A Non-Biological Parent’s Duty to Maintain a Child

Author: Patrick Tan and Berlin Soh

 

The duty to maintain a child is often clear-cut in a marriage between the biological or adopted parents of the child.[1] However, in situations where the biological parents have separated and either one of them chooses to remarry or get into a relationship with someone else (hereinafter known as the “non-parent”), the question lies as to who would then be responsible to maintain the child.

 

This article seeks to address issues a non-parent may face when it comes to child maintenance of their partner’s child.

 

The Law

Section 70(1) of the Women’s Charter (“Act”) states that:-

 

“Where a person has accepted a child, who is not his child as a member of his family, it shall be his duty to maintain that child while he remains a child, so far as the father or the mother of the child fails to do so, and the court may make such orders as may be necessary to ensure the welfare of the child.”

 

As per Section 70(1) of the Act, so long as a non-parent has accepted the child as a member of his or her family voluntarily, he or she would then have a duty to provide for the child’s maintenance as long as it appeared that the child had not in fact been adequately maintained by his or her biological parents. That being said, the non-parent who is in a relationship with one of the child’s biological parents, is able to claim such expenditure from the child’s other biological parent.[2]

 

When a non-parent’s duty under section 70 of the Act is triggered

 

A non-parent’s duty to maintain a child under section 70 of the Act is triggered only when they have accepted the child as part of one’s family and that the child’s parents (regardless of biological or adoptive) has failed to maintain the child.[3]

 

The concept of “acceptance” as part of one’s family entails more than the voluntary assumption of responsibility of the child’s maintenance; it is the voluntary assumption of parental responsibility.[4]

 

In the case of TDT v TDS [2016] 4 SLR 0145, the Court noted that the crucial question to be answered is whether the non-parent in question interacted with the child as if he or she was the child’s parent[5]. For instance, when non-parent marries the biological parent of the child it would serve as prima facie evidence of his acceptance of the child as a member of the family.[6] Other strong indicators of acceptance into the family would include the changing of the child’s surname to that of the non-parent, or whether the child has been encouraged to address the non-parent in parental terms, such as “father” and “mother” or “dad” and “mom”.[7]

 

Secondly, there must be evidence of the child’s biological parents failing to maintain the child adequately, irrespective of their financial means.[8] This means that even if the child receives some maintenance from his or her biological parents, which is insufficient for his requirements, then the non-parent who has accepted the child as a member of his family has the duty to provide the child with such additional maintenance within his means as is reasonable for the child.[9]

 

Circumstances in which the non-biological parent’s duty to maintain the child ceases

 

In so far where the court finds that a non-parent has accepted a child as a member of his or her family, he or she cannot thereafter renege on that acceptance by simply changing his or her mind.[10]

 

As such, the only circumstances where a non-parent’s duty imposed by section 70 of the Act ceases is when the child is taken away from the non-parent in the context of the breakdown of a marriage between the non-parent and the child’s biological parent or when the interim judgment for the divorce between the non-parent and child’s biological parent is granted.[11]

 

Conclusion

 

In conclusion, before the Court orders the non-parent to pay for maintenance for a child,[12] the Court would first determine if the child has been accepted as a member of the family and secondly if the other biological parent of the child has failed to maintain the child adequately.

 

Ultimately, section 70 of the Women’s charter serves as a “stop-gap measure to provide for a child with immediate needs”.[13] As such, the paramount consideration for the Court when deciding if the non-parent should be liable to pay maintenance of the child centers on the interests of the child[14] as it aims to strike a balance between achieving justice and fairness for the child on the one hand, ensuring that the child is at all times adequately provided for, and for the non-parent on the other.

 

[1] S 68 Women’s Charter

[2] s 70(3) Women’s Charter

[3] [2016] 4 SLR 181, [111].

[4] [2016] 4 SLR 181, [103].

[5] [2016] 4 SLR 181, [109].

[6] [2016] 4 SLR 181, [132].

[7] [2016] 4 SLR 181, [103].

[8] EB v EC [2006] SGHC 44, [85].

[9] AJE v AJF [2011] 3 SLR 117, [12].

[10] [2016] 4 SLR 181, [122].

[11] [2016] 4 SLR 181, [124].

[12] S 127 Women’s Charter.

[13] 211 Family Law Review, para 15.6.

[14] [2016] 4 SLR 181, [107].

 

Written by: Patrick Tan and Berlin Soh