4 Life Milestones Where You Might Need a Lawyer
A popular misconception is that one should hire a lawyer as a last resort, and only when the situation is dire. However, there are 4 life milestones where it may be useful to have the advice or assistance of the relevant lawyer, even if you are not facing any legal trouble. These 4 life milestones that we have identified are:
As you are approaching these life milestones, it may be good to bear in mind the potential legal issues/implications that might apply, so that you can make an informed choice as to whether you require legal assistance. In this article, we set out these potential legal issues/implications at each of the milestones, as well as how the relevant lawyer may be able to help you deal with these issues.
For many, getting married is one of the most significant, and most memorable, milestones in their lives. It is an emotionally-charged event that signifies the social union of two parties, and is often accompanied by changes in how the couple live their lives together. Yet, it is important to understand that as marriage is a legally recognised institution, it also brings about real legal consequences. This includes being subject to rights and duties under the applicable laws. For example, pursuant to section 46 of the Women’s Charter, a husband and wife are mutually bound to cooperate with each other in “safeguarding the interests of the union” and “caring and providing for the children”.
One of the main legal issues arising out of marriage is the way in which you and your spouse hold and own property. Prior to your marriage, it is clear that any property acquired by you is solely owned by you. For example, if you buy a car, using your own money, and in your own name, then the car is owned by you solely and absolutely.
However, after marriage, all property acquired during the marriage by you or your spouse would constitute matrimonial assets to be divided in the event of a dissolution of the marriage. Matrimonial assets also include any asset acquired before the marriage by you or your spouse, that is ordinarily used or enjoyed by both parties during the marriage, or which has been substantially improved during the marriage. For example, using the example of the car that you bought in your own name prior to your marriage, if the car has been used during the marriage as the family car to ferry your children to school, to buy groceries etc., the car will be included in the pool of matrimonial assets, to be divided between you and your spouse if the marriage is dissolved.
One way in which couples try to safeguard their individual assets acquired before the marriage from being added to the pool of matrimonial assets is to enter into a prenuptial agreement. Prenuptial agreements are contracts entered into between spouses prior to marriage, and can include the couple’s agreement on the following issues:
- How the couple will divide property and other assets in the event of a divorce
- Whether maintenance has to be paid, and for how long such maintenance payments will continue
- How the couple will divide marital debts in the event of a divorce
- Custody or care and control arrangements of children in the event of a divorce
- How the couple’s assets will pass if either spouse dies during their marriage
In the event of a disagreement between the couple, either during their marriage or divorce, over an issue that has been included in the prenuptial agreement, the spouse seeking to uphold the contract and hold the other spouse to what was agreed in the contract can seek the court’s assistance to do so. An example would be where a couple has entered into a prenuptial agreement, with a term containing the parties’ agreement that any asset acquired and owned by the spouses prior to the marriage will remain theirs during/after the marriage. Upon and during the divorce process, one spouse insists that all matrimonial assets, including assets acquired by both parties prior to the marriage should be distributed equally after the divorce. The other spouse can then seek to enforce the prenuptial agreement, by referring the court to the prenuptial agreement signed by both parties as evidence of the parties’ intentions prior to getting married.
However, the Singapore courts may not always uphold and enforce prenuptial agreements, especially where the prenuptial agreement (or any term in it) contravenes any express provision or legislative policy within the Women’s Charter. Crucially, under section 112 of the Women’s Charter, the court has the power to divide the matrimonial assets of the parties in a just and equitable manner with reference to certain prescribed circumstantial factors. Therefore, the existence of a prenuptial agreement, and the terms thereof is but one of the factors that the court will consider in deciding what is a “just and equitable” division of the couple’s assets, and the court is not bound to follow the agreement.
The same applies to a postnuptial agreement, which is a contract entered into between the spouses during their marriage, and which can cover the same issues mentioned above. However, between prenuptial agreements and postnuptial agreements, courts usually place more weight on and thus are more likely to enforce postnuptial agreements as compared to prenuptial agreements. This is because postnuptial agreements are presumed to reflect parties’ more recent attitudes and intentions after marriage. This is as compared to prenuptial agreements, which are generally made before parties fully understand the implications and commit to the responsibilities of marriage.
You can refer to our other articles on prenuptial agreements and postnuptial agreements for more information on the benefits and disadvantages of entering into each agreement, as well as how you can go about doing so. If you are considering drafting either a prenuptial agreement or postnuptial agreement, you should speak to a family lawyer, who can advise you on whether either or both agreements are suitable for your circumstances, and can also draft the terms of the agreements with you, so that it meets your needs as well as the legal requirements.
Another milestone that some couples may have to go through is the dissolution of their marriage, otherwise known as a divorce. In Singapore, divorce is a two-stage process comprising:
- The dissolution of marriage, where the couple will either file for divorce by mutual agreement or if the couple do not agree to do so, the court will decide if the marriage has irretrievably broken down; and
- The ancillary matters stage where the court will decide how the parties’ affairs (e.g. maintenance and custody) should be dealt with.
At the first stage, for there to be a divorce in Singapore, the couple can agree to file for a divorce by mutual agreement, which refers to the option for a couple to file for a divorce on the basis that they mutually agree that the marriage has irretrievably broken down. This is a no-fault method of obtaining a divorce, in that neither party has to cite any reason to blame each other for the irretrievable breakdown of the marriage.
In the alternative, if the couple is unable to mutually agree, e.g. if one spouse wants a divorce but the other doesn’t, or if both parties blame each other for causing the divorce, the spouse(s) applying for the divorce would have to show that their marriage has irretrievably broken down by proving one of five legally defined facts:
- Adultery: The other spouse (defendant) has committed adultery and the spouse applying for divorce (plaintiff) finds it intolerable to live with the defendant.
- Unreasonable behaviour: The defendant has behaved in such a way that the plaintiff cannot reasonably be expected to live with the defendant.
- Desertion: The defendant has deserted the plaintiff for at least 2 years.
- Separation without consent: The parties have separated for at least 4 years (if the defendant does not consent to the divorce).
- Separation with consent: The parties have separated for at least 3 years (if the defendant consents to the divorce).
After you have established that your marriage has irretrievably broken down, you will then proceed to the second stage, which pertains to the managing of your and your spouse’s affairs post-divorce. This is also the stage where the legal issues most commonly associated with getting a divorce arise, including:
- Division of matrimonial assets: As mentioned above, this is typically a hotly contested issue, as it concerns the division and distribution of property acquired during and even before the marriage, and would affect the parties’ individual material standard of living after the divorce.
- Payment of maintenance: Maintenance refers to the financial support provided by one spouse after the divorce. The spouse may be ordered to pay maintenance to his/her former spouse (referred to as spousal maintenance), and also his/her children from the marriage (referred to as child maintenance).
- For spousal maintenance, one of the issues is whether and which party should be entitled to maintenance, and this revolves around the consideration of whether the spouse applying for spousal maintenance requires financial support. The next issue to be determined is the amount of maintenance to be awarded, and the court will look at a number of factors, including the earning power of both parties, assets owned by both parties (including the proportion of matrimonial assets divided between the parties), the financial needs, obligations and responsibilities of the parties etc. Ex-husbands can also apply for spousal maintenance, if they are incapacitated by a physical or mental disability, before or during the course of the marriage, unable to earn a living as a result of the disability and are unable to support themselves.
- In relation to child maintenance, the obligation to pay child maintenance stems from the legal duty of every parent to support their child until their child turns 21 years old. In deciding whether to order a parent to pay child maintenance and the quantum of such maintenance, the court will consider the financial needs of the child, the standard of living enjoyed by the child, the manner in which the child was being, and expected to be, educated or trained etc.
- In the prenuptial or postnuptial agreements, a couple may include clauses for a spouse to not be liable to provide any spousal or child maintenance after the divorce. However, as mentioned above, this is merely just one factor that the court will consider in making the appropriate order. In particular, where the agreement touches on the parents’ obligations in relation to their children, the court’s primary consideration is the welfare of the child, and that overrides the parties’ contractual agreement.
- Custody, care and control, and access of your children: The three terms have different meanings, and different legal implications. The parent who has custody over the child has the authority to make major life decisions for the child, in areas such as education, health and religion. Care and control means living with the child on a day-to-day basis. Access means the period where the parent without care and control of the child is allowed time to spend with the child.
- The court’s main consideration is which arrangement would be in the child’s best interests, but in most cases, the court will generally grant the parents joint custody, so that both parents will stay involved in making important decisions for the child, with one spouse being given care and control, and the other, access.
For more information about the legal issues that may arise out of a divorce, you should visit this page for a comprehensive guide on divorce in Singapore, and should consider seeking legal advice from a divorce lawyer. The divorce lawyer would be able to help advise you on the approach that you should take for the legal issues identified above, including whether it would be better for you to file for a divorce by mutual agreement, whether you are entitled to ask for spousal maintenance, whether you should seek care and control of your children etc. In the event you and your spouse are unable to reach an agreement on how the issues should be settled, the issues will have to be resolved in court, and the divorce lawyer can represent you in those legal proceedings, so that your interests are protected.
3. Renting, Buying or Selling a House in Singapore
Another key milestone in many people’s lives in Singapore is undoubtedly when they move out to live on their own, as it represents not just physical separation from their parents’ homes, but also a measure of financial independence. Moving out entails either buying or renting a home, which can carry with it a hefty price tag. Hence, it is wise to be prudent, including understanding the legal issues involved and how to deal with them, when buying or renting a home, and subsequently selling the home in Singapore.
Renting a house
If you have reached a milestone in life where you’re ready to rent a home in Singapore, the main thing that you would have to consider from the legal perspective would be the terms of the tenancy agreement. The tenancy agreement is supposed to cover the terms and conditions of the renting of the property, and would include clauses setting out the rights and obligations of both the landlord and the tenant, so as to protect and balance the interests of both parties. As the prospective tenant, the main terms that you have to look out for are as follows:
- Payment of Security Deposit: In most tenancy agreements, there is a term requiring the tenant to provide a deposit, which would usually be equal to a month’s rent for a 1-year tenancy agreement and 2 months’ rent for a 2-year tenancy agreement. The deposit is typically payable upon signing the tenancy agreement, and is paid together with the first month’s rent. With regard to the security deposit, some of the things that you should look out for in the tenancy agreement are:
- How much is the security deposit and when should it be paid;
- What the security deposit will be used for, e.g. to cover the cost of repairing any items damaged by you during your lease;
- When you will get back your security deposit.
- Quiet Enjoyment or Exclusive Possession Clause: The clause is known as the “Quiet Enjoyment” or “Exclusive Possession” clause because it protects the tenant’s right to enjoy the use of the property and benefits thereof during the period of the tenancy. Correspondingly, landlords have an obligation to respect and ensure the tenant’s right to the “quiet enjoyment” or “exclusive possession” of the property. Typically, such a clause guarantees that the tenant is able to prevent even the landlord from freely accessing the property, except for in certain circumstances provided in the clause. As the tenant, you should scrutinise the list of exceptions and ensure that it is not too widely drafted. Common exceptions include for repairs, renovations, or viewing for potential tenants or buyers. You should also take note of how much notice the landlord has to give you before he/she accesses the property.
- Do note that most tenancy agreements also have a clause that grants the landlord the right of re-entry, in the event the tenant breaches the terms of the tenancy agreement, especially when the tenant has failed to pay rent. This would override the “Quiet Enjoyment” or “Exclusive Possession” clause.
- Diplomatic Clause: The diplomatic clause is a clause which allows for the termination of the tenancy even before its expiry at the end of the tenancy period, or even without the occurrence of the usual events prescribed in the tenancy agreement which provide for a right of termination (e.g. non-payment of rent by the tenant, breach of any term in the tenancy agreement). This is important especially if you are a foreigner looking for a house in Singapore. As the duration of your work in Singapore may itself be uncertain, you would want to have a clause that protects your interest in the event you are no longer required to stay in Singapore, e.g. if you are transferred to another regional office before the expiry of the tenancy, or if your employment is terminated during the tenancy.
- Option to Renew: This allows the tenant to choose to renew the tenancy agreement, i.e. extend the lease even after the tenancy period. The clause will typically state that the renewal will be made under the same terms and conditions of the existing tenancy agreement, while the landlord reserves the right to vary the monthly rent payable under the renewed contract.
To understand the other common terms in tenancy agreements and what they mean, you can access our other article which provides a guide on the obligations that the common terms impose on landlords and tenants. This article on tenant-landlord rights in Singapore can also shed light on the usual duties of the landlord and tenant found in a tenancy agreement, as well as what to look out for to safeguard your interests.
If you are a tenant facing or faced with a tenancy dispute, e.g. your landlord does not abide by the Quiet Enjoyment or Exclusive Possession Clause during the tenancy, or refuses to return the security deposit even after the expiry of the tenancy, you can consider the following avenues of seeking redress:
- Suing for a breach of the tenancy agreement: The tenancy agreement is after all a contract between you and your landlord, and a failure by your landlord to comply with any of the clauses in the tenancy agreement is a breach of contract.
- Mediation and Small Claims Tribunals: Lastly, you and your landlord can attempt to resolve your dispute via mediation, and where mediation has failed, either party can file a claim with the Small Claims Tribunals. However, note that the Small Claims Tribunals only has the ability to hear any claim relating to disputes arising from a tenancy lease of residential premises that does not exceed 2 years.
For more information on what you can do if you have a tenancy dispute or complaint in Singapore, you can check out our other article on the topic. If you need quick advice on a tenancy dispute, you can also refer to our Call A Lawyer service. A lawyer will be able to help you at the various stages of renting a house, including drafting the terms of the tenancy agreement so that it meets your needs and circumstances, explaining your rights and obligations under the tenancy agreement, and advising and assisting you in the event any disputes arise between you and the landlord.
Buying or selling a home
If you are looking to buy or sell a home, some of the key legal issues that you would need to take note of are:
- Eligibility to buy the property: Under the Residential Property Act, only Singaporeans are allowed to purchase landed residential property. Foreigners who wish to do so will first have to obtain approval from the Controller of Residential Property. Otherwise, they may still purchase condominium units.
- As for HDB flats, which are subsidised public housing meant for Singapore Citizens, at least one of the applicants for the HDB flat must be a Singapore Citizen, and the other must be either a Singapore Citizen or Singapore Permanent Resident (SPR). There are also a number of schemes that interested prospective purchasers must come under to be eligible to buy a HDB flat, which can be found on the HDB’s website.
- Taxes: Stamp duty is payable on the purchase or sale of any property situated in Singapore. The amount of tax payable is computed based on the purchase price or market value of the property, whichever is higher. The different types of taxes payable are Buyer’s Stamp Duty (BSD), Additional Buyer’s Stamp Duty (ABSD), Seller’s Stamp Duty (SSD) and Additional Conveyance Duties (ACD). For more information on the taxes payable, you can read our other article on the common taxes in Singapore for individuals and businesses.
- Protecting your interest in the property: After you pay the deposit required and exercise the option to purchase or enter into a sale and purchase agreement in relation to a property that you are purchasing, you should lodge a caveat to protect your interest in the property. A caveat is a legal document lodged with the Singapore Land Authority (SLA) by any person with an interest in property (or land). The lodgement of the caveat will put other parties who wish to deal in the property on notice of your interest in the property, and can prevent any further dealing with the property. For more information on how you can protect your interest in the property that you are purchasing, you can read our article on why and how to lodge a caveat on property in Singapore.
For a more detailed overview of other potential legal issues that could arise in sale and purchases of properties in Singapore, you can look at our guide on buying and selling a property in Singapore. As purchasing or selling a property is likely to be a major decision in your life, not least because of the financial aspects of the transaction, you should consider consulting a conveyancing lawyer for further advice on matters involving the sale and purchase of property. The conveyancing lawyer can also help you with the following:
- Preparing any legal documentation required in the purchase/sale of the property, so that you remain compliant with the legal requirements in relation to your transaction.
- In relation to your obligation to pay taxes on the transaction, the lawyer can also help you with calculating the exact amount payable in your situation, and facilitate the process.
- As for the lodging of the caveat, the lawyer will be able to advise you on whether and when to lodge the caveat, and also to help you to prepare and file your application to lodge a caveat, as the lawyer would have access to the STARS eLodgment platform.
4. Estate Planning
Estate planning is the process of planning how you want your estate (i.e. all the assets you have at the point of death) to be managed and transferred after your death. While estate planning is commonly seen as a milestone at the later stage of one’s life, it is actually important to have it in mind even at the earlier stages in your life, as it may affect the decisions you make then as well.
The first point in time where estate planning may be relevant is when you are getting married. This is because if you wrote a will prior to getting married, that will automatically be revoked upon marriage, as the law assumes that you wish to provide for your new family. As such, the default position post-marriage is that your estate is likely to be awarded to your spouse, even if your previous will states that you wish to distribute your estate between your ex-spouse, your children with your ex-spouse, or your other family members. Therefore, it is important to either change your previous will or make a new will, so that the people that you wish to provide for will still be taken care of under your updated or new will.
The second point in time is when you are filing for a divorce. If you make a will during your marriage, and you subsequently file for and successfully obtain a divorce, the will remains valid. However, this could have unintended consequences. For example, if the will that was made during your marriage specifies that your ex-spouse is entitled to a portion of your assets, that will continue to remain valid even upon your divorce, when your intentions may have changed. Thus, it is important to either change your previous will or make a fresh will during or after your divorce, so that there is an updated will that reflects your latest wishes.
Apart from and on top of the two scenarios above, it is important to have a proper estate plan in place so that it is clear to all parties involved how you want your property to be distributed upon your death. If there is any ambiguity or confusion as to what your wishes are, it may give rise to disputes within your family, or it may result in a distribution that is not in line with your intentions. In Singapore, common estate planning tools are: wills, CPF nomination, Lasting Power of Attorney and living trusts.
- Wills: Wills contain instructions on how your estate should be distributed after your death. Your will should identify your assets, your beneficiaries (including reserve beneficiaries, in the event of simultaneous death), your executors and/or trustees, and state whether a trust should be created. Some of the legal considerations that may arise would be what types of property you can include in your will, or when a trust arrangement should be created. You can refer to our checklist on drafting a comprehensive will in Singapore for an explanation of the key considerations that you bear in mind when drafting your will.
- If you have a clear idea of what you wish to include in your will, you can try generating a basic will using our online ‘Make a Will’ service, which only requires you to answer some simple questions. However, if you have significant assets or if you foresee that there are potential disputes that may arise, you should consult a lawyer instead, so that the lawyer can advise you on how best to draft the will or avoid the foreseeable disputes.
- CPF Nomination: Central Provident Fund (CPF) monies do not form part of your estate and cannot be distributed under a will. This is because monies deposited into CPF accounts are held on trust in favour of the person(s) nominated to receive the funds. In other words, the person(s) you have nominated to receive your CPF funds will receive all your CPF monies. You can make your nomination online at the CPF Board’s website, or complete a CPF Nomination Form in person at one of the CPF Service Centres. This form must be signed in the presence of 2 witnesses who are at least 21 years old, and can be the staff at the service centre. For more information, you may also refer to our guide on making a CPF Nomination.
- Lasting Power of Attorney: A lasting power of attorney (LPA) is an instrument that allows a person (i.e. the donor) to appoint and authorise another (the donee) to make decisions about the donor’s personal welfare and/or property and affairs in the event the donor loses mental capacity. A donor can select up to 2 donees who can act jointly and/or severally with an additional replacement donee.
- Living Trust: A living trust is an instrument created by a person in his lifetime (i.e. the settlor) for the benefit of another (i.e. the beneficiary). The settlor will place his property under the instrument (i.e. the trust). He will then appoint someone (i.e. the trustee) to manage the trust property for the beneficiary. The settlor may specify when and how to distribute the property to the beneficiary. The settlor may even specify what conditions the beneficiary must meet before being able to receive the property being held on trust. You may wish to consider creating a living trust if you have specific instructions in mind for your beneficiary to follow when using your property, or if the beneficiaries are under 21 years of age.
As emphasised above, estate planning is an important part of managing your affairs after your death, so you should consult an estate planning lawyer for further guidance on the same. The lawyer can advise you on which estate planning tool is most suitable for your needs, and can even help you with drafting and preparing the chosen tool, so that it is legally valid and enforceable
In conclusion, there are 4 main life milestones where considerable legal issues may arise, with serious implications for all parties concerned. We recommend that you consult the relevant lawyer for advice/guidance or even legal assistance at these 4 key milestones, to minimise hiccups at each and every stage.
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