Divorce vs. Annulment

When spouses consider separation, they may reach a point when they wish to end their marriage formally. Two main ways parties can legally end a marriage in Singapore are through divorce or annulment. Parties will not always be eligible for divorce or annulment, and each route is designed to deal with different circumstances.

Parties should understand their options before proceeding with a divorce or annulment. They must also consider any additional matters stemming from their separation, such as child arrangements and matrimonial finances.

This article explains the differences between divorce and annulment, when parties can apply for them, and how.

The difference between divorce and annulment

As we will see below, the eligibility criteria for divorce and annulment are different. However, the main distinction relates to how they are recognised legally. The difference can be summarised as follows:

Eligibility

Divorce

To be eligible for a divorce in Singapore, parties must:

1. Be a Singapore citizen or have lived in Singapore for three years continuously before applying;
2. Have been married for at least three years; and
3. Be married under civil law (as opposed to under Syariah law).

Annulment

Parties do not need to be Singapore citizens to obtain an annulment but must live in Singapore when the application is made. Spouses can apply for annulment at any time; they do not need to have been married for any specific period beforehand. However, if seeking an annulment of a voidable marriage, the parties must do so within three years of the marriage date.

To be eligible for an annulment, parties must be able to establish their marriage is either void or voidable:

• Void marriages arise when the parties fail to meet the requirements for a valid marriage, which is therefore deemed to have never existed.
• Voidable marriages are also invalid but will remain in place unless and until one party decides to annul it.

Grounds

Divorce

There is only one ground for divorce in Singapore: the parties’ marriage has broken down irretrievably.

To demonstrate this to the court, the spouse applying must establish at least one of the “facts” stated in Section 95(3) of the Women’s Charter 1961:

1. Adultery. One party to the marriage must have had sexual intercourse with a third party. Physical intimacy alone is not sufficient.
2. Unreasonable behaviour. This is commonly relied on in divorce applications. The court must be satisfied that one spouse’s bad behaviour means the other spouse cannot reasonably be expected to continue living with them. Examples of this include abuse, threats, alcoholism, and financial recklessness.
3. Desertion for at least two years. The two years must be continuous. The court will want evidence that the party’s spouse has left the family home without intending to return to the marriage.
4. Separation for at least three years, and both parties’ consent to the divorce. The parties must have lived apart for three years continuously and must agree to the divorce.
5. Separation for at least four years without consent. The parties must have lived apart for at least four years. Consent is not needed for the divorce for it to proceed.

Annulment

The grounds for an annulment differ depending on whether it is a void or voidable marriage.

Grounds for a void marriage are set out in Section 105 of the Women’s Charter and are as follows:

1. The parties are Muslims (this falls under Syariah law);
2. One of the parties is already legally married;
3. Either or both of the parties is under 18 (unless authorised by a special marriage licence);
4. The parties are closely related;
5. The parties are of the same sex; and
6. The marriage has not been solemnised under a valid licence nor by a licenced person, such as a Registrar.

Section 106 of the Women’s Charter provides the grounds for a voidable marriage:

1. The parties did not consummate the marriage due to the incapacity of either party;
2. The parties did not consummate the marriage due to the wilful refusal of one party;
3. Either or both parties did not consent to the marriage due to duress, mistake, mental disorder, or otherwise;
4. Either or both parties were capable of giving valid consent but were suffering from a mental disorder at the time of the marriage, meaning they were unfit for marriage;
5. One party was suffering from a sexually transmittable disease at the time of the marriage; or
6. The wife was pregnant by another person at the time of the marriage.

Ancillary matters

When parties legally end their marriage, they often must deal with additional matters to separate formally. These could involve dividing up their finances and making arrangements to care for any children they have together.

The court will consider these issues when granting a divorce or annulment, and the process tends to be more straightforward for parties who can agree on these issues in advance. If they cannot agree, the court will deal with them in separate proceedings.

Procedure

Divorce

If spouses agree on the divorce and any ancillary matters, they can use the simplified track for the divorce application. The person applying for the divorce, the plaintiff, must file certain documents with the court. The person responding to the divorce is known as the defendant.

The required documents are:

• Writ for Divorce: states the party’s intention to proceed with a divorce.
• Statement of Claim: contains details of the parties and reasons for the application.
• Statement of Particulars: explains the facts relied on for the marriage breakdown.
• Consent to Grant Judgment on Three Years’ Separation: is signed by the defendant before a Commissioner for Oaths (CO) only where the reason for divorce is three years’ separation.
• Defendant’s Consent to Simplified Uncontested Divorce Proceedings: is signed by the defendant before a CO where they agree to the divorce.
• The Affidavit of Evidence in Chief: sets out the plaintiff’s evidence supporting their application.
• Draft of Interim Judgment Form: a draft divorce order.
• The Request for Setting Down Trial for Action: asks the court to set a hearing date.

Parties are not required to attend an uncontested hearing. If the court agrees with the application, it will grant the divorce, make an interim judgment, and issue the final judgment. The entire uncontested process usually takes around four months.

The procedure is more complex for a contested divorce. In addition to the above documents, the plaintiff also needs to file:

• A proposed parenting plan containing their suggestions for the arrangements for the children; and
• A matrimonial property plan stating their proposed division of the marital finances, particularly for their HBD flat.

The applicant must submit the relevant documents, and the defendant must then file a defence within 22 days of receiving the writ. The plaintiff will have two weeks to respond, and the court will then set a date for a conference between the parties and their lawyers to encourage settlement and, if not, prepare them for the hearing. The court will consider the parties’ evidence at the hearing and grant the final divorce order once the ancillary matters are settled.

Annulment

The annulment process is similar to the divorce process. The plaintiff must file the documents listed below with the court.

• Writ for Annulment: states the party’s intention to proceed with an annulment.
• Statement of Claim: states the grounds relied on, i.e. whether the marriage is void or voidable, and on what basis.
• Statement of Particulars: includes further detail about the relevant grounds and any supporting documents.
• Proposed Parenting Plan: sets out proposals for the care of the children.
• Matrimonial Property Plan: sets out proposals for dividing property and HDB flats.

Provided the court is satisfied with the application, an interim judgment will be granted. Once the parties have resolved all ancillary matters, the court will grant the final judgment of nullity.

Filing the documents

Parties can apply for a divorce or annulment through the court’s eLitigation service or Divorce eService. If instructed, the parties’ lawyers will file the documents with the court.

Conclusion

The procedures for obtaining a divorce or annulment are similar. However, the notable distinction is that the court legally recognises a divorced marriage as valid. It does not give this same recognition to an annulled marriage. As a result, the law relating to each separation method is very different, and parties wanting to legally end their marriage should consider if either or both options apply to them. An annulment can be a much quicker and easier way to end a marriage if the parties meet the eligibility criteria.

Parties do not need a lawyer to apply for a divorce or annulment, but it is advisable to instruct one. Proceedings can become complex, especially when children and finances are involved, and a specialist family lawyer can guide you through the process.