Académique Documents
Professionnel Documents
Culture Documents
Jurisdiction
- Divorce, judicial separation and nullity: Part X of the Women’s Charter (Charter)
- Division of matrimonial assets: Part X of the Charter
- Guardianship, custody, care and control of and access to children: Guardianship of Infants Act; Part X of
the Charter
- Property disputes between spouses: Section 59 of the Charter
- Ancillary matters in certain Muslim divorces: Administration of Muslim Law Act
- Spousal and child maintenance: Parts VIII and X of the Charter
- Enforcement of maintenance orders: including orders made by the Syariah Court and the maintenance of
Parents Tribunal
- Reciprocal enforcement of foreign maintenance orders
- Protection against family violence: Part VII of the Charter
- Adoption cases: Adoption of Children Act
- Juvenile Court matters: Children and Young Persons Act
Principles in Practice
- Access to justice – Simplified procedure, legal clinic, public education talks, pamphlets,
- website, evening opening hours etc
o a lot of applicants in person not ble to afford legal repn or do not want legal repn
o so simplified proced = forms easier to fill
o legal clinic – run by vol lawyers and lawyers fr legal aid bureau
o complaints also taken
- Expeditious justice -- Case management
- Holistic solutions--Counselling and mediation
o counseling by trained counselors
o mediation – goes to root cause of problems; not nec asking fo reconcilation
Jurisdiction in Divorce, Judicial Separation and Nullity Cases
- Jurisdiction in Part X proceedings and Procedural Rules in Part X proceedings
- Divorce case process & procedure
Transfer of proceedings
10. Power to transfer any proceedings to any other court or to or from any subordinate court, and in the case of
transfer to or from a subordinate court to give any directions as to the further conduct thereof, except that this
power shall be exercised in such manner as may be prescribed by Rules of Court.
- The Supreme Court of Judicature (Transfer of Matrimonial, Divorce and Guardianship of Infants
Proceedings to District Court) Order 2005
- Most recent Transfer Order made on 28 December 2005
- District Court exercises “transferred jurisdiction” in all the proceedings specified in the Transfer
Order except where the ancillary matters are asserted by either party to have a gross value of or above
$1.5 million.
Procedure
133. Subject to the provisions of this Part, all proceedings under this Part shall be regulated by the Rules of Court.
- The ROC provides that ROC does not apply to proceedings under Part X (O. 1, r 2(4))
(4) These Rules shall not apply to proceedings of the kind specified in the first column of the following Table
(being proceedings in respect of which rules may be made under the written law specified in the second column of
that Table), except for the provisions specified in the third column of that Table:
Proceedings Written Law Applicable Provisions
5. Proceedings under Part X of the Women’s Charter, s.139. Order 63A and items 70B, 71, 71D
Women’s Charter (Chapter 353) to 71I and 79 of Appendix B.
(except appeals to the Court of
Appeal).
- The Charter provides that the Judges of the Supreme Court may make rules concerning the practice and
procedure under Part X (Section 139 of the Charter)
- Matrimonial Proceedings Rules (MPR) made and apply to all part X proceedings
- SCJA (Transfer of Matrimonial, Divorce & Guardianship of Infants Proceedings to District Court) Order;
- ROC (in particular O28 - originating summons procedure and O84 - );
- Practice Directions.
Summons Procedure
- Step 1: Filing of complaint;
o To commence maintenance proceedgsm, applicant/complainan to go to registry 1 of fam court
o Complaint prepared by complainant or sol
o If illiterate and unrepresented, court interpreter assists
o Complainant signs and affirms complaint before magistrate who also signs complaint
o When magis satisfied tt suff grd for proceedings, issues summons s136 CPC – has charg attched
to it and date which respondent to appear in court
o Complainant pays $1 for summons
o Contents of complaint
- Name and address of respondent for easy service of summons
- Capacity of complaiantn ie married woman, guardian, custody etc
- Name and ages of chidren
- Amt of maintenance sought
- See std form desgiend by fam registry
-
- Step 2: Service of summons;
o Resp is sent notice to attend fam court registry to accept service of summons
o Complainant also to be present on day appted for this purpose
o If both parties present then summons served and mediation carried out by court mediator if
parties agree to have matter mediated
o If settm then aprtis brought before judge to record
o If not attend court on date stated on summons
o If resp x attend registry to accept service of summons, will be sderved by ocurt process erver at
his resident or place of employment
o Complaintn must accompany him to identify respondent
o In certain cases court may authorize some other person to serve
o If x be personally served s43 CPC then application for substituted servie to be sought section 44
CPC – in practice involves process server affirming affidavit of non service, stating reasons, for
endorsemtn by magis for subst service
- ADR
- Step 3: Case mentions – still offer counseling and mediation services at this stage if parties willing – save time
and trouble of going through trial;
o In fam court on date stated in summons
o Parties to appear personally even though have counsel acting for them
o Because when resp appears in court will be adksed to plead to charge s180(a) CPC – plea to
come fr mouth of accused: R v Tan Thian Chai [1932] 1 MLJ 74
- Facts: An accused person should plead guilty or claim to be tried by his own mouth
and not through his counsel or advocate. Queen v Roopa Gowalla 15 WR 42 followed.
- In this case the accused were charged with voluntarily causing grevious hurt under s
325 of the Penal Code.
- On 17 May when the case came up before Mr GC Dodd the then Criminal District
Judge the first accused pleaded "guilty" but the second accused pleaded "not guilty" to
the charge. The learned District Judge, not being satisfied that the first accused
understood the charge, had it read over and explained to him a second time whereupon
he also pleaded not guilty to the same.
- On 13 July 1932 the case came up for trial before Mr C Wilson, the present Criminal
District Judge.
- The charge was read to the accused and before they could plead to it through their own
mouths their counsel pleaded guilty on their behalf to a charge of assault whereupon
the District Judge convicted and sentenced them to six months` rigorous imprisonment
each without option of a fine.
- The accused appealed to the Supreme Court on the ground that they never pleaded to
the charge and that their counsel did not have any authority from them to plead guilty.
They were not bound by their counsel`s plea.
- WHITLEY J agreed with the submission of counsel for the appellants and set aside
the conviction and sentence and ordered the case to be tried de novo before another
District Judge
o If resp x appear court issues warrant of arrest s54(b) CPC – complainant to pay further $ for
warrant
o If both parties in courtm district judge may fix case for mediation
- ADR - – file affidavits, exchange doc, draw up lost of expenses, medical and police reports to be exchanged
etc; date set for hearing thereafter
o If no settm parties brought befor judge for trial date to be fixed – judge gives directions on
further conduct of matter for efficient haring
o Hearing in manner of summary trial s180 CPC
o If satisf settm at mediation court will make order, prepared by clerk of court and copies given to
comp and resp – no nec for sol to file in court draft orders for approval by court
- Step 4: Hearing/ Trial:
o at hearing court wil hear evid of comp and all other evid fr comp to support clkaim for
reasonable maintenance s180(c),(d)
o resp or counsel will cross examine complainant and if summoned witnesses to give evid, those
witneses s180(e)
o after hearing complainant’s case court will hear resp’s evid – evid taken before tt of other
witnesses of defences180(k)(ii)
o at close of defence case, court will hear submissions before making order
o matters to be considered
- compl to satisfy court on bal of prob tt resp has neglected or reused to prov her
reasonable maintenance; neglect must be culpable neglect
Facts:
This was an application by the wife to a magistrate`s court under s 69 of the Women`s Charter (Ordinance No 18 of
1961) for maintenance. The wife had left the matrimonial home. The application for maintenance was heard by the
magistrate who made an order requiring the husband to pay the wife the sum of $175 a month with effect from 1
September 1967.
The husband appealed against the maintenance order on two grounds: (1) that the magistrate erred in fact and in
law in holding that the appellant/defendant treated the respondent/complainant with cruelty; (2) that the magistrate
erred in law in holding that the appellant/defendant had neglected to maintain the respondent/complainant.
Facts: This was an appeal against a maintenance order made by a Magistrate. The parties were married in 1955.
They had quarrels over the wife`s dowry and in 1956 the appellant sent the respondent to her parents` home to
settle the matter of her dowry and to change her attitude towards the appellant completely. In June 1957 the
appellant, on hearing from the respondent that she was planning to return to him, wrote to her that she was to return
only when sent for and that he had no intention of meeting her at the Singapore Airport. Both in 1958 and 1959 she
came to Singapore and made many attempts to meet the appellant but was unsuccessful. She then made a complaint
to a Magistrate about the appellant`s failure to maintain her. The appellant`s reason for not sending for the
respondent was that he was not satisfied that she had changed her attitude towards him. Another reason the
appellant had for not sending for the respondent was that her father had not given her the property which he
promised to give her on her marriage. The Magistrate came to the conclusion that the appellant was wholly to
blame for the break-up of the marriage, and awarded maintenance at the rate of $450 a month effective from 1 July
1957.
Two points arose for determination: (i) whether the potential earning capacity of the respondent should have been
taken into consideration in assessing maintenance; and (ii) whether the Court should interfere with the exercise of
the Magistrate`s discretion as regards the date of commencement of the maintenance order.
Held : (1).the learned Magistrate was wrong in not taking into consideration the potential earning power of the
respondent and therefore the maintenance awarded should be reduced to $300 a month; (2).the date fixed by the
learned Magistrate for the commencement of the maintenance order resulted in injustice being done to the appellant
and the date of the commencement of the maintenance should therefore be altered to a date nearer the date when
the respondent made the complaint to the Magistrate, that is 1 February 1959.
PREPARATION FOR STATUS CONFERENCE, PRE TRIAL CONFERENCES AND ANCILLARY PRE
TRIAL CONFERENCES IN FAM COURT
- Purpose is for court to find out status of action and give dir for disposal or resolve case in expeditious manner
- Hence impt tt lawyers able to furnish rel info
- See ePrac Dir No 1 2005 para 88 and 89
Mediation Counselling
Neutral party conducting mediation – usually conducted by Trained counsellor conducting session, focused and
single mediator. Co-mediation may be conducted by a legally looking past emotions.
trained mediator and counselor. Useful for mediator to have
some knowledge of general law
Tailor- make orders Specialised form of mediation
Usually deals with financial issues Usually deal with reconciliation and custody matters.
Parties have freedom to decide what they want. Flexible Assisting parties to reach an amicable solution and
process. decision.
Types of Mediation
- Multiple session:
o No pressing time constraints
o High level of conflict
o Suitable for comprehensive mediation where there are several contentious issues to be resolved.
- Caucus mediation:
o Meets each party separately but both parties always remain in the vicinity.
o Parties come together only at the final stage of the mediation process.
- Shuttle mediation:
o Mediator shuttles between both parties who remain physically apart.
o Mediator acts as conduit passing messages and actively negotiating on behalf of the parties.
o Rarely used for family disputes because mediator rather than parties becomes main negotiator and
creates opportunities for miscommunication and heightens concerns about impartiality.
o Usu where internatinal disputes or separation
Mediation Process
- Use of third party to assist parties in resolving dispute
o 1. – involving breakdown of marriage, children, financial support and matr properties – without
resorting to litigation
o 2. also rsolves disputes after suit commenced to avoid adjudication by court
- for parties to arraive at own agreement
- aim
o resolution of dispute
o may focus on immediate dispute or side disputes
o re-est communication bet parties and prov neutral forum for them to meet face to face; mediator
as catalyst and facilitator
- characteristics of mediation
o (mediation is a voluntary process);
o Decision making is purely voluntary on the part of the parties. – mediator x power to impose
settm
o Mediator there only to assist and will intervene as and when necessary – impartial and may offer
suggestions but x coerce parties into decision
o come with open mind
- willingness impt
- also parties must be in position to make own decisions – if controlled by third parties
then not useful
- eq of bargaining power bet parties also impt
o confidential – fully entitled to pursue legal rights in hearing, not bound by anything offered in
mediation
o flexible process – no rigid structure to comply with and no formalities – mediator can change
style during course of mediation based on circumstance
- focus – on resolution of dispute; mediator only deals with other sec disputes insofar as it aids in resolution of
main dispute; in fam court main prpsoe of mediation is to encourage parties to narrow issues in contention or
reach agreement
- => at outset, Sorting out issues (defining the problem);
o est whether to deal with specific issue eg custody or all potential disputes
o Ascertain views and disputes without interruption or contradiction.
o give and take?
o Compromise possible
- Sorting out the ‘facts’ (information gathering);
- Exploring and developing options (expanding the pie);
o types of access
o facilitate negotiation process – explain and point out the impracalities of proposals and deflated
exaggerated positions
o postpone dealing with more contentious issues and deal first with issues where parties have
signif diff or are in agreement
- Reaching consensus:
o Summarising and re-defining the issue
o Focusing on children’s and parties’ best interests and future
o Looking for win-win outcomes
o Reality checks (especially regarding costs – may be exponentially high)
o Managing emotions
- Special considerations: inequality of bargaining power; welfare of children
o not to use children as bargaining chip
o Note: financial means, domestic violence etc…
- Sealing the agreement: drafting the court order
o Parties must understand the agreement
- Recording the court order
Family EFS
- Applies to all divorce and originating summons applications filed on or after 15 December 2003
- Does NOT apply for family violence matters and maintenance matters (in a non-divorce situation) governed
by the CPC