Lesbian, gay, bisexual and/or transsexual (LGBT) persons in Singapore may face legal obstacles under Singapore law. This is because of the lack of legal recognition of LGBT couples and families, and the fact that many of our laws and institutions do not adequately provide for the unique needs of LGBT couples and families. Often, it is unclear whether the laws that are applicable to heterosexual couples are similarly applicable to LGBT couples. This is worsened by the fact that there are very few materials and resources available for LGBT couples to learn about their rights.
Recently, a legal guidebook titled “Same But Different” was published, and it helped provide more information on the rights and legal position of LGBT couples and families in Singapore. Here are 6 important takeaways from the guidebook.
#1 Changing your gender
Anyone in Singapore with an identity card (IC) may change his/her gender as reflected on his/her IC by making an application to the Immigration and Checkpoints Authority (ICA). There are presently no publicly available guidelines on how far one’s transition has to go in order for a change request to be approved, but it appears from previous instances that the ICA may require a letter or certificate from the relevant doctor stating that the person has undergone full sex reassignment surgery.
#2 Marriage, divorce and cohabitation
Just as marriage, divorce and cohabitation are important aspects to consider in relation to long-term heterosexual relationships, they are also important for LGBT couples.
Marriage in Singapore
In Singapore, all marriages must be formalised under the relevant statutory law in order to be legally recognised. For non-Muslim marriages, this means that the marriage must be entered into in accordance with the Women’s Charter. Unions which are not considered under the Women’s Charter, such as “common law marriages” (informal unions between people who are not legally married), are not recognised under Singapore law.
Further, under the Women’s Charter, same-sex marriages are expressly prohibited. That being said, it is possible for a person who has legally changed his/her sex to legally marry a person of the opposite sex in Singapore. For example, a person who was born male may undergo sex reassignment surgery and subsequently change the sex on his IC from male to female. She may then, as a female, enter into a valid marriage with a male partner.
It is also important to note that if a husband or wife in a legally valid marriage changes his/her sex after the marriage, then the marriage will be voided. This was the case in a recent incident, and the Registry of Marriage made clear that in order for a marriage to be legally valid, the couple has to be man and woman at the point of marriage, and want to remain as man and woman throughout the marriage.
Overseas marriages
It is not settled whether an overseas marriage would be recognised by the Singapore courts. At the very least, the LGBT couple must have been validly married in another jurisdiction and domiciled outside of Singapore.
Spousal visas
In the case of heterosexual couples, the spouse of a Singapore citizen or Permanent Resident (PR) may apply for a long-term visit pass in order for the couple to live together in Singapore. The relevant regulations do not expressly disallow same-sex partners from obtaining such a pass. However, the Immigration and Checkpoints Authority (ICA) has the discretion to assess and reject applications for long-term visit passes, and it is unlikely, given the present political climate and the government’s stance on the issue, that the ICA will recognise same-sex marriages and grant long-term visit passes to the partners of same-sex couples.
Divorce – ancillary orders
Ancillary orders made in matrimonial proceedings are court orders relating to issues that are ancillary to the main divorce, such as maintenance, division of assets and custody of children. Because same-sex marriages are not recognised in Singapore, same-sex divorces in Singapore are a non-issue. We should, instead, shift our attention to same-sex divorces that occur overseas, and the problems that may arise should a LGBT divorcee seek to enforce ancillary orders made by a foreign court, especially where the orders relate to property in Singapore. The relevant rules can be split into the following categories:
- Division of immovable property located in Singapore
It would be unusual for a foreign court to make an order on immoveable property located outside their jurisdiction. If they do, such orders are unlikely to be enforceable in Singapore. - Division of movable property
Orders made by foreign courts relating to movable property such as cars, jewelry and furniture may be enforced in Singapore. However, it is possible that enforcement may be barred by arguments that the marriage was against public policy. - Maintenance
Generally, orders made by foreign courts relating to maintenance are difficult to enforce. Moreover, enforcement of such orders may be subject to the same hurdle of arguments that the marriage was against public policy. - Custody of children
Orders made by foreign courts relating to custody of children are unlikely to be enforced in Singapore.
Cohabitation contracts
Since marriage is not an option to LGBT couples in Singapore yet, such couples that are planning to live together may enter into cohabitation contracts together. While these do not bring LGBT couples within the ambit of marriage and divorce laws in Singapore, they help provide clarity as to how they agree to live together, thus protecting them should disputes arise between them.
Essentially, a cohabitation contract is a contract that contains clauses governing matters such as the division of property and the management of day-to-day finances. It functions like any other contract in governing the relationship between the cohabiting LGBT couple.
The main benefit of having a well-drafted cohabitation contract is that each party’s respective liabilities and entitlements can be clearly set out, and this would help avoid long-drawn disputes over such liabilities and entitlements in the event of a separation. However, the main disadvantage is the uncertainty as to whether cohabitation contracts will be enforced in Singapore due to the fact that such cases have yet to be considered before the courts.
When drafting a cohabitation contract, parties should:
- Make clear their intentions to create legal relations, and ensure that there is no undue influence or duress
- Clearly list their prior assets
- Decide how to deal with future joint property
- Provide for ways to amend the contract in the future, if necessary
- Provide for alternative dispute mechanisms to litigation in the event of dispute, such as arbitration or mediation
#3 Children
The following are some important issues that may arise in relation to raising a child as an LGBT couple, should they decide to have their own children and start a family of their own.
Care of the children
If an LGBT couple has a child overseas, it is unlikely that the couple will be recognised as the child’s legal parents in Singapore. In the case of female same-sex couples, it is unlikely that Singapore law will recognise the other mother as the baby’s other parent. In such situations, the surname of the baby on the birth certificate will be that of the gestational mother.
Removal of a child from an LGBT couple by government agencies on the basis of them being LGBT is unlikely. Such a drastic cause of action will only be taken if it is considered to be in the best interests of the child. It would be absurd to remove a child from an LGBT couple on the mere ground that the child is being raised by an LGBT couple, especially if the child is being well cared for.
Assisted reproduction
Due to biological limitations, LGBT couples may turn to assisted reproduction services in order to bear children.
Assisted reproduction in Singapore is regulated by the Licensing Terms and Conditions on Assisted Reproduction Services, which put into place strict regulations on the provision of assisted reproductive services. These regulations make reference to couples as husband and wife, suggesting that only married heterosexual couples can obtain artificial reproductive services in Singapore. While this excludes such services from LGBT couples in Singapore, there appear to be no restrictions on LGBT couples going to countries where it is legal to obtain such services, and obtaining these services there.
It is not clear whether these regulations apply to artificial insemination. However, it is common practice for clinics not to offer such services to non-married couples as a matter of policy. However, there appear to be no restrictions on LGBT couples obtaining their own sperms and carrying out the insemination by themselves. There also appears to be no restrictions on LGBT couples going to countries where it is legal to undergo artificial insemination and obtaining these services there.
As for who would be considered the child’s legal parents, the gestational mother will generally be recognised as the legal parent. However, in the case of male same-sex couples, the man whose sperm was used will not be considered the legal father.
Surrogacy
Surrogacy refers to a method of reproduction whereby a woman agrees to go through a pregnancy for a person or a couple, with the intention of that person or couple becoming the baby’s parent(s) after birth. Surrogacy arrangements are prohibited in Singapore, both for LGBT and heterosexual couples. However, there appear to be no restrictions on LGBT couples going to countries where it is legal to obtain surrogacy services and obtain such services there. That being said, an LGBT couple who obtains a child through surrogacy services overseas is likely to have their adoption application denied by the Singapore courts.
This was the case in a recent decision by a Singapore court, which rejected a gay man’s application to adopt a child that he fathered through surrogacy. He had obtained surrogacy service overseas, and while he was permitted to bring the child back to Singapore with him, the court rejected his adoption application on the grounds that surrogacy is prohibited in Singapore. However, the judge emphasised that the decision was not based on the appropriateness and/or effectiveness of same-sex parents, leaving room for optimism in future decisions to come.
Adoption
Adoption can be either local (such that the child adopted is in Singapore) or foreign (such that the child adopted is from another country). Opposite-sex couples may adopt as a couple if they are legally married under Singapore law. In the case of same-sex couples, however, the adoption must be done by one parent as an unmarried person. The following potential obstacles should be noted:
- Unmarried persons may face stricter examination of their abilities to raise the child by the authorities.
- When an LGBT person adopts as a single parent, the other partner does not have any legal parental rights in relation to the child.
- Should a male same-sex couple wish to adopt and one of the partners has to be the parent seeking to adopt, he may not be able to adopt a female child unless the court permits him to do so
The stages of adopting a child are as follows:
- The person seeking to become the child’s adoptive parent has to attend a pre-adoption briefing before beginning the adoption process
- If the child is being adopted from overseas, apply for a Home Study and obtain a Home Study report
- Identify the child
- Obtain the notorised consent of the child’s parents. If the child’s parents are not available, notorised consent may be obtained from either the child’s guardian, the person who has actual custody of the child, the person who is liable to support the child, or the parents of the biological parent of the child where the child is below 21 years of age. The court may dispense with this consent requirement if it is satisfied that dispensation is justified.
- Obtain the child’s relevant documents, including his/her birth certificate and passport
- If the child is being adopted from overseas, apply for a Dependent’s Pass for the child to enable the child to stay in Singapore until the adoption is finalised
- Apply to the Family Court to commence adoption proceedings
#4 Property and finance
Property and finance are important considerations in any relationship, especially if they are purchased in the joint names of the couple. Different rules apply to each type of property and finance.
Housing Development Board (HDB) flats
Many Singaporean couples would like to, at some point, purchase a HDB flat. However, most of the schemes that cater to couples require the couple to be married, or at least eligible to get married. Since LGBT couples are not eligible for marriage in Singapore, they are excluded from such HDB schemes. Thus, most Singaporean LGBT people, couples or otherwise, opt to buy a HDB flat under the Single Singapore Citizen Scheme or Joint Singles Schemes. However, it should be noted that single applicants have to be at least 35 years of age.
As for financing the purchase, an LGBT partner may only use his/her CPF funds, or obtain a HDB loan, to fund the purchase of the HDB flat if he/she is a co-owner of the flat, i.e the flat is held in the couple’s joint names. If only one partner purchases the flat, such that the other partner has no legal rights, the couple should consider drafting a contract to govern their obligations and entitlements in relation to the flat.
Private housing
Being less regulated than HDB property, private property is generally easier to purchase. However, it is also generally more expensive. LGBT couples may use their CPF monies to fund the mortgage. It is also possible for a trust to arise if one partner makes contributions to the mortgage without obtaining legal title to the property. However, in the interests of certainty, it is still recommended for the couple to draft a trust document in the event that they intend for the party with no legal title to have some interest to the property.
Leasing
In Singapore, there are no anti-discrimination laws protecting tenants from discrimination on any grounds, including sexuality. Further, it is important to note that the Suggested Tenancy Agreement in the Consumers Association of Singapore – the standard template used for many leases – contains a clause which states that the tenant cannot use the flat for any illegal purpose of activities of an improper nature. Because LGBT couples are cannot be legally married Singapore, a disagreeing landlord may rely on this clause may rely on this clause to attempt to evict LGBT tenants. Therefore, LGBT couples should negotiate to remove this clause as a precautionary measure.
Central Provident Fund (CPF)
LGBT couples may pass on their CPF monies to their partner by nominating their partner as CPF nominees. However, since they are not married, they cannot use their Ordinary Account to top up their partner’s CPF account or use their Medisave to pay for their partner’s medical treatments.
Insurance
An LGBT person, as the owner of his/her insurance policy, can nominate any other individual as a beneficiary, including his/her partner. In the case of policies with several beneficiaries offered by private insurers, it is up to the insurer whether or not it is willing to recognise LGBT families and couples as a “family unit”. Similarly, for public insurers, it will depend on the discretion of the relevant body.
Bank accounts and taxes
LGBT couples are not barred from owning a joint bank account. However, LGBT couples will not be able to obtain tax deductions, which are contingent the couple being married.
#5 Wills and inheritance
As a starting point, it is important to note that different rules apply depending on whether the individual is Muslim or non-Muslim, and whether the individual has left behind a valid will or not:
- Muslim leaving behind a valid will
A third of the estate is distributed according to the will, and two-thirds of the estate is distributed according to Islamic inheritance law - Muslim with no will
The entire estate is distributed according to Islamic inheritance laws - Non-Muslim leaving behind a valid will
The part of the estate covered by the will is distributed according to the will, and the remaining part not covered by the will is distributed in accordance with intestacy rules - Non-Muslim with no will
The entire estate will be distributed according to intestacy rules
Intestacy rules and CPF
Singapore’s intestacy rules dictate that where a married individual dies intestate, a share of his/her estate will be distributed to his/her spouse and his/her children, if any.
However, under Singapore’s laws, a child born to an LGBT couple is illegitimate and is not eligible to inherit any of his/her parents’ assets. Additionally, because LGBT couples are considered unmarried couples under Singapore law, the surviving partner will not be entitled to a share of the deceased partner’s estate. As for CPF monies, if the deceased partner did not make a CPF nomination, his/her CPF monies will not be distributed to their partner.
Therefore, LGBT couples should draft wills and make CPF nominations in order to ensure that their estate will be distributed in a manner consistent with their intentions.
#6 Medical decisions
It is common for couples to want to be involved in each other’s medical decisions, or to make medical decisions on behalf of the other if the latter is unable to make his/her own medical decisions.
Generally, if one partner wishes for the other to be kept informed of their medical situation, they should notify their healthcare providers.
As for making medical decisions on behalf of a partner, an individual may appoint his/her partner as a donee under a Lasting Power of Attorney, which enables the donee to make decisions and act on his/her partner’s behalf in the event that his/her partner loses mental capacity, i.e he/she is unable to make decisions for himself/herself due to an impairment of, or a disturbance in the functioning of his/her brain or mind. Such decisions may relate to the partner’s personal welfare and property, and include the making of medical decisions.
Consult a lawyer when in doubt
The application of the general law in Singapore to LGBT people and couples may be murky and confusing. Every couple’s situation will differ from the other, and the best solution will vary depending on each specific circumstance. Therefore, while the guidebook and this article provide a useful overview of the applicable law, it is best to obtain legal advice should you and your partner require it.
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This article is written by Chow Jia Ying from Summit Law Corporation and edited by Leanne Cheng from Asia Law Network.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.