Divorce in Singapore can be lengthy and expensive, particularly if contested or acrimonious.
Bitter disputes mean divorce takes longer, costs more in legal fees, and has an adverse effect on the married couple and their children.
It has been the case until recently in Singapore that people must show an irretrievable breakdown of their marriage. The legal facts which can demonstrate this are largely blame-based.
In 2022, Parliament in Singapore passed a bill to amend the Women’s Charter to allow divorce by mutual agreement. From sometime in 2023, if both couples consent, then they will be able to obtain a divorce without showing any of the previous legal facts like adultery or desertion.
What are the existing divorce laws in Singapore?
Currently, a couple can only divorce if they can show their marriage has irretrievably broken down. This is the only ground for divorce, although four different legal facts or scenarios can be used to prove this.
To indicate a marriage breakdown with an allegation of adultery will require proof if the other party denies it. This usually requires hiring a private investigator, increasing time and cost.
Unreasonable behaviour may vary from one marriage to another and is based on unique and individual circumstances. Some tried and tested examples of unreasonable behaviour include violence, controlling or coercive behaviour, denial of sex, failing to help with childcare, and drink/drug addiction.
Desertion is evidenced if one spouse has left the other for a period of two years before the divorce petition is filed.
If a formal separation is consensual between the couple, then they need only demonstrate they have lived apart for a continuous period of three years. If divorce on the basis of separation is contested, then this period extends to four years.
Periods of reconciliation to save the marriage cannot be longer than six months and won’t count towards the total. Equally, time spent working away is also not included. The separation must be on a choice basis, not by virtue of necessity.
Divorce by mutual agreement
Divorce by mutual agreement is expected to become law in Singapore sometime in 2023. Couples looking to file a divorce petition now must still rely on proving irretrievable breakdown using one of the four legal facts.
Divorce by mutual agreement is designed to remove the requirement to prove a certain behaviour and apportion blame to mitigate the impact on the divorcing couple and any children.
Agreeing to divorce in this way should speed up the process, result in fewer legal fees and other expenses, and reduce the potential for argument and confrontation. The latter impacts the psychological health and mental well-being of the whole family.
However, divorce by mutual agreement only applies to the first stage of the divorce process in Singapore.
How does divorce work in Singapore?
Divorce in Singapore is a two-stage process. First, the marriage is dissolved, achieved either by proving irretrievable breakdown or, when the law comes into effect, by mutual agreement.
The second part is the ancillary matters stage, where the practicalities are sorted out, such as the division of property and money, plus the custody and care of any children. This can be contested even if the divorce has gone through the first stage by mutual agreement.
It is incorrect to describe divorce by mutual agreement as amicable as the second ancillary stage can be contested and the subject of dispute. If the ancillary matters stage contains any disagreement, then this will become a contested divorce even though the first stage is completed by mutual agreement.
What are the main differences with divorce by mutual agreement?
Non-fault based divorce
Divorce by mutual agreement allows couples to file a joint petition because they both consent to the divorce.
Under the existing system, one applicant starts the divorce petition and cites the other for the irretrievable marriage breakdown, which begins a process based on blame and animosity.
Allocating fault sets an instantly confrontational scene and positions each party as either plaintiff or defendant, but divorce doesn’t have to be a fight.
Divorce by mutual agreement is designed to create a more neutral environment which doesn’t analyse the reasons for the marriage failure and, more importantly, avoids the allocation of blame.
No requirement for separation
Because there is no need to live apart, a divorcing couple can remain in the same household before they start the petition. This can preserve family life, keep a more normal environment for any children, make parenting more manageable, and remove the expense of setting up a separate household.
What is the process for divorcing by mutual agreement?
The couple must still submit a written statement to the court claiming their marriage has irretrievably broken down. The court will consider whether the agreement is sound enough and whether both parties act freely and without duress or coercion.
The document should state the efforts made to reconcile and cover arrangements for their financial affairs and the care and custody of any children post-divorce.
The court has a role in understanding whether reconciliation is possible or likely.
If the court is unconvinced by the content and tenor of the agreement or thinks reconciliation is possible or has not been sufficiently explored, it may order the couple to have counselling or mediation intervention. In this respect, the court can reject the application and order the couple to have another go.
It’s essential to obtain proper legal advice when drafting the application to avoid the possibility of the court rejecting the petition because it believes that all avenues have not been exhausted. This requirement isn’t necessary under the current route of demonstrating irretrievable breakdown as, to an extent, the facts largely speak for themselves.
Are there benefits to divorce by mutual agreement?
The main benefits are the removal of most, if not all, of the blame game. The current divorce law in Singapore requires one party to label the other. This creates a culture of acrimony and bitterness with entrenched positions, encouraging disputes. Generally, contested divorces that take longer and cost more money. They also have an unacceptably heavy toll on the mental well-being of all those involved.
Divorce by mutual agreement recognises the marriage is over but allows the couple and any children to move forward more positively. It also removes the requirement for children to give evidence against one parent or the other to support one of the fault-based facts.
A key element of divorce by mutual agreement is that the couple must put in enough effort to reconcile before the marriage is finally over. Whilst this may not save the marriage, it does make it easier to move forward more positively and amicably, plus resolve joint issues like finances and the care of any children.
Divorce by mutual agreement is generally quicker and cheaper with less negative fallout.
Frequently asked questions
If we want to divorce by mutual agreement, do we still need to be married for three years before filing a petition?
The requirement for a marriage to be three years in duration before starting a divorce petition remains even if a couple opts to divorce by mutual agreement.
What are the drawbacks of divorce by mutual agreement?
The main hindrance is that both parties must agree. If one spouse doesn’t want to divorce and is uncooperative, then the only option will be to start a petition using one of the fault-based facts.
Sometimes, a spouse wants to divorce based on fault and feels they may gain a negotiating advantage at the ancillary matters stage by demonstrating the other party is to blame. For some people, it is important to lay the blame.
Does divorce by mutual agreement mean the whole process will be completely amicable?
The hope is that the statement given to the court can demonstrate a couple has already considered the ancillary matters stage, which can be resolved without dispute.
However, divorce by mutual agreement only refers to the first part of the process, so it is still possible that the ancillary matters of property division and child custody could still be contested.
In conclusion, divorce by mutual agreement will revolutionise the process of ending a marriage in Singapore. Divorce should be quicker, cheaper, and less unpleasant, but it’s not a golden ticket to guarantee a non-contested, friendly divorce.
It is critical to take legal advice to draft a valid petition the court will accept. As the law is new, this will prove even more essential.