As we have shared before, there are five facts to prove the irretrievable breakdown of marriage to file for a divorce in Singapore – adultery, unreasonable behaviour, desertion, 3 years’ separation with consent and 4 years’ separation without consent. Separation is often used as a reason to file for divorce in Singapore when both parties are not at fault for the breakdown of the marriage. However, for couples to use separation as grounds for divorce in Singapore, they will have to either be:
- Separated for a continuous period of three years with consent; or
- Separated for a continuous period of four years without consent
There are typically three ways in which couples can bring about separation before they commence their divorce proceedings in Singapore. Do note, however, that it is not necessary for a divorce to take place after being separated as certain couples choose to be legally separated. This happens when they are unable to file for a divorce due to varied reasons. We discuss further below:
Couples can choose to separate on their own will if they feel that they can no longer maintain a marital relationship with each other. However, for the court to use informal separation as a reason for divorce in Singapore, the couple must show that both parties intend for the separation to lead to a divorce. This can be done by:
Physical separation under the same roof or in different houses
The couple must first show that they have been living physically separate lives. This means that they can either be living in different houses or living in the same house but different rooms. The couple must also be physically separated on their own will and not out of necessity. As such, if the couple had to live in separate houses for work purposes or separate rooms due to illness, it will not be considered a physical separation.
Allow us to take it from here.
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1. Absence of spousal duties
The law in Singapore does not require spouses to cohabit to prove that they are married. This means that spouses who intend to separate in view of a possible divorce must show that they have been living completely independent lives as well. As such, they should not perform any spousal duties, such as cooking, cleaning and maintaining the household. Should the couple still live in the same home, for instance, they must show that they are running separate households.
2. Deed of Separation
If couples prefer to formally record their separation without the involvement of the court, they can produce a Deed of Separation. This formal document records their mutual agreement to live separately, details of the separation which comprise the date from which the separation commences and other details pertaining to the separation, such as their living arrangements. The deed can also include terms that govern the division of matrimonial assets, children custody and maintenance. This is especially important when children are involved and/or when one party will be in a financially disadvantaged position after the separation due to being monetarily dependent on the other spouse throughout the marriage.
As these terms are similar to that of a divorce agreement, seeking a lawyer’s advice will help ensure that the Deed of Separation is fair for both parties. The terms can be changed and revoked any time with the consent of both parties.
Do note, however, that such a formal document does not negate the fact that the couple is still legally married. They are thus not allowed to remarry. While the deed prepares the couple for a real divorce, there is still hope that they may reconcile.
When the Deed of Separation is invoked once both parties intend to file for a divorce after three years (and either party after four years), the court in Singapore can reject the terms stated in the deed if it finds them unfair to the parties or their situation after the divorce.
3. Judicial separation
Couples who want to be lawfully separated can apply for a judicial separation instead of a divorce from the Family Justice Court in Singapore. This gives legal recourse to couples who want to live separate lives due to an irretrievable breakdown of marriage but are unable to file for a divorce as a result of their commitments to their religions and children, or due to pressure by moral and societal norms. To file for a judicial separation, the couple must have already been married for three years, and are seeking separation on the same facts required for a divorce to prove the marriage has irretrievably broken down.
A judicial separation frees the couple from all marital obligations and both parties can permanently live separate lives. It also entitles them to similar claims as they would if they had pursued a divorce. These include the division of matrimonial assets and ancillary matters pertaining to the custody, care and control of the children. However, judicial separation does not permit them to remarry.
A Deed of Separation is different from a judicial separation in that the former does not require the court’s involvement until it is invoked when filing for a divorce. You can learn more here.