Guide to Contested Divorce

A contested divorce in Singapore can mean one of two things.

A spouse contests the basis for divorce. For instance, one party alleges a legally defined fact like adultery and the other spouse contests it, or the divorce is by mutual agreement, but the ancillary matters are disputed.

A contested divorce usually takes longer and is more stressful and costly. The process is adversarial and involves court proceedings.

Mediation can help reduce points of conflict. If there are children, mediation may be compulsory. A judge can also order it once proceedings have started, or a couple can attend counselling or mediation sessions privately, and of their own volition.

What is a contested divorce?

A contested divorce includes the following scenarios:

• The parties cannot agree that the marriage is over.
• The basis for divorce is disputed, so one spouse alleges adultery against the other, and that person is contesting it.
• The couple both consent to divorce but cannot agree on the ancillary matters, which include the division of money, other marital assets, and the care and control of any children.

An agreement may fail in one or more of these areas, meaning the divorce becomes contested. In a contested divorce, a court judge will make a decision on matters where a couple cannot amicably agree on terms or issues.

What is the process for a contested divorce?

A writ is served by one party to the marriage, the plaintiff, on the other, the defendant. The defendant has 22 days from the service date to file a defence. The plaintiff then has a further 14 days to reply to the defence and counterclaim.

A contested divorce must have a pre-trial conference (PTC). The idea is to attempt to resolve some issues before the hearing and reduce the contested areas. Mediation is an alternative at this point.

If the divorce remains contested after mediation and a pre-trial conference, a date is set for a trial. At the trial, the court decides whether the marriage has irretrievably broken down. If it has, then an interim judgement is granted.

A contested divorce trial can last for several days. It is demanding and stressful with the requirement for each party to produce evidence and undergo cross-examination.

What is divorce by mutual agreement?

In 2022, Parliament in Singapore agreed to an amendment to the Women’s Charter to take effect at some point in 2023.

This allows divorce to proceed based on mutual agreement and means one party does not have to cite the other for the marriage failure.

A mutual agreement avoids the apportionment of blame in an attempt to keep matters amicable. It creates a culture where the parties are more likely than not to cooperate with one another.

Mutual agreement benefits the broader family, including any children, and reduces animosity, stress, and the time to get divorced. Both couples must agree to divorce by mutual agreement.

If one party refuses to accept that the marriage is over or doesn’t want to divorce for some other reason, then a spouse has no option but to petition for divorce based on one of four legally defined facts. The divorce becomes contested.

Even with a change in the law, some married couples will want to proceed based on a legally defined fact if they wish to apportion blame. For example, this could be the case in a marriage where one spouse has been violent towards the other.

Some view apportioning blame by using one of the four legally defined facts as a way of gaining an advantage when negotiating on property and children. However, this doesn’t necessarily follow.

A spouse may feel they wish to proceed based on one of the four legally defined facts because they want official recognition for the reasons why the marriage failed.

Some people want to apportion blame, but lawyers will generally try and discourage this as it’s not productive and causes more problems. These problems include drawing out the process, increasing animosity, and ultimately costing more money.

In a contested divorce, a judge can end up making the decisions for the couple, taking the route forward out of their hands.

A brokered agreement between the two will always be the best way forward.

Does divorce by mutual agreement mean a divorce is not contested?

A divorce may still be contested even if its proceeding by mutual agreement when a couple disagree over ancillary matters such as the division of property, assets, and/or the care and custody arrangements for any children.

The idea of divorce by mutual agreement is that the opportunities for blame are reduced from the outset. This has a knock-on effect when it comes to sorting out the detail. However, the devil is often in the detail.

Even in a divorce based on mutual agreement, a couple in a dispute over the apportionment of marital property and the arrangements for children will find themselves in a contested divorce.

Why is a contested divorce more time-consuming and expensive?

When a couple is in dispute, negotiations take longer, and it is more difficult to move the divorce forward to a satisfactory conclusion.

Unsurprisingly, lawyers tend to be busier and more involved in a contested divorce than in an amicable situation. Negotiations take longer, there are more documents to draft, and the costs goes up accordingly.

Contested divorces involve court hearings, increasing the time taken to reach an interim judgement.

If children are involved, a solicitor may have to attend mediation sessions which increases the cost.

Whilst an uncontested divorce can cost between $2,000 – $3,000 a contested divorce is likely to cost somewhere between $15,000 – $40,000+ depending on the complexity.

What is the role of mediation in divorce proceedings?

Mediation is encouraged by the Singaporean judiciary and family lawyers for contested divorces and non-contested divorces, which are currently proceeding on an amicable basis. Disputes can occur at any time and lead to a breakdown in negotiations.

There are two types of mediation, court-based and private family mediation, conducted away from the court.

Court-based mediation

Mediation sessions at the Child Focused Resolution Centre (CFRC) are compulsory for couples with children under the age of 21 who are choosing the route of a contested divorce.

The sessions focus on the arrangements for and the welfare of any children. They are not designed to deal with other matters like the split of property or assets unless they impact the agreement over the children.

The sessions are free of charge and conducted by family counsellors and trained judge-mediators. Couples can bring their appointed legal representative to these sessions, although this incurs a cost.

The sessions are conducted quite early in the process, usually at the point in time when the divorce papers have been filed and before the first hearing.

The number of sessions varies according to the complexities or otherwise of each case. Usually, cases are settled with an average of three sessions.

Mediation can help a couple work out co-parenting arrangements acceptable to both parties and avoids leaving these decisions in the hands of a judge, which is the only other option if the couple cannot agree.

When a couple reaches an agreement, a judge records this, and it is legally binding. If the mediation breaks down without consensus, information shared in those sessions cannot later be used as evidence in court.

Mediation ordered by the Family Court

Under the Family Justice Act, courts can direct cases to mediation or counselling. This is when proceedings have usually commenced. If the couple can reach an agreement, it is recorded by the judge and will be legally binding.