Adoption in Singapore

The process of adoption means beginning a new legal relationship between a child and its adoptive (non-biological) parents. This may have serious consequences for all involved, and it severs the legal relationship that existed between the child and their biological parents. The adopting parents now assume all rights and responsibilities over the child.

The only legal way to do this in Singapore is through the Family Justice Courts, due to the complexity of the process. If you need advice on this subject, please contact our adoption lawyers for an initial, free of charge consultation.

The legal acts which regulate adoption in Singapore are:

  • The Family Justice Act 2014
  • The Family Justice Court Rules
  • The Adoption of Children Act 1939
  • Practice directions.

Adoption—The Legal Process

The child’s circumstances dictate which process will be used. For example, whether the child is Singaporean, a foreign child, or from the People’s Republic of China, for which there are additional requirements.

Pre-adoption briefing

The first step is to register for a meeting with the Ministry of Social and Family Development (MSF), who appoint an accredited agent to meet with prospective parents. The purpose of this mandatory pre-adoption briefing is to explain the process, the rights and responsibilities of adoptive parents, post-adoptive services, and how to talk to the child about the adoption. Anyone adopting a stepchild or relative must also go through this same process.

Home Study Report

A Home Study Report is necessary for anyone wanting to adopt a foreign child, or a child in the care of the MSF. The purpose is to verify that you are a suitable parent to adopt and raise a child. Each report is valid for one adoption and lasts two years, during which time you may find a child to adopt.

If the adopted child is a stepchild or relative, a home investigation may be ordered by the court, rather than a Home Study Report.

Finding a child to adopt

Once you have attended the briefing, and obtained the Home Study Report (if necessary), you can then begin to look for a child to adopt. You may wish to use the MSF Fostering Scheme, or alternatively you can ask family and friends to help you. However, if you wish to adopt a child from China, you cannot find the child yourself; instead, you must ask the China Centre for Children’s Welfare and Adoption (CCCWA) and they will identify a child, and notify you when the child is available.

Obtain consent from the child’s birth parents or guardians

The next step once a child has been identified is to get the notarised consent of the child’s birth parents or legal guardian. This means they give up all their duties, rights and obligations to the child, once the adoption order is given.

Where the legal guardian or birth parents do not exist, you must instead get consent from:

  • Whoever has custody of the child
  • Whoever is legally liable to support the child
  • The parents/guardians of the birth parents, in cases where the birth parents are younger than 21 years old.

In cases where none of these people can give consent, you can apply to the Family Court to remove the need for consent.

Obtain the child’s ID documents

If the child is a permanent Singapore resident, you need to get their passport and birth certificate.

Dependant’s Pass

When adopting a foreign child, you will need a Dependant’s Pass in order to bring them to Singapore. It allows the child to remain in Singapore until the completion of the adoption process. To get this pass, you need the child’s ID documents and the notarised consent mentioned above.

Sometimes the adoptive parents are required to go to the child’s home country and comply with that country’s requirements before the MSF will issue a Dependant’s Pass. But once issued, you can then apply to the Family Court to adopt.

Applying to the Family Court

When filing an adoption application, you must submit the following documents:

  • Originating Summons for Adoption
  • Adoption Statement
  • Consent to adoption and dispensation of services
  • Supporting affidavits

The Registrar, once these documents are filed, then sets a hearing date to address preliminary issues.

Guardian-in-Adoption (GIA)

A temporary legal guardian will be appointed by the court at the first hearing, to look after the child’s interests in court, as set out in section 10(3) of the Adoption of Children Act. There may also be more background checks and interviews at this stage. It is the role of the GIA to carry out home visits and do everything needed to produce a complete report for the court. The GIA must have the full co-operation and attendance of the adoptive parents throughout.

Court hearing

The court has power to summon any witness, including biological parents, to attend the hearing. The adoptive parents (or their lawyer) must also attend. The court will consider all reports and affidavits, and will have the child’s best interests and welfare as their priorities at all times.

Possible outcomes

  • A conditional order is granted: the adoption can proceed, but with specific terms and conditions attached.
  • An unconditional order is granted: the court believes it to be in the best interests of the child.
  • The proceedings are adjourned, pending further evidence.
  • An interim order is issued, which delays the granting of the final order. The adoptive parents are given temporary custody of the child for no longer than 2 years. In effect, this acts like a probationary period before a final order is given. The GIA continues to be the child’s legal guardian during the interim period.
  • The application is dismissed: the court does not think the adoption order is in the child’s best interests.

Collecting the new birth certificate

The Immigration and Checkpoints Authority (ICA) send an adopted child a new birth certificate. For children adopted from overseas, parents must apply to the ICA to obtain citizenship for the child, as it is not automatically granted in the adoption process.

Cost of adoption

It is illegal under section 11 of the Adoption of Children Act to make or receive and payment for adoption, unless the court has sanctioned it. A court may allow the following payment scenarios:

  • Payment of hospital bills or other medical fees
  • Travel costs
  • Lodging and food costs for the child and its birth mother
  • Other costs to reimburse the biological mother.

There are many fees involved in the process, such as professional agency fees, travel documents, birth certificates, admin costs and fees to notarise documents.

You must disclose any payments made during the process to the court, providing the original proof of payment. The court will only make the adoption legal if it is satisfied that the payment to the birth parent came under section 5(c) of the Act.

Our fees are transparent, clear and fixed

  • With consent: $2,900
  • Without consent: $3,900

We are happy to discuss your circumstances – please contact us.

How long does adoption take?

The length of an adoption process depends on the circumstances of each case. When the adopted child is from overseas it will take longer, because the adoptive parents must satisfy that country’s requirements before also satisfying those of Singapore. The process of getting a Dependant’s Pass, and Home Study Report and the other procedures all take time.

If the adoption is contested, it will take even longer.

Who can adopt in Singapore?

Under section 4 of the Adoption of Children Act, the following criteria are set out:

  • Applicants must be aged 25 years or older
  • The age gap between child and applicant must be at least 21 years
  • If two people apply, they must both be aged 25 or above unless circumstances are exceptional
  • A girl may not be adopted by a single male unless exceptional circumstances apply
  • A married person must have the consent of their spouse if they wish to adopt alone
  • Applicants must be residents of Singapore, or have a pass that gives them resident status, as judged by the Family Court.

The court may grant an adoption in certain exceptional circumstances, for example if the child is a relative of the applicant, or the applicant is younger than 25 years old, or there is an age gap less than 21 years between child and applicant.

Children eligible for adoption are protected by law in Singapore, in order to safeguard their welfare and discourage scams. However, these protections can complicate matters.

Anyone considering adopting a child should speak to family lawyers with experience in adoption. Follow all procedures and prepare all necessary documents – this will ensure you don’t waste your time, or that of the court. Then your adoption will be as smooth and quick as possible.

Child Custody, Care & Control and Access

The overriding priority when deciding on the custody, care and control of children, is the welfare of the child. This is reflected in section 125(2) of the Women’s Charter. It is common for issues around custody and care of children to be contentious issues in divorce cases.

Divorces are often sensitive matters, so the Singapore Family Justice Court will rule on these cases based on what outcome is best for the child; they will consider many factors. The child’s interests are always more important than the wishes of the parents.

Anyone getting divorced should learn their rights as a parent and what factors the court will look at when granting custody, care and control orders in Singapore.

The court will rule on three main areas of rights and responsibilities:

  • Child custody
  • Care and control of the children
  • Access to the children.

Child welfare orders and the law

Child custody is governed by three statues in Singapore, and the law applies to everyone in the country, regardless of religious belief:

  1. The Guardianship of Infants Act
  2. The Women’s Charter (which gives the definition of a ‘child’ of a marriage as a person under the age of 21 years old)
  3. The Administration of Muslim Law Act

Custody vs care and control – what’s the difference?

Custody of a child means the right to make significant decisions which affect the child’s welfare. These might include issues around education, healthcare or religion. One parent may be given custody, or it may be given jointly to both parents.

Care and control, on the other hand, means making decisions relating to the child’s day-to-day life and activities. Usually only one parent is given care and control. The parent who has care and control of the child is the parent the child will live with; the other parent is granted access instead.

Custody orders

There are 4 main types to be aware of:

Joint custody

This is the most common order in Singapore, and is where both parents are granted custody, so they both get to make major decisions on the child’s behalf. Courts in Singapore encourage co-parenting like this, and recognise the benefits to the child where both parents manage their upbringing, in terms of the child’s character and development.

Where parents are able to agree on decisions between themselves, courts will grant joint custody. It allows both parents an equal say in their child’s upbringing, even where only one of them has care and control of the child.

Custody orders are designed to encourage both parents to take responsibility for bringing up their child, as well as ruling on which parent has the right to make decisions. Marriages may end, but the responsibilities of parenthood do not end.

Sole custody

A parent who is granted sole custody makes all major decisions about the child’s life. It is often used in acrimonious divorces where communication is difficult and where the lack of co-operation has a harmful effect on the child in joint custody situations. Poor co-operation may risk major events in the child being disrupted or delayed.

Sole custody is often used where other resolution avenues have been exhausted (like counselling or mediation).

The parent given sole custody therefore has the exclusive right to make decisions on behalf of the child regarding their welfare and upbringing.

Other scenarios where sole custody is given include when one parent is abusive, or it is agreed with the other parent. However, sole custody orders are not common.

Split custody

These orders are for cases involving siblings. Under split custody arrangements, one parent gets custody of child A, and the other gets custody of child B. However, these orders are unusual since the courts try to avoid separating siblings. They will only do it if it is truly in the best interests of the child.

Hybrid orders

Under a hybrid order, one parent gets custody of the child, but on the condition that they include the other parent in certain decisions, for example where they go to school, relocation issues, or their religious upbringing.

If I don’t have custody, can I still take my child abroad?

Yes, but you either need the consent of the other parent, or of the court, to do so, and the trip may not last for more than a month.

How the court decides who gets custody

The court takes into account what it thinks is in the best interests of the child. It uses so-called ‘welfare principles’ to do this, which help them decide who gets custody and what sort of order they will be granted.

The court takes into many things, not just financial considerations or physical factors:

  • The relationship the child has with each parent
  • The child’s current living arrangements
  • The moral, physical and religious welfare of the child
  • The child’s main caregiver during their early years
  • The wishes of the child (if they are old enough)
  • The parent’s wishes
  • The financial stability of the parents
  • Any additional family support that may be present.

Sometimes, to help them make a decision, the court will request a Custody Evaluation Report, from counsellors and social services. This is an assessment of the child’s circumstances and those of the parents. It may also look at how the child interacts with its parents. It’s a confidential report, and is only for the purposes of helping the judge make their ruling.

Section 130 of the Women’s Charter gives the court power to use these reports in making their decision, but does not bind the court to taking the advice into consideration.

The desires of the parents are not the main concern of the court. Neither will it matter if one parent has better education or more wealth than the other, nor is Singapore citizenship a guarantee of custody for one parent or the other. Rather, the child’s best interests are the court’s paramount concern when making custody orders.

Care and control orders

The parent who is given care and control and with whom the child will live is granted this through a care and control order. The parent given the order becomes the primary caregiver and takes charge of the everyday activity of the child, such as transport to school, extra-curricular activities, meals, playdates, bedtime, and so on.

Sometimes the court includes a ‘penal notice’ in the order, so that if specific terms or duties are not followed by the parent, they are penalised (unless they have reasonable justification for not complying). If the parent who has not been granted care and control has concerns about not getting access to their child, they can ask the court to attach a penal notice to the order.

Who will get care and control of the child?

Most often, the mother will be given care and control of the child, as they are usually the primary caregivers. It can be hard for fathers to change this, however in some cases the Family Justice Court will give it to the father, if:

  • The child is old enough to say that they want to live with the father
  • The mother agrees to give care and control to the father
  • A court-appointed counsellor gives a recommendation to that effect
  • There is a history of neglect or abuse by the mother.

Shared control is sometimes requested by the parents, so that they share equally the amount of time they have with the child. A court will only grant such an order if they think it would be in the best interests of the child and that the arrangements would be practicable. The father would also have to prove he was the primary caregiver prior to the divorce.

Shared care and control orders won’t usually be given if the child is still in school, or there was an acrimonious divorce, or the parents have sharply contrasting parenting styles.

Despite all this, it is possible for a father to be given care and control of their child(ren).

Access orders

The court acknowledges that spending time with both parents is in the best interests of the child and their welfare. Therefore the court will usually grant an access order to the parent who is not given care and control.

However, the law doesn’t go as far as to dictate the amount of time the child must spend with the non-custodial parent. The amount of access time is simply described as ‘fair and reasonable’ by the Women’s Charter. The court will decide what this definition means in practice, according to the circumstances of each case.

Factors the court considers in deciding type and quantum of access

All relevant information is taken into account by the court, such as:

  • The preference of the child
  • The welfare and wellbeing of the child
  • The child’s needs
  • The amount of time the child previously spent with the non-custodial parent
  • The relationship that the child had with the non-custodial parent
  • Practical arrangements.

The court will always aim to establish mutually agreeable arrangements that serve the best interests of the children.

Specific orders for certain days or times may be given, for example at Christmas, on birthdays, for overseas holidays or school and public holidays.

Unless there are good reasons, access is normally unsupervised. If the court thinks the child is at risk from emotional or physical harm, they will order supervised access.

If there are disagreements between parents as to access, the court may ask for an Access Evaluation Report to be done. It may consider questions such as how long access should be for, and whether it should be supervised. But ultimately, the access order will be based on the best interests of the child and their welfare.

Conditions on child welfare order

The court may include conditions when they make a custody or care and control order, under section 126 of the Women’s Charter.

The conditions might be about:

  • Where the child lives
  • Any visits the child makes to the other parent, or family of a deceased parent
  • Whether the child can be taken abroad
  • The religion they are brought up in.

You should consult a divorce lawyer as soon as possible if you are divorcing and are concerned about your child’s welfare. They will help you understand both your rights and your responsibilities when it comes to your child.

Annulment of Marriage

Annulment of a marriage is different to a divorce. When a marriage is annulled, the annulment in effect says that the marriage was never legally valid. The parties’ marital status reverts to ‘single’, as if they were never married at all.

Divorce, however, whilst it also ends a marriage, is different. A divorce ends a marriage that had been legally valid before the order for divorce was granted. This is in contrast to an annulment which declares that the marriage never had legal validity. As a result, for the purposes of an annulment, there is nothing to be terminated.

During divorce proceedings, parties must show that their marriage—which was legally valid—has broken down irretrievably, and apply for a divorce order.

During annulment proceedings, parties have to demonstrate that the marriage was not valid or legal right from the outset.

Make sure you know the two categories of marriage that form grounds for annulment. They are: void, and voidable marriages.

Annulling a marriage in Singapore

Chapter 3 of the Women’s Charter governs the annulment of marriages. The grounds which make a marriage void or voidable are laid out in section 105 and 106.

A void marriage is classed as not valid right from the beginning, even if they are not officially annulled. But your marital status will remain as ‘married’ until a court declares it null. In the eyes of the law, a void marriage never existed, however most couples will ask for an official ruling of nullity from the Family Justice Court.

Until they are voided, voidable marriages do exist. They only dissolve upon a decree of nullity. They will endure until one party seeks this decree.

Requirements for Annulment

There are strict requirements in order to annul a marriage in Singapore, because doing so can have serious consequences. The exact criteria will vary, depending on whether a marriage is void or voidable.

When a marriage is void

Section 104 provides that a party to a void marriage can ask the court to issue a judgement of nullity, showing the marriage is null and void. An applicant has to show that the marriage didn’t meet the requirements for a valid marriage, if they want to prove the marriage is invalid.

The grounds on which a marriage may be voided are laid out in section 105.

For marriages after 1st June 1981, the marriage is void if one of the following applies, according to section 105(a):

  • The marriage is between Muslims registered/solemnised under the Women’s Charter, rather than Muslim law (section 3(4))
  • It is a polygamous marriage as referenced in sec 4 (for marriages on or before 15 Sept 1961) – section 5
  • One of the spouses was below 18 years of age at solemnisation, and the marriage wasn’t authorised by a special license of marriage given by a Minister under sec 21 of the Women’s Charter – section 9
  • The parties fall within prohibited degrees of relationship, for example relatives, as stated in the 1st schedule of the Women’s Charter – section 10
  • One of the parties was already married to someone else under any law, custom or religion, or usage – section 11
  • The parties are of the same gender – section 12
  • The solemnisation failed to comply with the requirements of Singapore law – section 22

Section 105(aa):

A marriage of convenience only and therefore an invalid marriage, under section 11A. Where one party obtains an advantage to immigration, or a gratification as a reward or inducement to be a part of the marriage.

Section 105(b):

The marriage was not celebrated in Singapore, and is invalid because of:

  • The law of the place it was celebrated, or
  • Lack of capacity

When is a marriage voidable?

Voidable marriages are legally valid until a party applies for a judgement of nullity, unlike the situation in a void marriage.

Under section 106, if a marriage took place after 1 June 1981 then it is voidable if:

  • The marriage hasn’t been consummated due to either party being unable to do so – section 106(a)
  • The marriage hasn’t been consummated due to the defendant being unwilling to do so – section 106(b)
  • Either of the parties did not consent to the marriage because of mistake, duress, mental disorder or otherwise – section 106(c)
  • When the marriage happened, either party was capable of giving valid consent but was suffering from a mental disorder and was therefore unfit for marriage, according to the meaning of the Mental Health (Care and Treatment) Act 2008 – section 106(d)
  • The defendant was suffering from a transmissible form of a venereal disease, at the time of marriage – section 106(e)
  • The defendant was pregnant by someone other than the plaintiff at the time of marriage – section 106(f)

Annulment application process

Either spouse may file a writ asking for a judgment of nullity, according to section 104. The following documents must be included:

  • Statement of claim – this sets out the grounds you’re relying on for annulment;
  • Statement of particulars – this should explain the facts you intent to rely on;
  • An agreed or proposed parenting plan, if children are involved;
  • A matrimonial property plan with your proposed arrangements for your HDB flat, if you have one. (If you have not fulfilled the minimum occupation period, you may have to surrender the HDB flat).

An annulment will usually be a two-step process. The court may grant an interim judgement if it is satisfied with the grounds for annulment.

Following this, ancillary matters must be settled (such as maintenance, division of property and custody of any children). When the court is satisfied with the property arrangements and the children’s welfare, they may then grant a judgement of nullity.

The process will usually take 4-6 months for uncontested annulments, but it may take much longer if one spouse contests the application.

Annulment application time limit

There is no time limit to apply for a declaration of nullity if the marriage is void.

However, if you are seeking an annulment of a voidable marriage, you should apply within three years. But no time limit will apply if you are alleging that the marriage has not been consummated because the defendant refused, or either party was incapable. You can then apply for an annulment regardless of the length of the marriage.

Children born to a void or voidable marriage

In voidable marriages, children born within the marriage are considered legitimate.

In void marriages, children born are also considered to be legitimate as long as the parties believed that the marriage was valid at the time it occurred.

Can a court refuse to annul a marriage?

You’ll need sufficient evidence to show your marriage is void or voidable in order to annul your marriage. However, even if you allege this and prove it, a court may still refuse to grant the annulment you request, if:

  • The plaintiff knew they could annul the marriage but acted in a manner that caused the defendant to reasonably believe the plaintiff would not do so; or
  • It would be unjust to the defendant for an annulment to be granted

Under section 106(e) or (f), the court will not grant a judgment of nullity if, at the time of marriage:

  • The plaintiff knew the defendant was suffering from a transmissible venereal disease; or
  • The plaintiff knew the defendant was pregnant by another person

Denial of annulment of application

In this scenario, you may apply for a divorce, if you have been married for more than three years.

If you have not been married for more than three years, you could choose to separate until three years of marriage has elapsed and then apply to divorce.

If you can prove that you are suffering exceptional hardship, or the defendant is guilty of exceptional depravity, then you may apply for divorce prior to three years elapsing.

Do not assume that annulment is a fast alternative to a divorce. It involves strict requirements, and can involve complex or confusing criteria. You should speak to a lawyer if you think your marriage is void or voidable, and fully understand the options available to you. The lawyer can help you interpret the law and follow due process so that you successfully obtain a judgment or declaration of nullity.

HDB Considerations in Divorce

The consequences for an HDB flat in the event of a divorce depend on several things. The first matter to consider is whether you and your spouse agree on what should happen to the flat. If not, a court will decide. In this article, we explore some different scenarios and what the courts will take into account, where there is no spousal agreement.

As HDB flats are often part of matrimonial assets in Singapore, couples understandably have many questions about this matter. For example:

  • Must I sell the flat?
  • Is one partner able to keep it?
  • How should proceeds of any sale be split?

If there is agreement between parties as to what happens to an HDB flat

Where both parties agree, they can record the terms that they have agreed on. These terms will be confirmed by the court in a consent order, which is ‘sealed’ by the court and is therefore legally binding on both spouses. This is the least stressful and easiest solution.

Parties have the choice of whether to sell the flat or transfer the shares to one of the parties (as long as that person is eligible to be an HDB flat owner). HDB will need to approve the agreement also.

Agreeing to the flat sale

The parties should sell the flat on the open market, with proceeds being split in pre-agreed amounts. When an HDB flat is sold after a divorce, CPF refunds should be arranged.

Transferring shares to the other spouse

Where one or both spouses is eligible to take ownership of the flat, they may transfer ownership of it with or without cash transfers. In a scenario where there is a mortgage on the HDB property, the loan must be refinanced by the party taking over ownership.

Transferring shares from one spouse to another has many benefits. For example, it can be less disruptive for any children involved, if the spouse who has care and control of them gets to keep the flat. It also means parties can agree terms for the CPF refunds.

If there is no agreement between parties as to what happens to an HDB flat

In the event that the spouses can’t agree on what should happen to the flat, an ancillary hearing must be held so the court can decide what should happen.

The first matter to be decided is whether the flat forms part of the matrimonial property that can be split up when a divorce happens.

Is an HDB flat matrimonial property?

An HDB flat is likely to be classed as matrimonial property, however a spouse cannot automatically regard it as such, simply because they are married; the flat must be classed as matrimonial property for the purposes of the Women’s Charter.

Matrimonial property is defined in section 112 of the Women’s Charter as an asset that is acquired by one or both parties in the course of a marriage.

Matrimonial property can also include assets acquired prior to marriage, provided that:

  • Both parties (or one or more of their children) ordinarily used or enjoyed the asset, whilst cohabiting for the purposes of household, shelter, social purposes or recreation; or
  • One or both parties substantially improved the asset during the marriage.

Where an HDB flat is gifted or inherited by a party before marriage, it will not be classed as matrimonial property. However, the matrimonial asset pool can include the flat if:

  • The flat had become the marital home; or
  • One or both parties had substantially improved it during the marriage.

The circumstances of the case will dictate whether the flat was ordinarily used as the marital home. For instance, if the parties resided only occasionally in the flat which was inherited by one of them, the court is unlikely to define it as matrimonial property. But if the parties lived there for a significant time period as a family in marriage, the court is more likely to say the flat falls within the matrimonial pool.

Where a flat doesn’t fall in this marital asset pool, it will not get divided between the parties.

How will a court divide an HDB flat between parties if it classed as a matrimonial asset?

The court has two options; either it will order that the parties sell the flat with proceeds divided between them, or they will rule that shares in the flat should be transferred to one party.

The court will listen to both parties during an ancillary hearing, and they’ll then rule on division of the matrimonial property. There is no requirement for equal division of marital property; the court will give just and fair portions to each party.

Selling the flat

Following a court order to sell a flat, the court will rule on how sale proceeds should be apportioned. To do this justly and fairly, they’ll consider several things, set out in section 112(2) of the Women’s Charter. The most important ones include:

  • Any obligations or debts that are owed by either spouse, taken on for their mutual benefit or the benefit of children of the marriage.
  • Any agreements concerning ownership or division of marital assets, made before the divorce. These include prenuptial agreements or deeds of separation.
  • How much each party contributed whilst married – for example, monetary contributions, or indirect contributions which improved or maintained the marital assets. It may also include contributions of a non-financial nature for family welfare or help with a spouse’s business or career. Also included would be caring for family members or older relatives, and looking after the home.
  • Needs of the children. Consideration by the court will be given to who should have care and control of the children, to ensure their general welfare.
  • How long the marriage lasted and the living standard the family had before the divorce.
  • The physical and mental abilities of the spouses, and their age.
  • The financial needs of each party after the divorce. Factors the court will consider include the working ability, earning capacity, and actual income that each party is capable of in the future. A court would also consider the financial obligations of each party, and any responsibilities they have going forward.
  • Any time one party enjoyed rent-free occupation in the matrimonial home, which had the effect of excluding the other party.

Transfer to one spouse

A spouse must be eligible to own an HDB flat if the court is to consider transferring ownership of the flat to them.

A party is eligible when:

  • They have care and control of the children, which has created a family ‘nucleus’; or
  • There are no children belonging to the couple but the party is older than 35 years and is eligible under the Single Singapore Citizen Scheme to own an HDB flat. (In other words, they are a citizen of Singapore and the flat was purchased as resale on the open market, without a CPF Housing Grant); or
  • Where the party is less than 35 years old, they can form a family nucleus with their siblings, parents or new spouse, provided the scheme’s eligibility criteria are satisfied.

Based on the party’s sole income, they must be able to refinance the current mortgage loan, and make suitable CPF refunds or cash payments to the other party.

Surrender the flat to the HDB

You may have to surrender the flat to the HDB at current compensation prices, if the Minimum Occupation Period (MOP) has not elapsed. This period is five years for flats that were bought directly from the Housing and Development Board.

However, since the compensation from the HDB is usually less than what you can achieve on the open market, surrendering the flat is the least desirable option. But prior to reaching the MOP, the parties cannot agree to the sale of the flat.

Avoiding surrendering

You can ask the HDB for permission to sell the property, before meeting the MOP requirement, on the open market. Or you may enter a Deed of Separation and wait until the MOP is reached.

In the event that you have to surrender your flat, any outstanding reimbursements or mortgage loans to CPF will be taken out of the compensation. The balance remaining may be apportioned between the parties as set out in the court order.

What the right course of action is for you depends on your personal circumstances. It is advisable to ask an experienced lawyer to explain your options to you, and ensure you use the most suitable option for your situation.

Setting up a Trust in Singapore

Trusts in Singapore are governed by the Trustees Act (Cap 337), and a lot of the basic tenets come from English trust law. In Singapore, the Trustees Act has developed to encourage trust use when managing wealth. Anyone wanting to manage and protect their assets will be well-advised to use the regulated legal framework of a trust as a safety net.

Many of the super-rich have used trusts for tens if not hundreds of years, to hold and pass on family wealth, without having to go through long probate procedures. But nowadays, ordinary people and families have come to see trusts as useful, powerful tools for managing their assets.

What is a trust? Should you set one up?

Think of a trust as a legal arrangement in which one person (known as the settlor) moves property to another person (called the trustee), who then holds that property for the benefited of certain specified beneficiaries.

You can also think of a trust as a fiduciary arrangement where the assets of beneficiaries are managed by an appointed trustee. That trustee, (who holds beneficial ownership of the assets) has a statutory obligation and a fiduciary duty to act in the beneficiaries’ best interests at all times.

A settlor may name a ‘protector’ to supervise and protect the trust, and prevent any abuses of power by a trustee.

Whether or not you should set up a trust depends on your situation and aims. There are several types of trusts all with their own particular benefits, which we’ll look at later in this article.

Why trusts are created

Financial management

Families use trusts to manage wealth. A settlor can state how the assets should be invested. The trustee will oversee the assets and then share them out amongst the beneficiaries as decreed by the trust terms.

Tax efficiency

Individuals who have large taxable incomes in a high tax bracket often place their assets in trusts. The earnings from those assets then accrue in the trust, and the beneficiaries have the tax liability.

Of course, trusts and the distributions given to beneficiaries also attract tax, but with a trust you can spread this tax burden so it is tax effective for everyone concerned.

Asset protection

Trusts can protect assets against any lawsuits or creditors that may face the settlor. A settlor transfers assets to the trust, and then legal ownership is given to the trust.

This is a real benefit to business owners or other high-risk people who need asset protection. If a settlor should become bankrupt, then no creditors can get to their personal assets. Likewise, protection is given to professionals who may be sued for professional negligence. Creditors cannot settle their claims or pay compensation with trust assets. Protection is also given in case of any matrimonial property disputes.

Remember that to gain protection from claims, assets must have been held in the trust for a certain period.

Succession planning

If a settlor dies, there is no lengthy probate procedure to go through for trust assets. Trust law in Singapore can also protect against forced inheritance regimes.

It is up to the settlor who gets the assets and when, after their death. If a settlor’s descendants are minors, the trust will keep hold of the assets until the children are older and they can be distributed as per the settlor’s wishes. This helps protect the interests of young children, or people who lack capacity to manage their own affairs.

It may be beneficial, for example, for the descendant to hold the assets in a trust for grandchildren’s benefit. This might happen if receiving the benefit would mean a beneficiary is pushed into a higher tax bracket, or their country of residence has high estate duties. In these scenarios, leaving assets in a trust is for future generations is advisable.

If you think you would benefit from a trust, first understand the different types of trust that exist.

The Different Kinds of Trust

Testamentary Trusts

A trust formed in a settlor’s will is called a testamentary trust. When they die, the trust will take ownership of the assets as specified in the will. While the settlor is still alive, no trust can exist – it only comes into being upon the settlor’s death. Why might this type of trust be useful? Because a settlor may have young children, or dependants with special needs who can’t manage their inheritance, and so the trust holds assets for them.

Inter Vivos Trusts

This is a trust which is created while the settlor is alive, and it’s also known as a Living Trust. A Letter of Wishes is used by the settlor to indicate their wishes for management and distribution of benefits, and they can revise that letter in future if needed.

This type of trust is particularly useful for tax savings, and protection of assets, especially if the settlor becomes incapacitated in the future.

The following are varieties of Inter Vivos trusts:

  • Asset protection trusts which protect the assets of a settlor from creditor claims and business losses.
  • Investment trusts, solely designed for the purposes of investments.
  • Private family trusts, which allow a family to manage their wealth, and protect their assets from forced inheritance legislation or probate proceedings.

Standby Trusts

This type of trust is a mix of Inter Vivos and Testamentary trusts, combining the benefits of both. A trust is created, but no assets (or very few) are placed in it whilst the settlor is living. But beneficiaries can be named, and trustees remain on standby and the trust is dormant until a specific event occurs.

Beneficiaries can be assigned insurance policies by the settlor, and CPF nominations can be made. Provisions in the event of incapacity can also be made.

When the specific event named in the trust happens, the assets can be moved to the trust via a power of attorney. Otherwise, the assets will be transferred when the settlor dies.

This arrangement has the benefit of a low set-up fee without fees incurred in transfer of assets. There are also minimal annual costs whilst the trust is dormant.

What powers do trustees hold over the trust assets?

Many people find themselves asking this question when they need to use a trust. In Singapore, the powers of a trustee are well-regulated.

Trustee Powers

The terms of the trust instrument give trustees their powers. There is then further regulation of the operation of trusts and the behaviour of trustees that comes from the trustees Act, and common law principles.

There is a minimum standard of conduct that trustees must satisfy, and they must fulfil their statutory duty to show reasonable care and skill in exercising their powers and duties.

Forms of trust and trustee powers

What powers the trustee has can also be determined by the type of trust. It may be fixed, discretionary, revocable or irrevocable, and each type will affect the trustee’s powers. You should consider the following before setting up a trust:

Fixed trusts

In a fixed trust, the settlor decides how much is given to whom, and when. No discretion is given to the trustee. They simply administer the assets in accordance with the terms of the trust.

Discretionary trusts

Contrary to a fixed trust, in a discretionary trust the trustee has sole discretion. It is for them to use their discretion and decide what percentage of the assets must be distributed, when, and to whom.

In the case of a divorce where matrimonial property is in dispute, this type of trust is useful. The beneficiaries are protected from creditors, and it allows for adaptations to changes in the beneficiaries’ circumstances.

When managing the dynamics of family life, discretionary trusts are valuable tools. For example, where a family member has poor money-management skills, or is likely to be the subject of a legal claim, or is in dispute with another family member, the trustees can use their discretion to help navigate through these changing circumstances. In addition, trusts also provide confidentiality.

Revocable trusts

In a revocable trust, a settlor can terminate the trust. They may also change the trust’s terms, meaning the settlor keeps some control over the assets in the trust.

On the other hand, with a revocable trust the door is opened for spouses or creditors to claim against trust assets, in a divorce or a bankruptcy, if the court decides that the settlor still has control of the assets.

Irrevocable trusts

In this form of trust, a settlor doesn’t retain any legal rights or control over trust assets. They can’t change or revoke the trust’s terms either. The assets no longer form part of the settlor’s estate.

Assets which have been in the trust for a minimum of five years are protected against divorce and creditor claims.

How do you create a trust?

Trust instruments, such as contracts, wills or trust deeds, create trusts. When a trust is created it can have major ramifications for both the settlor and the beneficiaries. It’s best to seek legal advice if you are thinking of creating a trust.

To set up a trust, certain basic requirements need to be met:

  • The settlor must have mental and legal capacity to create a trust
  • The settlor must have a certain intention to create a trust
  • It must be clear what the purpose or object of the trust is
  • Specific assets must be named as trust assets
  • All laws and legislation governing trusts must be complied with

A trust is created when assets are moved to the trust, or when a settlor declares themselves a trustee by way of a declaration of trust, and will hold assets on behalf of the beneficiaries.

Trusts have clear benefits for protecting assets and managing wealth. Whether you should create one depends entirely on your own family, financial and business circumstances.

Singapore is a country with good regulation of trusts. This gives peace of mind to individuals and families that assets are held in capable hands, well-protected by both statutory framework and common law. Settlors in Singapore are also allowed to retain some power over trust assets and help in managing investments, should they wish to do this.

It is always worthwhile asking an experienced trust lawyer to explain the best trust options and structure for your situation.

Navigating the Divorce Process in Singapore: Things You Need to Know

Divorce is a legal process that terminates a marriage between two individuals. It is a formal declaration that the marriage is dissolved, and the parties are no longer legally bound to each other.

This article aims to provide quick but comprehensive guidance on the legal aspects of divorce in Singapore to help readers understand their rights and options when going through a divorce, empowering them to make informed decisions based on their situations.

Legal requirements to get a divorce

Married for at least 3 years

Firstly, as a plaintiff, you must prove you have been married for at least three years. However, there are exceptions to this rule if the petitioner can prove exceptional hardship or if there has been misconduct by the other spouse. Although there is no clear legal definition of these terms, the following are examples of what may constitute those:

  • Extreme physical or mental abuse
  • Severe mental distress
  • Extreme, cruel adultery
  • Adultery, which causes pregnancy
  • Homosexuality

Domicile or habitual residence

The second requirement is that either spouse must have been domiciled in Singapore when filing for divorce. Domicile refers to a person’s permanent home or residence, and it is necessary to establish jurisdiction for the Singapore courts to hear the divorce case.

If both spouses are not domiciled in Singapore, they may still be eligible for divorce if they have been habitually residing in Singapore for at least three years before filing for divorce.

The marriage has broken down irretrievably.

This means that the relationship between the spouses has reached a point where it cannot be repaired or reconciled.

Simplified or uncontested divorce

A simplified and uncontested divorce refers to a divorce process that is relatively straightforward and where both parties are in agreement on all key issues. This type of divorce is typically faster, less expensive, and less emotionally draining than a contested divorce. It is suitable for couples who have already reached a mutual agreement on ancillary matters.

In a simplified and uncontested divorce, the couple can jointly file a divorce application with the Family Court.  The court will then review the application and, if satisfied, grant the interim judgment after 4 weeks. Following this, a final judgment will be issued three months after the date of the interim judgment.

While the process may seem less complicated, it is still advisable to seek legal advice to avoid any potential pitfalls or future disputes between the parties.

What if my spouse refuses to divorce me?

If your spouse refuses to divorce you, it can complicate the process. However, you can still file for a contested divorce in this case. Contested divorces can usually be concluded within 6 to 12 months.

A step-by-step breakdown of the divorce process

(1) Filing of divorce petition

The first stage of your divorce proceedings is filing a divorce petition. This involves one spouse (the petitioner) submitting a writ for divorce to the Family Justice Courts.

(2) Service of divorce petition to the other spouse

Once the divorce petition is filed, the next stage is the service of the petition to the other spouse (the respondent). The respondent has a specific period to respond to the petition by agreeing to the divorce or filing a defence if they contest it.

If the petitioner does not respond within the given timeframe, the petitioner can go ahead with an uncontested divorce.

(3) Ancillary Matters

If the divorce is contested, the case moves to the next stage, the Ancillary Matters stage. Ancillary matters refer to the financial and non-financial issues in the divorce process. These matters include the division of marital assets, child custody, child maintenance, and spousal maintenance.

At this stage, parties must provide financial disclosure, including assets, liabilities, and income. Mediation or negotiation may be encouraged to reach a settlement. Based on the evidence presented, the court will decide if an agreement cannot be reached.

(4) Issuance of Certificate of Final Judgment

Once the ancillary matters are resolved, the divorce enters the final judgment stage. At this stage, the court reviews the case and decides whether to grant the divorce. If the court is satisfied that all legal requirements have been met and there are valid grounds for divorce, a Certificate of Final Judgment will be issued.

What counts as an ‘irretrievable’ marital breakdown?

As mentioned above, an irretrievable marital breakdown is a situation where the marriage has completely broken down and cannot be salvaged. To prove ‘irretrievable breakdown,’ the petitioner must prove one of the following five circumstances has happened:

(1) Unreasonable behaviour

One of the ways to establish irretrievable marital breakdown is through unreasonable behaviour. This refers to behaviour by one spouse that makes it intolerable for the other spouse to continue living together.

This ground for divorce is set out in Section 95(3)(b) of the Women’s Charter.

Examples of unreasonable behaviour include the following (non-exhaustive) list:

  • Verbal abuse and continual criticism
  • Domestic violence
  • Compulsive gambling
  • Refusing to contribute to household expenses
  • Lack of respect
  • Alcoholism
  • Lack of affection, concern, and care
  • Improper association with another party
  • Obsessive behaviour

(2) Adultery

If one spouse can provide evidence of the other spouse’s voluntary sexual intercourse with someone else, it can be considered a valid ground for divorce. However, it is essential to note that the evidence must be substantial and convincing.

If the extra-marital sexual intercourse does not happen, the behaviour is not classed as adultery, regardless of how intimate it was. On top of this , the plaintiff must show it is intolerable for them to keep living with their spouse. The plaintiff will not be able to cite adultery if they have continued to live with their spouse for more than six months after discovering the adultery.

(3) Desertion lasting two years

Desertion refers to a situation where one spouse has deserted the other continuously for two years or more without any intention of returning.

To prove desertion, the deserted spouse must provide:

  • Evidence to establish that the other spouse has wilfully and deliberately deserted them without any reasonable cause or excuse.
  • Continuous period of desertion for two years, meaning that any attempts at reconciliation or resumption of cohabitation during this period may reset the clock, and the two-year period will need to start again.

(4) Separation for three years (with the defendant consenting to divorce)

The court will grant a divorce if it can be shown that the parties have lived apart continuously for at least three years before commencing the divorce. To prove separation, it is sufficient that the parties live separate lives and don’t interact as husband and wife.

If both spouses have been living separately for at least three years and both parties agree to the divorce, it can be seen as evidence of the irretrievable breakdown of the marriage.

(5) Separation for four years

The final way to establish irretrievable marital breakdown is through a period of separation of at least four years. If the spouses have been living apart for at least four years, regardless of whether both parties agree to the divorce, it can be seen as evidence that the marriage has broken down.

If my spouse can’t be found, can I still get divorced?

Yes, it is possible to get divorced in Singapore even if your spouse cannot be found. In such cases, you can file for a divorce under the ground of desertion. The court will require you to provide evidence that you have made reasonable efforts to locate your spouse, such as hiring a private investigator or placing advertisements in newspapers. If the court is satisfied with your efforts, they may grant you a divorce even in your spouse’s absence.

However, it is essential to note that the court will consider the specific circumstances of each case. If your spouse cannot be located and there are no reasonable prospects of finding them, the court may proceed with the divorce proceedings.

When your spouse cannot be found, the court may also require you to explore alternative methods of serving the divorce papers. This could include serving the papers through substituted service, where the documents are delivered to a close relative or posted at the last known address of your spouse. The court will assess the adequacy of these alternative methods before proceeding with the divorce.

When deciding on the division of assets or child custody, will adultery or unreasonable behaviour affect the court’s decision?

When deciding on the division of assets or child custody in a divorce case in Singapore, the court considers various factors, including the conduct of the parties involved. Adultery or unreasonable behaviour can indeed have an impact on the court’s decision.

However, it is essential to note that Singapore follows a no-fault divorce system, which means that the court does not assign blame or fault to either party for the marriage breakdown. Instead, the court focuses on the practical and financial consequences of the divorce and aims to achieve a fair and equitable outcome for both parties and any children involved.

The court will also take into account other relevant factors, such as:

  • financial contribution of each party
  • the needs of the children
  • the length of the marriage
  • the standard of living enjoyed during the marriage

To determine child custody, the court’s paramount concern is the child’s welfare. Often in Singapore, joint custody is granted so that both parents are involved in decision-making for the child, whilst care and control are given to the parent the court deems most fit to have this duty.

The timeline

The duration of a divorce in Singapore can vary depending on several factors.

Contested divorces with disagreements on various issues, such as child custody, division of assets, or maintenance, can take significantly longer to resolve. The duration of a contested divorce can range from several months to a few years, depending on the complexity of the issues involved and the willingness of both parties to settle.

In such cases, the court may need to conduct hearings, gather evidence, and make decisions based on the best interests of the parties involved, which can prolong the process.

Uncontested divorces, where both parties agree on all terms and conditions, can take around 4 to 6 months to finalize. This includes the time required for filing the necessary documents, attending mediation sessions (if required), and obtaining the final judgment from the court.

How much does a divorce cost?

One of the main costs associated with a divorce is legal fees. The fees charged by family lawyers in Singapore can vary depending on various factors. The complexity of the case, the issues involved, and the approach taken can all impact the overall cost.

According to a survey, simplified and uncontested divorce fees in Singapore typically range from $1,500 to $3,500. Meanwhile, contested divorces usually cost between $10,000 to $35,000.

Here at Singapore Family Lawyers, with our experience and reputation, we understand that divorces are emotional and stressful. That’s why we don’t charge clients hourly for simplified divorces. We take pride in being clear and transparent; hence, we offer a fixed-fee package. Our clients will never have to worry about hidden costs while engaging with us.

However, we might charge an hourly rate for certain contested divorces. If so, we will offer a fee cap for eligible clients.

Varying a Court Order after Divorce

Clients often approach us to seek advice on what they can do to have their existing Court Orders revised or amended. These applications to revise and/or amend existing Court Orders are known as applications to vary an Order.

Applications to vary an Order may be sought for various reasons. Most commonly, these applications concern child and/or wife maintenance obligations under the existing Orders. This usually arises because the maintenance obligations under the existing Orders are no longer accurate in representing the relevant persons’ financial needs. This article will therefore focus on this particular type of variation, variation of wife and child maintenance obligations under existing Orders.

How do I vary a maintenance obligation in a Court Order?

The Court permits applications to vary a maintenance obligation under section 72(1) of the Women’s Charter. The application to vary can be taken out by either:

  • the person who is obligated to pay the maintenance; or
  • the person who is to entitled to the maintenance payment from the other party.

To seek such a variation, the applicant must be able to demonstrate that there has been a change of circumstances:

  • of the person making the application;
  • of the child for whom the order on maintenance is made for;
  • of the wife; and/or
  • any other good cause.

The Court exercises discretion when considering an application to vary a Court Order. As such, the outcome of such an application depends very much on the individual facts and circumstances of each case.

Should I Seek To Vary The Existing Maintenance Orders?

In most cases, the need for variation arises because several years would have passed since the making of the Court Order. For example, in that time:

  • the expenses of the child (and/or wife, where applicable) may have changed (either increasing or decreasing); and/or
  • the circumstances of the party liable to pay maintenance for the child (and wife, where applicable) may have changed for various reasons (e.g. retrenchment, illness, etc…) such that he or she is no longer able to pay the sum of the monthly maintenance payment.

The above examples illustrate the practical difficulties with having a continuing maintenance obligation, as circumstances of both parties and their children are constantly changing with time. If you feel that any of the above applies to you, it would be prudent to consider an application to vary the Orders which govern wife and child maintenance.

How Will A Variation Benefit Me?

For parties liable to pay maintenance under an Order, non-payment of these obligations can attract costly enforcement procedures and other financial penalties.

Therefore, it would be prudent for persons who anticipate that they are not able to make these payments as a result of a change of his or her circumstances, to pre-preemptively look into making an application to vary their monthly maintenance payment obligations.

Alternatively, if the party liable to make payment is of the view that circumstances have changed such that the expenses of the children (and/or wife, where applicable) have decreased owing to a change of circumstances, the party liable to pay should also consider taking out an application to vary the sum of maintenance monies. This is because sum of maintenance monies would no longer be accurate in reflecting the amount needed to support the children and/or wife.

For parties who are entitled to receive maintenance monies, but are no longer able to get by with the sum of maintenance monies stated in the Order, it is also crucial to look into making an application to vary the amount that they are entitled to receive for continued good upkeep of the children and/or wife. Such persons should also document the ways in which the amount set in the Court Order is no longer sufficient to cover reasonably necessary expenses in good detail to support their case.

What is a Writ of Divorce and other divorce documents?

A Writ of Divorce is the document that the initiator of the divorce must first file in Court, in order for divorce proceedings to be formally commenced against his/her spouse. In addition, the general rule is that the Writ of Divorce must also be personally served on the errant spouse for it to be effective, although under certain circumstances (such as where the errant spouse cannot be located) the Court may choose to dispense with this requirement.

What is a Statement of Claim?

A Statement of Claim is a document that lists the essential information of the case, in particular highlighting the facts relied upon for establishing irretrievable breakdown of the marriage as per section 95(3) of the Women’s Charter, and the relief claimed (which will include ancillary matters).

What is a Statement of Particulars?

A Statement of Particulars is used to clarify paragraph 6 of the Statement of Claim, thereby allowing the Plaintiff to provide a more in-depth explanation of the reasons behind the irretrievable breakdown of the marriage. It is usually accompanied by the parties’ marriage certificate, as well as a declaration to the effect that neither party is a bankrupt.

What is a Memorandum of Appearance?

A Memorandum of Appearance is filed by the Defendant as a means of indicating that he/she is intending to defend the claim initiated by the Plaintiff. The Defendant must enter his appearance within 8 days of being served with the divorce papers, and will be granted 22 days from the date of service of the divorce papers to file and serve his Defence and Counterclaim.

What is a Defence?

A Defence is the primary means for a Defendant to respond to the allegations made against him/her by the Plaintiff in the latter’s Statement of Particulars. In general, a Defence will consist of a direct response to every paragraph of the Statement of Particulars, where the Defendant will choose to either accept, deny, or not admit the allegations made, providing brief explanations as to his decisions. In many cases, a Defence will be followed by a Counterclaim, which essentially allows the Defendant to establish his/her case against the Plaintiff, thereby affording the Defendant the opportunity to have the marriage dissolved on his/her terms.

What is a Final Judgment in Divorce Proceedings?

A Final Judgment in divorce proceedings marks the formal end of your marriage. It concludes the divorce case.

The Final Judgment comes 3 months after you have obtained Interim Judgment (provisional divorce). Your divorce lawyer will have to apply for the Final Judgment for you.

You can remarry

When you have obtained Final Judgment, you are legally entitled to remarry. You will need to produce the Interim Judgment and Final Judgment to prove that your divorce is finalised.

You can sell your property

If there is a court order for the matrimonial property to be sold or transferred, that transaction will usually take place after the Final Judgment. As an illustration, suppose your HDB flat is to be sold and the sale proceeds divided equally. You will be able to sell the HDB flat only after Final Judgment as HDB and the buyer will want to see the Final Judgment. Usually, you are given sufficient time to sell or transfer the property after Final Judgment. If you are unable to sell the matrimonial property within the time specified in the Final Judgment, do not worry. So long as the buyer accepts the situation, the sale will usually go through.

Custody of Children

Once Final Judgment is issued, the court order relating to children custody, care and control and access will also have to be implemented. Suppose that you have joint custody, care and control of your child and weekend access granted to your spouse. After Final Judgment, your child will start living with you, and you will start making day to day decisions for your child. Your spouse will be entitled to the weekend access.

How long does it take to obtain Final Judgment?

In Singapore, as the Singapore courts encourage parties to mediate to resolve their divorce issues (especially with a view to reducing the impact on children), divorce cases are handled quite speedily. The average time taken for final judgment to be granted has been reduced by a quarter from 155.2 days in 2012 to 114.6 in 2016. Hence, on average, your divorce should conclude within a year in Singapore.

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