Divorce due to Adultery

Divorce due to Adultery

The only legal route to divorce in Singapore is, according to the Women’s Charter section 95(1), the irretrievable breakdown of a marriage. If the court believes this has happened, looks into the facts and concludes that a divorce would be just and reasonable, then they will grant it.

The plaintiff must establish one of five grounds for irretrievable breakdown of their marriage, set out in section 95(3) of the charter. One of these grounds is adultery, in section 95(3)(a).

Adultery – a definition

Adultery means a situation where someone who is married has sexual intercourse, voluntarily, with someone other than their spouse. Without sexual intercourse, however, you cannot establish adultery.

Section 95(3)(a) states that the plaintiff (the person seeking the divorce) must also prove that living with the defendant has become intolerable, as a result of the adultery. The court will consider the circumstances and character of each party to decide if it is intolerable for the plaintiff to live with the defendant, after the adultery has occurred. The standard they use to determine this is whether a reasonable person would find it intolerable.

How to prove adultery

The burden of proof needed to establish a successful claim of adultery is very high in Singapore. The plaintiff must prove—on the balance of probabilities—that sexual intercourse happened with another person.

It can be difficult to find direct evidential proof of the alleged sexual intercourse. Without a confession, the plaintiff may have to rely on other sources of evidence. For example, they might ask a private investigator to try to find the evidence of adultery.

If visual evidence cannot be found proving the sexual act(s) happened, then a plaintiff may try to offer circumstantial evidence that shows the defendant had the opportunity in which to commit adultery. For example, it may be possible to find CCTV footage showing the defendant and someone else going into a hotel room together.

In addition, text messages, email evidence or other types of social media communication might also form evidence and proof of adultery. There may be other types of evidence too, like hotel or restaurant bookings and receipts, or airline tickets, which can all strengthen any claim of adultery. If any other parties observed the couple in question and are willing to confirm that in writing, then that testimony can also help the plaintiff’s case.

Any illegitimate children who have been born and who can be proved to be unrelated to the plaintiff by DNA test, also represent solid evidence to be used against the defendant.

Mere intimate conduct such as embracing or kissing is not enough to prove adultery, although that sort of indirect evidence can still help the plaintiff’s case. The act of sexual penetration is the standard of proof necessary to establish adultery.

Proving adultery is hard to do and the evidential burden is high, but once proven, then proving life has become intolerable for the plaintiff becomes much easier. It is common then for the court to find the continued habitation together of the plaintiff and defendant to be intolerable.

What if Adultery Can’t be Proved?

It can be hard to prove adultery in the absence of direct evidence such as a confession or an illegitimate child. If you cannot provide this sort of evidence, then you may be able to rely on a provision in the Women’s Charter as an alternative ground. This is the ground of unreasonable behaviour.

The court has power under section 95(3)(b) to find that there was an irretrievable breakdown of a marriage, due to the defendant behaving in such an unreasonable manner that the plaintiff can’t reasonably be expected to live with them. Behaviour which comes under this category could include behaving intimately or constantly flirting with someone.

To rely on the grounds of unreasonable behaviour, you need to prove that were you to continue living with the defendant, life would become intolerable. You don’t need to prove adultery, because the defendant’s conduct is sufficient to prove unreasonable behaviour. The best course of action, and your likely chances of succeeding, can be best assessed by an experienced divorce lawyer.

Who can file for divorce due to adultery?

To file for divorce in Singapore, you must be a Singapore citizen, domiciled in Singapore or having lived there for a minimum of three years before the divorce was filed for.

A person is forbidden from filing for divorce in the first three years of marriage, according to section 94 of the Charter. However, section 94(2) does provide for some exceptional circumstances where someone can apply to the court for divorce, before the marriage is three years old.

Anyone who hasn’t yet been married for three years and cannot file for divorce may find the six-month time limit mentioned above a problem. You should consult a lawyer as soon as possible if you have been married less than three years and discover your spouse has been adulterous.

The law forbids any adulterer from filing for their own divorce on the grounds of their adultery. Only the plaintiff can file for divorce according to the Charter, based on the fact that “the defendant committed adultery and the plaintiff finds it intolerable to continue living with the defendant.”

Is a claim of adultery limited by time?

Yes, the plaintiff must file their claim of adultery within six months of becoming aware of the adultery, under section 95(5)(b). If they continue to live with the defendant for longer than six months after discovering the adulterous behaviour, then they lose the right to file for divorce on the grounds of adultery.

In deciding whether life with the defendant is intolerable for the plaintiff, the court will not consider any period of less than six months that the couple lived together, after the adultery was discovered.

Any spouse who wishes to forgive the adultery and try to rebuild the marriage should bear in mind the six-month time limit. You cannot file for divorce based on adultery if more than six months have passed. You may also find it hard to prove that your life with the defendant was intolerable if you stayed living with them longer than six months before filing for divorce.

How might a ruling of adultery affect the ancillary matters in a divorce?

When a court decides on how to divide matrimonial property, or the care, custody and maintenance of children, the issue of adultery on its own shouldn’t have a negative impact. The court will use its discretion in each case; sometimes that might mean asking the adulterer to pay the costs of the divorce proceedings, and sometimes not.

In Singapore, a ‘fault’ such as adultery (which is not a crime) will not be factored into the court’s decision on ancillary matters.

When ruling on how to divide matrimonial assets, the court will be guided by section 112(2) of the Women’s Charter. This means they will try to divide the property in a proportion they believe to be just and equitable.

The main consideration when it comes to ruling on child welfare matters is to ask, ‘what is in the best interests of the children?’ If a parent has committed adultery but it has not affected their ability to be a good parent, then the court will not consider the matter in their deliberations.

However, if the children are likely to be impacted because of the defendant’s lifestyle (for example, they are promiscuous and may damage the moral upbringing of the child), then the court may take that behaviour into account. They may also make an order relating to the children’s welfare.

In summary, the court will always follow the letter of the law when making rulings; nobody should assume that adultery from one party will automatically mean the other party gets a better deal.

It is undoubtedly true that discovering your partner has been adulterous can be very traumatic. Sometimes the situation can be resolved, but sometimes the only option may be a divorce. If divorce is the course chosen, an experienced family lawyer will be able to help you.

The lawyer will advise you on how prepare a suitably strong case in adultery divorce cases, as the court requires a high burden of proof. A lawyer can help you to choose the right options in your circumstances, and give you the best chance of getting the outcome you would like.

Should you require legal representation, kindly contact us for a free first consultation with one of our lawyers.
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