances of success in these proceedings.

I have custody of my children. I do not want them to keep the surname of my ex-husband. Can I change their surname?

You cannot change your children's surname unless your ex-spouse agrees. If he does not agree, you will have to make an application to court to change their surname. But the court will not usually grant that application unless there are extremely good reasons.

[Big Sexy]

I agree to let my spouse have custody and I do not want access (i.e. to see the children). Is that all right?

This is "all right" in the sense that if you and your spouse are in agreement that your spouse will have custody of the children, and you will not have access to them, the court will probably approve your agreement. However, before making this decision, you should consider carefully whether it is in the best interests of your children for you never to see them.

My children are reacting very badly to the divorce proceedings. How can I help them?

You can send your children for counselling to help them cope with the divorce proceedings.

[Big Sexy]

As a Muslim, should I file applications for custody of and/or access to my children at the Family Court or the Syariah Court?

The answer depends on whether there are divorce proceedings involving your spouse and you at the Syariah Court:

(a) If no divorce proceedings have been commenced in the Syariah Court, you may make an application for custody or access at the Family Court by filing an Originating Summons under the Guardianship of Infants Act.

(b) If divorce proceedings have been commenced in the Syariah Court or if the Syariah Court has already granted a divorce, you should make the application for custody during the divorce proceedings. If you would like to file applications at the Family Court instead, you would first have to obtain

(i) a "Commencement Certificate" from the Syariah Court to allow civil proceedings to be started at the Family Court; or
(ii) your spouse's consent to begin custody proceedings at the Family Court and a "Counselling Attendance Certificate" from the Syariah Court. The Family Court has no power to hear the case if either of these conditions is not met.

[Big Sexy]

Now on Family Property

This section sets out the legal principles that are applicable when the Family Court deals with applications for division of matrimonial property between spouses. Such applications can be made under section 59 of the Women's Charter or Part X of the Women's Charter. These principles apply to both Muslim as well as non-Muslim parties. However, Muslim parties should refer to questions 23-25 on when the Family Court can deal with applications for division of matrimonial assets involving Muslim parties.

[Big Sexy]

My spouse and I have a dispute as to which of us owns a particular property. The property is in my name, but my spouse claims that she should have a share in the property because she helped to pay for it. We have not started divorce or judicial separation proceedings, and are not intending to do so. Can we apply to the court to resolve our dispute?

Yes, you can apply to court to resolve your property dispute with your spouse by filing an Originating Summons. Please note that the Originating Summons must be filed in court through the Electronic Filing System.

[Big Sexy]

How will the court decide the property dispute between us?

The court will decide your dispute according to the same legal principles which apply to property disputes between parties who are not spouses, and not according to the legal principles which apply to property disputes between parties to divorce proceedings. Some of the factors the court will consider include:

(a) the registered owner:
generally, the registered owner is considered to also have the "beneficial interest" in the property;

(b) resulting trust:
where a spouse has paid all or part of the purchase price of the property, the spouse who is the registered owner of the property will hold the property on trust (known as a "resulting trust") for the other spouse to the extent that he or she has contributed towards the purchase price;

(c) presumption of advancement:
in appropriate cases, the court may presume that a husband, when he pays the purchase money for the property, or transfers the property to the wife, intends to make a gift to the wife. This presumption of advancement may be rebutted by evidence of the true intention of the parties;

(d) constructive trust:
the court may infer from the conduct of the parties and the circumstances of the case that there was a common intention between the spouses that both should have a beneficial interest in the property. A "constructive trust" may arise enabling a spouse to claim a share of the property.

This area of law is a complex one, and a full account of the various trusts law principles is beyond the scope of this website. It is advisable that you seek legal advice on the applicability of these principles to, and their impact on, the exact circumstances of your case.

[Big Sexy]

My spouse has many debts. Do I have to help pay these debts?

Each spouse is responsible for his or her own debts. So you do not have to help pay your spouse's debts. However, if the debt is a joint debt incurred by both your spouse and you, you have to help to pay this debt. For example, both spouses bought a house in joint names and the house is mortgaged to the bank. If there is any default in the monthly instalment payments, or if the property is sold at a loss, the bank will look to both spouses for payment, even though only one of them has actually been paying the monthly instalment payments to the bank.

[Big Sexy]

What will happen to the properties/belongings owned by my spouse and me if my spouse becomes a bankrupt?

If your spouse becomes a bankrupt, then all his properties and belongings (except for certain items, usually the HDB flat and his CPF monies) will vest in (come under the charge of) the Official Assignee ("OA"). Your spouse can no longer sell or transfer or do anything with these properties without the permission of the OA (he is the official from the Insolvency and Public Trustee's Office who is in charge of bankrupts' affairs). The OA will manage all these properties, in order to find the money to pay off your spouse's creditors.

If you think that you have a share in these properties and belongings, you should inform the OA. If the OA accepts your claim, then your share of the properties and belongings will not be used to pay off your spouse's creditors. If the OA disagrees with your claim, you may have to make a court application to resolve the matter. If you are not divorced, then the principles which the court will use to decide what your share of the properties and belongings are will be those applicable to parties who are not spouses

[Big Sexy]

What is a "matrimonial asset" that can be divided by the Family upon a divorce?

Whether a property is a matrimonial asset depends on whether it is acquired (obtained) before or after marriage and whether or not it is a gift or inheritance:

(a) Any asset (property or thing) acquired by either or both parties after the date of the marriage is a "matrimonial asset". Matrimonial assets may include items such as landed properties, stocks and shares, money in fixed deposits and other bank accounts, vehicles, businesses, jewellery, furniture, paintings, artwork etc;

(b) Any asset acquired by either or both parties before the date of the marriage is a matrimonial asset provided:
- it has been ordinarily used or enjoyed by either spouse or the child(ren) while the parties are residing together, for shelter or transportation or for household, educational, recreational, social or aesthetic purposes; or
- it has been substantially improved during the marriage by the other party or by both parties to the marriage.

(c) Any asset acquired by way of a gift or inheritance, whether before or after the marriage, is not a matrimonial asset, unless either of the following conditions is met: - the gift or inheritance is a matrimonial home (property the couple or the family resided in during the marriage); or
- the gift or inheritance has been substantially improved by the other party, or by both parties to the marriage.

[Big Sexy]

Can the Family Court divide matrimonial assets that are overseas?

Yes. The fact that an asset is overseas rather than in Singapore makes no difference in whether it is a "matrimonial asset" or not. As long as the asset that is overseas falls within the definition of "matrimonial asset" , the Family Court can consider the asset in dividing the matrimonial assets between the parties upon a divorce.

[Big Sexy]

How will the court decide how to divide the matrimonial assets between my spouse and me? Will the division of assets be "half and half"? If I didn't help pay for a particular asset, does it mean that I cannot claim for a share in that asset?

The court will have to divide the matrimonial assets between the parties in just and equitable proportions by having regard to the following factors:

(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 needs of the children (if any) of the marriage;

(d) the extent of 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 between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce;

(f) any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party;

(g) the giving of assistance or support by one party to the other party (whether or not of a material kind), including the giving of assistance or support which helps the other party in the carrying on of his or her occupation or business.

Other factors the court may also consider, in an appropriate case, are:

(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 welfare of the family, including any contribution made by looking after the home or caring for the family; and

(g) 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.

The court will not automatically divide the matrimonial assets "half and half". The court will make an order to divide the matrimonial assets in such proportions as it thinks is "just and equitable" (i.e. what is fair), having regard to the above factors. If you did not help to pay for a particular asset, you can still make a claim for it, provided that it is a "matrimonial asset". In deciding the share you will get, the court will consider your non-financial contribution and other facts set out above.

[Big Sexy]

What types of orders can the court make in dividing matrimonial assets?

In dividing a matrimonial asset, the orders that may be made by the court include:

(a) an order that the asset be sold and the sale proceeds be divided between the parties;

(b) an order that the whole or a part of the asset vest in either party;

(c) an order postponing the sale or vesting of any share of the asset to the future;

(d) an order granting either party a right to occupy the matrimonial home; and

(e) an order for the payment of a sum of money by one party to the other.

The court may impose such terms and conditions as it thinks fit when dividing the matrimonial assets as well as give such directions as may be necessary to give effect to the orders made.

[Big Sexy]

I suspect that my spouse is dissipating (disposing of) the matrimonial assets in order to prevent me from claiming a share. What can I do?

If you suspect that your spouse is in the process of dissipating the matrimonial assets, you may apply for an injunction, that is an order to stop him and others from disposing of the assets. However, the court will not grant an injunction unless it is satisfied that there is a real risk that the assets may be dissipated and that it is just to make the order. You will also have to give an undertaking (i.e. promise) to the court that you will pay damages if the injunction is wrongly applied for. Alternatively, if you suspect that your spouse is likely to sell a particular property without your knowledge, you may lodge a "caveat" with the Registry of Land Titles, claiming a beneficial interest in the property, which may either prevent him from selling the property at all, or will prevent him from selling the property without notifying you first.

[Big Sexy]

I believe that my spouse has already dissipated (disposed of) some matrimonial assets. Can I still claim a share of those assets?

If you believe that your spouse has already dissipated some assets, you may highlight this to the court. You will have to state the reasons for your belief, together with the relevant evidence, in an affidavit (a sworn statement). The court may include the assets that have been disposed of, in deciding the division of matrimonial assets and your share in the assets.

Can I still make a claim for a share in the matrimonial home if I have moved out, or if I am not the registered owner of the matrimonial home?

Yes, you can still make a claim for a share in the matrimonial home if you have moved out, or if you are not the registered owner of the matrimonial home. The court will decide the amount of the share that you will get (if any) according to the principles set out in question above.