During the divorce, couples discuss the division of assets as well as ancillary matters, such as maintenance, care and control, and child custody. However, the situation can take a huge turn when one of the spouses passes away.
When a spouse dies during a divorce, the Family Justice Court takes into account laws in Singapore beyond those stipulated in the Women’s Charter to manage cases of such nature.
Allocation of matrimonial assets
Married couples are typically advised to create a will to ensure that the surviving spouse has enough to get by after the death of the other. In the case of a divorce, any wills made prior to filing for a divorce remain valid. However, they may be adjusted to better match the situation the couple is facing and allow for a fair distribution of matrimonial assets in the eyes of the law.
Should either spouse die before the divorce is complete, the case will be discontinued, i.e. abated, and the surviving spouse will receive the assets allocated to him/her according to the will.
In the event where no will has been made, the divorce will be discontinued, i.e. abated and Singapore’s rules on intestate succession will apply.
In congruence to section 7 of the Intestate Succession Act, when a spouse dies during a divorce in Singapore and does not leave behind a will, the assets owned by the deceased spouse will be divided between the surviving spouse, children and parents accordingly as shown below.
|Spouse||Children, parents||The spouse receives all assets.|
|Spouse, children||The spouse receives half of the assets, and the other half is equally divided among children.|
|Spouse, parents||children||The spouse receives half of the assets, and parents receive the other half.|
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When a spouse dies during a divorce, the law in Singapore does not legally bind the surviving spouse to be liable for the debt left behind. However, the surviving spouse will only be liable for the debts incurred in joint personal loans or mortgages just as how those debts would have been divided between the two parties if the divorce had taken place. Moreover, the spouse will also be responsible for the debt if he/she inherits a property with a mortgage.
Nonetheless, it is important to note that the estate left behind by the deceased spouse will first take care of funeral costs and will then be used to pay off any outstanding personal debts incurred.
After all the debts are cleared, the assets will then be distributed to the beneficiaries.
Please note that upon the death of the spouse, all his/her assets will be frozen. Should the surviving spouse also be designated as an executor of a will, he/she will need to be granted probate under the Probate and Administration Act to settle all liabilities and distribute the remaining assets to the appointed parties.
Child custody, care and control
When a spouse dies during the divorce process, matters pertaining to child custody in Singapore can become tricky especially where appointed guardians are involved.
According to sections 6(1) and (2) Guardianship of Infants Act (GIA), the surviving spouse has the right to act as the natural guardian of the child alone or jointly with any testamentary guardian should the deceased spouse appoint so in his/her will.
If the court does not find the surviving parent suitable to care for the children, the testamentary guardian appointed by the deceased spouse will be granted custody, care and control of the child. He/she will thus legally take up the parental responsibilities of the child. The surviving parent may also appoint a testamentary guardian who is expected to care for the child after the death of the parent. As such, should the surviving parent pass on, both guardians are required to act jointly as stated in section 7(6) of the GIA.
The surviving parent may also object to the appointment of the guardian by the deceased parent. In such cases, the guardian can apply to the court in pursuant of section 7(3) of the GIA. The court, depending on the facts of the case while putting the well-being of the child as a top priority, may either – according to section 7(4) of the GIA –
- Order for the guardian to act jointly with the surviving parent
- Order for the guardian to act as the sole guardian
- Refuse to make an order, which means that the surviving parent can exercise his/her rights to be the sole natural guardian
In the event where the surviving parent is not fit to be the guardian, no testamentary guardians volunteered themselves or are appointed and the court is unable to find a suitable guardian, the government steps in. Children below 16 years old in such situations will receive care and protection from the Ministry of Family and Social Development according to the Children & Young Persons Act. This means that the child may be placed in a home.
Read more: Grandparents’ Role In A Divorce Proceeding