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Justice Choo Han Teck: Speech delivered at the Family Conference 2022

Family Law Through the Ages

CJ Koh Lecture 2022

 

“If it is true that there are as many minds as there are heads, then there are as many kinds of love as there are hearts” – Leo Tolstoy in Anna Karenina.

 

Minister of State for Home Affairs, and Social and Family Development, Ms Sun Xueling, Co-Chairpersons Ms Kee Lay Lian, and Ms Wong Kai Yun, members of the Organising Committee, Ladies and Gentlemen, thank you for the invitation to deliver this year’s CJ Koh Lecture. That Mr Koh had been an old friend of my father has made this occasion all the more meaningful for me. This topic will make us steal a few glances back in time, and infuse moments of nostalgia for some of us. For others, it may clear up some mysteries that had lain unexplained, or rid themselves of an itch that they can feel but cannot find.

 

I remember, a long time ago when I was practising in Allen & Gledhill, there was a bright young man with a first-class honours in law. He was asked where he saw his future, and he surprised us all when he said that he wanted to practise family law. It was our collective disbelief, though not that of young man’s own, that shows how low the rung family law was in the eyes of practising lawyers at the time. I had myself, practised what was traditionally known as the common law practice — contract, tort and crime. Those were the areas that attract headlines, and high fees, and it was criminal law that gave my career the attention it might not have otherwise received. And so, even after my appointment to the Bench, criminal cases continue to be a large part of my judicial diet. But a few years ago, I gave up my life of crime, and am now a family man.

 

That is not to say that I have been entirely unfamiliar with family law. Drawing up wills and taking on divorce cases were routine assignments for fresh young lawyers then. Family law, was, and probably still is, an area that is not as financially lucrative as other areas of practice. When I joined Murphy & Dunbar in April of 1979, lawyers were charging between $1,000 and $1,500 for a divorce brief from start to end. The fee for drafting a will was about the same. Many lawyers in family cases, I believe, try not charge much more today than they did in the past. Yet some things have changed. Clients are more demanding, and so are judges. And the result is that lawyers are virtually compelled to increase their fees.


 

In the years B.C. (Before Computers), lawyers always found it amusing whenever a client instructs them to draw up his will with the simple instruction, “Oh, mine should be a simple one. I just want to leave everything to my wife.” Life, clients, and legal practice were simpler then. But most lawyers would have advised such a client that the Intestate Succession Act 1967 would have provided exactly that in the absence of a will. Nonetheless, nowadays, reams of affidavits accompany the summons for divorce. And lawyers are also more alive to the fact that they have to give fuller advice regarding wills and the Lasting Power of Attorney, an instrument that did not exist in those days.

 

Divorces in the past were commenced by an originating process that may sound archaic to younger lawyers today. It was called the petition for divorce. Clients petitioned to the High Court to end their marriages in one of two ways. The most common was to petition for a decree of divorce, and the other was for a decree of nullity. As we move closer and closer to the no-fault divorce, we wonder why it was once thought necessary to name the faults that gave grounds for the divorce. There were several broad grounds — infidelity, that is to say, that the other spouse had committed adultery — was one. Another ground was cruelty, and so far as that was concerned, physical abuse was the main factor. Later on, psychological or emotional abuse were also recognised as constituting cruelty. Then we had desertion, the ground of abandoned spouses. All these grounds leave a public trace of odium on the defending spouse, and consequently, divorces based on these grounds were invitations to resist; often very strenuously. The present requirement is to establish unreasonable behaviour on the part of the other spouse. The old names of cruelty and adultery are covered in this less provocative description and so the old grounds remain applicable. Perhaps, when we finally acknowledge that this may not truly slow down the rate of divorce, a full no-fault system may be put in place.

 

Similarly, a defending spouse may take umbrage at a petition for nullity served on them, for a petition for nullity was (and still is) based mostly on the ground that the marriage had not been consummated, or that the defending spouse was already married to someone else. Collating evidence of non-consummation may be exciting for a young lawyer, but the parties find no amusement in it, only embarrassment and wrath. Petitions for divorce or nullity were heard entirely in the High Court then. That kept proceedings sombre and serious, not just for the young lawyers but also their clients when they find the stern face of a High Court judge, glaring down at them.

 

For all the recriminations, lawyers rarely need to file more than one affidavit in support of the petition and the defence. And usually only a singular reply was allowed. The affidavits are not long, and so lawyers attending court on the day of the hearing will each carry the case file that is no more than six to eight centimetres thick, whereas now, it is not uncommon to see lawyers pulling luggage bags to bring their documents to court. The fact that lawyers file far longer and many more affidavits than they used to do imply that the $1,000 all-in fee for a divorce, or the drafting of a will, may no longer be adequate remuneration for the solicitor.

 

As we shall see, it is not only the practice of law generally, but family law in particular, that has changed. And it is not just procedural but substantive laws that have changed. What then, is the point of recounting family law through the ages? We can throw in a few more amusing anecdotes, and this might make a pleasant after-dinner speech. I think, however, that we need some serious reflections on family law today. We must trace the past so as to understand how we got to where we are, and to anticipate what may lay ahead. We study the past, to steady ourselves for the future.

 

We cannot confine our study merely to the changes in the law because law, especially family law, is much more complex and sophisticated than we think. Unless otherwise specified, when I talk about the law, I will be referring to family law. The views that I express in this lecture are purely academic in that they are addressed to an event, the purpose of which is to stimulate discussion as to where family law and its practitioners go from here. I pass no judgment on any specific topic or any specific person or section of society. I hold no religious views and criticise none. This lecture is intended to open minds, including my own, and for us to withhold judgment until we can be certain, or are compelled to make a decision.

 

Law always follows social practices. It changes when society changes. Yet law is different from social norms and practices in many respects. For one thing, law delves in definitions; it loves nomenclatures; it thrives on rules because it seeks certainty and consistency. But social habits and social life prefer fluidity, flexibility, and growth. Definitions are not welcome for many reasons. The age-old question, “What is a family”, remains as debatable today as it was centuries back. In the stone age, and among many animals, a family unit consists practically of just the mother and her offspring. Today sportsmen and women treat their physiotherapist, dietitian, and coach, as their “family” — some express a fiercer fidelity to them than they do their parents and siblings. In defining “family” we might well ask how far afield do we regard our relatives as family, and we will, doubtless, receive a vast array of differing answers. And how do we tell someone that Manchester United is really not his family?

 

When we think of a family, we instinctively envisage a family as beginning with a husband and wife, with children coming later. But the starting unit of a husband and wife to the exclusion of others is a comparatively new concept to us. It was just over a hundred years ago that the Straits Settlements Court of Appeal formally acknowledged the polygamous practice of the Chinese in the Straits Settlements. That case is cited as In the Matter of the Estate of Choo Eng Choon, Deceased, Choo Ang Chee, v Neo Chan Neo, Tan Seok Yang, Cheang Cheng Kim, Lim Cheok Neo, Mah Imm Neo, and Neo Soo Neo [1911] XII SSLR 120, better known as “The Six Widows’ case”.

 

Until then, colonial judges were schooled by English law in the form of Hyde v Hyde and Woodmansee (1886) L.R. 1 P. & D, 130. The English courts found it extraordinary for polygamous marriages to be treated as good marriages. Lord Penzance in that case held that it was not his intention to hold that polygamous marriages should be “beyond the recognition of English law”, only that they would not receive recognition in a matrimonial court. The court in the Six Widows case received massive evidence as to whether polygamous marriages were accepted by the Chinese, and, if so, the second question was whether the courts in the Straits Settlements should recognise those marriages.

 

It was not just in the Six Widows case, but also in Hyde v Hyde and Woodmansee that we see exactly how law follows social practice. In some countries, notably Europe, and then America, as their societies’ norms regarding the idea of marriage as a union between one man and one woman (the classic law that Lord Penzance spoke of) changes, the law followed suit. In 1937 a Jewish man, Abraham Penhas, married a Chinese woman in Singapore. After Penhas died in the Second World War, his widow and two children claimed as beneficiaries to his estate. The litigation involving the brother of Abraham Penhas and the widow was settled when the Privy Council held that although a Chinese marriage was a polygamous one, there was nothing in the way of a Jewish man contracting with a Chinese woman in a common law monogamous marriage. (See: Isaac Penhas v Tan Soo Eng [1953] A.C. 304).

 

These cases show that where new law had to be made, the courts look to social norms and practices to find a position of equilibrium. In these cases, the courts applied the contractual nature of marriage to situations that were in need of legal recognition. Family law has since changed again such that polygamy as well as the idea of a common law marriage are no longer recognised. Section 4 of the Women’s Charter 1961 ensures that all non-Muslim marriages in Singapore are monogamous. This Act of Parliament lays down the statutory provisions governing marriage, divorce, and the welfare of the children of a marriage. Its provisions relating to ancillary matters include the division of matrimonial assets and financial relief for the wife and children of a marriage.

 

Over the years, the courts have delivered judgments regarding all these issues, and in many areas, large strides have been taken by the courts in the interpretation and application of the Women’s Charter, which itself has undergone many changes. They were all made in furtherance of facilitating the application of the Charter. For example, the old grounds on which a person may be entitled to a divorce has been reduced to one — the irretrievable breakdown of the marriage. When it becomes obvious that severance of the marriage was inevitable, parties tend to vent their wrath by fighting bitterly over the custody, care and control of their children, as well as over maintenance and the division of matrimonial assets. In the past, some of the heated energies had been spent fighting the divorce itself.

 

As it turned out, the ancillary matters to a divorce became fertile battle ground for yet another reason – in modern times, as more and more women went to work, and more and more were getting lucrative work, the marital income rises. This power of double income enables couples to purchase expensive homes that increase in value over time. In short, the stakes have never been higher. Gradually, as the social status of women rose with the level of their education and employment, modern fathers did their part — fetching the children to and from school, doing the dishes, cleaning house, and taking turns to feed the children, it became more and more obvious that the division of matrimonial assets must lean towards the median. But litigating couples tend to want the bigger share, forgetting that equal division is the formula most in keeping with the marital vows that they had taken. Had the vows been kept as they were intended, an equal sharing of matrimonial properties almost goes without saying. The modern household has moved so far into equality of rights and status that the law, trailing in the wake of modernity, increasingly acknowledges the fact that the archetypal “housewife” has become an exception, no longer the rule.

 

The move towards equality everywhere, including the division of matrimonial assets, has a foreseeable drawback. It makes wealthy people wary of marrying someone much less wealthy. In many countries, the solution is found in prenuptial agreements. Initially, such agreements were scorned by romantics as anathema to true love, but increasingly, prenuptials are losing the stigma that they once had. In the same way, discussions concerning wills and living wills were once taboo subjects, especially to the elderly. Now, practicality trumps romance and superstition. A prenuptial contract narrative enables the parties to determine and arrange their marital relationship on their own terms, exempting themselves from orders imposed by the courts. Prenuptial agreements do not yet have the unqualified general approval in our law, but the courts have shown a willingness to take them into account, even if not giving them full effect as a matter of course. (See: TQ v TR and another appeal [2009] 2 SLR(R) 961, and Kwong Sin Hwa v Lau Lee Yen [1993] 1 SLR 457). Pre-nuptial, and even post-nuptial agreements for settling issues of asset division, maintenance, and the custody of children are useful, not only in helping the courts steer towards a fair decision that follows closely the parties’ wishes and intentions, but more importantly, they reduce the rancour that often accompanies matrimonial litigation. They reduce accusations and recriminations and allow a more civil and speedier ending to a big chapter in their domestic lives and thus allow the parties to move on.

 

Another social development that is gaining ground elsewhere is the idea of having partners for life without a marriage contract. People are free, of course, to live together as partners, with or without any formal agreement. They can have children who they bring up as family. Such families are outside the purview of legislative enactments like the UK Divorce, Dissolution and Separation Act 2020, and our Women’s Charter. It is obvious that such families cannot claim the benefits and protections that the law provides married couples and their families. So far as other benefits such as tax reliefs are concerned, unmarried couples are no better or worse off than married persons. I am from the age known as the Boomers, and the two succeeding generations, Generation Y and Generation Z have already entered the marriageable age, which means that they are also in the divorceable age. As generation pass to generation, each successive one’s outlook on life will differ from that of its preceding generation. As the Alpha and Beta Generations follow Gen Y and Gen Z, even older ones like me may not understand what the younger ones want. But I can hear them in the voice of Billie Eilish, singing, “I don’t want to talk right now, I just want to watch TV”. To a generation that may not see the necessity of marriage, they may still require the services of family lawyers to help draft their partnership agreements.

 

Thus, for the younger generations’ sake, we should re-examine the meaning of the phrase, “living together as husband and wife”. Once upon a time, it was “man and wife”, and a married woman was known as Mrs So-and-So, but today, all vestigial connotations of a woman being a man’s appendage are fast disappearing. These are just formalistic changes. What is of greater concern is the impact of technology on substantive family life. Reading Twitter threads and updating Instagram at family dinners kill conversation. They diminish the role of communication and dialogue on values. Those bonding meals we take for granted in the older generations may pass. We must accept that, but we may cling to the hope that such forms may return in the cycle of life. I believe it was Heidegger who told us that when we are familiar with something we lose our sense of awareness of that thing until it breaks down — like the pen that runs out of ink or the bicycle that loses its chains. When divorce rates keep rising, something is either wrong or has been missing. Perhaps it is the old-fashioned magic called love, a uniquely human touch that might just have been switched off by technology. We may never know, though it would be fun to probe, whether the match-making of old yielded stronger and more permanent family ties than unions through Coffee Meets Bagel do?

 

Besides the division of matrimonial assets, spousal maintenance is another battlefield of divorcing couples. Under s 113 of the Women’s Charter, the right to claim maintenance is given specifically to the wife, and only grudgingly, it appears, to the husband. For a husband to claim maintenance from his wife, he has to prove that he is suffering from an incapacity and is unable to earn an income. However, one of the consequences of domestic and financial independence of the wife is that she is now obliged to contribute her share towards the maintenance of the children, and where there are no children, a more realistic order for maintenance for herself. In divorce as in marriage, both parties must make sacrifices, though of a different nature and with different prospects. The old English aristocratic ideal of keeping an ex-wife “in the station to which she is accustomed” is anachronistic.

 

Where custody and care and control used to be awarded to one parent, usually the wife, now, it is almost the norm to award joint custody, but care and control with liberal access is given to one spouse, and increasingly, to the husband. Again, these developments are the result of the law keeping step with social developments; developments that are constantly brought about by education, economics, and international connectivity. Many spouses who have been given care and control, are reluctant to give the other spouse access to the children. The reasons are many, but they mostly stem from the psychological trauma of the spouses’ failed relationship.

 

It is almost indubitable nowadays that courts accept that having joint custody and access to both parents is far better for the children’s growth and development. Hence, the burden of talking sense to parties in a situation governed by emotions should be shared between the courts and counsel. All too often, everyone, especially parents, divert responsibility to psychologists and therapists. In some cases, that may be helpful, but in others, they can be counter-productive. That is usually the case in acrimonious proceedings where the parties use therapy as a means and not an end. In such cases, the resort to therapy is used as a diversion or a filibuster for denying access to the children.

 

In the old days, long before the founding of Singapore, the common law courts gave custody of the children to the father upon divorce. Gradually, women won some rights, and the doctrine of tender years was developed in which they would be given custody of children under the age of four. That, in turn, was changed to the modern doctrine of granting custody “in the best interests of the child”.

 

Though we all hum the tune of “in the child’s best interests” at every turn when we are deciding the fate and future of the child, do we really prioritise their interests over that of their parents? When a caregiver voices a preference to move closer to a school for the convenience of dropping the child off at school, would the consideration of the child in remaining where he is, further from school but nearer his friends and siblings, be in the child’s best interests? In truth, there are no easy answers. By the same token, we should not lay back and assume that “in the child’s best interests” is always the best option. It may be cast in statute, but not quite so concretised that it is incapable of further development as a principle. Lawyers must be objective in recognising which of the parties has a better knowledge of the child’s best interests; and the judge must have the humility to accept that there are potentially two other persons who may have a better understanding of the child’s best interests than the judge himself has.

 

Having seen the trends that are developing in the law, it remains for me to address the final point — the role of the family lawyer in the future. Although married couples are generally much wealthier today than they were three or four decades ago, they are also likely to be asset-rich with little cash. Even after they have split their assets, they would need to establish new homes, and chances are that they may have to downgrade their life-styles. Hence, many divorcing couples may not be able or willing to pay high legal fees. Yet, they will still need legal assistance. Lawyers choosing family law as their main practice must be a tough, but altruistic breed. They need be empathetic and patient. And they will find that good humour goes a long way.

 

Family law needs to speak to the public in clear, unequivocal language, in a tone that is empathetic and conciliatory in spite of the high emotions that matrimonial disputes are apt to raise. Family law should be at the forefront of fairness and simplicity, devoid of the trappings that accompany commercial and other forms of glamorous litigation. The family lawyer must learn that language and use it. But no matter how many broken marriages we have seen, we should not be complacent. Let us be reminded always of what Tolstoy had also said: “All happy families are alike, but every unhappy family is unhappy in its own way”.

2022/09/13

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