Can you get a Divorce in the Singapore Family Justice Courts?
If you are thinking about getting a Divorce for your Civil Marriage in Singapore, you must first find out if the Singapore Courts have authority to handle the case before you can actually start a Divorce action in Singapore. Muslim Marriages according to Syariah Law are controlled by separate rules.
For the Singapore Courts to have authority to handle actions for Divorce, you or your spouse must satisfy 2 conditions:
- You must be “domiciled” in Singapore at the start of Divorce proceedings, meaning that you’ve treated Singapore as your permanent home OR that you’ve been habitually resident in Singapore for a minimum of 3 years immediately before Divorce proceedings are started.
- You must have been married for at least 3 years. However, the Court has the choice to waive this requirement in cases of unbearable hardship or exceptionally cruel behaviour.
Getting a Divorce is very different from getting your marriage Annulled. A Divorce dissolves and terminates the existing marriage but an Annulment “erases” the marriage by declaring that the marriage never technically existed and was never valid.
Although, you do not need to have been married for at least 3 years to get an Annulment, the Court only grants an Annulment in very limited situations. Usually, an Annulment is easier to obtain at an earlier time in the marriage.
There are 2 key phases in Divorce proceedings for a Civil Marriage:
- Phase 1 involves the dissolution and termination of the Civil Marriage.
- Phase 2 involves setting out how the persons will deal with all other Ancillary Matters (meaning additional and supplementary matters regarding Custody, Care and Control, Access of Children, Dividing Matrimonial Assets & Properties and Maintenance payments for the Wife and Children).
In Phase 1, the person applying for the Divorce must prove to the Court that there’s a basis to allow a Divorce. According to Singapore Divorce and Family Law, a Divorce can only be allowed by the Court when there’s proof of the irretrievable breakdown of the marriage.
You can prove the irretrievable breakdown in the marriage may by showing that any one of the following events has taken place:
1. Adultery: This means that your spouse has committed adultery (meaning voluntary sexual intercourse between a married person and a person who is not their spouse) and you now feel that it is intolerable to live with your spouse. Adequate evidence is required to prove the Defendant’s act of adultery. You may want to engage a private investigator to obtain evidence showing your spouse’s adultery.
2. Unreasonable Behaviour: This means that has behaved in an unreasonable manner that the Plaintiff feels that it is now impossible to continue living with the Defendant. Some examples of unreasonable behaviour include the following:
- Domestic violence and physical abuse
- Verbal, emotional and psychological abuse
- Compulsive gambling
- Alcoholism and other addictive or obsessive behaviour with an unhealthy, negative or destructive impact on the wellbeing of the family unit
- Improper association with another person e.g. having a girlfriend or boyfriend outside of the marriage
3. Desertion: This means that your spouse deserted and abandoned you for at least 2 years and shows no intention or indication of returning.
4. Separation: This means that you and your spouse have lived apart and maintained separate households in practice and fact. You need to be separated for at least 3 years if both you and your spouse agree to using Separation as the basis for Divorce – this is also known as Separation with Consent. If your spouse doesn’t agree to using Separation as the basis for Divorce, then you need to be separated for at least 4 years – this is also known as Separation without Consent.
Proving the events relating to the irretrievable breakdown of your Marriage will be a question of fact that the Court will consider in Court. This means that you will need to prove your version of events based on evidence if your spouse contests, challenges or disagrees with your claims. A Contested Divorce and Trial can be long-drawn-out process and requiring you and your witnesses to give evidence during Court sessions and hearings after which the Court will make a decision and deliver its judgment.
If you and your spouse agree and do not contest that the irretrievable breakdown of your marriage has occurred, then this phase of the divorce process doesn’t need to involve a trial.
Will you get a better or more favourable outcome if your spouse caused the breakdown of the marriage and is the party “at fault” for causing the Divorce?
This is a very common question asked by people thinking about getting a Divorce.
It’s important to know that according to Singapore Divorce and Family Law, the Court generally does not consider the reasons for the Divorce and breakdown of the marriage when it decides on how to handle the Ancillary Matters. That’s why in reality there may not any or much advantage you can gain by proving that your spouse was “at fault” or “responsible” for causing the Divorce. If you are represented by a Divorce Lawyer, he would be able to tell you more about whether the breakdown of the marriage will affect the Court’s handling of the Ancillary Matters in your Divorce.
After the Court is convinced that your marriage has irretrievably broken down (for example if this was agreed and consented to by you and your spouse or if you managed to successfully prove this through a trial), the Court will issue an Order known as an Interim Judgement to dissolve and terminate the marriage, after which the Divorce proceedings will proceed to Phase 2 and Ancillary Matters.
In Phase 2, the Court will look at how to handle the Ancillary Matters regarding 3 issues:
- Children, meaning who will get Custody of the Children, Care and Control of the Children, and Access to the Children.
- Maintenance of the Wife and Children
- Division of the Matrimonial Assets and Properties
When it comes to Ancillary Matters regarding Children, there are 3 main issues that the Court needs to decide:
- First, Custody of the Children.
- Second, Care and Control of the Children.
- Third, Access (or Visitation Rights) to the Children.
Custody of the Children does not mean giving the rights to the parent who will get physical custody. Custody in this context doesn’t only mean daily, physical custody. In Divorce proceedings, Custody of the Children relates to the overall authority to make major and important life decisions for the children, for example, choices regarding their education, schooling and choice of school, what religion they choose or are exposed to, whether they can receive specific medical treatment and whether they can migrate or relocate to live or study overseas.
Generally, if you and your spouse cannot agree on how to deal with the issue of Custody, then the Court will often give both parents Joint Custody of the Children.
Care and Control of the Children relate to which parent will be given the rights and responsibility of being the main caregiver on a day-to-day basis. This means that the Children will mainly live with the parent who has been granted Care and Control, for example from Monday to Friday whilst attending school.
Access of the Children is the rights given to the parent who was not granted Care and Control of the Children. Access of the Children effectively means the visitation rights that the parent will have, meaning that the parent will have the right to spend time with the Children either on an unsupervised or basis depending on the circumstances of the Divorce and family situation. The terms of Access can also be very specific and clearly defined or they can be very general and cover a broad range of situations.
Maintenance is the payment that the husband must pay to the wife and parents must pay for their children. Generally, a husband is required by law to provide financial maintenance (meaning support) for his wife during and after the marriage, and parents are likewise required by law to provide financial maintenance for children of the marriage during and after the marriage. Although a court will often order that a father pay maintenance for children of the marriage, it may not order a husband to pay maintenance for the ex-wife in some situations such as very short marriages or where the wife is financially independent and self-sufficient.
In a Divorce, you and your spouse are allowed to decide and agree on the amount of maintenance that needs to be paid to the wife and children. If you and your spouse cannot agree, the Court will decide on the amount after assessing many factors including the standard of living enjoyed during the marriage, current and forecasted future income, the duration and length of the marriage and household expenditure which are proven in Court through documents and evidence in support of the claims made by you and your spouse, for example, bank statements, medical bills and expenses, spending on the children’s education and enrichment activities.
The Division of Matrimonial Assets and Property is an issue that can be decided by agreement or consent between you and your spouse or by the Court if you and your spouse are unable to agree.
If the Court needs to decide on this, it will assess both direct (financial) contributions and indirect (non-financial) contributions to the assets by taking into account a wide range of factors which must be supported by documentary and other evidence:
Examples of these factors are:
- What were the contributions made in terms of money, property or work towards buying, improving or maintaining the matrimonial assets?
- What debts or payment obligations were incurred or undertaken by you and your spouse for the joint benefit the couple or children?
- What are the needs of Children?
- What are the contributions made by you and your spouse towards the welfare and wellbeing of the family, such as looking after the house and caring for family members?
- Did you and your spouse make any pre-nuptial agreement for a potential Divorce regarding the ownership and division of the matrimonial assets?
- Is there any period of rent-free occupation or other exclusive benefit enjoyed you and your spouse in the matrimonial home?
- Did you and your spouse give any crucial, special or exceptional assistance or support which was important in helping one of you successfully carry out your occupation or business?
What exactly is an “Uncontested Divorce” or “Simplified Divorce”?
These refer to cases in which a Divorce and the terms for the Divorce phase or Ancillary Matters phase have been agreed and consented to by the couple, meaning that it is not contested, which therefore makes it the process “uncontested”.
In many cases, a Divorce can take place on an uncontested basis if:
- You and your spouse agree that the marriage has irretrievably broken down and both of you are willing to dissolve the marriage
- You and your spouse agree on the reason for the irretrievable breakdown, such as Separation after 3 years, and therefore no one is challenging the basis for the Divorce
- You and your spouse understand that neither of you is “at fault” for the Divorce and neither of you will gain any advantage by showing that the other party is to “blame” for the Divorce
- You and your spouse want a quick, smooth and stress-free Divorce because you feel that this will help you avoid causing more unhappiness amongst the Children and it is better for their emotional wellbeing
- You and your spouse feel that it is financially unwise and imprudent to spend too much money, time, effort and resources fighting through a trial i.e. because a Contested Divorce and trial tends to be expensive for everyone
- Although you and your spouse may not be able to agree on all the terms of the Divorce at the start, mediation and negotiation with the assistance of the Court or a Court-appointed mediator can help to successfully resolve and reduce areas of dispute and disagreement and bring your respective positions closer towards a compromise and leading to a Divorce on an uncontested basis.
Do you need to engage a lawyer to handle your Divorce?
Sometimes, people decide to carry out the Divorce process on their own without hiring a lawyer because they feel that this will help them save money.
However, many people often are unaware that the Court will expect you and your spouse to comply with all the formal rules regarding the formal and technical process of applying for the Divorce through the Family Justice Courts. This means that you will need to prepare all the Court papers and documents and communicate with the Judge at Court sessions (whether in writing legal arguments or presenting oral arguments) according to the same rules as a lawyer. In short, although the Judges and staff of the Family Justice Courts are patient and understanding and will try to guide you during your case if you are not represented by a lawyers, you must remember that Judges and staff of the Family Justice Courts cannot and will not give you any legal advice for your Divorce case, meaning that they cannot discuss your options or suggest and plan your next steps with you.
If you decide to apply for a Divorce, there are many Court papers and documents that you will need to prepare and submit to Court, for example:
- Writ of Summons
- Statement of Particulars
- Statement of Claim
- Proposed Parenting Plan
- Proposed Property Plan
- Acknowledgement of Service
- Memorandum of Service
- Affidavit of Assets and Means
- Affidavits of your witnesses
- Submissions (i.e. written legal arguments) for the Court
If you know or feel that your spouse will challenge and contest any part of the Divorce or Ancillary Matters (e.g. Custody, Care & Control, Maintenance for the Wife and Children and the Division of Matrimonial Assets and Properties), then you must be prepare that the case is likely to become complex and long-drawn-out and you should therefore carefully consider whether you can and should engage an experienced Divorce lawyer to advise you, explain to you your options as well as help you decide, plan and carry out the next steps in your case.
In terms of the process and timeline of a Divorce, here is a typical example of how a Divorce can proceed:
- To start the Divorce process and apply for a Divorce to dissolve the marriage, you must file and serve (deliver) the Writ of Summons and Statement of Claim on your spouse. Your spouse must decide within 8 days if he is going to challenge or contest the Divorce (based on the terms you have stated in your Divorce application papers).
- If your spouse decides to contest the Divorce, he must file 2 documents in Court – the Memorandum of Appearance and the Defence. The Memorandum of Appearance is meant to acknowledge that he will be participating in the Divorce and Court process and the Defence is to meant to summarise your spouse’s key responses to the claims you have stated in your Divorce application and Statement of Claim.
- Quite often, you and your spouse will and should discuss and communicate with each other to try to reach an amicable settlement before allowing the Divorce to go towards a heavily contested and bitterly fought dispute and trial. There will be opportunities to do this through the Resolution Conference conducted and facilitated by a Family Resolutions Judge and also through Counselling Sessions conducted and facilitated by a Court Counsellor.
- If cannot settle your differences and reach a compromise or settlement, the Divorce case will move towards a Trial where a Trial Judge in Court will assess evidence presented by you and your spouse in support of the respective claims made by you, for example, your claim that the marriage has irretrievably broken down and your spouse’s denial of this.
- If your spouse chooses not to challenge or contest your Divorce application and only intends to challenge or contest the Ancillary Matters, your spouse must file the Memorandum of Appearance to point out the Ancillary Matters he intends to challenge without filing a Defence.
- If the Court confirms and agrees that there is enough evidence to show that the marriage has irretrievably broken down, the Court will grant an Interim Judgment which is a Court Order that dissolves the marriage and the case then moves into the next stage for the Court to decide on how to handle the Ancillary Matters.
- To help the Judge and Court properly assess the case and decide on how to handle the Ancillary Matters in a fair way, you and your spouse must file your Affidavits of Assets and Means. These are sworn statements in which you and your spouse must clearly state and detail all important information relating to your respective assets and financial responsibilities such as your salary and sources of income and your expenses. You will have an opportunity to respond to and reply to the claims made by your spouse in their Affidavits by giving your own clarification and explanation in reply Affidavits. If you need to get important information from your spouse relating to their assets and financial responsibilities in order to prepare your own Affidavit, then you may be able to apply for the Court’s help (through a process known as Discovery) to order that your spouse share and disclose the requested information with you.
- If the total net value of the matrimonial asset(s) that you and your spouse are dealing with is more than $5 million, then your Divorce case will be moved to be handled in the High Court.
- After the filing and exchange of the Court papers and Affidavits, the Court will schedule the case to be heard on a particular date and Court session to handle the presentation of the arguments and evidence for the Ancillary Matters.
- After the Court has assessed the evidence and arrived at a final decision on the issues in the Ancillary Matters, you and your spouse must wait for 3 months (from the earlier date that the Court granted the Interim Judgment) before you can apply for a Final Judgment which formalises and converts the terms earlier stated in the Interim Judgment.