Grounds for Divorce

Grounds for Divorce

The Women’s Charter governs civil divorce cases for non-Muslims in Singapore.

Eligibility and restrictions on filing for divorce

To file for divorce in Singapore, sections 93 and 94 of the Women’s Charter stipulate that:

  • At least one of the parties must be domiciled (treats Singapore as their permanent home) in Singapore at the time of filing for divorce, or at least one of the parties must have habitually resided in Singapore for three years before the commencement of the divorce proceedings.
  • No party may file for divorce within three years of the date of marriage. There are exceptions where a party may file for divorce before the three-year period if there is evidence of exceptional hardship or depravity. What constitutes exceptional hardship will depend on the applicant’s circumstances.

Once the parties have established eligibility to file for divorce, the focus can turn to the grounds for divorce.

Grounds for divorce

We often hear various terms used as grounds for divorce, but under the Women’s Charter, there is only one legal ground for divorce in Singapore – the irretrievable breakdown of the marriage.

Section 95(1) of the Women’s Charter states that “irretrievable breakdown of the marriage” as the only ground for divorce and section 95(3) mentions specifically five scenarios to establish an irretrievable breakdown of a marriage.

  • Adultery
  • Unreasonable behaviour
  • Desertion
  • Separation of three years with consent, or
  • Separation of 4 years

The court has to consider, given all the circumstances, whether it would be just and reasonable to dissolve the marriage. If one of the above five factors is not present, the court cannot hold that the marriage has broken down irretrievably.

Proving irretrievable breakdown of the marriage

To prove irretrievable breakdown of the marriage, the plaintiff must prove one of the scenarios mentioned in section 95 of the Women’s Charter.

Adultery

Section 95(3)(a) – The defendant committed adultery, and the plaintiff finds it intolerable to live with the defendant.

Proving adultery is often difficult. In the usual sense of the word, adultery means engaging in extramarital sex, so the plaintiff must provide evidence that the defendant had sexual intercourse with a third party or prove that adultery is likely to have occurred. Evidence that the adulterers spent time in a hotel room, photographs of them in intimate positions, emails or phone communications, SMS’s and so on could serve as evidence that adultery likely occurred.

Evidence of a child born from the adultery or a confession would be solid evidence, but the “guilty” party is often unlikely to admit to adultery. More often, the plaintiff might have to engage the services of a private investigator to obtain evidence that adultery is likely to have occurred.

If it is impossible to obtain evidence to substantiate a claim of adultery, it might be easier to file for divorce based on “unreasonable behaviour.”

To succeed with an adultery claim, the plaintiff must file for divorce within six months of discovering the adultery. If the plaintiff knew about the adultery and continued to live with the defendant for more than six months, the plaintiff cannot rely on adultery to prove irretrievable breakdown.

Unreasonable behaviour

Section 95(3)(b) – The defendant behaved in a way that the plaintiff cannot reasonably be expected to live with the defendant.

Unreasonable behaviour is not defined in the act, and the test is often subjective. It is generally easier to prove than proving adultery, which requires concrete evidence. Usually, where a spouse has been unfaithful, the plaintiff might file for divorce using unreasonable behaviour.

The test for unreasonable behaviour is, “Can the one spouse be reasonably expected to continue living with the other?”

In determining what is unreasonable behaviour, the court will first subjectively analyse if the plaintiff finds it intolerable to live with the defendant, regardless of whether the plaintiff has a reasonable cause for this attitude. The court will then evaluate the behaviour of the defendant to determine if it is unreasonable for the plaintiff to have to continue living with the defendant. The court will consider both spouses’ attitudes, character, and behaviour throughout the marriage.

The plaintiff does not need to show malice on the part of the defendant to establish unreasonable behaviour.

Whilst individual acts might not be unreasonable, a series of acts over some time might be found to be unreasonable behaviour. The court will look at the cumulative effect of certain acts.

Examples of unreasonable behaviour include the following:

  • Domestic violence, or threats of physical violence or abuse
  • Verbal abuse
  • Alcohol abuse leading to unreasonable or aggressive behaviour
  • Drug abuse
  • Disrespectful behaviour towards the plaintiff
  • Repeated insults or criticism towards the plaintiff
  • Financially irresponsible behaviour, or failure to maintain the plaintiff or the children
  • Constantly returning home late and/or under the influence of alcohol and/or smelling of perfume
  • Excessive or compulsive gambling leading to gambling debts or depleting family finances or savings
  • Complete disinterest or emotional neglect of the plaintiff

It is important to note that a finding of unreasonable behaviour pertains only to the marriage and whether it is unreasonable to expect the parties to remain married. It does not mean that the defendant is guilty of any misconduct.

Although unreasonable behaviour has a broader meaning, it is more than merely being incompatible. It is not enough to prove that the parties “have drifted apart” or no longer has anything in common.

Desertion

Section 95(3)(c) – The defendant has deserted the plaintiff for a continuous period of at least two years immediately before the filing for divorce.

Desertion implies that one spouse abandoned the other one against the wishes of the other. The court will only grant a divorce on the ground of desertion after a continuous period of at least two years. When calculating the two years, the two years do not have to be continuous. If the deserting spouse came back for a short period and left again, the two years do not have to start from the beginning. The total desertion period must be two years, and the total “returns” not more than six months.

To prove desertion, the plaintiff must establish that:

  • the parties were physically separated, and
  • the deserting spouse had the intention to desert the other spouse

Physical desertion means living in separate households. Desertion, however, only applies when the spouse decides to leave the household even though it is not required by circumstances. For example, if one spouse works overseas, circumstances require them to live apart, there is no intention to desert.

Intention to desert is commonly understood as meaning to have the intention to end the marriage permanently. The intention must be non-consensual. If the parties agreed to live apart, they cannot rely on desertion as a ground for proving irretrievable breakdown of the marriage.

In essence, desertion is non-consensual separation. There must be an element of abandonment.

Separation of three years with consent to the divorce

Section 95(3)(d) – The parties have lived apart for a continuous period of at least three years immediately preceding the filing for divorce, and the defendant consents to a judgment being granted.

This grounds for proving irretrievable breakdown is often used where the divorce is amicable, and the parties agree to a divorce, i.e. a non-contested divorce.

Physical separation alone is not enough. Both parties must have the intention to live part.

To prove separation, the plaintiff must prove that:

  • the parties intended to live apart, it was by choice
  • there is a loss of consortium (the right to companionship and association with each other in a marriage)

If one spouse was in prison, for example, or transferred to work overseas, it might not be considered as separation by choice.

It should be noted that separation can be established even where the two parties remained in the same house. Proving a loss of consortium and a breakdown in the marriage can be sufficient, even if the parties remained under the same roof.

Parties must prove that they effectively maintained two separate households and did not perform the typical spousal duties, such as cooking for each other, doing each other’s laundry, and so on.

If the parties get back together for a brief period, the separation can still be considered as continuous, as long as the attempt at reconciliation was not for more than six months, and the total time of separation must still be three years.

Some couples opt to obtain a deed of separation when deciding to live separately. A deed of separation is a formal, legally binding document signed by both parties setting out the terms and conditions of their agreement to live separately. It does not change the legal status of the marriage, but it can be used to prove separation when filing for divorce after three years.

Separation of four years

Section 95(3)(e) – The parties have lived apart for a continuous period of at least four years immediately before filing for divorce.

This section is often used to prove irretrievable breakdown in contested divorces. The criteria for separation are the same, but there is no need for consent.

If you and your spouse have lived separately for four years, you do not need your spouse’s consent to get a divorce.

All civil divorce cases for non-Muslims are heard in the Family Justice Court of Singapore. In the case of Muslims, or where the parties married under Muslim law, only the Syariah Court of Singapore has jurisdiction to hear the case, and the decisions are governed by the Administration of Muslim Law Act.

About the author

Muntaz Binte Zainuddin
Muntaz Binte Zainuddin

Partner

Muntaz is a partner in I.R.B. Law and oversees the work of associates as well as manages the firm with the Managing Partner. She holds two degrees from the National University of Singapore.

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