What Are The Legal Grounds For Divorce In Singapore?
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.
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.
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:
- Constant late nights
- Drug addiction
- Compulsive gambling habits
- Deprivation of sex
- Working too many hours
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.
Do I Need a Lawyer to Get a Divorce?
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.
Divorce vs Annulment and How It Affects Your HDB Flat in Singapore
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.