Morning with National University of Singapore School of Law Mediation Class. Affiliate member and Adjunct Professor, @ Marcus Lim teaching mediation advocacy with co-founder, @ Susan Tay sharing her perspectives of a mediation advocate in an international setting. Thank you, PracticeForte adviser and Professor @ Joel Lee and @ Marcus Lim for the opportunity and the amazing lunch and wine, and to @ Mylene Chua who never fails to take the most candid pics.
By Lim Seng Siew, Director OTP Law Corporation
Tik-tok, Facebook, Instagram, even Twitter (notwithstanding recent problems) are popular. All wishing to encourage the listener or viewer, to adopt a particular behaviour or view. Sometimes to promote a political or social agenda. Other times to influence the viewer’s buying habits. Such influence pedaling have existed for years, if not centuries; beginning with coffee shop talk about social or political issues of the day, leading on to advertisements on TVs, newspapers and magazines.
Why then the ‘undue concern’ with online social media? What makes the Cambridge Analytica scandal different from the many other scandals involving journalists or newspapers being ‘bought’ by politicians? Without waiting for the conclusion of the analysis of the influence of social media, many countries have put in place regulations to govern the conduct of the ‘social media influencer’. While some regulations have the force of law, others set out norms of behaviour or guidelines.
Like many other countries, Singapore has legislation that govern the conduct of the platforms themselves. To name a few: the Online Safety (Miscellaneous Amendments) Act, the Foreign Interference (Countermeasures) Act and the Protection from Online Falsehoods and Manipulation Act.
This article focuses on the individual social media influencer. Please bear in mind that this article is not a comprehensive, all-encompassing review of all applicable laws but only highlights some of the key ones. There are also sectorial specific regulations. As examples: MAS has regulations and guidelines for advertisements in the financial sector. All professionals (like lawyers, doctors, accountants, engineers, architects etc) have regulations and guidelines governing publicity and advertising of their professional services.
The Influencer Market
The influencer market in Singapore is expected to grow strongly in the next few years as Singapore has a large internet base of users. According to Statista Research, in 2022, the internet penetration rate in Singapore is at 92% of its population. To tap this market, many Singapore brands have an online marketing budget. The influencer market spans from key opinion leaders or KOLs (who have a large following as they are trusted as the expert or the authority in a particular field) to the nano-influencers (who have a strong impact on very targeted segments of internet users), with a whole lot of others in between. The market divides these ‘in-betweens’ into: mega-influencers, macro-influencers, mid-tier influencers, and micro-influencers. Some market experts predict that for 2024, the influencer market will hit S$2.59 billion.
The most used social media platforms in Singapore for 2022 are WhatsApp and Facebook with Instagram coming in third. It is expected to remain the same for 2023.
ASAS Guidelines for Interactive Marketing Communications & Social Media
Follow the Guidelines by disclosing that the content is sponsored and don’t artificially boost your followers!
In August 2016, the Advertising Standards Authority of Singapore (ASAS) issued, as part of the Singapore Code of Advertising Practice (SCAP), the Guidelines for Interactive Marketing Communications & Social Media (Guidelines). In addition to the Guidelines, guidance notes (in Annex B) on how to interpret the Guidelines were also issued by ASAS. In particular, the guidance notes clarify the types of sponsorship arrangements that require disclosure and the form such disclosures should take.
While the Guidelines do not have the force of law, non-compliance can lead to industry-level sanctions. Such sanctions, in order of severity, are:
a) Informing the advertiser to amend or remove the advertisement in question.
b) Withholding advertising space or time from advertisers.
c) Publishing details of the outcome of its investigations, ie naming and ‘shaming’ the advertiser and the breach, with the consequential adverse publicity.
d) Referring the matter to the relevant authorities for action under the Consumer Protection (Fair Trading) Act.
From Aug 2016 to 2020 there were 10 breaches of the Guidelines, mainly relating to the lack of disclosure of sponsored content. Once notified by ASAS, the postings were amended by the influencers concerned to comply with the Guidelines.
The Guidelines do not cover ‘earned media’, ie media that is driven by consumers’ sharing and engagement and it not sponsored. Examples include using ‘likes’, ‘re-tweets’ and reviews (and similar content) that is not paid for.
Sponsorship is not limited to money sponsorship. It includes benefits-in-kind. So free meals, goods, vacations, samples, ‘friendly favours’ and ‘special invites’ provided by a company that guides the creation of the content is considered sponsorship.
If a marketing post is paid for or sponsored by a company, the influencer who endorses the product or service must distinguish such marketing post from other postings where the influencer is merely expressing his or her own opinion of the product or service.
The marketing post:
a) must indicate, in clear and simple language and in an easily seen location, that there is a commercial relationship between the influencer and the company or that the content is sponsored;
b) should reflect the true feelings of the influencer for the product or service;
c) must not be misleading;
d) must not claim that the product or service is endorsed by an organisation or individual when it is not;
e) must not appear to be impartial when it is in fact created to promote a product or service; and
f) must indicate clearly the fee or price for the product or service and state clearly sale conditions that are likely to influence the consumers’ purchase decision.
If the marketing post is directed at children (ie 12 years old or younger), the content must be appropriate and suitable for the age group of the children the post is targeted at.
The Guidelines also prohibit an influencer from using fraudulent means to boost user engagement. Such fraudulent means include bulk purchasing of ‘likes’, creation of fake accounts and the use of bots that generate page views. A study in 2019 suggested that 47% of Singapore influencers used artificial means to boost their followers.
As earlier stated, one of the sanctions that ASAS can take is to escalate the non-compliance of its Guidelines by referring the matter for action under the Consumer Protection (Fair Trading) Act (CPFTA). Section 6 of the CPFTA allows a consumer to take action against the supplier of the goods or services who engages in unfair practices. A “supplier” in the CPFTA is defined wide enough to include someone who promotes the sale or use of that product or service, ie an influencer.
Intellectual Property Rights
Respect the creative work of others! Don’t claim as yours what is created by others.
An influencer who uses someone else’s photograph, art, writing or other types of creative works as the influencer’s own infringes the copyright of the owners of the work. This will expose the influencer to civil liabilities, fines and even imprisonment.
Be aware that works that you find on the internet or even on websites that claim such works are ‘royalty free’ may not in fact be ‘free’. After all, that website may itself infringe the copyright of the true owners of the works.
Tax
Pay your taxes!
The Inland Revenue Authority of Singapore (IRAS) has a document called “Essential Tax Information for Social Media Influencers such as Bloggers and YouTubers” to guide influencers on their income tax obligations.
All payments and benefits derived from the carrying on of blogging, advertising and any other activity performed on social media platforms as a trade or business constitute gains or profits from a trade or a business and is therefore taxable. Non-monetary benefits-in-kind are taxable. Income earned on a part-time basis is also taxable.
However, because of the practical difficulty with recording and tracking small value non-monetary goods or benefits, IRAS does not require influencers to declare such non-monetary benefits if (a) the product or service is given on an ad-hoc basis for one-off consumption or testing; and (b) the value of each product or service does not exceed S$100. If the product or service exceeds S$100, the full value must be declared. If the supply is a recurring one over a period of time, the full value of the benefit must also be declared.
Crimes
Don’t use your platform to engage in online harassment or cyberbullying!
An influencer with a large following can use such influence for the wrong purposes. Making threatening or insulting statements about others with the intention of harassing them is an offence under the Protection from Harassment Act (POHA). Such statements may also be defamatory, which can give rise to both civil and criminal liabilities.
Cyberbullying is a term that actually encompasses a number of criminal offences. Unlawful stalking is an offence under section 7 of POHA. Criminal intimidation is an offence under section 503 of the Penal Code. Transmission of obscene images electronically is an offence under section 292 of the Penal Code. Doxxing is an offence under sections 3 and 5 of POHA.
Cross-Border Nature of Social Media
You may also need to comply with the regulations of other countries!
Because of the cross-border nature of social media, an influencer may also have to be aware of the regulations of other countries. This is especially so if the product or service can be bought by consumers in those other countries. As an example, the UK Competition & Markets Authority (CMA) has Advertising Guidelines for influencers (Sep 2018) and Transparency Guidelines for influencers (Jan 2019) that makes hidden advertising illegal in the UK.
Financial Sector
Know your products’ business sector!
Being an influencer in the financial sector, or “finfluencer”, has many more regulatory compliance issues. Social media postings that contain financial or investment ‘advice’ to viewers or followers, even if not sponsored, is regulated.
In Feb 2021, the Monetary Authority of Singapore (MAS) and the Singapore Exchange (SGX) issued a statement warning investors about trading securities incited by online discussion forums and social media groups, the ‘pump and dump’ activities. Finfluencers who exploit such ‘pump and dump’ activities for their own benefit can be prosecuted for market misconduct under the Securities and Futures Act.
In Jan 2022, MAS banned the advertising of digital token products to the public on any media, including social media, to protect the general public from the risks associated with cryptocurrency trading.
You, as a finfluencer, posting on social media about the financial sector should keep up-to-date with the latest in a rapidly changing regulatory environment if you wish to avoid breaching any of its rules.
Platform Rules
Follow the Platform Rules!
Many, if not all social media platforms, already have terms of use or community standards that require their users to comply with disclosure requirements. Some have changed their user interfaces with standardised advert disclosure placements so that its users cannot feign ignorance. Also, the use of artificial means to boost user engagement is often a breach of such terms of use or standards.
The result of a breach can be suspension or deactivation of an influencer’s account (and thus, revenue) on that platform.
Contract
Follow the contract!
Brands (or their campaign agents), especially the larger more established ones, will have standard contracts that they require influencers to sign. They usually set out: (a) what are the influencer’s deliverables; (b) the outcomes or metrics of success; (c) the compensation for the influencer; and (d) the general obligations and conduct expected of the influencer.
Understand what you are signing. If you are not clear, ask. If something troubles you, ask that they be changed. If they cannot be changed, think seriously whether you want to sign.
Conclusion
Being an influencer trying to promote yourself and your brand’s products and services is not easy. There are many influencers who ‘do the quick and dirty’ and give the industry a bad name. Singapore has taken the approach of using ‘soft-law’ to regulate the influencer market, in part because the regulators do not want to stifle a growing and fast changing environment.
We will have to see if the ‘soft-law’ nature of Singapore’s attempts to regulate influencer marketing and protect consumers are working or if ‘hard law’ will be required.
My 3-week internship with OTP Law Corporation during my short winter break was truly an eye-opening and nourishing experience. I rekindled my passion and interest in family law and felt uplifted by the people I was working with.
I am sure a lot of law students can relate to this, but law school can be quite daunting sometimes (if not, all the time). The readings, assignments and finals are intense, and the competition is fierce. Given this, I often question my decision to take this degree and whether law is the right career path for me.
Although I am still not 100% sure whether law is right for me, I found myself gaining more interest in the practice during my internship. I was fortunate to have had a more hands-on approach where I was given the opportunity to interact with clients and draft correspondence and legal documents. I even managed to sit in a meeting with a Child Representative as well as a case conference.
Throughout my internship, I worked closely with Isabel, the associate director. I really admire the way she juggles all her responsibilities from mom duties to legal work and the way she handles clients. As I watched her in action, a seed inside me started to grow. I started to develop a strong desire to better myself and work on becoming a great lawyer. She inspired me, and gave me the motivation to leave the rut I was in.
Apart from being amazing role models, the people at OTP made this entire experience nourishing for me because they truly cared about my well-being and growth. I remember feeling a little nervous and apprehensive before meeting Susan, the co-founder of OTP. I was worried that she would ask me a law question that I cannot answer as I barely had the time to look at the news to see if there were any changes in the legal landscape. However, my worries were for nothing. Instead of grilling me with law questions, she spent an hour and more getting to know me. To my pleasant surprise, I was able to be completely myself when I spoke to her about the struggles I faced in law school and the things that I am passionate about. A lot of my fears regarding the legal industry were quashed after the conversation I had with her. The most life-changing thing that she said to me was that I have to take care of myself first before I can take care of others. As clients often come to lawyers when they are in distressing situations, lawyers need to have the capacity to hold space for them and this can only happen if they take care of themselves first and foremost. It matters a lot that this is something that the firm believes in, as it makes the working environment that much more fulfilling and warm.
All in all, my internship experience with OTP was a pivotal moment in my life. I am immensely grateful that my friend recommended me to this firm knowing that I would enjoy my time here, which I did. I am also extremely thankful to have crossed paths with the people at the firm, and look forward to coming back.
If you are just like me, lost and confused as to whether law is for you, take this as sign to give OTP a try.
Year 4 Law Student at Singapore Management University, Eileen Lim
by Lim Seng Siew, Director OTP Law Corporation
Introduction
The most recent Singapore Cybersecurity Landscape Report 2021 lists phishing attempts as one of the more prevalent methods of cybersecurity attacks. What is phishing? What are the consequences if I have been wrongfully used to launch a phishing attack? And what can I do to avoid being a victim of a phishing attack?
In this first part, we will talk about what happens if you are a victim of a hack.
What is Phishing?
Phishing is a method hackers use (a) to fraudulently obtain a victim’s personal and financial information such as their login details, bank account numbers and credit card details; (b) to cause a victim to transfer money to the hacker; or (c) to cause malware to be installed. The hacker disguises himself as a legitimate individual or reputable organisation (such as a lawyer or law firm) in emails, instant messaging, and other communication channels to trick the victim. Once the hacker obtains the victim’s personal information, they could gain access to the victim’s online accounts, and even impersonate the victim to scam the people around the victim, such as their family, friends, and business partners.
Closely related to phishing is spoofing. Spoofing is when a hacker makes use of computer techniques to trick even computer systems and their users by hiding or faking the hacker’s true identity. The email may look as if it is from a legitimate server but is in fact not.
Consequences to an organisation if they are used to launch a phishing attack
Of course, if an organisation’s systems have been hacked and subsequently used as an intermediary to launch a phishing attack onto others, its reputation will be affected and customers’ and business partners’ confidence in the organisation’s ability to keep their customers’ information confidential will be called into question. Rebuilding that reputation will take much time and resources.
In addition, where the cybersecurity incident or data breach involves personal data of a significant scale or causes significant harm, the Personal Data Protection Commission (PDPC) must be notified under the Personal Data Protection (Notification of Data Breaches) Regulations 2021 (“NDBR”). A breach can occur even if no data is stolen (or exfiltrated). A breach occurs so long as personal data is wrongfully accessed or used. If the PDPC finds that the organisation had not taken reasonable steps to secure personal data, the organisation can face a financial penalty of up to S$1m or 10% of its annual Singapore turnover, whichever is the higher limit.
Under the NDBR, the data breach is of a significant scale if it involves personal data of 500 or more individuals (who can be customers, staff, or other parties) and causes significant harm if it involves a prescribed list of personal data. Such prescribed personal data includes (a) an individual’s name, login identities, passwords, or similar information, (b) financial information; (c) health information; (d) information concerning vulnerable individuals such as children, young persons, vulnerable adults, or adoptees.
In the next part of this series, we will discuss about what to do if you are a victim of a hack.
If you have a need to seek legal advice on your cybersecurity situation or just require legal assistance in any way, please reach out to us at enquiries@otp.sg or +65 64383922.
By Susan Tay, director of OTP Law Corporation
The Uncertainty of Litigation Series
You, as a client, would have constantly heard from us, as lawyers, how unpredictable the outcome of litigation can be.
The Uncertainty of Litigation Series highlight, with articles about previous court decisions, and about the experiences of lawyers and clients, how common this unpredictability is when cases are fought in court.
With all this uncertainty, we advocate resolving your dispute through methods where the parties are the ones making the decisions. You can do this either by negotiation, mediation or conciliation. If you place your fate in the hand of someone else, his decision will never be entirely in your control. So why not, place your fate in your own hands?
Part 1 – Disputes Between Co-Owners of A Property And A First Right of Refusal To Buy Over The Other’s Share
The Uncertainty of Litigation Series starts with disputes involving properties co-owned by two or more persons.
In such disputes, it is very common for one party to want the first right to buy over the other party’s share in the property before the property is sold in the open market. This is what is called “a first right of refusal”. This is especially common in divorce proceedings where the matrimonial property is co-owned by spouses who contemplate a life separate from each other after the divorce.
This article is a short study of 3 Singapore cases (in 2016, 2019, and the latest in 2022). These cases centred or touched on the court’s power to grant a 1 st right of refusal to a co-owner to buy over the other’s share in a property.
An interesting point to note in the latest 2022 case is when the judge commented that his preferred route is not to have to decide on the case but for the parties to come to an amicable agreement concerning their dispute. This reflects the key message of The Uncertainty of Litigation Series.
We start off with the case which said that a court has NO such power.
Tan Chor Heng v Ng Cheng Hok is a 2019 High Court decision. In that case, the plaintiff, Mdm Tan, and the defendant, Mr Ng, bought a 5-room HDB flat under the Joint Singles Scheme in the proportion of 95:5 in favour of Mdm Tan. They bought the flat in 1997.
They were complete strangers. Through a mutual friend, they got to know each other shortly before the purchase of the flat. Soon after the purchase, they then lost contact. Mr Ng moved to Japan and spent 18 years in prison there. He only returned to Singapore in December 2018.
On financial contributions, Mr Ng made 1 payment of about S$7,900 from his CPF account toward the purchase price. A few days later, he received $5,000 in cash from Mdm Tan. Mdm Tan also paid for everything else, including all mortgage repayments for the HDB mortgage loan.
After Mr Ng’s return, Mdm Tan and Mr Ng quarrelled over the flat. Mdm Tan then applied to court for the flat to be sold in the open market and for the sale proceeds to be divided between her and Mr Ng in the ratio of 95:5. She also wanted sole conduct of the sale and to be allowed to buy over Mr Ng’s share directly at valuation price in lieu of putting the flat up for sale.
Mr Ng did not object to the sale of the flat but objected to Mdm Tan having sole conduct of the sale and to her being given the right to buy over his share at valuation price. Mr Ng also claimed to be entitled to 43.4% of the sale proceeds.
Eventually the court ordered that the flat be sold with Mdm Tan having sole conduct and the sale proceeds splitting 95:5. However the court decided that it has no power to grant an order giving her the right to buy over Mr Ng’s share.
The court gave the following reasons:
a) the lawyers could not give any precedent cases to say the court has such a power; and
b) the words in the written law, paragraph 2 of the 1st Schedule of the Supreme Court Judicature Act (“SCJA”), which gave the court power to order a sale did not give the court power to allow one co-owner to compulsorily purchase the other co-owner’s share.
The decision in Tan Chor Heng’s case was not followed in the most recent November 2022 case of Sun Yan Yuan v Ng Yit Beng. Mdm Sun and Mr Ng are co-owners of a HDB flat. Mdm Sun had inherited her 30% share from her late husband. Mr Ng is her late husband’s brother.
After the husband’s passing, acrimony between Mdm Sun and Mr Ng escalated so badly that Mdm Sun had to take out a personal protection order against Mr Ng. According to Mdm Sun, there were many times when Mr Ng promised to sell the flat but these promises were not kept. She then had to seek the court’s help to sell the flat following the broken promises.
Mr Ng said that selling the flat would disrupt his and his family lives. It also prejudiced his interest as a 70% owner and would deny him the right to buy over the flat. He therefore suggested that instead of immediately selling the flat, he be given the 1st right of refusal to buy the flat within 6 months.
Mdm Sun relied on the earlier case of Tan Chor Heng, to say that Mr Ng cannot be given the 1st right of refusal to buy over the flat.
In his decision, the High Court Judge noted that a 1st right of refusal to buy over a co-owner’s interest in a property must be a common order sought between co-owners. The Judge decided that the court had the power to give a co-owner of a property the 1st right of refusal to buy over the share of the other owner. He gave 3 reasons for not following the decision in Tan Chor Heng. The first reason was based on previous decisions (what lawyers call “precedent”). The second based on basic principles of law and the last based on policy reasons.
One the first reason, the Judge cited an even older court decision in 2016 called Sumoi Paramesvaeri v Fleury, Jeffrey Gerard where an order granting the first right of refusal was given for one co-owner to buy out the other co-owner’s share in a property.
The brief facts of Sumoi’s case are as follows. Mdm Sumoi, a widow, moved in with her daughter and son-in-law after her husband passed away. From the sale of a flat, the three of them bought a private property (1st property) which was then sold to buy a second property (2nd property). Mdm Sumoi used her CPF money to contribute to the purchase of the 1st property. When the 1st property was sold, the three of them used its sale proceeds to buy the 2nd property. Mdm Sumoi was registered as having a 10% legal interest in the 2nd property.
The relationship between them then deteriorated and Mdm Sumoi eventually sued her daughter and son-in-law. She wanted the court to declare her interest in the 2nd property to be more than the stated 10% and for the 2nd property to be sold. The daughter and son-in-law said that her interest was in fact zero. One of the reasons given was because Mdm Sumoi had repeatedly said she was going to give her share to this daughter when she dies.
Eventually, the court decided that Mdm Sumoi’s interest in the 2nd property was indeed only 10% and ordered a sale of the property with a right of first refusal to be given to the daughter and her husband to purchase the property. The reason given why they were entitled to such a right was that “they are in occupation of the greater portion of the property”.
Sumoi’s case is thus a previous case (or precedent) which decided that a court does have the power to order a 1st right of refusal for a co-owner to buy over the share of the co-owner.
Commenting further on the ‘precedent’ reason, the Judge in Sun’s case further said, “In any event, I do not view the lack of a precedent (even if true) as a determinative factor, since a court’s statutory power is ultimately derived from the power-conferring legislation, as opposed to prior case law.”
On the ‘principles of law’ reason, the Judge relied on s 18(2) of the SCJA read with paragraph 2 of its First Schedule. He concluded that the words in the Act “… and to give all necessary and consequential directions …” are wide enough to allow the court to order a first right to buy over the flat.
Lastly, as a matter of policy, the court said that an order for the sale to be made to a particular party does not prejudice the seller if the court has considered all the circumstances of the case. In fact, it might be appropriate in certain cases.
To conclude, the 3 case studies in this article perfectly exemplifies the unpredictability of litigation and how you should not take for granted that the court will grant one co-owner a 1st right of refusal to buy over the other party’s share in a property.
Co-owners must therefore understand the perils of co-owning a property with family or friends and especially with people you hardly know. You may not be able to buy over the other person’s share or the other person may not agree to sell the property when you want to.
Even if you have the best of relations with the person you want to co-own the property with, the next generation may not share the same relationship and disputes can arise.
From the 3 cases, we see too that both parties did not get what they hope for even after the court made the final orders. In Tan Chor Heng, both parties, being unhappy with the Judge’s decision, appealed. In Sumoi, the mother did not get more than 10% interest in the property.
We hope that you found this article helpful. If you are contemplating or going through a dispute or are looking for alternative solutions to your dispute, or just require assistance in any way, please reach out to us at enquiries@otp.sg or +65 64383922.
Susan Tay is the founder and director of OTP Law Corporation. She has been in practice as a lawyer since 1989. Her expertise is dispute resolution with a special focus on family law. Wearing many hats, Susan is also a parenting coordinator, a collaborative family lawyer, a certified mediator and especially, a trained mediation advocate. Susan believes in the peace mode and hopes to build an eco-system of dispute resolution outside courts as much as possible.
The opportunity to get to know OTP was as much a result of coincidence as it was a stroke of luck for me. After graduating from law school in Germany, I enrolled in a double Master’s program with Berlin and Shanghai in order to learn about the legal systems in both countries and to experience life abroad. As the first semester was organized online out of Singapore, I then asked around if someone in my network knew anyone in Singapore. Right away, the lawyer and family friend Christoph Paul and the mediator Christian von Baumbach both independently told me about a very good law firm that I should get in touch with. Much to my surprise, both were referring to the same one. So, with not one but two recommendations I reached out to Susan Tay and thus began my time at the firm.
Right before stepping onto the plane to Singapore, I received a warm invitation from Susan to participate in a class on mediation advocacy taught by Andrew Goodman. This turned out to be a deeply impressive experience. Andrew, along with the participants and OTP lawyers, inspired me to dive deeper into ADR and mediation. Furthermore, I was given the opportunity to receive some practical training by regularly visiting the firm of OTP over the course of six weeks. To get a grasp of the Singapore legal system, I reviewed documents, learned how affidavits and statutory declarations are written, and sat in meetings with clients and internal conferences. I was thrilled to see the straightforward communication and high-level effectiveness in the office.
Also, it was a great experience for me to learn about the workflows in a different legal system. There are noticeable differences in working here compared to Germany. First, the manner a court is addressed is incredibly polite and respectful. This is not to say that the German judges are treated disrespectfully, but in Singapore they are addressed with much more gravitas than at home. Second, the office worked almost completely paperless – a huge improvement to the mountains of paper binders I found myself surrounded by in German offices. Last, I was deeply impressed by the extraordinarily positive work culture in the law firm. It leads to a very friendly as well as highly productive working day. Again, the German law firms’ atmosphere is not unfriendly or unproductive, but it can at times be more stressful and matter-of-fact. I will certainly take this home with me as a motivation.
Another factor that really made me enjoy my time was the personal relationship the team members of OTP established with me. Each of them made sure I gained interesting insights into their field of work. And also outside of work topics, the interactions and talks I had with them were sincere, kind and inspiring. From getting advice about the best places to see in Singapore to hearing wonderful stories about work and life here and to being taught Singlish lessons (lah!), I always felt welcome and included.
For all these reasons, I am thankful for the coincidence that led me to get to know the OTP team who taught me a lot in a short period of time and made me feel very welcome in a new country. I sincerely hope I will be able to work with them in the future.
This article is a collaborative effort between family lawyer Ms Susan Tay, and psychologist Ms Sylvia Tan.
This article is a collaborative effort between family lawyer Ms Susan Tay, and psychologist Ms Sylvia Tan. We are writing about yet another collaborative initiative we call PF Restructure. You can read more about this at this link. This article focuses on cases before the Family Justice Courts. Pre-writ means before one files the writ for divorce.
This article stresses why resolution is best done outside the courts especially even before you file your writ for divorce.
I was reading one of Stephen Walker’s writing when I came across this question he asked of lawyers:
What do clients really want deep down?
And this was what he said:
No solicitor has ever said that their client came into their office and said what they wanted was two years of litigation with an uncertain outcome and a large bill plus an unquantifiable level of risk, anxiety and wasted time. What they say they want is either:
• Revenge, justice or money. That is at the beginning of the dispute. But after the initial expression of outrage, as the City of London Survey results show, they just want an early solution that brings certainty.
OR
• To ‘just make this problem go away’.
And when inviting parties to consider the benefits of settlement ask them to remember that no one’s last words are: ‘I wish I’d spent more time in court’.
Why Outside Court and Pre-Writ?
There is really only 1 simple answer: To save resources, heart ache and acrimony. 3 areas that one tends to grossly underestimate until they are thrown into the throes of a highly contentious court proceedings, especially divorce.
In the heat of litigation, words will be used as weapons, mud will be slung. And it will take some super human power to forgive and forget. That is why, you will want to see if you can talk before bridges are completely burnt and decent conversations become impossible.
Pre-Writ
In an ideal situation, parties should always try and talk through any and all issues that will affect them and their children before they decide they should end their marriage. If they can agree on all issues, that’s 100/100.
Pre-writ as we have stated in the preamble of this article, means before writ of divorce literally. What it really intends to convey is this: to have all issues resolved even before anyone files for divorce.
6 years ago, the Family Justice Courts introduced a process to expedite a divorce application if parties were able to agree on all issues, pre-writ. For the 1st time, there was no need to attend court to have your divorces pronounced. Technically, you would only need to meet your lawyers 3 times. First time, to give instructions. Second, to sign all the papers for filing and the last time, to sign your affidavit so you can get a hearing date. A hearing date where there is no hearing really because your orders will be granted according to the agreement that you have reached with your ex-spouse.
The critical element for a simplified divorce is of course an agreement reached pre-writ.
Simple? Not quite.
Pre-Writ Done Wrong
Is simplified divorce really simple? I said not quite because as a family lawyer, I have had many clients coming to see me about unravelling all sorts of pre-writ agreements. Many said they signed without advice, or under duress or were in such a state emotionally or mentally that they did not fully appreciate what they were agreeing to. And then there were those who came because they regretted and often enough, because they changed their minds. Is that wrong? Can I not change my mind? You ask.
First, I want to acknowledge this. The one common thread running through the majority of all my divorce clients is the emotional roller coasters they go through. And the myriad of “decisions” they come to whenever they are in certain states of emotion. I want revenge and I will accept as long as the terms hurt her more than me. I am so tired, let’s just give him what he wants and end it now.
But will the court understand and appreciate this enough to allow you to unravel an agreement? Definitely not when you tell the court I made these decisions when I was hurt/tired.
Then there are those who come to me after they have signed the agreement, obviously not knowing what their rights are nor completely understanding what they have agreed to. Yes, I felt guilty. I had a transgression and now I just want to give her everything she wants including the house, the car, 80% of my monthly pay-check. It’s even ok that I don’t get to see the kids. Soon enough, the realisation that such an agreement is simply not workable strikes.
That is why in many of my articles, I often stressed “not just any settlement, but an enduring settlement”.
Even if you have good grounds to invalidate an agreement reached, imagine the litigation nightmare you will have to go through. Explaining to the court why the agreement that you had signed should not bind you is not going to be a walk in the park.
So why not try doing it right the 1st time around?
Pre-Writ Done Right
Eyes Wide Open AND THEN Eyes Wide Shut? Ingredients For An Enduring Agreement
These are 3 main ingredients for a good decision. One, your decision must be an informed one, two, open and honest dialogues between parties and finally, make the decision when you are not experiencing extreme emotions.
You can go in with your eyes wide open by:
1. Knowing the full facts (e.g. exactly how much each other earns), understanding what the law is (e.g. no child access to the other parent just because he cannot pay child maintenance is never going to get the green light from the Courts); that is part of an informed decision.
2. Having open and honest dialogues with each other. Understanding where each other is coming from. Asking important questions like WHY?
Having reached a settlement, many of my clients accept that they may be getting less or paying more and compromising. Importantly, however, they are OKAY and can live with that. That is what I will call an Eyes Wide Shut decision.
This kind of decision can be enduring when you know the facts and understand the law before you accept the compromised settlement. I have come to appreciate that clients accept the compromises they come to because there is always a side of the story that the law may not accommodate. For example, a parent who is planning to remarry may not get the blessings from his/her new spouse on access to the child of a previous marriage. And so, he may not want frequent access. And the other spouse is ok with this because her/his new spouse gets on famously with the child and is prepared to accept the child as his own. It is not always a sad case of neglect or being unwanted. This is a reality that may work well in the end.
Finally, I come to the trickiest of the 3 ingredients,
3. Make that decision when you have thought it through and are unencumbered by extreme emotions.
This third element is the one I find hardest to overcome without help. And this is where I will leave you in the good hands of counselling psychologist, Ms Sylvia Tan.
Going through a divorce is one of the most traumatic and distressing experiences. The emotional pain of ending a marriage can be so intense that some people struggle to get through the day. They may find it hard to get out of bed, take care of themselves or attend to their kids.
Intense emotional pain can be accompanied by feelings such as stress, anger, sadness, sorrow, guilt, and shame. Emotional distress can also manifest into psychosomatic symptoms such a heaviness of heart, chest tightness, muscle tension, headaches, heart palpitations, insomnia or fatigue.
Experiencing intense levels of emotional distress at the brink of divorce or at early stages of the divorce proceedings is not uncommon. The frequency and level of intensity of distress varies with different people, and it also depends on factors such as reasons for divorce, duration of marriage, whether there are children in the marriage and the ages of the children.
To prepare oneself emotionally for an enduring agreement, one needs to understand the physiology of emotions, so as to know what can be done. When you are in a state of emotional distress, your emotional part of the brain, which is the limbic system is most activated and the executive functioning part of your brain, which governs rational thinking and decision making is the least activated. Thus the saying “do not make any decision when one is emotional” because the rational part of the brain is not performing at its best when you are in an emotional state.
If you are in emotional distress when you are trying to resolve issues or come to a settlement, it is not likely that you will be able to conduct the discussions constructively and objectively. It is also not likely that you will make sound decisions. Personally, I have seen many parties come to an unsatisfactory agreement because one or both parties were either too emotional during their discussions or when there were unresolved emotions at play.
If you find that you are in an emotional place, processing your emotions is probably one of the best things you can do for yourself. It not only helps you move past any emotional road-blocks, it can also help you have clarity of mind, so that you are ready to work out an agreement.
What does processing your emotions mean and why is it helpful to do so?
“Processing your emotions” is about bringing to awareness what feelings you are having, why you are having those feelings and how to cope with the feelings in a healthy and adaptive way. Having intense emotions is not bad in itself, but if emotions are left unprocessed, they can be stuck in repetitive negative cycles of anger outbursts, depressive episodes or apathy. It can also leave you stuck in an unconstructive perspective and leave you feeling insecure, anxious or fearful. In dealing with strong emotions, people tend to avoid feeling their feelings and use maladaptive coping strategies such as drinking alcohol, numbing oneself in front of the television, gaming or working excessively. Long term use of maladaptive coping strategies is not helpful and in fact can result in deterioration of mental health, relationship with others, as well as parenting.
How to process emotions?
Working through or processing emotion is part of emotional healing. Just like attending to an infected wound, you would first need to assess how bad the wound is, clean out the wound, apply antiseptic to the wound, bandage it up and let it heal.
Similarly, processing emotion involves the following steps:
i) Step 1: Notice and identify your emotions
The first step to emotional processing is to notice and identify your emotions. What emotions are you experiencing? Is it hurt, anger, rage, regret, shame? The stage here is to just notice. You may also notice where in your body you are having those feelings. Are those feelings in your chest? Stomach? Throat?
ii) Step 2: Be curious about your emotions and notice what thoughts are accompanying the emotions
The next step is to be non-judgemental of yourself, allow those feelings to be present and be curious about your feelings. You may ask yourself these questions to go deeper into processing your emotions: (if you are feeling very emotional, you may want to just take a few deep breaths, wait for your emotions to subside first, then come to these questions)
• What has happened that led me to feel this way?
• What was I thinking at that time that made me feel this way?
• What do I believe about the situation that is causing me to feel this way?
• What do I believe about my ex-spouse or myself that led me to feel this way?
• What does that situation mean to me at this point in time?
• What do I feel like doing with these emotions?
iii) Step 3: Reflect on your thoughts and feelings and make a choice that is realigned with your values and your child’s best interest
This is the step which I believe many people struggle with. It requires more soul searching and reflection of thoughts and beliefs. Our thoughts and feelings, while they are ours and we have rights to them, are not necessarily helpful or beneficial. In psychology practice, we help people identify unhelpful or distorted thinking that are causing havoc on people’s emotions and relationships. Once an unhelpful thought is identified, you can then make a conscious choice to act on that thought or change what you think or perceive about the situation.
You may want to ask yourself these questions:
• Is the way I am thinking beneficial to me, my children or other family members?
• Is acting on this feeling going to help the situation or make it worse?
• Are there any other ways of perceiving the situation?
• Is what I am thinking or perceiving 100% true?
• Am I only seeing the negatives about my ex and not seeing the positives?
iv) Step 4: Take necessary action to cope with your emotions in a more adaptive way
The final step of processing your emotions is to take necessary step to cope with your emotions in a more adaptive way.
Once you have identified unhelpful thoughts or distorted thinking, you can reframe your thoughts to be more balanced. This is where you will find that your emotions will calm down and you can start to rationalise and think clearer. To cope with your emotions better, here are the following things you can consider doing:
• Self-care. Make sure you take time out to do things that you enjoy and would help you feel nurtured;
• Exercise regularly. Exercise is one very effective way of releasing stress;
• Make sure you have enough sleep. Sometimes stress can cause difficulties in sleep;
• Talk to a trusted friend about your emotions and feelings; and
• Speak to a counsellor or psychologist if you are having difficulties managing your emotions and processing them.
The next part of our article will be on how PF Restructure Pre-Writ can help parents who are going through a divorce come to enduring agreements for both financial and care issues of the family.
We hope that you have found this article helpful. If you are contemplating or going through a divorce and find that you require assistance in any way, please reach out to us at enquiries@practiceforte.websterizor.com or +65 6221 3009.
