In Singapore, couples who wish to formally separate, but do not meet the criteria for divorce or do not wish to divorce may apply to the Court for a judicial separation.
This article investigates the nuances between judicial separation and divorce, highlighting the unique differences between them and the legal implications of each path.
Unlike divorce, judicial separation does not legally end the marriage. Instead, it allows spouses to be formally separated, while remaining legally married.
Key Points
- Judicial separation allows spouses to formally separate without ending their marriage.
- The parties remain legally married and cannot remarry, until they are formally divorced.
- The Court can make orders for the division of matrimonial assets, children’s and spousal maintenance, and children’s arrangements.
- Judicial separation may be a viable option, where certain individuals are unable to proceed with a divorce, for religious, personal or practical reasons where divorce is not preferred.
- A judicial separation does not preclude a later divorce.
- It differs from a Deed of Separation, which is a private agreement between spouses.
– Why Judicial Separation?
– Facts for Judicial Separation
– How Does a Judicial Separation Differ From a Divorce?
– Applying for a Judicial Separation
– What Happens to Assets, Maintenance and Children?
– Judicial Separation vs Deed of Separation
– Can You Divorce After Judicial Separation?
– What Happens if One Spouse Dies?
– Frequently Asked Questions
– Considering Judicial Separation?
– Why Judicial Separation?
– Facts for Judicial Separation
– How Does a Judicial Separation Differ From a Divorce?
– Applying for a Judicial Separation
– What Happens to Assets, Maintenance and Children?
– Judicial Separation vs Deed of Separation
– Can You Divorce After Judicial Separation?
– What Happens if One Spouse Dies?
– Frequently Asked Questions
– Considering Judicial Separation?
Why Judicial Separation?
A judicial separation is an alternative for parties who wish to live separate lives but cannot proceed with a divorce or an annulment for a multitude of reasons, including:
- Failure to meet the legal requirements for a divorce or an annulment;
- Religious commitments / beliefs;
- Moral grounds;
- Societal obligations; and
- Considerations for their children.
In an application for judicial separation, parties may seek orders for the financial issues and other ancillary matters to be made, such as for the division of matrimonial assets and the children’s issues.
Once a judgment of judicial separation is granted, parties will be legally and formally separated. Under section 101 of the Women’s Charter, it is no longer obligatory for the applicant to cohabit with the respondent. However, the marriage itself continues and the parties remain legally married.
At the same time, a judgment granting judicial separation does not preclude either party from filing for a divorce once they are ready or once they have met the relevant legal requirements.
Facts for Judicial Separation
To apply for a judicial separation, one has to prove that the marriage has irretrievably broken down by relying upon at least one of the following facts:
- adultery;
- unreasonable behaviour;
- desertion for at least two years;
- separation for three years with consent or
- separation for four years without consent.
- mutual agreement
Where mutual agreement is relied upon, the written agreement must address the reasons the marriage has broken down, efforts made to reconcile, why further attempts to reconcile would not work and consideration given to the parties’ financial affairs and any children of the marriage.
How does a Judicial Separation differ from a Divorce?
The main difference between a judicial separation and a divorce is that in a judicial separation, parties are still legally married and cannot remarry, until they officially divorce, even though they are formally separated.
However, the Court has the power to deal with ancillary matters, such as the children’s issues and financial matters, like the division of matrimonial assets, in both a judicial separation and a divorce. The Court has the power to make orders regarding any property and assets that parties own, arrangements for any children and for parties to pay maintenance for their spouse and/or any children.
Put simply, divorce ends the marriage. Judicial separation does not. This distinction is particularly important if either spouse may wish to remarry in the future.
Applying for a Judicial Separation
Judicial separation can be pursued immediately after marriage, unlike divorce, which generally requires parties to be married for at least three years.
This may make judicial separation an option where a marriage has broken down within the first three years and divorce is not presently available or preferred.
An application is made to the Court and must satisfy the relevant legal requirements. Depending on the circumstances, issues concerning property, finances and children may also need to be addressed.
What Happens to Assets, Maintenance and Children?
Judicial separation can involve more than the formal separation of the spouses. The Court may also deal with important financial and family matters arising from the marriage.
- division of matrimonial assets;
- spousal maintenance, where applicable;
- maintenance for any minor children; and
- custody, care and control and access arrangements for any minor children.
Where children are involved, the welfare of the child remains the Court’s paramount consideration, when determining what orders should be made for them.
Judicial Separation vs Deed of Separation
A Deed of Separation and judicial separation both allow spouses to remain legally married while living separately, but there is an important difference between them.
A Deed of Separation is a private agreement between spouses. Both parties must agree to its terms, before it may be executed.
Judicial separation involves a formal application to the Court and results in a judgment of judicial separation, which is an order of court, that may be enforceable against either party.
The legal significance and repercussions of a Deed of Separation and a judgment of judicial separation are thus very different, and could serve very different purposes depending on the parties’ intentions, concerns and circumstances. Which approach is more appropriate will depend on the circumstances, including whether both spouses can reach an agreement, whether enforceability is a concern during the time before a divorce is obtained and the issues that need to be resolved.
Read more: Difference between a Deed of Separation and Judicial Separation?
Can You Divorce After Judicial Separation?
Yes. A judgment of judicial separation does not prevent either spouse from subsequently applying for divorce.
The Women’s Charter expressly provides that a previous judicial separation does not, by itself, prevent a later divorce application or the Court from granting a divorce.
Judicial separation therefore does not necessarily have to be permanent. If circumstances later change, divorce may still be considered, subject to the applicable legal requirements.
What Happens if One Spouse Dies?
Judicial separation can also have an important effect on inheritance, where a spouse dies without a will.
Under section 103 of the Women’s Charter, while a judgment of judicial separation remains in force and the separation continues, if either spouse dies intestate, their property devolves as though the other spouse had already died.
This is an important consideration for judicially separated spouses, particularly where significant assets and estate-planning issues are involved.
Frequently Asked Questions
Unlike a Deed of Separation, judicial separation does not simply depend on both spouses agreeing to separate. It is a Court process and a judgment of judicial separation is a binding order of court, that can be enforced against either party. The spouse applying must establish the relevant legal requirements for judicial separation.
A matrimonial home may need to be addressed as part of the financial issues arising from judicial separation. What happens to an HDB flat will depend on the circumstances, any Court orders and applicable HDB requirements. CPF monies used towards the property may also need to be considered.
Living under the same roof does not necessarily mean that spouses are continuing their marriage in the ordinary way. Some couples may remain in the same property for financial, parenting or practical reasons. The particular circumstances should be considered carefully, where separation is being relied upon legally.
Not automatically. Judicial separation does not simply remove a spouse’s potential interest in matrimonial assets. The Court may deal with the division of matrimonial assets as part of the matrimonial proceedings.
Reconciliation may affect the continuing relevance of the judicial separation. The Women’s Charter provides circumstances in which a judgment of judicial separation may be rescinded. Legal advice should be obtained if spouses reconcile after a judgment of judicial separation has been granted.
No. Judicial separation does not dissolve the marriage. Both spouses remain legally married and cannot remarry unless the marriage is subsequently ended through divorce and the Final Judgment has been granted.
Neither option is automatically better. A Deed of Separation may suit spouses who can agree privately on the terms of their separation and where enforceability is not a major concern, while judicial separation involves a formal Court process and results in a binding order of court, that may be enforceable against either party in the event of a breach. The appropriate option depends on your circumstances, what you need the separation to achieve and what concerns you may have during the period of separation.
Considering Judicial Separation?
Choosing between Judicial Separation, a Deed of Separation and divorce can have important consequences for your marriage, property, finances and children. The appropriate option will depend on your circumstances and what you want to achieve.
Our divorce lawyers can advise you on the legal and practical differences between these options and how they may apply to your situation.
Book a Strategic Divorce Consultation to discuss your circumstances and understand your options before deciding your next step.
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