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string(8775) "Separation is often chosen prior to a divorce, and is common in amicable divorces, with no fault as to the breakdown of the marriage. Sometimes a couple may decide to stay separated in the eyes of the law but not to get divorced.
Under Singapore divorce law, there are four grounds that parties can rely on to prove the marriage has irretrievably broken down; separation is one of these grounds. Whichever party is seeking the divorce must show that either they have been separated for 3 years already if the defendant consents, or for four years if the defendant does not give consent.
There are many advantages to separation over divorce. For example, there are no time requirements as to when you can separate, and you don’t have to prove the marriage broke down irretrievably, as in divorce. People who separate retain the possibility of reconciliation, and there is less social stigma attached to it than divorce.
However, it’s important to note that while separated, the parties stay legally married with all the consequences that entails. Separation does not mark the beginning of divorce proceedings and the status of the marriage in the eyes of the law doesn’t change. If a party desires to remarry, they must divorce first.
Those wanting to separate in Singapore can do so in one of three ways:
- Informal separation (nothing needed in writing)
- Deed of Separation
- Judgement of Judicial Separation.
We’ll look at these three ways in more detail now.
Informal separation
Usually, any action that has significant legal ramifications should be put into writing. However, when it comes to separation, there are couples who prefer to do it on an informal basis.
However, if they later want to rely on separation as a ground for irretrievable marital breakdown, they have to be able to demonstrate that either or both parties wanted the separation to lead to divorce.
Most commonly, they must show that they have lived apart physically, either in separate rooms if in the same property, or in separate homes. They must show that their lives have been independent of each other, and they haven’t done duties together as spouses e.g. cleaning or cooking. They may also prove the separation by demonstrating an absence of intimate relations. They must show that they chose to live separately, and not because of work or other reasons.
If one party wants to dispute the separation during divorce proceedings, it can be hard if the separation was informal. It would be better to put the separation into writing in that case.
Deed of Separation
In contrast to an informal separation, a deed of separation is a formal, written and legally binding document that both parties sign, containing the terms and conditions of the separation.
What should be included in a deed of separation?
If a party wants to use a deed of separation as grounds for an irretrievable marital breakdown, they need to ensure it includes the date, and states that both parties have agreed to live separately. In addition, the agreed living and financial arrangements should be set out too.
They should also state any agreements on how they wish to divide up marital property, as well as the living arrangements of any children, and provisions for their access, custody and maintenance.
They may also wish to put in a date on which they will go ahead with the divorce proceedings.
Advantages to a deed of separation
A deed of separation can speed up proceedings relating to ancillary matters, saving both money and time, provided the terms are just and fair.
A deed of separation is a valuable document when managing a separation, and is useful especially when a couple can’t officially divorce due to them not having been married for more than 3 years, or where they want to stay married for other reasons.
The deed will formalise the separation, and allow them to set a start date to be able to claim for divorce on the grounds of separation.
Can a deed of separation be rejected by the court?
A deed of separation is a private document, legally binding, which doesn’t have to be registered with the court. It simply needs the consent of both parties to be invoked.
Either of the parties involved can ask the court to set the deed aside, however, if they think it to be unfair, or they feel they were coerced into signing it, or the facts were misrepresented to them. If the Family Court agrees that the terms are inappropriate or unfair, they can set it aside.
The exception is if the deed of separation was originally sanctioned by the court, it cannot then be set aside.
Judicial separation
Either party in a marriage is allowed to file for a court order for judicial separation, under section 101(1) of the Women’s charter. They may do this if they no longer wish to live together but they also don’t want to (or are unable to) get a divorce order.
To file for judicial separation, couples must have been married for three years or more. Such an order will only be granted if it can be proved that the marriage has irretrievably broken down, on one of the following grounds:
- Unreasonable behaviour
- Adultery
- Separation for a minimum of three years prior to filing for judicial separation, (provided both parties consent)
- Desertion
- They have lived apart for four years prior to filing
The process for judicial separation is much more onerous than for a deed of separation, but it is still a useful option for those who believe the other party won’t comply with a separation deed. Anyone found not to be complying with an order for judicial separation will be in contempt of court.
Once judicial separation is granted by the court, the party is no longer under any obligation to live with the defendant. However, they remain legally married in the eyes of the law.
How judicial separation differs from a deed of separation
A deed of separation doesn’t have to be filed with the court, whereas a judicial separation must be. No court involvement is necessary when a couple draw up a deed of separation.
However, both are legally binding, and in both cases the two people remain married legally.
Both judicial separation and deed of separation can be used to cover ancillary matters, but in the case of disagreement over a judicial separation, the court will rule on the ancillary matters. The deed of separation is the more flexible of the two options, as the parties can use their own terms and conditions.
The process of judicial separation
Using a statement of claim, either party in a marriage can apply to the court for a writ of judicial separation. That person must explain in the statement the grounds on which they are claiming an irretrievable breakdown of marriage. Evidence should be included too.
The court must be satisfied of the following before it will grant a judicial separation judgement:
- There is indeed irretrievable marital breakdown
- They have made satisfactory arrangements for any children involved, such as for their education, custody, and financial provisions
If the deed is granted, the court will then address ancillary matters; these could include spousal maintenance, division of property, and so forth.
Consequences of judicial separation
It is important to understand that a judicial separation is not the same as a divorce. The parties are still able to file for divorce if they wish to do so at a later stage. But in the meantime, the marriage is not terminated, and remarriage is not allowed for either party.
If, for example, one party died without a will whilst the judicial separation judgement still applies, and the parties are separated; then the surviving party may not inherit intestate from the deceased party.
What if the parties want to reunite?
If the parties want to reconcile, then they may ask the court for a rescission of the judicial separation judgement.
Whether the separation is informal or granted by the court, it can have serious legal consequences. As separation is one of the legal grounds for demonstrating a marriage has broken down irretrievably, parties should speak to a layer before deciding on the separation terms.
It will make settling ancillary matters easier and quicker if financial and living arrangement have been properly documented, including care and custody of any children.
A lawyer who specialises in this area will be able to explain the consequences and benefits of the different routes to separation, helping you to decide on the best course of action for you."
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How does a Divorce differ from a Deed of Separation?
In order to end a marriage legally, you must go through the
process of divorce. However, sometimes you might not yet be ready for a divorce and may wish to try living apart from each other instead. In this situation, you can use a written Separation Agreement. This is a contract in law that the couple use to record how they have agreed to separate, and how the divorce should be carried out.
The date when parties began living apart is recorded in the Deed of Separation, so often the divorce will be based on that ground of separation.
What terms should be included in a Deed of Separation?
The terms of agreement on issues such as the following should be noted in the Deed of Separation:
- The reason the divorce is taking place
- When the divorce proceedings will begin
- Who will begin the divorce proceedings
- If children are involved, how care, custody and control duties have been arranged
- How the marital assets should be dealt with whilst the divorce is happening
- Any interim arrangement that the parties made until the beginning or conclusion of the divorce proceedings
- Any spousal or child maintenance agreements.
Divorce papers still need to be filed
To be effective, both parties to the marriage have to sign the Deed of Separation.
Remember that simply signing a Deed of Separation does not mean that the divorce has happened – you still need to file for divorce. This is because a Deed of Separation is not filed with a court, so even though the parties have signed it, the court and any relevant government departments will not be made aware of it.
When is a Deed of Separation most useful for me?
You’ll find the deed most useful when:
- You want to separate from your partner, but you have young children or financial issues which makes it a bad time to get a divorce.
- You’re not sure if a divorce it what you want, but you wish to try living apart from your spouse.
- You don’t fulfil the other criteria for getting a divorce (the grounds of adultery or unreasonable behaviour), and both of you agree that the marriage was a mistake.
Please contact us if you have any questions about Deeds of Separation, or you need help."
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Divorce by Mutual Agreement in Singapore
From July 1, married couples can cite
divorce by mutual agreement as a reason for divorce if they agree that their marriage has broken down irretrievably.
This change to the Women’s Charter will allow couples to divorce without blaming each other.
Previously, the existing grounds for divorce are adultery, desertion, unreasonable behaviour, and separation for three years with consent and four years without consent. Now, parties can also file for divorce on the ground that they both mutually agree without assigning blame.
To apply for Divorce by Mutual Agreement, parties must provide the court with reasons to conclude that their marriage has irretrievably broken down, and show that they have made efforts to reconcile.
Ultimately, the court must be satisfied that granting a divorce is just and reasonable, considering all circumstances.
Why is divorce by mutual agreement being introduced?
The goal is to lessen conflict and prevent children from being embroiled in tension or arguments when parents throw accusations at each another. It also intends to preserve the mental health of the parties whilst they are going through the divorce.
The benefit of divorce by mutual agreement
A benefit of divorce by mutual agreement is there is no need for the parties to live separately, such as in a divorce by separation with consent. This offers "
therapeutic justice" to the family justice system, less disruption to the children, and does not go against parties should they still live together.
How divorce by mutual agreement can make the process better for everyone
The children will benefit. They won’t hear or read about their parents blaming each other for their divorce. It is not uncommon for some people's mental health issues to be caused by childhood trauma, stemming from how their parents behaved in from of them.
As previously discussed, a divorce by mutual agreement does not require parties to live separately. This allows children to have more regular contact with their parents. It provides the parents more time to source alternative accommodation and get their finances in order. This also saves being compelled to make rash decisions for fear of delaying the process.
The divorce petition will take considerably less time, expense, and effort to produce than the other grounds for divorce. This is because there is less finger pointing regarding the unreasonable behaviour of one party. The smoother the process, the less stressful the divorce will be. Arguing over who is in the wrong and who is in the right will only cause further acrimony.
Stepping away from blame may also preserve the parent's inclination from tainting their children's view of the other parent. Not only would stepping away from blame prevent stress, but it also would prevent disagreements to the terms suggested by either party.
The grounds which constitute 'blame' can upset the other party as they would naturally become defensive. The accused party could then dispute the divorce, either slowing down or, in the worst cases, denying the divorce altogether. If this happens, and the opposing party rejects accusations of unreasonable behaviour, a judge may decline to break the marriage.
So, although divorce by mutual agreement is more amicable and offers a smoother resolution, it does not necessarily mean the divorce will be without contention, emotion, or resistance.
How long will it take to be granted a divorce?
It remains that to be eligible to
file for a divorce; the couple must be married for at least three years. This is applicable in all cases, no matter the grounds relied upon.
Once all terms are agreed upon, there is a three-month reflection period before the divorce is finalised. This reflection period allows both parties to decide whether the divorce is indeed what they want.
The timescale of the divorce process largely depends on whether the divorce is contested or uncontested. A divorce is contested when parties cannot agree to all terms and issues amicably. Therefore, a court's involvement is required, as a judge will decide on the matters the parties cannot agree on. A contested divorce can take up to a year or more from start to finish.
An uncontested divorce is a divorce where both parties agree to the divorce, and all ancillary matters of the divorce are agreed upon mutually. An uncontested divorce can be concluded from start to finish in four months. An uncontested divorce is often the less stressful and cheaper route rather than a contested divorce.
Although you may pursue a divorce by mutual agreement, it does not necessarily mean the divorce will be uncontested. The divorce may become contested due to a disagreement on how child arrangements should be made or how the finances should be split. Should the divorce become contested, you would need a judge to make the final decision on the matters on which each party disagrees.
Why you should still use a divorce lawyer in a divorce by mutual agreement
There are two sides to decision-making. There is the emotional side and the logical side. These are two distinct aspects which often do not work harmoniously together.
What do we mean by this?
When you make decisions based on emotion, it is because of a feeling or a want. It is typically a natural response to a situation which is important to you, whether it upsets you or makes you happy.
Take, for example, smoking cigarettes. Logically, you know you shouldn't smoke because it harms your health. However, because of your emotional state, a craving, or a stressful situation, you may still choose to smoke.
It is the same with approaching a divorce. Emotion and logic do not necessarily coincide, which results in parties pursuing or agreeing to terms out of emotion rather than logic. This can cause a person to agree to unfavourable terms. It can also cause the whole process to derail.
The solution
Our lawyers can guide you through a Divorce by Mutual Agreement, using our expertise to help avoid it becoming contested. Having an experienced lawyer act, and taking an objective stance, means we will apply logic to achieve the best outcome. At the same time, we will take your instructions to understand the situation and what means most to you.
We can also assist you in making the correct financial decisions. What you believe to be a good deal at the time may not be enough for you to live on in the future. Matters such as earning capacities and future expenses are sometimes difficult concepts to grasp and understand. Getting the best legal advice and knowing you are receiving the most out of the divorce, you will also achieve greater peace of mind.
The preparation of documents can be difficult and stressful. Our lawyers have years of experience helping people prepare their documents succinctly and accurately.
Having advice and help with negotiations on when to insist on terms and when to make concessions to get the things which are most important to you may be invaluable.
Letting us take the reins will free up your time and allow you to continue working and being part of your children's life. We can also advise you on making the best care arrangements for your children.
Should the divorce process deteriorate, we can present your case if a dispute or disagreement cannot be amicably settled.
We are here to advise, represent you, and make the divorce process as stress-free as possible. Don't hesitate to contact our lawyers if you are considering a divorce in Singapore."
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