Grounds for Divorce under the Singapore Women’s Charter17.11.2023
In Singapore, the Women’s Charter governs civil divorce for non-Muslims. Under the Women’s Charter, there is only one legal ground for divorce – the irretrievable breakdown of the marriage.
Before granting a divorce, the court will consider all the circumstances alleged to have led to the irretrievable breakdown of the marriage and decide whether it would be just and reasonable to grant a divorce.
To establish that the marriage has irretrievably broken down, the Women’s Charter provides five scenarios that a party can rely on. When the Women’s Charter Amendment Bill 43/2021 comes into operation (possibly late 2023), it will give the parties a 6th scenario to rely on to establish that their marriage has irretrievably broken down.
Referred to as divorce by mutual agreement, the 6th scenario is self-explanatory. The parties agree that the marriage has irretrievably broken down, and they want a divorce.
Divorce by mutual agreement will not constitute a new ground for divorce. It will merely provide another way to prove the irretrievable breakdown of the marriage, which remains the only ground for divorce in Singapore.
This article will explore how parties can prove an irretrievable breakdown of the marriage, and we will also look at the proposed amendments.
Ways to prove irretrievable breakdown of the marriage
The current Sec 95 of the Women’s Charter provides five ways to establish an irretrievable breakdown of the marriage.
- Unreasonable behaviour
- Separation of three years with consent, or
- Separation of 4 years
If the party filing for divorce cannot establish one of these five factors, the court cannot find that the marriage broke down irretrievably.
Sec 95 (3)(a) – Adultery
The defendant committed adultery, and the plaintiff finds it intolerable to live with the defendant.
It can be challenging to prove adultery. You need to present evidence that the defendant committed extramarital sexual acts with a third party. You can also succeed if you can establish that adultery “likely occurred”. Evidence may include hotel records, intimate photographs, emails, text messages, or even a confession.
Unfortunately, the “guilty” party is not always likely to confess. You may need to engage the services of a private investigator to obtain sufficient evidence of adultery.
If you want to file for divorce based on adultery as the reason for the irretrievable breakdown, you must file within six months of discovering the adultery. If you know about the adultery but choose to stay for more than six months, you can no longer rely on adultery to prove the irretrievable breakdown of the marriage.
Besides, it could be difficult to establish that you found it intolerable to live with the defendant if you stayed after finding out about the adultery.
If you can’t obtain concrete evidence of adultery, it might be more practical to prove an irretrievable breakdown based on “unreasonable behaviour”.
Section 95(3)(b) – Unreasonable behaviour
The defendant behaved in such a way that the plaintiff cannot reasonably be expected to live with the defendant.
The Act does not define “unreasonable behaviour”. “Unreasonable behaviour” is a subjective and broad term. It is often used when concrete evidence of adultery is lacking.
To prove unreasonable behaviour, the plaintiff must show that they cannot reasonably be expected to live with the defendant.
In deciding whether the plaintiff cannot reasonably be expected to live with the defendant, the court will consider both spouses’ personalities and conduct throughout the marriage. There is no need to establish malicious intent on the defendant’s part.
The court can also consider the cumulative effect of specific behaviour, even if an individual act is not unreasonable.
Examples of unreasonable behaviour include:
- Domestic violence
- Verbal abuse
- Alcohol or drug abuse
- Financial irresponsibility
- Emotional neglect
- Compulsive gambling
- Constantly returning home late without a valid excuse
“Growing apart” or “no longer having anything in common” does not amount to unreasonable behaviour.
Section 95(3)(c) – Desertion
The defendant has deserted the plaintiff for a continuous period of at least two years immediately before the filing for divorce.
It refers to a situation where one spouse has abandoned the other against their wishes.
To establish desertion, the plaintiff must demonstrate the following:
- physical separation; and
- the intention of the deserting spouse to abandon the marriage permanently.
Desertion only applies when the spouse decides to leave the household even though circumstances do not require it – the intention is to desert. For example, if one spouse studies or works overseas, there is no intention to desert. The circumstances require them to live apart.
If the parties agree to live apart, one party cannot rely on desertion as a basis for divorce. It must be non-consensual.
Section 95(3)(d) – Separation of three years with consent to divorce
The parties have lived apart for a continuous period of at least three years immediately preceding the filing for divorce, and the defendant consents to a judgment being granted.
Sec 95(3)(d) is often used where the parties agree to a divorce, and the divorce is amicable.
To succeed with this basis for proving the irretrievable breakdown of the marriage, you need to establish the following:
- Both parties must have the intention to live apart – it must be by choice
- A loss of consortium, signifying the end of companionship in the marriage
The parties need not actually live separately. If you can prove a loss of consortium and breakdown of the marriage, you can succeed on this basis even if you still live under the same roof. As long as you maintain separate households and no longer perform typical spousal duties, you can establish a separation.
Section 95(3)(e) – Separation of four years (no consent)
The parties have lived apart for a continuous period of at least four years immediately before filing for divorce.
Parties can use Sec 95(3)(e) when the divorce is contested. To file for divorce on this basis, you don’t need the other party’s consent. You only need to establish separation on the same basis as for Sec 95(3)(d) above.
Proposed divorce by mutual agreement
When the new section comes into effect, parties will have an additional basis, divorce by mutual agreement, to prove the irretrievable breakdown of the marriage.
In this scenario, the parties do not have to assign blame to anyone for the breakdown of the marriage. They rely on a mutual divorce agreement.
If you want to rely on divorce by mutual agreement, you need the following:
- The agreement must be in writing.
- It must include reasons for concluding the marriage has irretrievably broken down.
- It should detail the efforts made to reconcile.
- It should include the parties’ considerations for arrangements regarding their financial affairs and any children of the marriage.
An agreement without reasons is not sufficient.
Possible reasons could include the following:
- Parties discovered “deep-seated differences in values” after the marriage.
- They’ve grown apart.
- They have cultural differences in raising children.
- They are constantly arguing.
The parties must also show that they are acting voluntarily, understand the consequences of the agreement, and intend to enter into the agreement.
Again, the court will only grant the divorce if it is satisfied that it is just and reasonable to grant a divorce, and there is no reasonable possibility of reconciliation.
The aim of the amendments is not to make it easier for couples to divorce. The hope is that it would make the process less acrimonious and protect the children from any animosity between the parents.
Although parties must still be married for at least three years before they can file for divorce, the divorce might be finalised quicker, especially where separation would be cited as a basis for the irretrievable breakdown of the marriage.
Although the amendments might reshape divorce in Singapore, until they come into effect, parties can only rely on the current five scenarios to prove the irretrievable breakdown of the marriage.
Divorce can be complex, challenging, and emotionally stressful. If you are considering a divorce in Singapore, you should speak to an experienced divorce lawyer as soon as possible. A divorce lawyer can guide you through the possible ways to establish an irretrievable breakdown of your marriage and consider the best option for your situation.
Often, establishing an irretrievable breakdown of the marriage is the least of your worries. Ancillary matters such as child custody, care arrangements, spousal maintenance, and asset distribution may be far trickier. An experienced divorce lawyer can assist you through the entire process and help ensure the best outcome for you and your children.