Family Court proceedings in the time of Covid-19

4 May 2020

With the Covid-19 pandemic sweeping the globe, many countries, including Singapore, are experiencing various permutations of a “Circuit Breaker”. The Circuit Breaker period in Singapore started on 7 April 2020 and was to be in place until 4 May 2020. On 21 April 2020, the Circuit Breaker period was extended to 1 June 2020.

Movement control orders and international border closures are in place on an unprecedented scale. These measures have greatly impacted the way we live, work and travel, and how we interact with those near and dear to us. For families that are already affected by divorce or separation, it can be even more challenging to adapt to these changes.

While there is a keen desire to protect oneself and one’s family and children especially in these turbulent times, the law also requires families to honour their commitments to one another in terms of financial payments and access to the children. Naturally this period can be fertile ground for acrimony and discord. That being said, it can also be an opportunity for spouses, ex-spouses and parents to co-operate creatively with each other to weather the storm in the best interests of the family. In this article, we address some frequently asked questions from divorcing / separating parties and parents, which may be helpful in navigating the new reality.

The information in this article reflects information available as at 4 May 2020. However, the issues - and the answers to these issues - are fluid due to the ever-evolving nature of the pandemic, including what further or other measures may be put in place during and after the present Circuit Breaker period. Therefore, it would be prudent to keep abreast of the developments, both in Singapore and any other jurisdiction which may be of relevance.

1.  I am in the midst of divorce proceedings in the Singapore court. Will my matter be heard and/or decided by the court during the Circuit Breaker period?

Divorce proceedings in Singapore comprise two parts, generally. The first part deals with the grounds for divorce, culminating in the grant of an Interim Judgment dissolving the marriage, if the grounds are found to have been made out. The second part deals with the ancillary matters - such as the welfare of any children of the marriage, maintenance for the wife and children, and the division of matrimonial assets.

Divorce proceedings in Singapore are dealt with by the Family Justice Courts (“FJC”), which comprises both the Family Court and the High Court (Family Division). Some divorce proceedings may also go up to the Court of Appeal. As such, in this article, we will refer to the FJC Registrar’s Circulars No. 2 dated 5 April 2020 and No. 3 dated 24 April 2020, and the Supreme Court Registrar’s Circulars No. 4 dated 5 April 2020 and No. 5 dated 24 April 2020 (collectively, “Circulars”).

According to the Circulars, FJC matters which were scheduled for hearing from 7 April 2020 to 4 May 2020 (subsequently extended to 1 June 2020) would be adjourned to a later date, unless deemed to be “essential and urgent”. For “essential and urgent” matters, arrangements would be made for the hearing to be conducted via electronic communication (e.g. teleconferencing, video conferencing).

Matters which may be considered “essential and urgent” are generally those which are “time sensitive, constitute a threat to life and liberty, and/or involve urgent needs of the family”. Examples of these include cases of family violence with a high risk of imminent danger, maintenance proceedings to meet immediate or urgent financial needs of the applicant and/or the children of the marriage, and child abduction cases where urgent orders are necessary. A full list of these matters is set out in Schedule 1 of the FJC Registrar’s Circular No. 2 dated 5 April 2020 and Schedule 1 of the Supreme Court Registrar’s Circular No. 4 dated 5 April 2020. In addition, hearings at the Court of Appeal involving child custody or access arrangements have been listed as “essential and urgent” in Schedule 1 of the Supreme Court Registrar’s Circular No. 4 of 2020 dated 5 April 2020.

If a matter falls outside of the aforementioned list, and a party would like his or her case to be heard during the Circuit Breaker period, he or she may write to court to make the request, supported by reasons as to why the matter is “essential and urgent”. The courts may take into account reasons such as whether the determination of the matter is time sensitive, or if there is a legal requirement for the matter to be heard within any timeframe, but will not proceed to hear a matter simply because it is convenient for the parties to have it done so.

It has been reported that the FJC held 23 trials remotely during the second week of the Circuit Breaker period.

A related FAQ is, if the parties have agreed on the grounds of divorce and the ancillary matters, would the FJC go ahead with the administrative hearing (without counsel and parties’ attendance) to process and grant the Interim Judgment during the Circuit Breaker period? It did not seem that the FJC carried this out as a matter of course during the initial Circuit Breaker period. However, some such cases have been recently fixed for hearing in May 2020 during the extended Circuit Breaker period.

Counter services at the FJC in relation to the filing of Magistrate’s Complaints for maintenance (for wives and children), and for the filing of Personal Protection Orders (“PPO”), is still available during the Circuit Breaker period. However, the applicant is strongly encouraged to make an appointment first using the Integrated Family Application Management System (iFAMS) before attending in person to file the Complaint. All other counter services are available remotely during this time.

All courts will also refrain from entering their usual June recess this year.

2.  What about other timelines in the divorce process? Are they held in abeyance or postponed during the Circuit Breaker period?

 Divorce proceedings and related applications, as well as applications involving the welfare of children, Magistrate’s Complaints for maintenance and PPOs, can still be filed electronically in the FJC during the Circuit Breaker period.

If pursuant to the Family Justice Rules and/or directions made by the court, parties are to file or exchange court or other documents during the Circuit Breaker period, these Rules and/or directions are to be complied with, unless the court permits otherwise.

3.  Can I register my marriage and get married during the Circuit Breaker period?

Generally, no. The Registry of Marriages (“ROM”) has ceased operations during the Circuit Breaker period. All appointments for the verification of documents and solemnisation of marriages have been deferred. The ROM will only be available for urgent cases with pre-arranged appointments.

However, Parliament is making provision to allow virtual solemnisation of marriages. In this regard, the Covid-19 (Temporary Measures for Solemnization and Registration of Marriages) Bill was tabled in Parliament on 4 May 2020 and is expected to be passed on 5 May 2020.

4.  I have a court order which states that my children are to reside with me in my care and control, and that my ex-spouse may have access to them two days a week with overnight access. Additionally, my ex-spouse has access for half of all school holidays. During the Circuit Breaker period, should the children stay at home with me and not physically meet my ex-spouse? 

No, parents should generally abide by the court-ordered arrangements for the children, even during the Circuit Breaker period, unless the parents agree or the court orders a different temporary arrangement.

Further, the Covid-19 (Temporary Measures) (Control Order) Regulations 2020 make it clear that persons who are leaving their home to transfer temporary care of a child pursuant to any access arrangement, or in discharge of a legal obligation, or to comply with a court order, will not be in breach of safe distancing measures during this time. Of course, the other measures as required by the Government during this time, such as the wearing of masks (save for children under two years old), and not crowding together or going out as a family on an outing, must be observed.

However, if a parent is subject to a movement control order (e.g. Quarantine Order, Stay Home Notice), that parent should forego access to the children for the relevant period of time.

Parents may consider agreeing to adjustments to the usual arrangements relating to the children in the short term, e.g. for the children to stay with each parent during alternate weeks, instead of moving between two homes a few times in the course of a week. This will minimise the number of times the parents and the children have to leave home to “handover” access. In addition, access need not only be physical - it could be conducted through electronic means like Zoom or Skype.

As regards school holiday access, the Ministry of Education announced in a press release that it has brought forward the annual June school holidays, which will now commence on 5 May 2020 for a four-week period, until 2 June 2020. The FJC Registrar’s Circular No. 3 of 2020 dated 24 April 2020 provides that any reference to the June or mid-year school holidays in any court order shall be interpreted in accordance with these revised school holiday dates. Parents may not be able to bring the children overseas for holidays during this period.

Parties who face significant access issues which cannot be resolved amicably may consider obtaining legal advice to make the necessary application to the FJC, bearing in mind it takes time for the court to adjudicate on the matter. 

5.  There is a court order ordering me to pay my ex-wife and children monthly maintenance. However, I have suffered a significant drop in my income due to the Covid-19 situation, compounded by the Circuit Breaker restrictions. Can I stop paying my monthly maintenance or pay a smaller amount than what was ordered? What can my ex-wife do in court in response?

The party who was ordered by the court to pay maintenance has to comply with the order, unless the order is varied by the court. Otherwise, the non-complying party may be held in contempt of court for breaching a court order, which carries very serious consequences, including imprisonment and/or a fine.

In the example in this question, if the ex-husband (“H”) breaches the court order, the ex-wife (“W”) may commence enforcement proceedings against H by way of filing a Magistrate’s Complaint in the FJC (see above).

If H is truly unable to meet the court-ordered maintenance obligations, he should try to agree with W on a reduced amount, failing which, H may apply to the FJC, either via filing a Magistrate’s Complaint or e-filing a Summons in existing divorce proceedings, to vary the amount downwards. In the variation application, H must prove to the court that there is a material change in circumstances which warrants the variation.

Again, parties should note that such enforcement and variation applications, if contested, will take time to be decided by the court. This period may be delayed in view of the Circuit Breaker period unless the court is satisfied that the case is “essential and urgent” to meet the immediate financial needs of the applicant and/or the children of the family.

6.  I am living with an abusive family member in the same home during the Circuit Breaker period. What can I do to get help?

Such a person (the applicant) may apply to the FJC for a PPO. A PPO seeks to restrain the person against whom the order is made (the respondent) from using family violence against his/her family member (the applicant). The applicant must show that (1) an act of family violence has been committed or is likely to be committed by the respondent against the applicant, and (2) a PPO is necessary for the protection of the applicant.

The Women’s Charter provides that a “family member” who may file for a PPO includes:

• A spouse or former spouse of the respondent; 
• A child of the respondent, including an adopted child and a step-child;
• A father or mother of the respondent;
• A father-in-law or mother-in-law of the respondent;
• A brother or sister of the respondent; or
• Any other relative of the respondent or an incapacitated person who in the opinion of the court should, in the circumstances, in either case be regarded as a member of the family of the respondent.

If there is a significant risk of imminent danger and the applicant requires urgent and immediate protection, the applicant may, when applying for a PPO, seek an expedited order (“EO”). An EO is a type of temporary PPO that is granted pending trial. An EO is not granted as a matter of course, but only if there is imminent danger of family violence. The court can review the EO to see if it remains necessary, as the case progresses to trial.

PPO applications are usually made by filing a Magistrate’s Complaint.

The applicant may also call the following helplines for assistance. Some of these centres may also be able to guide the applicant through the PPO application process:

•  AWARE Women’s Hotline 1800 777 5555 (Mon-Fri, 10am-6pm)
• Big Love Child Protection Specialist Centre 6445 0400 (Mon-Fri, 9am-6pm)
• HEART@Fei Yue Child Protection Specialist Centre 6819 9170 (Mon-Fri, 9.30am-5.30pm)
• MSF Child Protective Service 1800 777 0000 (Mon-Fri, 8.30am-6.00pm and Sat, 8.30am-1.00pm)
• PAVE Integrated Services for Individual and Family Protection Specialist Centre 6555 0390 (Mon-Fri, 9am-6pm)
• Project START 6476 1482 (Mon-Fri, 10am-5pm)
• TRANS SAFE Centre 6449 9088 (Mon-Fri, 9am-5pm)
• For those facing high levels of general anxiety or stress during the Circuit Breaker period - National CARE Hotline 6202 6868 (24/7)

In serious cases of imminent danger, the applicant can also call the police at 999 for help.

8.  I am a foreign citizen residing in Singapore on a Dependant’s Pass (“DP”), secured on my wife’s Employment Pass. Our children are also on DPs. My wife filed for divorce recently and has threatened to cancel my DP to force me to leave Singapore and leave the children behind. I do not want this to happen. What can I do during this Circuit Breaker period?

The husband (“H”) in this case may consider applying to the FJC for an injunction to restrain his wife (“W”) from cancelling his DP, or if she has already cancelled it, for an order that she reinstates it. H will have to prove that the cancellation of the DP was done to cause him hardship, stress and place him at a disadvantage in the divorce proceedings, and it would adversely affect the parties’ children (for example if H is the children’s primary caregiver).

Such an application by H may be considered “essential and urgent” during the Circuit Breaker period. This is likely if, without his DP, his ability to remain in Singapore will be seriously jeopardized. However, this will be up to the court to decide.

Schedule 1 of the Supreme Court Registrar’s Circular No. 4 dated 5 April 2020 provides that an application for urgent injunction or search order is considered “essential and urgent” for civil matters (including matters in the Singapore International Commercial Court where applicable). This may be used as a point of reference for such injunction applications in the FJC.

Further, if one of the parents in this example threatens to take the children and move to another country without the consent of the other parent, the aggrieved parent may file an application in the FJC for an injunction to restrain the other parent from doing so. The FJC considers cases of child abduction to be “essential and urgent” during the Circuit Breaker period.

Conclusion

Regardless of when the Circuit Breaker period may end, the effects of the pandemic may continue to be felt by all even beyond the end of the period. It will be important for parties in family cases to keep updated with the latest developments in relation to how evolving regulations may influence their cases and/or their rights. Parents are also encouraged to co-operate in the best interests of their children.

Reference materials

The following resources are available from the websites of the Singapore Government www.gov.sg, Family Justice Courts www.familyjusticecourts.gov.sg, Supreme Court www.supremecourt.gov.sg and Singapore Statutes Online sso.agc.gov.sg:

•  Gov.sg Covid-19 Resource Centre
• FJC Registrar’s Circular No. 2 of 2020 (dated 5 April 2020)
• FJC Registrar’s Circular No. 3 of 2020 (dated 24 April 2020)
• Supreme Court Registrar’s Circular No. 4 of 2020 (dated 5 April 2020)
• Supreme Court Registrar’s Circular No. 5 of 2020 (dated 24 April 2020)
• Covid-19 (Temporary Measures) Act 2020
• Covid-19 (Temporary Measures) (Control Order) Regulations 2020

Further information

Allen & Gledhill has a Covid-19 Resource Centre on our website www.allenandgledhill.com that contains knowhow and materials on legal and regulatory aspects of the Covid-19 crisis.

In addition, we have a cross-disciplinary Covid-19 Legal Task Force consisting of Partners across various practice areas to provide rapid assistance. Should you have any queries, please do not hesitate to get in touch with us at covid19taskforce@allenandgledhill.com.

 

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