Proving Marital Rape as Unreasonable Behaviour in Divorce
Marital rape, also known as rape in marriage or spousal rape, refers to non-consensual sex between a married couple in which the perpetrator is the victim’s spouse. It can, in other words, be explained as a form of sexual abuse from one married partner to another.
Charge of marital rape in Singapore
Presently in Singapore, a husband who forces his wife to have sex with him can be charged with marital rape under section 375(4) of the Penal Code, only in the circumstances stated below:
- Husband and wife are living apart due to an interim judgement of divorce or nullity, a judgement or decree of judicial separation or a written separation agreement.
- Husband and wife are living apart and proceedings have begun for the above and have not been terminated nor concluded.
- A court injunction has been issued to restrain the husband from having sexual intercourse with his wife.
- A Personal Protection Order or Expedited Order has been made against the husband for the benefit of his wife or proceedings have commenced for the aforementioned and have not be terminated or concluded.
However, the Singapore Parliament has recently passed a bill that comprises sweeping changes to the Penal Code, which include the repeal of marital immunity for rape. As such, non-consensual sex in marriage, regardless of the circumstances listed above, will be considered as rape. The changes will come into force early 2020.
What is unreasonable behaviour?
Before trying to prove marital rape as unreasonable behaviour between a couple, it is important to understand that ‘marital rape’ can only be used as an offence of rape for the cases above according to the existing law in Singapore. However, a man can still be charged for ‘voluntarily causing hurt’ if he forces his wife to have sex with him. It can be viewed as behaviour that is unreasonable to live with and used as grounds to file for a divorce, in which the victim has to show that there has been a clear breakdown of the marriage as a result of the act.
Unreasonable behaviour is ascertained when you cannot be reasonably expected to live with your spouse because he/she has behaved in a manner that no longer allows you to. There are three tests to recognise this:
- Subjective test: to check if the aggrieved party finds it intolerable to live with his/her spouse, while disregarding any reasonable cause of the perpetrator’s attitude.
- Objective test: to ascertain whether the aggrieved party can reasonably be expected to live with his/her spouse by taking into account the personalities and character traits of both parties.
- Behavioural test: to determine if the behaviour of the perpetrator, including active and passive acts, makes it unreasonable for the aggrieved spouse to live with him/her. These acts must affect the marriage and can include behaviour towards family members and external parties. There is no need to prove the maliciousness of the behaviour. A cumulative effect of the behaviour will also be examined especially for behaviours that may not seem serious when viewed individually.
At present, as prescribed in section 375 of the Penal Code, rape refers to the penile penetration of the vagina without the woman’s consent, or with or without the woman’s consent when she is below 14 years of age. Therefore, only a woman can prove the equivalent of marital rape as unreasonable behaviour according to the tests above and show that it has caused the irretrievable breakdown of her marriage if she wishes to file for a divorce.
However, the new bill that was passed will also expand the definition of rape in Singapore to include non-consensual penile-anal and penile-oral penetration. This means that men will be recognised as rape victims under Singapore law.
If you are unsure whether you can file for a divorce based on the above, please contact one of our divorce specialists for assistance.
Read more: What Do I Do If My Husband Rapes Me?