Unreasonable Behaviour, it seems, is the basis frequently cited by women when applying for a divorce
According to the Department of Statistics Singapore, out of the 3,437 divorce proceedings filed under the Women’s Charter in 2016 where the plaintiff was a woman, 58.6 per cent of the filings cited “unreasonable behaviour” as the key reason for the marriage breaking down – an increase of 2.7 per cent from a decade ago in 2006.
What is unreasonable behaviour, and how do you define it?
Before we dive into this, let’s get the dry stuff out of the way. The law as it stands provides that the only ground of divorce is that the marriage has broken down irretrievably. However, there are 5 ways of going about to prove this. These five ways or ‘facts’ are found in Section 95 (3) of the Women’s Charter and they are as follows:
- The defendant has committed adultery and the plaintiff finds it intolerable to live with him/her;
- The defendant has behaved in such a way that the plaintiff cannot reasonably be expected to live with him/her;
- The defendant has deserted the plaintiff for a continuous period of at least 2 years immediately preceding the filing of the writ;
- The parties to the marriage have lived apart for a continuous period of at least 3 years immediately preceding the filing of the writ and the defendant consents to a judgment being granted;
- The parties to the marriage have lived apart for a continuous period of at least 4 years immediately preceding the filing of the writ.
Our focus for this article will be on Section 95 (3) (b) of the Women’s Charter.
Let’s break Section 95 (3) (b) down for a quick analysis. There are two elements you would need to prove if you claim “unreasonable behaviour”:
- That your spouse has behaved in a certain way; and
- It is not reasonable to expect you to continue living with your spouse.
Whilst this fact is commonly referred to as unreasonable behaviour, theoretically, it is not necessary for the defendant’s behaviour to be characterised as unreasonable but that you, the plaintiff, feel that it is no longer reasonable to continue living with him.
However, in practice, the Courts do look for evidence that the defendant’s behaviour is unreasonable.
Are there any key considerations that the Courts have when considering a case under unreasonable behaviour?
Yes, there most certainly are, as derived from the High Court case of Wong Siew Boey v Lee Boon Fatt. There are roughly three key elements that the Court is looking at when considering such a case.
- The Court would first consider the basic question of whether you find it intolerable to live with the defendant. This question has to be answered subjectively, from your perspective and whether your position is reasonable or not is totally irrelevant.
- The Court then has to assess the defendant’s behaviour. The Court has to consider whether you can reasonably be expected to live with the defendant and this has to be determined objectively, keeping in mind the personalities of both you and your spouse, as well as the whole history of the marriage and relationship.
- Lastly, the Court will look at the cumulative effect of each person’s behaviour. In this context, any conduct, action or omission – whether it is an active or passive act – could constitute behaviour. This behaviour must impact you as the plaintiff and in certain exceptional cases, it can also extend to behaviour towards another party as long as it affects you. For example, boorish behaviour by the defendant towards your parents or siblings may have an impact on you.
- In summary, the essence of the test is that the Court has to consider not only the defendant’s behaviour but your character, personality and behaviour and ask itself: can you, with your character, personality, faults and other attributes, whether good or bad, and considering your behaviour during the course of your marriage, reasonably be expected to live with the defendant?
Just what constitutes unreasonable behaviour?
The brief analysis of the above elements would make it clear that this could potentially be anything. There cannot be an exhaustive list of acts that constitute ‘unreasonable behaviour’ and in fact, in the case of Wong Siew Boey v Lee Boon Fatt, the Court took the view that any behaviour is a finding of fact and that “the courts have avoided categorising conduct as guilty or blameless in the abstract.”
With that said, here are examples of what can be considered unreasonable behaviour:
- Domestic abuse, whether physical, emotional or verbal and this would include domineering behaviour, belittling, unwarranted criticism, alleging that the children of the family are not his, insults, threats, refusing to have sexual relations for an abnormally long period of time
- Persistently returning home late without justification and without informing the spouse, refusing to help out with the care of the children or the management of the family home, failing to support the family, financially or in other way
- Sexual perversion, homosexual activities, the commission of a criminal offence which is of a sexual character,
- Compulsive gambling, compulsive drunkenness, persistent dishonesty,
- Obsessional conduct such as being obsessed with cleaning the home all night [this was the complaint in the English case of Howell v Howell (1964)] or compulsively wiping everything in sight to kill ‘cancer germs’ [the complaint in the English case of Crump v Crump (1965)]
- Systematically poisoning the spouse, improper association with a person of the opposite sex, which may or may not constitute adultery, for example, an emotional affair. You may apply for a divorce under this fact if you are unable to definitively prove that your spouse is cheating on you.
When is the latest I can file for divorce using unreasonable behaviour?
The law encourages, rightly so, couples going through a difficult marriage to try and resolve their differences and reconcile.
For this reason, pursuant to Section 95, paragraph 6 of the Women’s Charter, you are allowed to live together with your spouse even after he/she has committed an act that would entitle you to commence divorce proceedings if the total period of living together does not exceed 6 months. It is not necessary that these be 6 consecutive months as long as the period or periods of living together, cumulatively do not exceed 6 months. If you satisfy this requirement, the period of living together will be disregarded should you decide to file divorce proceedings and you can still maintain that you cannot reasonably be expected to live with your spouse.
However, should you exceed this total period of 6 months, then you are deemed to have accepted the behaviour. Another way of looking at this may be to consider this period of time, exceeding 6 months, as an indication that you have forgiven your spouse for his behaviour. In this instance, you can no longer claim that you cannot reasonably be expected to live with your spouse.
It is important to bear in mind that you are not required to commence divorce proceedings right away before the 6 months of living together come to an end. What is important is to show that you have stopped living with your spouse as a couple. This can be simply achieved by moving to a spare bedroom, bringing the living arrangements to an end and ceasing to act and relate to your spouse as a happily married couple ordinarily would, or it can be achieved by moving out of your home.
Adultery vs unreasonable behaviour – which one should I file my divorce under?
In general, given that there is a high standard of proof required in order for the Courts to find your spouse guilty of adultery, and considering the amount of costs and fees required for you to definitively prove that your husband is cheating on you, it may be better for you to file for divorce under “unreasonable behaviour”. Personally, given the high standard of proof, I would suggest this fact, i.e., adultery, only if you have a strong private investigator’s report to support your claim.
However, you must still convince the Courts completely that your spouse’s “unreasonable behaviour” is sufficient to show that the marriage has completely, and irretrievably broken down. You would need to cite convincing incidents that adequately show the extent of the breakdown in your marriage.
Frequently asked questions
Question 1: We have decided to get a divorce as we don’t see any future in being together. My lawyer has advised me to file the divorce using “unreasonable behaviour” so that we don’t have to go through the 3 years separation. What should I do?
In the first place, have you and your spouse been separated for at least 3 years? And, will your spouse consent to you filing divorce proceedings on the basis of separation? If you have been separated for at least 4 years, you do not require your spouse’s consent. If your answer to either of these is a ‘yes’, then please file your proceedings on the basis of separation.
If you do not qualify for the above option and cannot wait whilst separation runs its course of 3 years or even 4 years, or if your spouse refuses to consent to a 3 year separation, and if desertion or adultery are not options, then you may have no choice but to commence proceedings on the basis of ‘unreasonable behaviour’.
Question 2: Will I get more in the way of asset division because I have cited unreasonable behaviour against my husband?
Let’s take a look at an actual case: Chan Tin Sun v Fong Quay Sim (2015) SGCA 2. Here, the wife systematically poisoned the husband with arsenic between 2004 and 2005. She was charged, convicted and imprisoned for one year.
The Court of Appeal took the position that whilst the Courts were not prevented from considering the conduct of the parties in determining the division of the matrimonial assets, such conduct must be “both extreme and undisputed”. The Court of Appeal characterised the wife’s conduct as such, i.e., “extreme and undisputed” and applied a 7% discount to her 35% share in the matrimonial assets, as awarded by the lower Court. This brought the wife’s share of the assets down to 28%.
The important takeaway from this is that the Court did not seek to punish the wife but concluded that the wife’s conduct undermined the co-operative partnership that is inherent in any marriage and harmed the welfare of the other, i.e., the husband and ascribed a negative value to her conduct.
It needs to be borne in mind that this was a rare case and that generally, the Court will not have regard to conduct. In fact, the Court expressly said that “..it is not the case that the conduct of the parties should always be taken into account in determining what would be a just and equitable division of the matrimonial assets.” The Court will not delve into a minute scrutiny of the conduct of the parties and that it was only conduct that was “…both extreme (ie, manifestly serious) and undisputed…” that would be taken into consideration.
So, will you get a greater share if you allege unreasonable behaviour? Unless the conduct that you cite is extreme and undisputed, the answer would be no.
Question 3: If I commence my divorce proceedings on the basis of my spouse’s behaviour, will it inflame matters and lead to more acrimony between the parties?
In short, it may. However, if this is the only option you have and if you are not prepared to wait for 3 to 4 years, living separately from your spouse, before you can commence your divorce proceedings on the basis of separation, then you do not have much of a choice.
If you have children under 21 years of age, there will be mandatory counselling and mediation at the Child Focussed Resolution Centre and it may be possible to resolve any unhappiness over the basis of your divorce at that time. In most cases, this is usually done by toning down the particulars stated in a document, called the “Statement of Particulars”, which sets out the behaviour that you have complained of. In some cases, your spouse might get enraged and file what is called a “Defence and Counterclaim”, denying your allegations and alleging that you caused the breakdown of the marriage by your behaviour. When this happens, the sensible thing for both parties to do would be to consider if the particulars need to be toned down and amended and proceed with the divorce on both claims.
Question 4: Can my spouse and I agree on citing unreasonable behaviour to file for divorce?
Provided that you first have sufficient particulars of such behaviour, and if this is the only option you have, then it might be a good idea to broach this with your spouse if you feel that you and your spouse are able to talk about this. Please note that this is NOT a suggestion that you can collude and collaborate with your spouse to come up with allegations of behaviour that never took place. That would be a criminal offence. However, there is nothing wrong if both parties agree on how the divorce documents are to be worded if this helps to pave the way forward, provided that the contents of the documents are premised on events that had actually taken place.
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This article is written by Gulab Sobhraj 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.
Continue reading:
- Divorce for expats and foreigners in Singapore
- Deciding how to end your marriage in Singapore – Divorce, Separation or Annulment?
- Adultery in Divorce Under Singapore Law
