Dr Kanwaljit Soin on gender equality in divorce

Activists in Singapore have been advocating for equal divorce maintenance responsibilities since at least 1996. We look at what one prominent local feminist, Dr Kanwaljit Soin, had to say on the topic.


Excerpt from Dr Kanwaljit Soin’s keynote address at the ISEAS Symposium 2009, “Women’s Charter to Family Charter”

The PAP government enacted the Women’s Charter as part of an election promise in 1959. At the second reading of the Women’s Charter Bill in 1960, Minister K.M. Byrne revealed that the statute really proposed to regulate the formation of marriage and family life, but had been given the grandiose name of the “Women’s Charter” because the bill was making a very great change in the personal lives of many women. We must remember that at that time polygamy was the order of the day and the bill was primarily aimed at legislating monogamy for all non-Muslims. The Women’s Charter took effect on 15 September 1961. It ensured equal rights for married women vis-a-vis their husbands. In the early 1960s, this legislation was ahead of its time in promulgating the idea of marriage as an “equal cooperative partnership of different efforts”.

[…]

When the Women’s Charter was first passed in 1961, it was hailed as a very progressive piece of legislation mainly because of the way the rights and duties of the husband and wife were framed. I shall read Section 46 to refresh our memories:

(i) Upon the solemnization of marriage, the husband and wife shall be mutually bound to cooperate with each other in safeguarding the interests of the union and in caring and providing for the children.

(ii) The husband and the wife shall have the right separately to engage in any trade and progression or in social activities.

(iii) The wife shall have the right to use her own surname and name separately.

(iv) The husband and wife shall have equal rights in the running of the matrimonial household.

Thus as far back as 1961, the Women’s Charter clearly propounded the idea of marriage as an equal partnership between a man and a woman. Yet nearly fifty years later, Section 69 of the Charter grants only the wife the right to claim maintenance from her husband and not the other way around. Here I would like to quote Professor Leong Wai Kum on the subject of maintenance:

A wife does not owe a similar obligation and can ignore the subsistence needs of her husband even if she were fully capable of meeting them. This cannot be right. So while this obligation is not likely to be enforced often, it should be part of the law.

I completely agree with this view. It is only fair and equitable that a wife should maintain her husband if this is necessary. Many wives nowadays earn as much and even more than their husbands. In this era, maintenance should be on the basis of need and not on the basis of sex. Some men may not be able to find work or may be incapacitated by a chronic illness. If an ex-husband develops chronic kidney failure and cannot work, should an ex-wife who is a high earner be absolved from supporting him while the financial burden fall[s] on other family members or the community and the taxpayer? If this women does not voluntarily want to support her ill ex-husband, why should she get away scot-free and not shoulder her rightful responsibility stemming from the former union?

The unilateral character of maintenance where only husbands maintain wives was inherited from common law because in bygone times a married woman lost her capacity to own property when she married her husband who would then automatically own her property. Therefore to compensate the woman for this loss, the husband had to maintain her. As this practice no longer holds, we have to change the legislation so that we will have mutual maintenance and this will reflect the guiding principle of the Women’s Charter that marriage is an “equal cooperative partnership of different efforts”.

The existing anomaly violates the spirit of the Charter and puts women in a difficult position. It allows some men to articulate that women cannot ask for equal rights if they do not want to shoulder equal responsibilities in matters such as maintenance. In this provision if we simply change the word “wife” to “spouse”, we will dispel the belief that the Charter discriminates against men. During the Select Committee Hearing in 1996, five women representing women’s groups expressed the view that maintenance to husbands, especially in appropriate cases, should be allowed, but unfortunately this plea failed.

Here, I would like to quote the then Acting Minister for Community Development’s reply when I raised this matter of maintenance for husbands in May 1996 in parliament. This was part of his reply:

As for allowing maintenance for husbands, I am of the view that existing provisions of allowing only women to claim for maintenance should be maintained, at least for the present. Call me old-fashioned if you will; call me a male chauvinist if you must, but my upbringing and my background tell me that it is the duty of the husband to maintain the wife. And I think I speak for most, if not all, the husband of this House.

I am afraid that the Minister was not spared a rebuttal in parliament for expressing this view. This is what I had to say in reply, which had to be framed as a point of clarification to fit in with the rules of parliamentary procedure:

I respect the Minister’s view. He wants to be old-fashioned or male chauvinist. But I would like to clarify that when we are making a public policy we will have to leave aside our personal feelings and look at what the social context is. So I would like the Minister to clarify this point about maintenance in view of the statistics that I quoted that [show] many women are marrying downwards now and earning as much as [their husbands], if not more. In that type of a social milieu, Sir, would the Minister reconsider that husbands can be entitled to maintenance under appropriate circumstances because in the end it is the welfare of the family that may be compromised if in appropriate circumstances we do not award maintenance to the husband?

Unfortunately, even this repeat plea did not move the Minister to change his mind. Maynard Keynes had this to say once and it applies aptly to the occasion at hand: “When circumstances change, I change my view. What do you do, Sir?”

[…]

Constitutional Issue 

There have been some local legal thinkers who have questioned whether the provision in the Women’s Charter regarding maintenance being available only to women and not to men violates Article 12(1) of the Constitution of the Republic of Singapore, which provides that “all persons are equal before the law and entitled to the equal protection of the law”. It will be interesting if the constitutionality of this maintenance provision is brought before the Supreme Court to be tested.


Excerpt taken from “Singapore Women’s Charter: Roles, Responsibilities and Rights in Marriage”
Edited by Theresa W. Devasahayam
Published by the Institute of Southeast Asian Studies (ISEAS) in 2011

Featured Image: Divorce Lawyer in Singapore

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