Generally, adultery is defined as a married individual engaging in voluntary sexual intercourse with a person who is not their spouse. It does not matter whether the third party is married or not.
Under s. 95(3)(a) of the Women’s Charter, a divorce may be granted to you based on the grounds of adultery if your marriage is at least 3 years old. You must also be a Singapore citizen or have lived in Singapore for a minimum period of 3 years before commencing the divorce, or is domiciled in Singapore.
However, if you are married for less than three years and find out your spouse has committed adultery, a separate court application needs to be taken out before commencing divorce proceedings.
Lastly, a person who has committed adultery cannot use evidence of his or her own adultery to file for divorce.
There are two elements of adultery that you have to prove, namely:
(i) that adultery has taken place; and
(ii) that it is intolerable to live with your spouse
These elements combine the fact that your spouse has committed adultery along with your inability to continue cohabiting with him or her. Jointly, it will justify to the court that your marriage has irretrievably broken down.
1.1. Voluntary and Consensual Behaviour
Take note that your spouse must have voluntarily consented to the sexual encounter and thus, a spouse who was raped will not have committed adultery.
Similarly, if your spouse was forced to engage in the act out of fear or as a result of threats or coercion, he or she will not have committed adultery.
The standard of proof for proving adultery is a high one, and if you are filing for divorce, you must produce evidence that adultery has occurred. A suspicion, feeling or belief that your spouse is committing adultery is not enough.
2.1 Confession From Your Spouse
Your spouse may confess to the adultery and thus, is a good form of evidence for it. From there, the divorce proceedings can commence uncontested and the divorce procedures would be straightforward. Yet, this is rare and in most cases, the adultery would have to be proven with the use of other forms of evidence.
2.2 Direct Evidence
An example would be having a witness testify that your spouse has committed adultery and this form of evidence is as direct as a confession from your spouse. However, this is type of evidence is uncommon, as even a private investigator gathering evidence would unlikely have witnessed the sexual intercourse first hand.
2.3 Indirect Evidence
Also known as circumstantial evidence, indirect evidence is based on implications. You may indirectly prove that your spouse has committed adultery such as by showing that there was an opportunity for your spouse to have committed adultery.
For example, proving that your spouse was in the company of a third party in a situation where sexual intercourse could have committed adultery. Moreover, you can prove an inclination to committing adultery, such as given the circumstances, your spouse and the third party being likely to have participated in intimate relations.
Indirect evidence can be separated into a number of categories:
a) Visual Evidence: Videos and photographs are irrefutable forms of evidence, especially if they are of your spouse and the third party engaging in sexual intercourse. However, such evidence is difficult to attain and you may need to engage a Private Investigator for this.
b) DNA Evidence: The existence of an illegitimate child between your spouse and the third party may also be used as evidence of adultery. However, it is generally not advisable to involve a child such a case, as it may be a traumatizing and stressful event for them.
c) Records: Credit card bills, phone records or travel records may serve as secondary evidence to the court. For example, you could bring travel records indicating that your spouse and the third party has gone on a holiday together, or phone records that your spouse has been consistently contacting the third party.
d) Written Testimonies: Examples such as testimonies from hotel or restaurant staff may be a decent form of evidence to show the court, as it is evidence from witnesses that your spouse and the third party have been frequenting hotels or going for dates at restaurants together. However, this is not limited to restaurant or hotel staff, as written testimonials can also come from a friend of your spouse who is aware of the affair.
e) Text messages, E-mails and Telephone Conversations: These forms of communication between your spouse and the third party may be used to prove your case. Nevertheless, it is important to note that your spouse may claim that these are easy to fake.
However, if you are unable to attain concrete proof of your spouse’s infidelity, an opportunity or intention to commit adultery may also be used as indirect evidence. To secure such evidence, you may want to engage the services of a Private Investigator (PI) who may be able to produce a report to help your case, such as producing photographs of your spouse and the other party caught in the act.
Nevertheless, do take note that engaging a PI would raise the costs of your divorce and there is no guarantee that the PI report will contain conclusive evidence that our spouse has committed adultery to pass the test which requires a high burden of proof.
2.4. Unreasonable Behaviour
If you are unable to attain concrete evidence of your spouse’s infidelity and not able to afford a PI, an alternative route would be to commence divorce proceedings on grounds of unreasonable behaviour with improper association.
This can be done so long as you believe that your spouse is having an intimate relationship with a third party.
2.5 Time Limits
Pursuant to s. 95(5)(b) of the Women’s Charter, if you continue living with your spouse after discovering the adultery for a period of 6 months without commencing divorce proceedings, you will not be entitled to rely on your spouse’s adultery for divorce.
If you continue living with your spouse after knowing of their adultery for a period of 6 months or more, it will be assumed by the court that the adultery has been acknowledged and forgiven.
Aside from proving that your spouse has committed adultery, you will also have to prove that you find it intolerable to cohabit with him or her.
This is determined subjectively and while it does not require fulfilling a test of whether a reasonable person would find it intolerable to live with your spouse, if that is so, then your case would be much stronger. Nevertheless, it is not impossible to prove this element if it were just you who found living with your spouse intolerable.
Therefore, it is unlikely that the court would find that it is intolerable for you to live with your spouse if it is merely on a whim.
There are two main implications of a divorce based on adultery:
a) Paying the Costs. The penalty imposed on the Defendant (your spouse) and/or the Co-Defendant will be payment for the legal costs arising from the divorce proceedings and Private Investigation costs (if a PI was engaged)
b) Custody of Children. The main element when deciding whom gets the custody of a child would be the welfare of the child.
For example, if your spouse committed adultery with several partners or has an immoral lifestyle that prevents him/herself from being a suitable parent, such factors will be taken into consideration when deciding on whether you or your spouse gets care and control of your children.
Founder and Principal Lawyer
of Yeo and Associates LLC
Beatrice Yeo Poh Tiang
Having handled over 10,000 divorces since 2006, Ms. Beatrice Yeo, the Founder and Principal Lawyer of the firm, is widely acknowledged as one of the best divorce lawyers in Singapore.
She has extensive experience in all aspects of Matrimonial Law, including Nullity Proceedings, Contested & Uncontested Divorce and Mediation.
It is Beatrice’s personal endeavour to make sure that her clients get her personal and specialised attention.
Contact Ms. Beatrice Yeo right away for a FREE phone consultation on legal costs and divorce procedure. You may also fill up the enquiry form above to be contacted by Yeo & Associates LLC.
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