1. Overview



There is only one ground for divorce in Singapore, which is an irretrievable breakdown of the marriage. There are four legally defined ways of proving this irretrievable breakdown, namely adultery, desertion, unreasonable behaviour or separation for a period of time.

If your current circumstances do not involve the former three, perhaps separation is the option for you. Separation may also be suitable for you if the period of which you were married was less than three years.

Separation is a popular option for couples in Singapore facing difficult marriages, especially when neither you nor your spouse is at fault for the breakdown of the marriage. This period of separation may allow you and your spouse some space away from each other, in order to reconsider your marriage and perhaps, offer an opportunity to reconcile in the future.

If you wish to enter into a separation, you may do so whenever you want, as Singapore marital law does not require cohabitation.

2. Initiating Separation

 

 

There are three main ways for you and your spouse to initiate separation, namely:

i) Informally and not in writing
ii) A separation agreement
iii) A judgment of judicial separation

2.1 Informal Separation

You may separate from your spouse informally whenever you wish to do so, for example, by living separately.
If you and your spouse choose to separate through this route and live separately for some time, this has the same effect as formal separation (such as through an agreement or judicial separation). If this separation continues for a certain amount of time, it will give the court a reason to find that your marriage has irretrievably broken down and thus, will award you or your spouse a judgment of judicial separation or an interim judgment of divorce.

2.1.1. Physical Separation required

When you initiate an informal separation, physical separation is usually required. This may occur even if both you and your spouse are living under one roof, as long as there is a clear disruption of the marital relationship. Therefore, there will be no separation if you and your spouse continue engaging in sexual intercourse, or perform other spousal duties such as cooking and cleaning for one another.

Lastly, it is important that separation must be by choice for you and your spouse and not merely a result of necessity. For example, if your spouse has to work abroad for a long period of time, this may not count as a valid separation. Ultimately, the separation must be one of choice of either you or your spouse or one that is a mutual decision.



2.2 Formal Separation

Formal separation occurs when you and your spouse draw up a separation agreement.

2.2.1 Format of The Separation Agreement

The format of this agreement does not matter, an oral agreement would hold the same weight in court as an agreement in writing drafted by a lawyer. However, for ease of proof and to avoid disputes over the content of the agreement, it would be advisable for this agreement to be made in writing.

It would also be wise to consult a lawyer when drafting this document, so you would have a clearer picture of what you are entitled to and responsible for during the separation.

A “Deed of Separation” is a document stating the exact date of the separation between you and your spouse, along with the terms and conditions of the relationship during the period of separation, such as each of your responsibilities towards your children and other financial arrangements.

The clauses in a separation agreement fall into two main categories:
i) Terms relating to the separation
ii) Financial arrangements and other terms

It is important to note that a Deed of Separation can be invoked only with the consent of both your spouse and yourself, and need not be registered with any government department or court.

However, the Family Courts retain the power to set aside any terms of the Deed which they consider unfair or improper. Nevertheless, this will not apply where the court has officially sanctioned the Deed.

2.2.2 Terms Relating to The Separation

This category involves the terms mainly relating to the separation itself, such as the dates of when you and your spouse are separated, the living arrangements between the both of you and the agreement that the both of you will be living separately from one another.

2.2.3 Financial Arrangements and Other Terms

This category concerns terms relating to the financial arrangements between your spouse and yourself and other terms and note that these terms must be mutually agreed upon.

Examples of such terms:-
Division of matrimonial assets (Are you or your spouse getting the family car?)
Maintenance terms with regard to your children(s)’ living arrangements (Are you or your spouse caring for your child? How much access does your spouse get to your child?)

2.2.4 Results

The Deed of Separation will affect the outcome of your divorce if you and your spouse decide to end the separation with a divorce. The court may pass judgment on your divorce settlement based on this document, since it is, after all, a document with the agreed terms and conditions of your separation.



2.3 Judicial Separation

The third option available for you and your spouse may be a judicial separation, which can be filed pursuant to Section 101(1) of the Women’s Charter. However, this course of action requires evidence of an irretrievable breakdown of the marriage on the divorce grounds of the following – adultery, desertion or unreasonable behaviour.

Nevertheless, most couples do not opt for this route due to the higher cost and more work involved.

2.3.1 Limitations of Judicial Separation

This form of separation provides only temporary relief from an unhappy marriage, as either spouse must still apply for divorce if you are unable to reconcile.
Judicial separation simply releases you or your spouse from your marital obligations and thus, the advantages of judicial separation is fairly minimal.

2.3.2 Effects of Judicial Separation

The effects of a judgment of judicial separation may occur in the following situations:

a. Desertion Not Committed
Where you and your spouse live separately without a judgment of judicial separation or an agreement to separate, the court may, depending on it’s opinion of how the separation occurred and you and your spouse’s reasons behind living separately, possibly regard the spouse who brought about the separation as having committed desertion.
However, if your separation was resulting from a judicial separation, desertion has not been committed. Therefore, instead of a spouse being deserted, both spouses are now viewed as living separately.

b. Ease in Obtaining a Protection Order
If you require to obtain a protection order, having a judgment of judicial separation in hand may make things easier for you, especially if the requirement of a protection order has derived from a threat of domestic violence.
Nevertheless, the process in obtaining a protection order has been simplified and made more affordable over the years and thus, this advantage is of limited value.

c. Marital Rape
Pursuant to Section 375(4) of the Penal Code, husbands are no longer exempted from being guilty of rape against their wives. Therefore, if a couple has separated resulting from a judicial separation, the sexual contact between separated spouses are no different from strangers.

Therefore, it will be legitimate for an estranged wife to report a rape if her estranged husband attempted unconsented sexual intercourse with her.

d. Surviving Spouse Does Not Succeed on Intestacy
If you and your spouse have obtained a separation through judicial means, then if your spouse passes away, their property will not devolve to you through intestacy.

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Founder and Principal Lawyer
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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.

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