It can be daunting and seemingly complex when you are an expat or a foreigner living in Singapore, contemplating divorce or being confronted with one. You might not be familiar with the law and your rights here. The objective of this article is to simplify and explain the law clearly and in a practical way.
Divorce involving foreigners in Singapore is on the rise
Which is worse? Living in a country far from your friends and family or going through a divorce? Both I guess, but living in a faraway country can, in addition to a divorce, prove to be challenging and tricky.
More and more married foreigners in Singapore go through both at the same time. Statistics have shown that divorce cases in Singapore with at least one party of a different nationality has increased by 9% – from 31% of cases filed in 2011 to 40% in 2015 .
Many divorcing foreigners face the threat of having their right to stay in Singapore revoked
Divorce can be exceptionally traumatic for foreigners who had initially arrived in Singapore as dependants on their spouse’s employment pass. These foreigners, typically known as trailing expat spouses, experience the stress of not only coming to terms with their divorce, but also with the threat of their spouse cancelling their dependant’s pass and revoking their right to stay in Singapore.
Trailing expat spouses who are seriously considering divorce are justified in fearing the consequence of being repatriated and separated from their children. In Dr. Yvonne McNulty’s research involving 252 expat spouses going through a divorce in Singapore, about 100 either had their dependant’s passes cancelled or been threatened with cancellation. Such a terrifying possibility places the trailing spouse at a horrible disadvantage if the other spouse managed to get his/her way.
But there’s no need to panic unduly. Much gets done when one is calm and in control. The first thing to do would be to seek out a family lawyer for help. To get help, foreigners [wives] confronted with divorce sometimes turn to the Association of Women for Action and Research (AWARE) for support. Be aware that the Courts have, in recent times, stepped in to help expat spouses from being unceremoniously sent off back to their home countries by ordering the other spouse to reinstate the dependant’s pass.
TYC v. TCD, decided in March 2017, was one such case where the husband cancelled his wife’s dependent’s pass just before he commenced divorce proceedings and after an unsuccessful mediation in the wife’s application for interim maintenance, motivated perhaps to drive her out of the country so that she could no longer proceed with her maintenance application and render her ineffective in the divorce proceedings that he was planning to commence. The wife sought a mandatory interim injunction demanding that the husband applies for a fresh dependent’s pass for her. Leaving aside the technicalities of the arguments raised, in the interest of ensuring a fair trial, the Court ordered the husband to reinstate/renew the wife’s dependant’s pass and further ordered him not to cancel it until the conclusion of the divorce proceedings or as ordered by the Court. Whilst each case will have its own unique circumstances leading perhaps to a different outcome from the one above, there is still hope and a reason to stay positive.
Dealing with legal issues can be a nightmare for divorcing foreigners
As a first step to alleviating their legal challenges, you will find below our answers to frequently asked questions on divorce in Singapore from foreigners married to locals or other foreigners.
FAQs on Divorce for foreigners in Singapore
#1. Who can apply?
You can file for a divorce if:
- Either party has been habitually resident in Singapore for at least three years just before the commencement of divorce proceedings in Court.
- Either party is domiciled in Singapore (i.e. that you treat Singapore as your permanent home) at the time of commencement of divorce proceedings in Court. This is not easy to establish and we would not suggest relying on this unless there are exceptionally good reasons to support the claim or if married to a local.
- You and your spouse have been married for at least 3 years, counting from the official date of your marriage.
- You can prove one of the following five reasons in support of your claim that your marriage has broken down and that it is beyond repair:
- Your spouse’s adultery and the fact that you find it intolerable to live with that spouse.
- Your spouse’s unreasonable behaviour and the fact that you cannot reasonably be expected to live with that spouse.
- Your spouse’s desertion for a continuous period of at least 2 years.
- Separation for at least 3 years with your spouse consenting to the divorce.
- Separation for at least 4 years [consent not a prerequisite]
Married couples who don’t meet the above criteria can consider other alternatives to divorce, for instance, separation.
#2. When to apply?
Ideally, after being married to your spouse and having lived in Singapore for at least 3 years. That said, exceptions can be made if you meet certain requirements.
If you have been married for less than 3 years, you can still seek the court’s permission to start divorce proceedings. The court may exercise its discretion to allow you to commence divorce proceedings if you can prove that:
- You have suffered exceptional hardship during your marriage or;
- Your spouse has been exceptionally unreasonable and cruel
If you have lived in Singapore for less than three years, you must prove that Singapore is your domicile of choice. This means showing that you have made concrete plans to relocate to Singapore permanently.
You would need to provide evidence of your:
- Residence in Singapore
- Intention of permanent or indefinite residence in Singapore
#3. Is it more advantageous to divorce elsewhere?
The choice of jurisdiction for your divorce is a crucial factor in determining the outcome of your divorce. In other words, the governing law of a country will have a significant effect on your share of the assets and the custody of your children. Some jurisdictions are known to be generous to wives for instance.
Even if you are eligible to file for divorce in Singapore, you may enjoy a more favourable outcome if you choose to divorce in your home country or elsewhere. The best thing to do would be to consult a lawyer in your home country and in Singapore and compare your notes. Make a list of the pros and cons of commencing divorce in either jurisdiction and make your decision accordingly.
If you are eligible to commence proceedings in Singapore, explore what options you have once you commence proceedings. For example, if you have children under 21 years of age, then Mediation is a mandatory step in the proceedings. This writer’s personal view of Mediation has been positive and we think that this should be the first step to take. If both spouses are agreeable to having their case mediated, and provided both approach this with the right mindset, the outcome can be mutually satisfying.
#4. How much will it cost?
The cost of your divorce depends on whether it is a contested or uncontested divorce.
An uncontested divorce is pursued when both parties are agreeable to terminating the marriage. In this case, it is typically much easier for both parties to reach an agreement on issues related to the marriage and its dissolution, such as child custody and the division of matrimonial assets.
A contested divorce, on the other hand, is pursued when both parties cannot agree on the terms involved in divorce proceedings and may involve a spouse unwilling to terminate the marriage. Both parties’ disagreement would lead to lengthier divorce proceedings, resulting in an increase in legal fees.
A contested divorce costs about 10 times more than an uncontested divorce
Dollars and Sense’s article on the estimated financial cost of divorce shows that a contested divorce (~$10,000-$30,000) can cost about ten times more than an uncontested divorce (~$1,500-$2,900). Bear in mind that fees will vary depending on the complexity of your case and the seniority and experience of your lawyer and be prepared to pay more for these. This is not uncommon as it’s typical even in other professions.
#5. How long will it take?
An uncontested divorce typically takes 5-6 months (including the waiting period for the final judgment for divorce), whereas a contested divorce may take 12 months and more.
You can reasonably expect your divorce to take at least half a year. For this period, spouses of employed expats may consider seeking legal advice on holding on to their dependant’s pass until their divorce is finalised.
#6. Are prenuptial agreements enforceable in Singapore?
The Singapore Court will take into consideration any agreement between the parties on the division of their assets [this is in fact provided for in Section 112 of the Women’s Charter] but it is important to note that the Court is not obliged to recognise the prenuptial agreement in its entirety or even partially.
A prenuptial agreement has a greater chance of being enforced if it is based on foreign law and if its holders are foreign nationals.
#7. Must the children remain in Singapore during divorce proceedings?
Not necessarily so, if the child has been taken out of Singapore with the other spouse’s written consent. However, it should be noted that under section 131 of the Women’s Charter, where matrimonial proceedings are pending or where one parent has custody, or care and control of the child to the exclusion of the other, whether by agreement of an order of court, the court may restrain a party from taking the child abroad or allow this either conditionally or unconditionally.
The Hauge Convention keeps parents from illegally relocating with their child to another country
Singapore is part of an international legal treaty called The Hague Convention which mandates that children remain in the country of their habitual residence so that issues pertaining to their custody can be resolved in that country. The treaty also includes Hong Kong, Australia, New Zealand and the United Kingdom. A complete list of the countries that Singapore has a convention relationship with will be found here.
Parents who have unlawfully relocated their children to these countries may be forced to return the child to the country of habitual residence.
Consequences when one parent has custody/care and control of the child
Where there is an order for custody and care and control, the Court may, pursuant to Section 126 of the Women’s Charter, impose conditions at the time of making such an order and one of these could be an order prohibiting the person having such an order in his/her favour, from taking the child out of Singapore, except with the written consent of both parents or if the court gives permission to do so, failing which the guilty party may be convicted and ordered to pay a fine not exceeding $5,000 and/or to imprisonment for not more than 12 months. However, these provisions do not prevent the person having custody or care and control from taking the child out of Singapore for a period of less than 1 month.
Despite these harsh penalties, many desperate fathers or mothers still take the risk, as reported in this Straits Times article in April 2017.
Legal recourse for parents who wish to take their children out of Singapore
Parents who are compelled to flee the country with their children may do so as they feel that they have no other choice. For instance, they may be motivated by the urgent need to separate their children from an abusive spouse.
In such extreme situations, it is still possible for these parents to seek legal recourse. A skilled and experienced family lawyer can be of help in obtaining the consent of the other parent to legally move with the children or to go through the proper channels for obtaining a court order.
#8. To stay, or to leave after the divorce?
Continuing to remain in the country may be challenging for divorced foreigners who were dependant’s pass holders. The loss of their marital status would consequently mean the loss of their dependant’s pass and their right to remain in the country.
After a divorce, dependant’s pass holders can:
- Leave the country within 30 days or as directed by the relevant authority; or
- Find employment and apply for a work permit; or
- Ask for an extension of the Short Term Visit Pass issued to them at the end of their divorce proceedings.
Some divorced foreigners may choose to return to their home country, while others decide to stay for various reasons, including the lack of funds to move back home or a desire not to uproot their children’s lives in Singapore. In either case, planning ahead, seeking legal assistance and any other kind of help, such as counselling, could help you in coming to terms with your divorce.
Please note that this article only conveys an overview and is not intended to be an exhaustive treatment of the law. It does not constitute legal advice, nor does it create a solicitor-client relationship. If you need legal advice, please contact a solicitor directly.
Talk to Gulab about Family Law issues
If you have questions about Family Law, you can get a quick consult with Gulab or other lawyers with similar expertise at a transparent flat fee of $49. You can expect a call back within 1-2 working days and have the lawyer answer your questions and provide legal advice.
This article is written by Gulab Sobhraj from Crossbows LLP and Joseline Yu.
You may be interested in these articles:
- Deciding how to end your marriage in Singapore – divorce, separation or annulment?
- Ending a marriage that is less than three years
- Prenuptial Agreements in Singapore
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.