Divorce by Mutual Agreement in Singapore

The law on divorce in Singapore has recently been the subject of notable legal reform, with the introduction of Divorce by Mutual Agreement (DMA), which is expected to come into force shortly. This new law is set to have a significant impact regarding how married couples will approach divorce proceedings.

The new piece of legislation will create a new fact for married couples to rely upon to obtain a divorce. It essentially provides that couples will be able to agree to divorce each other without having to lay blame on either party.

The law was passed by the Parliament of Singapore on 10 January 2022 by way of the Women’s Charter Amendment Bill 43/2021. It had been expected that the law would come into force in 2023; however, to date, it has not yet been incorporated into the legislation. The law should, therefore, be coming into force very shortly, with a date to be announced in the Singapore Gazette.

Divorce by mutual agreement in practice

There will still only be one ground for divorce in Singapore, which is that the parties’ marriage has broken down irretrievably. Currently, the legislation sets out 5 ‘facts’ upon which the person applying for the divorce (i.e. the plaintiff) can rely on to demonstrate their marriage has, in fact, broken down and that it cannot be reconciled:

(1) Adultery

This fact can be relied upon if it can be established that:

1. the defendant’s spouse has had sexual intercourse with a person of the opposite gender; and
2. the plaintiff finds it intolerable to live with the defendant.

You may read our more detailed article on divorce due to adultery for more information.

(2) Unreasonable behaviour

Where the defendant has behaved in such a way that the plaintiff cannot reasonably be expected to live with the defendant.

(3)Desertion

Where the defendant has deserted the plaintiff for a continuous period of at least 2 years immediately preceding the filing of the divorce application (i.e. the writ).

(4) 3 years separation with consent

Where the parties have lived apart for a continuous period of at least 3 years immediately preceding the filing of the writ. The defendant must also agree to the divorce.

(5) 4 years separation

Where the parties have lived apart for a continuous period of at least 4 years immediately preceding the filing of the writ.

The DMA will, therefore, be the 6th fact for parties to rely on, giving them the option to sidestep the other fault-related grounds by agreeing to legally separate.

How is divorce by mutual agreement different?

The crucial distinction between DMA and the first three facts (1-3) is that it is a no-fault basis for obtaining a divorce. The fault-based methods, and in particular adultery, can be very difficult to prove. When relying on the first two facts (1&2), parties will often approach divorce proceedings in an antagonistic manner. The hope is that the introduction of DMA will discourage this type of approach.

The critical difference between DMA and the last two facts (4&5) is that it does not require the parties to have been separated for a set period before they can divorce.

The requirements for divorce by mutual agreement

The new law will not alter the requirement for parties to have still been married for a period of at least 3 years before they can file a writ for divorce.

If parties want to file for DMA, they will need to draw up a written agreement which sets out the following:

1. Why the parties consider that their marriage has broken down irretrievably;
2. Any attempts they have made to reconcile their marriage; and
3. The extent to which they have considered how their financial affairs and the arrangements for any children will be managed.

This agreement will need to then be filed with the court together with the writ for divorce.

The court must be satisfied that both parties intend to enter into the agreement, they have entered into the agreement of their own free will, and they have a full knowledge and understanding in respect of its terms.

The court will carefully review the written agreement when deciding whether to grant the divorce. If the court is not convinced by the agreement that the marriage has, in fact, irretrievably broken down, it may order the parties to attend mediation or counselling instead. Parties may wish to instruct a lawyer to assist them in preparing the agreement. This would give them the best chance of their application succeeding.

Why has divorce by mutual agreement been created?

The intention behind this new law is to avoid situations where spouses must attribute fault to each other to obtain a divorce. However, the parties are still required to provide reasons for the breakdown of their marriage. There is, therefore, a risk this could result in the parties laying blame regardless.

However, it is essential for parties to be aware they can both take responsibility for the deterioration of their relationship. The agreement should stipulate what is applicable to the couple. However, there are several reasons which can be stated that do not involve attributing fault to one party. For example, some couples may have simply grown apart, whilst others may be continuously arguing. Some may have such fundamental differences in terms of their values and cultures that it is preventing the marriage from working. These are all reasons which can be included in the parties’ written agreement.

Reconciliation

The new law will also include a provision stating the court cannot grant a divorce based on DMA if it believes there is a possibility of the marriage being reconciled. Therefore, the parties will need to provide evidence to show there is no prospect of reconciliation. Again, this will vary depending upon the couple, but the parties may state, for example, that they have not been affectionate with each other for several years.

If the court considers that there is any possibility of reconciliation, it has the power to order mediation or counselling to see if the parties can work through their marital issues. 

What are the benefits?

Many consider the original 5 facts for divorce are outdated, and the breakdown of a marriage does not have to be dependent on one party being to blame. Having to rely on a fault-based system only encourages hostility in an already fraught situation, and separating couples should be encouraged to be amicable wherever possible. Avoiding blame will also reduce the risk of the parties’ children being caught up in their disputes.

Additionally, spouses should not have to feel trapped in a marriage simply because they cannot establish any of the other five facts. The current law requires parties to remain married for at least 3 years before they can file the writ for divorce, which can have a detrimental impact on both the parties and any children they may have. Separated spouses should have the opportunity to move on with their lives if their marriage has indeed broken down.

The new law will provide parties with more autonomy over their marital circumstances, allowing them to approach divorce proceedings cooperatively, and on a no-fault basis.

There are some concerns that DMA will make it too easy for parties to get divorced, thereby undermining the institution of marriage. However, it is hoped the new law will strike the appropriate balance, as parties must still wait 3 years to apply, and additional safeguards will be put in place to encourage reconciliation wherever possible.

In conclusion

To conclude, although Divorce by Mutual Agreement has not yet come into force under Singaporean law, its introduction should soon be expected. Parties who are considering getting divorced should seek legal advice from a family lawyer in terms of their options. Many spouses will want to weigh up whether it is in their interest to wait for this law to take force before proceeding with their application.