In Singapore, separation can be formal or informal; it may be a precursor to divorce, but not always.
Separation has always been one way of demonstrating the irretrievable breakdown of a marriage; the other three grounds are adultery, desertion, and unreasonable behaviour.
Separation was often the preferred choice of couples where neither was at fault for the marriage breakdown, and didn’t want to proceed on a fault-based scenario.
Now, the law in Singapore is changing so that couples can get divorced without apportioning blame. However, despite divorce by mutual agreement, separation still plays a part in the landscape of marriage and marriages, which are failing.
What is separation, and how does it work?
Separation can be formal or informal, depending on what the separation is required to achieve.
Informal separation does not have to be a precursor to divorce.
Couples can separate informally whenever they want, and how they conduct this period is entirely up to them if they don’t intend it to lead to divorce. It could be a trial period or a break during which a couple lives apart physically.
Informal separation can also take place under the same roof. However, if a couple remains in the marital home, there must be a disruption of the matrimonial and physical relationship if this period is to act as a valid ground for divorce. This includes ceasing mutual spousal duties such as communal cleaning or cooking.
For a separation period to be valid, only one of the parties must intend that it leads to divorce.
Deed of separation
A deed of separation is a legally binding document executed jointly by a married couple that describes the separation arrangement and how they intend to live apart. It is also called a separation deed.
The deed will include details such as:
- The date when the couple separated
- Their living arrangements
- An agreement that both parties will live separately from each other
- Financial arrangements, which must be the subject of mutual agreement
- Maintenance protocols for any children, including where they are going to live, who is the principal carer for the child or children, and access arrangements for the other spouse
Both parties to the marriage must consent to a deed of separation. The document doesn’t need to be registered with the court or anywhere else. However, the Family Justice Courts will have jurisdiction over a separation deed if the court hasn’t previously sanctioned it, and the terms are improper or unfair.
Judicial separation is a legal process whereby one spouse can file for separation independently under Section 101 (1) of the Women’s Charter.
Judicial separation could be necessary because one party to the marriage doesn’t believe the other spouse will comply with the terms of a deed of separation. It could also be the most appropriate course of action for a couple who no longer want to live together but are unable or don’t want to divorce. An example would be for religious reasons.
If the couple cannot agree on the detail of any ancillary matters, the court will decide on their behalf.
The party filing for the court order must prove the irretrievable breakdown of the marriage on one of the three remaining grounds – adultery, unreasonable behaviour, or desertion. The couple must also have been married for at least three years.
Failure to comply with a court order for judicial separation is an offence.
The main similarity between judicial separation and a deed of separation
The main similarity is the couple will remain legally married with either a separation deed or judicial separation. Both arrangements also address matters like the division of marital assets and the care, custody, and maintenance of any children.
The couple can still reconcile with both a separation deed and a judicial separation. If an official judicial separation is in place, they will need to file for a rescission of the judgement of judicial separation to cancel the court order.
Does a deed of separation help facilitate a divorce?
A separation deed can be a helpful precursor to divorce as it acts as a preparatory step for the realities of living apart and splitting financial assets and property, as well as making arrangements for the care and custody of any children.
If divorce is the next step, the legal criteria for divorce by separation will still apply. That’s a period of three years’ separation with the consent of both parties, and four years’ separation for divorce without consent.
However, a deed of separation can also provide breathing space for a couple to take stock and is a valuable tool in saving a marriage or delaying a divorce to protect the interests of young children.
The role of separation in a divorce by mutual agreement
In 2022, proposed new laws in Singapore will allow ‘no fault’ divorce, essentially divorce by mutual agreement.
Divorcing without needing to apportion blame is designed to ease tension and conflict and lead to a more pain-free exit from the marriage, benefitting the couple and any children.
However, this won’t be a route to a ‘quick divorce’ as couples must have been married for at least three years before they can contemplate divorce and show they have made a concerted effort to save the marriage and even reconcile.
Separation can play a part in this, as although it may seem like the first step on the road to divorce, it can allow breathing space for couples to work through their differences and remove an acrimonious and confrontational atmosphere in the home.
Is separation preferable to divorce?
Separation is often viewed as a better option than divorce. First, it avoids the social stigma of divorce, which can be problematic for religious couples.
Secondly, informal separation has no time requirements, unlike divorce – you can just separate, and it can be as informal as that. However, separation can also be formalised (again without time requirements) so couples know where they stand, plus there is an element of protection. A deed of separation is almost like a divorce without waiting for the requisite three years of marriage.
Finally, separation does not end the marriage, so there is always a possibility of a way back via reconciliation.
Final thoughts on separation
Separation can be a precursor to either divorce or reconciliation. Separation can be informal or formalised with a legal deed.
If a separation looks like it will be permanent and is the overture to divorce, then drawing up a formal deed of separation using a solicitor is worthwhile. This can reduce a lot of the problems for later divorce proceedings. A lawyer can ensure their client’s best interests are looked after regarding the division of marital assets, and the care and custody of any children.
Separation, whether informally or by deed of separation or judicial separation, can have significant legal consequences since it is still one of the legal grounds used to show an irretrievable marriage breakdown to obtain a divorce. That’s why legal advice is desirable, if not essential, before agreeing to the terms of any separation.
Frequently asked questions
Does informal separation affect marital status?
In Singapore, the laws regulating marriage do not require cohabitation, so couples are free to separate without challenging their legal position if they want to preserve their marital status.
Equally, separation can be used as a valid ground for divorce if the marital relationship between both parties is clearly and fully disrupted.
What happens if a married couple spends time apart due to overseas work commitments?
If a couple is separated due to work commitments, that doesn’t count as a formal or informal separation in the context of their marriage; a separation must be the couple’s choice and relate directly to their marriage rather than be because of extraneous reasons.
Should a lawyer always draft a deed of separation?
A deed of separation does not have to be drafted by a solicitor to be legally valid. A written document put together by a couple will still hold water, and even an oral arrangement can be legally binding. However, this is harder to evidence in the event of a dispute.
Taking legal advice is sensible as the separation deed may contain financial arrangements and provisions for children.
Am I still legally married if I execute a deed of separation with my spouse?
A separation deed doesn’t change the legal status of a marriage, so neither party is free to re-marry – you’ll need to divorce if you want to do that.