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Faculty Feature: Professor Leong Wai Kum
Professor Leong Wai Kum is synonymous with Family Law in Singapore and her book Elements of Family Law is the definitive textbook on the subject. Her 40 year career at NUS Law is distinguished by her significant influence on the development of Family Law, and she has groomed many of today’s leading practitioners and lawmakers. Prof Leong was the first graduate of the newly established Faculty of Law, University of Malaya in Kuala Lumpur, to join NUS Law as a lecturer. Her pioneering work in Family Law will undoubtedly endure for decades to come. We talked to Prof Leong about her work and inspiration.
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What have been some of the highlights of your career?
I have had a fulfilling forty year career with NUS Law and hope to continue for a while longer. Each day I still look forward to work. I am as excited with my current research as I remember I was at my very first attempt at it in 1976. Each year I continue to tweak the courses I teach either to incorporate relevant developments or because I think I can convey the ideas more coherently.
I am proud to have contributed to every major review of Family Law in Singapore
The Women’s Charter was subject to major reviews in 1979 and 1995 when the Parliament of Singapore convened a smaller Committee to receive representations from the public, consider them and then recommend a finalised version of the proposed Amendment Bill. I wrote in my views during both times.
In 1979 I had only been teaching Family Law for 2 years and just returned from my LL.M. studies at Harvard University. I struggled to produce what, as published in Parl. 1 of 1980, took up 15 pages. Among my suggestions was that Singapore should establish a customised Family Court which suggestion became actualised only in 1995 (but this was still many years ahead of the UK that did the same much later, in 2014).
I also suggested the provisions on child maintenance should more clearly convey the point that, whether the parents have divorced, the parents’ liability is largely similar. The divorce has little effect on the parents’ relationship with their child. The law in Singapore clearly continues to demand of divorced parents that they discharge their parental responsibilities. This helps to set the laws regulating parenting and a child’s upbringing upon sound principled bases.
My representation on the proposals in 1995 was an equally memorable event although, unsurprisingly, it was easier for me to accomplish this task compared with my earlier effort.
I have also responded to practically every call for views on possible changes to the law and, at times, have submitted joint papers with colleagues. I have served on several Family Law Reform Committees.
I am happy to have researched and written upon many Family Law topics. Some, in particular, have been particularly impactful.
i My 1992 article critiqued a High Court decision that, to me, applied English law slavishly despite it being unfair to post-surgery transgender persons when Singapore could have taken a more enlightened path. I believe it provided the impetus for an 1996 amendment that largely followed my academic suggestions to rely on the notation of “sex” on every Singaporean’s national registration identity card and, generally, to accord legal recognition to sex-reassignment surgery in the determination of a person’s sex for the purposes of capacity to marry.
ii I have since 1997 suggested that the provision in the Evidence Act section 114, then providing a largely irrebuttable presumption of legitimacy, is out of step with the ready availability of scientific tests of paternity and should be changed into a presumption of paternity that is rebuttable with any relevant admissible evidence. This change was finally achieved by the Status of Children (Assisted Reproduction Technology) Act 2013 that substituted the former with a provision that closely followed my academic suggestion.
iii I have also since 1997 suggested that the law of guardianship should be applied to parents in a way that conveys the continued legal demand of parental responsibility. The law of guardianship needs, in other words, to be rationalised with the law regulating parents as it is generally the parents who seek a court order on the living arrangements of their children after their divorce. The law of guardianship should support and never undermine the law regulating parenting.
In effect this means that, unless one parent has disqualified himself or herself by gross dereliction of parental responsibility, it may not even be necessary for the court to make an order of custody supposedly choosing which parent should have the authority to make major decisions concerning the child. It suffices to leave authority in both parents as the default law regulating parenting would do. Certainly an order of sole custody that theoretically leaves only one parent possessing decision-making authority is, generally, to be avoided.
In 2005, the Court of Appeal in CX v CY (minor: custody and access) adopted this view. From then onwards, the order of sole custody in one parent (that had seemed to be the standard outcome of a suit between the parents within the adversarial system of litigation) has, rightly, become the exception rather than the norm. With this reconceptualisation, the law of guardianship continues to serve us well. Many other common law systems, including the UK and Hong Kong, still struggle with trying to update their equivalent law of guardianship in view of the universally accepted idea of parental responsibility. I am happy to have contributed towards updating and strengthening these two areas of our law.
iv When Singapore enacted a power to divide property upon divorce in 1980 this was without the benefit of a comparable model in the UK. I have written to relate this power in the Women’s Charter section 112 with section 46(1) that exhorts spouses to behave as equal partners in a partnership of different efforts for mutual benefit. The Court of Appeal in NK v NL (2007) embraced this “ideology of marriage” as the driving force behind its power to order the “just and equitable” division of their matrimonial assets between them. The Court in Lock Yeng Fun v Chua Hock Chye (2007) and other cases since has also accepted my suggestion that the “deferred community of property” philosophy underlying the power requires the court to accord equal value to non-financial as financial contributions that spouses make towards the acquisition of property and the accumulation of wealth during the marital partnership.
Despite the direction in section 112 to aim for the “just and equitable” proportions of division being somewhat ambiguous, I am able to show that the orders made by the Court of Appeal since 1996 (when the power was amended to its current formulation) have tended to revolve around orders of equal division.
Even more significantly, when the Court of Appeal changed the order of the court below there were more instances of changing the order to come closer to equal division than otherwise. I continue to encourage my view that the “just and equitable” division of matrimonial assets (which should be regarded as a net wealth built up by the marital partnership) between former equal marital partners should, generally, be an equal division.
v My writings are frequently cited by judges in the Court of Appeal. I am heartened that I am read by the community. In a particularly kind reference in ATE v ATD (2016), the Judge of Appeal remarked “The entire law of maintenance of a former wife has been comprehensively dealt with by … Leong Wai Kum Elements of Family Law in Singapore 2d at ch 18. Indeed, our local case law on this specific topic owes much to, and embodies many of the views of Prof Leong in both this work as well as her other works in the field.”
I am happy to have produced the standard texts. My Principles of Family Law in Singapore (1997) continues to be the repository tracing how the areas of family law developed from its beginnings and their developmental milestones. Since 2007 my Elements of Family Law in Singapore (now in its second edition) discusses current law. As anyone who has written a book knows, it demands tremendous effort to accurately and as coherently as possible discuss enough principles and decisions across enough topics to form a textbook.
I believe that the broad strokes of Family Law should be public knowledge in order that the law is more effective. I have long written that law, particularly an area such as Family Law, should also play a pedagogical role in guiding people towards moral behaviour as a member of a family. To these ends I take every opportunity to speak to general audiences such as when I delivered the Children’s Society of Singapore’s 6th Annual Lecture in 2012. My Singapore Women’s Charter: Fifty Questions (2011) published by the Institute of South East Asian Studies to mark the 50th anniversary of the enactment of the Women’s Charter fairly accurately but with as little legalese as possible conveys how the law regulates marriage, married life, parenting, divorce and property and money issues among family members.
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Having taught Family Law for 40 years, some of your students are now leading family lawyers in their own right. Could you tell us about some of them and why they stand out for you?
I am proud of all my students who have gone on to make interesting and rewarding lives for themselves. I may pick the following for special mention.
My colleagues, Associate Professors Debbie Ong ’89 and Chan Wing Cheong, who will, in their modesty, say that they learnt their Family Law from me, have done and are still doing excellent work. Debbie is now Judicial Commissioner and hears family appeals to the Family Division of the High Court. Wing Cheong ventured into comparative and empirical research and produced excellent work in comparative divorce laws and produced data on the incidence of violence against women in Singapore.
Ms Malathi Das is an outstanding family lawyer. I know people who have been guided by her, in the most compassionate and wise manner we hope of a family lawyer, through what could have become acrimonious contests in divorce and custody. Malathi also engages herself deeply in public service. She rose through the ranks to have served as President of the Singapore Women’s Council of Organisations 2011-2013, the President of LAWASIA 2012-2014 and Vice-President of the Law Society of Singapore 2006-2009.
I also have several students who serve gallantly at the Family Court. The Family Court hears all family proceedings. I know the District Judges put in tremendous work to help members of the public resolve their disputes as harmoniously as possible.
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What are some of the most pressing issues in Family Law today?
The Family Law in Singapore is actually in a good state compared with the same in other common law countries. We should be particularly proud of the fact that, since its enactment in 1961, the Women’s Charter has expressly demanded that spouses regard themselves as “equal partners in a co-operative partnership of different efforts for mutual benefit” and demanded of parents that they view their relationship with their child from the perspective of “parental responsibility”.
As I continued to teach Family Law for a longer period, I have become increasingly confident of the value of Family Law making demands of spouses and parents even though not every breach receives legal sanction. Instead of being useless, a legal demand without sanction of persons involved in long, emotional and dynamic relationships which are easily unequal in power may well be optimal legal regulation. The demand operates always to guide them towards proper behaviour.
Good Family Law aims to inspire us to imagine the principled lives we should live. I like to tell my students that, even upon the failure of the marital relationship at divorce, good Family Law can continue to inspire by assuring that both spouses are treated with dignity, they are reminded to discharge their parental responsibility to their child instead of dragging the child into their dispute and the court displays its equal regard for all manner of effort (financial and non-financial) exerted by both spouses when exercising its powers to make the fairest possible orders of division of matrimonial assets and maintenance.
Current initiatives for further development proceed along two fronts. One, to ensure that substantive law and procedure work together in a seamless synergy. I have been speaking of how the Family Justice System in Singapore, with its re-organisation of the courts and processes, should be viewed as rooted in the legal demands of spouses and of parents within the Women’s Charter.
I believe that we need to ground Family Court procedures and rules soundly upon substantive law if the procedures and rules are to work well. The substantive base gives the procedures and rules their proper context and provides its users with the way to appreciate them as continuation of substantive legal demands. I am excited to see whether this idea becomes accepted. The second initiative is to raise the standard of the Family bar among legal practitioners. My friends on the Family bar and the members of the Family Sub-Committee of the Law Society will readily embrace any initiative to further raise what we know is already a reasonably high standard. We welcome the continual upgrading of knowledge and skills for this group of very dedicated legal practitioners.
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What would you advise students interested in pursuing a career in law?
I have no doubt that NUS Law offers the best preparation for family practice in Singapore. Our core curriculum is excellent and provides the graduate with sound command of the fundamental areas in law. Our elective curriculum offers the student the opportunity to read from a wide range of courses. For the student who is keen on entering family practice, I would recommend that he or she should read the following:
i “Family Law”;
ii “Negotiation” or “Mediation” or both; and
iii “Law & Practice – The Law Clinic” that will provide clinical training.
I believe that the combination of these substantive and skills courses provide all the basic training that any academic institution is well placed to provide. Beyond basic preparation, of course, anyone intending a career in family practice must be ready to learn on the job and to continually upgrade himself or herself.
I also believe that, where possible, the student may further elect to read:
iv “Islamic law”; and
v “Principles of Conflict of Laws”.
Although these electives do not necessarily concentrate on family law issues, they will provide sound introduction to disputes that involve the Muslim family law in Singapore or the additional complexities when a dispute carries international elements.
Beyond the Faculty, the student may also consider reading any relevant elective from the Faculty of Arts and Social Sciences. I can see courses that will be interesting and may be useful such as “Sociology of Family”, “Welfare and Social Justice”, “Negotiation and Conflict Resolution” and “Child-centric Social Work”.