Singapore Family Law Questions and Answers on Marriage, Divorce, Wills and LPA

Identify and Explain the Effect of this Forgery on their Marriage

Effect of Forgery on the Validity of Marriage

The forgery of a marriage licence in Singapore is a serious offence, and the marriage itself will be considered void. This means that the marriage is legally invalid and never existed in the first place. Under Section 12 of the Marriage Act of Singapore (Cap. 170), a marriage is void if it was entered into without a valid marriage licence. Forgery is a criminal offence under Section 471 of the Penal Code of Singapore (Cap. 224), and the use of a forged marriage licence to enter into a marriage is clearly fraudulent.

The courts are very strict about the requirements for a valid marriage, and they will not be prepared to uphold a marriage that was entered into fraudulently.

Relevant Case Law

• In the case of (Re S & S, 2002) , the High Court held that a marriage was void because the husband had forged a marriage licence. The court found that the husband had deliberately forged the licence in order to deceive the Registrar of Marriages and to enter into the marriage.

• The court also held that the wife was entitled to a decree of nullity, even though she was not aware of the forgery at the time of the marriage. The court found that the forgery was a fundamental breach of the marriage contract, and that the wife had a right to have the marriage annulled.

Legal Consequences of a Void Marriage

Effect of forgery on marriage-

A marriage that is void is treated as if it never existed in the first place. This means that neither party to the marriage has any legal rights or obligations towards the other. For example, a void marriage does not entitle either party to claim spousal maintenance or to inherit from the other party.

If a couple has children from a void marriage, the children will still be considered legitimate. This is because the Children and Young Persons Act of Singapore (Cap. 38) provides that all children born in or out of wedlock are legitimate.

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Explain What Miss Busy Must Do to Nullify the Marriage

Filing a Petition for Nullity

To nullify the marriage, Miss Busy must file a petition for nullity with the Family Justice Courts. In her petition, she must explain why she believes the marriage is void and provide evidence to support her claims.

Evidence Required

• For example, Miss Busy could provide evidence that Mr Forgetful forged the marriage licence, or that he misrepresented himself to her in order to obtain her consent to the marriage.

Decree of Nullity

• If the court finds that the marriage is void, it will make a decree of nullity. This will mean that the marriage is legally dissolved and neither party will be legally married to the other

Additional Legal Remedies

• Miss Busy should also note that she may be entitled to other remedies, such as financial support from Mr Forgetful. She should seek legal advice to discuss her options.

Conclusion

The forgery of a marriage licence is a serious offence, and the marriage itself will be considered void. This means that the marriage is legally invalid and never existed in the first place.

If a person is married to someone who has forged a marriage licence, they may be able to obtain a decree of nullity from the Family Justice Courts. This will dissolve the marriage and neither party will be legally married to the other. Section 471 of the Penal Code of Singapore states that whoever forges a document or electronic record, with intent to cause harm or injury to another person, shall be punished with imprisonment for a term which may extend to 7 years, or with fine, or with both.

Options for Scott Gan

Divorce under the Women’s Charter, 1961

• Scott can file a writ for divorce under Section 95 of Singapore’s Women’s Charter, 1961 (hereinafter, the Charter) which governs marriages and divorces. Under this provision, Adultery, unreasonable behaviour, desertion, separation, and three years of continuous marriage with consent are all grounds for divorce.

• Chee’s admission of infidelity, may be grounds under Section 95 (3)(b) for divorce based on unreasonable behaviour.

Nullity of Marriage

• If Scott can prove that the marriage is voidable, he may consider seeking a nullity of marriage (annulment). In light of Chee’s admission, factors such as fraud, lack of valid consent, or the existence of a pregnancy at the time of marriage can result in the marriage being declared null and void under sections 106 (c) and (f) of the Charter.

Judicial Separation

• Scott can also file a writ for judicial separation under Section 101 (1) of the Charter while the divorce is underway, making cohabiting with Chee no longer mandatory.

Options for Chee Tin

Divorce under the Women’s Charter, 1961

• She can also file a writ for divorce as unreasonable behavior as a ground for the dissolution of the marriage under Section 95(3)(b) of the Charter.

Nullity of Marriage

• Chee Tin also has the option to file for nullity of marriage under Section 106(b) of the Women’s Charter, 1961, to declare the marriage void. She may assert grounds such as Scott’s refusal of sexual relations

Legal Considerations and Precedents

Precedent on Unreasonable Behavior

• The case of Leong Choon Chye v Leong Geok Lan [1987] 1 MLJ 44 set a precedent for what constitutes unreasonable behavior in a marriage.

Impact of Scott’s Knowledge of Non-Paternity

If Scott knew that he was not the biological father of the unborn child but pretended otherwise due to his eagerness to become a father, it could significantly impact the legal proceedings and available options for both Scott and Chee.

Impact on Scott’s Options

Divorce Proceedings

• Scott’s knowledge of non-paternity may affect his grounds for divorce. If he knowingly entered into the marriage with false pretenses, it could be considered fraudulent behavior, potentially influencing the court’s decision.

Impact on Chee’s Options

Divorce Proceedings

• Chee may have stronger grounds for divorce if she can prove that Scott intentionally deceived her about his knowledge of paternity, potentially constituting fraud or misrepresentation devoiding her of her valid consent thereby making the marriage voidable under Section 106 (c) of the Charter.

Legal Recourse

• Chee may file for legal order for restitution or damages if she can demonstrate that Scott’s deception caused her harm or emotional distress.

Best Interests of the Child

• Regardless of Scott’s knowledge, the court’s primary concern will remain the best interests of the child. This includes considerations of emotional and financial support, as well as stable living arrangements.

Summary

In summary, Scott’s prior knowledge of non-paternity, if proven, could significantly impact the legal proceedings and options available to both parties.

Scott’s Parental Rights and Obligations

Scott did a covert DNA test on Paul Tin, Chee’s infant son, after the Judgement of Nullity was granted and determined that he is the child’s father. Parental rights and obligations in Singapore are governed by the Women’s Charter, 1961.

Equal Parental Responsibilities

Both the mother and the father have equal parental obligations, as stated in Section 46(1) of the Women’s Charter, 1961 and under Section 68 the parents have the duty to provide for accommodation, clothing, food and education to the infant. In order to fulfil their shared responsibility for the benefit and well-being of their child, they are expected to work together. Both parents have an equal responsibility.

Financial Responsibilities of Parents

Parental obligations, especially financial obligations, continue throughout their shared life. Section 68 of the Women’s Charter, 1961 encapsulates the present law regarding a parent’s liability. According to the law, a parent has a responsibility to care for his or her child, whether they are in their custody or not and whether they are legitimate or not, by either providing for their basic needs in a way that is reasonable given their financial situation and station in life, or by contributing to the cost of doing so, unless an agreement or court order provides otherwise.

Guardianship Rights

In accordance with these clauses, Scott may request parental responsibilities for Paul by requesting a modification of the maintenance order. It might be conceivable for him to get parental rights and obligations if he can show proof that he is Paul Tin’s biological father.

The Guardianship of Infants Act, 1934 states that biological parents have inherent rights and duties to their offspring. Section 4 of the Act establishes a natural father’s rights and offers routes for him to seek guardianship.

Welfare Principle

Furthermore, it is critical to acknowledge the principle of the child’s welfare, which is critical in problems involving children. This principle is codified in the Guardianship of Infants Act as well as the Women’s Charter, 1961.

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Child Support Laws in Singapore

Chee can rely on the relevant legal guidelines on child support in Singapore. The Women’s Charter, 1961 specifically Sections 68 to 76, is Singapore’s primary law on child support.

1. Section 68 – Parents’ Obligation to Raise Children

This regulation stipulates the obligations of parents in taking care of their children. According to this law, the upbringing of the child, including education, is the duty of the mother and father.

2. Section 69(3) – Maintenance of Children

According to Section 69(3) of the Charter, if a court finds that a parent has neglected or failed to provide reasonable maintenance for his or her child who is unable to support himself or herself, the court may order that parent to pay a monthly allowance or a lump sum for that child’s maintenance.

3. Section 69 – Maintenance Order

Chee may use this provision to request a Maintenance Order if she thinks Scott is the biological father of her kid. A maintenance order is a court order requiring the responsible parent to provide regular support payments for the kid.

The court considers a number of factors, including the child’s financial needs and resources, Scott’s financial capability, and any other pertinent circumstances, when determining the amount of maintenance to be paid.

Factors Considered by the Court

Factors that the court would take into account when hen deciding the amount of maintenance to award

1. The child’s financial demands;
2. Their resources and income;
3. Ailments, whether mental or bodily;
4. How long the marriage has been together;
5. Financial assistance to the family;
6. The prior expectation for a person’s lifestyle, education, or training;
7. Each side’s behaviour.

4. Section 73 – Variation and Revocation of Maintenance Orders

Section 73, “Variation and Revocation of Maintenance Orders,” provides that either party may ask the court to modify a maintenance order in order to change the amount of maintenance if circumstances warrant.

5. Section 70 – Jurisdiction of Maintenance Orders

Section 70, “Jurisdiction of Maintenance Orders,” describes the authority of the court to issue maintenance orders. Singapore’s Family Courts have the authority to pass such orders.

6. Section 75 – Enforcement of Maintenance Orders

“Section 75 – Enforcement of Maintenance Orders” deals with the execution of maintenance orders, ensuring that payments are made as the court has instructed.

Conclusion

If Scott is shown to be the father, Chee can rely on these clauses to establish his duty to pay support for their kid.

Irregularities that can Invalidate the Will

Scott’s Will, which he prepared while still dating Chee on the eve of his 21st birthday, has significant flaws that could make it illegal under Singaporean law. These deviations include the following:

Lack of Testamentary Capacity

Under Singaporean law, a valid Will requires testator’s capacity. Scott’s Will made at 21 raises doubts. Generally, at 21, capacity is presumed, but evidence of incapacity can challenge it (Tan, 2022).The case of Banks v Goodfellow [1870] LR 5 QB 549 outlined four critical criteria for assessing testamentary capacity, including understanding the Will’s impact on asset distribution, having a reasonable grasp of assets’ extent, considering potential estate claims, and maintaining sound judgment free from mental disorders or delusions during Will creation. Moreover, in Chee Mu Lin Muriel v Chee Ka Lin Caroline [2010] SGCA 27, testamentary capacity is presumed when the Will’s terms are rational, executed under typical circumstances, and the deceased exhibited no mental disabilities. To challenge the Will, contrary evidence is required to rebut this presumption.

Undue Influence

Scott’s Will, given his relationship with Chee at its creation, raises serious concerns about undue influence. Although the court may execute a will for a mentally incapacitated individual under Section 23(1)(k) of the Mental Capacity Act of 2008, the Will could be revoked if it’s proven that Chee coerced Scott into leaving his entire estate to her. In Singapore, the ULV v ULW [2018] SGFC 44 case established that undue influence involves coercion that overrides the testator’s willpower without impairing judgment. Lian Kok Hong v Lian Bee Leng and another [2015] SGHC 205 clarified that mere advice and persuasion aren’t undue influence unless they severely restrict the testator’s decision-making. Rajaratnam Kumar v Estate of Rajaratnam Saravan Muthu [2010] 4 SLR 93 emphasized the need for significant influence to undermine the testator’s independence throughout Will execution.

Conflict of Interest as Witnesses

Under Section 6(2) of the Wills Act 1838, two impartial witnesses must be present during the testator’s Will signing. These witnesses should sign the Will in the testator’s presence. Crucially, they must not have any personal interest in the Will’s content. In this instance, Scrooge (Scott’s brother) and Chee (the beneficiary) both acted as witnesses, potentially creating a conflict of interest that could raise doubts about the Will’s validity.

Neglecting to Revise the Will

After creating the Will, significant changes occurred in Scott’s life, including his marriage to Chee and legal disputes. As per Section 13 of the Wills Act 1838, a Will should mirror the testator’s present intentions. Not updating the Will may suggest a misalignment with Scott’s true intentions at his passing (Chan, 2022).

Absence of Independent Legal Counsel

In line with Section 7 of Wills Act 1838 obtaining counsel from independent legal experts is wise when crafting a will. Scott’s absence of such counsel raises questions about his comprehension of the Will’s consequences and alignment with his true intentions.

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Distribution of Scott’s Estate If the Will is Invalid

Spouse and Children

If Scott has a surviving spouse (Chee) and descendants (his son), the estate will be distributed as follows:

• Chee would be entitled to the first $50,000 from Scott’s estate and one-third of the remainder.

• Scott’s son would inherit the remaining two-thirds of the estate.

Parents

Scott’s father may be entitled to a share of the estate if Scott does not have surviving children. In this case, Scott’s son is alive, so the father would not receive a share.

Siblings

If there is no surviving spouse, children, or parents, then siblings would be entitled to the estate. In this case, Scrooge would be the sole surviving sibling and would inherit the entire estate. (GJC Law, 2016)

This distribution is in accordance with the Sections 7(1)(b) and 7(1)(c) of Intestate Succession Act.

Impact of Scott and Paul’s Simultaneous Death in a Car Crash

Spouse

Scott’s surviving spouse, Chee, would be entitled to the entire estate. This distribution is governed by Section 7(1)(a).

Parents

If there is no surviving spouse, children, or descendants, then the estate would pass to Scott’s surviving parents. In this case, Scott’s father would inherit the estate. This distribution is outlined in Section 7(1)(c).

Under the Intestate Succession Act, if Scott had no surviving children, his spouse (Chee) would inherit his estate, excluding his brother (Scrooge).

Distribution of Scott’s Estate Assets Under Singaporean Law

HDB Flat Held in Joint Tenancy with Chee

The distribution of an HDB flat upon the death of an owner is subject to the Interstate Succession Act. In the case of joint tenancy, the HDB flat typically passes to the surviving joint tenant outside of probate, and it is not considered part of the deceased’s estate. Chee, as the surviving joint tenant, would typically become the sole owner of the HDB flat upon Scott’s death.

CPF Funds with Father as Nominee

CPF funds follow the deceased member’s nomination, as per Section 43 of the Central Provident Fund Rules (CAP. 36) 2006. If Scott nominated his father as the beneficiary before his wedding, his CPF funds would be disbursed accordingly to his father.

Joint DBS Bank Account with Scrooge

Under the Banking Act (Cap. 19) 2008, joint bank accounts adhere to survivorship principles. If one account holder passes away, funds go to the surviving account holder(s). In this case, Scrooge, the surviving joint account holder, inherits the joint DBS bank account funds. The specific provision isn’t outlined in the Banking Act. This distribution is governed by the common law principle of survivorship.

The distribution of Scott’s assets, including the HDB flat, CPF funds, and joint bank account, would probably adhere to established legal principles in Singapore, ensuring that beneficiaries receive their due shares even though irregularities in Scott’s Will may cast doubt on its validity.

Introduction to Lasting Power of Attorney (LPA)

Lasting Power of Attorney (LPA) is a legal document that helps the donor (Ms. Chee) to appoint one or more persons (the donee) to act on the behalf of the donor and to manage the personal or property related affairs. The Mental Capacity Act, 2008 (MCA) enables persons 21 years old and above to appoint donees in a Lasting Power of Attorney (LPA) to make decisions on their behalf and act in their best interests in case they lose mental capacity.

Circumstances when LPA will Take Effect

LPA will take effect when Ms. Chee (donor) loses mental capacity. A person is said to lose his/ her mental capacity when he/ she is unable to decide for himself over a subject due to an impairment of, or a disturbance in, the functioning of the mind or brain. It makes no difference whether the person has a temporary or permanent mental disability (Ng, Aaron, & Kandiah, 2015). The Office of the Public Guardian (OPG) appoints a medical practitioner to conduct an evaluation of a patient’s mental ability. The LPA goes into effect as soon as the medical practitioner certifies the loss of mental ability.

Powers that Ms. Chee can Grant to her Donee in the LPA

According to Section 6 of the Mental Capacity Act, the donee must act “in the best interests” of the donor when using the powers granted by the LPA. Ms. Chee may decide to provide the donee general powers by applying for an LPA and specifying instances like:

(1) Authority over Personal Welfare Matters

• The place of residence of the donor;
• The individuals the donors may come into contact with;
• The kind of medical treatment and healthcare the donor must get;
• What the donor should eat and dress;
• The activities the donor should engage in.

(2) Authority over Property and Financial Affairs

The authority to manage the donor’s property and affairs (Katuwawela, McCollum, & Curtice, 2018), that includes

• Having accessibility to the donor’s bank accounts and handling his financial matters like taxes and investments;
• Managing of the donor’s property, including its mortgage, rent and sale;
• Keeping the donor’s parents, children and spouse in good health and supporting and maintaining them;
• Carrying on the donor’s business, trade or profession.

Restrictions on the Donee as per the Mental Capacity Act

The LPA is subject to limitations set out in Section 13 of the Mental Capacity Act of 2008. It specifies that a donee may only act in accordance with the LPA in cases where the donor lacks ability or the donee has a good faith belief that the donor lacks capacity. As a result, unless the donor is incapable of making decisions for themselves, the donee cannot act on the donor’s behalf. Before taking any action on behalf of the donor, the donee must likewise act in good faith and have reason to think that the donor is unable (Abrey & Hoong, 2016). There are a few instances where this rule does not apply. For instance, if the LPA explicitly permits the done to make decisions or choices regarding the donor’s property and financial affairs even when the donor does not lack mental capabilities, the donee can make the decisions on behalf of the donor. Though the donor is unconscious or unable to communicate their preferences, the done can make decisions pertaining to the donor’s medical care, even though the donor is mentally competent.

Restrictions on Limiting Donor Freedom

Section 13 of the Mental Capacity Act further specifies that the done cannot take decisions that are meant to constrain the donor, unless the done genuinely believes that it is required to safeguard the donor from harm (Mukhopadhaya, 2013). This implies that the donee cannot take actions that might limit the freedom of the donor, such as confining them in a room or forbidding them to leave the house. Donee can make only those kinds of decisions that he considers doing them to protect the donor from hurting himself or others.

Conclusion

It is essential for Ms. Chee to carefully analyse the conditions under which the LPA comes into force to make sure that their desires are followed and their interests are safeguarded. Ms. Chee must be aware of the exact powers that she would be granting to her Donee(s), and the limitations established by the Act. Before she signs the LPA, Ms. Chee should give serious thought to the authority she wishes to provide to her donees. It is crucial for her to choose persons whom she can rely on and who will act in her best interests.

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