Separation is the biggest reason cited by men when filing for divorce
According to the Department of Statistics Singapore, out of the 2,068 filings for divorce under the Women’s Charter in 2016 where the plaintiff was a man, 49.2 per cent of the filings cited “lived apart or separated for three years or more” as the key reason for the marriage breaking down.
What is “separation”, and how do you define it?
Based on Section 95, Paragraphs 3 (d) and (e), of the Women’s Charter, a divorce may be sought when the Court is satisfied that your marriage is irretrievably broken down, and this may be proven in two scenarios involving separation:
- If the person who did not file for divorce agrees to the divorce, then the couple only needs to live apart for a continuous period of at least 3 years from the date of application; or
- If the person who did not file for divorce disagrees to the divorce, then the couple needs to live apart for a continuous period of at least 4 years from the date of application.
As the fault for separation does not lie on either the husband or wife, the negotiations about matrimonial assets can be a little more amicable than other situations showing your marriage has broken down – i.e. adultery, unreasonable behaviour and desertion. In these latter cases, tensions can be a little more fraught and both sides might be hostile to each other as they try to pin the blame for the breakdown in their marriage on each other.
Due to the amicability, the divorce process does not get dragged on and there are more time and costs savings.
How do I initiate separation?
There are three main ways to initiate separation:
- Informal separation – In this method, your spouse and you simply move out and live separately at any time you so wish. There is no need to prepare any documentation or contract.
- A formal separation agreement – In this method, your spouse and you consensually agree to the terms of a formal separation agreement which states the terms and conditions for the separation. It should state the date of separation, the living and financial arrangements for each other, and the agreement that both sides would live separately from each other.
- However, it must be noted that while it may take the form of a divorce agreement, this separation agreement does not affect your legal status and that you would still need to be divorced in order to remarry.
- Also, while some terms of the separation agreement may be used in the final divorce agreement, the Courts can decide to alter or delete some of the terms of the agreement if it is not just and equitable, or if it does not fully consider the welfare of the children (if any).
- Judicial Separation – If necessary, you may apply the Court to grant you separation from your spouse, but you must have evidence of an irretrievable breakdown of the marriage on the grounds of adultery, desertion or unreasonable behaviour. This simply means that you are not divorced but rather have no marital rights or duties towards your spouse. This is common for people who due to religious reason, do not wish to end a marriage.
- Do note that even with this separation, you are still required to file for divorce if you are unable to reconcile your marriage. However, if you are granted a judicial separation and your spouse suddenly dies, their property would not automatically pass on to you through intestacy.
- You are not allowed to remarry because you are not divorced in the first place.
How do I prove my separation to the Courts when I’m filing for divorce?
Generally, the easiest way to prove your separation to the Courts would be if the two of you were physically living in separate locations during the period of separation. Additionally, the Courts would also need to be satisfied that the separation was with the full intention for both sides to be apart – i.e. having to live abroad due to work would not be considered as a deliberate intention for separation.
Moreover, the Courts also look at another factor called “loss of consortium”. Consortium in this context means the right of companionship and association with each other. If a couple were living in different places, but continued to go out together, or do activities that they previously did as a couple, the Courts may not consider that separation as valid.
Do note while that physical separation should be for a continuous period, the Courts will still accept it if the couple returned to cohabit with each other during that period – so long as the period of cohabitation is 6 months or less. This is to allow for the possibility of reconciliation between the couple.
I want to separate from my spouse, but I don’t have enough money to rent another apartment. Is it possible for me to be considered as separated, but we continue to live in the same house?
Yes, the Courts will still allow for this. However, you must conduct yourself in a manner such that it can still prove to the Courts that there is a loss of consortium and a breakdown in marriage.
In practical terms, this means you should sleep in a separate bedroom from your spouse, not have sex with your spouse, reduce the number of shared activities or family outings, keep separate bank accounts, and do not perform any normal spousal duties – like cooking or cleaning for each other.
The Courts will still accept it if the couple returned to consortium with each other during that period – so long as the period of cohabitation is 6 months or less. This is to allow for the possibility of reconciliation between the couple.
What are the type of evidence to prepare if separation is disputed?
The facts of loss of consortium are private to the couple and quite often, it is a question of who is more believable in Court. The possible evidence to lend support though not conclusive are for example, the separation agreement itself, the other person who are residing in the household coming to give testimony, documents showing different residential addresses, documents to show separation of finances, communications captured in a written form to suggest unlikelihood of any consortium and et cetera.
Need legal advice on Family Law matters?
If you need legal advice on family law matters, you may get a Quick Consult with one of the practicing lawyers for a transparent, flat fee of S$49 and expect a call back within 1-2 days to get your questions answered. Alternatively, you may also request a quote from Michael Low.
This article is written by Michael Low from Crossbows LLP and edited by Tang Chee Seng from Asia Law Network.
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 a 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.
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