CONTESTED AND SIMPLIFIED UNCONTESTED DIVORCE PROCEEDINGS
CONTESTED AND SIMPLIFIED UNCONTESTED DIVORCE PROCEEDINGS
In Singapore, divorce proceedings can either proceed as a “Contested Divorce” or a “Simplified Uncontested Divorce”.
Contested Divorce Proceedings
The process for starting a contested divorce begins when the Plaintiff files and serves the Writ for Divorce and other accompanying documents on the Defendant. The Defendant has the option of entering an appearance in court by filing a Memorandum of Appearance, wherein they will indicate whether or not they are contesting the divorce. If they are contesting the divorce, the Defendant will file a defence and/or counterclaim in response to the Plaintiff’s claim for divorce. Thereafter, each party will have one further right of reply each.
Both parties will then have to attend a contested divorce hearing, where they will be cross-examined by the other side. The Court must be satisfied that the marriage has indeed irretrievably broken down based on the weight of parties’ evidence. If the Court is not convinced of the Plaintiff’s case, this may mean the divorce is either granted on the Defendant’s counterclaim, or it is not allowed to proceed at all.
If the Interim Judgment is granted, proceedings will move on to the ancillary matters, where custody, care and control of the children and money matters are dealt with. There are cases where both parties are able to agree on the divorce – thus avoiding a contested divorce hearing – but are unable to settle the ancillary matters. This means the Interim Judgment will be issued, but the issuance of the Final Judgment may be pushed back for an indefinite period of time.
At this stage, parties may either be mandated to go for mediation (if they have children below the age of 21), or they can opt into it voluntarily. If mediation is successful, a Draft Consent Order will be prepared, which will contain the orders and terms of the settlement that parties have agreed on. Settling at mediation will save time and costs, and it may result in a more satisfactory outcome as parties can settle on an outcome which they are mutually agreeable to, rather than having a decision imposed on them by the Court.
If parties do not opt for mediation, or if mediation is unsuccessful, the matter will head to an ancillary matters hearing before a judge. Preparation for an ancillary matters hearing is much more onerous and complex. Proceedings will likely be prolonged by at least another 6 months and higher legal fees will be incurred.
Overall, contested divorce proceedings take up more time and are more expensive due to the amount of work. Beyond finances, the process is also emotionally draining, as the indefinite lack of resolution can cause parties more anxiety and stress.
Simplified Uncontested Divorce
A simplified uncontested divorce is sometimes known as either a “simplified divorce” or an “uncontested divorce”. It requires parties to agree beforehand to a divorce and all of the ancillary issues, the most common of which are as follows:
Firstly, how is the divorce going to proceed? In Singapore, the only ground for divorce is the irretrievable breakdown of the marriage, proven through at least one of five facts: one party’s unreasonable behaviour, adultery, desertion or separation. Parties will have to decide on which one of these facts they will be relying on. Even though the nature of proceedings is uncontested, the party applying for the divorce will be still be known as the Plaintiff and the other the Defendant.
Secondly, if there are children to the marriage, how will parties decide on custody, care and control, and access. Will parties have joint custody of the children, or will one party have sole custody? “Joint custody” is a legal term which means parties must agree on the major issues relating to the children’s education, medical treatments and choice of religion. Joint custody is the norm in Singapore. The Courts will only grant sole custody in rare situations.
Following from that, which party will have care and control of the children? That is, which party will be making everyday decisions for the children? Will parties share care and control?
Next, what will the access arrangements look like? How frequently will the other party get to see the children? Will it be liberal, reasonable, or supervised access?
Thirdly, how are the matrimonial assets going to be divided? For most couples, the most valuable asset that needs to be divided is the matrimonial home. Parties will need to decide if the home will either be sold in the open market, transferred to one party, or if one party will purchase the other’s share.
The division of assets – especially the buying, selling, or transfer of homes – can be a highly technical area, particularly if there is an outstanding bank or HDB mortgage loan, or other issues relating to the HDB’s and CPF Board’s regulations.
Fourthly, what will the children’s maintenance look like? Will one party maintain the children solely, or will the children’s expenses be shared between both parties?
Fifthly, will there be maintenance for the wife?
The paperwork for a simplified uncontested divorce is far simpler than a contested divorce, as the lawyer will only need to prepare the Writ for Divorce, the Statement of Claim, the Statement of Particulars, the Affidavit of Evidence in Chief, and the Draft Interim Judgment. The Draft Interim Judgment will contain all of the terms of parties’ settlement.
After all of the divorce papers are filed, an uncontested divorce hearing will usually be fixed within three to four weeks. They are held in a judge’s chambers and neither parties nor lawyers need attend. However, even if both parties have consented to the divorce, the Court must still be satisfied that the marriage has irretrievably broken down. The Courts in Singapore take the stance that divorce should be treated as a last resort and it should not be taken for granted that the Courts will grant every uncontested divorce petition presented before it.
Should the Court be satisfied that the marriage has irretrievably broken down, an Interim Judgment will be granted at the uncontested divorce hearing. It is important to note that even in an uncontested divorce, an Interim Judgment can only be made final after three months if there is no application to show why it should not be made final, whereupon the Court will issue the Final Judgment.
Even though an uncontested divorce may seem like an efficient and less complicated route to take than a contested divorce, the forms, documents and legal procedure involved can still be difficult to navigate. Furthermore, it is still highly advisable to seek legal advice from an experienced divorce lawyer to ensure that the documents are properly drafted and you know the fullest extent of your rights within the law.
Importantly, it must be noted that one lawyer cannot act for both parties in an uncontested divorce. That is, while only one lawyer may be needed to draft and file the necessary documents, this lawyer can only represent one party (that is, their client) and is obliged to act in the interests of that party. They cannot give legal advice to the other party who is not their client.
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