Divorce Procedure and Requirements

Eligibility and Jurisdiction

Prior to commencing divorce proceedings, it is necessary to consider whether the Singapore Court has jurisdiction over the matter. In order for the Singapore Courts to have jurisdiction over the hearing of divorce proceedings, one or both of the parties:

1. Must be domiciled in Singapore when divorce proceedings commence
2. Must have been habitually resident in Singapore for at least 3 years immediately before the divorce proceedings are begun

Furthermore, the parties are required to have been married for at least 3 years. The Court does have the discretion to depart from this rule, although it rarely does so unless there has been unbearable hardship or behaviour of an exceptionally cruel nature.

Please remember that getting a divorce is different from getting an annulment. A divorce means that an existing marriage is dissolved, whereas an annulment means that technically speaking, the marriage never happened in the first place. For an annulment, there is no minimum requirement of 3 years of marriage. Instead, an annulment is more likely to be granted much earlier on in the marriage. The court will only grant an annulment under very specific circumstances.

Note: if you have been married under Muslim law, the requirements mentioned above will not apply to you.

Two stages in a divorce

In Singapore, there are two main stages to a civil (i.e. non-Muslim) divorce. These are:

• Stage 1: the dissolution of the marriage
• Stage 2: ancillary matters (these may be matters regarding custody of children, division of marital property or maintenance issues)

Stage 1 – Dissolution of marriage

Whichever party is seeking the divorce must establish that they have grounds for seeking it. The sole ground for divorce under Singapore Law is the irretrievable breakdown of the marriage. This may be proven by showing that any one of the following circumstances has occurred:

1. Adultery: it is intolerable for the Plaintiff to live with the Defendant because the Defendant has committed adultery. In some cases, the Plaintiff may hire a private investigator for the purposes of gathering evidence of the adultery.
2. Unreasonable behaviour: the Plaintiff finds it impossible to continue living with the Defendant because the Defendant has behaved in an unreasonable manner.
3. Desertion: the Defendant has deserted the Plaintiff for a period of at least two years, and the Defendant shows no intention or signs of returning.
4. Separation: the parties have either agreed to live apart for 3 years, or alternatively they have already lived apart for at least four years.

It will be a question of fact as to whether any of these situations has been proved, should one party challenge the other in court. A legal trial can be a long process, where witnesses are questioned at hearings, so that a Court can ultimately pass judgement. But if both parties agree that irretrievable breakdown has occurred for any of the above reasons, then it will not be necessary to hold a trial.

Note that under Singapore law, the Court will not usually consider the reasons for the breakdown of the marriage when deciding on ancillary matters. There may be little to be gained by proving one party is ‘wrong’ or ‘immoral.’ Your lawyer can advise you as to whether the ancillary matters will be affected by the breakdown of the marriage.

If the Court satisfies itself that the marriage has irretrievably broken down (either by proving it at trial, or by consent between parties), then it can grant an interim judgement which dissolves the marriage. The divorce proceedings will then move to stage 2 – ancillary matters.

Stage 2 – Ancillary matters

The following three issues of divorce are dealt with as ancillary matters:

1. Custody of children – their care and control, and access to them
2. The maintenance of the wife and/or children
3. The division of matrimonial assets

Children

As stated above, there are three issues to be determined in relation to the children of a marriage:

Custody – this will generally relate to the making of the children’s major life decisions, such as education, religion, migration/relocation, and medical treatment. Generally speaking, if parties cannot agree on custody, the Court will tend to award joint custody to both parents.

Care and control – this refers to the main caregiver i.e. the parent whom the child will live with primarily, after the divorce.

Access – this is given to the parent that is not granted care and control over the child. Access can be given in many forms, such as supervised, reasonable, liberal, etc.

Maintenance

In general, a husband is required to maintain his wife and his children (up to the age of 21 years), both during and after the marriage. Although maintenance for children is always required, the maintenance of a former wife might not be necessary in certain scenarios – for example, in short marriages, or where the wife earns a substantial income of her own.

In a divorce, parties should be free to agree on the amount of maintenance that is to be given to the wife and children. In the event that they are unable to agree, the Court will rule on an amount. This decision will be based on a number of factors, including the standard of living that the parties enjoyed during the marriage; the parties’ income (both now and projected in the future); the duration of the marriage; and household expenditure.

In order for the Court to decide on these factors, each party must produce relevant proof of their contributions, by providing documents such as bank statements, invoices, etc.

Division of matrimonial assets

When a couple divorces, their matrimonial assets (defined in law, and not including a matrimonial home acquired through inheritance) will be divided amongst the parties, taking account of the direct (i.e. monetary) contributions made to the acquisition of that asset, as well as indirect contributions, such as:

1. the extent of the contributions that each party makes by way of money, property or work towards the acquisition, improvement or maintenance of the matrimonial assets;
2. any debt which is owed, or obligation incurred or undertaken by either of the parties for the benefit of them both jointly, or for the benefit of any child of the marriage;
3. the needs of the children of the marriage (if there are any);
4. the amount of the contributions that each party makes to the welfare of the family, including looking after the home or providing care for elderly or infirm relatives or dependants of either party;
5. any agreement that the parties made between themselves regarding the ownership or division of the matrimonial assets, made in preparation of divorce;
6. any time spent in rent-free occupation or other benefits that were enjoyed by one party in the matrimonial home, to the exclusion of the other party;
7. the giving of help or support by one party to the other (whether or not of a material nature), including help or support which aids the other party in the carrying on of their occupation or business.

In establishing these factors in Court, both parties must produce relevant proof of their contributions, for example, bank statements, invoices, contracts, etc.

Uncontested divorces

Occasionally, you may hear the term ‘uncontested divorce’ or ‘simplified divorce’. This is where parties have agreed upon the reason for the divorce, as well as all of the ancillary matters laid out above.

In our professional experience, most divorces are uncontested for some of the following reasons:

1. A trial need only take place where there is a dispute of fact – for example, whether or not adultery took place.
2. Trials are expensive, both in terms of money and time.
3. There is no advantage to be gained by proving the other party is ‘wrong’ during the dissolution of a marriage.
4. Parties enjoy a good relationship or want to try to get along for the sake of their children.

The Singapore Courts tend to discourage divorce litigation, even where parties may initially be unable to agree on the terms of the divorce. Therefore, even when divorce is commenced on a contested basis, it is common for the Court to ask parties to attend mediation sessions early on in the proceedings.

With the help of a mediator, the majority of contested proceedings can be ultimately resolved on an uncontested basis.

The role of lawyers

In order to save costs, you may want to file a divorce without hiring a lawyer. However, remember that you will still be subject to the procedures and technicalities of the court proceedings. The Court will treat you the same as someone who was represented by a lawyer, and the Family Justice Courts will not give legal advice for any divorce cases.

As an example of these formalities, the documents you must file simply to commence divorce proceedings include:

• Writ of Summons
• Statement of Claim
• Statement of Particulars
• Proposed Property Plan
• Proposed Parenting Plan
• Acknowledgement of Service
• Memorandum of Service

There will be further documents to file if matters remain under dispute, such as the Affidavit of Assets and Means and Submissions for the Court.

It is advisable to seek advice from a divorce lawyer, especially if you believe your spouse will contest the divorce or ancillary matters, as the contest may be complicated and take place over a prolonged period of time.

Procedure

Step 1: Dissolution of Marriage

After serving the documents mention above on the Defendant, the Defendant has 8 days to decide whether to contest the divorce. If they decide to contest it, they are then required to file 2 types of documents:

1. Memorandum of Appearance;
2. Defence

Prior to entering into a court trial, which may be bitter and drawn-out, parties can try to reach an amicable settlement first, using the following alternatives:

1. A Resolution Conference with a Family Resolutions Chambers’ judge;
2. A counselling session with a Court Counsellor.

If these methods cannot bring about an amicable resolution, the divorce case will be sent to the court for trial. It will be for the court to examine and decide whether the marriage has irretrievably broken down.

In the event that the Defendant decides not to contest the divorce, but still wishes to challenge the ancillary matters, the Defendant should file the Memorandum of Appearance to highlight the ancillary matters they want to challenge without a Defence.

If the court finds that the marriage has irretrievably broken down, then an Interim Judgment will be granted. This is an order that has the effect of dissolving the marriage. The court will then proceed to decide on the ancillary matters.

Step 2: Ancillary Matters

Before the court can decide on the ancillary matters, both parties to the proceedings must file the document of Affidavits of Assets and Means. This will involve them disclosing all assets and liabilities, earnings and expenditures in their affidavits. The parties may exchange their affidavits a maximum of twice. At this time, there may also be discovery proceedings.

The divorce will be transferred to the High Court if the total net value of the matrimonial assets exceeds SGD 5 million.

After the necessary documents have been filed and exchanged, the Court will then set a date to hear the ancillary matters.

Following the settlement of all ancillary matters, parties must wait for 3 months (from the date that the Interim Judgement is granted) in order to apply to convert the Interim Judgement to a Final Judgement.