5 Things To Consider Before Getting A Divorce

Divorce is commonly considered a taboo in our Singaporean society and as a result, not many people are aware of what goes into filing for one and its resulting implications. Divorce law can sometimes be complicated and as such, we’ll share with you 5 things that you need to consider before filing for a divorce. We will refer to the spouse that files for the divorce as the plaintiff and the other as the defendant for ease of reference.

1. You must be married for at least 3 years

In order to even be eligible to file for a divorce, you have to meet 2 criteria. Firstly, either you or your spouse has to have lived in Singapore for 3 years. Secondly, you and your spouse have to be married for at least 3 years before you can file for a divorce. This is slightly different for Muslim or Syariah law, which we will explore later in this article.

Exceptions can be made to this rule but only in situations where the party filing for divorce has experienced exceptional hardship and/or unreasonable and cruel behaviour.

2. Grounds for divorce

In Singapore, the only grounds for divorce is the irretrievable breaking down of marriage. To show that a marriage has broken down, at least one of the following four factors has to be proven:

• Adultery
• Unreasonable behaviour
• Desertion
• Seperation

Adultery

The defendant has committed adultery and the plaintiff filing for divorce finds it intolerable to live with the defendant

Unreasonable behaviour

The defendant has behaved in such a way that the plaintiff cannot be reasonably expected to live with the defendant.

Desertion

The defendant has deserted the plaintiff for a continuous period of 2 years preceding filing of the writ of divorce

Separation

The parties have lived apart for a continuous period of at least 3 years preceding the filing of the writ divorce; or the parties have lived separately for at least 4 years preceding the filing of the writ of divorce.

3. Division of Matrimonial Assets

During the hearings on ancillary matters, the court will decide on the split of matrimonial assets between the spouses.

Matrimonial assets refer to the assets that were:

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

These assets include the family home, car, businesses, CPF monies and jewellery but exclude.

Assets excluded from the definition of matrimonial assets are:

• Assets acquired as gifts and inheritance
• Gifts and inheritance that has not been substantially improved during the marriage

The court will take into account many different factors when deciding on the split of assets and these factors can range from the financial situation, debt owed, to needs of each party. The list of factors are as follows:

• The contributions made by each spouse to acquiring, improving or maintaining matrimonial assets — in the form of money, property or work
• The extent of non-financial contributions towards the welfare of the family
• Debt owing that was taken up for the benefit of the child
• The children’s needs (if any)
• Agreements made by the parties with respect to the division of matrimonial assets
• Each party’s financial independence and needs after divorce

The division of matrimonial assets, in essence, is decided by the contributions of each individual to the marriage and their needs, not whether they were at fault for the divorce.

4. Custody of Children

Custody of children is a contentious issue in almost all divorces and is usually split into three different types, sole custody, joint custody, and hybrid custody orders.

Sole custody refers to when custody of the child is granted to one parent, meaning that that parent will have the right to make legal decisions for them. Usually, this order is given when the lack of cooperation between the parents is deemed to have a detrimental effect on the child.

Joint custody refers to the situation where both parents have custody over their children. This order is being more commonly issued in Singapore unless the courts deems that living together with the parents will be detrimental to the child of marriage. It is viewed and recognised that the presence of both parents in the child’s life is essential to their development.

Under the hybrid custody order, one parent will have custody of the child but must consult the other parent before making decisions regarding the child’s welfare.

Below are some terms you should be familiar with, relating to child custody,

• Custody

The parent who has custody over the child has the authority to make major life decisions for the child which include matters relating to health, education and religion

• Care and Control

Living with the child on a daily basis

• Access

The opportunity for the parent without care and control to spend time with the child

5. Divorce in Syariah Law

In Muslim or Syariah law, a spouse can exercise their right to divorce anytime but the method to be used is decided depending on which spouse has called for the divorce.

The husband can exercise his right to divorce by pronouncing the talak, Arabic for “to release”. Essentially, the husband can get the divorce as a right, without having to prove anything. Once the divorce has gone through by pronouncing the three talaks, remarriage is not allowed unless the wife has lawfully remarried a third party and got a divorce from that marriage.

The wife on the other hand, has to prove one of the following, the Khuluk, Cerai Taklik or the Fasakh. The Khuluk is the woman’s right to divorce her husband in which she pays him a sum of money as “compensation” for the divorce. The Cerai Taklik is essentially a divorce over the breach of marital condition if there was one agreed upon on the Marriage Certificate. The Fasakh is an annulment of the marriage in which the husband is at fault for a condition serious enough for a divorce. The list of grounds for Fasakh can be found here.

Divorces are never easy and it doesn’t help that it can get very complicated. Engaging divorce lawyers will go a long way and will give you a better peace of mind as your lawyer will help you with the necessary paperwork and matters relating divorce law.

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