It is perhaps premature to talk about legalising same-sex marriage in Singapore when, at a more basic level, Section 377A of the Penal Code still criminalises sex between men. Needless to say, because of this, even civil unions and domestic partnerships are not recognised.
However, the fact that male homosexual sex remains punishable by a prison term of up to two years under Section 377A, even though the Apex Court has ruled it "unenforceable", has not prevented gay Singaporeans from forging stable long-term relationships and from living together as committed couples. Many have gotten married overseas, in countries where gay marriage is legal, and then returned home.
A survey conducted by the Institute of Policy Studies (IPS) from late 2013 to early 2014 revealed that Singapore remained a largely conservative society with regard to certain social issues such as extramarital sex, living with a partner before marriage, divorce and gambling. When it came to LGBT issues, 78.2% felt that sexual relations between two adults of the same sex was always or almost always wrong[3],[4]. Regarding adoption of children by gay couples, respondents who found it always or almost always wrong fell to 61.1%. 72.9% found gay marriage always or in certain cases wrong while 15.7% thought it was not. It surprised many in the LGBT community to discover that Singaporeans were less opposed to gay adoption and gay marriage than to gay sex. When the survey was repeated in 2018, the percentage of of respondents aged 20 to 24 who felt that gay marriage was not wrong doubled from 24.1% to 49%. However, older respondents did not register the same marked shift towards more liberal attitudes over the same period.
In Singapore, marriage between two people of the same sex is specifically prohibited under the Women's Charter. However, it is possible for a person who has undergone a legal gender change to get married to a person of the opposite sex.
Relevant legal aspects of marriage and cohabitation in Singapore[edit | edit source]
Singapore matrimonial law categorises marriages contracted locally into two categories: civil marriages and Muslim marriages. The existing legal definition of marriage is found in provisions of the Women's Charter, supplemented by the Interpretation Act. The Registry of Marriages (ROM) administers civil marriages in accordance with the Women's Charter, one of whose initial aims was “to provide for monogamous marriages”. The Interpretation Act defines a monogamous marriage as one “recognised by the law of the place where it is contracted as a voluntary union of one man and one woman to the exclusion of all others during the continuance of the marriage”. Other sections in the Women's Charter specify 18 years as the minimum age for civil marriage and prohibit marriage within certain degrees of familial relation, marriages of convenience and polygamy.
Same-sex marriage is expressly outlawed under the Women's Charter. Its Section 12(1) states:
"A marriage solemnised in Singapore or elsewhere between persons who, at the date of the marriage, are not respectively male and female shall be void."
In civil marriages, the gender of a person is taken to be the one stated on his/her National Registration Identity Card (NRIC) and not on the birth certificate. Therefore, a person who has achieved a legal gender change, with the new gender stated on the NRIC, may marry a person of the opposite sex. However, for Muslim marriages, a transgender person is not allowed to marry another individual if both are of the same sex as stated on their birth certificates even if the transgender person has undergone sex reassignment surgery and a legal gender change reflected on the amended NRIC. This proscription is waived if a person was born with genital organs of both sexes (hermaphrodite or pseudohermaphrodite) and makes a change.
The above legal provisions do not apply to Muslim marriages which are administered by the Registry of Muslim Marriages (ROMM) in accordance with Part 6 of the Administration of Muslim Law Act (AMLA). A religious official must give his written consent to the solemnisation of a marriage, and will only do so if he is satisfied that “there is no lawful obstacle, according to the Muslim law or this Act, to the marriage”.
All marriages performed in Singapore must be registered with the relevant registry in order to be legally valid.
The concept of "common-law marriage" (also known as non-ceremonial marriage, informal marriage or marriage by habit and repute) which is a legal framework whereby a couple may be considered married without having formally registered their relationship as a civil or Muslim marriage, is not recognised in Singapore, even if they have been cohabiting for many years. This applies as well to heterosexual couples who do not automatically acquire any rights that married couples normally enjoy, such as division of assets and maintenance upon dissolution of their relationship.
Overseas civil unions[edit | edit source]
- See also Archive of The Telegraph article, "Births, deaths and the first civil partnership", 6 December 2005
- See also Archive of TODAY article, "Singaporean man among first in gay union", 12 December 2005
Before same-sex marriage gained legal recognition in as many countries as it has today, civil unions were the interim arrangement instituted in these nations. The first Singaporean on record to enter into a civil union overseas was Malay-Muslim computer executive Ghani Jantan, son of Mr and Mrs A Jantan of Pasir Panjang, Singapore, who registered a partnership with former cavalry officer John Walker, a British citizen from Stockbridge, Hampshire[5],[6]. They created history in more ways than one - not only were they part of the first wave to take advantage of the UK's new civil partnership law but they were also the first couple to record the fact in the print versions of The Telegraph and The Times in early December 2005, accompanied by a colour photograph of the happy couple. They converted their civil union into a full fledged marriage when legislation to allow same-sex marriage in England and Wales was passed by the Parliament of the United Kingdom in July 2013 and came into force on 13 March 2014.
Since then, many gay Singaporean couples have followed suit and registered their own civil unions in foreign jurisdictions or have even gotten married to their partners in countries like Canada and the USA where gay marriage has been legalised([7]):
Others celebrate their loving relationships in Singapore via videos posted on YouTube.
Gay wedding ceremonies[edit | edit source]
Even though gay marriage is not yet legal, holding gay weddings is perfectly legitimate in Singapore, unlike the case with Vietnam where it was illegal until as recent as 2014. However, the "marriages" that the wedding ceremonies or dinners celebrate cannot be registered with the Registry of Marriages and are therefore not legally recognised.
There is much less discrimination against lesbian relationships, especially after lesbian sex was decriminalised during the Penal Code review in 2007 when the former Section 377, which criminalised "carnal intercourse against the order of nature" (theoretically including penetrative lesbian sex) was repealed.
Therefore, if there is a push by LGBT activists to legalise gay marriage in Singapore, it may be spearheaded by lesbian couples serving as role models as there is much less mainstream resistance against their relationships. However, the overseas Singaporean same-sex marriages that have been reported in the mainstream and alternative media so far have mainly featured male couples.
Ivan Heng marries Tony Trickett in London[edit | edit source]
On Friday, 1 August 2014, Cultural Medallion recipient, theatre doyen Ivan Heng, the founding artistic director of home-grown theatre company Wild Rice, married his long-time partner Tony Trickett, Wild Rice's executive director, in a ceremony in London. Heng and Trickett, then 50 and 57 years of age respectively, tied the knot at the Chelsea Old Town Hall on the 18th anniversary of the day they met and fell in love. According to Heng, it was a perfect British summer's day, memorable in every way. The couple were immensely moved and overwhelmed by the messages of love and congratulations from everyone. After the wedding, they headed to Tuscany in Italy for a few days' holiday.
Heng announced the good tidings in a lengthy Facebook post entitled, "I am a Happily Married Man"[8]:
"On being awarded the Cultural Medallion, Singapore’s highest national award for culture and the arts, a journalist asked me whether she could use the term “openly gay” to describe me. A little stunned, I asked her what my sexual orientation had to do with the award. She explained that as the two other winners were married, she felt it necessary to inform the readers about my marital “status”, or something equivalent.
I paused, not quite knowing what to say. And then asked her if she would use the term “openly straight” to describe them. The irony was not lost on her, and we had a giggle. I told her she could write that I shared my life and work with Tony, my partner of seventeen years.
When I finally accepted the award at the Istana, I ended my speech by thanking Tony publicly, and I might add, to great applause. The article regarding the ceremony made the front page of the Straits Times the following day. But whilst my fellow winners’ spouses were mentioned in glowing terms, Tony was conspicuously absent. This lack of any acknowledgement hurt.
I’ve always liked the idea of marriage. I cry at weddings because there is something beautiful and romantic about finding someone, falling in love, and wanting to give each other the world. Forever. I imagined it’d be bliss to come home to a best friend at the end of a day’s work, to have dinner, or take evening strolls with. It would be wonderful to always have someone in my corner, a constant companion with whom I could just be myself, and to grow old with. But when I was growing up, I had little to look up to. There were no positive gay roles models, and neither were there any gay television programmes, books or films with happy endings. So I dared not entertain the hope that marriage could happen for me.
In the summer of 1996, I met Tony at the “Brief Encounter”, a gay bar in London’s West End. I was meant to be at another party that evening, but my hot date ran out of battery on his mobile phone, and I did not own one. So my intended tryst was scuppered, and I needed a drink. It was “Disco Thursday”, and the place was heaving with an after-work crowd. As is always the case with gay bars, everyone was trying and never completely succeeding to be butch and cool. But when Barbra Streisand and Donna Summer’s “Enough is Enough” came on, the make-shift dance floor went wild and everyone started a sing-a-long. I found myself mouthing the words with a casual insouciance - one tries to look as if you’re enjoying yourself, but not too much.
And then I saw Tony, looking very handsome in his pinstriped suit, not a strand of his salt and pepper hair out of place and the kindest, most beautiful blue eyes. He too was singing. “I always dreamed I’d find the perfect lover, but he turned out to be like any other man…”. We caught each other lip-synching across the crowded room, and laughed. And then, we proceeded to sing the entire anthem to each other. “Enough is enough, is enough, is enough…IS ENOUGH!!” We keeled over laughing. Sharing a sense of humour was a good place to start. When we finally recovered and spoke to each other, something clicked. That night, all our cares melted away and the world disappeared. We fell in love.
Six weeks later, on a moonlit street in London, Tony went down on bended knee and asked me to marry him. I remember being at once alarmed and moved. Given the improbability of such a union, and preferring to be romanced by chocolates, flowers and champagne, I declined. He persisted, gallantly getting down on both knees, and I agreed for us to be “boyfriends”. Needless to say, our encounter has been more than brief.
Within three months of knowing each other, we moved in together. And one year later, in 1997, we moved to Singapore. It is a place we have grown to love very much, and that we call home.
When marriage equality became real in the United Kingdom this year, Tony and I decided to get married. We envisaged an intimate, private ceremony with our families and our close friends. It would be an occasion to celebrate and affirm our commitment to each other as a couple. We chose the 1stof August 2014 for our nuptials to mark our 18th anniversary together. Homophonically, pun fully intended, 1-8-1-8 is auspicious in Chinese. A little luck is needed on all great adventures.
Yesterday, at the Chelsea Old Town Hall in London, we avowed our love. With our nephew as our ring bearer, our siblings as witnesses, our family and our closest friends, we exchanged rings and made a promise to love and cherish each other to the end of our days. It was well and truly one of the happiest days of our lives.
We never meant for our marriage to be a political statement or an act of activism. Notwithstanding that, I have come to terms with the fact that as a public figure, one’s personal joy sometimes becomes political.
Even as the LGBT community in Singapore struggles for equality and acceptance, there have been there have been many incidents that have vilified us in recent days. These have ranged from the religious fundamentalists’ declaration of war on the community and a widespread and systematic campaign of hate to keep S377a on the law books, the attempt to undermine the Health Promotion Board’s guidelines, and the Wear Red and/or White Movement. In fits of moral panic,the MDA banned Ah Mei’s “Rainbow”, and the National Library Board shelved children’s books to its adult collection.
It is easy to see that all of this stems from the presence of S377a, which is in effect state-sanctioned bigotry. The verdict is still out on the constitutional challenge to this archaic law that discriminates against a vulnerable segment of our society. But as it stands, neither the judiciary nor legislature seems to have the moral courage to repeal it. Between Goh Chok Tong’s, “We are born this way and they are born that way but they are like you and me” to Lee Hsien Loong’s “Why is the law on the books? Because it’s always been there and we should just keep it there.” - we really have regressed, even as the world is waking up to the fact that LGBT rights are human rights.
In spite everything, we remain hopeful.
Pink Dot continues to grow in size and meaning, proudly signaling a wish for a more fair and just society. The way we progress, how we regard human rights in our society,is always driven by the young, who are not married to the prejudices of the past. My personal interactions with young people, not least my dear nephews and nieces and indeed all the beautiful children at our wedding, give me hope for the future, and a distinct sense that time and history are on our side. In the bigger scheme, Singapore is showing signs of maturing as a society. Our citizens, both straight and gay, recognise inequality, prejudice and hate-speech when we see it, and are now more ready than ever to call it out. We are finally beginning to have the important conversations that go to the heart of living in a true democracy. Because truly, if we want to talk about our core values and community standards, these surely must include notions such as tolerance, inclusivity and diversity. I trust we will come to understand that this has as much to do with the protection of the rights of a minority, as it is about the will of the majority. The LGBT community is not going to go away or disappear. So the sooner everyone gets over it, the happier everyone will be, and we can get on with more pressing matters. Enough is enough.
And Singapore is changing. We were a little nervous about telling anyone outside our close circle of family and friends about our nuptials. In getting ready for our Big Day, we had to find and buy our wedding rings, tailor our outfits, get advice for our wedding cake, get our invitations and programmes printed. We had to “come out” again and again to complete strangers. But in our experience, these ordinary Singaporeans were nothing but kind and genuinely happy for us, unabashed in their congratulations and best wishes, offering to help us in any way possible.
This experience has affirmed our belief that the most important thing anyone can do as a human being, straight or gay, is to be true to oneself. We are so much happier if we can all be proud of whom we are, how we feel, whom we love. Our marriage is a declaration our love, and we invite the world to share in our joy. We are deeply grateful for our wonderful family and our amazing friends, whose love and support has been a great encouragement and inspiration to us through the years.
In closing, I would like to report that your fellow Singaporean, Ivan Heng is now “openly married”.
The news of Heng and Trickett's marriage was reported in The Straits Times on 3 August 2014[9],[10]. Readers expressed their heartiest congratulations in the comments section below the article.
Media censorship[edit | edit source]
A 1,700 word Valentine's Day feature article entitled "Singapore’s art power couples on the secrets to their success" published by Today newspaper on Friday, 12 February 2016, mentioned 4 heterosexual couples who worked alongside each other in performance and visual arts in the opening paragraphs and featured interviews with 3 other straight couples in the arts scene in Singapore.
However, it conspicuously omitted the gay, married, celebrity couple of Ivan Heng and Tony Trickett. In a Facebook post, Heng wrote on Saturday, 13 February 2016, that they had agreed to be part of the feature and was interviewed by journalist Mayo Martin.
"We’ve been informed that the section featuring me and Tony was pulled at the last minute by the higher editors because “it didn’t fit with the rest of the profiles throughout the couples series of stories.” We note that we were not even mentioned in the list of couples running theatre companies in the opening paragraphs." Heng asked, "What could this mean? Would the higher editors care to identify themselves and explain their decision?"
Lesbian couple's wedding celebrations supported by family[edit | edit source]
On 9 April 2018, LGBT website Dear Straight People featured the story of Gillyn and Jolyn who managed to get married openly in Singapore with the full support of their family and extended relatives[11]. Their wedding celebrations ran the full gamut of the traditional morning gatecrash and tea ceremonies to the sumptuous wedding banquet[12].
Together since 2012, the couple tied the knot in 2016 in the United States. They then returned to Singapore where they managed to find a hotel accommodating enough to hold a traditional Chinese wedding banquet.
While their wedding may seem like the very definition of a happily ever after, their love story didn’t quite start out so Disney-like. In fact, Gillyn and Jolyn first met in a toilet in 2012. Highly intoxicated during a night out at a Thai club, the then 25-year old Gillyn went into the restroom to take a breather. It was there that she met Jolyn for the first time, who was with her then girlfriend. Fuelled by liquid courage, Gillyn admonished Jolyn for being too loud. Gillyn recounted that Jolyn was stunned when she told her off and only remembered her smiling sheepishly back at her. She could not remember what she said since she was half drunk.
Coincidentally, the pair had a mutual friend and it was through that friend that athey were able to get to know one another better. Before long, sparks started to fly between the two. After a couple of failed attempts, Jolyn finally succeeded in getting Gillyn to be her girlfriend while on a trip to Johor Bahru.
When Gillyn replied “yes”, there was suddenly a loud "BANG"! Someone had hit her car from the back. However, she was ecstatic so she just smiled and told the driver “It’s OK, don’t worry about it!” To everyone who knew Jolyn, her car was her everything but she was just over the moon about Gillyn saying yes that nothing could spoil her mood at that point in time. After 4 years of courtship, the couple decided to get hitched.
As both of them wanted to propose to the other, the couple ended up having two separate proposals. Gillyn emailed a newspaper and had a full page of space declaring her love for Jolyn, accompanied by a cute cartoon. It was the craziest thing she have ever done. The newspaper declaration stressed Jolyn out, though. Not to be outdone by Gillyn’s very public proposal, Jolyn organised an elaborate beach proposal for her other half.
She went to Sentosa to book the beach, engaged a band, sang her proposal song and popped the question. She had stage fright so her voice was super soft and trembling. During the preparation, her brother and bridesmaids carried all the items, helped her with all the decorations as they were afraid she would be too tired to perform and sing well for her future wife. It was her blessing to have them. The couple then flew to Santorini in Greece to have their pre-wedding photoshoot before getting hitched in the States the following year.
Celebrating their wedding in Singapore however, was not quite as straightforward. Most of the hotels the couple approached turned them down. When one hotel finally accepted their request, they demanded that the couple not wear a gown during the ceremony. Needless to say, they rejected that offer. How could a bride not be allowed to wear a gown on her big day?
It took some time but eventually, they found a hotel that was happy to host them and did not make any strange requests. Like any other couple getting married, Gillyn and Jolyn had the morning gatecrash and tea ceremonies on top of the wedding banquet. Organising a same-sex wedding ceremony in Singapore may have involved more hassle than usual but the pay-off was well worth it.
Gillyn's dad kept tearing during the morning tea ceremony session. It was a really touching moment when he said, “If Mummy was here to witness it, she would be very happy.”
The wedding itself was a massive success, with all 10 tables filled. It was a blast and they were so grateful to all the guests who made their way down to attend their special day. They had many other friends that wanted to attend but had to disappoint them because they wanted to stick to their plan of 10 tables so that they could attend to all our close friends and family.
The union of Gillyn and Jolyn may not have been recognised in the eyes of the State but the massive success of their wedding was a clear indication that their marriage was very much recognised by their loved ones. It was the kind of happily ever after many would much rather have. Many regard it sad that Singaporean queer couples almost always have to resort to getting married overseas in secret as celebrating one of the most special days of one's life should be done in the company of loved ones. It should not have to feel like an elopement.
First positive media report of Singaporean gay marriage[edit | edit source]
The first Singaporean gay marriage which was reported positively and given detailed coverage in the mainstream media was that of actor-singer Caleb Goh and his partner who declined to be named for the Yahoo! News article[13]. They got hitched on 16 December 2018 in the historic Presidio Park in San Diego, California.
Goh, who is based in the United States, posted photos of the wedding ceremony and reception on Twitter for the first time on Wednesday, 7 March 2018.
The then 40-year old was a familiar face in TV, film and stage productions in Singapore before he left for the US in 2002 to further his education and career. He starred in local films like Forever Fever and The Teenage Textbook Movie, and musicals such as Mr Beng. He also appeared in local television shows such as Masters of the Sea and Growing Up.
Goh said that he met his husband in Singapore while performing in a play called Asian Boys for W!ld Rice. His husband-to-be was in the audience and after the show, he walked out of the dressing room and introduced himself to him. Before they knew it, five years had gone by. Goh's husband moved to California to pursue his studies and is currently a research analyst. Goh had spent the last 16 years in California so his husband pretty much moved to start their lives together in the US.
Although Goh had worked and lived primarily in the United States for 11 years, he returned to Singapore in the few years prior to 2018 to act in productions including Jack and the Bean Sprout and Rising Son. He was also a lecturer in musical theatre at LASALLE College of the Arts from 2013 to 2015. Goh was the first person from Singapore to receive a doctorate in musical theatre and is currently a drama programme director at St Margaret’s Episcopal School in Orange County in California.
Li Huanwu marries Heng Yirui in South Africa[edit | edit source]
Barely one week after Taiwan made history on 17 May 2019 when it became the first jurisdiction in Asia to legalise gay marriage[14], Li Huanwu, the grandson of the late Singapore prime minister Lee Kuan Yew, married his long-time male partner in an intimate ceremony on Friday, 24 May 2019 in Cape Town, South Africa where same-sex marriage was legalised in 2006[15],[16]. Before their wedding ceremony, the pair visited the Mana Pools National Park. The event was a small and private affair with only close friends and family in attendance. The Singapore Airlines cabin crew also presented a cake and congratulatory note to the couple on their flight to South Africa.
“Today I marry my soul mate. Looking forward to a lifetime of moments like this with (Huanwu),” wrote Heng Yirui, Li’s partner, on his personal Instagram account in a post from Cape Town on the evening of Friday, 24 May 2019.
Heng is a veterinarian while Li is the vice-president of a tech company and the second son of Lee Hsien Yang, who is the younger brother of Prime Minister Lee Hsien Loong. Lee Hsien Yang said, “I believe my father would have been thrilled to know this.” (see main article: Lee Kuan Yew's views on homosexuality).
After tying the knot, the couple also sent a statement and photos of their wedding to Pink Dot Singapore, which posted them on its Instagram page.
“Today would have been unimaginable to us growing up. We are overjoyed to share this occasion in the glowing company of friends and family,” they said in a statement to Pink Dot Singapore.
Li had gone public about his partner more than a year before the wedding. In July 2018, he and Heng appeared in an LGBT-themed photography exhibition called Out In Singapore which aimed to foster acceptance and support for LGBTQ persons who wished to come out to family, friends and peers in the community. The couple could be seen with their arms around each other in one of the portraits. Both had also attended Pink Dot at Hong Lim Park since 2017.
Alternative media sites in Singapore, including Mothership and The Independent, were quick to pick up on the announcement while mainstream media outlets steered clear of reporting it. Mothership’s Facebook post attracted 1,700 likes and 400 comments, mostly positive and congratulating the pair. One user, Donna Lim, commented: “Congrats! Love has no boundaries.”
In mainland China, multiple posts of Li’s wedding surfaced on social media app WeChat, which have garnered hundreds of likes and comments as of Saturday afternoon, 25 May 2019. A few reacted with disdain but many of the Chinese commentators also congratulated the couple, with some hoping that Li would front the fight for gay rights in Singapore.
Tom Tan marries Oui Sumet Srimuang[edit | edit source]
On 7 November 2019, Dear Straight People posted a video on its Facebook page of the marriage of Singaporean Tom Tan[17] to his Thai fiance Oui Sumet Srimuang[18] in Bangkok[19]. The epic ceremony featured a giant ice phallus, stripping policemen and holographic projections in what was billed the 'Gay wedding of the year'. The host, Sean Foo[20], hoped that his vlog would inspire viewers to marry their partner with the full support of their families and that it would not seem like a distant fantasy anymore[21].
Marriage of Rachael Se and Sher[edit | edit source]
On 1 February 2020, Rachael Se and Sher got married with the support of their families and loved ones in a beautiful wedding ceremony held in Sydney, Australia[22],[23]. In 2019, Se had penned an open letter on Dear Straight People venting her frustration at being unable to tell her family that she was engaged to her partner. Her letter struck a chord with many readers, and the encouragement she received spurred her on to come out to her family one month later. Thankfully, her coming out went as well as she could possibly have hoped for and she followed up with another powerful letter entitled, ‘I Came Out To My Chindian Family And… I Got The Best Response Ever’[24].
Alex Serrenti and Brenna Wee[edit | edit source]
The Pink Dot 2020 live stream featured the story of married Singaporean lesbian couple Alex Serrenti and Brenna Wee[25]:
Marriage of Joyce Chan and Lim Qiuling[edit | edit source]
On 10 September 2020, Dear Straight People published the story of Joyce Chan[26] and Lim Qiuling, a married Singaporean lesbian couple who had been together for 11 years[27]. The pair first caught the attention of the LGBT community when Chan penned a heartfelt post on Facebook during Pride Month 2020. Her post detailing her relationship with Lim quickly went viral, garnering thousands of likes and shares in a matter of weeks. Married for 2 years since 2018, it was not hard to see why their relationship inspired so many[28].
Marriage of Sarah Benjamin and Marcia Ong[edit | edit source]
Sarah Benjamin and Marcia Ong held their wedding at the colourful destination of Millwick in Los Angeles[29]. When the couple settled on getting married in Los Angeles, they wanted to bring the bold colours of Palm Springs to downtown LA, so that really informed the ceremony's color palette. They mainly wanted the wedding to feel really fresh, fun and modern, so they stayed away from the traditional whites and pastels and went straight for strong primary colors including reds, yellows, blues and pops of pinks. Because the venue had plenty of natural greenery, they chose a few simple flower arrangements in vibrant colors. They also decorated the reception tables with bright décor pieces, including pink table runners, blue chargers and colour-blocked menus, table numbers and signage. Benjamin decided on a nontraditional long sleeve pink dress made of two different laces, while Ong wore a custom blue suit. Both being Singaporean Chinese and queer, they did not feel obliged to stick to many of their traditions. The one thing they brought over from Singapore was the 'yamseng' toast, where a friend shouts out three different blessings, and the whole crowd has to shout 'yaaaaamseng,' holding it as long as they can, to signify a long and happy marriage...and at the end of that, everyone gets to drink.
Foreign gay married couples in Singapore[edit | edit source]
Singapore law does not recognise civil partnerships and same-sex marriages from overseas jurisdictions, nor are same-sex spouses regarded as family members. If a foreign gay married couple wishes to work or stay for an extended period of time in Singapore without a visa (more than 30 days or 90 days depending on their nationality), the available options are:
- both partners must each get a personalised employment pass (PEP), employment pass (EP) or S Pass in their individual capacity with jobs offered to them.
- if only one partner manages to secure an employment pass, personalised employment pass or S Pass, the other partner can get a student visa by enrolling for a fee-paying tertiary course.
- the partner without the visa must do a 'visa run' every few months. In this workaround, the partner leaves Singapore just before the permitted length of stay expires, mostly for a neighbouring country like Malaysia, Indonesia or Thailand, for a short period and then returns to obtain a new entry stamp on the passport which will extend his/her stay, to "reset the clock" as it were. This is the least recommended option as the Immigration and Checkpoints Authority (ICA) can deny entry to applicants without giving a reason if they get suspicious. Telling them "I have a partner living in Singapore" is not usually an acceptable reason for re-entry.
- each partner may consider applying for an EntrePass by depositing money to set up a business in Singapore.
- long term visit passes (LTVP) are only for common-law spouses of the opposite sex, or for visitors whose spouse is a Singapore citizen or permanent resident. Even then, it is notoriously difficult to get an LTVP approved. Many foreign women who marry straight men in Singapore have also failed to get LTVPs, so it is not only gay couples that are affected. Anecdotally, LTVP applications will always be unsuccessful at the first stage and one should be prepared to file an appeal via a letter drafted by an employment lawyer who has experience with successfully obtaining an LTVP before. LTVPs for same-sex spouses are only granted under exceptional circumstances. Even diplomats from the US embassy have problems getting LTVPs for their same-sex partners, as an example of how hard it can be, unless one is an ambassador or is powerful in some way.
- spouses or partners who are unable to secure any of the above passes but are citizens of the United States have the privilege of applying for the Singapore-United States of America Trusted Traveller Programme (TTP)[30]. This is a bilateral initiative which allows citizens of Singapore and the US to enjoy convenient immigration clearance via automated clearance facilities at their respective major traveller checkpoints. Under the TTP, US passport holders who are existing members of the U.S. Global Entry Programme (GEP) can submit an online application for the use of ICA's enhanced-Immigration Automated Clearance System (eIACS) if they have a passport validity of more than 6 months and have visited Singapore at least two times in the previous 24 months. This arrangement facilitates multiple visits to Singapore of up to 90 days each to see their partners without the need for visas or permits. Similarly, same-sex partners who are citizens of Australia, Hong Kong, Japan, Malaysia, New Zealand, China, South Korea, Thailand, the UK and holders of an APEC Business Travel Card (ABTC) are privileged to be eligible to apply for the free-of-charge Frequent Traveller Programme (FTP) which allows them to enjoy convenient immigration clearance via automated clearance facilities at Singapore checkpoints[31].
If children are involved, the situation is more complicated and applicants should consult lawyers versed in these matters. A list of lawyers is available here:[32].
Information regarding the policies and various passes that apply depending on the eligibility of the individual is available at the ICA's website:[33] and also the Ministry of Manpower's (MOM) website:[34].
There are exceptional cases where if the Government requires the unique expertise, unavailable locally, of a married gay foreigner, it may actively headhunt the individual from overseas and offer the spouse a special visa to live with him/her in Singapore. A prime example is that of American seismologist Kerry Sieh, Founding Director of the Earth Observatory of Singapore. It reflects the Government's elitist policies and double standards with regard to LGBT equality.
Lasting power of attorney[edit | edit source]
- Main article: Lasting power of attorney (Singapore)
After both partners of a foreign same-sex couple have secured the requisite passes for a long-term stay in Singapore, it is advisable for each of them to draw up a lasting power of attorney (LPA). The latter is a legal document that a person who is above the age of 21 years can make to voluntarily appoint one or more persons to make decisions and act on his/her behalf should he/she one day lose the ability to make his/her own decisions in accordance with the Mental Capacity Act.
Benefits of making an LPA[edit | edit source]
For the specific case of a foreign same-sex couple, an LPA allows the partner drawing up the document (the donor) to appoint his/her spouse as the person (the donee) who can automatically step forward to act on his/her behalf if a doctor certifies that the donor has lost mental capacity after an accident or illness. If a person were to lose his/her mental capacity suddenly, his/her spouse will not be automatically given the right to make decisions on the incapacitated person’s behalf or have access to his/her money, especially since their marriage is not recognised in Singapore. Without an LPA, the person's spouse needs to apply to the courts for an order to administer the affairs of the incapacitated individual. This court order is one where the court appoints a person as the deputy to manage the affairs of the individual who has lacks mental capacity. An LPA avoids the hassle of getting such a court order which can be both time-consuming and expensive, to the tune of thousands of dollars. The process could create stress and inconvenience for the healthy spouse who would have to pay for the incapacitated partner’s care and maintenance as well as expenses relating to the court order application.
If an LPA is not drawn up and a person subsequently loses his mental capacity to make certain decisions, someone who may not be the person's choice, for example a visiting relative, could apply to court:
- to be given the authority to make decisions for the incapacitated person as his/her deputy; or
- to appoint one or more persons to be the person's deputies to make decisions for the incapacitated person.
When this occurs, there is the possibility that the deputy making decisions on behalf of the incapacitated person is not aware of the person's interests, preferences and beliefs and therefore, may not act in his/her best interests.
The LPA also allows donees to immediately start managing donors' matters (personal welfare and/or property and affairs) instead of having to wait for the entire court selection process of appointing a deputy before any action can be taken. This means much quicker access to the donor's bank accounts and insurance payouts to ensure that they can pay for the donor's medical care and upkeep. This is particularly important if the the donor is the sole breadwinner as it ensures that there is no break in access to funds for his/her unemployed spouse.
If donors do not wish to appoint their spouses as donees, they have the option of appointing professional donees, thanks to changes to the Mental Capacity Act which have enabled this course of action. They may prefer this alternative if they have complex instructions about their care and assets, which may be better understood by professionals or if they want to prevent heated disagreements with their spouse. At present, only those from selected professions such as lawyers, accountants, healthcare and social service professionals who meet certain criteria and pass a certification course can apply to be registered as professional deputies or donees. These professions were chosen by the Office of the Public Guardian because they have the necessary skills and experience to competently handle decisions on behalf of the mentally incapacitated.
Ultimately, making an LPA provides certainty and peace of mind for donors and their spouses. It enables donors to plan ahead and make choices for their future before they loses their mental capacity. Therefore, LPAs are not just for the elderly as younger people may also become incapacitated via an accident or illness. There have been numerous examples of young, healthy people being struck down by severe illness or getting involved in a car accident which reduced them reduced to a vegetative state. When this happens, the young person is no longer be in a position to manage his/her personal or financial affairs. In such cases, any will that the person has prepared will apply because the provisions of a will only operate when the individual has passed on. However, if the person had made an LPA before he lost his mental capacity, his interests would have been protected when he became vulnerable. A healthy person may think there was no need for an LPA and that a will would suffice. But the truth of the matter is that one does not know if or when one may suddenly lose mental capacity. Life is unpredictable, and it pays to be always prepared.
Discrimination faced by same-sex couples in Singapore[edit | edit source]
Public housing[edit | edit source]
- See also: Public housing for LGBT Singaporeans
In Singapore, access to public housing is the biggest benefit granted to married couples and is officially recognised as a key pillar of support for relationships. Public housing is the most affordable type of housing for the middle and working class due to the high price of housing in Singapore. Purchasing a Housing Development Board (HDB) flat is a major step towards married life for almost all couples intending to formalize their relationship and is entrenched in Singaporean society. Upwards of 80% of Singaporean families live in public housing apartments sold by the Housing Development Board (HDB).
Same-sex couples in Singapore, whether citizens or foreigners, cannot own their own homes through the public housing scheme, and many rent as they are unable to afford private housing. Same-sex partners - both must be above 35 and Singapore citizens - can purchase a flat under the Joint Singles Scheme.
Private housing, a property class typically 1.5 to several times more expensive than public housing, but open to the public and foreigners, may be purchased by same-sex couples both Singaporean and foreign.
Immigration and spousal rights[edit | edit source]
Legal and immigration rights are not awarded to binational couples, where one partner is a Singaporean or Singapore permanent resident. Dependent visas, which are usually issued for heterosexual spouses, are not available for same-sex couples. Tax rights, wills, and spousal insurance benefits do not include same-sex couples. There is no recognition of same-sex couples in most areas of concern such as hospital visitation and Central Provident Fund benefits.
Public opinion[edit | edit source]
- See also: Singapore LGBT surveys
According to a 2013 poll, some 75% of Singaporeans opposed same-sex marriage.
In 2019, a poll conducted by YouGov with 1,033 respondents showed that about one-third (34%) of Singaporeans backed same-sex partnerships, while 43% opposed their legalisation, and the remaining 23% were uncertain. Support was more notable among younger respondents: 50% of people aged 18 to 34 supported civil partnerships and 20% were opposed. In contrast, only 22% of those aged 55 and over supported it. 41% of university degree holders agreed with the legalisation of same-sex partnerships, whereas only 26% of respondents without a university degree were in favour. Of those who considered themselves "very much" religious, only 23% supported civil partnerships. 51% of people who considered themselves "not at all" religious expressed support. Apart from irreligious people, majority support for same-sex partnerships was also found in respondents who identified as LGBT (71% against 22%) and those who personally knew a person in a same-sex relationship (52% against 33%).
A survey conducted by the Institute of Policy Studies between August 2018 and January 2019 revealed that Singaporean society was still largely conservative but becoming more liberal on LGBT rights. The survey showed that more than 20% of people said that sexual relations between adults of the same sex were not wrong at all or not wrong most of the time, a rise of about 10% from 2013. Around 27% felt the same way about same-sex marriage (up from 15% in 2013) and 30% did so about same-sex couples adopting a child (up from 24% in 2013).
A mid-2019 poll conducted by the Institute of Policy Studies found that opposition to same-sex marriage in Singapore had fallen to 60%, down from 74% in 2013. The poll also found that nearly six in ten Singaporeans aged between 18 and 25 believed same-sex marriage was not wrong.
In June 2019, an online survey conducted by Blackbox Research revealed that 56% of Singaporeans were opposed to other countries following Taiwan’s example of legalising same-sex marriage, while 44% said supported it. When asked how they felt about a statement saying that more than 300 same-sex couples getting married in Taiwan the first week after the new law was passed, about 49% of those surveyed felt positive about it, with 14% feeling “strongly positive” and 35% feeling “somewhat positive”. Conversely, 51% responded negatively, with 20% feeling “strongly negative” and 31% “somewhat negative”.
Government considers enshrining definition of marriage in Constitution[edit | edit source]
On 28 February 2022, Singapore's Apex Court released its judgment in the Section 377A Constitutional challenge of Tan Seng Kee v AG [35],[36],[37],[38],[39],[40],[41],[42],[43],[44],[45] in which the statute, which criminalised sex between men, was deemed “unenforceable”.
Five months later, in July 2022, several ruling party MPs gave a strong indication to Church leaders that the Government would be repealing Section 377A in the coming months. In response, the Roman Catholic Archdiocese of Singapore called for heterosexual marriage to be “safeguarded and even enshrined in the Constitution of the country as the natural structure of human society”[46]. In a widely circulated WhatsApp message addressed to church leaders, a pastor from a local Christian church said that a constitutional clause referencing the current definition of marriage was likely in order to “balance” a possible repeal of Section 377A. People who attended an event billed as the Protect Singapore Townhall on 23 July 2022 also spoke out against the repeal of Section 377A, unless and until there were “adequate safeguards” to protect marriages, which included enshrining man-woman marriages in the Constitution. On 30 July 2022, Law and Home Affairs Minister K Shanmugam said: “The two questions we are dealing with are therefore: One, what is to be done with Section 377A. Two, at the same time, we are also considering how can we safeguard the current legal position on marriage from being challenged in the courts, so that it does not get challenged like the way Section 377A was in a series of cases.”
Two options[edit | edit source]
Assistant Professor Kenny Chng of SMU's Yong Pung How School of Law highlighted two options for enshrining marriage in the Constitution. The first way was by “direct incorporation”, that is, directly expressing a definition of marriage in the Constitution and declaring that only such marriages would be recognised in Singapore. In general, constitutional amendments required the support of two-thirds of the total number of Members of Parliament (MPs), excluding Nominated MPs. At the time, this meant that at least 63 votes from the 94 elected and Non-Constituency MPs would be required. The ruling party had 83 MPs.
The second method was via including a constitutional provision that referenced the relevant provisions of the Women's Charter or Interpretation Act and shielded them from constitutional challenge. Such “shielding provisions” already existed in Singapore’s Constitution. An example was Article 149(1) of the Constitution on legislation against subversion, which shielded laws designed to prevent certain actions, such as the promotion of ill will and hostility between different races, from constitutional challenge. Article 39A(3) of the Constitution, on Group Representation Constituencies (GRCs), also shielded GRC-related legislation from constitutional challenge. Such “shielding provisions” in the Constitution required a two-thirds majority in Parliament to pass. A shielded provision in the Women's Charter could be changed with a simple majority vote.
However, Adjunct Professor Kevin Tan of the National University of Singapore’s Faculty of Law said it “makes no sense” to enshrine a definition of marriage in the Constitution, and that there was “no need to do so”. He said: “If the idea is to make it harder to amend the definition of marriage, all that needs to be done is to make certain provisions of the law ... amendable only by two-thirds majority in Parliament.” He referred to Section 12 of the Women’s Charter as an example, adding: “Entrenchment can be done within the respective legislation without the need to tamper with the Constitution.” However, there was no precedent for legislative provisions to have entrenched clauses needing a two-thirds majority to be amended.
Both “direct incorporation” and “shielding provisions” were able to protect a definition of marriage from constitutional challenge through judicial review. The latter was the process by which the High Court exercised supervisory jurisdiction over entities that performed public functions and duties. Depending on which of the two methods was used, the difficulty of making subsequent changes to a definition of marriage through the political process would differ, as they required different levels of support in Parliament.
Regarding constitutional challenges, Assistant Professor Benjamin Joshua Ong of SMU's Yong Pung How School of Law highlighted a legal theory that the Constitution could not be amended in a way that altered certain “basic features” or its “basic structure”. “Our courts have not had an occasion to rule on whether this theory applies in Singapore,” he said, although various academics had argued that it could. “Our Court of Appeal has remarked that, assuming this theory applies in Singapore, only ‘something fundamental and essential to the political system’ would be part of the ‘basic structure’.”
Refuting this point, Adj. Prof. Kevin Tan said: “The debate has focused too much on the meaning of ‘marriage’ and not the consequences of being married.” This would require a consideration of how those who were married were treated differently from those who were not. Some examples he cited were eligibility for new public housing, being considered next-of-kin for situations like making medical decisions, being considered a spouse within the meaning of the Intestate Succession Act and adoption. He added: “Differential treatment between classes of individuals” engages Article 12 of the Constitution governing equality and equal protection of the law. The point here is that when the law treats one class differently from another (regardless of the definition of marriage), there is a potential for a constitutional challenge.” He pointed out, however, that there had been no constitutional challenges in these discrete areas since the “big challenge” had only been against Section 377A so far.
Straits Times interviews law academic Eugene Tan[edit | edit source]
On Thursday, 18 August 2022, The Straits Times published a video interview between journalist Alyssa Woo and constitutional law expert Assoc. Prof. Eugene Tan of Singapore Management University (SMU) regarding what it meant to constitutionally protect heterosexual marriage in Singapore and how it could be done[47],[48]:
Transcript[edit | edit source]
On July 23rd, two men organised a private event called the Protect Singapore Townhall. At this event, they called for Section 377A of the Penal Code, which criminalises sex between men, to be retained, until there are guarantees to protect the traditional definition of marriage and family. This law has been a bone of contention for Singaporeans. Some want it to stay. Some want it gone. Others believe that with the repeal of this law, LGBT groups may push for other rights such as marriage equality. This has also sparked calls for the constitutional protection of marriages. What does that mean, and how can it be done?
Woo: My name is Alyssa Woo and welcome to ST Explains. I have here with me Mr Eugene Tan. He is a constitutional law expert, and also an Associate Professor of Law at the Singapore Management University. So Eugene, how would you say marriage is legally defined here in Singapore?
Tan: Well, for a legal definition of marriage, we have to turn to the Women's Charter, and in the Women's Charter, marriage is defined as a marital union between a man and a woman, one that is taken voluntarily. And it also, when read with the Interpretation Act and other pieces of legislation, is supposed to be monogamous. So to the exclusion of all others. This definition only applies to civil marriages. Muslim marriages are contracted under syariah law. So what would be a valid marriage under syariah law, would be slightly different from that in the Women's Charter.
Woo: What does it mean to constitutionally protect a marriage?
Tan: When you elevate the legal status of marriage, it would mean that it would be harder for someone to say that the law should also recognise other forms of marriage, for example, same-sex marriage. And so, when marriage is defined in the Constitution, it is a signal that this is the legal understanding of what is a marriage, and that all laws must then conform with the constitutional definition of what a marriage is.
Woo: How can that be done?
Tan: Well, there are several ways. One, you could have a provision in the Constitution that defines what a marriage is. You could also have another way of elevating the status, but perhaps in a less direct way, and that is by the Constitution recognising the definition of marriage as defined in a piece of ordinary legislation, such as the Women's Charter. You could also elevate the status of marriage through the Constitution by having a provision in the Constitution that guarantees certain rights, privileges, benefits and even responsibilities that come from marriages which are recognised as legally valid in Singapore. And in all these three different modes, you could also have a situation in which there could be a provision that says that, notwithstanding the definition or how the rights, privileges and benefits may accrue to Singaporeans, that these provisions should not be seen as being discriminatory because under the Singapore Constitution, Article 12 provides for equality before the law and equal protection of the law. Now, whether the courts will find these different modes as being sufficient to protect marriages in Singapore is something that remains to be seen.
Woo: Is there a constitutional law that protects the rights of everyone equally right now?
Tan: Yes.
Woo: So having said that, let's say, if heterosexual marriages are constitutionalised, would that automatically discriminate against other groups of people? And then, if that were to be in the Constitution, but then you have another law that says equal rights for all, how is that going to play out?
Tan: I think that's an excellent question. So you're right, Article 12 of the Singapore Constitution provides for equality before the law and equal protection of the law. So it's often seen as the provision that protects people against discrimination. But that is perhaps a bit of a misnomer simply because laws do discriminate in any case. For example, if you think about laws that treat men and women differently, adult and child differently, someone with mental capacity and lacking mental capacity differently, citizen and non-citizen differently. So the laws, every law discriminates in that sense, putting it a bit boldly. But the question is, whether the discrimination is justified or is permitted by law, that really is the test. So this is where it becomes important for Parliament to debate these issues extensively, to explain why certain provisions relating to marriages are drafted the way they are. And the final call, ultimately, is still for the courts to decide whether the distinction, the recognition and non-recognition of certain marriages, discriminates or not.
Woo: So Eugene, I've heard you use the word "elevate" a lot. Elevating the law, elevating the concept of heterosexual marriages. From my understanding, already in Singapore, we do not recognise same-sex marriage. So why is there a need to have this in the Constitution?
Tan: That is an excellent point. The laws only recognise heterosexual monogamous marriages in Singapore. And so, in that sense, one could say that no other types of marriages could be legally contracted in Singapore. But the argument for elevating the status or, to use a fairly big term, to constitutionalise the definition of the status of marriages in Singapore is essentially the view that we want to put this tradition understanding of marriages - monogamous, heterosexual union, on a firmer footing. But putting the definition of marriages into the Constitution also means that all other laws must conform with the definition of marriages in Singapore. And so what that means is that it would be difficult for parties who contract some other types of marriage, let's say they go to a country where they could contract a same-sex union. It would mean that Singapore will not recognise these marriages and as a consequence, these parties will not be entitled to certain rights, privileges and benefits that arise from marriages which are legally contracted in Singapore.
Woo: So our Law and Home Affairs Minister K. Shanmugam was reported to have said that the Government is looking at how to safeguard the current legal position on marriage. What does he mean by that?
Tan: I don't think he is at all suggesting that the current conception of marriages, a heterosexual monogamous union, is under threat in Singapore, but I think he made those remarks in the context of what's going to happen if we do repeal Section 377A of the Penal Code. For certain segments of Singapore society, they have regarded Section 377A as a sort of a high watermark, a sort of flag marker, of the values that Singaporeans hold dear. And do if you remove that flag marker, then the argument is that it may be necessary to replace that flag marker. And this is where the idea or the argument for constitutionalising the status of marriage comes in. So in trying to safeguard the status of marriage, I think it is now recognised in ordinary law, the Women's Charter. The only way to safeguard it even further, would probably require the definition of marriage to be given recognition, in one way or another in the Constitution.
Woo: Now, Eugene, you are a professor at a university, you engage with youths on a very regular basis. How do they view this whole issue?
Tan: I would say that among younger Singaporeans, I think they too would want for society to be less discriminatory. And if there is a concern that Section 377A promotes discrimination, and some of them do take that view, hopefully its repeal will help to remove some of the discrimination. But I think it is important to remember that repealing the law is not the silver bullet. It is a start, but removing discriminatory attitudes really is what each of us wants to do, what each of us feels, is the right thing to do. And it is how we treat others as well. So I would say that they are mindful about how 377A could discriminate, but I think they too are also very convicted that the traditional, or maybe traditional is not the right word, but the longstanding understanding of marriage, as being a monogamous union between a man and a woman, I think that still is something which many young people in Singapore still regard as being important for society. But they also recognise and I think, much as many in my generation too, recognise that, we can have the traditional, or the longstanding conception of marriages, coexisting with alternative sexual identities and orientations. And I think that, in many ways, is a measure of how society has progressed, but we still have some way to go. Hopefully, whatever accommodation that comes about through discussions with the different stakeholders, will be able to enable Singaporeans to go beyond what it is that divides us and to instead dwell on the commonalities that we have. And I think that's a better way to live and thrive.
K Shanmugam clarifies that Constitution will be amended to protect Parliament's right to define marriage[edit | edit source]
On Monday, 22 August 2022, one day after Prime Minister Lee Hsien Loong's announcement during his National Day Rally speech that Singapore would repeal Section 377A of the Penal Code which criminalised sex between men and that, to safeguard the institution of heterosexual marriage, the Constitution would be amended. Straits Times journalists Hairianto Diman and Tham Yuen-C interviewed Home Affairs and Law Minister K Shanmugam regarding what exact changes the Government had in mind[49],[50].
Shanmugam explained that the Constitution would be amended to make it clear that it was Parliament's prerogative to define marriage as being between a man and a woman and to make other pro-family policies on that basis. This was different from enshrining the definition of marriage in the highest law of the land, but would stave off legal challenges on the definition of marriage. The Government would move to safeguard marriage because as the law stood, marriage as it was currently defined could be challenged on constitutional grounds in the courts, just like Section 377A had been challenged. To guard against this, the Government was planning to explicitly state in the Constitution that Parliament could define the institution of marriage in the way it had been defined in the Women's Charter, and could make other pro-family policies on the basis of that definition. This would make it difficult to challenge the definition of marriage and the policies that relied on it. If this was not done, there was a risk that the definition of marriage could be challenged on the basis of being discriminatory under Article 12 of the Constitution, which guaranteed equal protection under the law.
He said: "It can be challenged, it can be asked... why should a marriage only be between a man and a woman? Why shouldn't it be possible for two men or two women to be married? Someone could argue that marriage policies are in breach of Article 12, and such arguments about marriage have been made elsewhere successfully." This would not just affect marriage, but also many of the other laws and policies built on the current definition of marriage as being between a man and a woman, such as policies on public housing, education and media policies. But such political issues should not be decided by the judiciary, but by Parliament. In fact, the intended amendment to the Constitution left open the possibility for Parliament to change the definition of marriage through a simple majority. While constitutional amendments required a two-thirds majority in Parliament to pass, changes to other pieces of legislation, including the repeal of Section 377A, required a simple majority. Shanmugam said: "This government's position is very clear and you've also heard what Deputy Prime Minister Lawrence Wong has said. We are committed to strengthening the current structure of marriage, strengthening the family structure and the policies that surround that structure of family. We think that's what is fundamental for Singapore. And in fact, we are amending the Constitution to strengthen their position." He added that any political party or group that wanted to push for same-sex marriage would be able to do so. "They will have to put that in their manifesto, fight elections, get a majority and then change the definition of marriage," he explained. Religious and conservative groups had called for some kind of guarantee that marriage between a man and a woman would be protected under the law if Section 377A was to go, and had asked for the definition to enshrined in the Constitution. Asked about this, Shanmugam replied: "I want to be clear because I think there's some confusion. The definition of marriage is not going to be in the Constitution. That's not the intention."
Same-sex marriage discussed during panel discussion on Tan Seng Kee v AG and Section 377A[edit | edit source]
On Monday, 26 September 2022, a panel discussion with Home Affairs and Law Minister K Shanmugam on the implications of Tan Seng Kee v AG was co-hosted by the Singapore Academy of Law and the Law Society of Singapore. The forum was moderated by Professor Lee Pey Woan, dean of Singapore Management University's Yong Pung How School of Law, [51],[52],[53],[54],[55]. The following video is a combination of the reports filed by The Straits Times and Asia One[56]:
Law academics and senior members of the legal fraternity said repealing Section 377A was the right move as there was a real risk of the law being struck down by the courts in a future legal challenge, and doing away with it through the democratic process in Parliament would be less messy. Also, the sheer existence of the law, even if it was not used, would continue to cause a societal rift between those who opposed the law and those who supported it.
In his opening address, Minister Shanmugam said that the apex court's decision in February 2022 suggested that Section 377A might be unconstitutional because the statute could violate Article 12 of the Constitution if a particular approach were taken to evaluate it. The court had also held that the three men who brought the case did not have locus standi, or standing, to challenge the law, since there was no real risk of prosecution under Section 377A. However, he noted that the court had limited itself to considering the lack of standing with regard to prosecution and not investigations by the police. This meant it was possible for the court to rule differently on the issue of standing in future, based on a different set of facts. Shanmugam also drew attention to the Court of Appeal's comments that politics seemed the more "obvious choice" than litigation for debating and resolving highly contentious societal issues. "Courts have said this is within the province of Parliament. That does not mean the courts are saying that they will not act. What they are saying is: 'We leave it to Parliament to go and do what is right'," he said. "In Singapore, things have worked because each branch does what is right and what is their duty. If there is a law in the books which is unconstitutional, what is the duty of Parliament? What's the duty of the Executive? To deal with it or to put on the helmet, go into the bunker and pretend that it doesn't exist because it's politically too divisive? That's not the way things work in Singapore. As such, one must do the right thing and not "duck". You don't say as other parliaments have said: 'Well, we leave it to the courts, hopefully they will deal with it.' If Parliament doesn't do what it has to do, then the courts will do what they don't want to do."
Agreeing with these points, Law Society president Adrian Tan and Singapore University of Social Sciences law school dean Leslie Chew said the judgment had made it quite obvious that there was a risk the law could be found unconstitutional in future. Tan pointed out that the Court of Appeal did raise "red flags", elaborating: "They were saying: 'Look, this time the legal challenge is not going to succeed. But next time, it probably will." He added that the broader question was how Singaporeans would prefer to effect change in society. When laws were changed through a litigious court process, it was messy and brutal with interconnected laws left hanging, but when they were changed through the democratic process in Parliament, related laws could be dealt with at the same time. Prof. Chew said the court was also not the best forum to decide on the extra-legal issues thrown up by the constitutionality of Section 377A, adding: "In Singapore, we... have not politicised many of our issues, and we should not because it really, properly belongs to the people, rather than the court, where at the end of the day, it's adversarial." He added that the outcome of cases was never certain, and things evolved, pointing out that the apex court was also not bound by its own decisions. "In our system ... it is your constitutional right to challenge. And if you look at the history of issues that have been thrown up by Section 377A, it dates back to somewhere around 2013, It has been a whole decade of every now and then, (there is) a challenge. So the risk is real," he emphasised.
National University of Singapore associate professor of law Jaclyn Neo said the Court of Appeal had significantly changed the test that it used to assess whether differential treatment of certain groups would violate the right to equal protection under the Constitution, adding that this had put Section 377A on more shaky ground. University of Hong Kong professor of law Michael Hor said that although the court had declared that the law could be used, it was only "half dead" and there were still other "zombie bits" that were "not quite dead yet". For instance, there may be other secondary offences such as abetment that may be predicated on the intention to commit offences under Section 377A, and it was not clear if these were bound by the current legal position. Prof. Hor also said "the societal and psychological damage" caused by the sheer existence of the law could not be ignored, and that it would continue to breed ill will against gay men and cause them to feel excluded and inferior.
During the panel discussion, Minister Shanmugam also touched on the decision to amend the Constitution to protect the definition of marriage, and emphasised that this was not a "compromise". "We're not in the business of compromises. We sat down and we looked at the Tan Seng Kee judgment and we asked ourselves: 'Where is our society?' And we also asked ourselves, 'What is fundamental in this society?'," he explained. "We said that the definition of marriage that exists today in the Women's Charter is something this Government is deeply committed to. And we believe that while many people will either not mind or will welcome the repeal of 377A, we don't think Singaporeans are ready for a major sea-change in the tonality of our society and the way our society is the day after."
In his remarks, Minister Shanmugam said the Government had four options to deal with Section 377A:
- do nothing
- amend the Constitution to prevent court challenges to Section 377A
- leave Section 377A alone and amend the Constitution to prevent court challenges to the definition of marriage, or
- repeal Section 377A and amend the Constitution to prevent court challenges to definition of marriage.
He said the Government had chosen to repeal the law and protect the definition of marriage, as it was the principled and right thing to do. He added that if Section 377A were struck down, the definition of marriage would likely be challenged, and the Government had assessed that society was not ready for such a sea change overnight.
Adrian Tan added that changing laws through the courts could be "messy", as most laws were interconnected. He explained: "There's basically two ways that society can change laws. There's a messy legalistic process, which is asking the court to review a law and there is a neat democratic process which is through the Legislature." He noted that litigation was an "appeal to law" rather than a consultative process, adding: "In a sense to me, the Tan Seng Kee case also puts a bigger question to Singaporeans: How do we want to effect change in society? Do we want to do it through our democratic process, or do we want to go to court and challenge laws that we don't like? When you change something through the court, it's quite brutal. The court is not probably going to say, when I strike down this law, I'm also going to look at 10 other laws that may refer to it. The court is just going to strike down that law, and then leave everybody else hanging. So my personal opinion is that that's a very messy way to effect change in society."
Prof. Hor asked why Section 377A and the definition of marriage were being treated differently, saying: "Section 377A might be struck down by the courts, so we repeal it first. Marriage definition might also be struck down by the courts, but we protect it... Why the different treatment?" He also suggested that "we should initiate public discussion on same-sex marriage", given that it was a "done deal" that the Government would repeal Section 377A. Elaborating on his point, he brought up what he said was a common argument against the recognition of same-sex marriage — that it would "somehow destroy the whole idea of traditional marriage", adding: "I just wanted to say that I don't buy that, because we do have different conceptions of marriage in existence already." Prof. Hor cited Muslim polygamous marriages as examples, questioning: "Why does that not destroy the monogamy of modern Muslim marriages? It hasn't yet. Both coincide, both accept, both tolerate, both include each other."
A relevant slide projected onto the background wall read:
The Marriage "Pasar Malam"
- 377A will be repealed.
- Because it is right vs because otherwise the court might strike it down?
- Unfortunate coupling with the proposed "marriage bargain"
- A constitutional ouster clause to prevent courts from reviewing the constitutionality of a marriage definition which excludes same sex marriage
- An ouster clause needed only if there is a strong enough case that the exclusion of same sex partnerships cannot be adequately/satisfactorily/legally/constitutionally justified
- What possible reason could there be to protect such a "suspect" provision? Political need to "compromise" vs the role of the law/ courts as a solution to "democratic dysfunction"
- The right thing to do:
- leave the Constitution alone.
- Initiate discussion on same sex marriage - dispassionately assess arguments for and against.
- The primary reason against - to preserve traditional marriage/family. In what way does same sex marriage/families undermine heterosexual marriage/families? We already have radically different conceptions of marriage - Muslim polygamy - why does that not destry or undermine non-Muslim monogamy?
In response to Prof. Hor's questions, Minister Shanmugam replied: "If Section 377A is a matter for Parliament, marriage is even more a matter for Parliament. If anybody wants to change the definition of marriage, if that's what Singaporeans want, somebody has got to organise themselves, put it on your manifesto, go into the general elections arguing that this is what you stand for, win the elections, change the law. That is how a democracy ought to work." He reiterated that the definition of marriage that exists today in the Women's Charter was "something that the government is deeply committed to", adding: "We believe that while many people would either not mind or would welcome the repeal of S377A, we don't think Singaporeans are ready for a major sea change in the tonality of our society, and the way our society is the day after." Shanmugam also pointed out Prof. Hor's arguments were one fundamental reason why many people who actually had a "live and let live approach" were opposed to the repeal of Section 377A because of the "further arguments" that may arise, such as the issue of the definition of marriage and adoption. He continued: "These are political issues, and this is why these matters ought to be dealt with in Parliament. This government is committed to this definition of marriage. We have given, in very clear terms, where we stand. The next Prime Minister has indicated where he stands, and his Cabinet stands. That's what we can say. And it will be debated in Parliament." Ending off his point, Shanmugam re-emphasised that "marriage is fundamental to our country". We believe that part of the reason Singapore is where it is, is because of the way our societal values have evolved, because of the importance we’ve placed on marriage, and we want to keep it."
At the end of the session, Singapore Management University professor of law Lee Pey Woan, who was the moderator, asked the audience of about 90 lawyers, law academics and students if anyone disagreed with the view that there was a real risk Section 377A could be struck down for being unconstitutional. The opinion was unanimous as no hand was raised.
Same-sex divorce in Singapore[edit | edit source]
Since same-sex marriage is illegal in Singapore, same-sex divorce cannot take place. However, gay couples domiciled together in long term relationships do break up. One way to protect both parties in the event of a dissolution of their cohabitation is to draw up a cohabitation agreement.
A cohabitation agreement is a contract drawn up by a couple who want to live together to protect themselves from unnecessary costs and litigation should their cohabitation break down. They can clearly regulate their property rights and what arrangements may be made for mutual financial support, dealing with debt, caring for children, etc. The agreement also, much like a prenuptial agreement, allows the individuals concerned to determine in advance who will keep specific assets and what will happen to assets that have been purchased jointly if they separate. This contract is intended to bind both parties.
While cohabitation agreements provide some level of certainty and clearly set out both parties’ intentions, the enforceability of such contracts in Singapore is still uncertain. It should also be noted that terms in the cohabitation agreement with respect to children, such as care and custody provisions, may potentially not be enforced by the courts at all as the child's welfare is a paramount consideration.
Cohabitation agreements are more likely to be enforced if the following basic elements of contract law, in particular, are addressed:
- The cohabitation agreement should demonstrate an intention to create legal relations
For contracts that are of a domestic nature, there is a legal presumption that parties do not intend to be legally bound by the terms of the contract. Therefore, it is important to show that both parties did intend this to be case, that is, they aimed to create legal relations. A cohabitation agreement can mitigate this by including a statement that reflects both parties' intention for it to be binding in court. This may help crystallise the parties' intentions which the courts may take into account.
- The cohabitation agreement must not be made under undue influence and duress
Contracts are not enforceable if there is undue influence or duress. It is advisable for both parties to consult separate and independent lawyers. Either party may draft the cohabitation agreement but both parties must have independent legal advice on the meaning and effect of the contract.
There still remains some legal uncertainty even if all the steps set out above are followed. A court may still decline to enforce the cohabitation agreement if it views the contract as illegal and against public policy. Case law remains ambiguous regarding this issue. The only case that remotely touched on this point concerned a joint bank account between two men in a same-sex relationship and whether the nature of the relationship between them affected the enforcement of a resulting trust. The lower courts ultimately determined it did not. However, the reasons for the court's conclusion have been difficult to discern. It is unclear if the High Court would come to the same conclusion, and whether it could be applied as a general principle to transactions between two men in a same-sex relationship. If the courts conclude that the cohabitation agreement is void, both parties would not be able to enforce their rights and obligations against the other.
When planning the drafting of a cohabitation agreement, the following steps should be considered:
- Listing prior assets
The couple should first make a list of all assets (e.g. real estate) and liabilities (e.g. debts) that they currently have prior to entering into the cohabitation agreement. Thereafter, they may choose to divide the property in a particular proportion in the event that they split up. Both parties may decide how to divide their assets and liabilities and these should be clearly set out in the contract.
- Deciding how to deal with future joint property
The cohabitation agreement may also deal with how the couple would deal with property that they may subsequently acquire during the course of their relationship. For example, clauses may be included to deal with how the purchase price of real estate would be paid, the proportion of legal and equitable ownership of the property, and consequential issues such as who will pay the mortgage and in what proportion. If they used [[Central Provident Fund]] money to finance the property, this may add another layer of complication.
- Ways to make changes
When the couple decide to make changes or to augment the executed cohabitation agreement, they may sign an addendum. The clauses of the contract should ideally be fluid enough to accommodate changes that may occur during the course of the couple’s relationship without having the need to frequently sign addenda to the cohabitation agreement.
- Clarity
The clauses and details of the assets should also be clear, unambiguous and described in full. Both parties may also choose to include specific details such as full addresses and plans of real estate, bank account numbers, trust fund instruments, or other details.
Couples who have made cohabitation agreements covering property, division of assets and guardianship of children under foreign jurisdictions may be concerned that Singapore courts will not recognise or enforce their contract. As such, their overseas lawyers may have included a clause stating that any disputes should undergo mediation first and, if not resolved, arbitration subsequently. Fortunately, in Singapore, apart from referring disputes arising from cohabitation agreements to the courts, mediation and arbitration are available as alternative dispute resolution methods.
- Mediation
Mediation is an alternative to arbitration. It is also a private process involving the couple and an independent mediator to help them reach a satisfactory settlement. A private mediation session may be arranged with a private mediator. Once parties have reached a settlement, a settlement agreement may be signed. The settlement agreement is a legally binding contract which can be enforced. However, if one party breaches the settlement agreement, the law remains unclear on whether the Singapore courts will give effect to the rights and obligations of parties in the settlement agreement and if so, to what extent. Anecdotally, there have been LGBT couples who underwent mediation with the assistance of their lawyers. However, the validity of a settlement agreement of a mediation between both members of an LGBT couple has never been tested in court.
In general, the courts are likely to uphold freedom of contract if the basic elements of a contract are met. Issues relating to property and division of assets may be less controversial, as compared to the parts of the settlement agreement or cohabitation agreement that deal with children and guardianship issues. The court will decide in the best interests of the child regardless of the terms of any agreement between the two parties. This is the basic principle in the Guardianship of Infants Act and the Women's Charter provisions on custody, care and control.
- Arbitration
The cohabitation agreement can incorporate an arbitration clause which would allow parties to refer disputes arising from the contract to arbitration. Arbitration is a process that is similar to the court process except that it is held in private and an appointed arbitrator sits in place of a judge. This is used primarily in commercial disputes, but may also be employed in non-commercial ones. The benefits of arbitration include confidentiality and the ability to appoint an arbitrator who has expertise in area of dispute. Arbitration can only take place with the consent of both parties, such as agreeing in a cohabitation agreement that both parties submit to arbitration in the event of a dispute. A good arbitration clause may contain, among other things, the location of the arbitration, the rules to be applied to the arbitration, the language used and the number of arbitrators.
For example, a couple could choose an arbitrator who specialised in LGBT law in a foreign jurisdiction. Normally, Singapore courts have to determine whether they are able to adjudicate the dispute and then decide on the relevant law to apply. Unlike the courts, an arbitrator is empowered to adjudicate disputes arising from the cohabitation agreement through the contract itself. A good cohabitation agreement would set out the relevant governing law of that contract.
At the end of the arbitration process, an “arbitral award” is made. This is essentially the decision of the arbitrator, akin to the judgment a judge would deliver in a normal court case. With the permission of the court, this arbitral award may be registered in the Singapore courts and enforced as though it were a court's judgment. It is unclear to what extent the Singapore courts would look into the substance of the arbitration award before granting such permission.
There is also a possibility that Singapore courts may set aside the arbitral award on the application of one of the parties of the cohabitation agreement on the basis that the award is contrary to public policy. The courts are unlikely to enforce an arbitral award if they deem the award not to be in the best interests of the child. It is also open to the court to decide that the issues relating to a child are not arbitrable.
Singaporean same-sex marriage in popular culture[edit | edit source]
Straight Acting[edit | edit source]
- Main article: Straight Acting (play)
In 2021, W!ld Rice staged a play entitled, "Straight Acting" at their theatre Wild Rice @ Funan. It was written by award-winning playwright Thomas Lim, who also penned Grandmother Tongue and Supervision. The production was a hopeful, heartfelt comedy about the drama of trying to keep things straight..when one was anything but.
Synopsis:
All Olivia and Jaime want to do is start a family and make a life together – something they can’t easily do in straight-laced Singapore. To make the system work for them, Olivia and Jaime get their gay best friends, Russell and Jia Ming, in on the act. Together, they pretend to be two happy, heteronormative couples living in wedded bliss. At first, blending a little fiction into the facts of their lives seems to go well. But things start to fall apart when Jia Ming’s mother visits unexpectedly. Suddenly, the four friends find themselves wondering: is living a lie really living at all?
Bitingly funny, moving and thought-provoking, Straight Acting boldly examined and redefined what home truths and family values meant in Singapore. The play made an eagerly anticipated return to the Wild Rice stage from 16 June 2022 to 2 July 2022[57].
Duration: approximately 1 hour 30 minutes (with no interval).
IMDA Rating: R18 (Homosexual Theme)[58]
Never the Bride[edit | edit source]
- Main article: Never the Bride
In January 2023, The Necessary Stage produced a play entitled, "Never the Bride". It was devised and performed by three queer Singaporean men: Fahdil Daud, Rajkumar Thiagaras (also the playwright) and Ryan Ang (also the choreographer)[59]. It was a Singaporean take on the desire for gay marriage, taking the form of scenes in a gamut of high-spectacle genres: realist film, high camp satire, allegorical drama, modern dance with shibari and kinky tea ceremony elements.
Reviewer Ng Yi-Sheng commented that it was odd - granted, there were moving, culturally rooted scenes, one of the favourites including Fahdil in a tanjak describing his dream big fat gay Malay wedding, while faces of homophobic preachers were projected on the kompang drums faster than he could beat them; two flamboyant guys celebrating a bad karaoke hen's night on the eve of one of them flying abroad to get married; a trilingual pantomime in which the Prince of Singapura sought a groom, only to be forced to cast his jasmine garland into the sea. But just as often, there were rather done-and-dusted discussions of the politics and philosophy behind gay marriage activism (heteronormativity, etc.), unrelated scenes portraying Grindr culture, fatphobia and the Wear White campaign, plus a rather unnecessary intro and even more unnecessary outro featuring a trio called the Pondan Sisters who framed the play in pseudo-Shakespearean language.
Ng was quite surprised to learn this was the second incarnation of the show, because it still felt cobbled together, missing 'new' ideas about gay marriage. Also, a very abstract notion of the concept, focussed on the longing for the idea, rather erasing the fact that there were already same-sex couples in Singapore who had been effectively or even legally married for over a decade. Still, there was something quite remarkable about the fact that the show straight-up showed video footage of men kissing in bed and envisioned Asian wedding customs adapted for same-sex couples.
The play followed hot on the heels of the repeal of Section 377A of the Penal Code in December 2022 and explored concepts of queerness after the historical event, which was essential, a casual jettisoning of yesterday's taboos. The LGBT community had a little more freedom.
See also[edit | edit source]
- Same-sex marriage
- Same-sex parenting in Singapore
- Child adoption by same-sex couples in Singapore
- Section 377A of the Singapore Penal Code
- ROM's marriage annulment after sex change saga
References[edit | edit source]
- "Singaporeans still conservative about certain social issues, says IPS survey", Channel News Asia, January 2014[60].
- Reena Devi, "I saw him among my audience: Actor-singer Caleb Goh on how he met his husband", Yahoo! News, 8 March 2018[61].
- Sylvia Tan, "Singapore newspaper called out for omitting gay power couple in Valentine's Day feature", Gay Star News, 14 February 2016[62].
- Jewel Stolarchuk, "Lee Hsien Yang, Lee Suet Fern and Li Shengwu were in attendance at Li Huanwu’s wedding", The Independent SG, 28 May 2019[63].
- https://dearstraightpeople.com/2020/09/10/joyce-qiuling-story/
- Same But Different: A Singapore LGBT Legal Guide For Couples & Families[64],[65].
- https://focustaiwan.tw/society/202111250018
- MOSG: Telling LGBTQ+ Couples Why They Shouldn’t Get Married:[66]
- https://www.channelnewsasia.com/singapore/377a-marriage-constitution-legal-definition-cna-explains-2861451
- https://www.straitstimes.com/singapore/community/st-explains-what-does-it-mean-to-constitutionalise-a-marriage-and-how-is-it-done
- https://www.straitstimes.com/singapore/politics/constitution-will-be-amended-to-protect-parliaments-right-to-define-marriage-shanmugam
Acknowledgements[edit | edit source]
This article was written by Roy Tan.