| The Family Law Story |  |
'Two persons who marry |
There are fascinating stories and moral lessons to be gleaned from the fertile ground of family law. Leong Wai Kum, an authority on family law in Singapore, opens our eyes to the role of unenforceable legal expectations underlying family law in the areas of spousal relationship and parenthood. She highlights the lessons to be learned from these expectations and calls for changes in areas beyond family law which do not accord with family law expectations.
Introduction
If we read the law wisely, it provides more than rules for enforcement. The law tells stories about the people it serves. From that perspective, family law in Singapore tells good stories about Singaporeans as members of our families. It tells that we perceive marriage as an equal co-operative partnership. As spouses, we aspire to be considerate of our partners in life and to always behave reasonably. As parents, we aspire to discharge the responsibility we owe to the children we bring into the world. When our relationships become difficult, we aspire to resolve our family problems fairly and amicably.
These aspirations written into the law are in turn expectations which the law makes. They may not be imperative in the way of enforceable rules but are equally important. Legal expectations often underlie enforceable rules. If we ignore them, we understand family law less than completely. This could mislead in suggesting that the sole objective of family law is the resolution of disputes. Family law also exhorts moral behaviour and thereby teaches the community about being a good spouse and a good parent. A broader appreciation of family law as comprising both enforceable rules and legal expectations of moral behaviour facilitates the law’s twin roles of resolving disputes and teaching moral conduct.
Marriage and the Relationship between Spouses
Two persons who marry commit to a deep emotional union. They cohabit in a common household and reap the advantages of shared living. They often seal their relationship by producing at least one child. Family law supports the institution of marriage by teaching the couple that they have entered into an equal co-operative union. In a unique provision which proclaims ideals without imposing legal sanctions upon breach, section 46(1) of the Women’s Charter (Cap 353, 1997 Ed) reminds the couple that they ‘shall be mutually bound to co-operate with each other in safeguarding the interests of the union’ and in section 46(4), that ‘the husband and the wife shall have equal rights in the running of the matrimonial household.’
Legal equality is currently required of almost all aspects of the relationship between spouses. The incapacity of a married woman at common law has been whittled away so that she is today not unlike her unmarried sister. The only glaring exception is that only a capable husband can be ordered by a court to maintain a dependent wife. A capable wife can never be ordered to maintain her dependent husband. This last legal inequality is anomalous and ripe for correction.
Spouses are expected to behave reasonably throughout their marriage. Consistently reasonable behaviour helps to ensure that the spousal relationship will flourish. This expectation continues even during legal proceedings. The Family Court helps families in novel ways. It makes counselling facilities easily accessible, so that spouses who can be reconciled will be assisted accordingly. Mediation is offered to help them narrow or settle their dispute without trial. Even litigation is adjusted to support marriage.
Lack of spousal consideration beyond family law
Beyond the scope of family law, reasonable consideration of a spouse is not always required of a married person. Criminal law does not encourage a husband to be considerate of his wife in providing him with blanket protection from prosecution for her rape. However much their relationship may have deteriorated and despite formal acknowledgement of this deterioration (eg by way of a decree nisi of divorce), he can, with impunity, insist on getting his way with her. He remains exempted from prosecution unless his wife is severely underaged. Medical law does not encourage a pregnant wife to consider her husband’s wishes when she decides whether to terminate her pregnancy. The law provides that her consent is the sole consideration towards lawful abortion. These laws are defective in falling short of the expectation of reasonable consideration which family law makes of the husband, with regard to sexual relations with his wife, and the wife, with regard to the decision over child bearing that she should share with her husband. The laws would be improved if they incorporated this expectation.
Parenthood and Parental Responsibility
When a couple produces a child, family law teaches that the relationship between parent and child is best conveyed by the idea of parental responsibility. This concept practically replaces the common law view that a parent possesses a series of rights over the child. This substitution conveys a more moral view of the relationship between parent and child. The parent does not own rights over the child but, instead, owes responsibility to the child. This responsibility entails protecting and nurturing the child and, when the child becomes capable of making decisions for himself or herself, relinquishing authority in proportion to the child’s capacity for autonomy. The law continues to support parental authority but chooses now to view the exercise of parental authority as the discharge of parental responsibility.
Parenthood, just like marriage, is an equal co-operative partnership. Father and mother are equal in status as parents. Neither is superior. The Court of Appeal in L v L [1997] 1 SLR 222 unequivocally held that both father and mother retained equal authority over the surname of their daughter. The mother, who unilaterally changed the daughter’s surname, had acted unlawfully. This was so despite the fact that the mother had sole custody. In the most important decisions affecting a child, both parents retain parental authority regardless of custody arrangements. The law of custody today should also embrace co-operative parental responsibility. A custody order should not, ideally, undermine either parent’s ability to discharge responsibility owed to the child, except where absolutely necessary.
The equality of parents is well reflected in their responsibility for the maintenance of a dependent child as provided for by section 68 of the Women’s Charter. Father and mother are responsible for the financial needs of the child, regardless of whether the child lives with the parent and is legitimate or not. Family law also encourages parents to always co-operate with one another. Section 46(1) of the Women’s Charter further enjoins spouses ‘to co-operate ... in caring and providing for the children.’ Indeed, in some critical matters, like changing the child’s surname, this expectation strengthens into an imperative that the parents must co-operate with each other. Parental responsibility continues despite deterioration in the spousal relationship. The current law of maintenance reflects this. Whether a parent is still living with or divorced from the other has no effect on his or her financial responsibility towards the child.
Parental responsibility is further characterised by section 3 of the Guardianship of Infants Act (Cap 122, 1985 Ed), which provides that the first and paramount consideration of a judge in resolving any issue which involves a child should be to achieve the ‘welfare of the infant’. This equitable principle has spread its wings well beyond guardianship proceedings to pervade all areas of child law. Parental authority must always be exercised to achieve the child’s well being because an exercise that contravenes this ubiquitous principle runs the risk of being condemned should it ever come to a court’s attention. The welfare of the child overtaking the old idea of parental rights affirms the new view of parenthood as a moral commitment to the well being of the child. Indeed, in 1996, Singapore became a party to the United Nations Convention on the Rights of the Child and thereby became committed to the principle that all decisions affecting children should be made with consideration for their welfare. The expectation may apply to public decisions as well.
Termination of Marriage and Division of Assets
The notion that marriage is a partnership of efforts has particular significance upon its termination by a court. At that point, the court exercises its powers to adjust the former spouses’ economic positions. This exercise flows from the family law view that, whether the couple jointly discharged the bread-winning role and the homemaking and child caring roles or handled them separately during their marriage, each contributed equally to the acquisition of wealth. The power bestowed by section 112 of the Women’ s Charter to divide matrimonial assets between spouses in just and equitable proportions is premised upon marriage being a partnership of efforts. On such division, each former partner rightly emerges with his or her fair share of the assets. Neither is unjustly prejudiced nor unjustly enriched by his or her role during marriage. This affirms the equal co-operative character of their union and rightly raises the importance of homemaking and child caring which married women traditionally discharged. The power to order maintenance, although still one-sided, should be exercised as consistently with this view as possible.
Conclusion
Every one of these lessons is invaluable. The better we appreciate the expectations which family law makes of spouses and parents, the deeper we understand its enforceable rules. Many years of involvement with family law has enabled me to appreciate the value of both. Legal expectations may be soft in being directly unenforceable, but their messages are as clear as enforceable rules. We should celebrate the capacity of family law to teach moral conduct. If we learn its lessons well, we become better members of our families. Strong families help to make a strong country.
The Singapore family law story should be repeatedly told.
Associate Professor Leong Wai Kum
Faculty of Law, National University of Singapore
This article was first published in Change and Continuity, 40 Years of the Law Faculty (A/P Kevin Tan, editor) (1999, Times Edition). This article is reproduced here with the kind permission of the Faculty of Law, National University of Singapore.