Divorcing A Foreign Spouse : What You And Your Spouse Should Know
Divorces that involve at least one foreign spouse in Singapore have seen a rise, and thus it is only imperative that one is made to better understand the level of complexity in such cases. It is an emotional and intricate process as it involves matters that surpass international borders.
If you are married to a foreign spouse, you are also allowed to commence divorce proceedings in Singapore. Generally, if one party is a Singapore Citizen, the court has the jurisdiction to hear the divorce. If both parties are foreigners, at least one of you must be a habitual resident in Singapore for at least three years before filing for a divorce.
Both parties must also be married for three years. However, if you want to file for a divorce before three years of your marriage, you must show that you have experienced exceptional hardship in the marriage or your spouse has demonstrated exceptional depravity towards you. You can also choose to annul your marriage on grounds that your marriage is void but do note that this differs from a divorce. When you seek to annul your marriage, you have to apply for a nullity of marriage which asserts that there was no valid marriage from the start. Both parties must be residing in Singapore and proceedings will have to take place within three years of your marriage.
Grounds for divorce
Just as every divorce in Singapore, you must show that your marriage has been irretrievably broken down on four grounds – adultery, unreasonable behaviour, desertion and separation.
- Your spouse has committed adultery and you cannot live with him/her anymore.
- Your spouse has demonstrated unreasonable behaviour that no longer allows you to be reasonably expected to live with him/her.
- Your spouse has deserted you for a continuous period of at least two years.
- You have lived apart from your spouse for a continuous period of three years and both parties consent to divorce, or you have lived apart from your spouse for a continuous period of four years (no consent of the other party is required for divorce).
Please note that should you wish to hold the divorce in your spouses’ home country, you can apply to the court for a stay of proceedings to halt all legal divorce proceedings. Only then can you proceed to file for a foreign divorce. Often such decisions are made when couples realise that it is more convenient to do so because their children are residing overseas or due to the fact that most of their matrimonial assets are situated in the foreign country. Moreover, if you cancel your spouse’s Dependant Pass, it will become difficult for the spouse to remain in Singapore and thus foreign divorce would be more appropriate. However, it is advisable to consult a lawyer on such matters so that the divorce proceedings can be carried out smoothly.
Matrimonial assets and maintenance
If you have matrimonial assets overseas, the Singapore courts will still consider them for division so long as they fall within the definition of matrimonial assets as prescribed by section 112 of the Women’s Charter. However, the courts in Singapore typically decline to deal with property located overseas especially if they are immovable. As such, a foreign jurisdiction may have to be applied in the country where the property is located for a division of the asset.
The court can also order you to pay maintenance if your foreign spouse has requested for maintenance. The application for maintenance in a foreign court can still be registered by the Singapore Court. You can also seek maintenance from your foreign spouse by filing for an application locally or in his/her home country.
If divorce proceedings took place in a foreign court, you can still apply for financial relief at the Family Justice Court. You or the other party must be domiciled in Singapore on the date of application or when the divorce took place. There must also be substantial reasons to make the application, and the judge will decide on fair and equitable grounds before granting the relief.
When deciding legal custody and care and control of children, the court looks at several factors such as the primary caregiver, age and preferences of the children and the physical, mental and financial capacity of the parent, among others. The child’s best interest will hold paramount importance.
For children who are Singapore Citizens or Singapore Permanent Residents, they can stay in Singapore following the divorce. Otherwise, those under 21 years of age and are under the care and control of the foreign parent on Employment or S Pass can remain in Singapore as dependents of that parent. The child can also apply for a Student’s Pass to pursue their education in Singapore.
If your foreign spouse chooses to return to his/her home country with your children for good, both parties must give consent. If not, the party that intends to relocate has to seek permission from the court. However, should any party wish to travel outside of Singapore with the children for more than a month, they must apply for a court’s permission. This is regardless of whether the party has custody, care and control of the children.
If children are wrongfully taken out of the country, the party involved can be liable for international child abduction under the Hague Convention on the Civil Aspects of International Child Abduction. However, if the children are taken to a country where the convention does not apply, it will be difficult to file for child abduction. Instead, a sound agreement between both parties must be made on the return of the children. Otherwise, you should seek legal advice from a lawyer in Singapore or the country where your children have been wrongfully taken to.
Read more: Expat Divorce