Divorce Issues for Singapore Fathers: Child Custody, Asset Division etc.
This article on divorce procedure in Singapore is intended to provide useful advice to fathers contemplating divorce...
This article is intended to provide useful advice to fathers contemplating divorce.
At the outset, it is important to bear in mind that family law is about balancing the rights of both spouses, and what is in the best interests of any children they have, so that there is a fair outcome for all sides.
It is helpful that parties to the marriage do not just know what their legal rights are, but also be practical and know whether those rights are achievable.
The legal rights and duties discussed herein would not apply to parties married under Muslim law, as Muslim divorces are governed separately under the Administration of Muslim Law Act.
Divorce is the legal procedure that ends a marriage. Either party to the marriage can file for a divorce if he/she can show that he/she:
- Is domiciled in Singapore at the time of the divorce proceedings or habitually resident in Singapore for at least 3 years prior to the divorce proceedings;
- Has been married for at least 3 years; and
- The marriage has irretrievably broken down.
The reasons for divorce recognised in Singapore for proving irretrievable breakdown of marriage are:
- Adultery – If the reason relied upon for initiating the divorce is adultery, the party filing for the divorce would need to produce evidence of this fact. However, the party that has committed adultery cannot use the fact of his/her adultery to get a divorce.
- Unreasonable behaviour – Unreasonable behaviour generally means that the partner has behaved in a way that the spouse can no longer be expected to live with him/her. Some common examples of such unreasonable behaviour are violence, alcoholism, drug addiction and verbal abuse.
- Desertion (i.e. abandonment) for at least 2 years – In the case of desertion, the party filing for divorce should show that both parties to the marriage have been living separately for at least 2 years and that the deserter had no intention of returning.
- Separation for at least 3 years – Where both parties consent to the divorce and have been living apart for 3 years.
- Separation for at least 4 years – Where parties have lived separately continuously for a period of 4 years, then consent of either party is not necessary for a divorce.
The divorce proceedings involves 2 stages:
First stage – The dissolution of the marriage.
The first stage ends when the court decides to terminate the marriage and grants the parties to the marriage an Interim Judgment of Divorce (i.e. a provisional order that states the marriage has irretrievably broken down).
Second stage – Deciding on the ancillary reliefs.
These would include matters such as:
- Custody, care and control of the children
- Division of matrimonial property
- Maintenance of wife and children
When a marriage breaks down, it may become necessary for the court to make orders in relation to the custody, care and control of the children of that marriage. If so, the court’s first and foremost consideration will be the child’s interests and welfare.
The child’s welfare is not measured in monetary terms, and it includes the child’s moral and religious welfare, physical well-being, ties of affection, happiness, comfort and security. Parents are required to place their children’s needs before their own.
There are 3 main orders that can be made by the court:
1) Custody order
Custody refers to the right to make significant decisions regarding the child’s religion, healthcare and education.
There are 3 types of custody orders:
- Sole custody order – This allows one parent to have the right to make major decisions for the child. This order is usually made when it is clear that the relationship between the parents would have a detrimental effect on the child, and that it would be in the child’s interest for one parent to have sole custody of the child.
- Joint custody order – This gives both parents the right to make major decisions concerning the child jointly.
- Hybrid custody order – under this order, one parent will be granted custody over the child, but the custodial parent will need to consult the non-custodial parent on matters pertaining to the welfare of the child.
2) Care and control order
The party given care and control is the parent with whom the child will live and who will become the child’s daily caregiver. That parent is given the right to make the everyday decisions relating to the child, such as what the child will eat and how much allowance the child should be given.
Care and control can also be shared, where the child lives with each parent on a rotational or alternating basis.
Can a father be granted care and control of the child?
The court would generally award sole care and control of a child of a very tender age to the mother, unless the father can show that he had been the child’s primary caregiver.
In such a case, the father would need to show the judge that he can look after his child on a day-to-day basis. The plan should include everything in the child’s daily life, such as what time the child will wake up for school, who will bring him/her to school, who will care for him/her when he/she returns home from school, etc.
The father should also assure the court that he will not block the child’s access with the mother and will, in fact, facilitate the access.
The court will also take into consideration factors such as how much time the father has spent bonding with his child, or participating in the child’s health, fitness and studies. The court will consider the father’s plan and decide whether it will be in the child’s best interest to stay with the father or the mother.
3) Access order
Access or visitation rights are usually given to the parent who does not have care and control of the child, who is usually the father. Such orders can be governed by a court order or agreed between parents. Types of access orders can be:
- Access without conditions imposed, i.e. without time restraints or without specifying any restrictions.
- Access with reasonable conditions, e.g. supervised access.
Common access periods can be during weekdays, weekends, public and school holidays, as well as access on special occasions such as the child’s birthday, Father’s and Mother’s Day.
Can a husband rely on his wife’s adultery to obtain sole custody and care and control of the child?
Proof of the wife’s adultery will not automatically grant the father sole custody as well as care and control of the children. This is because, the adultery will only go towards showing how she has fallen short in her duties as a wife, but not how she has failed in her duties as a mother.
Ultimately, the child’s welfare comes into play in determining the issues of custody, care and control.
However, if the wife’s adultery involves multiple partners, and the court is of the view that she would not be a good role model for the child, then the court may decide that it would not be in the best interest of the child to grant the mother sole custody or care and control of the child.
Other circumstances when sole custody and care and control could be awarded to the father
The courts will also look at which parent would be able to offer better security and stability to the child. For example, if the father can present evidence that the mother:
- Lacks mental capacity to look after the child; or
- Has abused the child,
Matrimonial assets include all those assets acquired by one or both parties during the marriage and assets acquired before the marriage but substantially improved in quality during the marriage, (e.g. as a result of a renovation to the matrimonial home).
Common examples of matrimonial assets include the family car, shares, savings, the cash balance in the couple’s CPF accounts, businesses and jewellery as well as the matrimonial home.
The courts are given a fairly broad discretion to divide the assets under the principle of what is “just and equitable.”
The non-exhaustive factors that the court may take into consideration when determining the division of matrimonial assets include:
- The extent of the contributions made by each party towards the matrimonial assets.
- The extent of the contributions made by each party to the welfare of the family.
- The needs of the children of the marriage.
- Any agreements between the parties on the division of assets upon divorce.
In the case of ANJ v ANK, the court divided the assets 60:40 with 60% of the proceeds of the sale of the matrimonial assets going to the wife and 40% to the husband.
In determining this division, the court first ascribed a ratio to represent the spouses’ direct financial contributions in acquiring or improving the matrimonial assets and then a second ratio to represent the spouses’ indirect contributions to the well-being of the family. It then calculated the average of these ratios before making further adjustments to the average ratios.
Direct contributions would refer to cash contributions for the acquisition of a matrimonial asset (e.g. mortgage or CPF payments). On the other hand, indirect contributions would include any non-financial contributions in managing the home or caring for the family.
If the matrimonial assets consists of a HDB flat, the parties are free to mutually agree on what should happen to the flat after the divorce.
In this regard, the parties may either agree that one spouse transfer his/her interest in the flat to the other, or agree that the flat be sold and the sale proceeds divided between the parties.
However, if the parties are unable to agree on what should happen to the HDB flat after the divorce, the court will decide the proportion of the split of the sales proceeds between the parties.
Under the Women’s Charter, fathers can be ordered to continue providing financial assistance in the form of maintenance to his former wife and children during the course of divorce proceedings or after the divorce has been finalised. Maintenance can be paid out either as a monthly allowance or one lump sum.
Determining the maintenance amount
The Singapore courts aim to be as fair as possible when granting spousal maintenance, by putting the former spouse in a financial position similar to what he/she would be in if the marriage had continued.
If the parties are able to agree on the amount of maintenance, then there is no need for the matter to go to court. In all other cases the decision as to the quantum has to be decided by the judge after considering the income and earning capacity of the wife.
For example, if the wife earns more than her husband or has more than one source of income, such as rental income of her own or income from dividends, she could be considered self-sufficient and therefore only entitled to a nominal maintenance (e.g. maintenance of only $1), if at all.
Factors other than a wife’s income may also be considered in determining the application for maintenance. These include:
- The age of both the husband and the wife and their medical conditions (if any).
- The duration of the marriage.
- The parties’ direct and indirect contributions to the marriage.
- If the wife had “sufficient financial resources” based on the assets that were divided.
- Whether the parties’ children were old enough to support their parents.
The court normally orders the parent without care and control to pay the children’s maintenance to the parent with care and control. The maintenance awarded would again have to be reasonable and take into consideration the earning capacities of both parents.
Are husbands entitled to maintenance?
The court may order maintenance for a husband if he fulfils all of the following:
- During the marriage, he is or becomes incapacitated, by any physical or mental disability or any illness, from earning a livelihood. The incapacity should be one that can be medically proven. It does not include cases where the husband was capable of working but chose to be a house husband.
- He was unable to maintain himself during the marriage; and
- Continues to be unable to maintain himself.
Can there be a variation of the maintenance order?
After a maintenance order is made, if there are changes in circumstances which affect the husband’s ability to afford the current level of maintenance or warrant a higher maintenance, the affected party may apply for an increase or decrease of the maintenance ordered.
In order to prove a material change in circumstances which would entitle the husband to decrease the maintenance he was initially ordered to pay, the husband could rely on facts such as the loss of employment or a sudden medical condition. He would then need to produce relevant documents and facts as proof of the change in circumstances.
Failure to pay maintenance
If the husband refuses to pay maintenance, the wife may file an enforcement application to the Family Justice Courts. The court may make orders such as:
- The imposition of a fine or imprisonment of up to 1 month for each month the maintenance remains unpaid.
- A warrant to seize and sell property belonging to the husband and pay the proceeds of the sale to the wife as maintenance.
- The imposition of an Attachment of Earnings Order which would amount to a deduction of the maintenance payment from the husband’s salary.
In Singapore, divorces can proceed as a:
- Simplified uncontested divorce; or
- Contested divorce.
A divorce can take the simplified uncontested track if both spouses can agree on all issues in the divorce (i.e. the reason for divorce and all ancillary matters) before filing for divorce. On the other hand, if the parties cannot agree on at least one issue in the divorce, they will have to file for contested divorce.
A simplified uncontested divorce is recommended and parties are advised to consider contesting less issues in the divorce. This is because, simplified uncontested divorce proceedings are often more efficient and less expensive.
This is in comparison to a contested divorce, which can involve lengthy legal proceedings and may also further affect the children, who may already be stressed by the disintegration of the family unit.
This article was republished with permission from SingaporeLegalAdvice. The information provided above does not constitute legal advice. You should obtain specific legal advice from a lawyer before taking any legal action. Although we try our best to ensure the accuracy of the information on this website, you rely on it at your own risk.