Keynote Address at Family Conference 2021
By Minister for Culture, Community & Youth and Second Minister for Law Edwin Tong SC
28 September 2021
Mr Chia Wee Kiat, Deputy Presiding Judge of the Family Justice Courts;
Mr Kenneth Yap, Registrar of the Family Justice Courts;
Mr Gregory Vijayendran SC, President of the Law Society of Singapore;
Ms Kee Lay Lian and Ms Wong Kai Yun, Co-Chairs of the Family Law Practice Committee;
Organising Committee of the Family Conference 2021,
Fellow Members of the Bar,
Ladies and Gentlemen,
- I am really delighted to join all of you at today’s Family Conference.
- The title of this year’s conference is “Big Questions in a Small World: International Issues in Singapore Family Practice”.
- In a way, and as I will explain in the course of this speech, the title highlights the significance of this year.
- It is the Year of Celebrating Singapore Women;
- It is also the 60th anniversary of the Women’s Charter, which contains much of Singapore’s substantive family law. These are anniversaries which emphasise remembering. In the course of this speech, I’ll take some time to reflect on our past, and to prepare for the future.
Unique Nature of Family Law
- Family law is unique in many ways. This has been said several times, by different people at various forums: family law is unlike other legal subjects.
- There is, perhaps, no other legal subject which is as sensitive to the historical, social, cultural, political, and even economic evolution of a society, as family law.
- One view of the law is that it tells stories – that there is a story embedded in the structure of governing laws.
- This is very true of family law, which is made up of some extraordinary stories – of the struggle for rights over the years; of the growth of societies and economies; and of individuals like you and me.
- Whether formally or informally, societies across space and time have always come up with rules to bind people together and dissolve relationships.
- Clay tablets from ancient Mesopotamia, more than 4,000 years ago, contain the earliest known evidence of marriage.1The Code of Ur-Nammu is thought to be the oldest surviving law code, written in the Sumerian language.
- The concept of marriage and its objectives have varied across time, culture, and different religious practices. For example, among ancient kingdoms, marriage was used as a tool to establish diplomatic and trade ties; and to seal alliances, which would provide a respite from bloodshed in battles for power.2Amanda H. Podany, “Brotherhood of Kings: How International Relations Shaped the Ancient Near East” (Oxford University Press, 2010). Those of us who have been schooled in history can point to so many examples of this in the past.
- We may not understand these concepts typically as “family law” or “marriage”, particularly as we now know it.
- However, they emphasise the importance that people have historically placed on relationships.
Our Past as a Means to Seeing Our Future
- As I prepared for this speech, I asked myself what to speak about. I came around to the view that in order to know what the law is and where it ought to go, we must know what it has been, what it tends to be, and perhaps some of the reasons why. So indulge me, as I go a little bit more into the past and sketch out that framework.
- The form and machinery of the law, as well as the degree to which it can work out desired objectives, depend very much on that history.
- Like in many other parts of the world, family law in Singapore has gone through an evolution and a revolution of sorts.
- The story of our family law must therefore be told from the very beginning.
- We were never strangers to international issues.
- The starting point of modern, multi-cultural Singapore was in 1819.3Speech by Prime Minister Lee Hsien Loong at the launch of the Singapore Bicentennial on 28 January 2019.
- This was the year Stamford Raffles arrived in Singapore, bringing with him an entourage that included sepoys, lascars, and several Indian assistants.
- Singapore became a free port which drew immigrants from China, India, Southeast Asia, and beyond.
- These immigrants brought, with them, their own unique cultural practices and beliefs – some of which would eventually shape the regulation of their family affairs later.
- The starting point for family law in Singapore, as most other areas of law, was the Letters Patent granted by the British Crown on 27 November 1826.
- Before that, the law was said to be in “chaos”. There were no instruments or documents of any kind governing the regulation of law and order in Singapore. According to the historical evidence that exists, the administration of justice was left to headmen or leaders of the respective ethnic groups.4Andrew Phang, Goh Yihan, and Jerrold Soh, “The Development of Singapore Law: A Bicentennial Retrospective” (2020), Singapore Academy of Law Journal, 1-87.
- The Letters Patent – more commonly known as the Second Charter of Justice – imported into the colony of the Straits Settlements the law of England as it stood on that date. The law was subject to modifications necessary to prevent injustice or oppression to the local inhabitants.
- The Second Charter of Justice established legal unity by introducing a uniform legal system based on the English common law.
- Uniformity was, perhaps, somewhat possible in many other areas of the law but posed challenges in the sphere of family law.
- The family laws in Singapore were said to be a “motley mixture as varied as the racial and religious mix of the society”.5Leong Wai Kum: Family Law in Singapore: Cases and Commentary on the Women’s Charter and Family Law (Singapore: Family Law Journal, 1990) at pp 9-10, 15-16. I can see why.
- There were at least seven marriage law systems that were recognised – the Chinese, the Muslim, the Hindu, the Sikh, the common law, and the two statutory regimes established by the Christian Marriage Ordinance and the Civil Marriage Ordinance.
- I will speak a little about the English common law now because it mirrored how marriage and women were then viewed in societies such as ours at that time.
- English law viewed the relationship of the husband and the wife within marriage as fundamentally unequal – at least, at that point in time.
- The classic statement of marriage, as expressed in Durham v Durham, was “protection on the part of the man, and submission on the part of the woman”.6(1885) 10 PD 80. If you try saying this today, I’m sure you’ll get more than just some evil stares.
- But at that time, if a wife committed an offence – other than murder or treason – in the presence of her husband, English common law presumed that she had been coerced by him into doing it.
- A scene in Oliver Twist depicts this quite vividly. Towards the end of this classic novel, Mr Brownlow accuses the cruel Mr Bumble of being responsible for his wife’s theft of a gold locket and ring belonging to Oliver’s mother.
- This leads Mr Bumble to declare that: “If that’s the eye of the law, the law is a bachelor.”7Charles Dickens, Oliver Twist (Duke Classics, 2012), Chapter LI at p 669.
- Not all men were apparently happy with this presumption (which might otherwise have been welcome in other settings) that was based on the notion that a woman could not be expected to act independently.
- The law intervened only occasionally and even then, in a fairly piecemeal manner.
- Legal scholars noted that this “caused a certain amount of conflict and confusion and, eventually, unhappiness with the entire situation.”8Supra note 3.
- We did, however, have some success.
- The divorce rate among Muslims was very high during the first half of the twentieth century. In 1958, the divorce rate, at that time, was 493 per 1,000 marriages.9HistorySG, “Syariah Court is established – 24 November 1958”, online: <https://eresources.nlb.gov.sg/history/events/1dfc64cf-8977-4c3d-9130-1a44ab1241c4#1> Almost one in two marriages ended in divorce.10“Muslim Divorce Rate High – Advisory Board Worried, Will Make Full Probe”, The Straits Times, 25 November 1952 at p 3.
- The high divorce rate was attributed, amongst other things, to the ease of getting a divorce at that time.
- Among other things, there were few restrictions or counselling services to mitigate divorce under the old Muslim Ordinance of 1880.
- In 1958, the Syariah Court was established.
- The court tightened the administration of Muslim divorces according to Islamic law and introduced professional conciliatory services. This sounds all too familiar to us today, but bear in mind, this was introduced in 1958.
- The divorce rate declined significantly almost immediately.
- In 1958, this was introduced, and in just one year, the divorce rate almost halved to 273 per 1,000 marriages in 1959.11Supra, note 9.
- This was a sign, not just that the Syariah Court was bringing greater stability to marriages among the Muslim community, but the whole philosophy of professional conciliatory services in the context of family law had its early immediate successes.
Catalysts of change
- There were a number of social forces that later shaped the landscape of family law.
- One of the key catalysts of change to family law was the evolving role and status of women in societies across the world.
- The role of women has radically changed in the last 100 years, with industrialisation and globalisation.
- There was a shift from the role of women working in the fields in certain agricultural societies, – a very agricultural setting, bringing up children, performing household duties.
- Industrialisation and World War II led to a demand of women workers.
- This, in turn, led to education of women.
- That follow, amongst other things, calls for several other areas of equality: political equality; the right to vote; and equal rights, before and after marriage, in the ownership of property.
- The global ripples of change, started perhaps in the western world, were felt here as well.
- So in in April 1960, the Women’s Charter Bill12No. 81 of 1960. was presented to the Legislative Assembly for debate.
- The Bill covered not only family law, but also the protection of women and girls from exploitation as prostitutes.
- Dr Goh Keng Swee at that time expressed that they had been moved to deliver the legislation “by deep and profound conviction as to how a good society should be regulated.”13Singapore, Legislative Assembly Debates, vol. 12, no. 1 at col. 480 (6 April 1960).
- The legislation was championed by women such as Mdm Chan Choy Siong who felt that “women in our society [had] been like pieces of meat, put on the table for men to slice.”14Ibid at col. 443. She made this point very vividly in the course of the Legislative Assembly debates in 1960.
- When we look at the things that were said about the Women’s Charter, we must remember that these were expressed against a long history of subjugation at that time.
- The egalitarian principles that we know, and which are today cemented in modern Singapore, did not always exist.
- The legislation also consolidated existing laws relating to monogamy, divorce, the rights and duties of married persons, the maintenance of wives and children, and the punishment for offences committed against women and girls.
- Mr K.M Byrne, the Minister for Labour and Law, had then described the prior legislation relating to women and children as “spread so widely throughout legislation that it requires the training and experience of a lawyer, to find one’s way through”.15Ibid at col. 481.
- One of the core principles of the rule of law must be that the law can and should be accessible as far as possible. Intelligible, clear, and also predictable.
- Therefore, the consolidation of laws within the Women’s Charter was important for the rule of law.
- The law alone cannot change mindsets and attitudes overnight.
- Here is is an interesting case explaining this point.
- In 1997, let’s just bear in mind the dates, not that long ago, a case involving the tort of enticement was heard by the High Court.
- The tort of enticement was of course from old common law concepts.
- It corresponded to the husband’s dominion over his wife. It was the duty of the wife to reside and consort with her husband. If a person attempted to entice her to violate this duty, he would have committed a wrong towards the husband. The husband was then entitled to claim damages.
- In this case, a husband had sued a man he believed to be his wife’s lover. The husband demanded damages for the loss of his wife’s companionship.
- High Court struck out the claim, and noted that the tort of enticement had “no known presence in Singapore”.16TPY v DZI (1997) 1 SLR(R) 843 at (12)-(14).
- A gentleman then wrote to the newspapers around that time, following the release of that decision, making his case that there were reasons to keep this “wife-stealing” law in a modified form, if necessary.17“Husbands happier if wife-stealing law stays”, The Straits Times, 18 July 1997 at p 55.
- His view was that given the concept of women’s rights and the idea of career women, what we had was a “happy hunting ground for the inveterate philanderer.” And those are his words.
- He went on to cite the practice in the Qing dynasty where “people in China dispensed quick justice on those guilty of adultery”.
- He explained that under this form of quick justice, both the man and woman should be bound, encased in a bamboo pig’s cage and then thrown into a body of water to be drowned. He said that no one had then quarrelled with this enactment of the law.
- Bear in mind that these views were expressed in 1997, not too long ago.
- But, of course, this was long after the Women’s Charter was introduced; long after the tort of enticement had already been abolished in England in 1970; and certainly long after the end of the Qing dynasty.
- This goes to show that certain values and thoughts might perhaps in some segments be entrenched in our consciousness, and it takes more than just the law, the learning and perhaps the unlearning to be able to look at things from a different perspective.
- I must say, a lot of progress has been made to uplift the status of women in Singapore.
- Anachronistic remnants of our legal past such as marital rape immunity have been repealed.18Marital rape immunity was repealed completely through the Criminal Law Reform Act in 2019. The Penal Code (Amendment) Act 2007 had earlier introduced exceptions to laws that provided blanket immunity to husbands who had non-consensual sexual intercourse with their wives.
- But the law aside, changes have also been made in almost every aspect of policy-making – education, health, economy, housing, and other areas of social development.
- The portrait of women who came to Singapore as immigrants in the twentieth century, working as amahs or samsui construction workers and in various services and small enterprises, may seem like a distant, hazy past.
- These were women who lacked education back then but displayed grit and ruggedness in spite of, or perhaps, because of their circumstances.
- So this year, we celebrate them and every Singaporean woman.
- We have come a long, long way, but still, there is much distance to cover.
- As our former Prime Minister Mr. Lee Kuan Yew once said:“The only differences between men and women are the physical and biological ones. Women are equal to men in intellectual capacity.”19Speech by the Prime Minister, Mr. Lee Kuan Yew, at the NTUC’s International Women’s Year Seminar cum Exhibition at the DBS Auditorium (1 September 1975).
- This is not merely an aspiration – it is a fact.
- The Government launched the “Conversations on Singapore Women’s Development” on 20 September 2020, a bit more than a year ago, to understand what more can be done to empower, protect, and uplift our women.
- Thousands, including many lawyers, participated in a series of engagements that ended just 10 days ago.20The closing session of the Conversations on Singapore Women’s Development was held virtually on 18 September 2021. They offered their views on important issues. These views, their feedback, recommendations and suggestions, are being consolidated into a White Paper that will be submitted to Parliament.
Administration of Family Justice
- Let me turn now to speak a little bit about the administration of family law.
- The synergy of procedure and substantive law is essential to the functioning of any legal system.
(a) Administration of Muslim law
- The Administration of Muslim Law Act21Act 27 of 1966. (AMLA) was passed in 1966 to provide for the administration of Muslim law.
- This unique system of legal pluralism preserves the separate legal system that existed for Muslims in Singapore since 188022The Straits Settlements Mahomedan Marriage Ordinance was enacted in 1880 and was the earliest statute in Muslim law in Singapore. The Ordinance was a formal recognition of the status of Muslim personal law within the colony. The Ordinance provided for the registration of Muslim marriages and divorces. The Governor of Singapore was also expressly empowered to appoint kathis or kadis (or Islamic judges) to facilitate the administration of Islam. on issues such as marriage, divorce, inheritance, and also other civil matters.
- Despite there being substantive differences between Muslim and non-Muslim family law, there are also much similarities. The desire to strengthen marriages and to reconcile differences, wherever possible, is one such example.
(b) Administration of non-Muslim marriages
- As far as the administration of non-Muslim family law is concerned, in the early years, even after family law had begun to exist as a coherent body of principles, it was not necessarily administered as a coherent whole.
- Maintenance applications were heard by the Magistrates’ Courts, although the District Courts and the High Court also had jurisdiction. Matters such as divorce, nullity, and custody were heard by the High Court. Adoption cases could either be heard by the District Court or the High Court.
- So, there was a need to ensure that family justice could be administered coherently, with the courts being equipped with the necessary tools to deal with the cases, and the range of remedies that were needed for each of these cases.
- The Family and Juvenile Justice Division of the then Subordinate Courts was established in 1995.
- In 1996, the Family Court was given the power to hear divorce cases and make orders related to the dissolution of the family.
- All family-related disputes were moved from the High Court to the Subordinate Courts, where mediation and reconciliation was emphasised.
- This was the first semblance of a truly one-stop centre for all family disputes.
- In 2013, the Committee for Family Justice was established to look at how the family justice system could be reformed to better serve the needs of the families not just today at that time, but also tomorrow.
- The Committee made numerous recommendations which the Government accepted, and quickly implemented.
- In 2014, the specialist Family Justice Courts was established.
- Unlike the commercial and criminal courts, the family courts adopt a more judge-led and problem-solving approach to each case.
- According to an FJC-MinLaw Court Users Survey conducted in 201823The Family Justice Courts and the Ministry of Law commissioned Forbes Research Pte Ltd to conduct a survey to obtain feedback from court users in order to further improve the services of the courts. Data was collected from 11 December 2018 until 1 March 2019. 1,037 respondents were surveyed., the overall perception of the reforms to the system was indeed positive:
- 83% of lawyers; and
- 82% of court users surveyed, had a positive perception of the reforms, based on their experience with the system.
Lessons we can draw from experience
- What lessons can we draw from this experience?
- Well, the first is, I think the work is not done. We are always working to finetune our court processes, and more can still be done, to work harder towards preserving relationships, minimising hostility, and fundamentally look after the welfare of children.
- We, of course, cannot predict the future but our history and experience is somewhat of a crystal ball, allowing us to look back in order to look forward.
- To my mind, there are two issues that family law will continue to grapple with, which I think will come to the fore in the next decade or perhaps decades:
- First, how far the law should and can encroach into what is essentially a private space in a family.
- Second, society does not think or speak with one voice on all matters. Of course in today’s context, increasingly so. People can have starkly different views on social and ethical issues. Everyone is entitled to their own views and these must be respected. Moreover, social mores change over time. All of this, however, poses for us, an enormous challenge for the law: which way do we go? There’s a multitude of pluralistic diverse voices.
- But at the same time, these are not new challenges and they are also not mutually exclusive.
- We have dealt with them before and let me give two examples.
- The first is on family violence.
(a) Family violence
- History is replete with violence by men against women, particularly in patriarchal societies.
- Marital rape was one example of coverture’s24Coverture refers to the common law doctrine that a wife had no separate legal identity during a marriage. Her person and her property came under her husband’s control. old hand at work. All of these stemmed from a misogynistic view about the status of women in not just the homes, but in society as a whole.
- Family violence is injurious in many ways, including to one’s mental health and self-worth. It can leave an indelible mark on the lives of the most vulnerable and innocent: the children.
- Before these young ones can experience the wonders and joys of life, or family, they would already have acquired an emotional or psychological burden from which many might never completely escape or recover.
- So the question to me is not whether the law should intervene. The law must intervene.
- The real and more difficult question is: how much should the law intervene and what form should that intervention take.
- I will explain this point a little bit more by narrating an old incident.
- In 1929, the Singapore Free Press and Mercantile Advertiser carried an article, an old article titled “Wife Beating Tragedy”25“Wife beating tragedy”, The Singapore Free Press and Mercantile Advertiser, 26 November 1929 at p 5..
- This was an incident in Paris where a man had witnessed a husband beating his wife in public.
- This man approached this couple, knocked the husband down, intending to prevent the husband from further assaulting his wife.
- This then led to the wife attacking the man who, according to this report, cried as the wife said: “He’s my husband. Don’t interfere with our concerns”. And following that, both the husband and wife set upon the man.
- This incident took place of course in Paris in the early twentieth century, some time ago.
- While the characters and scenes might change, the issues underlying this incident might endure.
- Here, the Women’s Charter Bill introduced in 1961, contained provisions to protect spouses from violence. These provisions were complemented by other legislation such as the Children and Young Persons Act which protected children against abuse.
- Internationally, domestic violence began to receive the focused attention of activists and policymakers by the 1970s.
- By the mid-1990s, there were growing calls to strengthen our laws on family violence. The Family Violence Bill was introduced and debated extensively in Parliament in 1995. The Bill was not passed.
- Among some of the concerns raised were that the Bill, which proposed greater police intervention, could result in negative long-term consequences for the family.
- Some of the provisions in the Family Violence Bill were introduced as amendments to the Women’s Charter the following year, in 1996.
- These provisions reflected a balancing exercise as there were a number of different objectives to achieve. These were:
- First, to protect the family from violence;
- Second, to prevent further violence; and
- Third, as a countervailing point, to ensure that the law did not encroach into the family space in such a way that made healing or reparation between and amongst the family members, either difficult or no longer possible.
- The laws were strengthened.26The laws were strengthened in a number of ways through the Women’s Charter (Amendment) Bill 1996. For example, the former provisions only protected either the spouse or a child of the family. The new provisions included other members of the family such as a person’s father, mother, siblings, or in-laws. The range of persons allowed to apply for protection orders was also expanded. The type of harm from which a family member was protected was expanded to include wrongful confinement and continual harassment. The courts were also empowered to make protection orders which could exclude a person from a shared residence. The courts were also given powers to make counselling orders.
- At the same time, there were efforts undertaken to create a multi-pronged tool to deal with violence. This included increasing awareness through education and also building up the entire support system within the community in society.
- Family violence remains a serious concern.
- The stressors and other consequences of the pandemic, amongst other things have, unfortunately also crept into our homes.
- The Taskforce on Family Violence was formed to look at how we can strengthen our responses to this problem. Undoubtedly, some of the issues that we faced in the past will continue to rear their familiar, ugly heads even in present times. The Taskforce submitted their recommendations in a report published just a few days ago. This report is currently being studied by the Government.
(b) Maintenance of Parents Bill
- The second example is the Maintenance of Parents Bill.
- The obligation for parents to maintain their children existed in common law and appeared also in the Women’s Charter Bill.
- The matter was uncontroversial – parents had a duty and a responsibility to care for their children, regardless of whether they were born within or outside a marriage.
- A proposal to create a reciprocal duty for children to maintain their parents in their old age stirred debate in 1994, the year the Bill was introduced.
- The Bill was introduced to provide a safety net for needy elderly parents who had otherwise no other recourse.
- Although there was no urgent need for the legislation, it was necessary to cope with a projected growth of an ageing population. One which 20 years down, I think we see the evidence of.
- In fact, in the year the Bill was passed, Singaporeans aged 65 and above comprised just 6.5% of our total population.
- As of June 2020, just over a year ago last year, that figure had risen almost three times to 16.8%.27Population in Brief 2020. Retrieved from https://www.strategygroup.gov.sg/files/media-centre/publications/population-in-brief-2020.pdf
- The figure is projected to rise even further, to 25%, in 2030.28Population White Paper: “A Sustainable Population for a Dynamic Singapore”. Retrieved from https://www.strategygroup.gov.sg/media-centre/population-white-paper-a-sustainable-population-for-a-dynamic-singapore. That ageing population curve is going to be very sharp and steep.
- We were not the first in the world to introduce such laws. Some of you will know that similar laws existed in Taiwan and Israel. In fact, the obligation to maintain one’s parents can also be traced to ancient Roman society in the third century.29Chan Wing-Cheong, “The Duty to Support an Aged Parent in Singapore”, 13 Pac. Rim L & Pol’y J. 547 (2004).
- Several arguments were made by those who objected to the Bill:
- Some thought that it was objectionable for parents to maintain their children because they had not asked to be born.
- Some felt that it was unnecessary because filial piety was just a part of Asian values. If a person refused to maintain a parent, there must be a good reason for that – for example, either that parent had not played the part that he ought to have done or played in the child’s growing years.
- Then, there were those who felt that the law should not encourage parents to sue their own children as this would fundamentally affect their relationship.
- There were concerns that the law’s intervention would erode family values and link ties to financial obligations. The less tangible, but more important aspects of relationships, such as affection and responsibility could then be either sacrificed or compromised.
- The Bill was submitted to the Select Committee, where amendments to the original provisions were made. These amendments addressed the reservations that had been earlier expressed:
- For example, the adversarial court system was replaced with a tribunal as a mode for resolving disputes.
- Conditions were included – only parents who were of the statutory retirement age or infirm could apply for maintenance.
- The Maintenance of Parents Act has since found acceptance and is only relied upon as a legal avenue of last resort.
- In that sense, the law sketches out the architectural framework but takes a back seat, and only intervenes in the private relationships of parents and their children when there is a need to and when otherwise the conciliatory approach is not possible.
International Issues in Modern, Globalised Family Law
- Let me now turn to speak a little bit about International issues in a modern, globalised family law setting.
- It is a small world and this has been so for a while, with technology facilitating wider social interactions.
- About one in four citizen marriages in Singapore involves a non-resident spouse. This has been a relatively constant ratio over the last 20 years or so.30“1 in 4 Singaporeans marrying non-residents, increasing proportion involves non-resident men”, Channel NewsAsia (22 April 2021) online: <https://www.channelnewsasia.com/singapore/singapore-citizen-marry-foreign-spouse-non-resident-236371>
- Transnational marriages can present – as they already have – difficult issues on very stark striking facts.
- These issues include matters such as parental abduction of children and also applications for relocation.
- Such cases are difficult not merely because they involve complex legal issues.
- They are difficult also because the interests of the most vulnerable persons in the family justice system – the children – lie in the crossfire of their warring parents.
- Issues like relocation are necessarily an international problem. If relocation is permitted, it will be the law of the destination country that will primarily govern the welfare of the child. It will also be that law that will govern any future parental disputes. There are also concerns that one parent may resort to abducting the child, in the event of a failed application to relocate.
- International problems such as these require international solutions. A co-operative approach to these problems will be essential.
- There is an international commitment towards getting to a common set of aspirations. The UN Convention on the Rights of the Child and the Hague Convention on the Civil Aspects of International Child Abduction are examples of such commitments
Family Law: Not All Discretion
- Some might ask, what is family law other than that “each case depends on its facts”, when we talk about discretion.
- That is not an unfair exposition of the law.
- We often see legislation setting out factors and principles, with the courts quite readily being given sufficient discretion to deal with differing unique facts, features, contexts, circumstances and needs of each case. This is true of matters such as maintenance, and the division of matrimonial assets upon divorce.
- There is a jurisprudential school of thought referred to as Legal Realism.
- It can be explained in the expression that “general propositions do not decide concrete cases”.31Lochner v New York 198 U.S. 45 (1905) per Justice Oliver Wendell Holmes, Jr. What this means is that the background and facts of each case determine the outcome far more than any proposition of the law with a general character.
- The sort of family disputes that the courts have to deal with cannot be painted over with a single brush, with a single colour in a flexible approach.
- To borrow Tolstoy’s axiomatic expression on families, all happy families are alike.32Leo Tolstoy, Anna Karenina (Barnes & Nobles Classics, 2013). The opening lines of the novel read: “Happy families are all alike; every unhappy family is unhappy in its own way.” This is a bit of a generalisation but they are probably all alike in the sense that they have no need to invoke the law.
- However, all unhappy families are unhappy in their own ways. Therefore, what we need is a flexible brush that can paint “different strokes for different folks” with different problems.
- The courts have, over a period of time, developed a substantial body of case law that seeks to ensure that the law is predictable.
- The. courts can move the legal needle on the path, which the law is already moving.
- The courts can also adapt the law to accord it with modern views and practices, as we have observed through the development of case law over time.
- What the courts cannot do is to recast the law radically, for that would offend the rule of law.
- That brings me to the areas of modern family law that I think policymakers and society will have to grapple with.
- In the interest of time, I will highlight two.
(a) Advances in the field of fertility sciences
- This is one area that has impact on the advances in the field of fertility sciences, and the impact it has on the notions of parenthood and the family.
- Jurisdictions across the world have had to deal with particularly complex issues associated with surrogacy. Questions such as who the legal parent is and what that parent’s obligations are, vis-à-vis the child and the surrogate mother, are some of the many questions raised.
- The courts have dealt with some aspects of these issues in previous cases.33One example is ACB v Thomson Medical Pte Ltd and Others (2017) SGCA 20 involved an issue on whether the expenses which arise in relation to the unplanned birth of a healthy child who was born as a result of medical negligence is a compensable head of damage. The Court of Appeal agreed with the High Court that the recognition of a claim for upkeep costs would be against public policy. This is because the Court would have to regard, as actionable damage, the incidents of the parent-child relationship. This relationship is socially foundational and incapable of estimation as loss. The Court of Appeal also held that such recognition would be inconsistent and deleterious to the health of the institution of parenthood and against public interest.Another example is UKM v Attorney-General (2018) SGHCF 18. This case involved a gay man who was in a long-term relationship with his partner. They desired a child but had been advised that they would not be able to adopt a child in Singapore because of their sexual orientation. The couple travelled to the US and engaged the services of a surrogate mother. The man’s sperm and the egg of an anonymous donor were used in the procedure. The child was brought to Singapore by the man and his partner. The man applied to adopt the child under the Adoption of Children Act (Cap 4, 2012 Rev Ed) so that the child could stay in Singapore permanently. The court had to determine whether the application to adopt the child should be granted, after weighing public policy considerations and the principle of the welfare of the child.
- Science is advancing so very quickly.
- There is also a greater sense of freedom in movement across borders.
- In addition, there are those who do not subscribe to the traditional concepts of parenthood and family.
- A combination of these factors points us to one direction: that it is not a question of if but when we will have to face these issues.
(b) Reforms in the law of divorce elsewhere
- The second relates to reforming the law of divorce.
- Several jurisdictions have moved or are moving towards “no-fault divorce”.
- In England and and Wales, this law in the Divorce, Dissolution and Separation Bill 2020 is expected to commence sometime in April 2022. This Bill in England has been regarded as the biggest shake-up divorce law has seen in the last 50 years.
- Although the reforms were welcomed by many who considered that the existing laws increased animosity and acrimony in already fragile circumstances, there were those who remained concerned about whether the law was making it too simple for people to walk out of their marriages.
- In May this year, a public consultation paper was launched here. This paper sought views on having an “amicable divorce” option for couples that will not require them to prove a fault-based fact such as adultery.34Ministry of Social and Family Development, “Consultation Paper: How to better support children and divorcees, and reduce acrimony in divorce”, online: < https://www.msf.gov.sg/publications/Pages/Consultation-Paper-Better-Support-Children-and-Divorcees-and-Reduce-Acrimony-in-Divorce.aspx>
- We have seen a diverse set of views on the issue before, reflected in the letters published on local media. This divergence in views reflect those which were also seen in England and Wales.
- Some feel that the option would be beneficial to the family unit, provided that safeguards to prevent abuse are in place.35“No-fault divorce may benefit couples and children with safeguards in place, say experts”, Channel NewsAsia, (23 May 2021) online: The Straits Times <https://www.channelnewsasia.com/singapore/no-fault-divorce-benefits-safeguards-experts-msf-1395241
- Others feel “appalled”, expressing that the current laws are premised on the notion of preserving marriages and encouraging reconciliation.36“Forum: ‘No-fault’ divorce threatens fabric of families, exposes children to vulnerabilities”, The Straits Times (15 July 2020), online: The Straits Times <https://www.straitstimes.com/forum/no-fault-divorce-threatens-fabric-of-families-exposes-children-to-vulnerabilities>
- The fact there is such a wide range of views across the spectrum is unsurprising.
- Public consultation on the issue has now closed and feedback that we have gathered, which represents a myriad of different views, is being considered. As with the other matters we have grappled with in the past, I think what we now need to do is consider all the views, and look at what would best represent the way forward for society, and find an equilibrium.
You: The Bridge That Connects the Law to Justice
- Finally, let me talk a little bit about the bridge that connects law to justice. There is a difference between law and justice, although they often march along side by side.
- There is a great amount of legal jurisprudence out there on what this difference is, but I think, to my mind, it can be expressed in simple terms.
- The law provides a means to justice, the goal we want to achieve.
- Family law is typically invoked by people who are reaching out in the hope that the law will help them find or reach a form of justice for their own circumstances, in their own context, and for their disputes at home, often a very private dispute. They want a resolution of their difficult issues, with least damage to the people they care about.
- Lawyers represent the bridge that connects the law to justice.
- A family justice system requires the coordinated efforts of: (a) policymakers; (b) the courts; (c) lawyers; and (d) social sector professionals.
- Policymakers have to be clear about the direction the law should take. Parliament must install the legislative framework with the appropriate support system.
- The Family Courts are unique in that, unlike other courts, they are not there merely as neutral arbiters. The judge-led approach which we have adopted requires courts to guide parties towards a non-adversarial path. There are many other areas of the law which have adopted a judge-led approach. However, nowhere is this more important than in the context of family proceedings.
- Family lawyers are also unique. They perform several functions, sometimes all at once. They must never forget that they are dealing with real people, not commercial entities with a somewhat distant or perhaps more impersonal commercial dispute. The solutions they offer must make not only make legal sense but must take into account the overall dynamics of the dispute of the circumstances, and must make sense in emotional and personal terms.
- Social sector professionals play an increasingly important role in the healing process. Their intervention through counselling and, sometimes, by just being the listening ear can be the support that makes a difference, that a person might need to begin a new chapter in his or her life.
- Let me conclude by saying that society has changed, is changing, and will undoubtedly keep on changing.
- The law must keep up with these realities.
- The only way we can keep pace is to be prepared, to be thinking about this constantly, to be on our toes, monitoring social mores, looking at where society is going.
- In this spirit of preparedness, I am glad to see that this Conference is trying to cover the many issues that shape family law and family justice, not just today, but for the longer term and the foreseeable future.
- So let me express my thanks and gratitude to the organisers for putting together this event and providing a solid platform for different stakeholders, to facilitate meaningful exchanges and the development of good ideas.
- The principle is always that there is no monopoly of good ideas that occasions just like this, albeit virtually, not in person, is really a good platform to exchange those ideas and push the thought leadership amongst lawyers and stakeholders, a lot further.
- I wish everyone good health and a very fruitful Conference.
- Thank you very much for having me speak to you, and thank you for listening.
|↑1||The Code of Ur-Nammu is thought to be the oldest surviving law code, written in the Sumerian language.|
|↑2||Amanda H. Podany, “Brotherhood of Kings: How International Relations Shaped the Ancient Near East” (Oxford University Press, 2010).|
|↑3||Speech by Prime Minister Lee Hsien Loong at the launch of the Singapore Bicentennial on 28 January 2019.|
|↑4||Andrew Phang, Goh Yihan, and Jerrold Soh, “The Development of Singapore Law: A Bicentennial Retrospective” (2020), Singapore Academy of Law Journal, 1-87.|
|↑5||Leong Wai Kum: Family Law in Singapore: Cases and Commentary on the Women’s Charter and Family Law (Singapore: Family Law Journal, 1990) at pp 9-10, 15-16.|
|↑6||(1885) 10 PD 80.|
|↑7||Charles Dickens, Oliver Twist (Duke Classics, 2012), Chapter LI at p 669.|
|↑8||Supra note 3.|
|↑9||HistorySG, “Syariah Court is established – 24 November 1958”, online: <https://eresources.nlb.gov.sg/history/events/1dfc64cf-8977-4c3d-9130-1a44ab1241c4#1>|
|↑10||“Muslim Divorce Rate High – Advisory Board Worried, Will Make Full Probe”, The Straits Times, 25 November 1952 at p 3.|
|↑11||Supra, note 9.|
|↑12||No. 81 of 1960.|
|↑13||Singapore, Legislative Assembly Debates, vol. 12, no. 1 at col. 480 (6 April 1960).|
|↑14||Ibid at col. 443.|
|↑15||Ibid at col. 481.|
|↑16||TPY v DZI (1997) 1 SLR(R) 843 at (12)-(14).|
|↑17||“Husbands happier if wife-stealing law stays”, The Straits Times, 18 July 1997 at p 55.|
|↑18||Marital rape immunity was repealed completely through the Criminal Law Reform Act in 2019. The Penal Code (Amendment) Act 2007 had earlier introduced exceptions to laws that provided blanket immunity to husbands who had non-consensual sexual intercourse with their wives.|
|↑19||Speech by the Prime Minister, Mr. Lee Kuan Yew, at the NTUC’s International Women’s Year Seminar cum Exhibition at the DBS Auditorium (1 September 1975).|
|↑20||The closing session of the Conversations on Singapore Women’s Development was held virtually on 18 September 2021.|
|↑21||Act 27 of 1966.|
|↑22||The Straits Settlements Mahomedan Marriage Ordinance was enacted in 1880 and was the earliest statute in Muslim law in Singapore. The Ordinance was a formal recognition of the status of Muslim personal law within the colony. The Ordinance provided for the registration of Muslim marriages and divorces. The Governor of Singapore was also expressly empowered to appoint kathis or kadis (or Islamic judges) to facilitate the administration of Islam.|
|↑23||The Family Justice Courts and the Ministry of Law commissioned Forbes Research Pte Ltd to conduct a survey to obtain feedback from court users in order to further improve the services of the courts. Data was collected from 11 December 2018 until 1 March 2019. 1,037 respondents were surveyed.|
|↑24||Coverture refers to the common law doctrine that a wife had no separate legal identity during a marriage. Her person and her property came under her husband’s control.|
|↑25||“Wife beating tragedy”, The Singapore Free Press and Mercantile Advertiser, 26 November 1929 at p 5.|
|↑26||The laws were strengthened in a number of ways through the Women’s Charter (Amendment) Bill 1996. For example, the former provisions only protected either the spouse or a child of the family. The new provisions included other members of the family such as a person’s father, mother, siblings, or in-laws. The range of persons allowed to apply for protection orders was also expanded. The type of harm from which a family member was protected was expanded to include wrongful confinement and continual harassment. The courts were also empowered to make protection orders which could exclude a person from a shared residence. The courts were also given powers to make counselling orders.|
|↑27||Population in Brief 2020. Retrieved from https://www.strategygroup.gov.sg/files/media-centre/publications/population-in-brief-2020.pdf|
|↑28||Population White Paper: “A Sustainable Population for a Dynamic Singapore”. Retrieved from https://www.strategygroup.gov.sg/media-centre/population-white-paper-a-sustainable-population-for-a-dynamic-singapore.|
|↑29||Chan Wing-Cheong, “The Duty to Support an Aged Parent in Singapore”, 13 Pac. Rim L & Pol’y J. 547 (2004).|
|↑30||“1 in 4 Singaporeans marrying non-residents, increasing proportion involves non-resident men”, Channel NewsAsia (22 April 2021) online: <https://www.channelnewsasia.com/singapore/singapore-citizen-marry-foreign-spouse-non-resident-236371>|
|↑31||Lochner v New York 198 U.S. 45 (1905) per Justice Oliver Wendell Holmes, Jr.|
|↑32||Leo Tolstoy, Anna Karenina (Barnes & Nobles Classics, 2013). The opening lines of the novel read: “Happy families are all alike; every unhappy family is unhappy in its own way.”|
|↑33||One example is ACB v Thomson Medical Pte Ltd and Others (2017) SGCA 20 involved an issue on whether the expenses which arise in relation to the unplanned birth of a healthy child who was born as a result of medical negligence is a compensable head of damage. The Court of Appeal agreed with the High Court that the recognition of a claim for upkeep costs would be against public policy. This is because the Court would have to regard, as actionable damage, the incidents of the parent-child relationship. This relationship is socially foundational and incapable of estimation as loss. The Court of Appeal also held that such recognition would be inconsistent and deleterious to the health of the institution of parenthood and against public interest.Another example is UKM v Attorney-General (2018) SGHCF 18. This case involved a gay man who was in a long-term relationship with his partner. They desired a child but had been advised that they would not be able to adopt a child in Singapore because of their sexual orientation. The couple travelled to the US and engaged the services of a surrogate mother. The man’s sperm and the egg of an anonymous donor were used in the procedure. The child was brought to Singapore by the man and his partner. The man applied to adopt the child under the Adoption of Children Act (Cap 4, 2012 Rev Ed) so that the child could stay in Singapore permanently. The court had to determine whether the application to adopt the child should be granted, after weighing public policy considerations and the principle of the welfare of the child.|
|↑34||Ministry of Social and Family Development, “Consultation Paper: How to better support children and divorcees, and reduce acrimony in divorce”, online: < https://www.msf.gov.sg/publications/Pages/Consultation-Paper-Better-Support-Children-and-Divorcees-and-Reduce-Acrimony-in-Divorce.aspx>|
|↑35||“No-fault divorce may benefit couples and children with safeguards in place, say experts”, Channel NewsAsia, (23 May 2021) online: The Straits Times <https://www.channelnewsasia.com/singapore/no-fault-divorce-benefits-safeguards-experts-msf-1395241|
|↑36||“Forum: ‘No-fault’ divorce threatens fabric of families, exposes children to vulnerabilities”, The Straits Times (15 July 2020), online: The Straits Times <https://www.straitstimes.com/forum/no-fault-divorce-threatens-fabric-of-families-exposes-children-to-vulnerabilities>|