Grounds for Divorce7.10.2022
In Singapore, civil divorce cases are governed by the Women’s Charter. In this article, we will talk through the legal grounds for divorce in Singapore.
Eligibility and restrictions to file for divorce
According to sections 93 and 94 of the Women’s Charter, the following eligibility requirements must be met to file for divorce in Singapore:
- At least one of the parties must be domiciled in Singapore at the time the divorce is filed, or at least one of the parties must have resided in Singapore habitually for three years prior to the commencement of the divorce proceedings; and
- Neither of the parties may file for divorce within three years of the date of marriage. Exceptions to the three-year period is if there exists proof of depravity or exceptional hardship. What comprises exceptional hardship may depend on the applicant’s unique circumstances.
As soon as the parties have established that they are eligible to file for divorce, they can then focus on grounds for divorce.
Grounds for divorce
There are multiple terms used as grounds for divorce. However, section 95(1) of the Women’s Charter stipulates there is single legal ground for divorce in Singapore, and this is the irretrievable breakdown of the marriage.
According to section 95(3) of the Women’s Charter, the five specific scenarios that establish an irretrievable breakdown of a marriage are:
- Unreasonable behaviour;
- Separation of three years with consent; and
- Separation of four years.
Given the circumstances, the court must determine whether dissolving the marriage would be reasonable and just. The court cannot find that the marriage has irretrievably broken down if any one of the above-mentioned factors is not present.
Proving the irretrievable breakdown of marriage
To establish the irretrievable breakdown of the marriage, the applicant or plaintiff needs to prove any one of the scenarios stipulated in section 95 of the Women’s Charter.
Section 95(3)(a) – The defendant committed adultery, and the plaintiff finds it intolerable to live with the defendant.
Typically, adultery means to engage in extramarital sex. It can be difficult to prove adultery, however, since the plaintiff must either show that the defendant had sexual intercourse with a third party or show that adultery is likely to have occurred. The plaintiff usually needs to hire a private investigator to obtain such evidence.
Examples of evidence of likely adultery include documentation or photographs of the adulterers in a hotel room, engaged in intimate positions, phone communications, SMS messages, and emails. Another example of solid evidence could be a confession or proof of a child born from the adultery, though the “guilty” party is not likely to admit to this.
If the plaintiff finds that obtaining evidence that substantiates a claim of adultery is impossible, then it might be easier to file for a divorce based on the defendant’s unreasonable behaviour.
Note that the plaintiff must file for divorce within six months of discovering the adultery to file for an adultery claim successfully. Otherwise, the plaintiff cannot use the defendant’s adultery to prove the marriage’s irretrievable breakdown.
Section 95(3)(b) – The defendant behaved in a way that the plaintiff cannot reasonably be expected to live with the defendant.
The test is generally subjective since the term “unreasonable behaviour” is not clearly defined. As a result, it is typically simpler to show unreasonable behaviour as it does not need the concrete evidence that adultery does. It is not necessary for the plaintiff to prove malice on the part of the defendant. If a spouse has been unfaithful, the plaintiff may be able to file for divorce using unreasonable behaviour.
When it comes to unreasonable behaviour, the test is whether the spouse can be reasonably expected to continue living with the other.
To determine unreasonable behaviour, the court must examine if the plaintiff finds it unbearable to live with the defendant—regardless of whether the plaintiff has a reasonable cause for such conduct. The court then evaluates the defendant’s behaviour to establish whether it is indeed unreasonable for the plaintiff to continue living with his or her spouse. The court will also consider the behaviour, character, and attitudes of both spouses throughout the course of the marriage.
Though individual acts may not be deemed unreasonable, a series of acts over a period may be considered as unreasonable behaviour. The court will analyse the cumulative effect of these acts.
Common examples of unreasonable behaviour include:
- Domestic violence;
- Threats of physical abuse or violence;
- Verbal abuse;
- Drug abuse;
- Alcohol abuse resulting in aggressive or unreasonable behaviour;
- Repeated criticism or insults towards the plaintiff;
- Disrespectful behaviour towards the plaintiff;
- Financially irresponsible behaviour that affects the plaintiff or children;
- Compulsive or excessive gambling resulting in debt or the depletion of family savings or finances;
- Constantly returning home late, smelling of perfume or under the influence of alcohol; and
- Complete emotional neglect or disinterest towards the plaintiff.
It is not enough to show that the spouses no longer have anything in common or have drifted apart. Unreasonable behaviour means more than just being incompatible.
Take note that a finding of unreasonable behaviour concerns just the marriage and whether it is unreasonable to expect the parties to stay married. Such a finding does not mean that the defendant is actually guilty of any misconduct.
Section 95(3)(c) – The defendant has deserted the plaintiff for a continuous period of at least two years immediately before the filing for divorce.
The term “desertion” implies that a spouse abandoned the other spouse against his or her wishes, with the intent to permanently end the marriage. Singapore courts will grant a divorce on the ground of desertion after a desertion period of two years.
Note that if the deserting spouse leaves and comes back for a short period of time then leaves again, the two years does not have to start all over again. The calculation of the two-year period is that total desertion period is two years, with the total “returns” not exceeding six months.
The plaintiff must establish the following to prove desertion:
- The parties were separated physically; and
- The deserting spouse had the intention of deserting the spouse.
Divorcing under desertion will only apply if the deserting spouse leaves the household even if not required by the circumstances. If a spouse works overseas or the circumstances require the spouses to live part, for instance, then no intention to desert exists.
Since desertion is a non-consensual separation, there must be abandonment involved. If both parties agree to live apart, then desertion cannot be used as a ground for proving the irretrievable breakdown of the marriage.
Separation of three years with consent to the divorce
Section 95(3)(d) – The parties have lived apart for a continuous period of at least three years immediately preceding the filing of divorce, and the defendant consents to a judgement being granted.
This ground for proving the marriage’s irretrievable breakdown is generally used when the married parties decide on getting a divorce and the divorce is amicable, such as with a non-contested divorce.
The plaintiff must show the following to prove separation:
- The parties intended to live apart by choice;
- There is a loss of consortium (the right to companionship and association with each other in a marriage)
It is not enough for there to be physical separation. Both parties must intend for them to live apart. If one spouse was transferred to work overseas or was in prison, for instance, then it may not be considered separation by choice.
Separation may be established even if the two parties remain in the same house, for as long as they can prove a loss of consortium and a breakdown of the marriage. In this case, the parties must show that they maintained two separate households and did not perform the duties typical of a spouse, such as doing each other’s laundry or cooking for each other.
The separation may still be considered as continuous if the parties get back together for a short period of time, provided that the attempt at reconciliation was not longer than six months and the total time of separation amounts to three years.
When deciding to live independently, some couples opt to obtain a deed of separation. Signed by both parties, this formal and legally binding document sets out the terms and conditions of their agreement to live separately. While this document does not change the marriage’s legal status, it can be used to prove separation when they file for divorce three years later.
Separation of four years
Section 95(3)(e) – The parties have lived apart for a continuous period of at least four years immediately before filing for divorce.
Often times, this section is utilised to prove the irretrievable breakdown of marriage in contested divorces. Though the criteria for separation is the same as above, there is no need for consent.
For as long as both spouses live separately for four years, one spouse does not need the consent of the other to get a divorce.
For non-Muslims, all civil divorce cases are heard in the Family Justice court of Singapore. For Muslims and parties married under Muslim law, civil divorce cases are heard in the Syariah Court, with the Administration of Muslim Law Act governing all decisions made.