Q&A with lawyers: What women should know before seeking a divorce
By Clara How,Hoe I Yune, Jul 22, 2021
Most people don’t have much understanding about what divorce entails prior to actually needing the information. Family lawyers tell us that many clients who come to them say that they never thought that this day would come. But the reality is that we should be prepared, at least mentally and financially, for the possibility that a marriage can fail.
As divorce rates creep up, it is important that we know our rights and can help ourselves, as well as our children (if any), in the event of it happening to us. Divorces can be short and simple procedures lasting between three to six months or they could drag on beyond a year, depending on the nature of the dispute.
There’s no doubt that divorce is a difficult and emotionally draining process, but no matter the circumstances, we can stay informed to reduce stress and uncertainty before divorce. When handled well, divorce can be fair and equitable, as well as a healthy new beginning from everyone involved.
To help us, we speak with lawyers to clarify common misconceptions. We speak with Eden Law managing director June Lim, Harry Elias Partnership LLP partner Carrie Gill, Sterling Law Corporation partner Tan Siew Kim, and United Women Singapore Programmes & Outreach senior associate Aishah Winter.
When it comes to the division of assets, what assumptions have people made about getting divorced?
June: A common misconception is that the division of assets is divided equally, or that if your spouse commits adultery, you will receive more money.
That’s not the case at all — the court looks at a whole host of factors to determine a percentage, such as the length of the marriage, the number of children, and the roles that each party played during the marriage. The reasons for the divorce, be it adultery or something else, also has no impact on the division of assets.
Carrie: Rather than focus on faults, the Singapore system looks at what both parties contribute to the marriage. These can be broken down into direct financial, indirect financial and non-financial contributions.
Direct financial contributions would refer to how much you contributed towards the acquisition of an asset, including how much money that you put into your bank account, how much you paid for your property’s down payment, mortgage installments, and so on. Indirect financial contributions would be things like school fees for children, groceries for the household, and other day-to-day expenses as a family. Indirect non-financial contributions would refer to the effort you made in your marriage — from cooking, cleaning and child raising. When it comes to indirect non-financial contributions, you can’t really calculate down to the cent so the court takes a broad brush approach to get a sense of things.
Siew Kim: To prove indirect contribution, if there are older children involved, they could step up and say who’s been paying for their education, planning play dates and sending them to classes. But if not, you could always prove your contribution through correspondence — email liaising with tuition centres and such.
Can inheritance and gifts become marital assets?
Carrie: Generally any asset acquired during the marriage is a matrimonial asset, except in limited circumstances. For instance, if you have a property in your name acquired prior to marriage, but you both live in it during marriage, then it becomes a marital asset. If your parents give you a car before marriage and you’re the only one using it then it’s not considered a marital asset. But if it’s used as a family car with your spouse, then it becomes a matrimonial asset.
Gifts from your spouse are matrimonial assets. For instance, let’s say your husband gives you money for your birthday, but you don’t finish using it and it remains in your bank account. Then in the event of a divorce, it is not considered completely yours but a matrimonial asset up for division.
Siew Kim: An inherited piece of property can be deemed a marital home upon divorce if parties move into it and live in it as a marital home with children. And if the spouse pays towards the mortgage upkeep and renovations. To prevent property from becoming a matrimonial asset, rent it out and keep the rental income in a separate personal account.
Is there a point in getting a prenup to protect one’s financial assets, if it’s not binding in Singapore courts?
Carrie: Prenups might not be binding but they’re highly persuasive. This means that the court will take the terms into consideration when deciding how to divide the assets. In most cases, if a prenup is done before marriage and you get divorced shortly after marriage, the chances of the prenup being upheld are high. This is unlike if the prenup was done many years ago and you have a few children afterwards — chances of the prenup being upheld would be lower because the prenup would likely not have factored in all these newfound circumstances.
One reason why I always recommend prenups is it quite clearly defines what your premarital assets are — how much money you each have and what your assets are. So that helps safeguard some personal assets from becoming matrimonial assets — even if a little money is intermingled.
It’s important to know what assets your spouse has before marriage, because when it comes to divorce proceedings, asset disclosure is voluntary to a large extent. Parties could hide assets and if you don’t know what your spouse has, then you’ll be in a weaker position. If you’ve seen a credit card from a particular bank that your spouse did not declare, then you can swear it on an affidavit and we can get orders for your spouse to write to the bank to determine if they have had any such account in the recent past.
You don’t need to know exactly how much money he has in which bank account, but at the very least, know which financial institutions he has assets in. Then we can go through the discovery process.
Siew Kim: You can’t update a prenup after marriage, so the key thing to do after marriage is to not mingle your funds. Whatever you outlined in the prenup, you keep in a separate account. Then be very clear about shared contribution going forward — have a paper trail of joint mortgages and other money matters. Leaving a paper trail is useful even in events where you don’t have a prenup.
These days, are wives still entitled to spousal maintenance after divorce?
June: A lot of women believe that they are protected by the Women’s Charter (a key piece of legislation that was first passed in 1961 and continues to govern women’s rights) when it comes to asking for maintenance. It is true to a certain extent, since wives are entitled to claim spousal maintenance from their husbands but only incapacitated husbands can apply for maintenance against their ex-wives. There is however a difference between entitlement and whether the court ultimately awards spousal maintenance to ex-wives, which will depend on a number of factors.
The reality is that most working women in Singapore do not receive maintenance after divorce. Generally, if you are working and can cover your own expenses, the court does not award you maintenance as there is no necessity for you to receive financial support from your ex-husband.
Even if you’re currently a housewife, there isn’t necessarily the assumption that you will be a housewife forever, because the court will expect you to go back to work. Maybe there will be maintenance for a few months to a year to help someone get back on their feet, but the court expects women who are able-bodied to support themselves. As society makes progress on gender equality, the courts do the same.
If there are children involved, how will the court decide on custody, care and control?
Siew Kim: A lot of women think just because they give birth to the child, that means they’ll get sole custody and care and control. That isn’t the case. Nowadays there are very involved fathers, so if the man does a very good job ferrying kids to and fro classes and helps them with their homework, he stands a very good chance of getting joint custody and joint care and control.
The primary deciding factor is what’s in the best interest of the child. If one’s less financially capable but more involved in parenting duties, it’s not a disadvantage. Financial support can be balanced out through the other party providing maintenance for the child. Maintenance for the child should not be confused with spousal maintenance.
How has the pandemic affected divorce proceedings? Is it typical to experience delays?
June: Aside from the Circuit Breaker period, once the courts reopened in June 2020, it has been all systems go. The majority of cases are settled by the end of the mediation, which is approximately six months. If there are delays, this is usually not related to the pandemic and there are factors specific to the family.
The pandemic has affected proceedings in terms of access, and when and where each parent would be able to see their children. For example, some access orders state that a parent can only see their child at a public location. When dining out was no longer possible, these families would be impacted. Having movements restricted only adds to the distress.
If no agreement can be reached between the parents, they can take the dispute back to court. But what is more typical is that they work through it on their own, which is also what the court is advocating for.
Another aspect that has resulted from the pandemic is that of maintenance. With many people having to undergo pay cuts or even losing their jobs, it affects the amount of maintenance that they pay their spouse or their children.
Divorce is a taxing process. What avenues of support should people seek out?
June: A lot of people who go through matrimonial disputes go through psychological trauma, and they (and their children) should be walking through this divorce with a counsellor to process their own feelings. While lawyers may revisit certain events with you, it’s purely for the needs of the legal case. We are not in the position to offer emotional advice, because we are not trained to do so.
As for legal support for those who are unable to afford legal fees, there are legal clinics all over the country where people can go for advice. For Singaporeans, they can go to the Legal Aid Bureau, and pay a small contribution that is based on their means. There is also the Family Justice Support Scheme, which assists individuals who do not qualify for Legal Aid for reasons such as their citizenship status.
Aishah: First things first, address your emotions. Seek professional help through counselling or therapy so that you are able to accept the end of your marriage and envision a brighter future ahead. Divorce can be expensive and lengthy so you will need to have your own money or resources for legal costs and other expenses. Even if you have been dependent on your spouse for yourself and your children, consider the possibility of your spouse ending financial support. And do your research before appointing a legal representative.
Siew Kim: I’ve heard from clients how beneficial support groups can be and I think it’s a great idea. Whether organised by religious groups or secular organisations, I think support groups can be a great resource and community for individuals going through a divorce. It’s an opportunity to meet others in the same boat.
Thank you for your time. Is there anything else about divorce that you believe someone should know?
Carrie: The government is currently studying the option to allow couples seeking divorce to file for “amicable divorce”. This would take away the blame game, which commonly arises in divorces now, so I think it’s a great thing.
When a divorce takes place, it’s not unthinkable that there would be a negative impact on the parties involved. But the objective should be to diminish that harm caused. With kids especially, children tend to get overlooked when parents are fighting over money matters, and we need to ensure that the primary focus is on their well being instead.
Photo by Ivan Samkov from Pexels.
While there is no one-size-fits-all approach and precise judgment would differ based on individual circumstances, it helps to be equipped with information, guidance and support when planning for a divorce. Should you be on the lookout for resources, we’ve compiled a few below:
For legal aid, you may reach the SMU Pro Bono Centre Legal Clinic at +65-6828-1951 or email them at firstname.lastname@example.org. Otherwise, reach the Community Legal Clinic by The Law Society of Singapore at +65-6536-0650 or email them at email@example.com. Organisations such as gender equality advocacy group Association of Women for Action and Research (AWARE) runs a legal clinic and divorce support groups. Daughters Of Tomorrow (DOT) is a charity that supports women seeking to improve their skills and strengths, and explore possibilities. The National Anti-Violence helpline is 1800-777-000.
You can find us at @i_yune and @clarahow on the Dayre app. @i_yune has been writing about discussing money matters with her boyfriend and progressing through the relationship stages — searching for a home together, talking about the point of proposals, and wondering whether or not engagement rings are overrated. @clarahow ponders about the question of financial compatibility, and navigating the social stigmas about dating someone younger. She concludes that, like most things, it comes down to communication.
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