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Family Law: Common Law Perspectives from England

and Singapore

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Marriage and Formation• What is Marriage?• Classic common law definition:• Hyde v Hyde (1866) LR 1 P & D 130• “I conceive that marriage, as understood in

Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.” Per Lord Penzance

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Singapore: • Women’s Charter governs non-Muslim Family

law (14% only are Muslims)• Singapore statures available free at

http://statutes.agc.gov.sg/ • Marriage under Women’s Charter:

– Voluntary, serious contract, monogamous, subsists till death or court decree, between man & woman, confers status, has “public character”

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Two aspects to validity of Marriage:• Formal (comply with formalities)• Essential (parties have capacity to marry)• Breach of either => Marriage Void

Void & Voidable Marriages• Void – void whether or not there is court decree• Voidable – valid until court decree anulling it.

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Void due to breach of • Formalities (in place of solemnisation) • Capacity provision (of domiciliary law)

– Monogamy– Minimum Age – Prohibited degrees of relationship– Different sexes (transsexual assigned new

sex, unique test in Singapore - administrative)• If void, either party can obtain nullity decree

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Voidable Marriages(“in-between” void marriage and divorce)Provided in s106 WC, modeled after English:• Non-consummation (incapacity or wilful refusal;

unique practice in Singapore of solemnising marriage a few years before customary or religious ceremony gives rise to consequences affecting this ground)

• No consent• Mental disorder• Veneral Disease• Pregnant by another man

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• When the court grants decree of nullity for both void and voidable marriages and decree of divorce, marriage is terminated and parties need to re-organise the family living and financial arrangements, thus parties can seek

Ancillary Reliefs:• 3 Ancillary reliefs can be obtained whenever a decree

of nullity, divorce or judicial separation is granted:– Orders on Custody, Care & Control and Access of

children– Orders on Maintenance to Wife and Children– Orders dividing family assets fairly between the two

parties

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Children• 125. —(1) The court may at any time by order place a child in the custody of

his or her father or his or her mother or (where there are exceptional circumstances making it undesirable that the child be entrusted to either parent) of any other relative of the child or of any organisation or association the objects of which include child welfare, or to any other suitable person.

• (2) In deciding in whose custody a child should be placed, the paramount consideration shall be the welfare of the child and subject to this, the court shall have regard —

• (a) to the wishes of the parents of the child; and• (b) to the wishes of the child, where he or she is of an age to express an

independent opinion.

• Over-riding principle is welfare of Child • Difficult issue practically• Parents must cooperate for child’s welfare. Family Court has

programmes to help with parenting (see http://www.familycourtofsingapore.gov.sg/

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Maintenance of Wife and Children• Of Wife (no maintenance for Husband)• - For “Clean break” – consider paying lump sum maintenance

instead of periodic maintenance, also ensures security and eliminates enforcement problems.

• - Complements and supplements s112 Division of assets, usually considered together.

• - Wife expected to behaviour reasonably, to find work to support herself as well, maintenance to help ease her into independence again

• Of Children• S 68 – Both parents are obliged to maintain children whether

legitimate or legitimate, to provide food, shelter, education and whatever reasonable in accordance with standard of living family can afford.

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Division of Matrimonial Assets upon Decree • S112. —(1) The court shall have power, … to order the division

between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset in such proportions as the court thinks just and equitable.

• Generally, all assets acquired during marriage are matrimonial assets; does not matter who paid for them.

• Court will use factors, especially financial contribution and contribution towards the welfare of the family and needs of children. It will divide in just & equitable manner. In long marriages, tendency towards equal shares, good full-time homemaker has been known to get 35% to 45%. In shorter marriages, respective contribution may feature more prominently in division.

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Legal Characteristics of Husband & WifeRelationshipEarly common law • doctrine of Unity of Legal Personality of Husband and Wife –

legal existence of woman incorporated into that of man, no independent legal status

Modern Approach• Wife’s legal status equal to husband’s, (more or less) has equal

right to running household, to deal with property, etc. Consistent with this approach,

• Torts of Interference with Consortium are eroding:• Criminal Conversation (damages against man committing

adultery with wife), Enticement (action against third party who wilfully induced one spouse to leave the other) – abolished.Harbouring (offering "shelter" to a wife) likely to cease to exist too.

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How is the Husband-Wife relationshipcharacterised?• Women’s Charter s46: “Upon the solemnization of marriage, the

husband and the wife shall be mutually bound to co-operate with each other in safeguarding the interests of the union and in caring and providing for the children.”

• This is a unique provision in Singapore, not modeled on other countries’ statutes.

• 1. Both husband and Wife Equal partners• 2. Law expects Husband and Wife to be reasonable in

their conduct towards each other• 3. Law imposes mutual obligations on Husband and

Wife• 4. Law preserves autonomy in spousal relationship

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On Spousal Autonomy: how much freedom dospouses have in making agreements? Are PreNuptial Agreements valid?• Kwong Sin Hwa v Lau Lee Yen [1993] 1 SLR 457: Parties

free to make private agreements (when they will consummate their marriage) as long as the agreement does not seek to enable them to negate the marriage or resile from the marriage.

• What about the following issues?– Agreement on Children– Agreement on financial issues

• A. Maintenance• B. Division of Assets

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Approaches:#1.Use contract principles. If valid as a contract,

enforce it as a contract.#2. Use the agreement as a factor in determining what

is just & equitable when dividing assets under s112.#3. Convert terms of agreement into court order

- Argued that #3 best preserves the interest of respecting freedom of spouses and upholding public interest of ensuring fundamental family obligations are fulfilled.

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While all these developments support the equalityof husband and wife, there are pockets of lawwhich undermine the principles of equality inS 46, for example:

1. Marital exemption in rape• Section 375 Penal Code, the Statute governing

criminal law in Singapore:• “A man is said to commit "rape" who, except in the

case hereinafter excepted, has sexual intercourse with a woman under [the following circumstances] ….Exception - Sexual intercourse by a man with his own wife, the wife not being under 13 years of age, is not rape.”

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2. Abortion • Under Termination of Pregnancy Act: No

provision for the husband's/fetus’s father's interests to be taken into account.

• Common law: C v S [1987] 1 All ER 1230 -An unborn foetus has no locus standi, or be party to a legal action. Father of fetus has no locus standi to act as the next friend of the fetus.

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=>When section 46’s exhortation towards a successful marriage does not work, marriage may be broken down beyond repair and parties have option of Divorce:

Divorce• Previously in England, require proof of matrimonial offence

(adultery).• Today, only one “neutral” ground for divorce: “marriage has

irretrievably broken down” which must be proved by one or more of these facts (s95(3)):

• Adultery• Unreasonable behaviour• Desertion for 2 years• Living apart for 3 years (both consent) or 4 years (one party

does not consent)

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• Interest of children and justice to parties considered when granting divorce but difficult to deny divorce once fact proved.– William Cheng v Chai Mei Ling (CA, Singapore)– Only in extreme case that it would be wrong to

dissolve marriage (although court could not imagine such a case for the moment). Financial hardship per se following divorce and unilateral desire to keep marriage insufficient to rebut presumption that marriage had broken down.

• Thus, law does not interfere too much with parties' intentions and choice to terminate marriage. It is in extremely exceptional cases that a decree will be denied.

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• 3 year bar to Divorce – no divorce proceedings in first 3 years of marriage unless exceptional circumstances (England reduced bar to 1 year)

• Ancillary reliefs available upon divorce, as it is in nullity cases (Children, Maintenance and Division of Assets – earlier in lecture)

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Parent & Child RelationshipParenthoodEngland: • mother – woman giving birth; father: mother’s husband

presumed father. Previously very strong presumption, today rebuttable by DNA.

Singapore: • adopts older English approach of having strong presumption -• s114 of the Singapore Evidence Act:• The fact that any person was born during the continuance of a

valid marriage between his mother and any man, or within 280 days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

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• Question of “Who is child’s legal father in Singapore” is difficult, because of tension between s114 presumption and modern science of DNA evidence

• Once parents of child determined, law imposes parental responsibility on parents

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Parental Responsibility & Authority over ChildEngland:• Children Act 1989 - two key principles underlying

the Children Act:• 1. People with parental responsibility have the

primary responsibility for the upbringing of children, with the state acting in partnership to support them, or, but only where necessary, intervening to protect the child

• 2. The welfare of the child should usually determine decision-making regarding the child’s future

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Parental responsibility in general comprises at least the following:• Providing a home for the child and to determine where the child

should live• Contact with child• Protection and maintenance• Discipline• Medical Treatment- Parent has a duty to obtain medical assistance

and can give consent for treatment• Education• Religious upbringing• Names- By convention child born to married parents takes father’s

surname, a child born to unmarried parents often takes mother’s name but can take father’s

• Consent to marriage• Power to appoint a guardian • Power to represent the child in legal proceedings

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English court orders on children:• "a contact order" means an order requiring the person with

whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other; "a prohibited steps order" means an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court; "a residence order" means an order settling the arrangements to be made as to the person with whom a child is to live; and "a specific issue order" means an order giving directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of parental responsibility for a child”

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Singapore

Uses old English pre-Children Act concepts of

• Custody (control over major aspects of child’s life e.g. education)

• Care & Control (child resides with parent with care & control, control over daily issues)

• Access (visitation or contact with child – spending time with child)

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The Welfare Principle• Also see Art 3(1) of the UN Convention on

the Rights of the Child 1989. 'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration'

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Singapore: Application of Welfare Principle to determinationof Care & Control• Natural Mother of Young children• Preserving continuity of living arrangements• Others:

– gambling habits of the parent, – illnesses e.g. depression suffered by the parent, – amount of time the parent spends with the child, – nature of the parent’s work and working hours – the parent's interest in the child's health and studies.

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Application of Welfare Principle to question of

Custody:

• “No custody order” – both parents continue to have control over major aspects of child’s life

• “Joint Custody order” – both parents have control over major aspects of child’s life

• “Sole custody order” – one parent decides all important issues, other parent has no say

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CX v CY (landmark decision of Court of Appeal inSingapore in 2005)• Rejected Sole Custody except in very exceptional

circumstances• No custody order preserves joint parental responsibility;

no or joint custody will be norm• “[this] idea of joint parental responsibility is deeply rooted

in our family law jurisprudence…welfare of a child is best secured by letting him enjoy the love, care and support of both parents. The needs of a child do not change simply because his parents no longer live together. Thus, in any custody proceedings, it is crucial that the courts recognise and promote joint parenting so that both parents can continue to have a direct involvement in the child’s life.”

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A current issue on parenting orders inSingapore:The right of the Non-Biological Parent• Can a non-biological parent who has treated the child as his

or hers seeks custody, care and control or access?• There are two positions:

– When the child’s parents are in an intact marriage (i.e. no divorce proceedings), only parents and legal guardians may make applications for custody, care & control and access;

– When the child’s parents are undergoing divorce or nullity proceedings, non-parents can also apply to have custody or access.

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Protection of Children in Singapore

Private law aspects:• Maintenance s 68 of Women’s Charter

Public law aspects:• A. Age of child and capacity to make decisions• B. Child’s wishes heard but not paramount• C. Children in public care

– Children & Young Persons Act – court can make orders for child to be committed to care of fit person, approved home be placed under supervision of protector (s49), requiring child and parent to undergo mandatory counselling, psychotherapy or other treatment which will resolve relationship problems between child and parent, rehabilitate child, protect physical and emotional well-being of child (s51)

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• Majority of Singaporeans’ ascendants came from China – how has English colonial influence affected its traditional chinese culture and laws?

• China and Singapore – chinese roots => to what extent does traditional thinking on children affect – how the law views children?– How family law is shaped?