The value of a family business or business interest is treated as an asset and therefore part of the matrimonial pot to be distributed when it comes to negotiating a financial settlement on divorce or...
David Hodson on International Family Law: Lessons from Singapore
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Sep 7, 2012, 12:15 PM
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Although for years, even decades, it has been countries such as Australia which have led the way in developments in family law and practice, that role is now also being increasingly adopted by new, developing jurisdictions. In the so-called westernised world, we have a lot to learn and borrow from such countries. I've had the benefit many times of working closely with Singapore lawyers and wrote a year ago on the progress in respect of child abduction. This week, over 200 members of the IAML, the world's leading organisation of family lawyers undertaking international work, has had its annual conference in Singapore. Presentations from Singapore lawyers and judges have struck me again about their many beneficial developments. Of course in many jurisdictions it is a matter of available, which often means limited, public resources. But we need to learn from each other what works and what produces long-term benefits for divorcing and separating families.
District Judge Foo Tuat Yien, head of the Singapore family court, explained that since 1976 but with recent emphasis, the family courts of Singapore provide psychological and counselling services alongside the court service. It works with NGOs and other service providers. In particular Singapore is aware that the fall-out from separation and divorce does not end on the final decree or order. This service is available for a fixed period of years afterwards. This is a vital aspect. Moreover it allows the court service to examine what measures alongside a court system will best help individuals (medium and long term) adjust more quickly and satisfactorily to relationship breakdown.
Since September 2011, child focused resolution through mandatory mediation has applied before any court applications for children matters. At the moment it is only in respect of children under eight but will be extended to children up to 13 from next year. It is already reaching 52% of children cases. It specifically helps parents focus on the needs of children. One feedback already from the scheme is that parents wanted help to understand how children reacted to re-partnering and new spouses, an aspect too often ignored as adults move quickly on with their lives yet which can affect children badly.
The Singapore family court is also working with lawyers to help them understand the impact on children of the way in which lawyers undertake their work. It is now 30 years ago in England that this was identified generally in family law work, resulting in a Code of Practice which has had a worldwide beneficial influence. Countries such as Singapore are moving on from this general code, explicitly regarding the impact on the children of the way lawyers work
Singapore signed The Hague child abduction Convention in early 2011 but the UK and some other EU countries have not joined with Singapore because they are no longer politically and legally competent to do so, as the EU insists that it alone can sign up with non-EU countries on behalf of all EU member states. This is a scandalous state of affairs. The UK and Singapore have close historic and present on-going personal and commercial ties. There are many Anglo Singapore cases. Singapore has committed to the Hague Convention. The UK should not have to conduct its Singapore child abduction work as if Singapore was not a signatory. I suspect there are few in England who are aware of the UK's emasculation in respect of bilateral commitments. I suspect even fewer are happy about it. The EU is restraining the UK from our strong non-EU connections with countries such as Singapore with which we have worked successfully over very many years.
Leading Singapore family lawyer, Foo Siew Fong, of the Harry Elias Partnership, explained the dramatic changes in the law in Singapore in 1961 with the introduction of the Women's Charter, just as England itself was itself moving the gender imbalance with the Divorce Reform Act 1969. The Singapore law has transformed the respect to women and daughters in family relationships in Singapore, their safety and has greatly improved their quality of life; a fascinating reflection on how good family law can change societal behaviours and attitudes. Foo referred also to the trend to equality of financial outcomes of division of marital assets on the basis of the genders having different but equal roles in the relationship; being as abreast of family law jurisprudence as jurisdictions worldwide.
The great injustice of EU jurisdictions being unable to pursue maintenance, needs, based claims when jurisdiction is exclusively on sole domicile or sole nationality (by reason of the EU Maintenance Regulation) was shown by the jurisdictional bases of Hong Kong and Singapore. Catherine Por explained that for Hong Kong it is domicile or three-year habitual residence of either party or substantial connection with Hong Kong. For Singapore it is citizenship, three-year habitual residence or domicile. EU member states do not have now an equal, level playing field, in forum dispute with such countries which themselves will proceed with maintenance, needs-based, claims even on sole domicile or other non-habitual residence jurisdiction. The EU may consider that jurisdiction on habitual residence is the only way forward. Unfortunately it hasn't bothered to tell the rest of the world which is quite happily accepting jurisdiction for maintenance claims on non habitual residence!
There is much which can be learnt and borrowed from jurisdictions such as Singapore and the opportunities available to them in their family courts.
He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.