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NEWS |
Managing the Family: One Problem, Many Problems
The work of the Singapore Council of Women’s Organisation’s (“SCWO”) Taskforce on Improving the Enforcement of Maintenance Orders, headed by Mrs Laura Hwang, is inspired by alarm at the conservative estimate that 50,000 dependant children have been affected by divorce over a 10-year period. This was highlighted by Dr Malilki Osman in his Parliamentary Speech in March this year. From its own contact with families and children in the shelter which is run by the SCWO, it has directly recognised the hardship and trauma that accompanies families who end up homeless as a result of the most extreme marital breakdowns, and have walked with these women and families through the very painful steps of re-constructing their lives. The Law Society of Singapore is represented on the Taskforce by Ms Ellen Lee and Ms Malathi Das.
The rate of divorces in Singapore has risen from 4,700 in 1997 to 6,800 in 2007. In 2008, the number was 7,220 and there were only 24,590 marriages. Over a 10-year period, a conservative estimate would be that the number of children affected by divorce is over 50,000.
In 2008, 3,200 applications for enforcement of maintenance orders were filed by 1,700 people, mainly women. Forty-five per cent of claimants made two or more previous applications, representing an average of 2.3 applications per claimant. This implies that a significant proportion of claimants have to go through the tedious process of applying for enforcement repeatedly. Anecdotal evidence has shown claimants going to court at least 20 times in as many months.
A 2003 study by the Family Court found that the typical profile of a claimant is a mother in her late 30s or early 40s with only secondary education, seeking to enforce the maintenance order against her ex-spouse for their child and sometimes herself. Eight in 10 paying parties (“PP”) cited financial reasons for defaulting on their maintenance payments, with unemployment and outstanding bills to settle (including remarriage) as the top two root causes of financial difficulties.
The aim of this proposal is to investigate the effectiveness of current enforcement of maintenance order and to suggest possible solutions to ensure payment of maintenance orders. The proposal will take into account both maintenance for the ex-spouse, and maintenance for ex-spouse and child. To be able to suggest possible effective solutions, research on the issues facing stakeholders will be investigated. The proposal will also identify areas where the current process can be improved.
The primary research consisted of six focus group discussions held with five sample groups – counsellors, wives with Personal Protection Orders (“PPO”) seeking maintenance orders, wives who have applied for enforcement of maintenance orders, ex-husbands who have been served with maintenance and enforcement orders and family lawyers.
Findings from these focus groups were categorised into several hypothesis and uncovered several major concerns namely:
1. The issue of access and maintenance were often interlinked although they were all aware that the issues are treated separately in the courts.
2. Fathers were given respect and shown love by the children when the children sees that they are still continuing to maintain them.
3. Most counsellors and women find that the burden often lies on the victim – it takes too much time, money and effort to seek for enforcement of maintenance orders such that some have even lost their jobs due to it.
4. Many found that information were often not readily available or that it was too difficult to find information or that information that were given to them were often not in full and thus several trips to the courts have to be made.
5. There are ways for recalcitrant fathers to get away with not paying the maintenance and what is due to the children.
In addition, the task force had also carried out fact finding visits to the Subordinate Courts and compiled the current information available to the public on issues concerning divorce, maintenance orders and enforcement of maintenance orders.
SCWO has collaborated with the Centre for Fathering and also the Law Society. The strategic partnership is to allow for experts in the respective fields to share their views.
The identified problems with the current system are:
1. It is a time-consuming process that threatens the claimant’s job security, puts the claimant in arrears for bills and school fees, and uses up valuable judicial time and expertise in what is essentially a debt-collection function.
2. The legal process is daunting for the layman due to the lack of clear and accessible information concerning legal procedures and entitlements. The same applies to the various help and support schemes where the myriad of information sources detailing individual programmes makes it difficult for those in need to find the right programme for them.
3. The antagonistic process of enforcing maintenance orders has a negative impact on children, affecting their growth, school performance and self-esteem. Children may feel unwanted, developing rebellious and manipulative behavior. Children may also become “saviour kids”, growing up faster to take care of younger siblings at the expense of their studies.
4. The current process brings parties face-to-face, back to the scene of the conflict – the Courts – escalating the acrimony between the parties. This is not constructive as the quality of relationship between the parties has been found to affect the rate of compliance.
5. The powers of the court to imprison, sue or fine the PP lack the deterrent power it is meant to have and fail to provide the claimant with any substantial remedy.
6. Failure to locate the PP is often a problem in enforcing an order as the broken relationship between the parties may make it difficult for the claimant to keep tabs on the whereabouts of the PP
7. Mediation and legal aid may not lead to equitable outcomes. The less aggressive or knowledgeable party may emerge feeling dissatisfied or shortchanged as they feel pressured to accept a less than ideal proposal just in order to get something for urgent needs.
8. Misrepresentation of income is a problem where there is irregular or self-reported income because that person is self-employed or does odd jobs. Where the claimant disputes the PP’s claims of the inability to pay, the burden of proof lies with the RP. Often, the RP is unable to produce proper evidence to substantiate their claims.
Australia, the United Kingdom (“UK”) and the United States (“US”) already have state or federal agencies that administer child support payments and enforcement. In Australia, the Child Support Agency assesses the level of child support payable based on a legislated formula and collects child support payments where requested. The Child Support (Assessment) Act allows the Registrar of the agency access to information by the Tax Commissioner in order to facilitate the recovery of debts.
The UK has a similar system in place, but this will soon be replaced by a new non-departmental government body, the Child Maintenance and Enforcement Commission. Under the new system, deduction from salary will become a basic method of settlement where the paying parent must provide a reason if he or she wishes to opt out of this method. In the current system, deduction from salary is just one of the options which the paying parent must elect.
In the US, the Federal Child Support Enforcement (“CSE”) Programme is administered under the Office of Child Support Enforcement (“OCSE”) under the US Department of Health and Human Services. CSE Programmes carry out services such as locating non-custodial parents, establishing paternity, establishing support orders, collecting and distributing child support payments and enforcing or modifying support orders. Families seeking these services must apply directly through their State/local agency. Programmes may vary from State to State. Positive aspects of the CSE Programme, according to researchers, include the immediate wage withholding policy which came into effect in 1990, and tax intercept programme. The immediate income withholding is to ensure that child support payments are made regularly and in the correct amount.
The Taskforce also examined the Swiss system of determination of Maintenance amount, in response to Focus Group comments on the differing awards given by different judges in the system. Under the Swiss Civil Code two methods of calculations are in common use – the abstract method and the concrete method.
The setting up of a central body (henceforth “Maintenance Services Authority”) to administer maintenance payments would address many of the current problems faced. The proposed structure aims to:
1. reduce conflict between parents and between spouses and ex-spouses about future continuing financial obligations;
2. encourage shared parental financial responsibility;
3. ensure maintenance is paid in full and on time; and
4. ensure the recovery process for maintenance is not overly burdensome, time-consuming or costly to the party who has already obtained a final maintenance order from the Courts.
The proposed powers to be given to the authority include powers:
1. to trace the whereabouts of a PP by having access to OSCARS, HDB, CPF Board, IRAS and ACRA databases;
2. to obtain financial information on a PP by having access to the PP’s declared income records from IRAS or CPF Board and employment history;
3. to charge an administrative fee for acting as a recovery and payment agency; and
4. to convert the debt owed by the PP into a debt owed to the State through the Authority.
There are two approaches that can be taken with regard to entry into this system. The first is that the Authority only deal with defaulting cases in the interest of diverting resources only to where it is needed so as not to stigmatise PPs who may already be faithfully complying with maintenance orders to encourage parties to co-operate with each other in coming to their own effective arrangement without resorting to the Authority. There should also be a scheme which allows RPs and PPs to apply for a PP to be taken off the Authority’s supervision if the maintenance order after initial enforcement continues to be paid without incident for a continuous period of time, say two years.
The alternative approach is for all cases to come under the Authority at the point of issuance of the maintenance order. This would remove any stigma, as all cases are treated equally and it becomes part of the partition process. It will also have the advantage of deterring the PP from the default from the inception and a need for the claimant to prove cause for entry into the system.
Having a neutral intermediary to administer collection and payment may help in reducing the acrimony between parties by distancing them from each other.
Greater powers to obtain access to information will create a more efficient, effective and transparent system. For example, access to income information can be used to ascertain whether non-payment is due to inability to pay or refusal to pay, which can then assist the claimant to seek punitive orders in the Family Court against the PP. Such information may also result in more effective and transparent variation applications in the Family Court. PPs can also be located much more quickly, leading to more timely payment of maintenance and a shorter enforcement process.
Converting maintenance debt into a debt owed to the state would give the work of the Authority more teeth. However limit the liability of the Authority, such a conversion does not guarantee payment to the claimant until payment is recovered from the PP.
Our preferred option is for the Authority to reside within an authority already having powers identical or similar to what is being contemplated, eg IRAS, so as not to duplicate resources and processes already in existence. While the exact nature and powers of the new Maintenance Services Authority are being debated and approved, following measures should be considered:
Other proposals to widen the options available to the Courts in enforcing maintenance orders have also been surfaced:
1. Ear-marking of CPF funds so that the due share is paid to the awarded party when funds can be released.
2. The inclusion of a one-line declaration of currency of payments to former family in the application for civil marriage if one party has a previous marriage.
3. A more uniform system of determination of the quantum of maintenance according to income, numbers of children and their ages, age and earning ability of the ex-spouse.
4. Post-divorce counselling for all parties including children if any to explain the rights and responsibilities of each party.
5. Suspension of drivers licence.
6. Restriction of travel abroad.
7. Investigation into respondents’ means.
8. Weekend jail or corrective orders for defaulting on payment.
9. Rotan for repeat offenders/those found guilty of mis-declaration of financial ability(!)
The part played by agencies such as the Healthy Start programme, Project SHINE and Project Hope will provide care and relief for needy families, and this is valuable and important social service and financial aid. What we hope to achieve in the discussion of the Maintenance Service Authority, and the other suggested remedies, is to consider preventative action in the belief that it is preferable for family emotional and financial health to continue with the least possible disruption to the security and well-being of all concerned. This disciplined approach is not with any intention of constraint on any parties, but to give separated families security of a regular means of continuing with their separate units.
Singapore Council of Women’s Organisations Taskforce for Improving the Enforcement of Maintenance Orders