In Singapore, lesbian, gay, bisexual, and transsexual (LGBT) families and couples are not given the same legal recognition as their heterosexual counterparts. For example, same-sex marriage is not recognised, and LGBT couples face legal obstacles that prevent them from both being the legal parents of children together as a couple.
This article will highlight 5 legal obstacles that LGBT couples may face in Singapore due to the uncertainty as to the applicability of Singapore’s existing laws to them, or the absence of laws that apply to their LGBT-specific circumstances.
1. Starting a Life Together
In order for a marriage between two people to be valid, the formalities of solemnisation have to be satisfied.
That is, they have to be issued a valid marriage licence, and the solemnisation has to be performed by a licensed official. In this regard, LGBT couples should note that common law unions, or informal unions between people who are not legally married, are not recognised in Singapore.
The parties seeking to marry must also have to have the capacity to marry. This includes the requirement that the parties are of different sexes. Section 12 of the Women’s Charter explicitly states that a marriage solemnised in Singapore or elsewhere between persons who are not male and female at the time of the marriage shall be rendered void, i.e. the couple will be treated as though they were never married. Therefore, same-sex couples will not be able to get married in Singapore.
Parties therefore have to be of the opposite sex at the time of the marriage, as determined by the sex stated in his or her identification card (IC). This means that a male-to-female transgender person who has undergone sex reassignment surgery and legally changed her gender to female on her IC may marry a man (and vice versa) because she would be considered a female at the time of the marriage.
However, if a person in a valid marriage chooses to undergo sex reassignment surgery after the marriage, that person should be prepared for the possibility that the marriage will be voided. This is what happened in a recent case, in which the husband of a valid marriage changed his sex during the marriage, such that the marriage was effectively a marriage between 2 women for 8 months. The marriage was then voided on the basis that a marriage where both parties are of the same sex is not recognised in Singapore. This was even though the parties were of opposite sexes at the time of the marriage.
The Registry of Marriages explained that for a marriage to be legally valid, the couple must be of different sexes at the point of marriage, and want to remain of different sexes throughout the marriage.
2. Ending the Relationship
A validly married couple may, upon divorcing, apply to the court for ancillary orders to settle matters like the payment of maintenance, how their assets are to be divided, and who will take care of the children.
In making orders to settle these matters, the court will strive to make decisions that are as fair as possible for the parties. For example, the court will look at both financial and non-financial contributions of each party in determining how their assets should be divided between them.
However, due to the fact that same-sex couples cannot marry in Singapore, they cannot get divorced when they decide to separate. They are also therefore unable to rely on Singapore’s courts to make ancillary orders on the above-mentioned matters. Instead, they will have to settle matters on their own.
If they rely on the courts to settle their disputes, they will be treated as two private individuals rather than the parties to a marriage. In the context of the division of property, considerations that apply to married couples, such as non-financial contributions, may not feature as prominently. Further, the parties have no right to apply for maintenance. Therefore, the settlement of post-relationship matters may be complicated, long-drawn and result in unjust outcomes that do not accurately reflect the parties’ intentions and expectations.
To provide for greater certainty in the event of separation, same-sex couples may choose to have cohabitation contracts drafted. Such a contract could include terms on the ownership of any property and assets owned by the couple, either individually or in their joint names, as well as the payment of daily expenses. This will help provide some clarity as to how the parties choose to live their lives together as a couple.
However, Singapore’s courts have not yet made a determination on whether or not a cohabitation contract between same-sex couples would be enforceable, so the effectiveness of having these contracts remains to be seen.
3. Having Children
This section deals with the scenario in which an LGBT couple wishes to have children as a couple, such that there is a legal parent-child relationship between each partner and the children (rather than the couple being content with just one of the partners being the legal parent). Such a relationship will allow the parents to make decisions relating to the child, such as medical decisions. It will also impose responsibilities on the parents, such as providing maintenance for the child.
Despite the biological limitations that LGBT couples may face, it is possible for them to have children due to the availability of options such as adoption, assisted reproduction and surrogacy. However, the difficulty arises in then establishing a legal parent-child relationship between the couple and the child.
In Singapore, an adoption application may be made by a married couple or an individual. Since same-sex couples cannot get married in Singapore, an adoption application has to be made by one partner as an unmarried person. This gives rise to two problems:
- The partner who is not the applicant will not have any rights in relation to the child. This is unlike his/her partner who will be considered the child’s legal parent.
- Male same-sex couples will not be able to adopt a female child. The law prohibits sole male applicants from adopting female children unless the court grants them permission to proceed.
In the case of assisted reproduction, the relevant rules and regulations make explicit references to opposite-sex partners, i.e. husband and wife, or father and mother. Therefore, it may be safer to presume that just like in the adoption scenario, only one partner may be considered the child’s legal parent as an unmarried person.
Under section 6 of the Status of Children (Assisted Reproduction Technology) Act, the starting position is that the gestational mother will be treated as the child’s mother. Therefore for female same-sex couples, one of the partners will be considered the child’s mother if she carries the child.
However, for male same-sex couples, the partner who provided the sperm will not be considered the child’s legal father. Therefore, male same-sex couples (and female same-sex couples who do not wish to carry the child) might be better off opting for adoption so that at least one of them can be the child’s legal parent.
Singapore’s laws currently do not allow for the provision and engagement of surrogacy services in Singapore. There are no laws prohibiting couples from going abroad to other countries to obtain such services, but couples intending to do so should always do checks on the legality of obtaining such services in their country of choice.
It should also be noted that couples who have a child through overseas surrogacy services are unlikely to be able to then adopt the child in Singapore. In a recent case, a gay man made an application to adopt a child that he fathered through surrogacy services obtained in the United States. He was permitted to bring the child back to Singapore with him, and made an adoption application to formalise his relationship with the child. However, the court rejected his adoption due to surrogacy arrangements being prohibited in Singapore.
4. Buying a Housing & Development Board flat
Affordable housing options for younger same-sex couples seeking to purchase their own property in Singapore are limited. Unlike many of their heterosexual counterparts, Singaporean same-sex couples do not qualify for most Housing & Development Board (HDB) schemes that require applying couples to be married or eligible to marry. This leaves same-sex couples to apply under the Single Singapore Citizen Scheme or Joint Singles Scheme.
However, both schemes require applicants to be at least 35 years of age. In contrast, other schemes available for heterosexual Singaporean couples only require the applicants to be at least 21 years of age.
Rights of each partner to the HDB flat
It is common for Singaporean couples to use their Central Provident Fund (CPF) monies or obtain a HDB loan to partially pay for the purchase of their HDB flat. However, only a co-owner of the flat can do so. Same-sex couples should therefore be aware that if they apply under the Single Singapore Citizen Scheme, only one of the partners can be the owner of the flat. Except in very special circumstances, HDB does not allow the adding of co-owners (such as the applicant’s partner) to that flat later on.
This means that not only will the non-owner partner be unable to contribute to the payment of the flat through the use of CPF monies and/or obtaining for a HDB loan, he/she will also not have any legal rights in relation to the flat (e.g. the rights to renovate, rent and sell the flat).
Therefore if a same-sex couple intends for both parties to contribute to the flat’s purchase price through such a manner, or have legal rights in relation to the flat, they may wish to apply under the Joint Singles Scheme so they may opt to hold the flat in both their names as co-owners.
5. Estate after Death
According to Singapore’s intestacy rules, a share of the estate of a married individual who dies intestate (i.e without a will) will be distributed to his/her spouse and children, if any.
Since same-sex couples cannot get married in Singapore, a same-sex partner will not be considered as the spouse of his/her deceased partner who dies intestate. Therefore, the surviving partner will not be entitled to share of his/her deceased partner’s estate. This is likely to be contrary to the intentions of the deceased partner, especially if the couple has been together for a long time.
To avoid this, it is highly recommended for same-sex couples to draft wills to avoid the intestacy scenario so that upon their death, their estate will be distributed in a way that they desire.
With regards to CPF monies, the surviving partner will be entitled to the deceased partner’s CPF monies if the deceased partner had made a CPF nomination in favour of the surviving partner. Therefore, LGBT couples should make CPF nominations to ensure that their CPF monies are distributed to their intended beneficiaries.
This article is meant to be a general summary of legal obstacles that LGBT couples are likely to face in Singapore. It is in no way a substitute for legal advice on these matters. A more in-depth discussion on these topics and more can be found in a legal guidebook titled “Same but Different” which can be downloaded at https://www.singaporelgbtlaw.com.