Should you get a Deed of Separation?7.10.2022
One of the legal grounds for divorce in Singapore is legal separation (that is, separation for 3 years preceding the filing of a divorce and with the spouse’s consent). Therefore, a Deed of Separation can be an essential tool for addressing the most important matters when a couple decides to separate temporarily, or for good.
It is not a public document (it is known only to the spouses and possibly their lawyers) but the Deed of Separation officially begins the separation period and, often, will set up the date for starting divorce proceedings.
In many cases, although an informal separation could be an alternative solution, the signing of a Deed of Separation may be the preferable course of action. It can help couples to decide on the most important issues of living apart before the dissolving of their marriage – such as custody and care of children, or division of marital property, and also helps to avoid disputes in court, and the high costs that often come with contesting a divorce in Singapore.
As there are important matters involved in separation for the whole family, it is always recommended that an experienced lawyer is employed to draft a Deed of Separation. The lawyer will make sure that the Deed of Separation truly reflects their client’s interests and does not lay down unreasonable terms which risk being overruled by a court.
What is a Deed of Separation?
In Singapore, the Deed of Separation is an agreement in writing (executed as a deed) between husband and wife, which regulates the period when the two individuals are still officially married, but living apart (either separately or sometimes in the same house but without maintaining family relations).
The law in Singapore does not require the Deed of Separation to be registered or filed with the court, or indeed any public authority. Therefore, the Deed remains a private document between the spouses. If they choose, they do not have to tell anyone of its existence, including their friends and relatives, for as long as they like.
As it would be hard to prove the existence of an oral agreement in cases of dispute, the Deed of Separation must be made in writing. In order to be valid, the document must be signed by both spouses, ideally in the presence of a Commissioner for Oaths.
When You Might Need a Deed of Separation
Even though a Deed of Separation is not absolutely necessary by law in order to file a divorce on the grounds of separation, there are many situations where it is better to have such a document in order to regulate the terms of the parties’ separation. This includes circumstances when the couple:
- Want to avoid a contested divorce and the associated high costs of litigation that can result;
- Would like to separate whilst remaining married due to religious or other reasons;
- Prefer not to divorce yet because of the young age of their children;
- Aren’t sure yet if they want to divorce but prefer to start living apart and need to settle the so-called ‘ancillary matters’ – e.g. child care and division of assets;
- Know they want to divorce but want to delay it for some reason, whilst having certainty over ancillary matters;
- Have been married for less than 3 years and therefore cannot officially divorce in Singapore;
- Are unable to divorce officially in Singapore because they have been married for less than 3 years;
- Would like to continue living in an HDB flat during the minimum occupancy period to be able to retain it following a divorce;
- Want to set the start date of their separation in writing to begin a countdown, and in order to claim for divorce on the grounds of separation.
As mentioned above, in the later stages of divorce proceedings the Deed of Separation can be used in relation to ancillary matters – this helps to avoid disputes between parties in court, meaning savings of time and costs.
Furthermore, the Deed of Separation specifies the date that the spouses are officially separated. This means they are eligible for divorce on the grounds of separation after 3 years when both parties agree on the divorce, or after 4 years if one spouse objects to the divorce and contests it in court.
Terms to Include in a Deed of Separation
Firstly, the Deed of Separation should include the date of the start of separation, and the date on which the two parties will begin divorce proceedings. Note that the separation does not automatically trigger the divorce; so a spouse wanting to set a date for initiating a divorce after separation should do so in the Deed.
Also included in the deed should be a term about residential arrangement for the couple – specifying that they will begin living apart from each other, either in separate residences, or possibly under the same roof but without running a joint household or keeping marital relations.
The Deed should also include provisions related to the following essential terms:
- Child custody – specifying where this is to be sole custody by one parent, joint custody, or no custody. Joint custody is one of the most common choices in Singapore, where both parents must agree on major decisions regarding their child’s life.
- Care and control of children – defining which spouse a child will live with and who will handle daily matters and make daily decisions.
- Access to children for the parent who doesn’t have care and control – there are several options here, including liberal or reasonable access (liberal access provides most flexibility around timing and visitation rights). Included in these provisions should be terms of access by telephone, email or instant messenger service.
- Division of matrimonial assets – how to manage joint accounts, and making a decision on who gets the family car, or other such property.
- Spousal and child maintenance – in Singapore it is usually the wife that is entitled to receive maintenance during separation and/or following a divorce, apart from in cases when the husband is unable to support himself, for example if he is disabled.
To be considered as fair and/or reasonable by the court during a divorce, these terms should account for the standard of living the spouses enjoyed before the breakdown of their marriage; the extent of spousal contributions (including indirect contributions) such as taking care of the family and maintaining property; and the rights, interests and needs of the children.
Very often, spouses will mistakenly think that separation equates to divorce, or that it begins the divorce proceedings. In fact, although the Deed of Separation outlines the terms for settling ancillary matters following a divorce, the spouses will remain officially married during the separation. In Singapore, getting a divorce requires the completion of a separate divorce application with the Family Justice Courts. The couple must settle the divorce first, in case they then decide they want to remarry after separation.
Remember that after signing a Deed of Separation, a spouse can ‘back out’ of the agreement by asking the Family Court to set the deed aside. This may be because they feel some of the terms are unfair, or that there was a misrepresentation of the facts before the deed was signed, or that they were unduly influenced or coerced to enter into the deed, without taking legal advice first.
In Singapore, separation is one of the legal grounds for divorce, and documenting it in a Deed of Separation increases the likelihood of the spouses getting an optimal divorce settlement. Outlining its terms, such as spousal and child maintenance, child custody and financial considerations helps to settle ancillary matters at an early stage. It can also avoid contested divorce proceedings, and save money on legal costs.
In light of the serious and wide-ranging consequences of signing a Deed of Separation, for all parties involved, it is always recommended to get the help of a professional divorce lawyer. Our lawyers can help to explain all the important terms, so that the Deed of Separation provides for an effective settlement, if parties decide to file for divorce on grounds of separation.