Managing transnational divorce in Singapore: Child custody, relocation, and family well-being

With non-Singaporean citizens making up almost 40% of Singapore’s population, there is no doubt that this country is an international hub and a centre of expatriate activity. Transnational marriages are on the rise, and with that, transnational divorce. As such, Singapore’s legal system and rules governing day-to-day life are not only developed based on the ethos of local custom and culture, but necessarily also account for the cross-border and multi-jurisdictional composition of Singapore’s public.  

In the family sphere, such international issues often take the form of post-divorce relocation, where the family unit had originally moved to Singapore because of an opportunity that arose for one spouse, and that family unit has subsequently broken down. It is often difficult for the other spouse to justify remaining in Singapore when the main anchor for their being here no longer exists.  

If that spouse was childless, the world is their oyster for the first time since being married, they only have themselves to think about, and their next step is but a new adventure. Not so if the parties had children. It cannot be disputed that once children become involved, they become the core of any decision-making. 

As one can imagine, where a typical expatriate family in Singapore has multiple ties to multiple countries around the world, the matter of what happens to the children post-divorce can become very complex. How do the Singapore courts decide who and, more importantly, where, the children are to live ? Are they to remain in Singapore or should they be allowed to move to another country if one parent wishes to leave and the other wishes to stay ? Which parent will make the decisions on their upbringing ? Who will fund their expenses ? And most importantly, how can we ensure that despite the breakdown of marriage, the parents’ individual bonds with the children remain unaffected ? 

In this article, we deal first with the broader issue of the children’s upbringing that is, custody, care and control, and access to the children, with a particular focus on the issues that may arise when one member of the family wishes to enjoy their post-divorce life outside of Singapore. We then deal briefly with who is responsible for funding the children’s expenses, whether they are in or out of Singapore. 

Custody, care and control, and access 

In Singapore, custody of a child relates to the‘big’ life decisions to be made, such as on their education, religion, healthcare, and even which country that child is to live in. Generally speaking, custody is awarded to both parents jointly, and as such, both parents are required to consult each other on and decide these matters together; the basis for this is the recognition that it is generally in the child’s interests to have both parents play an integral role in the child’s life, and so any deviation there from must be approached with caution and for good reason. 

Care and control, on the other hand, relates to day-to-day decision-making, including who the child lives with, and handling the child’s daily necessities. Typically, care and control would be awarded to the parent who is more likely able to be physically present for the child and to address any immediate issues. The other parent would then be granted access, which can be structured or liberal, restricted or unrestricted, and the whole spectrum in between, with the aim of continuing to nurture that parent’s bond with the child, despite the child living with the other parent.  

It is possible for Singapore courts to make orders for shared care and control, in situations where the family dynamics clearly show that it would be suitable to do so. In this case, the child will split the time between both parents. However, there is no presumption in favour of a shared order, as the reality is that often, parental conflict and the practicalities of post-divorce life may mean that more harm than good would come from a shared arrangement. In such cases, the more usual orders for care and control being granted to one parent and access granted to the other should be sought.  

What, then, of a situation where one parent wishes to relocate out of Singapore with the child ? In practice, this would be a matter to be decided by the custodial parents, usually both parents, together. If the parents cannot agree on the relocation, then an application must be made to the Singapore courts for permission; failure to do so renders the travelling parent unwittingly in breach of international child abduction laws. 

How could this be ? Surely it would be reasonable for one to assume that such international child abduction laws are exclusively used to return wrongfully-abducted children to their innocent parents ? Surely it would be equally reasonable to assume that one parent deciding to move back to their home country with their child post-divorce, who may even be a citizen of that country themselves, could not possibly be covered by such laws ? Whilst we are sympathetic to these assumptions, they are not factually correct  where an order for custody or care and control is in force, neither party can take the child out of Singapore for more than one month without the written consent of both parents or the leave of the court. 

Of course, in practice, divorcing spouses are usually capable of coming to some form of agreement, be it via negotiations, mediation, or by order of court, without having to go to the extreme of invoking international child abduction laws. After all, the indisputable overriding factor, in particular, where applications to court are necessary, is that the welfare of the child in the intended relocation is paramount, and this overrides all other considerations, including the wishes of both parents. Nonetheless, the option to invoke such international child abduction laws exist in those deserving cases and where it is necessary to do so. 

Does this mean that the parents’ wishes are irrelevant when considering whether it is in the child’s best interests to relocate post-divorce ? Of course not; indeed, the Singapore courts recognise that relocation would affect both the relocating parentand the parent left behind.In fact, the courts have gone so far as to say: “the welfare of the child is often so inextricably intertwined with the general well-being and happiness of the primary caregiver that the court is loath to interfere with important life decisions of the primary caregiver.” At the same time, the courts are astute to the fact that “relocation represents a serious threat to [the] ideal state of joint parenting since the left-behind parent would become less of a presence in the child’s new life.” As such, any such wishes of either parent must once again be analysed through the lens of what is ultimately in the child’s best interests. 

How, then, are these best interests to be identified ? Often, the Singapore courts will seek expert opinions from trained professionals such as psychologists, sociologists, and counsellors, who will conduct investigations into that child’s life, and interviews with those close to the child, namely parents, siblings, teachers, or even the child if deemed appropriate, and report their findings to the court. Based on all the evidence before it, including such expert opinions, the court will then make a determination on whether or not it believes the relocation to be in the child’s best interests. If the court ultimately determines that relocation is appropriate, care and control would naturally vest in that relocating parent in this case, however, and to reduce any loss of parent-child relationship that is now at risk, the access plan for the remaining parent then becomes“crucial” and must be “supported to the fullest”. 

Maintenance of the children of the marriage 

Fundamentally, Singapore law imposes a duty on both parents to maintain or contribute to the maintenance of a child of the marriage. In TDT v TDS, Josephine Chong LLC successfully argued, in the first case of its kind, that this duty extends to a maintenance by a non-biological parent of a stepchild, in circumstances where the non-biological parent has voluntarily assumed parental responsibility of that stepchild and accepted that stepchild as part of his or her family. As regards what constitutes “acceptance” of the child, the Singapore Court of Appeal in that case held that the non-parent had to be found to have accepted parental responsibility over that child’s welfare, which was ultimately a question of fact based on the evidence before it, such as whether the child’s surname had been changed to that of the non-parent, or whether the child referred to the non-parent as “mum” or “dad”. 

However, a joint parental duty to maintain a child of the marriage does not necessarily mean that both parents have a duty to contribute equally to that child’s maintenance. In fact, the learned Debbie Ong JAD has recently warned against the general proposition that equal contribution should be the starting point; orders must only be made after analysing the specific facts of that case. As such, it is not uncommon for the spouse with the higher income, for example, to be ordered to bear a higher percentage of the child’s expenses.As to what those expenses are, once again, this is to be determined based on what is ‘reasonable’according to the facts of the case, and with reference to relevant factors under the Women’s Charter. In practice, parental maintenance obligations exist whether or not the child resides in Singapore, provided of course that the Singapore courts are able to enforce such obligations—if not, assistance may need to be sought from the courts in the jurisdiction in which the child now resides.  

Dissolution affects the child in different ways 

Paulin Straughan, a sociologist at the Singapore Management University writes: “With every marriage dissolution, there is a high likelihood that the well-being of the family unit (in terms of financial, social and emotional assets) is reduced…The often long-drawn tensions in the family, coupled with reduced financial and emotional resources as a result of the divorce, affect the child in different ways, from doing well in school to managing relationships and conflicts” 

The unfortunate reality of modern-day relationships is that often times, they don’t work out, and as can be garnished from Straughan’s quote, the most negative impacts are often placed on the children of the now-dissolved marriage. However, it is imperative thatsuch negative impacts are reduced as far as possible. How ? By ensuring that anydecision or order made that affects those children, including whether or not they should remain in Singapore, fundamentally takes into account their welfare and is ultimately in that child’s best interests. Of course, this is not to say that the parents have no say at all—at the end of the day, their welfare often has a direct impact on the children, too. Nevertheless, once again, this must be looked at exclusivelythrough the lens of what is best for the child, to ensure that their future remains as unaffected as possible, despite the deterioration of their parents’ relationship. 

Josephine Chong, LLB Hons 2nd Class, Upper Division, NUS Law (1989), Advocate & Solicitor Singapore, sJosephine Chong LLC (www.josephinechongllc.com)  

Kym Anstey, LLM Merit, London School of Economics (2018), LLB Hons 2nd Class, Upper Division, Durham University (2016), Advocate & Solicitor Singapore, Solicitor of the Senior Courts of England & Wales 

Views expressed in this opinion editorial are strictly of the authors/contributors and do not reflect that of Wealth&Society. Please note that the above is not to be construed as legal advice that can only be given upon knowledge of all circumstances.