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An application for division of matrimonial assets may be made in the
Family Court as follows:
| (i) |
where there are divorce
proceedings in the Family Court, as an ancillary matter in the
divorce proceedings; |
| (ii) |
whether there are divorce
proceedings in the Family Court or not, as an application under
section 59 of the Women's Charter; and |
| (iii) |
where there were divorce
proceedings at the Syariah Court, as an application for division
of assets upon divorce under sections 16 and 17A(2)(c) of the
Supreme Court of Judicature Act. |
This section deals with the case process and procedure for applications
for division of assets under (ii) and (iii) above. |
The steps in an application
for custody and access are as follows:
Step
1:
|
Plaintiff
(i.e. the applicant) files an Originating Summons |
| Step
2: |
Plaintiff
serves the Originating Summons |
| Step
3: |
Plaintiff
files affidavit |
| Step
4: |
Defendant
enters appearance |
| Step
5: |
Defendant
files affidavit |
| Step
6: |
Plaintiff
files Notice of Appointment to Hear Originating Summons |
Step
7:
|
Pre-trial
Conference conducted* |
Step
8:
|
Mediation* |
| Step
9: |
Adjourned
Pre-trial Conference* |
| Step
10: |
Hearing
of the Originating Summons* |
(* denotes a court session where the
attendance of parties and/or their lawyers in court is required.)
|
| Step
1: Filing Originating Summons (OS) |
|
An OS must be in the prescribed form and must
be stamped and filed in the Family Court Registry. The party who
files the OS is known as the Plaintiff (P) and the party against
whom the OS is filed is known as the Defendant (D).
In addition to the OS, the following documents
will have to be filed in the appropriate circumstances:
| (i) |
an affidavit in support
of the OS: this document must be filed within 7 days of the
service of the OS, but in practice, this is normally filed together
with the OS; |
| (ii) |
where the parties to the
OS are Muslims or married under Muslim law, the parties should
also file:
| (a) |
a certificate of commencement
from the Syariah Court; or |
| (b) |
the parties' written
consent to the proceedings in the Family Court and a certificate
of attendance at counselling issued by the Syariah Court;
and |
| (c) |
if the asset for division
includes an HDB flat, an Agreed Matrimonial Property Plan
or a Proposed Matrimonial Property Plan, together with
the replies from HDB or CPF Board. |
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| Step 2:
Service of OS |
The P must serve the OS papers
on the D. This is to give the D notice that a suit has been started
against him. Service may be effected by:
| (1) |
personal service: an authorised
person (usually the clerk of a law firm) must hand the OS papers
to the D personally; or |
| (2) |
service on D's solicitors:
if the D's solicitors endorses (i.e. signs) on the OS that he
accepts service of the OS, the OS shall be deemed to have been
served on the date of the endorsement. |
If the above service fails, the P may apply, by filing a Summons-in-Chambers,
for:
| (1) |
substituted service, that
is, ask the court to approve an alternative mode of service,
e.g. by pasting the OS papers on the front door of the place
where the D normally resides, or by placing an advertisement
of the OS in the newspapers (if the country in which the D resides
is known); or |
| (2) |
dispensation of service,
that is, ask the court to approve that the OS papers need not
be served. However, the court will only grant this if reasonable
efforts have been made to locate the D, and the address where,
or the country in which, the D can be found cannot be ascertained.
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If an OS has to be served on a D outside Singapore, it is necessary
to first obtain the court's leave (i.e. approval) for such service.
Once the court gives, approval, service outside Singapore of the OS
papers may be carried out in accordance with one of the following
modes of service:
| (1) |
personal service: see above; |
| (2) |
service on D's solicitors:
see above; |
| (3) |
substituted service: see
above; |
| (4) |
service in accordance with
the law of the country in which service is to be carried out
(this mode must be used if service is to be carried out in Malaysia
or Brunei); or |
| (5) |
service through diplomatic
channels: the papers are served on behalf of the P through the
foreign government, judicial authorities or Singapore consul
(this mode must be used if service is to be carried out in Malaysia
or Brunei), |
provided that the above mode will not apply if it is contrary to the
law of the country where service is to be effected.
Note that there is a time limit to serving the
OS: the OS has to be served within 6 months of issuance if the OS
is to be served in Singapore and within 12 months of issuance if
the OS is to be served outside Singapore.
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| Step 3:
P files the affidavit |
|
The P will have to file an affidavit to present
the facts supporting his application. The P's affidavit should be
filed and served within 7 days after the service of the originating
summons, unless the affidavit has already been filed with the OS.
|
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|
| Step 4:
Entry of Appearance |
|
If the D wishes to be heard on the case, the
D must enter appearance to the OS within 8 days after service of
the originating summons (including the day of service) if the summons
is served in Singapore, and within 21 days after service of the
originating summons where the summons is served outside Singapore.
If the D fails to file the memorandum of appearance
within the prescribed time, the P may file a document called the
"Praecipe" to search the court records and upon confirmation
that no appearance has been entered, file a "Certificate of
Non-appearance" . With this certificate, the petitioner may
proceed for hearing (i.e go straight to Step
6 and 10).
The D should therefore note that if he simply
ignores the OS papers and fail to file the necessary papers, the
court may proceed to hear the case and make such orders as it deems
fit.
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| Step 5:
Filing of affidavit by D |
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Where the D intends to adduce evidence to support
his case, he should file and serve his affidavit(s) within 21 days
after being served with a copy of the plaintiff's affidavit.
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| Step 6:
Filing of Notice of Appointment for Hearing by P |
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Upon the expiry of the time for the D to enter
an appearance, or if an appearance was entered, upon the expiry
of the time for the D to file his affidavit, the P may request for
a hearing date by filing a Notice of Appointment to Hear OS.
Upon the receipt of this Notice, the Family
Court Registry will stream the cases into different tracks in accordance
with whether a memorandum of appearance has been filed by the D.
If one has been filed, a pre-trial conference will be fixed (go
to Step 7). If one has not been
filed, the court will fix a hearing date (go to Step
10).
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| Step 7:
PTC for OS |
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If the D is contesting the OS and has filed
an affidavit to defend the OS, the court will fix a PTC before fixing
dates for hearing. PTCs are conducted by a Deputy Registrar and
the following matters will be considered:
| (i) |
to consider whether the
issue can be amicably resolved by the parties; |
| (ii) |
to give orders on evidence:
for example, the court may order parties to disclose relevant
bank documents etc.; and |
| (iii) |
to consider the possibility
of an amicable settlement and refer parties for mediation. |
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| Step 8:
Mediation |
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Mediation is a process to assist family members
to resolve (i.e. settle) or narrow (i.e. reduce) their family disputes.
A neutral person will first help parties to explore all the options
that are available to the parties to solve their problems, and then
craft a solution that meets the interest and needs of the parties
and their children. The goal of mediation is therefore to seek a
result that both parties can accept, that is, a "win-win"
solution.
Mediation is confidential. In other words, the
position taken by parties or any concessions made by them will not
bind them if there is no settlement at the end of the session. The
judge hearing the case will also not get to know what was said during
mediation.
Mediation is voluntary in the Family Court in
that parties must consent to mediation. Mediation may be conducted
by a judge or a volunteer mediator who is a qualified lawyer, counsellor
or social worker. Mediation is normally fixed in cases where the
dispute is over the maintenance of the children (if such an application
has been made in conjunction with the custody application).
If parties know what to expect in mediation
and are adequately prepared for the sessions, they will find that
these processes are useful in either settling the case or at the
least clarifying what the real disputes are. . It is important for
parties to bring along the relevant documents (such as bank statements,
salary slips, CPF statements) for mediation.
If the property dispute is settled through mediation,
the court will fix a date for Consent Orders to be recorded (go
to Step 10). If the dispute is
not settled, the court will give directions (that is orders) on
the further conduct of the case (go to Step
9).
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| Step 9:
Adjourned PTC |
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If the custody dispute cannot be settled, the
court will fix another PTC after the mediation. At the adjourned
PTC, the Deputy Registrar will:
| (i) |
give orders on evidence and
the preparation of the case to ensure an early and smooth hearing:
for example, leave may be given to the parties to file further
affidavits (that is, sworn statements); and |
| (ii) |
ascertain the number of
days required and fix the hearing dates. |
When all necessary affidavits, documents and reports have been filed,
the OS will proceed for hearing in chambers (go to Step
10). The OS may be fixed for hearing on the 'Normal List' or on
the 'Special List'. Fixing on the normal list means that the case
will be fixed for hearing on the same morning or afternoon as 10-12
other cases, whereas a 'special' fixing means that the case will be
fixed for hearing for half a day or more. Parties should therefore
assess the complexity of the case and indicate to the court how much
time they would require to argue their case. |
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| Step
10: Hearing of OS |
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At the hearing of the originating summons, the
court may proceed to hear the application or may give directions
on the further conduct of the case as it thinks fit to ensure that
the case is dealt with fairly and quickly. In cases where there
are many disputes of fact, the court may give leave to parties to
cross-examine the deponents of the affidavits. Cross-examination
is not normally allowed. After hearing both parties (if they are
present in court), the court will rule on the dispute and make the
necessary orders.
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| (i) Summons-in-Chambers
(SIC) |
| An SIC is an application
that is heard in chambers (i.e., it is a private hearing unlike a
trial, which is heard in open court), by either a District Judge or
a Deputy Registrar. Parties and their witnesses need not testify in
court when SICs are heard as such applications are heard based on
affidavits (i.e. a document that sets out the evidence of the parties
and that is sworn or affirmed before a Commissioner for Oaths).
SICs can be filed for a range of matters that
are related to a suit and can be filed at any point in time during
the proceedings or after orders have been made by the court.
- Common SICs filed in property disputes include
applications for:
- substituted service or dispensation of service;
- injunction: an application to prevent a party
from disposing of assets pending the hearing of the case;
- amendment: an application to correct a court
document;
- discovery: an application for one party to
disclose documents;
- striking out: an application to remove a
document or a portion of a document from the court's file; and
- extension of time : an application to be
given more time to take a step that is required under the Rules.
|
| (ii) Appeals |
| If either party is dissatisfied
with a court order, he may file an appeal against the order. In the
appeal papers (known as the Notice of Appeal), he must state the date
of the order and the name of the District Judge or Deputy Registrar
who had made the order, as well as specify which part of the order
he is appealing against. If the order in question is made by a Deputy
Registrar, the appeal papers must be filed at the Family Court Registry.
If the order in question is made by a District Judge, the appeal papers
must be filed at the Appeal Section at the Civil Registry. You should
seek legal advice if you need assistance in drafting the appeal papers.
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| (ii) Praecipes |
| A praecipe is a request to
the court. Praecipes are commonly filed when a person wishes to search
the court's records, to inspect the court's file or to extract a certified
true copy of a court document . Praecipes have to be stamped and filed
in court. |
