Singapore 2012 Educational Programme Session 1 - International ...

Singapore 2012 

Educational Programme 

Session 1 

Introduction to Singapore 

IAML Singapore 2012 Meeting Handbook Session 1 - Page 1

FOO SIEW FONG 

Harry Elias Partnership 

SGX Centre 2, #17-01 

4 Shenton Way 068807 

Singapore 

Tel: + 65 6535 0550 

Fax: + 65 6438 0550 

Email: siewfong@harryelias.com.sg 

Website: www.harryelias.com 

Head, Family and Matrimonial Law 

Head, Private Client and Wealth Management 

Siew Fong heads the Family and Matrimonial Law Practice Group and the 

Private Client and Wealth Management Practice Group. Siew Fong deals with 

all aspects of family and matrimonial law. 

The practice group was nominated the "Best Matrimonial Practice" by the 

Asian Legal Business Awards in 2002. In the same year, Asian Legal 

Business named Siew Fong as one of Singapore's pre-eminent family law 

practitioners in their Legal Who's Who. In November 2011, the Family and 

Juvenile Justice Division awarded the Outstanding Volunteer of the Year in 

the Advocate and Solicitor Category to Siew Fong. 

Siew Fong also handles preventive issues at the beginning of a relationship, 

e.g. the preparation of pre-nuptial agreements and has been invited to sit on 

panels, national radio and television programmes where she shares her 

experience on the usual issues arising in divorce, assets and children. 

Siew Fong has been the President of the Singapore Association of Women's 

Lawyers (SAWL) from 2001 to 2009 and is now the honorary advisor to 

SAWL. She played a significant role in the publication "You and The Law", 

and "Teens and The Law". She is the author of "When Marriages Break 

Down:- Rights Obligations And Division of Property", a publication by Sweet & 

Maxwell and was recently appointed a member of the Committee by the Chief 

Justice under Section 139 (1) of the Women's Charter. 

Siew Fong's commitment to social work also sees her appointment as a 

council member with the South East Community Development Council as well 

as a Deputy Registrar/Licensed Solemniser by the Registry of Marriages. 

Siew Fong is also a member of the International Academy of Matrimonial 

Lawyers, which membership is open only to family lawyers with experience in 

international disputes relating to maintenance, division of assets and 

children's issues. She is also an accredited Singapore Mediation Centre 

family law mediator involved in the Singapore Mediation Centre's Family Law 

Mediation Pilot Project. She is a member of the executive committee of The 

Spastic Children's Association of Singapore, an organization that provides 


medical treatment and therapy for children with cerebral palsy, as well as 

vocational training and gainful employment through its school. She has also 

been recently appointed as a board member of the Brahm Centre, a 

registered charity dedicated to offering education programs and activities that 

promote happy and healthy living. 

Siew Fong remains committed to the progress of the legal community in 

Singapore too. She has been appointed to participate in the Committee for 

Continuing Professional Development Accreditation, a new scheme to be 

implemented by Singapore Institute of Legal Education that seeks to set 

progressive benchmarks for practitioners in the local legal landscape. 

Siew Fong was called to the Singapore Bar in 1991. 


Singapore 2012 

Educational Programme: Thursday 6 th September 2012 

Introduction to Singapore brief history; family law in Asia & recent 

developments 

By Siew Fong Foo 

Harry Elias Partnership 

Singapore 


TABLE OF CONTENTS 

Abstract……………………………………………………………………………..............................................................2 

History of Singapore ………………………………………………………………………………………………………………………3 

Geography of Singapore ………………………………………………………………………………………………………………..4 

Matters of legal and cultural significance……………………………………………………………………………………….5 

The development of family law in a common law country …………………………………………………5 

Women’s Charter ……………………………………………………………………………………………………………..5 

Introduction ………………………………………………………………………………………………………….5 

Content of the Women’s Charter …………………………………………………………………………..6 

Structure of Singapore’s family law system ………………………………………………………………………7 

The Family Court ………………………………………………………………………………………………….7 

The Shariah Court ………………………………………………………………………………………………..8 

Ancillary Matters……………………………………………………………………………………………………………..9 

Custody, care and control and access to children/maintenance…………………………….10 

Maintenance……………………………………………………………………………………………………….11 

Division of Matrimonial asserts…………………………………………………………………………….12 

Family Law in Asia…………………………………………………………………………………………………………..13 

Malaysia……………………………………………………………………………………………………………..13 

Indonesia…………………………………………………………………………………………………………….15 

Thailand………………………………………………………………………………………………………………17 

China…………………………………………………………………………………………………………………..19 

Conclusion ………………………………………………………………………………………………………………………21 

1 


Abstract 

This paper was written to give an overview of 

family law in Singapore. It provides a background 

outlining how Singapore has arrived at where it is 

today with the Women's Charter- the reigning Act 

for all civil family law matters. 

Divorce, the division of matrimonial assets, 

maintenance, care and custody, and protection 

orders are just some of the areas governed by the 

The importance of family is highly 

valued in Singaporean society. 

Women's Charter. The Family Court, a specialised one-stop forum for litigants to seek 

aid for all family-related disputes, regulates the abovementioned aspects of law. For 

Muslims, there is the Shariah Court which applies Islamic law in addressing their family 

issues. 

Ancillary matters are always the cause of much conflict and have to be handled in 

a delicate manner. In dividing matrimonial assets, the courts take into account all 

of the parties' contributions, including non-financial contributions such as care for 

the children and the manning of household. Courts have been inclined to order 

shared custody of the children, with the desire to protect family obligations 

despite the closure of the marriage. In deciding on the sum of maintenance, the 

court seeks to preserve the lifestyle of the wife prior to the breakdown of the 

marriage. 

As with the Women’s Charter in Singapore, many other predominantly patriarchal 

Asian countries have also passed statutes to champion women’s rights and abolish 

polygamy. As such, regionally, family law has greatly progressed towards 

achieving fairer outcomes for matrimonial parties. 

2 


History of Singapore 

Singapore has a diverse history having been ruled by a Srivijayan prince, a British 

colonial administrator, conquered by Japanese forces, merged with Malaysia, and 

subsequently established as an independent nation on 9 August 1965. 

The young nation is 47 years old this year. 

14 th Century to the Present 

1891: Sir 

1800s: 

Stamford Raffles 

Singapore was a 

landed on the 

minute trading 

island, and it was 

port under the 

ruled by British 

rule of a Srlyijavan 

colonial powers. 

prince. 

1 94 2 -1945 

World War II 

resulted in the 

conquer of 

Singapore by the 

Japanese. 

1963: The British 

gradually 

diminished their 

control over 

Singapore, and 

Singapore merged 

with Malaya to 

from Malaysia. 

1965-2012 

Singapore broke 

away as an 

independent 

nation and 

became known as 

the Republic of 

Singapore. 

3 


Geography of Singapore 

Singapore is a small island nation of approximately 275.79 square miles (or 

714.3 square km), making it half the size of New York City. Notwithstanding 

the modest land area, the island boasts a whopping five million people, 

amounting to a population density of 2,801 people per square mile (or 7,257 

people per square km). It has been consistently referred to as the "Little Red 

Dot", a symbol of the nation's continuous success despite its physical 

limitations. 

Singapore is part of Southeast Asia and it is surrounded by neighbouring 

such as Malaysia, Indonesia, Thailand, Vietnam, Laos and Philippines. 

Department of Statistics Singapore website :http://www.singstat.gov.sg/stats/keyind.html 

4 


Matters of legal and cultural significance 

A) The development of family law in a common law country 

Singapore used to be a Crown colony under the powers of Britain. Inevitably, 

when the legal system in Singapore was first established, a partial adoption of the 

relevant English laws took place: English common law rules were made to 

govern marriages, as well as inter-spousal relationships. However some of the 

English laws were subjected to modifications to better suit the multi-cultural society 

of Singapore. This allowed religious beliefs and customs of the local inhabitants to 

be factored into the prevailing law 1 . 

Nevertheless, the multifarious process of encompassing local modifications by the 

Straits Settlements' judges caused a distortion of common law with local customary 

traditions and the resulting judicial principles were not substantial enough for a 

body of family law to be created. 

Family law in the 19 th and early 20 th century was in a lamentable state. 

B) Women's Charter 2 

(1) Introduction 

Prior to the Women's Charter being enacted, the regime in place was drastically 

unequal and there was nothing in law to protect the rights of the women of 

Singapore. At that time, Chinese and Hindu men could legally marry multiple 

wives, women were not allowed to keep their maiden names, and divorce did not 

accord the women any rights out of the marriage 3 . All these were permitted by the 

different ethnic groups' respective customary traditions, which were clearly 

posing unacceptable restrictions on the welfare of women. 

1 Halsbury's Laws of Singapore Volume 11 (LexisNexis, 2006 Reissue) at para 130.007. 

2 Women's Charter (Cap 353, 2009 Rev Ed). 

3 Foo Siew Fong, When Marriages Break Down: Rights, Obligations and Division of Property, at p 5. 

5 


There was a need to secure the rights and elevate the status of women, such that 

they would be accorded protection in a society that had been primarily dominated 

by males. The Women's Charter was enacted to accomplish this goal. 

In 1961, this Act was enacted and a radical change to family life and the marriage 

system occurred — both men and women can only marry a single spouse of the 

opposite gender legally, and legal protection is now afforded to divorced women 

and girls alike. 

At present, family law in Singapore is governed by both statutes and the common 

law, of which the latter supplements the former and allows for incremental 

development of the law. 

(2) Content of the Women's Charter 

The Women's Charter has successfully achieved the protection of the rights of 

women and girls in Singapore. By regulating the formation and termination of 

marriage, the spousal relationship and some of the economic aspects of family 

life 4 , the Women's Charter has enhanced the quality of life for married and divorced 

women. Furthermore, it provides for the punishment of offences against women and 

girls, affording them protection in the face of aggression. 

Divorce as governed by the Women's Charter has one ground: the irretrievable 

breakdown of the marriage. There are five separate ways to establish this proof 

of ground - adultery, unreasonable behaviour, desertion of two years, separation 

for three years with consent, and separation for four years. It is important to note 

that the quick exit of irreconcilable differences, whereby one can divorce their 

spouse due to character and lifestyle differences, is not found in the Women's 

Charter. 

4 Halsbury's Laws of Singapore, supra n 2 at Para 130.016. 

6 


C) Structure of Singapore’s family law system 

In Singapore, family law is administered by both the civil Family Court and the 

Shariah Court. This is because the laws regulating certain aspects of family life – for 

example the formation of marriage, the termination of marriage and the 

relationship between spouses, are different for non-Muslims and Muslims. There is a 

need for this as religious matters must be handled with a high degree of sensitivity to 

preserve the harmony enjoyed by this multicultural nation. As such, Singapore is 

certainly a prime example of how religious law is applied in a secular state. 

(1) The Family Court 

In 1995, the Family Court was established as a branch of the Subordinate 

Courts. This move consolidated the jurisdiction of the Subordinate Courts to a 

single court for the hearing and resolution of disputes concerning family law. 

Previously, the hearing of family law disputes was dispersed between the 

various courts. 

The Family Court possesses unrestricted exclusive jurisdiction over all non- 

Muslim persons 5 . Civil law administered by the Family Court is found in the 

Women's Charter, the general law which family matters are governed by. The 

court exercises authority over divorce, applications for maintenance, family 

protection, adoption, guardianship of children, annulment, judicial separation, 

protection orders, and the ancillary applications for maintenance, custody, and the 

division of matrimonial assets 6 . 

The congregation of all family matters at a core point and the fusion of the 

relevant social services with legal processes allows for specialization, which 

benefits parties that have come to the Family Court in need of services. This swift 

and effective resolution of issues also decreases animosity between parties. In 

light of working towards strengthening and preserving family ties, the courts may 

5 Women's Charter (Cap 353, 2009 Rev Ed) ss 3(1) — (2). 

6 Halsbury's Laws of Singapore, supra n 2 at para 130.021 

7 


ecommend mediation and counseling for the parties to settle their family disputes 

harmoniously. Further, a unified Family Court ensures that applications are 

processed more efficiently, resulting in cost savings for the litigants. 

Some parts of non-Muslim family law may govern Muslims in areas of family 

law 7 such that both the Family Court and Shariah Court have concurrent 

jurisdiction over the Muslims. Such jurisdiction is usually in relation to 

ancillary matters. 

(2) The Shariah Court 

The Shariah Court possesses exclusive jurisdiction over Muslim persons in 

areas of family life. This exclusive jurisdiction is derived from the 

Administration of Muslim Law Act ("AMLA") 8 . Muslim family law administered 

by the Shariah Court consists of Islamic theology derived from the Koran, 

Sunnah, ijma, qiyas and other secondary sources. The substantive provisions 

of the AMLA and Malay customs have been incorporated into local law. 

In Islam, divorce is generally discouraged and substantive reasons need to be 

provided before a married couple may resort to divorce 9 . In the Koran, there 

is a verse that when translated means "retain her on reasonable terms or 

release her with kindness". Hence, it is only when staying together is more 

harmful than being apart will the Koran condone divorce and make it lawful. 

There are different types of divorces in Islam, primarily the Talak, which 

caters to the husband's rights, and the Khulu', which caters to the wife's 

rights. 

The Talak is an intriguing form of divorce founded in Islam. It consists of an 

utterance by the husband that repudiates or cuts off the marital tie, following 

7 E.g. maintenance claims for Muslim divorces can be made in the Family Court in accordance with s 69 of the 

Women's Charter that applies to Muslims as well (with the exception that divorced Muslim women have to apply 

to the Sharjah Court for maintenance), applications for the division of matrimonial assets, applications for care 

and custody for any child and the filing of personal protection orders etc. 

8 Administration of Muslim Law Act (Cap 3, 2009 Rev Ed.). 

9 Syariah Court Singapore website 

 

8 


which the husband and wife refrain from intimacy for a period of three menstrual 

cycles 10 . The purpose of this is to give the couple a period of reconciliation. If the 

husband allows this period to end, he would be considered to have divorced his 

wife, with or without her consent 11 . 

Another form of divorce that features in the Muslim community is the Khulu', 

which is requested by the wife. This form of divorce is effected by mutual 

agreement, whereby the wife will offer to pay a dowry sum to her husband. In 

return, the wife will be released from her marriage tie. It is a consensual 

divorce, and it can be argued that a Khulu' is voidable if it is demonstrated 

that either of the parties lacked consent or was induced into acceptance by 

severe fraud or duress 12 . 

Even though these are extrajudicial forms of divorce, Muslims continue to 

abide by these rules. In the AMLA, it is further legislated for the Muslim 

husband and wife to attend the Shariah Court personally within seven days of 

the divorce, furnish the particulars required, and apply for a decree or order 

for divorce in the prescribed form 13 . 

D) Ancillary matters 

While the divorcing parties have the autonomy in deciding matters such as 

parenting plans or the plans for division of matrimonial assets, the court 

ultimately remains the overarching body in overseeing such agreements. 

The parties are required to submit an agreed, if not proposed parenting plan 

along with the writ of divorce. The aim of this practice is to encourage parties 

to come to a prior agreement before the divorce petition even kicks off. This 

negotiation is, in effect, an opportunity for the parties to interact, highlighting 

the Family Court's slant towards mediation and reconciliation. 14 

Similarly, 

10 David Pearl, A Textbook on Muslim Personal Law, at p 100. 

11 Ibid. 

12 Id at 121. 

13 Administration of Muslim Law Act (Cap 3, 2009 Rev Ed.) s 102(5). 

14 Halsbury's Laws of Singapore, supra n 2 at para 130.326. 

9 


when the matrimonial home is in the form of a public housing, the parties will 

have to fill in a Matrimonial Property Plan. 

In any event, if parties are unable to arrive at such an agreement, the court 

will, giving weight to all relevant and necessary circumstances, give an order 

on the ancillary matters; in particular, the custody, care and control and 

access of the children, the maintenance for the wife, and the division of the 

matrimonial home and assets. Crucially, in the division of assets, the Court will 

have regard to the needs of minor children. 

(1) Custody, care and control and access to children/Maintenance 

Given that the nature of issues pertaining to children is the most sensitive, the 

court will avoid making these issues acrimonious, lest the children become 

caught in an even uglier battle. 

'The issue of "custody" concerns the decision-making power over major 

aspects of the child's life i.e. which school the child should attend, which 

religion the child should embrace, and if the need arises, what medical care 

the child ought to receive. 

"Care and control" relates to day-to-day matters concerning the child's living 

arrangement, upbringing and well-being. The parent without care and control 

over the child will then be granted access rights 15 . 

Unless there are extremely extenuating circumstances, courts are more 

inclined to give orders of joint custody to both parents, with a firm belief that 

parental duties are ultimately a shared responsibility between both parents. 

This is in line with the Family Court's objective of preserving family ties. 

Care and control will be the responsibility of a sole parent, and as mentioned, 

the other parent will then have access rights to the child. Save for unique 

cases, for example, where the child has been abused by one parent, the courts 

15 Leong Wai Kum, 'Significant Provisions in the Women's Charter', in ch. 3 Singapore Women's Charter — 

Roles, Responsibilities and Rights in Marriage (2011). 

10 


are disinclined from denying a parent access rights. 

(1)(a)Maintenance of Children 

How about the maintenance of the parties’ child/children? The Court has the 

power to order a parent to pay maintenance for the benefit of a child/children 

during the pendency of any matrimonial proceedings, or when granting it or any 

time subsequent to the grant of a judgment of divorce/judicial separation/nullity 

of marriage 16 . This child maintenance will relate to issues concerning 

accommodation, clothing, food and education. 

In general, maintenance for children will usually terminate when the child turns 

21; but this is subject to exceptions 17 , for example if the child is still schooling. 

(2) Maintenance 

Given that in a divorce parties seek to terminate the relationship with one 

another, the idea of maintenance which implies a continuing relationship is 

extremely contentious. The law seeks to ensure that the divorced wife receives 

maintenance. Maintenance is awarded on the basis of need in accordance with 

the principle of financial preservation. 

It is a common misconception that orders for maintenance are gender biased 

and tend to protect former wives. This is untrue, as the court will consider all 

circumstances of the case before coming to a decision. In particular, they will 

consider the wife's financial needs, her income and earning capacity, the age of 

the parties and the duration of the marriage, the contributions that she had 

made to the family, the conduct of each party to the marriage, and the 

standard of living enjoyed by the wife prior to the divorce during the course of 

the marriage. 18 

To date, one of the highest maintenance orders ever sought before the 

16 Women's Charter (Cap 353, 2009 Rev Ed) ss 123(1). 

17 Women's Charter (Cap 353, 2009 Rev Ed.) s 69(5). 

18 Women's Charter (Cap 353, 2009 Rev Ed.) s 69(4). 

11 


Singapore court amounts to a staggering $450,000 19 . The request was made in 

accordance with the wife's monthly spending, and based on "actual historic 

payments" 20 with the view of maintaining the lifestyle she was used to. 

(3) Division of matrimonial assets 

What is the definition of “matrimonial assets”? Per S112 (10) of the Women's 

Charter, this is defined as any asset acquired before the marriage by one party or 

both parties to the marriage − 

(i) 

ordinarily used or enjoyed by both parties or one or more of their children 

while the parties are residing together for shelter or transportation or for 

household, education, recreational, social or aesthetic purpose; or 

(ii) 

which has been substantially improved during the marriage by the other 

party or by both parties to the marriage; 

(iii) 

and any other asset of any nature acquired during the marriage by one 

party or both parties to the marriage 

This however excludes any gift or inheritance by either party. As such, the Women’s 

Charter makes it clear that a matrimonial home acquired before or after the 

marriage will be considered a “matrimonial asset” to be divided between the parties. 

The court is empowered to consider financial and non-financial contributions by both 

parties and needs of the children when making an order to divide the matrimonial 

assets between them, in a way it considers just and equitable. Factors that the 

court will consider include: needs of the minor children, monetary contributions by 

each party towards acquiring, improving or maintaining the matrimonial asset; any 

debt undertaken by the parties; the extent each party cared for the welfare of the 

family (non-financially) and the giving of non-material support by one party to 

another 21 . 

19 Chua Xin Yin v Nurdian Cuaca [2010] SGDC 540. 

20 Id at [26].1 

21 Women's Charter (Cap 353, 2009 Rev Ed.) ss 112(1) — (2). 

12 


Family Law in Asia 

I am not an expert in the family law regimes of other countries. However in 

this paper I have given an overview of the development of family law in 

Malaysia, Indonesia, Thailand and China- the significant attempts they have 

made in according greater rights to women and fairer outcomes in divorce 

proceedings. 

A) Malaysia 

Malaysia used to be part of the former British colony and boasts a similar legal 

landscape to that of Singapore. Prior to the enactment of the Law Reform 

(Marriage and Divorce) Act 1976 22 , non-Muslim citizens of Malaysia married 

according to their own respective customs, with various instruments of 

22 Law Reform (Marriage and Divorce) Act 1976, Act 164 (2006 Reprint). 

13 


marriage solemnization in place 23 . For example, in the case of Christian 

marriages, Christians were advised to register their marriage under both the 

Christian Marriage Ordinance and the Civil Marriage Ordinance, the latter of 

which expressly disallows polygamy. Only then could Christian wives ensure 

that their marriage remained a monogamous one. 

Inevitably, the plurality of legislation led to many unenviable decisions and the 

enactment of the said Act (analogous to that of the Women's Charter) has thus 

come as a blessing to regulate customary marriages and consolidate an 

authority for non-Muslim family laws. The Act has also introduced a conciliation 

procedure for divorce, which is similar to the mediation that occurs before a 

divorce is petitioned in the United Kingdom. 

On the other hand, Muslim citizens have their Islamic law regime which is within 

the legislative authority of the State and administered by the Shariah courts 24 . 

Notwithstanding this, the Act has certainly improved the quality of marriage for 

non-Muslim women by codifying the Shariah 25 . The rights of women were spelt 

out for the first time, reducing the number of women ignorant of their legal 

rights. By tackling this problem, more women were aware of what conduct their 

Muslim husbands were permitted to engage in. 

Subsequently, the Islamic Family Law Act 1984 was passed to enact certain 

provisions of Islamic law in relation to marriage, divorce, maintenance, 

guardianship and other matters connected with family life. Islamic family law, 

though uniform in content, is diverse in its application in the various states of 

Malaysia 26 . Hence, further amendments have been made in an attempt to unify 

its application. 

It is worth noting that both the Act covering non-Muslim family laws and Muslim 

family laws have reached the same conclusion as to the manner in which property 

23 Mehrun Siraj, Women and the Law: Significant Developments in Malaysia, at p 561. 

24 Ibid. 

25 Mehrun Siraj, Women and the Law: Significant Developments in Malaysia, Law &Society Review vol 28 number 

3 at p565. 

26 Raihana Abdullah, A Study of Islamic Family Law in Malaysia: A Select Bibliography, International Journal of 

Legal Information vol 35 number 3 at p11. 

14 


should be divided between husband and wife 27 ; that is by identifying the direct 

contributions and subsequent improvements made to the property and dividing the 

value of the property fairly. 

B) Indonesia 

As a former Dutch colony, Indonesia retains the legacy of Roman-Dutch law, as 

well as adat law which comprises unwritten customs of indigenous 

Indonesians before the Dutch colonial conquest. The amalgamation of these 

laws resulted in modern Indonesian law as we know of today. Indonesia, with 

90% of its population followers of the Islamic faith, is also the home of 202 

million Muslims of all ages 28 . 

27 Leong Wai Kum, "Book Reviews" SJLS [1998] at 205 — 207. 

28 Pew Research Centre, Mapping the Global Muslim Population 2009, at p 5. 

15 


Unsurprisingly, pre-1974 Indonesian family law was in an extremely 

unsatisfactory state for women. There were laws condoning practices such as 

forced marriages, child marriages, polygamy, and a lack of consent for divorce. 

What may seem to us to be common marital rights, for example, maintenance, 

custody and child support, were unknown to Indonesian women. 

In 1974, the government passed a unified code for family law. This represented 

a major victory for Indonesian women who had been striving for emancipation 

for the past 45 years. Albeit an alleged form of political initiative towards the 

country's unification 29 , the unified code made significant inroads into marital 

affairs. Marital practices that were previously effected by the unilateral decision 

of the Muslim male and the mere registration of his intent now have to be 

sanctioned by the court. 

In polygamous marriages, the court requires the applicant to prove to the court 

that he had permission from his current wife or wives and that he had the ability 

to support the extension of his family 30 , thus substantiating the taking of more 

wives. Furthermore, divorce procedures were changed such that petitioners had 

to appear in court with reasons to justify the divorce. 31 The stipulation of a 

minimum age for marriage reduced child marriages as well 32 . 

Fundamentally, through the disincentive of having to seek prior approval from 

the courts, it has become significantly harder for a Muslim man to groundlessly 

attain a divorce and engage in polygamy 33 . 

The different states of Indonesia have similarly followed suit and implemented 

unification statutes of their own. These changes have transformed the lives of 

married women all over Indonesia, paving the way for better treatment of 

women and fairer judicial outcomes in divorce proceedings. 

29 June S. Katz and Ronald S. Katz, "The New Indonesian Marriage Law: A Mirror of Indonesia's Political, Cultural 

and Legal Systems", The American Journal of Comparative Law vol 23, No. 4 at p 681 

30 See New Marriage Law, Art 4 and 5 and Elucidation. 

31 Id. at Art 39(1) and 39(2). 

32 Id. at Art 7(1). 

33 June S. Katz and Ronald S. Katz, "Legislating Social Change in A Developing Country: The New Indonesian 

Marriage Law Revisited", The American Journal of Comparative Law, Vol 26 No.2 at p 316. 

16 


C) Thailand 

Unlike most of the other Southeast Asian nations, Thailand was never colonized. 

However, most of the laws in Thailand were modeled after a European style 

framework, containing elements of French civilian tradition coupled with German, 

Swiss and Japanese models. 

Perhaps the most significant part of the marriage laws in Thailand was that 

polygamy was legal until 1935. This meant that it was rather commonplace for 

men, particularly those from the upper class, to have several wives. 

Furthermore, men had the right to treat their wives as private property and 

inflict any punishment on them as he saw fit. The women's subservient position 

in the Thai society was further exacerbated by the men's power to manage all of 

17 


his wives' monies and land that she had brought into the marriage 34 . 

The Monogamy Act was introduced in 1935 in a bid to curb the problems of 

polygamous marriages. However, inherent problems such as the inefficiencies of 

the central marriage registration system still meant that marriage inequalities 

remained prevalent. 

A turning point in Thailand family law came in the late 1960s when welleducated, 

outspoken females from the upper class of society spoke out against 

issues pertaining to matrimonial property management and the prevention of 

double marital registration. Their voices served as a catalyst for the increased 

emancipation of females in Thailand, in particular with regards to domestic 

violence and reproductive rights. 

Previously, both men and women had the right to divorce on judicial grounds; 

but, only men could divorce their wives on grounds of adultery, and not vice 

versa. Unless the woman was able to prove that her husband was in fact 

committing bigamy in providing for another woman as his mia not (minor wife), 

she would not be able to divorce her husband. In 2007, this law was revised 

such that both parties could divorce each other on the grounds of rape and 

adultery. 

Domestic violence, a somewhat commonplace occurrence in Thailand previously, 

was also tackled by the introduction of the Domestic Violence Victim Protection 

Act 2007 35 . 

As such, Thailand has greatly progressed in its development of family law and in 

according women greater rights. 

34 Dr Kanwafjit Soin, Keynote Address "Women's Charter to Family Charter", 10 June 2009. 

35 Domestic Violence Victime Protection Act, B.E. 2550 (2007). 

18 


D) China 

Family and matrimonial law in China is governed by the Marriage Law 36 . Prior to 

the enactment of this provision in 1950, China was predominantly a patriarchal 

society. The dominance of men who enjoyed superior social status culminated in 

practices such as compulsory arranged marriages and the neglect of children's 

rights and interests. The enactment of the 1950 Marriage Law aimed at 

abolishing this prevalent problem. 

The Marriage Law was revised again in 1980, targeting issues such as the 

freedom of marriage, monogamy, equality between men and women and the 

protection of women and children's rights. More recently, in 2001, further 

amendments were made to the revised Marriage Law, in hopes of reducing 

instances of gender inequality upon which their society was founded on, and other 

deeply entrenched patriarchal practices. 

36 Charles ,i. Ogletree, Jr., Rangita de Silva-de Alwis, "The Recently Revised Marriage Law of China: The Promise 

and the Reality" (2004) 13 Tex. J. Women & L. 251. 

19 


The issue of property rights in China remains a primary concern in the area of 

marriage law. Women's property rights are theoretically protected by 

constitutional and legislative guarantees. It is stipulated that properties obtained 

during the subsistence of marriage will belong to both husband and wife 37 ; at 

divorce, common property will be divided based on mutual agreement 38 . Further, 

if parties fail to reach an agreement in relation to the division of property, the 

court is inclined to make a division favouring the wife and child. However, 

despite these protective measures, weak enforcement mechanisms still results in 

women remaining largely disadvantaged when faced with issues of division of 

property. Moreover, rigidities in the allocation of houses in provinces and 

municipalities mean that the divorced women are usually at the lowest spectrum 

of eligibility for housing. 

The Revised Marriage Law makes domestic violence a ground both for divorce 

and for civil compensation at divorce. However, without a clear definition of 

what constitutes domestic violence, the honorable objectives behind this law 

have not been successfully achieved. For example unlike in Singapore 39 , 

psychological injury caused by domestic violence is rarely an actionable wrong 

in China; only violence perpetrated by a current spouse is actionable. 

Conclusion 

The family structure forms the basis of our social fabric. As such, family law has 

37 Marriage Law, Article 17. 

38 Marriage Law, Article 39. 

39 Women’s Charter (Cap 353, 2009 Rev Ed) s64. 

20 


een and always will be an important tenet of Singapore's legal system. In a 

divorce, it is inevitable for parties to suffer from emotional scars and anguish. 

Children can hardly be said to be in a better state, seeing how they are often 

dragged into a tragic tug of war when it comes to matters of custody, care and 

control and access. As such, the law plays an extremely critical role in 

protecting parties to a divorce and what is most valuable to them —their family, 

children, and homes. 

What the Women's Charter has achieved for Singaporean women is unrivalled 

in the island's history and with the resolve of the Family Court and family 

lawyers, the best interests of these parties will be passionately fought in years 

to come. 

21

Singapore 2012 Educational Programme Session 1 - International ...

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