Getting A Divorce Lawyer In Singapore? Read This First

By law, there is only one ground for divorce – the marriage has to have irretrievably broken down.

However, before proving irretrievable breakdown, the following pre-conditions should be met:

Pre-conditions for divorce

1. At least 3 years of marriage

In order to get a divorce in Singapore, parties need to have been married for at least 3 years. This is in place to promote the sanctity of marriage and to ensure parties do not rush into and out of marriage capriciously.

However, in exceptional cases, the Court may allow a couple to file for divorce before completion of 3 years of marriage. In order to do so, the Plaintiff (i.e. the party filing for divorce) has to prove that he or she is suffering from exceptional hardship or that the Defendant (i.e. the other party to the divorce) has been exceptionally unreasonable and cruel.

There is no fixed legal definition for the terms exceptional hardship and exceptionally unreasonable and cruel. What amounts to exceptional hardship or exceptionally unreasonable and cruel behaviour depend on the facts of each case. However, past cases suggest that the Court will not readily rule as such in order to grant an early divorce.

2. Connected to Singapore

The Court will only grant a divorce if at least one party to the marriage has a strong enough connection to Singapore.

This connection can be established if at least one party is domiciled (i.e. treats Singapore as his or her permanent home) at the start of the divorce proceedings. Expatriates who come to Singapore for temporary work or to study are generally not considered as domiciled.

Alternatively, either party must have continuously resided in Singapore for at least 3 years immediately before the commencement of the divorce proceedings. Brief holidays and business trips would not usually break the continuity of residence.

Proving the marriage has irretrievably broken down

In order to commence divorce proceedings, you need to demonstrate to the Court that your marriage has irretrievably broken down.

In order to show this, you have to prove the existence of at least one of the 4 legally-defined facts: adultery, unreasonable behaviour, desertion or separation.

Adultery

The Court will consider your marriage to have irretrievably broken down if one of the parties has committed adultery, and the other finds it intolerable to live with the offending party.

Unreasonable behaviour

Where one party has behaved in such a manner that the other cannot reasonably be expected to live with them.

What constitutes unreasonable behaviour is subjective. Some examples include:

• Violence
• Constant late nights
• Drug addiction
• Compulsive gambling habits
• Deprivation of sex
• Working too many hours

Desertion

Where one party has deserted the other for a continuous period of at least 2 years before the filing of divorce with no intention of returning.

Separation (i.e. living apart)

Where parties have been living apart continuously for a period of 3 years, and the Defendant consents to the divorce.

Take note that living apart must be by choice and not due to necessity. For instance, if one party has been posted overseas for work, that time is unlikely to be counted as part of the required 3 years.

If both parties get back together briefly during the period of living apart, the separation can still be considered continuous as long as the period of reconciliation does not exceed 6 months. However, the time spent living together will not count toward the required 3 years.

If parties have been living apart for 4 years or more, the Plaintiff does not require the consent of the other party for divorce.

Other Information To Note

If you are married under Muslim Law, you must file for divorce in the Syariah Court Singapore.

If you have children aged 21 years old and below, you will be required to attend the Mandatory Parenting Programme (MPP) conducted by the Ministry of Social and Family Development (MSF) if you or your spouse have not reached an agreement on the divorce and all ancillary matters. Otherwise, you will not be able to file for a divorce (if you intend to commence one) or file a counterclaim (if your spouse is the one filing for divorce).

You may also need to attend the MPP after divorce proceedings have been initiated if the Court orders you to do so.

It is possible to file for divorce without engaging the service of a lawyer. However, bear in mind that this does not excuse you from any requirements of the court proceedings requirements.

In other words, you will be held to the same standards as if you were represented by a lawyer.

It is advisable for you to engage a lawyer, especially if you anticipate that your spouse will contest the divorce. This is because contested divorce proceedings are more complex and lengthy, thus requiring professional legal guidance.

What is an Annulment?

An annulment is a legal procedure that dissolves the marriage and declares it null such that it never occurred in the first place.

Differences between an Annulment and a Divorce

The main difference between annulment and divorce is that an annulment declares that the marriage never existed while a divorce ends a marriage without denying its previous existence.

Other key differences between an annulment and a divorce include:

• An annulment does not usually involve ancillary matters since the marriage is typically a short one.
• After an annulment, your marital status will be “single” while you become a “divorcee” after a divorce.
• In a divorce, you have to prove an irretrievable breakdown of the marriage. Meanwhile, in an annulment, you need to prove that your marriage is void or voidable.

What Does it Mean for a Marriage to be Void or Voidable?

A void marriage is one that is invalid from the very start of the marriage, even if you decide not to formally annul the marriage.

Meanwhile, a voidable marriage is one that is invalid but can continue to exist unless the marriage is annulled.

Grounds to Prove that a Marriage is Void or Voidable

For a void marriage, you will need to prove that there was an error in fulfilling the requirements for a valid marriage. An example would be a marriage between close relatives (which is prohibited in Singapore) or the improper solemnization of the marriage.

For a voidable marriage, you will need to prove other grounds. Some examples are if your marriage was not consummated due to the other party’s refusal or incapacity of either party and if you are a male and your wife was pregnant with another man’s child at the time you married her.

Requirements for Annulling Your Marriage

If your marriage is void, there is no time limit for when you must apply to annul your marriage.

However, if your marriage is voidable, you must apply for an annulment within 3 years of marriage.

Take note that you do not have to be a Singaporean to annul your void or voidable marriage in Singapore. However, you and your spouse must be living in Singapore when you start the annulment proceedings.

Annulment and your HDB Flat

If you are seeking an annulment of marriage and you and your spouse have an HDB flat, the general rule is that HDB will not allow either one of you to retain or sell the flat. Instead, it will be surrendered to HDB at the prevailing compensation price, subject to HDB’s approval. This is because an annulment usually occurs within the first 3 years of marriage, at which time the Minimum Occupancy Period (MOP) of 5 years is not met.

Retention of the flat by either party is only allowed with parents who were originally listed in the application to buy the flat.

In the event both parties are willing to enter into an agreement to transfer ownership of the flat to one of the parties, an appeal may be made to HDB. However, such transfers are subject to HDB’s approval and eligibility criteria.

When you file for annulment, your lawyer will submit an “Agreed Matrimonial Property” plan or “Standard Query” form to HDB to determine whether you are eligible to retain the flat.

A simplified uncontested divorce is when you and your partner are able to agree on all issues amicably.

In order to obtain an uncontested divorce in Singapore, you and your spouse must reach an agreement on the following matters:

• Property division (including debts)
• Spousal maintenance
• Children’s wellbeing
• Cost of proceedings

If you and your partner are unable to resolve certain issues, you could opt to engage a neutral third-party mediator to facilitate negotiations on those issues. This eliminates the need for expensive and time-consuming divorce litigation.

Lastly, your divorce lawyer will ensure the agreement complies with Singapore divorce law and proceed to file the papers on your behalf.

Through uncontested divorce, you can obtain Interim Judgement in 3-4 weeks following which you have to wait the mandatory 3 months for the Certificate of Final Judgement.

What You Need to Inform Your Lawyer

1. The reason the marriage has irretrievably broken down – whether it is due to adultery, unreasonable behaviour, desertion or separation.
2. The decision of which party is the Plaintiff and the Defendant.
3. The agreement parties have reached on the following matters:

Property division

This refers to which assets will be divided and how they will be divided.

Spousal maintenance

This refers to the type of maintenance the wife will receive – whether it is nominal, a specific sum per month over a fixed period of time, a one-time lump sum or no maintenance.

Children’s wellbeing

This includes custody (i.e. joint or sole), care and control (i.e. sole, shared or split), access (i.e. liberal, reasonable or supervised) and maintenance regarding the children.

Cost of proceedings

Whether the cost of divorce proceedings will be borne by one party or shared between both.

Steps Involved in the Process

1. Party A engages the Lawyer to provide the above information regarding the divorce.
2. Lawyer draws up the draft divorce papers and sends them to Party A.
3. Party A discusses the first draft with Party B and informs the Lawyer of any amendments to be made
4. Lawyer makes the amendments and sends the second draft to Party A.
5. Parties A and B discuss again.
6. Party B has the option to seek independent legal advice on the draft divorce papers.
7. In the event Party B opts not to and is in full agreement with the second draft, Party A will inform the Lawyer to draw up the final papers for the parties’ execution before the Commissioner for Oaths.
8. Parties A and B meet with the Lawyer and Commissioner for Oaths to sign the papers.
9. Papers are filed in Court and if they are in order, an uncontested divorce hearing date is fixed (usually 3-4 weeks time). Parties are usually not required to attend the hearing.
10. The Court will review the documents to decide whether the marriage has irretrievably broken down. If the Court is not convinced, the Court can require both parties to attend an open court hearing for them to present further evidence to support their case.
11. Once the Court is satisfied that that marriage has irretrievably broken down and all ancillary matters have been settled, Interim Judgement will be granted.
12. If parties have children below the age of 21, parties will have to attend the Mandatory Parenting Programme (MPP).
13. Final Judgement is extracted in 3 months.

When a divorce is contested, it means that there is at least one issue that is yet to be resolved. 

In contested divorce proceedings, both parties will have to attend trial and provide evidence to support their respective cases on how the issue(s) should be resolved. Hence, contested divorce proceedings are often lengthy and arduous.

Issues that are often in contention include child custody, child visitation rights, division of assets as well as the allocation of debt.

1. Plaintiff files a Writ of Divorce and other accompanying documents to commence divorce proceedings against the Defendant.
2. If the Defendant is contesting the Writ, he or she will have 22 days from the date of service of the Writ of Divorce to file a Defence and/or Counterclaim in response to the Plaintiff’s claim for divorce.
3. Once the Defendant files his or her response, the Plaintiff will have 14 days from the date of service of Defence to file his or her Reply to Defence and/or Counterclaim.
4. A contested divorce will go through a Pre-Trial Conference or mediation. This helps narrow contested areas by looking to see if some of the issues can be resolved before trial. 
5. However, if the Pre-Trial Conference or mediation is not successful in resolving all outstanding contested issues, a date will be set for the trial. 
6. At trial, the Court will determine whether the marriage has irretrievably broken down after weighing the evidence given by both parties in their affidavits and through cross-examination. If the Court is convinced, it will grant Interim Judgement. The case will then move on to the ancillary matters stage.
7. Preparation for the ancillary matters hearing is complex. Proceedings will likely be prolonged by at least another 6 months
8. After all ancillary matters have been settled, both parties can apply to make the Interim Judgement final once 3 months have passed since it was granted.

Overall, contested divorce proceedings can drag on for several days, incurring high cost and wearing you down emotionally.

The process may prove to be especially unpleasant in cases where children are involved. Both parties must also be prepared for cross-examination during trial.

The definition of matrimonial assets includes:

• Assets acquired by one or both parties during the marriage
• Assets used by one or both parties or their children for various purposes
• Assets acquired before the marriage but substantially improved in quality during the marriage

Common examples of matrimonial assets are the family home, car, shares, savings, businesses, jewellery and cash balance in the couple’s CPF accounts.

Assets that are excluded from the above definition of matrimonial assets are:

• Gifts (from a 3rd party) or inheritance that has not been substantially improved during the marriage

During the ancillary matters stage, the Court will take into account the following factors in order to ensure a fair division of the contested assets:

The Extent of Financial Contributions Towards these Assets (Direct Contributions)

The Court will consider the extent of contributions made by each party towards obtaining, maintaining and improving the asset.

The Extent of Non-financial Contributions towards the Welfare of the Family (Indirect Contributions)

Non-financial contributions include looking after the household, caring for an elderly or disabled family member and the extent of support given to allow the other party to pursue his/her career.

Debt Owed

The Court will consider whether the debt was taken for the individual benefit of one party, joint benefit of both parties or for the child’s benefit.

The Needs of the Children of the Marriage

In determining the child’s needs, the Court will take into account the party to which care and control of the child is given.

Any Agreements on the Divisions of Assets between the Parties

Such agreements include pre-nuptial and post-nuptial agreements.

The Financial Independence of Each Party After Divorce

The Court will consider the working ability and qualifications of both parties.

Overall, the Court generally has wide discretion in determining a proportion that is fair and equitable. Hence, proportions are decided on a case-by-case basis.

Additional Considerations

The length of the marriage

In short marriages, financial contributions tend to take precedence because indirect contributions tend to be limited. On the other hand, in long marriages, indirect contributions may be greater. Hence, it is possible for a homemaker with no financial contributions to get a higher proportion of the matrimonial assets.

The size of matrimonial assets

If the assets are of high value and were accumulated by a sole party, direct contributions would likely be given more weight.

The extent and nature of the indirect contributions

It is held that not all indirect contributions hold equal leverage. For example, if the household employed a domestic helper, the indirect contributions by one or both parties would be considered less significant.

Hence, taking into account all these considerations, further adjustments could be made before reaching the final proportions. 

The judge will carefully consider the facts and circumstances of each case, and also assess the credibility of each party’s evidence before making the final decision.

In the divorce hearing on matrimonial assets, both parties would have to agree to frank and full disclosure of all known assets in their possession.

However, if you have reasonable grounds for suspecting that your spouse did not do so, you can rely on court procedures such as Discovery to request for a full disclosure.

If your spouse is found guilty of having hidden evidence of other assets, the Court may grant you a higher proportion of the assets.

1. After the Interim Judgement for divorce is granted, the Court will fix a date for an Ancillary Matters Pre-Trial Conference (APTC). APTC is a prelude to hearings on how to divide matrimonial assets and is conducted by the Deputy Registrar. It is attended in Chambers (closed to the public).
2. If the Registrar deems that there is a possibility for an out-of-court settlement, he/she may refer the case to counselling or mediation. If not, the Registrar will ask both parties to proceed to file an Affidavit of Assets and Means.
3. A contested ancillary matters hearing will be held. Ancillary matters such as the division of matrimonial assets will be decided then.

If the net value of matrimonial assets does not exceed S$1.5 million, the ancillary hearing will be heard in the Family Court. If the case involves a larger value of assets, it will be transferred over to the High Court to be heard.

You and your spouse Agree on What Should Happen to the HDB Flat 

You and your spouse are free to come to a consensus on what should happen to your HDB flat after divorce.

One spouse may agree to transfer their interest in the flat to the other, allowing the other spouse to keep the flat. Alternatively, both of you may decide to sell the flat and split the sale proceeds in a certain proportion.

Your decision will be recorded in a Court judgement during the ancillary matters hearing.

However, if you and your spouse are unable to agree on a course of action, the Court will decide on your behalf.

The Court Decides What Will Happen to the HDB Flat

During the ancillary matters stage, the Court will divide the matrimonial assets on which the couple is not able to agree on.

Is the HDB Flat Considered a Matrimonial Asset?

Your HDB flat is most likely considered a matrimonial asset. However, if it is acquired before marriage as a gift from a family member or inherited from a spouse’s father after he passes away, it will not be considered a matrimonial asset initially. Only if it was substantially improved during the marriage would it be considered a matrimonial asset.

It should also be noted that if the flat is not considered a matrimonial asset, a spouse cannot claim that they have interest in the flat owned by the other spouse simply because they were married.

If the HDB Flat is a Matrimonial Asset, How will it be Divided?

Examples of ways the HDB flat can be divided include:

• Requiring one spouse to transfer their interest in the flat over to the other.
• Ordering the flat to be sold, and proceeds to be divided between the parties in a certain proportion.

Take note that matrimonial assets such as the HDB flat need not be equally divided between the parties. For instance, if the marriage was brief, the Court would likely divide the flat according to the parties’ respective financial contributions to its purchase.

However, the flat must meet the Minimum Occupancy Period (MOP) of 5 years. In other words, you and your spouse must have lived in the flat for at least 5 years for one party to retain ownership or to be able to sell it. In general, MOP is calculated from the date the sellers collect the keys to the flat.

If the couple does not meet the MOP requirement, the HDB flat will be surrendered to HDB at the prevailing compensation price.

However, you could try to appeal to HDB to sell the flat in the open market before the MOP is reached. However, HDB considers applications on a case-by-case basis, and there is no guarantee that the appeal application will be successful.

Based on the information mentioned above, you may be entitled to retain the HDB flat after divorce if either:

• Your spouse willingly agrees to transfer their interest in the flat to you.
• The court orders your spouse to transfer their interest in the flat to you.

However, this does not necessarily mean you get to keep the flat. In order to retain the flat, you need to meet HDB’s eligibility conditions to do so.

These conditions include falling into either of the below situations:

1.   You have care and control of your children

If you have care and control of your children, you will be able to retain the flat provided you satisfy the MOP.

However, you should ensure you have the financial ability to take on the home loan for the flat.

2.   You are eligible under the Single Singapore Citizen Scheme

If you and your spouse do not have children, the flat can still be retained under the Single Singapore Citizen Scheme if you fulfill the below criteria:

• Singapore Citizen
• At least 35 years old
• If the HDB Flat was bought directly from HDB (BTO) or a resale flat bought with the CPF Housing Grant for Family, you must satisfy the 5-year MOP before you can retain the flat under this scheme.
• However, if the Flat is a resale flat purchased from the open market without the CPF Housing Grant for family, you do not need to satisfy MOP.

If you cannot satisfy the MOP, you may be able to include another person to retain the flat with. However, this is subject to HDB’s requirements. 

There are several schemes as well as housing grants available to help divorcees buy or rent HDB flats. However, this is subject to you meeting the eligibility requirements.

Care and Control

Care and control refer to the responsibility of being a child’s daily caregiver. 

Hence, when a parents is granted care and control of a child, it means:

• The child will live with the parent to whom care and control is granted, and
• The parent with care and control will have the right to make daily decisions for the child e.g. what the child eats and when they should go to bed

How is Care and Control Different from Child Custody?

Child custody refers to the right to make major life decisions for the child. However, care and control is only given to one parent who will be involved in the child’s daily matters. The other parent will be granted access to the child for certain periods.

Both parents and children (if mature enough) can state their preferences for the children’s future custody and care and control arrangements. Ultimately, the Court will base its decision not solely on what anybody wants but rather on the best interests of the child.

There are generally 4 types of child custody orders given in the Court.

1.   Sole custody order

A parent with sole custody of the child is given the exclusive right to make major life decisions for the child without consulting the other parent. 

Here are possible reasons for which this order has been given:

• Deterioration of the couple’s relationship

When the couple’s relationship has deteriorated to such an extent that communication has broken down irretrievably and methods of reconciliation such as counselling and mediation have also proven to be unsuccessful.

In such cases, it is clear that the lack of cooperation between the parents would likely have a detrimental effect on the child.

• One parent “gives up” custody of the child

One parent may “give up” custody of the child to the other parent in order to get a better deal on other ancillary matters.

• One parent is deemed “unfit for custody”

In some exceptional cases, a parent may be deemed “unfit” for custody. This could possibly be due to a history of domestic abuse or violence. 

However, the other parent who is not granted custody of the child may be granted visitation rights by the Court.

2.   Joint custody order

Both parents play an equal part in making major life decisions for the child. Hence, both parents are required to communicate with each other and reach a consensus when making decisions.

The Court is generally in favour of joint custody because they recognize that the presence of both parents in the life of the child is important to his or her upbringing. Furthermore, it allows both parents to take responsibility for the child since parenthood is after all a lifelong commitment that does not end with marriage.

3.   Hybrid custody order

One parent will be granted custody of the child. However, the parent with custody will have to consult the other parent on matters pertaining to the welfare of the child.

4.   Split custody order

The custody of one or more siblings is granted to one parent, while the custody of the other siblings is granted to the other parent. This type of order is uncommon as the Court usually encourages siblings to stay together in order to be of comfort to one another.

When a custody or care and control order is in place, no person other than the parent with custody or care and control can take the child out of the country. The exceptions for this are when the parent without custody has the consent of the custodial parent or the leave of the Court to do so. 

In any case, the child cannot be taken out of the country for more than one month.

When deciding the type of custody order, judges in Singapore apply a standard referred to as the “welfare principle” where the Court looks into the best interests of the child to determine the optimal arrangement for him or her.

What constitutes “welfare” of the child is broad – it does not only include money and physical comfort but also the child’s moral, religious and physical wellbeing and level of comfort with the parent.

If necessary, the judge may request social service reports or counselling sessions in order to assess the state of the parents and child to determine the custody order suitable for them.

A commonly used report is the Social Welfare Report. It is prepared by officers from the Ministry of Culture, Community and Youth. These officers will have the opportunity to speak to the child and observe his or her interactions with the parents. This report will only be available to the judge, not to either parties.

The factors a judge may take into consideration include, but are not limited to the following:

• Who the primary caregiver of the child during his or her formative years was
• Child’s current living arrangements
• Child’s wishes
• Parents’ wishes
• Age of the child
• Parents’ financial ability 
• Presence of family support

It should be noted that the Court will not prioritise the parents’ wishes and likings above the welfare of the child. 

Also, the parent with higher financial ability does not necessarily have an advantage over the other. Likewise, if one parent is a Singapore citizen and the other is not, it also does not necessarily mean the parent who is a citizen will get custody of the child.

This section is intended to provide useful information to fathers seeking custody, care and control or access after divorce.

Child Custody

The Court is most likely to grant joint custody to both parents. The exceptions are outlined above.

However, usually only one parent will be granted sole care and control of the child.

Care and Control

The Court generally awards sole care and control of a child of a tender age to the mother, unless the father can show that he had been the child’s primary caregiver.

In this case, the father would have to show the judge that he can look after his child on a daily basis. His plan should include what time the child will wake up for school, who will bring him or her to school, who will care for him or her when they return from school, etc.

The father would also have to assure the Court that he will not block the child’s access with the mother, but would facilitate the access.

The Court will take into consideration factors such as how much time the father has spent bonding with the child and actively participating in his or her life. The court will then consider the father’s plan for the child and decide if it would be in the best interest of the child to stay with his or her father or mother.

Access

Access is granted to the parent who is not given care and control of the child, who are often the fathers.

The Women’s Charter states that the parent without care and control of the cold should be granted access times that are considered fair and reasonable. It is left to the Court’s discretion to decide what is considered “fair” and “reasonable”.

Can a Husband Rely on his Wife’s Adultery to Obtain Sole Custody and Care and Control of their Child?

The wife’s adultery will not automatically grant the father sole custody as well as care and control of the child. This is because adultery only shows she has fallen short in her duties as a wife but nothing can be said about her as a mother.

Other Circumstances where Sole Custody and Care and Control could be Awarded to the Father

The Court will look at which parent will be able to offer better security and stability for the child. If the father can present evidence that the mother lacks the mental capacity to look after the child or has abused the child, the Court may grant sole custody and care and control to the father.

Child Custody Lawyers In Singapore: How To Choose One

When choosing a lawyer for your divorce, it is important to do your research and always inquire about your lawyer’s track record in Child custody matters. Speak to us to learn more about our exemplary track record in obtaining favourable outcomes for our clients with regards to child custody matters.

Some of the common issues associated with this type of divorce include:

• Accurate evaluation of assets held by spouses
• Valuation of assets must be determined and requires a formal valuation by forensic accountants
• Future earning capacity of spouses must be established
• Value of retirement funds such as CPF, endowment policies, etc. must be established
• Complexities when tracing overseas investments or assets
• Hidden assets or dissipation of assets
• Impact of prenuptial and postnuptial agreements