Second Reading Speech by Minister for Law K Shanmugam on Family Justice Reform Bill
8 May 2023 Posted in Parliamentary speeches and responses
- Mr. Speaker Sir, I beg to move, “That the Bill be now read a second time.”
- Deputy Speaker, this is a joint Bill by the Ministry of Law (MinLaw) and the Ministry of Social and Family Development (MSF).
- Conceptually, it proposes changes in two areas: a. Enforcement of maintenance orders; b. Court proceedings and procedure in the Family Justice Courts (FJC).
- I will speak on the first area. My colleague, SPS Rahayu, will cover the second and MOS Sun Xueling will then touch on support for families undergoing divorce from the MSF perspective.
B. SINGAPORE’S APPROACH TO FAMILY JUSTICE
- Sir, to better understand the changes proposed in this Bill, I think it is useful first to consider the approach to family justice that we take here.
- Family disputes are not like other kinds of disputes. They often involve a lot of emotions, psychological wounds, and vulnerable parties, particularly children.
- You contrast that or you take the usual litigation process, which generally pits the parties as adversaries, and looks to the past to determine who was right and wrong.
- And if you apply that kind of approach to family disputes, I think the tendency will often be to deepen the rift between the parties, and overlook the wellbeing of the children who are caught in the middle.
- So in Singapore, for some time now, we have taken a modified approach to family disputes, focusing on therapeutic justice. The approach tries, to really get the parties to reach a common ground and move on with their lives. The changes we have made, over the years, reflect this approach.
- With your permission, Sir, may I ask that the Clerks of Parliament distribute a handout on some of these changes (Annex A)? Members may also access the handout through the SG Parl MP mobile app.
- Let me now turn to the Bill – specifically, as it relates to the enforcement of Maintenance Orders.
C. THE MAINTENANCE ENFORCEMENT REFORMS
- I will explain 1) the need for change, 2) the key changes we are proposing, and 3) what we hope to achieve.
I. The need for maintenance enforcement reform
- Over the years, we have progressively refined the maintenance enforcement framework. This includes introducing new sanctions against maintenance defaulters, such as mandatory financial counselling, community service orders and credit bureau reporting.
- Nevertheless, we still see a fairly high number of cases of non-compliance with maintenance orders. Before COVID, from 2017 to 2019, there was an annual average of 2,700 applications to enforce maintenance orders. 15–20% of these were repeat applications made within the same year. Some applicants made 3 to 4 applications to enforce the same maintenance order within a year.
- Now, when you see these numbers, you can understand behind these numbers there is also anxiety, frustration, other real-life consequences, especially for the applicants. They are usually women, struggling with supporting the children, their jobs, while not getting any maintenance.
- Members have given voice to these concerns before. They include Ms Jessica Tan, Dr Tan Wu Meng and others who spoke about this.
- Single parents, struggling with job stress, caregiving, other responsibilities, and they need to take time off work to attend enforcement hearings. Some bring their children to the Court hearings, because they do not have alternate care arrangements.
- At this point, I think it is useful for me to share the facts relating to two cases, as illustrations.
- The first – I will refer to one of the parties as Mdm A. Following her divorce, she had care and control of the parties’ two young children. Her ex-husband was ordered to pay child maintenance at $1,500 per month. Two years after the divorce, Mdm A had not received any maintenance payments, though she had taken out enforcement proceedings. She was left to support her two children and elderly parents alone. This is how she described her frustrations, in an email that she sent to me: “Monies have to be spent each time an individual seeks legal advice; Monies that most ex-spouses can ill-afford. Perhaps this is why most give up the fight, because they can no longer afford to pay for another court hearing and receive another ruling that will not be enforced.”
- The second case – I will call the lady Mdm B. Like Mdm A, Mdm B also had care and control of the parties’ two young children and her ex-husband was ordered to maintain her and the children at $1,500 per month. But for 5 years, from 2017 to 2022, Mdm B did not receive any payments from her ex-husband, save for a one-time payment of $50, even after she had filed multiple enforcement applications. For his breaches, the ex-husband was sentenced to prison, for 1–2 days each time, but he still did not pay, despite having the means to pay. By 2022, the child maintenance arrears, accumulated over 61 months, was a total of $91,000. So how did Mdm B cope? She coped single-handedly, supporting her children through primary school, and borrowing from friends and neighbours.
- What I have just described, for Mdm A and Mdm B, is the unfortunate reality for some. It arises because some husbands just refuse to pay. I am referring to those who can pay, but won’t pay. It is quite separate if they just can’t pay. I will come back to this later.
- In the White Paper on Women’s Development, which was issued in 2021, the Government recognised maintenance enforcement as a key challenge for women in vulnerable situations, and the Government committed to simplify and strengthen the enforcement process, and minimise the need for repeat applications for enforcement.
If you look at the issues:
a. First, there are limited means of obtaining information on the parties’ assets and means. This makes it difficult to distinguish between respondents who cannot pay maintenance, and those who simply refuse to pay – because the information is not fully in.
b. And this then often leads to a second problem, which is repeat non-compliance. For respondents who refuse to pay, the Court may find it difficult to make more targeted enforcement orders, because it does not have the full information on their assets and means. The court processes provide for applications and getting this information, but actually getting it into court can be a challenge at times. And for respondents who cannot pay, they just do not have the money and if the courts keep making the orders, they will simply continue to miss maintenance payments, without some other form of intervention - which at the end of the day does not help anyone.
c. Third, the process can be time-consuming, resource-intensive, and difficult to navigate, especially for self-represented parties.
II. Key changes to maintenance enforcement
- So, under this Bill, what are we trying to do? We are creating a new Maintenance Enforcement Process (MEP), to address these issues.
The MEP will:
a. Seek to strengthen deterrence against respondents who refuse to pay;
b. Try and facilitate more sustainable outcomes for respondents who genuinely cannot pay; and
c. Try and increase access to justice for applicants, especially those who are self-represented.
A key part of the proposals is the establishment of a new unit of Maintenance Enforcement Officers (MEOs). MEOs will be appointed by the Law Minister, and their functions will include the following:
a. They can conduct fact-finding on the parties’ financial circumstances.
b. They can refer suitable and needy parties to financial assistance and other forms of support.
c. They can conduct conciliation sessions, and facilitate settlements between the parties.
d. They can submit the information gathered from the fact-finding and conciliation sessions to the Court.
- With your permission again, Mr Deputy Speaker, may I ask the Clerks to distribute an infographic which will set out the workflow of the new MEP (Annex B)? Members may also access the handout through the SG Parl MP mobile app.
- Let me now take Members through some aspects of the MEP.
(a) Application stage
- An application to enforce a maintenance order can be made online. At this stage, the Applicant can also directly apply online for financial assistance, allowing such help to be given, as early in the process as possible.
(b) Fact-finding by MEOs
- After this, the parties must submit documents on their financial circumstances to the MEO this could include payslips, bank statements. If the information is insufficient, the MEO may seek information from the parties, banks, third parties, some of whom will be prescribed and these will include CPF, HDB, IRAS, SLA, LTA and CDP.
- Now this is a major step and a game-changer. This power will be subject to safeguards including restrictions on the use of information obtained by MEOs, and, in some cases, requiring MEOs to obtain a court order when seeking information from third parties.
- With the MEO’s fact-finding powers, the MEOs and the Court will be better able to distinguish between respondents who cannot pay and those who refuse to pay. For the former, the MEOs will be able to refer them to Social Service Offices, for financial assistance, and other support.
(c) Conciliation and hearing stage
- After the fact-finding is completed, the parties will have to attend conciliation sessions with the MEO, who can recommend solutions and facilitate settlement. The MEO will report to the Court on the parties’ financial circumstances, and the conciliation sessions.
- This will relieve the party asking for maintenance – the wife – from having to take on the burden of getting the facts, spending a lot of money on legal fees, and hopefully, it will also reduce the amount of effort a wife has to put in to get maintenance.
- The Court will take into account the MEO’s report, when deciding on the application. The Court can vary any maintenance order, taking into account the financial position of the parties.
- Where the parties have not settled, and the Court orders the Respondent to pay maintenance, the Court must make what is known as a Show-Payment Order (SPO). The SPO will usually be for a period of 6 months, and it will require the Respondent to show to the Court, at specified future intervals, that he or she has made the requisite payments. When making the SPO, the Court must generally also specify a term of imprisonment, that the Respondent may be liable for, if the Respondent breaches the SPO.
- This continued monitoring, coupled with strong deterrence, should reduce repeated defaults, in at least a fair number of cases.
- With the information provided by the MEO, the Court will also be better able to make more targeted and effective enforcement orders to recover arrears, e.g. an order for attachment of a debt, and can do so without the Applicant having to apply separately, or specifically, for such orders.
(d) Post-hearing stage
- At the post-hearing stage, the MEP caters for several possible scenarios of default.
- I will not cover these scenarios and the consequences of default, specifically. The details are in the infographic that has been handed out, and of course, the Bill. Members will see that, in general, the consequences for failing to show proof of payment, in accordance with the SPO, are immediate and serious.
- If a Respondent defaults on the SPO, with no good cause shown, he may be sentenced to imprisonment.
- The MEP also provides a more streamlined process for enforcing maintenance payments, where a Respondent defaults on such payments shortly after an SPO expires.
(e) Injunction or Clawback Order
- There is one further area of change to the maintenance enforcement process, which is not shown in the infographic.
- Under the existing law, an Applicant who suspects that a Respondent intends to dissipate, or has dissipated assets to frustrate the maintenance claim, can apply for an injunction or a clawback order.
- However, the Applicant will likely face evidential difficulties in proving the Respondent’s intent to dissipate property, specifically to frustrate a maintenance order.
- To address this, we will create a rebuttable presumption, of the Respondent’s intent to dissipate.
- Under the proposed changes, this presumption will be raised if the Applicant can show an impending or a relevant dissipation – depending on whether an injunction or clawback order is sought; and that the impending or relevant dissipation, as the case may be, will or did frustrate the enforcement of the maintenance order.
- With these changes, the burden is on the Respondent to prove that he did not intend to frustrate the maintenance claim.
- This will hopefully deter parties from circumventing maintenance orders through the wilful dissipation of assets.
III. Intended outcomes of the MEP reforms
- Now, what do we hope to achieve with these changes?
Primarily, three things –
a. Stronger deterrence against non-compliance with maintenance orders;
b. More sustainable maintenance outcomes for families with genuine financial difficulties;
c. Easier process for enforcement of maintenance orders, when they are not complied with.
- Overall, these changes will improve access to justice, especially for self-represented parties, who, as I said earlier, are involved in the vast majority of maintenance enforcement cases.
- As Members can empathise, it is difficult to expect parties to move on, when maintenance obligations are breached, especially if the breaches occur repeatedly. Such breaches can also spur retaliatory action, by the other side, and pull both parties further apart. For example, an Applicant with care and control of the children, may be tempted to withhold access to them, if the Respondent does not make timely maintenance payments.
- These disputes that linger and spiral long after the divorce proceedings can worsen the anguish for the parties and their children, and also take a toll on those around them.
- With the MEP, we hope to change a bit of this, and make the post-divorce journey slightly easier.
- As I conclude, Sir, I would like to thank the FJC judges, court staff, the Family Bar, academics, our social service partner agencies, and other stakeholders for working with us on these reforms.
- We hope to continue to work with all of these partners, to shape our family justice system to achieve more positive outcomes in protecting, restoring and healing families.
- Thank you, Sir.
Annex A - Key Developments in the Family Justice System to Simplify Processes
Annex B - Maintenance Enforcement Process Workflow
Last updated on 8 May 2023