Divorce Due to Adultery

In Singapore, adultery is only a ground for divorce if you can satisfy the court that the adultery caused an irretrievable breakdown of the marriage, and you find it intolerable to live with your spouse after the adultery.

Section 95 of the Women’s Charter stipulates the sole ground for divorce in Singapore is the irretrievable breakdown of the marriage. Adultery is one way to prove your marriage broke down irretrievably. If the court is satisfied that the circumstances make it just and reasonable to do so, it will grant a divorce based on the irretrievable breakdown of the marriage.

This article will explore adultery as a ground to prove the irretrievable breakdown of the marriage. We will look at what constitutes adultery, how to prove adultery, and when the court will not grant a divorce based on adultery. We touch on whether proving adultery will impact ancillary orders and explain your options if you cannot succeed in proving adultery.

What is adultery?

Adultery means voluntary sexual intercourse with a person who is not your spouse. For the behaviour to be adultery, there must be consensual sexual penetration.

How do you prove adultery?

To succeed with a claim of adultery, the plaintiff must prove:

1. The defendant committed adultery.
2. The adultery made it intolerable for the plaintiff to live with the defendant.

Proving adultery can be tricky. The defendant is unlikely to confess, and finding direct evidence of sexual penetration is usually very difficult. Often, you will need the services of a private investigator to gather direct evidence.

The court requires proof of adultery on a balance of probabilities, meaning you can also succeed if you can present sufficient evidence that sexual intercourse likely occurred.

However, the burden of proof remains high. In the absence of a confession or direct evidence of penetration, you can rely on circumstantial evidence such as hotel room or restaurant bookings, intimate photographs, text messages, notes, or emails to establish that intercourse occurred on the balance of probabilities.

You can also use witness statements of people who saw the “couple” together in circumstances that imply an extramarital affair. However, evidence of mere kissing or embracing is not evidence of sexual intercourse and adultery. Such evidence can, however, strengthen your case and be indirect evidence to support your claim of adultery.

When a child is born from an extramarital affair, DNA evidence will be solid evidence of adultery.

Proving adultery alone, however, is not sufficient. Under sec 95(3)(a) of the Charter, the plaintiff must satisfy the court that the defendant committed adultery and that the plaintiff finds it intolerable to live with the defendant due to the adultery.

The burden of proving the adultery made it intolerable to live with the defendant is lighter than proving adultery. Once adultery is proven, the court is likely to find that the plaintiff finds it intolerable to live with the defendant.

If the court finds the circumstances make it just and reasonable to grant a divorce, it will do so if adultery is proven.

In deciding whether it is just and reasonable to grant a divorce, the court will consider all the circumstances, including the parties’ conduct and how the divorce will impact the interests of any children from the marriage.

When will the court not grant a divorce based on adultery?

Section 95(5)(b) states that if the plaintiff remained living with the defendant for six months or more after finding out about the adultery and failed to file a claim for divorce within six months, the plaintiff can no longer rely on adultery as a ground to prove irretrievable breakdown of the marriage.

However, the court will not consider any period less than six months that the couple remained living together when deciding whether the plaintiff finds it intolerable to live with the defendant.

If you wait longer than six months to file for divorce, you cannot rely on adultery anymore.

You cannot use your own adultery to file for divorce. The Women’s Charter stipulates that the plaintiff must satisfy the court the defendant committed adultery and the plaintiff finds it intolerable to live with the defendant.

What can you do if you cannot prove adultery?

Suppose you decided to forgive your spouse or tried to make the marriage work after adultery, and six months went by. You then realise your marriage has broken down irretrievably. In such a case, section 95(5)(b) prevents you from relying on adultery as a ground for the irretrievable breakdown of the marriage.

However, section 95(3)(b) provides an alternative. If you can prove that your spouse behaved in such a way that you cannot reasonably be expected to live with them, the court may hold that the marriage has broken down irretrievably and grant a divorce.

Unreasonable behaviour is a valuable alternative if you cannot prove adultery, or you are too late to file based on adultery.

The Act does not define what would be unreasonable to live with. It is a subjective test, and the court will consider many factors when deciding if a spouse can be reasonably expected to live with the other.

In the past, the courts have held many types of behaviour as unreasonable.

Examples include:

• emotional neglect
• constantly arriving home late without a valid explanation
• domestic abuse
• spending money irresponsibly

So, suppose you cannot find conclusive evidence of sexual intercourse. In that case, your best option might be to file on the basis your spouse is behaving in such a way that you cannot reasonably be expected to remain living with them.

The defendant’s behaviour in relation to the “adulterous” relationship may be sufficient to establish unreasonable behaviour. You do not need to prove adultery; all you need to prove is that the defendant’s conduct makes it unreasonable to expect you to live with them.

Section 94 restriction on filing for divorce during the first three years of marriage

Section 94 stipulates that no one may file for divorce within three years from the date of marriage. This restriction complicates the situation where you are not married for three years, but you only have six months to file for divorce based on adultery.

The court will only grant a divorce before three years if the plaintiff can establish that they suffered exceptional hardship, or exceptional depravity on the part of the defendant.

If you want to file for divorce within three years of your marriage, you should consult with an experienced divorce lawyer to find out if your circumstances fall into one of these exceptional categories.

If so, you can approach the court for permission to file for divorce under section 94(2).

Does adultery affect maintenance, division of marital property, and custody of the children?

Adultery does not mean a better deal when it comes to ancillary matters.

Regarding ancillary orders, the grounds for divorce make no difference. The court will assess the situation on a case-by-case basis and order whatever is just and equitable in the circumstances.

“Fault” is not a factor in Singapore divorce law. Therefore, adultery, on its own, will not affect ancillary matters.

To decide on the division of marital property, the court follows section 112(2) of the Women’s Charter. The court will make an order it thinks is just and equitable.

When it comes to child custody and the welfare of the children, the best interest of the children is paramount. If the adulterer is a good parent, the court will not hold the adultery against the party.

However, suppose the party is a serial adulterer or lives a promiscuous life that could negatively influence the child’s welfare or moral upbringing. In that case, the court can take that into account.

Is adultery a crime in Singapore?

No, adultery is not illegal in Singapore – neither the adulterer nor the third party is committing a crime.

Who will pay for the divorce proceedings?

Cost orders are entirely up to the court. The court may order the defendant to pay for the divorce proceedings and additional costs to prove adultery, for example, the cost of a private investigator.

However, it is always at the court’s discretion.

Seek legal advice

Meeting the burden of proof can be challenging in adultery cases. If you want to file for divorce based on adultery, you should seek legal advice from an experienced divorce lawyer.

If your case lacks conclusive evidence, or you think it might be challenging to meet the high burden of proof, a good divorce lawyer can help you navigate your options and decide on the best way to proceed in your case. Your lawyer may suggest filing on an alternative ground for divorce.

If you decide to proceed with adultery, an experienced lawyer will assist in preparing a solid case with conclusive evidence of adultery.

Divorce lawyers understand the law and how the court interprets the law and can guide you to the best outcome for your case.