Proving Adultery in Divorce Under Singapore Law

Lau Kah Hee and Chee Seng Tang

7 years ago

Reading Time: 6 minutes

The Story In 60 Seconds

Adultery is defined as the voluntary sexual intercourse between a married person and someone who is not his/her spouse.
Irretrievable breakdown of marriage is the sole ground for divorce in Singapore
You can file for divorce on the ground of irretrievable breakdown of marriage (on account of adultery) if your marriage is at least three years old. Moreover, you or your spouse need to be domiciled in Singapore at the time of divorce or habitually resident in Singapore for at least three years before starting divorce proceedings.
Singapore Courts impose a very high standard of proof when it comes to adultery. In practice, the cheating spouse would either have to confess directly to the infidelity, or you would need to provide irrefutable evidence that the other party has been having an illicit affair.
If you do decide to file for divorce on the ground of irretrievable breakdown of marriage (on account of adultery), you have to do it within six months of becoming aware of the other party’s infidelity.
Do note, however, that even if you can establish the other party’s guilt in having an affair, it would not have any impact on the way that the Courts divide the matrimonial assets. Nevertheless, if the other party is a serial adulterer, or has a particularly promiscuous lifestyle, it may have an impact on the Court’s decision to award child custody.

Adultery as a fact to prove ground for divorce in Singapore

If you’ve followed the news about how Ashley Madison was banned in Singapore back in 2013, you should have a rough idea of what adultery is! Essentially, adultery may be defined as voluntary sexual intercourse between a person who is married, and a person who is not his/her spouse.

Under Singapore law, adultery may be considered as a fact to prove irretrievable breakdown of marriage for divorce under Section 95 (3)(a), of the Women’s Charter. It is one of the facts to prove that a marriage has broken down irretrievably and is no longer tenable, the others being unreasonable behavior, desertion, and separation.

However, in Singapore, you can only file for divorce if your marriage is at least three years old. Moreover, you or your spouse need to be domiciled in Singapore at the time of divorce or habitually resident in Singapore for at least three years before starting divorce proceedings.

It can be difficult to prove adultery

Singapore Courts require a high standard of proof in order to prove adultery. This means that the cheating spouse would either have to confess to being unfaithful in the relationship; or that there is a sufficient amount of circumstantial or direct evidence that adultery has in fact taken place. Given that it is not likely that the cheating spouse would confess to infidelity, you may need to engage the services of a Private Investigator (PI) in order to gather concrete evidence of adulterous behaviour. The fees for a Private Investigator can range from S$5,000 to S$8,000 for one week of surveillance.

Generally, the kind of circumstantial evidence that would be accepted by Singapore Courts as proving a spouse’s infidelity include the following.

Visual evidence — This is the most ideal and concrete form of evidence that you can provide. Usually, this refers to photographs or videos of your partner being physically intimate or having sex with other people.

DNA evidence — If you suspect that your child is not yours, a DNA test may prove that the child was conceived illegitimately. However, this may have negative effects on your relationship with the child, and cause undue stress to them.

Receipts and records — Flight tickets, hotel booking receipts, phone records or even restaurant bills can give credence to the claim that your spouse was cheating on you, but it may not necessarily be enough to win the case on its own merits.

Written testimonies — This refers to sworn testimonies from hotel or restaurant staff who might have served or witnessed your spouse during a regular rendezvous with their secret lover. It might also include written testimonies from friends who might have known of the affair before you.

Emails and chat messages — While arguably easy to fake, it may help in establishing the extent of the relationship.

If you can’t establish adultery, you may still file for divorce on ‘unreasonable behaviour’

If you are unable to establish clear and irrefutable evidence that your spouse is cheating on you, then you may wish to file for divorce based on ‘unreasonable behaviour’ -defined in Section 95 (3)(b), of the Women’s Charter. Pursuant to that section, a divorce may be sought when a defendant behaves in such a way that the plaintiff cannot reasonably be expected to live with the defendant. In this regard, the definition of ‘unreasonable behaviour’ is a little broader and more subjective, so you are not required to prove conclusively that the other party is having an affair.

Frequently Asked Questions

Question 1: I found out my spouse is cheating but I want to try make our marriage work first. If this doesn’t work out, when is the latest I can file for divorce on the ground of adultery?

Based on Section 95 (5)(b), of the Women’s Charter, if you found out that your spouse was cheating on you, but continued to stay with your spouse for 6 months or longer, then you would not be allowed to use adultery as a fact to prove the ground for your divorce.

So if you find out that your spouse was cheating on you, and you have decided on a divorce, then you should file for divorce on account of adultery as soon as possible. If you continue to stay with the cheating spouse beyond 6 months, then it may be argued that you have acknowledged and ‘forgiven’ the infidelity, and therefore find it tolerable to continue living with your spouse.

Question 2: I’ve filed for divorce on the account of adultery. If I can conclusively prove the other person is guilty of adultery, what do I get?

First, the other person may be penalised with having to pay for (potentially, a significant part of) the legal costs of the divorce proceedings, and, if applicable, he/she may be asked to (wholly or partially) foot the bill for charges and fees incurred as a result of hiring a Private Investigator.

However, when it comes to the division of matrimonial assets, the Courts refer to Section 112(2) of the Women’s Charter when making a determination, and do not consider who is at fault. When it comes to deciding child custody, the primary consideration is the welfare of the child, and whether a ruling is in the best interests of the child. Nevertheless, if the other person has had sordid affairs on multiple occasions, or they have a particularly promiscuous lifestyle that may affect his/her ability to be a good parent, it may have implications on who gets custody of the child.

Question 3: I’ve found out that my spouse was cheating on me with someone of the same sex. Can I still file for divorce on account of adultery?

A: Generally, as adultery is considered by the Courts as a sexual relationship between a man and woman who are not married to each other, it is not possible to file for divorce on the account of adultery. In practice, you may wish to file for divorce on account of “’unreasonable behaviour’ – improper association”.

Question 4: My wife and I had an open marriage, and we used to have intimate relations with other people outside of our marriage. However, circumstances have changed and I wish to seek a divorce. Can I do it on the account of adultery or unreasonable behaviour?

A: If you have concrete proof of adultery, e.g. videos or photos of your wife and third party entering hotel room together, then you may do so. The risk is that your wife may contest the divorce on that ground. In practice, it would be less complicated if you go under “unreasonable behaviour”, though you must be prepared to justify why her behaviour has been unreasonable.

Question 5: I have been married for less than three years, and I found out that my spouse was cheating on me. Can I file for divorce immediately? What do I need to do before I can file for divorce in these circumstances?

A: No, it is only in very exceptional circumstances of hardship or depravity that the law will allow for a writ of divorce to be filed within 3 years from the date of marriage.

Have a question on filing for divorce on the grounds of adultery?

If you have a legal question about your options when you’ve decided to divorce your cheating spouse, you can get a Quick Consult with Kah Hee or other lawyers. With Quick Consult, you can check out in minutes and for a transparent, flat fee of S$49, the lawyers will call you back on the phone within 1-2 days to answer your questions and give you legal advice.

This article is written by Lau Kah Hee from Derrick Wong & Lim BC LLP and Tang Chee Seng of Asia Law Network.

Continue reading:

If you want to know more about finding a lawyer

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.