In Singapore, separation is one of the four grounds parties can rely on to prove an irretrievable breakdown of the marriage when seeking a divorce. The party seeking the divorce can either show that the parties have been separated for three years if the defendant consents to the divorce or four years without consent.
Many couples choose separation as a precursor to a divorce, especially where the divorce is amicable, or no one is at fault for the breakdown of the marriage. Some couples may even choose to remain legally separated and not get a divorce.
There are good reasons why some couples prefer to get separated. Unlike divorce, there are no time requirements for when you can separate. You don’t have to prove an irretrievable breakdown of the marriage. There is less social stigma, and there is the possibility of reconciliation.
At the same time, parties must remember that they remain legally married with all the consequences of a marriage. Separation is not the start of official divorce proceedings and does not change the legal status of the marriage. If one of the parties wants to remarry, they will have to get a divorce first.
There are three ways to be separated in Singapore.
- Informal separation, without anything in writing.
- Deed of Separation.
- A judgment of Judicial Separation.
We touch on each of these in the remainder of this article.
Any actions that could have legal consequences are better put in writing. Yet, some couples prefer to separate on an informal basis. If, however, the couple later wishes to rely on separation as a ground for an irretrievable breakdown of the marriage, they must be able to show that either or both parties intended that the separation would lead to divorce.
Usually, they will have to show that they lived apart physically, either in separate homes or in separate rooms if under the same roof. The couple must show that they have been living independent lives, with no spousal duties such as cooking, cleaning, etc. Parties living separately in the same house may prove separation by showing an absence of marital or sexual relations.
It must have been their choice to live separately, not because of work or other reasons that required them to be apart.
Relying on an informal separation can be tricky if one party wishes to dispute the separation during divorce proceedings.
An easier way to prove separation would be to put it in writing.
Deed of separation
A deed of separation is a written, formal, legally binding document signed by both parties. The parties would put the terms and conditions of their separation in writing.
What should you include in a deed of separation?
If you wish to rely on the deed of separation as a ground for an irretrievable breakdown of the marriage, you should include the date and the fact that you both agree to live separately in the document.
You should set out your agreed living arrangements as well as financial arrangements.
Include any agreements on the division of matrimonial property, living arrangements for the children, custody, access, and maintenance.
Parties may wish to include a date on which they will proceed with divorce proceedings.
Advantages of having a deed of separation
A deed of separation is a valuable document to regulate the terms of separation, especially where the couple cannot officially divorce since they have been married for less than three years or want to remain in the marriage for other reasons.
It “formalises” the separation and sets a start date to be eligible to claim for divorce on the grounds of separation.
If the terms are fair and just, it could speed up proceedings around ancillary matters. Ultimately, saving time and money.
Can the court reject the terms of the deed of separation?
The deed of separation need not be registered with the court. It is a private, legally binding document between the parties. It can be invoked with the consent of both parties.
However, the Family Court can reject and set aside the terms if the court finds it unfair or inappropriate.
Any of the parties may apply to the court to have any of the terms set aside if they feel it is unfair or were coerced into signing the document or there was a misrepresentation of facts before they signed.
If, however, the parties got the court to sanction the deed of separation, it cannot be set aside.
Section 101(1) of the Women’s Charter allows either party to a marriage to file for a court order for judicial separation if they no longer want to live together but also don’t want, or can’t, obtain a divorce order.
The couple must be married for at least three years to file for judicial separation. The court will only grant a judicial separation order if the couple can prove irretrievable breakdown of the marriage on the grounds of:
- unreasonable behaviour;
- separation for at least three years before filing for judicial separation if both parties consent; or
- that they’ve lived apart for four years before filing.
This process is far more demanding than a deed of separation. Still, it may be useful if you think that the other party may not comply with the terms of a separation deed. Judicial separation is a court order; non-compliance is contempt of court.
If the court grants a judgment for judicial separation, the party is no longer obligated to live with the defendant. The parties are, however, still legally married.
How is a judicial separation different from a deed of separation?
Both are legally binding, and in both instances, the couple remains legally married.
Although both can address ancillary matters, the court decides on any ancillary matters that the couple can’t agree on in a judicial separation. A deed of separation is more flexible in that the parties can include their own terms and conditions.
Unlike a judicial separation, a deed of separation need not be filed with the court. The court is not involved at all when a couple decides to draw up a deed of separation.
The judicial separation process
Either party to the marriage may file a writ for judicial separation with a statement of claim.
The party must state the reason they rely on an irretrievable breakdown of the marriage in the statement of claim and include evidence to back the claim.
Before the court grants a judgement for judicial separation, the court must be satisfied that:
- The marriage has broken down irretrievably.
- The arrangements made for the children, including custody, their education, and financial provisions, are satisfactory.
Once the court has granted a judgment of judicial separation, the court will proceed with ancillary matters that still need to be addressed. It could include division of property, spousal maintenance, etc.
Consequences of judicial separation
Judicial separation is not a divorce; the parties may still file for divorce at a later stage if they wish to do so. Until then, however, the marriage is not terminated, and neither party may remarry.
Suppose either party dies without a will while the judgment of judicial separation is still in force and the parties are still separated. In that case, the surviving party may not inherit intestate from the deceased party.
What happens if the parties want to reconcile?
The parties may approach the court and file for a rescission of the judgment of judicial separation.
Separation, whether informal, by deed of separation or judicial separation, can have significant legal consequences. Since separation is one of the legal grounds for proving an irretrievable breakdown of the marriage when seeking a divorce, parties should consider seeking legal advice before deciding on the terms of separation.
Proper documentation of financial agreements and living arrangements, including care and custody of the children, may assist in settling ancillary matters should you end up in a divorce court.
An experienced lawyer can explain the consequences and benefits of the different separation methods and help you decide on the best option for your circumstances.