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Gloria James-Civetta

M/s Gloria James-Civetta, Singapore

gloria@gjclaw.com.sg

 

Introduction

The Covid-19 pandemic swept the world in an unprecedented manner, creating global chaos and uncertainty. In an attempt to control the spread of the virus, many countries closed off their borders and went into a lockdown. On 3 April 2020, the Singapore government announced a series of measures to combat the Covid-19 pandemic, including a ‘circuit breaker period’ (CB period) beginning on 7 April 2020.^[1] This CB period was subsequently extended to 1 June 2020.^[2] Most of the polices implemented by the Singapore government were to restrict movement and promote social distancing in the community in the hope that the number of Covid-19 infections would be reduced. As such, a mobile application known as TraceTogether, which uses Bluetooth signals to track movement,^[3] and the SafeEntry digital check-in system were launched.^[4] Both are innovative technology implemented by the government to allow for easier contact tracing.

In contrast to the worldwide call to limit social activity and maintain social distancing, there has instead been an unparalleled increase in closeness within family homes. For many, isolation is only from the outside world. Within the home, married couples find themselves having to spend an unusual amount of time with their spouse and/or children. Such a situation can inevitably expose underlying conflicts between the couple or exacerbate unresolved issues. This is further aggravated by the measures that include a complete shutdown of non-essential businesses. Business owners are confronted with serious costs, while employees face the threat of unemployment. Many Singapore residents have had to wrestle with economic hardship on top of family issues at home. In light of such pressures, it is unsurprising that emotions bubble over.

In this article, we explore how the pandemic has significantly affected Singapore court proceedings and family law jurisprudence on divorce, division of assets, and children issues as caused by the new way of family life in Singapore, the new normal.

The rise of technology

The Covid-19 pandemic has affected Singapore court processes and shone a strong spotlight on the role of technology in the legal system.

All hearings in the Family Justice Courts (FJC) and Syariah Courts that were scheduled during the CB period have been adjourned, unless the matter is assessed to be essential and urgent.^[5] Even where physical hearings are granted, only lawyers and/or litigants are allowed to attend the hearing.^[6] All parties are also required to maintain safe-distancing measures. Fortunately, as the court filing system is digitalised, actions continue to be commenced in court through Singapore’s e-litigation system.Court hearings and mediation sessions have been gradually advancing to the digital realm in the administration of disputes during the pandemic. Wherever possible, hearings and judgments are being conducted via tele- or video-conference facilities, such as Zoom.^[7]

Law firms and lawyers have also had to navigate this sea of uncertainty using the oars of technology. As law firms have had to adhere to the work from home measures, negotiations between lawyers and/or clients are confined to online means: email, telephone calls, and video calls.

If there is one thing the family law process can learn from this pandemic, it is that technology can be used as tool towards the administration of justice. This was foreshadowed by Singapore’s Chief Justice Sundaresh Menon (CJ Menon) in his opening addresses to the legal profession in 2019^[8] and 2020.^[9] Even though CJ Menon had spoken of technology in relation to globalisation and in light of a relatively healthy world, his words still ring true during this current pandemic. Particularly, CJ Menon wisely pointed out in 2019 that: ‘technology has already begun to transform our conventional notions of where and how disputes are resolved.’ He continued in 2020 to highlight particularly the role of technology in Singapore’s ongoing work to realise the model of an ‘online court’, which is exceptionally apt in these times.^[10]

Effect on ancillary matters

This pandemic will undeniably shape family law jurisprudence in the area of divorce and the ancillary matters which accompany it.

Division of matrimonial assets

The FJC strives to adjudicate matters relating to matrimonial property based on equitable principles, which has now become more challenging due to a flux in global economics and new social distancing measures to adapt to prevailing conditions. For parties currently in the middle of, or who are planning a divorce, the potential economic downturn caused by Covid-19 has affected the valuation of assets and its subsequent division.

The approach taken by the Singapore Courts in the division of matrimonial assets is to analyse the parties’ direct and indirect contributions throughout the marriage.^[11] With the changes in the job market and work schedules, the usual family arrangements are inevitably affected: the family’s sole breadwinners may find themselves out of a job, or parents who are required to work from home may have to take up more responsibility for the care of the children and household. As such, the direct and indirect contributions of each party towards the marriage is likely to change and will affect the courts’ division of assets. The change of circumstances caused by the Covid-19pandemic is pertinent where the divorce process has already been commenced. It remains to be seen whether and how the FJC will adjust the ratio of contributions to account for these circumstances.

Valuation of matrimonial assets

Due to uncertainty in the real estate and job market, many citizens have lost their jobs,^[12] sellers are unable to open their property for viewing due to Covid-19safe-distancing measures,^[13] and property values have dropped.^[14] This is particularly difficult for spouses who plan to transfer their share of their matrimonial property to the other or for couples who plan to sell their property as the market value of the property is likely to be valuated at a lower amount in this trying economic climate. This means that one spouse may be at a disadvantage as he/she will not be getting the true value of their share of the property. The timing of the legal proceedings is therefore now more significant and is an important factor that family law practitioners have to take into account in their analysis and advice. At this moment, the court has been silent on policies and directions to parties failing to sell government flats within six to 12 months from the date of final judgment for the divorce during this economic downturn. If there are no further directions, the FJC may see an influx of adjudicated cases returning for an application for extension of time to sell properties unsold within the set timeframe.

Other important matrimonial assets affected by the economic downturn are shares and stock options. Many major stock exchanges around the world are reporting record lows.^[15] For parties who are in possession of substantial shares or stock options, the current legal approach is to encourage them to consider the possibility of transfering of shares or stocks instead of liquidation at this point in time. This will allow parties to realise the value of the shares and stock options in the future.

Some clients have considered throwing in the towel and to accept any settlement sum. They simply want to move on.

Child and spousal maintenance

Parties’ income and future financial earning capacity is an important factor in the Singapore court’s determination of child and spousal maintenance. As the length of this pandemic and its effect on the global economy is unknown, the FJC may find it challenging to predict future circumstances when deciding for example, the length of time one should receive maintenance as this largely depends on whether parties have and will be able to keep their job. Consequentially, family law jurisprudence may adapt by considering new economic conditions and more conservative decisions regarding child and spousal maintenance.

The increase in job retrenchment may also mean increasing number of parties contravening maintenance orders. There may be an influx of enforcement proceedings against spouses for the failure to fulfil maintenance obligations during the economic downturn. Other parties may consider variation of maintenance orders on the basis that there has been a ‘material change in circumstances’ such as an employment situation.

Effect on co-parenting

I have seen a rise in queries regarding how child access orders should be interpreted in light of the Covid-19 pandemic and the measures rolled out by Singapore’s government. Many clients have questioned if it is within their right to deny access to the other parent or whether the other parent is allowed to prevent them from having access to the children.

On 10 April 2020, the Singapore government amended the legislation to state that child access orders can continue.^[16] This clarification provided much needed clarity to many parents, even though, in consideration of the measures to enforce safe-distancing, I still see cases where the care and control parent has rejected overnight access due to genuine concerns about the safety of the child moving between households. Additionally, court-ordered supervised exchange and visit arrangements have been suspended as Divorce Support Specialist Agencies operations have been suspended.^[17] In view of the above problems parents face due to Covid-19, we have reminded parents to bear in mind that the safety of the children is the top priority and advised parents tolist and negotiate alternative care arrangements through remote means such as through Skype or Facetime. Otherwise, parents may choose to formulate safety plans for children (eg, agreeing on wearing of face masks, arranging for drop offs during access at less crowded areas than previously agreed on etc) to allay parties’ fears. Remote access with the children is especially important if either parent has travelled out of Singapore recently or come into contact with a possible Covid-19 patient.

Parents who have existing court orders regulating access times during school holidays did not know how they would be interpreted by the courts when the Ministry of Education announced that the June school holidays were to be moved to the period of 5 May to 1 June 2020 due to Covid-19. Change in school holiday dates ultimately means that court orders lose their intended effect. In an unprecedented move to reduce doubts and ensure that the change in school holiday dates does not affect the co-parenting routine, the FJC adapted by promulgating policies to maintain the integrity of existing family law jurisprudence specifying access regarding school holidays.^[18] Policies directed any reference to the June or mid-year school holidays in any existing court order on access to be interpreted to cover the revised dates, that reference to any week in June or mid-year school holidays shall be interpreted accordingly in relation to revised dates, and the mid-term break will be classified as school holidays for the purposes of school holiday access. This is another example of how Covid-19 shaped family law jurisprudence.

In any case, the FJC has constantly reminded and encouraged parents to have mutual discussions and to co-parent due to the closure of the courts during the CB period.^[19]Even before the Covid-19 pandemic, High Court Judge Debbie Ong reiterated in the FJC workplan 2018 that litigation should be a last resort.^[20] Family law practitioners also have an ongoing duty to remind their clients of alternative dispute resolution options and to resolve proceedings amicably, constructively, and reasonably.^[21] It is hopeful that this Covid-19 pandemic will drive the point home that litigation and trials in court should be considered as a last resort.

Conclusion

The Covid-19pandemic has significantly affected all areas of family law in Singapore from how the FJC functions to its role in the administration of justice. The focus has shifted towards technology and more emphasis has been placed on collaborative methods of dispute resolution and turning to the courts as a last resort. The Singapore legal system and its players have shown versatility and adaptability in the face of adversity.

With regards to the new reliance on technology in most areas of family law and procedure in this pandemic, it will be interesting to observe if the practices continue. If so, Covid-19would have changed the role of technology in the Singapore Courts’ administration of justice forever.

 

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