Divorce is only granted in Singapore if the marriage has irretrievably broken down. This irretrievable breakdown is proved in four legally defined ways: Adultery, unreasonable behaviour, desertion, or separation.
If you are seeking a divorce and cannot prove adultery, unreasonable behaviour or desertion, then separation may be the only way in which you may be able to secure your divorce. Indeed, separation is often the preferred method of securing a divorce when neither party was at fault for the breakdown of the marriage.
To successfully get a divorce based on separation, you and your spouse must be separated for a continuous period of three years in a case of an uncontested divorce, and four years in the case of a contested divorce.
It should also be noted that in calculating the continuous period of separation, allowances can be given for anyone period not exceeding six months, or two or more periods not exceeding six months in total, for when you and your spouse have resumed living with each other, though this period will not count toward the period of separation.
Separation is usually brought about in one of three main ways:
- Informally (without any formal written documentation);
- With a written separation agreement, usually a Deed of Separation; or
- With a judgement of judicial separation.
The laws regulating spousal relationships in Singapore do not require that married couples cohabit. As such, you and your spouse are free to live apart whenever they wish to do so. If you want a divorce based on separation, either you or your spouse, or both of you, need to intend for the separation to lead to a divorce. The separation cannot be one merely out of necessity, such as if either you or your spouse has to live abroad for long periods due to work commitments.
In a case of informal separation, physical separation is often necessary. However, this does not mean that you and your spouse need to live in different homes, as long as there is a clear disruption of marital or sexual relations. Generally, this could include you and your spouse living in separate rooms despite being in the same house. You and your spouse should also not perform typical spousal activities such as cleaning or cooking for each other unless out of necessity.
Formal agreements of separation
You and your spouse may also choose to bring about the separation with a formal agreement of separation. Formal agreements of separation usually come in the form of a Deed of Separation, which contains the terms and conditions of the relationship during the separation. That being said, an oral agreement or a written document other than a Deed of Separation may still validly serve as a separation agreement. However, proving an oral agreement in dispute would present additional challenges. The deed of separation need not be registered with the courts or with a governmental department.
The separation agreement usually contains terms as to the separation itself. You will usually include terms such as:
- The date from which the separation begins;
- How you and your spouse have made your respective living arrangements;
- That both of you agree to live separately from each other; and
- Other relevant mutually agreed terms in relation to the separation.
The agreement usually also contains other terms not related directly to the separation as well, such as:
- The division of matrimonial assets;
- How their children’s living arrangements are to be made; and
- How much maintenance is to be paid from one party to the other.
These terms are usually similar to those found in a divorce agreement, and a lawyer may be instrumental in drafting the deed of separation.
The court may set aside deeds or terms of deeds that it determines to be unfair or improper, though it will not set aside deeds officially sanctioned by the courts. It should also be noted that a Deed of Separation will not change the legal state of your marriage. You will still be considered married in the eyes of the law, and have to successfully obtain a divorce if you wish to, among other things, remarry.
You may also file for a writ for judicial separation in court under section 101(1) of the Women’s Charter (Cap 353). However, to do so, you will have to show evidence of an irretrievable breakdown in marriage (i.e. adultery, unreasonable behaviour, desertion or separation). Given that you will have to be able to make out a case for divorce to be granted a judicial separation, applying for judicial separation is unlikely to be of particular use to a person seeking a divorce.
Marital rape during separation
Husbands are generally not considered guilty of rape against his wife under section 375 of the Penal Code, though he may still be guilty of other offences such as causing hurt. However, such protections cease to apply under several conditions, many of which have to do with separation. Husbands will still be guilty of rape against his wife if, at the time of the offence:
- His wife was living apart from him under:
- An interim judgement of divorce or nullity not made final, or a decree nisi for divorce or nullity not made absolute;
- A judgement or decree of judicial separation; or
- A written separation agreement.
- His wife was living apart from him and proceedings have been commenced for divorce, nullity or judicial separation;
- There was in force a court injunction restraining the husband from having sexual intercourse with his wife;
- There was in force a protection order under section 65, or an expedited order under section 66 of the Women’s Charter made against him for the benefit of his wife; or
- His wife was living apart from him and proceedings have been commenced for the protection order or expedited order referred to above.