Nuptial agreements between couples determine what will happen if the parties end up separated or widowed. Prenuptial agreements are made before the marriage and function like a contract between the couple covering practical areas such as maintenance, custody-related issues if there is a child involved, as well as the ownership and division of property.
Postnuptial agreements are written during the marriage and are a more accurate and updated reflection of the couple’s attitudes and intentions after the marriage. It is also presumed that postnuptial agreements are made after the couple have fully understood the responsibilities and expectations of married life. Because of this difference, the courts will generally give more weight to postnuptial agreements with a higher likelihood of it being enforced.
Difference Between Postnuptial Agreement and Deed of Separation
In a previous article, we explained what a Deed of Separation is and how to get one. The difference between that and a postnuptial agreement is that a deed of separation is for couples that already have the intention to separate, but have yet to meet the conditions for divorce.
A postnuptial agreement can be made by any couple, even if their relationship is fine and they have no intention to separate.
The other difference is that a Deed of Separation is a legally binding agreement that kicks in automatically once it’s signed whereas a postnuptial agreement may only be enforced by a court decision. The court may also choose to take the postnuptial agreement into account when deciding on the couple’s ancillary matters such as maintenance and child custody.
In the unfortunate event where a spouse dies, the postnuptial agreement also serves a secondary function as a will. The only difference is that while a will applies to anyone related to the deceased, the postnuptial agreement will only be applicable to the surviving spouse.
Common Terms for Postnuptial Agreements
There isn’t a standard template or list of items to include in a postnuptial agreement and generally, the terms will be up to the parties drafting it. Not all postnuptial agreements will be automatically enforced, especially if they contradict established family laws.
Some of the more common postnuptial agreement terms include:
Allocation and division of property and other assets after divorce
Custody, care and control of the child after divorce
Division of marital debt after divorce
Maintenance and duration of payments
Allocation of assets if a spouse dies during the marriage
While it is technically possible for you to draft a postnuptial agreement by yourself, it is advisable to hire a lawyer as they will be able to draft an agreement that complies with legal requirements, while providing timely and accurate advice to ensure the agreement is watertight and does not run afoul of any established family laws.
The lawyer will also be able to help you navigate more complex terms that will require calculation of liabilities such as marital debts. Due to the sensitive nature of postnuptial agreements, it is always advisable to carefully consider the terms and arrangements before finalising it.
While a couple will only need a single postnuptial agreement, each party may hire their own respective lawyer, or hire the same lawyer to draft the agreement, provided both parties are agreeable to all the terms of the agreement.
Engaging a Lawyer
If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.
Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years from traffic offences, high-profile criminal cases – to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.
You may be familiar with movies where a character, usually a police officer or detective, goes undercover by joining a gang or a crime syndicate to gather evidence against them. One specific example of entrapment could be the officer pretending to be a gang member, requesting another member to buy drugs for him. This would lead to the gang member and dealer eventually getting charged for drug trafficking.
By definition, entrapment refers to the act of getting someone, usually a suspect, to commit an offence by concealing the facts or simply by misrepresentation. In this case, the undercover officer concealed his real identity and made the dealer commit a criminal offence.
However, if the officer had bought the narcotics from the dealer himself without any effort at concealment, then he would have simply just provided an opportunity for the dealer to commit an offence. This won’t be considered entrapment.
The Legality of Entrapment
The example above involved someone acting for the authorities but entrapment can also refer to a private citizen or company acting on their own. Singapore’s courts will generally accept evidence that was obtained through entrapment provided they are:
Relevant to the case;
Not harmful for all parties involved
If the court finds that the method of obtaining this evidence caused more problems to the parties involved rather than being useful to the case, then the court may reject or deny it. This applies to both legally obtained evidence, as well as those illegally obtained through unlawful means such as hacking or stealing.
While an illegally obtained piece of evidence may result in punishment for that act, the evidence itself may still be used in court if it is relevant to the case. The main difference between illegally obtained evidence and entrapment is the element of instigation.
Using the same example of the undercover police officer, if he had instead convinced a person with no interest in drugs to procure some for him, then the officer may get prosecuted by the state instead as such behaviour would be considered unconstitutional.
Private and State Entrapment
While state entrapment usually involves the authorities or the government, private entrapment involves private citizens or companies conducting the act. An example would be a media company instigating someone to commit software piracy to make a case against copyright infringement.
Evidence gathered by private entrapment may also be accepted by Singapore’s courts, granted that they were obtained through lawful means. For evidence gathered by unlawful means, further action may be taken by the court against the party gathering the evidence to ensure fairness.
Entrapment is Not a Defence
Depending on the facts of the case, the court may decide that the entrapment could be considered a mitigating factor for the case and weigh the impact the entrapment had on the intent and guilt of the offender. Was the person planning to commit such an act in the first place?
For example, if an undercover officer convinces a person with no criminal tendencies to commit an offence that he/she would not if not for the officer’s request, then the court may view that as a mitigating factor in the case.
However, if the officer merely mentions an illegal act, to which the offender arranges for it to happen, such as illegal prostitution, then the entrapment would be viewed by the court as justified and there will be no mitigating value in this case.
If you strongly suspect that you are being entrapped to commit an offence, then it is advisable for you to consult a lawyer to better understand your situation and to provide you with the best advice for your possible next steps.
Engaging a Lawyer
If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.
Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years from traffic offences, high-profile criminal cases – to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.
In our previous articles, we explained the process of filing for divorce in Singapore, as well as ways to prove unreasonable behaviour in a marriage. In this article, we will summarise the pre-conditions and legal grounds for getting a divorce.
For a divorce to proceed, there needs to be proof of an irretrievable breakdown in the marriage which will make up the legal grounds for the divorce. Factors such as unreasonable behaviour, adultery, separation or desertion provide the facts for the case.
Pre-Conditions are the necessary requirements that a married couple must fulfil before they are allowed to file for divorce.
At Least 3 Years of Marriage
To qualify for a divorce, you will have to be married for a minimum of 3 years. However, if you can prove to the court that you have suffered exceptional hardship, or that your spouse has been exceptionally unreasonable towards you, or any other exceptional personal circumstances that could justify an early divorce, then you should consult a divorce lawyer who can guide you through the process.
Either you or your spouse will also have to be based, or domiciled in Singapore to be able to file for divorce.
Proving Irretrievable Breakdown In The Marriage
In Singapore, there are four facts defined by the law that can prove irretrievable breakdown in the marriage to justify a divorce:
Adultery
Unreasonable Behaviour
Separation
Desertion
Adultery: Most guilty parties would not necessarily admit to committing adultery. However, to justify the divorce, you will need to show evidence to prove it had happened. One way to get this evidence is to hire a private investigator.
Unreasonable Behaviour: The list of what can be defined as unreasonable behaviour may be subjective and vary from person to person. Several examples include, drug or gambling addiction, violence, excessive instances of unjustifiable late nights out, social irresponsibility, etc. This is a non-exhaustive list which is why it’s necessary to speak to a lawyer who can help you based on your personal circumstances.
Separation & Desertion: A couple can be considered Separated if they have lived apart for at least 3 years, and that both parties have agreed to that separation. If one party leaves the other and shows no intention of returning, then that will be considered Desertion.
Both parties will have to show evidence of their respective living arrangements to ensure they are living separately. It is possible to live separately, even under the same roof if you both can maintain separate households.
If both parties attempt reconciliation, but it doesn’t last more than six months, then that timeline can be counted as part of the separation period.
If the couple have been living apart for at least 4 years, then the consent of the other party is not necessary for the divorce.
For more details and information, especially if you have personal circumstances that are not listed here, you should speak to a divorce lawyer who can guide you.
Engaging a Lawyer
If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.
Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years from traffic offences, high-profile criminal cases – to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.
For a divorce case to proceed in Singapore, you’ll need to prove that there has been an irretrievable breakdown of the marriage. In an earlier article, we explained various justifications to prove unreasonable behaviour by your spouse. In this article, we will explain what the requirements of separation are.
For a non-contested divorce, 3 years of separation is required and for contested divorce, an additional year.
Legal Definition of Separation
Separation in a legal context may not necessarily mean physical separation. It could also apply to couples who are still living together. Therefore, both parties must show the intent to be apart from each other.
If one party of the divorce is living overseas because of a work obligation while the spouse remains in Singapore, then even though they are physically separated, the separation in this case was caused by work obligations and not an intent to divorce.
Loss of Consortium
Consortium in a marriage is the right to companionship and association between each other. In other words, the intimacy and time spent with each other. In most divorce cases, there is a loss or reduction of consortium which leads to separation.
However, if the couple are physically separated and living far away from each other, but still speak to each other regularly as if they were still together, or do not show any intent to end the marriage, then they will not be considered separated.
The separation will also need to be over a continuous period of time. The court will generally promote attempts at reconciliation and if the couple manage to live with each other again but fail after less than 6 months, they will still be considered separated.
How To Prove Separation While Living Together?
While it may seem impossible, it is actually possible to prove separation while still living together with your spouse. Both parties will need to maintain separate households even if they are living under the same roof.
The judge will also consider the circumstances of the case including loss of consortium and a breakdown in the marriage while they were living together.
During this period, both parties will also be expected not to engage in typical spousal duties which can include cleaning and cooking for each other. Both parties will also be expected to maintain separate finances and sleep in different rooms.
Desertion
While separation refers to a mutual agreement between the couple, desertion depends on the deserting party’s frame of mind. It must be shown that the person had the intention to permanently end the marriage. This can apply if one party leaves the house, or if they have separated but one party refuses to resume cohabitation.
The desertion must also occur at least over two consecutive years, and likely to continue longer.
What You Will Need
For an uncontested divorce, you will need to file a formal consent written by your spouse in the Memorandum of Appearance (MOA).
Your lawyer will help you draft a Deed of Separation, a legally binding document containing the terms and conditions of the couple’s arrangements to live separately. The separation deed consists of two categories of clauses.
The details of the separation such as the date, living arrangements of both parties and an agreement that both parties will live separately.
Financial arrangements between the spouses such as division of matrimonial assets, maintenance terms including children’s living arrangements and access.
A statement of particulars including the date when the couple decided to permanently end the consortium should be provided, including the reasons and intention to live separately. If the couple had been living separately, then proof of their respective residential addresses will be required.
For more details and information, you should speak to a divorce lawyer who can guide you based on your specific circumstances.
Engaging a Lawyer
If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.
Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years from traffic offences, high-profile criminal cases – to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.
Maintenance is a form of financial support and may be imposed such that one party provides for the other party or their children’s’ living expenses. A Maintenance Order is a court order stating that a divorced or legally separated person must pay his/her former partner a regular sum in order to cover the costs of living.
However, this order isn’t limited to just marriages. A maintenance order may also be imposed for children who are financially capable to provide maintenance for their elderly parents, but choose not to do so due to the strained relationship between them.
Who can apply for a Maintenance Order
Factors determining whether a maintenance order should be imposed
Factors determining the amount of maintenance payable
How long will the maintenance order last?
What if the other party defaults on maintenance payments?
Application for Maintenance Orders at the Family Justice Courts (FJC)
Post-Application Process
Who can apply for a Maintenance Order?
Under section 69 of the Women’s Charter, the following persons may apply for a maintenance order:
S 69(1): A wife may apply for a maintenance order from her husband if he neglected or refused to provide reasonable maintenance for her.
S 69(1A): An incapacitated husband may apply for a maintenance order from his wife if she neglected or refused to provide reasonable maintenance for him.
S 69(2): A child may apply for a maintenance order from a parent if the parent neglected or refused to provide reasonable maintenance for the child who is unable to maintain himself.
S 69(5): A child who has attained the age of 21 years may apply for a maintenance order from a parent under s 69(2) if
The child has a mental or physical disability;
The child is or will be serving full-time National Service; or
The child is still a full-time student.
Under section 3 of the Maintenance of Parents Act, the following persons may be able to apply for a maintenance order:
S 3(1): A person domiciled and resident in Singapore over the age of 60 and who is unable to maintain himself adequately may apply for a maintenance order from his/her children.
S 3(4): A parent is unable to maintain himself if his total or expected income and other financial resources are inadequate to provide him with basic amenities and basic physical needs including shelter, food, medical costs and clothing.
S 3(2): The organisation or approved person whose care the parent resides in may apply for a maintenance order from the children to defray the cost of maintaining the parent.
S 3(5): A person who is under the age of 60 may apply for a maintenance order from his/her children under s 3(1) if
The parent suffers from a mental or physical illness that prevents him from maintaining or makes it difficult for him to maintain himself; or
The parent has other special reasons for requesting maintenance.
Upon application, the court will consider all the circumstances of the case, including:
Parties’ financial needs;
Parties’ income earning capacity (if any), property and other financial resources;
Whether the party has any physical or mental disability;
Contributions made by each party to the family welfare, including looking after the home or caring for the family, and the conduct of the parties;
Standard of living enjoyed before the neglect or refusal; and
In the case of a child, the manner in which he/she was being, and in which the parties to the marriage expected him/her to be educated or trained.
Factors determining whether a maintenance order should be imposed
Section 69(4) of the Women’s Charter states that the following circumstances are taken into account when determining whether a maintenance order should be imposed:
the financial needs;
the income, earning capacity (if any), property and other financial resources;
any physical or mental disability;
the age of each party to the marriage and the duration of the marriage;
the contributions made by each of the parties to the marriage to the welfare of the family, including any contribution made by looking after the home or caring for the family;
the standard of living enjoyed by the party seeking maintenance before the other party (the other spouse or parent) neglected or refused to provide reasonable maintenance ;
in the case of a child, the manner in which he was being, and in which the parties to the marriage expected him to be, educated or trained;
the conduct of each of the parties to the marriage, if the conduct is such that it would in the opinion of the court be inequitable to disregard it.
Section 5(1) of the Maintenance of Parents Act states that a maintenance order may be imposed
when it is just and equitable that the children should provide maintenance for their parent; and
the child, after taking care of his own family needs, is still financially capable of supporting his parent; and
the parent is unable to maintain himself.
Some factors and circumstances that will be taken into consideration in determining whether a maintenance order should be imposed are listed in Section 5(2) of the Maintenance of Parents Act:
the financial needs of the parent, taking into account reasonable expenses for housing and medical costs;
the income, earning capacity, property and other financial resources of the parent and the manner in which the parent has spent his savings or dissipated his financial resources;
any physical or mental disability of the parent;
the income, earning capacity, property and other financial resources of the children;
the expenses incurred by the child in supporting his spouse or children;
the contributions and provisions, whether financial or otherwise, which the child has made for the maintenance of the parent.
What factors are considered when determining the amount of maintenance payable?
The factors and circumstances considered by the Court are listed in section 114 of the Women’s Charter:
the income, earning capacity, property and other financial resources;
the financial needs, obligations and responsibilities;
the standard of living enjoyed by the family before the breakdown of the marriage;
the age of each party;
the duration of the marriage;
any physical or mental disability;
the contributions made by each of the parties to the marriage to the welfare of the family; and
In proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (eg, pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
Some factors and circumstances considered when determining the amount of maintenance payable under the Maintenance of Parents Act include:
S 5(3) & 5(4): Where the child proves that the parent had abandoned, abused or neglected the child that the parent is seeking maintenance from, the application may be dismissed or the quantum of maintenance may be reduced.
S 5(5): Where there is more than one child that the parent is claiming maintenance from, the amount may be apportioned
If, and when you do obtain a Maintenance Order, it will state:
The amount of maintenance to be paid;
When it is to be paid;
To whom it is to be paid; and
The method of payment – whether payment is made to the Complainant directly or deposited into the Complainant’s bank account. Payment to a bank account is preferred as there will be evidence of payment.
How long will the maintenance order last?
Section 117 of the Women’s Charter states that the maintenance order will last until
where the maintenance is unsecured:
either spouse or former spouse dies; or
when the former spouse remarries.
where the maintenance is secured:
when the spouse dies; or
when the former spouse dies or remarries.
Where child maintenance is concerned, the maintenance order will last until the child reaches 21 years of age. For children of 21 years or older, a maintenance order will only continue to receive maintenance if it is proven that:
the child has a mental or physical disability;
the child is or will be serving full-time National Service; or
the child is still a full-time student.
Section 7 of the Maintenance of Parents Act states that the maintenance order will last until
where the maintenance is unsecured: either death of the parent or the child he is seeking maintenance from, whichever is earlier; or
Where a maintenance order was made against more than one respondent, the death of one of the respondents will not affect the liability of the rest;
The parent may apply to reapportion the maintenance amount among the surviving respondents;
where the maintenance is secured: the death of the parent.
What can I do if the other party defaults on payment of maintenance?
Section 71 of the Women’s Charter sets out the enforcement measures that may be imposed on the obliged party should they default on their payment of maintenance. These measures are also applicable to defaulting parties under the Maintenance of Parents Act:
A fine imposed for every breach of the order;
An imprisonment term not exceeding one month for each month’s allowance remaining unpaid (The defaulting party still has to pay for any unpaid maintenance. The court may reduce the amount as it thinks fit);
A garnishee order may be imposed; or
The defaulting party may be ordered to furnish security for against any future default in maintenance payments by means of a bankerʼs guarantee (notwithstanding that the unpaid amount has been paid off in part or in whole);
For an amount not exceeding 3 months of maintenance payable; and
That shall be valid for a period to be determined by the court not exceeding 3 years, starting from the date of order the security is made.
The defaulting party may be ordered to undergo financial counselling or other similar or related programmes if it is in the interests of the parties (notwithstanding that the unpaid amount has been paid off in part or in whole);
Make a community service order requiring the person to perform any unpaid community service for up to 40 hours under the supervision of a community service officer (notwithstanding that the unpaid amount has been paid off in part or in whole).
Application for Maintenance Orders at the Family Justice Courts (FJC)
The Family Justice Court (“FJC”) deals with applications for maintenance orders as well as the enforcement of existing maintenance orders.
Step 1: Submission of documents and information on iFAMS Application
You are encouraged to submit your application in draft and documents online by iFAMS before going down to FJC. Before beginning on your iFAMS application, do ensure that you have your SingPass ID and password.
Save your work and choose whether you wish to verify your application and documents at the Court or at an authorised agency.
Step 2: Verify the relevant documentations to FJC
When you go down to FJC, do ensure that you bring along the following documents and identification:
Your identity card;
Photocopy of your marriage certificate (if applicable);
Photocopy of your birth certificate(s) of your child(ren) (if applicable); and
Photocopy of the Order of Court for maintenance that you wish to enforce (if applicable).
Step 3: Attending before a Judge
You will appear before a Judge, who will consider your application and may ask you questions on your application. You will have to swear or affirm that the contents of your application and your answers to the Judge are true and correct.
Complainant and Respondent
The “Complainant” is the person filing the application for the maintenance order while the “Respondent” is the person against whom you are filing the application for the maintenance order.
Post-Application Process
Step 1: Service of Summons
Once your application is ready, the Judge will issue a summons to the Respondent which will contain the date of first mentions of the case. Both the Respondent and the Complainant will be required to attend the first mentions date.
Step 2: First Mentions
The complaint will be read at the first mentions. If the Respondent consents to the application and the Court is satisfied, a consent order can be recorded.
Step 3: Mediation
If there is no resolution after the complaint is read, the Court may direct parties to attend a mediation session. After the mediation session, parties will be directed to Family Court No.1 before the Judge. If there is a resolution and the Respondent consents to the application and the Court is satisfied, a consent order can be recorded by the Judge.
Step 4: Hearings
If the mediation session concludes without any resolution, the Judge in Family Court No.1 will give directions for parties to prepare for the parties’ and witnesses’ statements and documents for the hearing. This will usually comprise of
the parties’ bank statements;
the parties’ CPF statements,
The parties’ salary slips,
IRAS Notices of Assessment; and
Lists of personal monthly expenses.
These documents will be exchanged and filed on a later date at Family Court No. 1. Once the Judge is satisfied that all relevant documents are filed and the parties are ready for hearing, a hearing date will be fixed.
Should the parties or any of the witnesses are not conversant with the English Language, they should request for an Interpreter. Each party must also ensure that their witnesses are available to attend the hearing.
Engaging a Lawyer
If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.
Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years from traffic offences, high-profile criminal cases – to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.
We have published 6 articles worth of information on the Act 15 of 2019 Amendments to the law, specifically with regards to sexual crime and the protection of minors against such crimes. In this overview article, we will summarise these laws, sorted by the types of offence, as well as their respective penalties.
Overview
Assault or criminal force to outrage modesty
Rape
Sexual assault Involving penetration
Words or gestures
Voyeurism
Distribution of voyeuristic images
Possession of voyeuristic images
Sexual exposure
The Protection From Harassment Act
Physical sexual harassment
It is important to first make a police report, and seek clarification from a lawyer if you have recently experienced any of these offences.
Overview of offences
Offence
Statute
Penalties
Assault or use of criminal force to a person with intent to outrage modesty
Section 354 of the Penal Code
Imprisonment for a term which may extend to 2 years; OR with fine; OR with caning; OR with any combination of such punishments
A fine not exceeding $5,000; OR to imprisonment for a term not exceeding 12 months; OR both
Section 354: Assault or criminal use of force with intent to outrage modesty
Section 354 of the Penal Code criminalises the intent of outraging the modesty of another person with criminal force. Most cases that fall under this section typically involve acts of molestation. Past cases involving upskirt photography/videography were prosecuted under this section but with the new amendments, those offences are now covered in 377BB of the Penal Code.
Under this section, the accused must:
Have intended to outrage the modesty of the victim; or
Have knowledge that his/her conduct will lead to the outage of modesty of the victim.
Should the accused be prosecuted under this section successfully, the court may impose:
an imprisonment term up to 2 years; OR
with fine; OR
with caning; OR
any combination of such punishment.
Section 375: Rape
Men and women can both be victims of rape. However this section applies to men because it specifically mentions penile penetration.
In order for a case under this section to succeed, the accused must have:
Penetrated the vagina, anus or mouth of another person without that person’s consent.
Should the accused be prosecuted under this section successfully, the court may impose:
an imprisonment term up to 20 years; AND
be liable to
a fine; OR
caning.
If the victim was under 14 years of age, any penetration will automatically be considered rape.
Section 376: Sexual assault involving penetration
This section covers the offences where any person:
sexually penetrates the vagina or anus of another person with a part of their body (other than the penis) or an object, without the other person’s consent;
causes a man to penetrate the vagina, anus or mouth of another person with his penis without his consent; or
causes another person, to sexually penetrate the vagina or anus of another person with a part of their body (other than the penis) or an object, without the other person’s consent,
While only men can be charged under section 375 of the Penal Code for rape, section 376 allows for the prosecution of women.
A person guilty of an offence under section 376 shall be punished with:
an imprisonment term which may extend to 20 years, AND
shall also be liable to
a fine; OR
caning.
Section 377BA: Words or gestures intended to insult the modesty of any person
This section is also a gender-neutral version of the pre-amendment section 509 of the Penal Code.
According to this section:
any person who utters any word, makes any sound or gesture, or exhibits any object,
intending that
such word or sound will be heard, or
that such gesture or object will be
seen by such person, or
intrudes upon the privacy of such person.
Punishments if found guilty of an offence:
an imprisonment term up to one year; OR
with fine; OR
with both
This section has been applied in newer cases, including one involving a man who removed his pants and stroked himself with the intention of being seen by two people.
Section 377BB: Voyeurism
Voyeurism, an act that has recently gained traction in the local discourse about sexual misconduct since the Monica Baey exposé, will now be punishable under section 377BB.
Anyone can be a victim of voyeurism. In the past, perpetrators, whose victims were men, could not be punished under section 509 of the Penal Code because the offences were specifically for female victims. The addition of this new section has since broadened the scope of protection to include men.
This new act applies to offences such as:
S 377BB(1)(a): intentionally observing another person doing a private act; OR
S 377BB(2)(a): operating equipment with the intention of enabling the accused or another person to observe a third person doing a private act; OR
S 377BB(3)(a): intentionally or knowingly recording another person doing a private act; OR
S 377BB(4)(a): operating equipment with the intention of enabling the accused or another person to observe a third person’s genitals, breast (if the victim is a female) or buttocks (whether exposed or covered) in circumstances where such body parts or underwear would not otherwise be visible; OR
S 377BB(5)(a): intentionally or knowingly recording an image of another person’s genitals, breast (if the victim is a female) or buttocks (whether exposed or covered) in circumstances where such body parts or underwear would not otherwise be visible; OR
S 377BB(6): installing equipment with the intention of enabling the accused or another person to commit an offence under subsection (1), (2), (3), (4) or (5).
The accused must know that the other person did not consent to the acts mentioned.
Punishments under section 377BB:
an imprisonment term which may extend to 2 years; OR
with fine; OR
with caning; OR
with any combination of such punishments.
Section 377BC: Distribution of voyeuristic images or recordings
Under this section, offences include:
intentionally or knowingly distributing or has in possession, an image or recording of another person without that person’s consent to the distribution;
knowing or having reason to believe that the image or recording was obtained through voyeurism; and
knows or has reason to believe that the other person does not consent to the distribution.
Punishment if found guilty:
an imprisonment term which may extend to 5 years; OR
with fine; OR
with caning; OR
any combination of such punishments
Section 377BD: Possession of voyeuristic or intimate images and recordings
This section covers offences where the accused has:
gained access to an image or recording of another person; and
has knowledge that the image or recording was obtained through voyeurism; or
has knowledge that
the image or recording is an intimate image or recording as defined in section 377BE(5);
the possession of, or access to the image or recording was without the consent of the person depicted in the image or recording; and
the possession of or access to the image or recording will or is likely to cause humiliation, alarm or distress to the person depicted in the image or recording.
If found guilty of an offence under section 377BD, the punishment will be:
an imprisonment term which may extend to 2 years; OR
with fine; OR
with both.
Section 377BE: Distributing or threatening to distribute intimate images
As information technology gets more invasive and intrusive, non-consensual pornography has been on the rise as a result. The most prominent example being the SG Nasi Lemak Telegram chat group, in which 44,000 group members shared hundreds of obscene photos and videos of women. Many of such images and recordings, some of which are also known as revenge porn, were obtained through voyeuristic means. With the 2019 Criminal Law Reform Act, this new section serves to tackle this problem.
There are three elements to an offence under section 377BE
The offender must have intentionally or knowingly distributed or threatened to distribute an intimate image or recording of another person;
Without that person’s consent; and
With knowledge that the distribution will or is likely to cause the other person humiliation, alarm or distress.
An intimate image is a recording of the genitals, anal region or breasts of the victim, or a recording of the victim doing a private act. Images and recordings that have been altered or edited to appear like an intimate image are also considered as such.
If found guilty, the punishment will be:
an imprisonment term which may extend to 5 years; OR
with fine; OR
with caning; OR
with any combination of such punishments
Section 377BF: Sexual Exposure (Flashing)
This section prosecutes the act of exposing one’s genitals to another person, commonly known as flashing. This law applies to any person who:
for the purposes of obtaining sexual gratification or of causing another person humiliation, alarm or distress,
S 377BF(1)(a): intentionally exposes his/her genitals; OR
S 377BF(2)(a): intentionally distributes to the other person an image of his/her own or any other person’s genitals;
intends that the other person will see his/her genitals; AND
does so without the other person’s consent.
A person guilty of an offence under section 377BF shall be punished with
an imprisonment term which may extend to one year; OR
with fine; OR
with both.
The Protection From Harassment Act: Non-physical sexual harassment
Sexual harassment can come in both physical and non-physical forms. Perpetrators of non-physical sexual harassment may now be liable under sections 3 and 4 of the Protection from Harassment Act.
Under Section 3, the offender must have intended to harass, alarm or cause distress to the victim through threats, abuse or insult, and did in fact take action by causing harassment, alarm or distress.
If found guilty under this section, the punishment is:
a fine not exceeding $5,000; OR
imprisonment for a term not exceeding 6 months; OR
both.
For section 4, the offender must have used threatening, abusive or insulting words or behaviour which is perceived by the victim as harassment or causing alarm, or distress.
The punishment for an offence under section 4 of the Protection from Harassment Act will be a fine not exceeding $5,000.
The Protection From Harassment Act: Physical Sexual Harassment – Unlawful stalking
Under section 7 of the Protection from Harassment Act, the offender must have
Unlawfully stalked the victim whether through acts or omissions;
Caused the victim harassment, alarm or distress; and
It was done with
the intention of causing harassment, alarm or distress to that person; or
knowledge that such an act would cause harassment, alarm or distress to that person.
A person guilty of an offence under section 7 of the Protection from Harassment Act shall be punished with
a fine not exceeding $5,000; or
an imprisonment term not exceeding 12 months; or
Both.
Engaging a Lawyer
If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.
Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years from traffic offences, high-profile criminal cases – to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.
As part of our ongoing explainer series on sexual offences in Singapore and how the Act 15 of 2019 amendments to the laws will better protect the vulnerable, we have covered consent, definition of minors and commercial sex. In this article, we will explain the interpretations of various sexual offences that involve ‘child abuse material’, and identify the signs of an exploitative relationship.
What is Child Abuse Material
The Act 15 of 2019 amendments to the law that took effect in 2020 highlight very clearly, the definition of child abuse material, in their various formats and possibilities, with certain related keywords from Sections 375 to 377BO that we will highlight and explain below.
According to the law, child abuse material refers to any material that depicts, or implies an image of a minor below the age of 16 as:
Victim of torture, cruelty or physical abuse;
Victim of sexual abuse;
Engaged in a sexual pose or activity, alone or with another person;
In the presence of another person who is engaging in sexual activity.
This material can also include offensive depictions or images of the genital or anal regions, and breasts if female, of someone who may appear to any reasonable observer to be below the age of 16.
The Important Keywords
There are several keywords and actions that are mentioned within these sections that we will select and simplify as they will provide us with a better understanding of how these new laws will work.
Material: a film, video, photograph, printed matter, electronic record, computer game or just about any other depiction or image;
Image (visual): a still or moving, recorded or unrecorded visual produced by any means, and where the context requires, may also include three-dimensional images;
Image (person): an image that resembles an actual person so closely that an observer may not be able to tell the difference.
Structure: a temporary or movable structure such as a tent, vehicle or vessel;
Touching: includes touching another person using any other part of the body besides the hand, or using an object, or even through something else, eg. through fabric or a curtain;
Distribute: whether done electronically, digitally or in person, distribute refers to sending, publishing, supplying, showing, exhibiting, transmitting, communicating, making available for viewing, or access by another person, any child abuse material;
According to the law, a person will be committing an offence by simply distributing the material, even if the recipient never gains access to it.
Exploitative Relationships
An exploitative relationship will be determined by the court based on certain factors and the circumstances of the case if the victim is a minor below the age of 18. These factors include:
The age of the minor;
The age difference between the minor and the accused;
The nature of their relationship;
The degree of control or influence the accused has over the minor.
The court will also presume their relationship was exploitative, unless proven otherwise, if the accused is a:
Parent, step-parent, guardian or foster parent of the minor;
De facto partner of the parent, guardian or foster parent;
Member of the teaching or management staff in the minor’s school;
Person the minor knew from a religious, sporting, musical group or class;
Custodial officer of the institution where the minor is detained;
Registered medical practitioner to whom the minor is a patient;
Advocate, solicitor or counsellor where the minor is a client;
Consent Under Misconception
For exploitative relationships involving non-minors, the main factor is consent, as well as the identity of the accused. In a situation where the victim provides consent for a non-sexual activity, without realising that the accused was planning a sex act instead, or the accused was not the person the victim was expecting, eg. husband imposter, etc. In this instance, the consent given earlier is no longer valid.
However, in another example, if person A tells person B that he is the CEO of a large company, although he is only the CEO’s clerk, and person B consents to sexual intercourse with person A, only to find out later who A really is, the court may determine that B’s misconception was as to the person’s attributes and not his identity and therefore, the consent may be considered valid.
Engaging a Lawyer
If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.
Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years from traffic offences, high-profile criminal cases – to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.
As we navigate into our new reality where high resolution digital cameras get increasingly smaller and easier to hide, and with social media and instant messaging conversations buzzing with terabytes of visual content from photos and videos every minute, they open a whole new domain for potential criminal acts that might happen, especially against vulnerable communities like minors.
In our previous articles in this series, we covered consent, definition of minors and commercial sex. In this article, we’ll explain how the Act 15 of 2019 amendments to the law will deal with the possession and distribution of voyeuristic images in Singapore.
Hidden Cameras and Dirty Secrets
Over the past few years, there has been a disturbing increase in the number of sexual offences globally involving hidden cameras, with the resulting footage either being uploaded on to pornographic websites without the victim’s knowledge, or used as ransom for blackmail.
In fact, in 2019, South Korea experienced the Burning Sun scandal when numerous top celebrities were exposed, as part of a large scale syndicate that involved secretly recorded sex videos distributed without the victims’ consent. The scandal became such a huge talking point that the term ‘Molka’ was coined to describe the phenomenon.
Will This Ever Happen in Singapore?
The unfortunate reality is that it has already happened in Singapore, and remains a problem.
The same year Korea was dealing with Molka, a scandal involving a Telegram channel started by Singaporeans with an estimated 44,000 members called ‘SG Nasi Lemak’ made the news for the same reasons. While the perpetrators in Singapore weren’t celebrities in their own right, the case highlighted the growing problem of voyeurism — the recording and distribution of obscene videos in Singapore and the lack of protection for victims, mostly schoolgirls, against such acts — which led to the Act 15 of 2019 Amendment.
What Are The New Safeguards in Place?
In our previous article, we explained voyeurism and outrage of modesty. For this portion, we will look at Section 377BC – Distribution of voyeuristic image or recording.
According to the law, if a person intentionally or knowingly distributes an obscene image or recording of another person without their consent, the person will have committed an offence. In deeper detail, what “knowingly” means is that the person is aware, or has reasons to believe that the recording was made without the victim’s consent, like hidden camera footage from a hotel room or a toilet cubicle, but still đecides to distribute the video.
Examples of distribution may include the sharing of obscene videos on chat applications like Telegram and Whatsapp, or any other instant messaging service, as well as sharing links to such videos online, or even in public, by transferring the files from one device to another by either a wireless connection, or a USB drive.
The punishment, if found guilty of any offence under this section, is a jail term of up to 5 years, or a fine, or caning. If the victim is below the age of 14, then it will be a jail term of up to 5 years, with a fine, or a combination including caning.
What Can You Do if You Stumble Upon an Obscene Recording of a Familiar Person?
In the event that you, or someone you know, is in a situation where an obscene recording is making its rounds with the potential to cause humiliation, alarm or distress to the person, then it’s important to make a police report immediately and not to distribute it any further. You may also contact a lawyer if you are unsure of what to do next.
Possession of, or gaining access to such material after knowing, or having reason to believe the video was recorded or released without the victim’s permission, is an offence which is punishable by up to 2 years in prison, with a possible fine. Caning may be included if the victim was below 14.
Such materials may also include photographs or video recordings, or in any other visual format in a digital file such as MP4 and MOV videos, or JPG and PNG image files, or in any other file format that can be saved in an electronic device and viewed on like a phone or tablet, and transferred between devices either through an app or a physical drive. If a stranger decides to show you an obscene image from their phone in a public place, they will have committed an offence.
Distributing or Threatening to Distribute Intimate Image or Recording
Also known as ‘revenge porn’, a form of blackmail, the act of distributing or just threatening someone that an intimate image or recording will be distributed without their consent, with the knowledge that the material will cause humiliation, alarm or distress is an offence that will be punishable by up to 5 years in prison, which may include a fine, and caning.
Intimate image, according to the law, can also refer to:
A still photograph, or a video;
Someone’s genital or anal region, covered or not;
Breasts, if female, covered or not;
Performing a private act;
Superimposed image of a person’s face on another person performing a sexual act to make it seem like the act involved the former.
If you encounter any such incidents, make a police report immediately. In our next part of this series on sexual offences and the new laws to address them, we will explain the legal definition of child abuse material and exploitative relationships.
Engaging a Lawyer
If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.
Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years from traffic offences, high-profile criminal cases – to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.
In our previous articles in this series, we explained what consent is, as well as details on parts of the new Act 15 of 2019 which will better protect minors under the age of 18 from sexual offences, both offline and online. This article will highlight certain sexual offences that commonly happen in Singapore and what you should know about them.
Previously, the term ‘outrage of modesty’ would be synonymous with molest, or inappropriate touching. The new Act 15 of 2019 will now include words and gestures as stated in Section 377BA:
This law is meant to address a very common grey area and clearly defines what is acceptable and what is not. What this means is that certain acts, sounds, or even an object that mimics an offensive sound may now get the offender jailed for up to a year, with a fine, or both.
Examples include an offensive nickname given to the victim, or even certain vulgar facial expressions, even if no word was uttered, as long as the victim can see it or had his/her privacy intruded.
In a workplace setting, this could include acts like pointing out a female colleague’s physical features out loud, or placing a sex toy on their desk, even if it was meant to be a joke and in more recent cases, including in schools, the act of voyeurism.
What Exactly is Voyeurism?
According to the new Section 377BB, Voyeurism refers to the act of watching someone else committing a private act without their knowledge or permission while knowing the victim will not allow it even if asked. The closest layman term to this would be a “Peeping Tom”.
This includes acts such as:
Operating an equipment to commit or enable someone else to observe or record the private act such as placing hidden cameras in the victim’s room or using binoculars or image enhancing hardware to observe someone else’s private act.
Operating equipment to commit or enable someone else to observe or record the victim’s genitals, breasts and buttocks that otherwise would not be visible, without the victim’s knowledge or permission like rigging a toilet cubicle with a hidden camera.
Intentionally records someone’s genitals, breasts or buttocks, covered or not, without their permission.
The punishment for anyone found guilty of any of these offences is a jail term of up to 2 years which may include a fine and caning.
According to Section 377BB(9), ”In any proceedings for an offence under this section, where a person (A) has made a recording of another person (B) doing a private act or of B’s genitals, breasts if B is female, or buttocks (whether exposed or covered), in circumstances where the genitals, breasts or buttocks would not otherwise be visible, it is presumed until the contrary is proved that B did not consent to A making the recording.”
In our next part of this series, we will explain how the new set of laws have been designed to curb the storage and distribution of such recorded materials.
Engaging a Lawyer
If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.
Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years from traffic offences, high-profile criminal cases – to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.
In our previous articles in this series, we explained what consent is, and how the new amendments to the law will better protect minors. In this article, we will explain the new laws regarding commercial sex, especially involving minors.
While commercial sex itself is not illegal in Singapore, any activity involving minors under the age of 18, even just touching of a sexual nature, as included in the Act 15 amendment of 2019, Section 376B(4) will be enough to classify it as commercial sex with a minor under 18 which carries a jail term of up to 7 years, with fines and caning.
Commercial Sex Outside of Singapore
To eradicate the problem of sexual offences involving minors among Singaporeans, The Act 15 amendment of 2019 will now also include the same sexual offences being committed by Singaporeans in other countries, making them liable for punishment as if they had committed the offence in Singapore.
This includes visiting or procuring the services of underaged sex workers or participating in illegal sex tours in other countries, as well as establishing or maintaining an inappropriate sexual relationship with a minor even if they only communicate online and never actually meet.
The new act will also address online sexual communication, such as sending inappropriate messages or media to a minor under 18 living in a different country. The law will now treat it as if the minor too was in Singapore when the offence was committed and the offender may be jailed up to 7 years, with fines and caning.
These laws are applicable to all Singapore citizens and Permanent Residents.
Better Protection for Minors Under 16
The new Section 376E includes protection against sexual grooming of minors under the age of 16. In this new act, anyone above the age of 18 is liable for an offence if he/she either communicates, or even shows any intent towards an inappropriate relationship whether the minor is in Singapore or not.
The punishment for such offences can be extended to 3 years in jail, including a fine, if the victim is below 18, and up to 4 years in prison if the victim is below the age of 14.
Sexual Offences Involving Victims with Mental Disabilities
The new Act 15 of 2019 will now also protect victims with mental disabilities. This includes acts where the offender either touches the victim inappropriately, or makes the victim perform a sexual act on another person.
The definition of mental disability according to the law is “an impairment of or a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain which impairs the ability to make a proper judgement in the giving of consent to sexual touching;”
What is different with this new act is that in a case where the victim has a mental disability, their consent to the sex act may not be valid whether or not, the victim is the offender’s spouse. If there is reason to believe that the offender knows that the victim has a mental disability and had issued threats or deception to exploit and induce the sex act, then the person will have committed an offence.
Anyone found guilty of this offence can be jailed up to 5 years, with a fine, or caning, and if the touching involved sexual penetration of any sort, the offender may be liable to up to 20 years in prison, with a fine, or caning.
Engaging a Lawyer
If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.
Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years from traffic offences, high-profile criminal cases – to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.
