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.
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.
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
- Separation for a minimum of three years prior to filing for judicial separation, (provided both parties consent)
- 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.