THEARPEUTIC JUSTICE AND THE DIVISION OF MATRIMONIAL ASSETS
Professor Leong Wai Kum and Dr Colin Tan share definitions and laws surrounding the division of matrimonial assets
BY MATHANGI ELANGOVAN
As the concept of therapeutic justice has gained ground, many in the family law arena have sought to better understand how it plays out in the various domains of the law—be it the way one gathers information from clients or interacts with opposing counsel.
Veteran academics Professor Leong Wai Kum and Dr Colin Tan recently dived into the question of matrimonial assets. In their articles, both published in the SAL Practitioner, they explored how the shift towards therapeutic justice would influence the division of these assets.
Prof Leong is confident that calls for therapeutic justice would gradually see a changing definition of matrimonial assets. These changes would be accelerated by the recent apex court decision in BPC v BPD. The court eventually ruled the definition of matrimonial assets is not about its linguistic meaning but to allow court to work out the pool of material gains.
Both Prof Leong and Dr Tan are quick to add that fair does not necessarily mean split equally. “The goal is to ultimately find an equitable division that ensures fairness for both parties,” explains Prof Leong, now a Professor at SUSS. When considering matters, Dr Tan also suggests that lawyers and their clients keep in mind the many challenges couples face after separating, including housing affordability.
“Although couples may not aim to exact revenge on each other, the process of separation often triggers a focus on self-preservation. This can lead to disputes over property as each party seeks to secure a home they can afford,” Dr. Tan explains.
Upholding honour, dignity and fairness during divorce
For both Prof Leong and Dr Tan, therapeutic justice marks a welcome direction for family law in Singapore. Having seen family law evolve since her academic journey started in 1976, Prof Leong says therapeutic justice, if embraced by all parties, would help many families heal.
She shares, “I often tell my students to advise their clients to look ahead towards the future: conduct yourselves in this application as if all the hurt of divorce has passed.”
“About 10 to 15 years from now when your children are grown, when you sit down with your children to discuss how you conducted yourself in the course of this application you should be able to remember ‘I conducted myself with dignity and honour. I did not fight tooth and nail.”
She says the dignified and honorable conduct of such an application is for the two parties to be amicable, sit down with their lawyers, make an agreement where the pool of assets is more or less equally divided.
Drawing a parallel, she asserts, “If you are equal partners in a commercial venture, dissolution entails an equal share of remaining assets. Marriage produces these material gains from the partnership. Each spouse should leave the partnership with half or close to half of their cooperatively-acquired material gains. There is no reason why we should not draw analogy with commercial law. The law of division of matrimonial assets is Family Law’s regulation of the economic benefit of the equal cooperative marital partnership. Marriage, in fact, produces many benefits but Family Law does not regulate every benefit.”
Dr Tan highlights a regrettable consequence of divorce: the manipulation of child custody as a bargaining tool for property access. He cautions against such practices, echoing the courts' stance that children should not be embroiled in asset disputes. He hopes therapeutic justice principles will encourage lawyers to avoid such situations.
Prof Leong echoes his statement, emphasising that the current judicial approach focuses on therapeutic justice. She says, “The courts’ mission now is to facilitate healing and progress for families, rather than merely resolving the issues at hand. We are helping this family move forward.”
“What is the best way to move forward if not for each of the two former equal partners to get a more or less equal share of the gain over the subsistence of the marriage? This allows both former partners to focus on co-parenting roles which the law demands of all parents, including divorced parents, in Singapore.”
Read Professor Leong’s journal article here and Dr Tan’s paper here to better understand the role of therapeutic justice in the division of matrimonial assets.
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