By Sandra Ong

Overview

• • Definition of Marriage & Cohabitation
  • Differences between Marriage & Cohabitation
  • Legal Mechanisms in Singapore to “Recognise” Cohabitation
  • Severance of Cohabitation – (a) Consequences (b) Dealing with Real Property

• • Is Cohabitation Relevant in Divorce Proceedings?

• • Conclusion for Singapore

Matrimonial Assets DivisionYes – s 112 Women’s CharterNo – General property law applies

Legal Mechanisms in Singapore to “Recognise” Cohabitation

• Recognition of Union – Deed of Cohabitation (Agreements between parties may not be binding, but persuasive effect), Power of Attorney, Trust Deeds, Investment Agreements
  • Particularly important for assets
  • E.g. to show common intention for beneficial interest in property disputes
• Recognition of Legitimacy Status of Child/Children (Adoption)
• Recognition of Parental Rights (Legal Guardianship)
• Ultimately, fundamental natural rights of a parent still remains
• Recognition of Estate Planning – Wills, Lasting Power of Attorney

Consequences of Severance of Cohabitation

• Not recognised as marriage – no need to address grounds of divorce (irretrievable breakdown of relationship)
• Child(ren) Issues
  • Resolved by commencing legal guardianship application (s.5 of GIA)
    • Custody, Care & Control, Access
    • Maintenance of Child(ren)
  • Fundamental natural rights of a parent
  • Adoption of own child
• Financial Issues
  • No spousal maintenance
  • No concept of “matrimonial home“
  • Division of assets
    • Between non-spouses: general property law principles apply (see Chan Yuen Lan [2014], Lau Siew Kim [2008])
    • Between spouses who previous cohabited: (see USB v USA and another appeal [2020])

Severance of Cohabitation – Dealing with Real Property

Chan Yuen Lam [2014], affirming Lau Siew Kim [2008]

• Brief facts – Married couple sued in court to determine beneficial interest of a housing property
• Holding
  • In event where parties are not relying on the divorce law framework (e.g. married couple not going through divorce or cohabiting couple), general property law framework has to be applied.
  • Court of Appeal laid down a framework and affirmed existing common law principles to determine beneficial interest in real property
    • Presumption of Resulting Trust
    • Presumption of Advancement
    • Common intention constructive trust

Chan Yuen Lam, Lau Siew Kim

Applicable Legal Principles

Presumption of Resulting Trust

In absence of express intention, beneficial interest is presumed and determined by financial contributions of each party

Example: Husband paid 80% of the purchase price for a home, wife paid remaining 20%, even though the house is in her sole name. Presumption operates to give the husband 80% beneficial interest.

Presumption of Advancement

Can be used to rebut presumption of resulting trust that the beneficial interest lies solely with the legal registered owner

Example: Son wholly owns a property but father paid for house in full – presumption of advance that Father intended to benefit the son (rebuts the resulting trust); thus Court will find son has full beneficial interest (on the basis of parent-child relationship) -> this presumption of advancement can be rebutted too!

Notably, de facto relationships have not been expressly recognised in Singapore yet – see Lau Siew Kim

Common Intention Constructive Trust (“CICT”):

Can displace the presumptions of resulting trust and advancement; beneficial interest is determined solely by parties’ common express or implied intentions

Example: Husband and wife are joint tenants, but husband paid for property in full. Wife has compelling evidence which shows husband agreed to gift entire property to her. Court will find in favour of wife (100% beneficial interest)

CICT analysis model is favoured in the UK (see Stack v Dowden [2007] and Jones v Kernott [2011] – this is now the default framework for cohabiting couples and non-spousal relationships in UK

Is Cohabitation Relevant in Divorce Proceedings?

USB v USA and another appeal [2020] 2 SLR 588; [2020] SGCA 57

• Brief facts – Parties cohabited for 12 years, married subsequently for 5 years before divorce
• Holding
  • The ownership of such assets would have to be determined in accordance with general property law principles.
  • Assets accumulated during cohabitation do not fall within the pool, based on the statutory criteria under s 112 of the Women’s Charter.
  • Wrong in principle for the Singapore Courts to take account of the parties’ indirect contributions during cohabitation when it is determining the extent of their contributions to the marriage.
• Differing views:
  • UJF v UJG [2019] vs JAF v JAE [2016]
  • Fundamental legal principle in NK v NL [2007]

Is Cohabitation Relevant in Divorce Proceedings? – Court’s Holding in USA v USB

Is Cohabitation Relevant in Divorce Proceedings? – Court’s Holding in USA v USB

Conclusion

1. Singapore does not recognise “de facto” relationships / cohabitation under the family law legal framework (see USA v USB [2020])
2. “Recognition” for cohabitation requires use of several legal tools (e.g. adoption, guardianship, maintenance proceedings)
3. From a practical perspective, cohabitation is easier to get in and out of compared to a marriage (divorce is the only way to dissolve a legal relationship)
4. We might be seeing Singapore society being more open to cohabitation (or even marriage) especially re. LGBT couples, but this is not codified in law yet
5. Thus, existing legal frameworks outside family law framework have to deal with issues arising from severance in cohabitation e.g. property law (see Chan Yuen Lan [2014])