How does a Divorce differ from a Deed of Separation?

In order to end a marriage legally, you must go through the process of divorce. However, sometimes you might not yet be ready for a divorce and may wish to try living apart from each other instead. In this situation, you can use a written Separation Agreement. This is a contract in law that the couple use to record how they have agreed to separate, and how the divorce should be carried out.

The date when parties began living apart is recorded in the Deed of Separation, so often the divorce will be based on that ground of separation.

What terms should be included in a Deed of Separation?

The terms of agreement on issues such as the following should be noted in the Deed of Separation:

• The reason the divorce is taking place
• When the divorce proceedings will begin
• Who will begin the divorce proceedings
• If children are involved, how care, custody and control duties have been arranged
• How the marital assets should be dealt with whilst the divorce is happening
• Any interim arrangement that the parties made until the beginning or conclusion of the divorce proceedings
• Any spousal or child maintenance agreements.

Divorce papers still need to be filed

To be effective, both parties to the marriage have to sign the Deed of Separation.

Remember that simply signing a Deed of Separation does not mean that the divorce has happened – you still need to file for divorce. This is because a Deed of Separation is not filed with a court, so even though the parties have signed it, the court and any relevant government departments will not be made aware of it.

When is a Deed of Separation most useful for me?

You’ll find the deed most useful when:

• You want to separate from your partner, but you have young children or financial issues which makes it a bad time to get a divorce.
• You’re not sure if a divorce it what you want, but you wish to try living apart from your spouse.
• You don’t fulfil the other criteria for getting a divorce (the grounds of adultery or unreasonable behaviour), and both of you agree that the marriage was a mistake.

Please contact us if you have any questions about Deeds of Separation, or you need help.

Divorce rates are rising in Singapore, perhaps unsurprisingly given the growing number of expatriates and foreigners living here. In this article, we answer some common questions about how to divorce in Singapore if you are an expatriate.

If I didn’t marry in Singapore, can I divorce here?

Yes, even if you aren’t a Permanent Resident here or you don’t work here, you can still get divorced in Singapore, as long as:

• You and your spouse have been married for a minimum of 3 years,
• You have both resided in Singapore for the last 3 years, OR
• You’re both domiciled in Singapore (meaning you want to make Singapore your permanent home).

Should I divorce in my home country or in Singapore?

If your assets and children are in Singapore, then you may find it logical to divorce here. There are many foreigners who choose to get a divorce in Singapore, rather than their home country, for a variety of reasons:

• Efficiency: the Singapore justice system is one of the best in the world and operates very efficiently. If you are not contesting a divorce then it can be completed within around 4 months, without the need to go to court. Even if you are contesting a divorce, it can be done in around a year. The courts tightly control their schedules so there are no delays.
• Gender equality: even though some people wrongly believe the law here favours women due to the existence of legislation such as the Women’s Charter, this is not true. Both men and women are treated equally, as shown by case law over the years. Both monetary and non-monetary contributions to the marriage will be considered by the courts with equal weight.
• No ‘fault’ basis: the courts in Singapore don’t usually punish a party for being at fault and causing a marriage to break up – no blame is apportioned in decisions involving asset division, children or maintenance.
• Proactive in mediation: Singaporean courts encourage both parties to take a constructive approach, and compel them to attend mediation sessions to try and resolve things by agreement.

My spouse has taken my child out of Singapore – what can I do?

Countries that signed the Hague Convention on Civil Aspects of International Child Abduction, such as Singapore, will have a duty to return your child to Singapore. However, if the child was taken to a country that is not a signatory to this agreement, then it may be harder to get your child back to Singapore.

You may be able to apply for an injunction order if you think your child is at risk of being removed from Singapore. This would allow agencies like the ICA (Immigration and Checkpoints Authority) to stop parents subject to such an injunction from taking a child out of Singapore. Anyone defying the injunction will be stopped at exit checkpoints by the authorities.

The best way to prevent complications in a divorce is to always know where your child is and what the intentions of the other party are, wherever possible.

Can I stop my spouse leaving Singapore with my child during a divorce?

If you think this is a possibility, then you can apply for interim care and control of your child, to reduce the opportunities that your spouse has of leaving the country with your child. You could also apply to be named the parent who gets control of your child’s passport. The immigration authorities might also be able to stop the spouse leaving with the child if a court order has been granted to prevent that.

I made a prenuptial agreement with my spouse abroad – can it be enforced in Singapore?

When considering your case, the court will take into account prenuptial agreements made abroad. However, the court has the right not to follow it if they desire, so it will simply form one more factor in their decision-making process.

Do I have to leave Singapore after a divorce, if I’m the dependent spouse?

If you hold a Dependent’s Pass and are in Singapore as a dependent, then you must leave Singapore when the divorce is completed, as you will no longer be said to be dependent on your husband. Practically, you should think about looking for a job once divorce proceedings have been started, so that you may have your own right to stay in Singapore, with an employment pass.

In a divorce, when does an asset become a matrimonial asset?

People going through a divorce often wonder, “what happens to an asset I acquired before I got married? Is that now a matrimonial asset that my spouse can make a claim for?”

To answer this, we need to look at the Women’s Charter, which defines what a ‘matrimonial asset’ is, in section 112(10):

• “A matrimonial asset is any asset acquired before marriage by one or both parties to that marriage, which is:
• Ordinarily used or enjoyed by both parties, or one or more of their children, while the parties live together for the purposes of household, shelter, transportation, recreation, aesthetic or social purposes; or
• Substantially improved in the course of the marriage by the other party, or both parties;
• Or another asset of any nature which one or both parties acquired during the marriage.
• But doesn’t include any asset (which is not a matrimonial home) that one party acquired at any time, by way of gift or inheritance, that has not been substantially improved through the marriage by the other or both parties.”

So under the Women’s Charter, an asset one party acquired prior to the marriage does indeed become a matrimonial asset as long it was used or enjoyed by one or both spouses or their children, while they lived together, OR as long as it was substantially improved during the marriage by either or both of them.

In caselaw from some years ago, the courts have ruled that if parties no longer live in a property, it ceases to be a matrimonial asset (see cases such as BGT v BGU [2013] SGHC 50).

The Court of Appeal was recently asked to consider this scenario again in the case of TND v TNC [2017] SGCA 34. Here, the wife had claimed that the law could be interpreted to mean that once an asset has become a matrimonial asset, it remains as such, according to the meaning of section 112(10)(a)(i) of the Women’s Charter. The husband argued that, as the family had only lived there for 15 months, the property was not an asset of the marriage as they had only lived there for a total of 15 months.

The court had to evaluate whether the asset, acquired before marriage, and “ordinarily used or enjoyed” during the marriage for the purposes listed in section 112(10) even though only for a short time, was still a matrimonial asset when the marriage ends, some years later. In that case, the court took the wife’s view, that the property was indeed a matrimonial asset, and was thus able to be claimed by the wife.

What does this case mean for you?

1. Properties which the parties treated as a marital home for a long time, but that they don’t currently live in at the time of divorce, are covered by section 112(10)(a)(i), as are the parties’ last place of residence before divorce, which they used as a marital home.
2. Say, for instance, that a married couple live for 25 years in a property they bought before marrying, which they use as their marital home. Their adult children leave home, and the married couple move to a small apartment, also acquired pre-marriage. A couple of years later they divorce. In this case, both the last place of residence (the apartment) and the first property they lived in are treated as marital property by the Women’s Charter. Just because the parties no longer live there, it doesn’t mean that the house they were in for 25 years as the cradle of their family life should not be treated as a matrimonial asset.
3. The court will make their decision based on the facts and circumstances of the case that are presented to them.
4. Though the courts have said that an asset can remain a matrimonial asset even when the parties don’t live in it, that in itself doesn’t always mean that such a property has to be divided exactly as other assets acquired whilst married are. Courts having to decide about matrimonial assets under section 112(1) have the discretion to divide them according to however they see it most equitable to do so. They’ll bear in mind the nature of the asset, the length of time the parties ordinarily used or enjoyed it, and it was paid for (in other words, whether it was partially paid for during the course of the marriage).

In the case of TND v TNC [2017] SGCA 34, although the court said the property was a matrimonial home because the family had lived there, as it was only used for just over a year, the husband was entitled to a higher share, as he had made higher direct contributions.

Conclusion – at what point should matrimonial assets be valued?

Parties divorcing will want to know what is the operative date to be used to determine the asset pool and value those assets? This is a key question for three main reasons:

1. The spouses may have already separated, prior to the divorce proceedings, and no longer intend to jointly accumulate matrimonial assets.
2. There are 2 stages to divorcing in Singapore: to end the marriage, parties first must obtain an Interim Judgement, and then the court will hear and rule on ancillary issues such as how to divide assets.
3. In general, it takes about a year to finish a divorce in Singapore. It usually ends when the court concludes the ancillary matter hearing.

Of course, while the divorce process progresses, the asset’s value might fluctuate. Another possibility is that assets may increase or decrease in value due to the stock market, or bonuses awarded, or the crystallisation of share options.

This is why the most important question for many people is: what is the cut-off date at which the assets in the asset pool should be determined and valued?

There are four possible answers to when this date should be:

• The date of separation
• The date they file for divorce
• The date the obtain Interim Judgement
• The date the ancillary matters hearing is held.

In the case referred to above of TND v TNC, the Court of Appeal stated that “the ancillary matter hearing date is the one that must be used when valuing the matrimonial assets”.

Therefore, unless parties can persuade the court that a different date should be used, then all marital assets will be valued at the very end of the divorce process – when the ancillary matters hearing occurs. This is important for family litigants to bear in mind.

In Singapore, a divorce can either be contested or uncontested (also known as a simplified or amicable divorce).

Contested Divorces

This is where the two married parties cannot agree on the divorce or issues such as custody of children, maintenance and asset division. In Singapore, around 90% of contested divorce cases will be settled through court action.

The Family Court plays a prominent role in helping to settle these cases. For the remaining 10% of cases in which parties refuse to settle, a Judge will hear the arguments and then make a judgement.

Contested divorces take longer and cost more than uncontested divorces.

Uncontested Divorces

This where both spouses agree to the terms of a divorce and the related ancillary issues. Agreement has to be reached before filing divorce papers, to enable a lawyer to file the papers in the Family Court for a fast-track, simplified divorce hearing. An Interim Judgement will then be given after around 4 weeks.

The common areas of agreement are usually these:

The grounds for divorce

Parties must agree that the divorce is based on one party’s unreasonable behaviour, desertion, separation or adultery.

Care and control of children

Parties must agree on who will get care and control of any children involved. Whoever the children live with will usually get care and control, and the right to make decision relating to the childrens’ daily lives.

The two parties also need to agree on how often the other party will get to see the children. Should the access be reasonable, supervised, or liberal?

An agreement needs to be reached on whether the parties will have ‘joint custody’ of the children, i.e. that they both agree on the major issues like their offspring’s education, medical treatment and religion. In Singapore, ‘joint custody’ is the standard arrangement, and courts encourage this outcome unless it’s obvious that it would not be in the best interest of the children.

Maintenance

Both spouses must agree on which party will pay the monthly maintenance for the children, and how much it will be. If the wife is unemployed or on a low wage, then husband and wife should agree on how much the husband should give the wife by way of maintenance.

Division of assets

The asset that is most obvious and important is the marital home. When it comes to dividing it between the parties, there are some common options:

• Sell it on the open market
• The wife sells it to the husband
• The husband sells it to the wife
• The property is transferred to one party.

This can be a complex area of law to navigate, especially if it involves outstanding bank loans, CPF money or HDB flat eligibility. An experience divorce lawyer (ideally who also has conveyancing expertise) will help you here.

Use a specialist divorce lawyer even if your divorce is uncontested

Even if the divorce is uncontested, parties usually require a specialist lawyer, such as those at PKWA Law, for the following reasons:

• Specialist divorce lawyers acting in uncontested divorces usually cost less than you may think, and offer fair and reasonable charges, such as the fees we charge at PKWA Law.
• In an uncontested divorce, questions relating to the matrimonial home, or the rent or sale of an HDB flat will be much easier to answer with the help of a specialist lawyer. They can also advise on how other assets should be divided, and the amount of maintenance that should be paid to the wife and any children involved.
• A lawyer will be able to tell you exactly what you are entitled to receive, as well as explain your obligations and how to agree with your spouse. They should also draft the required paperwork so it adequately captures what you and your partner have agreed on.
• Without a lawyer, you will have no specialist legal advice to help you and may spend much more money and time if the divorce order then needs to be varied once it has been obtained. Get your advice right from the start, and don’t file an uncontested divorce before getting legal representation.
• Hiring a lawyer in the first place means you immediately know what you are entitled to, to save you having to argue over something you will never realistically get. If both you and your spouse understand your rights, then the negotiating process will go much smoother and quicker.
• Hire a good lawyer for full and proper advice early on, to protect your children and property, especially if you have assets worth a lot of money.

The preparations of the Uncontested Divorce papers

If you are going through a contested divorce then your lawyer will check whether you need to attend the Mandatory Parenting Program, send the HDB Query (if you’re an owner of such a flat) and draft the Proposed Parenting Plan and Proposed Matrimonial Plan, as well as sorting other issues.

But if you’re having an uncontested divorce then the workload is simpler, although the following will still need to be prepared:

• Write for divorce
• Statement of Claim
• Statement of Particulars
• Affidavit of Evidence in Chief
• Draft Consent Order

These should be filed at the Family Justice Court, once they have been signed. The party applying for the divorce will be known as the plaintiff, and the other spouse will be the defendant.

Hearing Date

A hearing date for an uncontested divorce should be given within about 4 weeks of the papers being filed. Uncontested divorce hearings happen in chambers, meaning no parties or their lawyers are present. No members of the public can watch either.

How long does an uncontested divorce take?

If the issues outlined above are agreed upon, then here at PKWA Law we can ordinarily get an Interim Judgement (conditional divorce) about a month after the papers have been filed.

About 3 months after this, you should get your Final Judgement, and then the divorce proceedings are concluded.

It can seem to some people that the legal system tends to favour mothers rather than fathers when it comes to deciding on matters of child custody, care and control. As this is a common area of contention in divorce cases, this article explores some of these concerns about bias when it comes to fathers and custody rights in divorce cases.

Child custody

The term ‘child custody’ means the right a parent has to make significant decisions for their children. These might include healthcare and treatment decisions, issues about education and also religion. Courts try to recognise the importance of the role that each parent plays in the life of their child. They understand that joint parenting is vital and is a principle that should be preserved at all costs.

The case of CX v CY [2005] demonstrates this principle in operation. Often, a Court will make either a joint custody order, or no order at all. Only in very rare circumstances will they order sole custody. This should give peace of mind to any fathers who believe the courts are biased against them.

Care and control of children

Once matters of custody have been decided, the Court must then rule on which parent should have care and control over the child or children. This simply means giving authority and responsibility to a parent to have control over their child’s everyday life and decisions relating to it. That parent will also have the child live with them too, usually.

Many people believe that the default position is to give the mother care and control. They think this is because most cases seem to award the mother this right. However, looking more closely at case law in Singapore shows no discrimination against fathers. The most important factor the courts use to decide on who gets care and control is the welfare of the child. This is stated in law, in section 3 of the Guardianship of Infants Act, as well as section 125(2) of the Women’s Charter.

The child’s welfare takes precedence over all other concerns whenever a Court must decide on issues relating to the child. This is known as the welfare principle. However, this can be difficult to do due to the fact that most children have two parents who love the child equally.

The case of Tan Siew Kee v Chua Ah Boey [1987] demonstrated that the term ‘welfare’ will be interpreted in its widest sense. Welfare, therefore, means more than simply monetary terms. It encompasses the child’s general wellbeing as well as aspects of the moral, physical and religious upbringing. Their comfort, security and overall happiness will be evaluated too. Clearly, a loving parent in a stable home will be a good situation in which to encourage such happiness and security.

The welfare principle requires the Court to consider not only the child’s wishes, dependency on a parent, and availability to care for the child, but also two other factors which we will now explore.

Which parent offers most stability and security to the child?

Although financial support is taken seriously by the Court, they will give more weight to which parent can offer the most stable and secure environment for the child. The children and the parent must have security at home, and the parent must show they have a suitable amount of time to devote to the children. Continuing to reside in the marital home is usually an advantage as it is the primary residence of most children and therefore one they are already comfortable with.

It is true that in most cases in Singapore, the mother is the primary caregiver. This means that, when there are young children involved, they tend to be more dependant on their mother than their father, and so it is the mother who is more likely to be given care and control. This doesn’t mean things are weighted against fathers, it simply means that the court will examine the individual facts of each case to decide what’s in the child’s best interests.

Continuity of Care arrangement

The Court is very aware that changing the child’s living arrangements, especially at a young age, can be very disruptive and upsetting for them. They will therefore try to keep the child’s current living arrangements as they currently are, especially if the children are happy there.

In making this calculation, the Court will examine what the arrangement was before the divorce happened – who was the primary caregiver then? The child is likely to be closer and more dependent on that parent. They Court will also look at any alterations that would be required to the child’s routine and education, were care and control to be handed to just one parent.

It is always advisable for you to speak to a specialist family lawyer if you are divorcing, especially if there are children involved.

How does the Family Court make parental custody decisions?

Following a divorce, if children are involved then there will have to be decisions made about who gets custody, care and control of them. It is always preferable that the parents make these decisions and agree between them amicably, as part of the divorce deal. This is because nobody knows the children better than their own parents.

Sadly, sometimes these joint decisions are not possible, and a judge has to intervene to make the decisions on behalf of the parents. This isn’t ideal because clearly the judge will not know the children in any great detail, yet they are required to make decisions of the most profound importance which will affect the children for years to come.

Judges will usually base their decision on what they believe to be in the child’s best interest, and not on what the parents want. You may find it surprising that no weight is given to the parents’ wishes, but the law in Singapore requires judges to think only of what is best for the child’s interests, not the parents’ wishes in deciding matters of care and control.

Factors used to determine the child’s best interests:

To work out what is best for the child, the judge may consider the following:

• The emotional ties and love which exists between each parent and the child
• The wishes of the child (providing they are mature enough to express them)
• The nature of each parent’s relationship with their child
• The ability a parent has to spend time with their child
• During the marriage, which parent was the primary caregiver for the child?
• Where the child lives – if the child is settled, residing only in one place, then the judge may be reluctant to change the status quo
• Siblings should ideally be kept together rather than separated
• Whether the relationship between a child and one parent is being obstructed by the other parent

Appointing a Child Representative

Sometimes the court may appoint a third party individual to act in the child’s best interests. This person is known as a Child Representative, and can act in any proceeding or action which involves the custody or welfare of a child; they are effectively the voice of the child in court.

The Child Representative will make decisions based on what they think is in the child’s best interests, based on their observations of the child. They do not take into account what the parents may want for themselves.

Custody Evaluation Report (CER)

Sometimes, in situations when there is a dispute over child custody matters, the courts will ask the Ministry of Social and Family Development to investigate and produce a report to be used to decide on custody matters. This report is known as a Custody Evaluation Report.

The report usually contains some of the following information:

• The wishes of the child
• The interactions the child has with its parents
• Investigations into any allegations of a parent mistreating the child

In this way, the report becomes represents an objective insight into matters which involve the child, and acts as the voice of the child in court.

We would advise anyone who is going through a divorce, and who has children, to contact us and seek professional advice from our leading divorce lawyers.

A prenuptial agreement is often thought of as a sort of insurance policy against divorce. It is, in effect, a contract that spouses both sign, before they marry. If the worst does happen and the parties want to divorce, then it can give the parties some certainty about their rights to their own assets, as well as matters of property, maintenance, and of course child care.

Benefits of a prenuptial agreement

In Singapore, prenuptial agreements are not automatically enforced. However, there are still many benefits to entering into one, such as:

• It can protect the parties from each other’s debts.
• Assets owned prior to marriage are protected.
• The agreement can be tailored to your specific circumstances. For instance, you may agree that businesses and family heirlooms should not form part of the pool of matrimonial assets.
• Parties are provided with certainty as to what happens to their financial arrangements should a divorce occur.

Contents of a prenuptial agreement

Often a prenuptial agreement will cover many issues relating to the parties’ married life. Some of the more common matters addressed include questions of maintenance, child care, asset ownership, and what should happen in the event of a divorce.

Specific terms in such an agreement might be:

• The law which should govern the prenuptial agreement
• How liabilities and debts that one or both spouses owe should be dealt with
• How much maintenance the wife should receive if a divorce occurs
• How the parties’ assets should be divided during the separation, death or divorce of one spouse
• Property ownership during the marriage.

Prenuptial agreements vs postnuptial agreements

If parties enter into a contract after they have married, this will be known as a postnuptial agreement. The contents of it may not be that different from a prenuptial agreement, but note that the Courts in Singapore usually put greater importance on postnuptial agreements than they do prenuptial ones. This is demonstrated by section 112(e) of the Women’s Charter, which states that the Court should have regard to such postnuptial agreements in relation to how matrimonial assets are owned and divided.

Why is it the case the Courts emphasise the importance of postnuptial agreements rather than prenuptial agreements? The answer is that, usually, postnuptial agreements are drawn up in very different circumstances compared to prenuptial ones, being that parties would have taken into account an impending divorce.

Is a prenuptial agreement valid and enforceable in Singapore?

In Singapore, the law is more complex than in other countries, where prenuptial agreements are more often recognised and legally binding. In Singapore the agreement is not always binding and enforceable. The terms and conditions contained within the document are always scrutinised by the Court before the agreement is accepted as being binding.

In the first instance, the basic requirements of contractual law must be complied with in the agreement. The agreement may be set aside if it fails to disclose all assets, for example, or all evidence of duress, fraud, lack of representation or unfairness at the time the agreement was signed.

Secondly, the Court will look at how just and reasonable the agreement is, when deciding on whether to enforce it or not. The case of TQ v TR [2009] 2 SLR(R) 961 established the law on prenuptial agreements in Singapore. This case saw the Court of Appeal discuss the legal enforceability of prenuptial agreements relating to ancillary matters, as follows:

Dividing matrimonial assets

Section 112 of the Women’s Charter governs how matrimonial assets should be divided. The Court is the ultimate arbiter of how assets are divided, “in such proportions as the Court sees just and equitable”.

The individual circumstances of the case will impact on the weight that a prenuptial is given by the Court. If the agreement abides by contractual principles, then the Court will ordinarily consider it when exercising their power.

Sometimes, foreign individuals will be involved in a divorce. In these cases, a Court might be more willing to accept the legality of the prenuptial agreement if it is governed by and valid according to the foreign law (as long as that overseas law doesn’t conflict with public policy in Singapore).

Maintenance

Though the Women’s Charter does not mention maintenance, there is caselaw on it. The case of TQ v TR [2009] held that all prenuptial agreements pertaining to the maintenance of the wife and/or children should be scrutinised by the Courts.

The Court would be especially vigilant regarding prenuptial agreements relating to child maintenance, and would be reluctant to enforce agreements which they think are not in the best interest of the children. This demonstrates the importance the Courts place on the welfare of the children, which is always their overriding consideration.

Child custody, care and control

As the Court’s main concern is the welfare of the children involved, they will start with the premise that an agreement will not be enforceable, unless the party relying on it can clearly demonstrate that it is in their child’s best interests.

If you find yourself wanting to divorce in Singapore, you’re likely to have lots of questions about the process. If you are contesting a divorce, or it isn’t amicable, then you’re likely to have even more concerns. These might include:

• Am I eligible to divorce?
• How much will it cost me?
• What can I expect to receive?
• What will happen to my children?
• How might our assets be divided?
• How long will it all take?

In this article we’ll explain the process for a contested divorce, as well as an uncontested divorce, and look at what usually takes place at the Family Justice Courts.

Eligibility requirements to divorce

There are certain criteria that anyone wishing to divorce in Singapore must satisfy. These are set out in the Women’s Charter, and include:

Attending the Mandatory Parenting Programme (MPP)

If the divorcing couple have at least one child younger than 14 years of age, and the parties don’t agree on the divorce or ancillary matters, then the parties must attend the Ministry of Social and Family Development’s Mandatory Parenting Programme (MPP). This aims to help the parties make informed decisions which put the children’s bets interests first. Only once the MSF has certified your attendance can the divorce proceed.

Here at PKWA we can help parties in the MPP application. The MPP only has to be attended once, and the session lasts a maximum of 2 hours. The following link gives further information on the MPP: https://www.msf.gov.sg/divorce-support/pages/mandatory-parenting-programme.aspx

Jurisdiction

To have your divorce proceedings heard in the Family Justice Courts, you or your spouse must be:

1. A citizen of Singapore; or
2. Domiciled in Singapore; or
3. An habitual resident of Singapore for at least 3 years prior to the start of divorce proceedings.

‘Domiciled’ in Singapore means that you can demonstrate you are settled in Singapore and don’t intend to move away in the near future. For instance, an established community of friends and family, or substantial assets in Singapore are things that can prove that you are domiciled here.

Finally, remember that if you were married under Muslim law, then you cannot apply to the Family Justice Courts for a divorce. Only the Syariah Court can accept your divorce application.

Three years of marriage

In order to file for divorce, the marriage must have lasted for a minimum of 3 years.

Couples who have been married less than 3 years must get permission from the Court in order to start divorce proceedings. An application for leave represents the filing of an originating summons, as well as a supporting affidavit, which sets out the reasons you are seeking a divorce. For instance, one ground for divorce could be exceptional hardship that you have suffered.

The Family Justice Court will only grant a divorce if you can prove that the marriage has broken down irretrievably, or one of the following facts has occurred, set out in the Women’s Charter, section 95(3):

• Your spouse acted in such a way that it isn’t reasonable to expect you to continue living with them;
• Your spouse committed adultery, making it intolerable for you to continue living with them;
• Your spouse has deserted you for at least 2 years (a continuous period of two years);
• You have lived apart from your spouse for a continuous period of at least of 3 years, and your spouse has consented to the granting of a judgement;
• You have lived apart from your spouse for at least 4 years, continuously.

What divorce papers must be filed?

To commence divorce proceedings, your lawyer will electronically file the following papers in the Family Justice Courts:

• Writ for Divorce;
• Statement of Claim (setting out the circumstances you’re relying on to divorce);
• Statement of Particulars (giving details of the circumstances you’re relying on);
• Proposed Parenting Plan (if the divorce involves one or more children under the age of 21 years);
• Proposed Matrimonial Property Plan (if you and your spouse jointly own a housing & Development Board flat);
• An Acknowledgement of Service;
• A Memorandum of Appearance.

Serving divorce papers on your spouse

Following acceptance of these documents by the Family Justice Court, they should be served on your spouse so that they are notified that you’ve started divorce proceedings. Your lawyer will serve the sealed copy on your behalf. They will be served using one of the following methods:

1. Electronically, to your spouse’s lawyer (if the lawyer has stated expressly that they will accept service on behalf of your spouse); or
2. Registered Post – only if the defendant signs and returns the Acknowledgment of Service to us); or
3. Personal Service – personnel authorised by your lawyer hands the documents directly to your spouse.

If, as a defendant, you want to contest the divorce, then within 8 days you must file the Memorandum of Appearance.

If you don’t do anything and ignore the papers, a divorce hearing can be requested by your spouse by completing a Request for Setting Down Action for Trial. A hearing date will be fixed by the court, and in your absence the divorce will be granted. As you can see, it’s not a good idea to ignore the divorce process – you risk the court hearing the case without you present, provided the papers were properly served on you.

From here, the divorce proceedings generally follow two routes: either Uncontested or Contested.

Uncontested divorce process

Providing you and your partner agree to divorce, and your spouse raises no issues with what you put in your Statements of Claim and Particulars, then you can tell the court your case is ready to be heard, on an uncontested basis. Your lawyer will submit the Request for Setting Down Action for Trial on your behalf, and a date is then set for the hearing of the uncontested divorce. No members of the public can attend the hearing, as it is held in chambers. If the proceedings are in order and the court is satisfied, the Interim Judgement for divorce will be issued.

Within six weeks of filing the Writ for Divorce, your case should be set down – if it isn’t, then an electronic Registrar’s Notice will be sent, telling you to either set down your case for hearing, or inform the Court of the matter’s status.

Remember that the Interim Judgement is only issued after 3 months. You must wait until the Interim Judgement has been made final before you can remarry.

Contested divorces take longer

Your spouse may contest the Divorce and your reasons for requesting it. If they do, then they can file a Defence, or Defence and Counterclaim, within 22 days of receiving the Writ. They’ll file and service it on your lawyer. The same duration applies to your spouse for the purposes of filing their Proposed Matrimonial Property Plan.

When replying to your spouse’s Defence or Defence and Counterclaim, you’ll have 2 weeks to reply. Once you’ve replied and it has been filed, a date for a case conference in chambers will be set by the Court. A lawyer will attend on your behalf. During this conference, the parties will be prepared for the contested hearing, which takes place as a trial in open court.

Sometimes a possibility for a settlement may arise. If so, the case may be referred for counselling by the Assistant Registrar. This is done by a professional Court counsellor, and increases the likelihood of settlement, which in turn saves time and money, compared to if you proceed to trial.

No settlement – contested divorce trial

Sometimes a settlement is not possible, in which case parties will be directed by the Assistant Registrar to file and exchange Affidavits of Evidence-in-Chief. Here you will give your reasons for the court to allow your divorce. Your lawyer will advise you on the important points to include, to give you the maximum chance of success.

Both parties are required to attend contested divorce hearings, as well as any witnesses you or your spouse want to rely on. Therefore, the duration of the trial can vary from between one day to several days, according to its complexity and number of witnesses.

Interim Judgement

If the judge is satisfied that the marriage has indeed irretrievably broken down, then they will issue an Interim Judgement. An adjournment will take place so allow for any ancillary matters to be heard in chambers.

Stage 2 of divorce proceedings – ancillary matters

The court will grant the Interim Judgement and then set a date for a case conference in chambers to deal with Ancillary Matters. Thus the second stage of the divorce proceedings begin. The purpose of this Ancillary Matters conference is to allow the parties to be prepared by the Assistant Registrar for the Ancillary Matters Hearing. The hearing happens in chambers in the presence of a District Judge from the Family Justice Court.

A settlement is possible even now, just as in the first stage of the divorce proceedings. If so, the Assistant Registrar will refer the case to a counsellor. But in acrimonious cases, or those cases with children involved, a professional social worker may be brought in by the Registrar so a confidential report is made to allow the Court to evaluate the best custody or access arrangements. The court may also appoint a Child Representative to ensure the children’s best interests are represented. The representative will file written submissions for this.

Settling before the ancillary matters hearing

Sometimes parties are able to settle before the ancillary matters hearing happens. If so, the Court will order a consent ancillary matters hearing to be fixed. A Draft Consent Order will need to be drafted, and signed by both parties. If your spouse isn’t represented by a lawyer, they must sign this document in the presence of a Commissioner for Oaths.

If no settlement – proceed to file the affidavit of means

If settlement is just not possible, parties are directed by the Court to submit their Affidavits of Assets and Means. In this document, you lay out all your assets and liabilities, as well as direct and indirect contributions to the marriage, and what you propose to do about the outstanding ancillary matters. Parties are also directed by the court to file the Ancillary Matters Fact and Position Sheet (known as Form 242). As expert divorce lawyers, we at PKWA Law Practice will help you to put your best case forward at all times.

Hearing for Ancillary Matters

If there is no agreement, a contested ancillary matters hearing is fixed for your case. Here, the Assistant Registrar orders parties to file a Summary of Relevant Information (known as Form 243) which lays out the issues being contested, the net value of the assets of the marriage, and the status of the proceedings.

Written arguments should be prepared (by your lawyer) regarding the evidence contained in the affidavits and how the law applies to them.

Depending on the complexity of the issues, the Ancillary Matters hearing could last either several hours, or several days. At the conclusion of the hearing, the case is considered by the judge who will then make their decision.

Certificate of Making Interim Judgement Final

You must wait for 3 months after the court has made their Interim Judgement, or decided on ancillary matters, before you can proceed to get the Certificate of Making Interim Judgement Final.

The divorce process is completed when the Final Judgement is issued. You can now legally remarry.

In summary

If you are not legally qualified, divorce proceedings can be hard to understand. The proceedings are governed by many laws, procedures and rules contained in statute, Practice Directions and Rules of Court. This article explains some of these elements, but it only represents an example of a case.

Divorce by Mutual Agreement means that parties can file for a divorce without blaming each other for the divorce.  There are many advantages to such uncontested divorces. For example, it means spouses don’t have to find fault with each other and spend time and money litigating a messy divorce.  Parties also don’t have to show separation for 3 years before divorcing.

The new law for divorce, making changes to the Women’s Charter has been introduced. Singapore Parliament amended the Women’s Charter on January 10 2021 and introduced Divorce by Mutual Agreement (DMA) as a sixth option, allowing a couple to file for divorce if they mutually agree that the marriage has irretrievably broken down.

Before the new law came into effect, couples were only able to get a divorce if they could prove that their marriage has irretrievably broken down through one of five grounds: adultery; unreasonable behaviour, desertion, three years’ separation (with consent); and four years’ separation (without consent).

The new divorce law allows couples to divorce without needing to prove fault or separation. According to the Divorce by Mutual Agreement law, divorcees need to show that they have been married for at least 3 years and that they have tried to reconcile.

How can a specialist divorce lawyer help you with Divorce by Mutual Agreement?

Even if a divorce will be simplified and uncontested, with decisions made on the main issues before filing for divorce, it is still a good idea to consult a specialist lawyer, particularly if children and/or properties are involved. This is because:

• A lawyer will be able to advise you on child issues, and questions regarding your matrimonial home, which after all is likely to be your most valuable asset. They can also help you navigate questions around HDB rules on sale or retention of HDB flats, and how much maintenance you need to pay to the other spouse and children.
• The lawyer can help you understand what you are entitled to, as well as any obligations you will have. They’ll help you to reach a fair agreement with the other party. The lawyer will also fill out the necessary paperwork which will state the terms of the settlement.
• Getting legal advice reduces the likelihood of having to vary the divorce order because engaging a lawyer makes it more likely that you will get it the right, based on the correct legal advice.
• Hiring a specialist lawyer means you understand from the outset what you can and cannot get in the settlement, so you will not waste time arguing over something you are not able to get. Time and money will therefore be saved.

You can see that, even in amicable divorces, with no courtroom contest, a good divorce lawyer can make things much easier, especially if your circumstances involve property and/or children.

What needs to be agreed on?

Under section 95A(6)(a), the agreement to divorce by mutual agreement must be in writing and must state:

1. The reasons that led the parties to conclude that their marriage has irretrievably broken down;
2. The efforts that parties have made to reconcile; and
3. The consideration that parties have given to the arrangements to be made in relation to their financial affairs and any children of the marriage.

These requirements serve as a safeguard to ensure that the marriage has truly irretrievably broken down and cannot be salvaged. Further, under section 95A(6)(c) the Court may reject the parties’ agreement if it is of the view that in all the circumstances of the case, there remains a reasonable possibility that the parties might reconcile.

An agreement will need to be reached on the following matters, which your lawyer will help you to do:

• The amount of maintenance to be paid to a wife and any children involved.
• How property is to be divided.
• Who will have care and control of the children, and what access and visitation rights should be given to the other parent.