It is not uncommon to hear men in Singapore lament (or women, boast) that the law tends to favour women over men in divorce proceedings. This impression is fuelled by high profile divorce cases where the Singapore courts have apportioned substantial assets worth millions of dollars and/or ordered high maintenance amounts to be paid to the ex-wives of high net worth individuals.
In this article, we answer some frequently asked questions in respect of divorce ancillary proceedings, specifically on how the Singapore courts decide on issues such as division of matrimonial assets, maintenance orders and the custody, care and control of children after a marriage has ended.
Division of Assets
1. Q: Is it true that if any married couple gets a divorce, the wife will get at least 50% of the husband’s assets?
A: No, that is untrue.
Firstly, only matrimonial assets may be subject to the Court’s power to order division of the assets of the divorcing parties.
“matrimonial asset” is defined in section 112(10) of the Women’s Charter (Cap. 353) to mean: —
- any asset acquired before the marriage by one party or both parties to the marriage —
- ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter or transportation or for household, education, recreational, social or aesthetic purposes; or
- which has been substantially improved during the marriage by the other party or by both parties to the marriage; and
- any other asset of any nature acquired during the marriage by one party or both parties to the marriage,
but does not include any asset (not being a matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage.
Thus, an asset acquired by a spouse before the marriage and which is ordinarily used only by that spouse for his/her own individual purposes and which has not been substantially improved during the marriage would not be considered a “matrimonial asset” and hence would not be subject to division by the Court in divorce ancillary proceedings.
Secondly, the apportionment of the matrimonial assets would depend on various factors and the facts of each case. There is no rule that the wife/ex-wife would be entitled to at least 50% of the matrimonial assets.
In deciding on how to divide the matrimonial assets between the parties, the Court would take into account the circumstances, including but not limited to the following matters:
- the extent of the contributions made by each party towards acquiring, improving or maintaining the matrimonial assets;
- any debt/ obligation incurred/ undertaken by either party for their joint benefit or for the benefit of any child of the marriage;
- the needs of the children (if any) of the marriage;
- the extent of the contributions made by each party to the welfare of the family (including but not limited to looking after the home or caring for the family or any aged or infirm relative of either party);
- any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce, etc.
2. Q: What about assets located outside of Singapore or held by a company owned by me -would they be subjected to division in divorce ancillary proceedings?
A: Matrimonial assets located outside of Singapore may be subjected to division by the Singapore Court as well. In respect of assets held in the name of a company, the party claiming that such assets are considered matrimonial assets would have to provide evidence to prove that those assets are in fact held by the Company on trust for the parties/party to the marriage.
Maintenance of wife/ex-wife and children of a marriage
3. Q: Is it always the case that the ex-husband must pay maintenance for the ex-wife? Is it possible for the Court to order that the ex-wife pay maintenance to the ex-husband instead?
A: Although it is common for an ex-husband to be ordered to pay maintenance for the ex-wife, this is not definite and would depend on the facts of the case.
For example, a strong case for the Court to exercise its discretion not to order maintenance for the wife or to order only nominal maintenance would be a case involving a short marriage between a young couple without children where the ex-wife was earning more than the ex-husband.
The Court of Appeal has held that the rationale behind the law imposing a duty on a former husband to maintain his former wife is to even out any financial inequalities between the spouses, taking into account any economic prejudice suffered by the ex-wife during marriage.
Although it is possible for the Court to order that an ex-wife pay maintenance to the ex-husband, this applies only to an ex-husband who —
- during the subsistence of the marriage, was or became —
- incapacitated, by any physical or mental disability or any illness, from earning a livelihood; and
- unable to maintain himself; and
- continues to be unable to maintain himself.
4. Q: How much maintenance must I pay to my ex-wife?
A: There is no standard amount. The court would as far as it is practicable and just to do so, endeavour to place the parties in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other. In determining the amount of any maintenance to be paid to the ex-spouse, the Court would take into account the circumstances, including but not limited to the following matters:
- 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;
- the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the standard of living enjoyed by the family before the breakdown of the marriage;
- the age of each party to the marriage and the duration of the marriage;
- any physical or mental disability of either of the parties to the marriage;
- 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
- value or benefit that any of the spouses would not be able to obtain by reason of the dissolution of marriage.
5. Q: Once an order for maintenance for an ex-wife is made, does that mean that the maintenance must be paid until the death of one of the spouses?
A: That would depend on the terms of the maintenance order. Assuming that the order does not state a shorter period or an end date in respect of the maintenance payments, then assuming the maintenance is unsecured, maintenance is to be paid until the death or either spouse or until the receiving spouse remarries.
However, it is possible to vary or rescind an order for maintenance by application to the Court, on the ground that:
- the order was based on any misrepresentation or mistake of fact; or
- where there has been a material change in the circumstances.
Children – Custody, care and control
6. Q: What is the difference between “custody”, “care and control” and “access” in respect of children of the marriage?
|Custody||Care and control||Access|
|Parent(s) who are granted custody of a child have the power to make important decisions for his/her child, such as decisions relating to healthcare, education, religion, relocation etc.
The Singapore Courts are typically inclined to grant joint custody to both parents unless doing so would not be in the best interests of the child.
|The parent who has care and control of a child would live with the child and be responsible for taking care of the child’s daily needs. This parent would be the one making decisions in relation to day-to-day matters such as meals and transport.||The parent who does not have care and control of the child would be granted reasonable access to the child unless doing so would be against the child’s best interests. This means that that the parent with access would be allowed to spend time with the child on a regular basis as determined by the Court.|
7. Q: Do the Singapore courts always automatically favour the mother of the children when deciding who should be granted custody, care and control of the children?
A: No. In deciding a child’s custody, care and control arrangements, the paramount consideration of the Court would be the welfare of the child. The Court would take into account factors including but not limited to the wishes of the parents of the child and to the wishes of the child where he or she is of an age to express an independent opinion.
The Singapore Courts normally order joint custody of a child to both parents, unless there are exceptional circumstances which indicate that a joint custody order would not be in the best interests of the child. This is because the Courts have recognised that it is ordinarily in the best interests of a child to have the direct involvement of both parents in his/her life, and parents are expected to co-operate to promote the child’s best interest.
In respect of care and control, it is more common for one parent to be granted sole care and control of a child while the other parent has access to the child. However, in appropriate cases, the Court might grant both parents shared care and control if the Court finds this to be feasible and best serves the child’s welfare.
The above information relate to marriages registered in Singapore. We are able to advise on different situations such as unmarried couples who have children together.
Every case is different and the answers to the above FAQs may not apply to your case. For enquiries relating to family and matrimonial matters, contact us at 6226 3650 or via email to our Ms Allison Foo at email@example.com.
Disclaimer: This publication is intended for your general information only and is not intended and should not be taken as legal advice or opinion. It contains information which is current as at the date it is issued. No action should be taken in reliance of the information contained in this publication without consulting a lawyer or seeking professional legal advice. This article may not be reproduced, or transmitted in any form or by any means, in whole or in part, unless with our prior written consent. TIMOTHY NG LLC (UEN: 201102808D) is a Singapore registered law corporation with limited liability.