Jurisdiction and eligibility
Before divorce proceedings can be commenced, the first consideration is whether the Singapore Court has jurisdiction over the matter. In order for the Singapore Courts to have jurisdiction to hear proceedings for divorce, either of the parties:
- Has to be domiciled in Singapore during the commencement of divorce proceedings; or
- Habitually resident in Singapore for a minimum of 3 years immediately before divorce proceedings are commenced; and
In addition, the parties must have been married for a minimum of 3 years. Although the Court has the discretion to depart from this requirement, it rarely ever does so except in cases where there has been unbearable hardship or exceptionally cruel behavior.
Please note that getting a divorce is quite different from getting an annulment. A divorce is where an existing marriage is dissolved, whereas in the case of an annulment, technically the marriage did not take place. There is no requirement of having to be married for at least 3 years before a marriage can be annulled. On the contrary, an annulment is usually more likely to be granted at an earlier point in the marriage than later. However, an annulment is only granted by the Court under very specific circumstances.
Note: If you were married under Muslim Law, the previously mentioned requirements do not apply to you. Please check on how to divorce under the Muslim Law instead.
Two stages in a divorce
There are two main stages in a civil (i.e. non-Muslim) divorce in Singapore:
Stage 1: The dissolution of the marriage
Stage 2: Ancillary Matters (matters regarding custody of a child, division of matrimonial properties and maintenance)
Stage 1- Dissolution of marriage
The party seeking to get a divorce must establish the ground for divorce. Under Singapore law, the sole ground for divorce is the irretrievable breakdown of the marriage. Irretrievable breakdown in the marriage may be proven by proving that any one of the following reasons has occurred:
- Adultery: The Plaintiff finds it intolerable to live with the Defendant due to the Defendant has committed adultery. Adequate evidence is required to prove the Defendant’s act of adultery. The Plaintiff may hire a private investigator to gather evidence.
- Unreasonable behavior: The Defendant has behaved in an unreasonable manner that the Plaintiff finds it impossible to continue living with the Defendant.
- Desertion: The Defendant deserted the Plaintiff for a minimum of 2 years where the Defendant shows no intention or sign of returning.
- Separation: The parties have either agreed to live apart for 3 years or failing which, have lived apart for at least 4 years.
Whether or not the above situations have been proven will be a question of fact that has to be proven in Court and trial if challenged by the other party. A trial is a lengthy process involving the production of witnesses, hearings, and ultimately a judgement by the Court. If parties agree that irretrievable breakdown has occurred for any of these reasons, then a trial will not be necessary.
It is important to note that under Singapore law, the reasons for the breakdown of the marriage are usually notconsidered by the Court when deciding on the ancillary matters. There may be no or little advantage to be gained by either party proving that the other party has been “wrong” or “immoral”. Your lawyers would be able to advise you where the breakdown of the marriage may affect the ancillary matters.
If the Court is satisfied that the marriage has broken down irretrievably (whether proven in trial or by consent between parties), it will grant an interim judgement to dissolve the marriage, whereupon the divorce proceedings will proceed to stage 2 – Ancillary Matters.
Stage 2- Ancillary Matters
The ancillary matters to a divorce deal with the following three issues:
- Care and control, and custody of children including access to children
- Maintenance of Wife and/or children
- Division of matrimonial assets
There are three issues to be decided in relation to the children of a marriage:
- Custody; and
- Care and Control
Custody of the children generally relates to the making of the major life decisions of the children, such as education, religion, medical treatment, or migration/relocation. As a general rule, if parties are unable to agree on custody, the Court tends to award joint custody to both parents.
Care and control refer to the main caregiver to the child and the parent whom the child will primarily live with after the divorce.
Access is given to the parent who does not obtain care and control. Access can come in many forms such as supervised, reasonable, liberal etc.
A husband is generally obliged to maintain both his wife and children (generally up to the age of 21) during and after the marriage. Whilst maintenance for children of the marriage is required, maintenance for a former wife may not be required in certain circumstances including short marriages or where the wife is earning well.
In a divorce, parties are free to agree on the amount of maintenance that is to be provided to the wife and children. If parties are unable to do so, the Court will make a finding, based on a number of factors, such as the standard of living enjoyed by the parties during the marriage, parties’ income (current and projected future), the length of the marriage, household expenditure, etc.
In establishing the above factors in Court, each party will have to produce the relevant proof of their contributions, such as by way of bank statements, invoices, etc.
Division of matrimonial assets
Upon a divorce, the matrimonial assets (which are defined in law and may not include a matrimonial home acquired by inheritance) are to be divided amongst the parties, having regard to the direct (i.e. monetary) contributions to the acquisition of that asset, as well as indirect contributions, such as:
- the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets;
- any debt owing, or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage;
- the needs of the children (if any) of the marriage;
- the extent of the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party;
- any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce;
- any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party;
- the giving of assistance or support by one party to the other party (whether or not of a material kind), including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business;
In establishing the above factors in Court, each party will have to produce the relevant proof of their contributions, such as by way of bank statements, invoices, contracts etc.
Sometimes, you may hear of what are described as “uncontested divorces” or “simplified divorces”. This is a situation where parties have agreed to the reason for the divorce, as well as all the ancillary matters described above.
From our experience, most divorces are uncontested for the following reasons:
- Trial only takes place where there is a dispute of fact, for example, whether adultery took place.
- A trial is expensive, both in terms of time and money.
- No advantage is gained by proving that the other party is “wrong” during the dissolution of marriage.
- Parties get along or want to try for the sake of their children.
Even where parties are initially unable to agree on the terms of the divorce, the Singapore Courts tend to discourage divorce litigation. Thus, even when parties commence divorce proceedings on a contested basis is it is common for the Courts to direct that parties attend mediation at an early stage of the proceedings.
With the aid of a mediator, most contested proceedings can be eventually resolved on an uncontested basis. For more detailed information you can read our article on uncontested divorce here.
Role of lawyers
You may wish to file a divorce without hiring a lawyer in order to save costs. However, do note that you are still subject to the procedures, formalities, and technicalities of the court proceedings. The court will treat you the same as the one who was represented by a lawyer and the Family Justice Courts will not provide legal advice for any divorce cases
An example of documents you would have to file to simply commence divorce includes:
- Writ of Summons
- Statement of Particulars
- Statement of Claim
- Proposed Parenting Plan
- Proposed Property Plan
- Acknowledgment of Service
- Memorandum of Service
There will be more documents to file if matters remain contested such as the Affidavit of Assets and Means and Submissions for the Court.
Please be advised to seek help from a divorce lawyer, especially if you can foresee that your spouse is going to contest the divorce or what the ancillary matters as the contest may lead to complicated and prolonged court proceedings.
Step 1: Dissolution of Marriage
After serving the above-mentioned documents on the Defendant, the Defendant gets 8 days to decide whether to contest the divorce.
If the Defendant decides to contest the divorce, the Defendant is required to file 2 types of documents as follows:
- Memorandum of Appearance;
Before the parties’ trudge into the court trial, which can turn out to be a bitter battle, parties can try to reach an amicable settlement by the following alternatives:
- Resolution Conference with a Family Resolutions Chambers’ judge;
- Counselling Session with a Court Counsellor.
If such alternatives cannot resolve the divorce case in an amicable manner, the divorce case will be transferred to the court for Trial. The court will examine whether the marriage has irretrievably broken down.
However, if the Defendant decides not to contest the divorce, but intends to challenge the ancillary matters, the Defendant should file the Memorandum of Appearance to highlight the ancillary matters he/she intends to challenge without a Defence.
If the court concludes that the marriage has irretrievably broken down, the court will grant an Interim Judgment, which is an order to dissolve the marriage. The court then proceeds to decide the ancillary matters.
Step 2: Ancillary Matters
Before the court decides on the ancillary matters, both parties must file the document of Affidavits of Assets and Means. The parties shall disclose all assets and liabilities, earnings and expenditure in their affidavits. The parties may exchange their affidavits for a maximum of 2 times. There may also be discovery proceedings during this time.
If the total net value of the matrimonial asset(s) is exceeding SGD 5 million, the divorce case will be transferred to the High Court.
After the filing and exchange of documents, the court will set a date to hear the ancillary matters.
After the settlement of all ancillary matters, parties are required to wait for 3 months (from the date of Interim Judgment is granted) in order to apply for converting the Interim Judgment to become Final Judgment.