Therapeutic justice is a lens of care through which we can look at the extent to which substantive rules, laws, legal procedures and practices, as well as the roles of legal participants, produce helpful or harmful consequences. It discourages a combative and strictly adversarial approach, and recognises the reality that litigants in family proceedings must find a way to heal and move forward. However, the concept of therapeutic justice is sometimes misunderstood. Against this backdrop, the High Court offered some clarity in VVB v VVA [2022] SGHCF 1.
That case involved a donee of a lasting power of attorney (LPA), whose appointment came to be challenged by the donor’s son. The donee aggressively contested the application for revocation of the LPA up until right before the final hearing. The Family Court ordered the donee to bear the son’s costs, a decision which the High Court affirmed.
Justice Debbie Ong emphasised that therapeutic justice “is not about parties feeling happy and satisfied that they got whatever they sought in their … dispute”. On the contrary, a non-adversarial, problem-solving approach to a dispute requires sacrifices and compromises. Crucially, the Court further clarified that “[t]he notion of therapeutic justice operates within the framework of the law and does not prevail over the law”.
The Court found that the donee’s aggressive contestation of the application, until the very last moment, “did not look like a problem-solving stance but an adversarial one—one that undermines therapeutic justice”. Best efforts were not made throughout the process to reach an early and amicable resolution. Consequently, a costs order against the donee was justified to signal that “adversarial stances are not acceptable in a family justice system that adopts therapeutic justice”.
Disputes over child custody, care and control, and access are often misperceived as an adversarial contest with winners and losers. When parents adopt such a combative attitude, the wellbeing of the children who are caught up in such disputes may suffer.
In WAY v WAZ and another appeal [2022] SGHCF 14, an appeal on the issue of access, Justice Choo Han Teck reminded parties that “[t]he award of care and control is no more a prize than an access order is a consolation prize”, and that it was “important that the child is encouraged to build a healthy parent-child relationship with both parents after their divorce”. This would not be possible if access were not meaningful.
The High Court also observed that the acrimonious relationship between the parents rendered handovers very difficult, to the detriment of their child, for “when the parents knowingly or unknowingly show hostility during the handover, the child will perceive the hostility and have a psychological fear reaction, and over time, repeated experiences of failure during the handover can become a trigger for negative reactions in the child”.
Similar observations were made in CLB v CLC [2022] SGHCF 3, where one of the issues was whether the High Court should order the parents not to photograph, document, or record videos and/or audio recordings of the children for the purposes of use or reference in court. The Court decided that such an order was appropriate. It reminded parties that such evidence, which only captures specific moments, may not be fully reliable, and that such conduct of taking photographs and recordings “may also constitute a persistent reminder to the children of their parents’ conflict, which will have an adverse impact on their wellbeing”. This is especially when the children realise that their past behaviour was used by one parent against the other.
Parents who are in the midst of family proceedings will do well to heed the sensible advice of the Court in these two cases.
In dividing matrimonial assets, the Court will generally first determine the assets that constitute the pool of assets. It will then determine the ratios of parties’ direct financial contributions and indirect contributions. Following from that, it will divide the assets in accordance with the average of the two ratios, subject to adjustments that can be made in some circumstances. However, interesting issues may arise when gifts are involved.
In VOD v VOC and another appeal [2022] SGHC(A) 6, the husband’s father handed a cheque of $1 million to the husband at the tea ceremony for the parties’ marriage. The issue was whether this was a gift to both parties or to the husband only. If it was a gift to the husband only, the $1 million would be excluded from the pool of assets. However, if it was a gift to both parties, it would be included in the pool of assets.
The Appellate Division of the High Court, disagreeing with the lower court, found that the $1 million gift was for both parties. The Court observed that the tea ceremony is “a significant occasion where the parties pay their respects to senior members of the family. The overt act of presenting a gift during such a ceremony would be viewed objectively as a gift to the couple in the absence of evidence to the contrary, and unless the nature of the gift suggested otherwise”.
While VOD v VOC involved a gift from a third party, VYQ v VYP and another appeal [2022] SGHC(A) 31 concerned a gift from one spouse to another. In that case, the wife gave the husband $200,000, of which he used $160,000 to purchase shares. The issues were whether the sum, the shares, and the dividends from the shares formed part of the pool of assets, and if so, to whom these should be attributed for the purpose of determining the ratio of direct financial contributions.
The Appellate Division of the High Court took the view that “even if the sum was an inter-spousal gift, it ought to remain as part of the pool of matrimonial assets because … the initial effort expended by the donor spouse in the acquisition of the gift should be acknowledged and recognised”. The Court also made it clear that the ratio of direct contributions had to be “reset based on the actual direct contribution of the parties for each asset”. Thus, the shares, the balance of $40,000 and even the dividends from these shares were attributed to the wife when calculating direct financial contributions.
Cross-border family disputes have become more common in an increasingly globalised world. In some cases, parties obtain a divorce in a court of one jurisdiction, and then apply for further financial relief in the court of another jurisdiction. In Singapore, Chapter 4A of Part 10 of the Women’s Charter 1961 allows an applicant who obtained a divorce in a foreign court to apply for a further order on the division of assets or maintenance, subject to certain requirements. Chapter 4A is modelled after Part III of the United Kingdom’s Matrimonial and Family Proceedings Act 1984, which similarly enables former spouses who obtained a divorce order in a non-English court to apply for additional financial relief in the English courts in certain circumstances.
The public policy behind such legislation is to relieve financial hardship that results despite the fact that a matrimonial order has been handed down in a foreign jurisdiction (VEW v VEV [2022] 2 SLR 380). Nevertheless, VEW v VEV shows the challenge in balancing the policy embodied in such legislation with the policy of ensuring finality in litigation.
In that case, the Singapore Family Court had found that a London flat in the husband’s name was not a matrimonial asset to be divided between the parties. The wife, citing Part III, then sought a division of that London flat before the English courts. The husband then sought and obtained from the Singapore Family Court an anti-suit injunction (ASI) to prohibit the wife from pursuing these claims, on the basis that the London flat had been found to be not a matrimonial asset in the Singapore proceedings.
The Singapore Court of Appeal set aside the ASI. It observed that since Chapter 4A is modelled after Part III, the Court “must consider whether allowing Part III proceedings to continue would offend the public policy undermining Chapter 4A”. It also noted that Singapore’s interpretation of Part III “may also affect other courts’ interpretation of Chapter 4A, and their willingness to grant an ASI (or similar relief) against the commencement of Chapter 4A proceedings in Singapore”.
Thus, while, in a typical application for an ASI, the Court would ordinarily consider whether Singapore is the natural forum for the resolution of the dispute, this inquiry would not be helpful in the context of Part III/Chapter 4A proceedings. This is because these regimes confer “a statutory right on a certain class of litigant which envisions that ancillary relief may be granted by more than one jurisdiction”.
Instead, the Court of Appeal held that the “heart of the analysis” was whether the Part III proceedings would be “vexatious” or “oppressive”. Examples would be “where the foreign proceedings were instituted in bad faith; will cause extreme inconvenience; amount to an unlawful attack on the respondent’s legal rights; or are duplicative of Singapore proceedings” or attempts to “oppress or blackmail a former spouse”. None of these factors was present in this case, and the ASI was accordingly set aside.
© 2023 Government of Singapore.
Last updated on 21 September 2023.