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DIVORCE & SEPARATION
Comprehensive and personalized legal advice on divorce, separation and family law, including the division of matrimonial assets, maintenance of wife and children, custody, care, control and access of children
Comprehensive advice on estate management and succession planning including the structuring of trust and other mechanisms for wealth preservation
FAMILY, MATRIMONIAL, TRUSTS & PROBATE
Areas of Family, Matrimonial & Succession Laws
- Adoption of children
- Annulment of marriages
- Contentious divorces with cross-jurisdictional issues
- Contentious Probates
- Custody, care and control of, and access to children
- Deed of Separation
- Deed of Settlement
- Division of matrimonial assets
- Domestic Exclusion Orders
- Enforcement of Ancillary Orders
- Estate management and succession planning
- Maintenance of wife and children
- Personal Protection Orders
- Pre-nuptial agreements
- Probates and Letters of Administration
- Registration and enforcement of Foreign Orders
- Trusts structuring
Frequently Asked Questions
An aggrieved spouse may file for divorce if there is an “irretrievable breakdown” of the marriage. This is proved by one of the five following facts:
that the offending spouse has committed adultery and the aggrieved spouse finds it intolerable to live with the offending spouse;
that the offending spouse has behaved in such a way that the aggrieved spouse cannot reasonably be expected to live with the offending spouse;
that the offending spouse has deserted the aggrieved spouse for a continuous period of at least 2 years immediately preceding the filing of the writ;
that 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 offending spouse consents to a judgment being granted; or
that the parties to the marriage have lived apart for a continuous period of at least 4 years immediately preceding the filing of the writ.
Adultery refers to sexual intercourse with a third party.
Adultery may be proven by confession, direct evidence (e.g. eyewitness accounts, photographs or videos of the adultery), the birth of an illegitimate child, or by establishing the offending spouse’s inclination and opportunity to commit adultery.
You may engage a private investigator to obtain the evidence to prove adultery. The private investigator’s fees may be recovered from the offending spouse and/or the adulteress.
The word “unreasonable” refers not to the behaviour itself, but the expectation that the aggrieved spouse must continue living with the offending spouse despite the behaviour.
Thus, showing “unreasonable behaviour” involves: (1) proving the offensive behaviour; and (2) proving the expected cohabitation to be unreasonable in light of the said behaviour.
Commonly raised unreasonable behaviours include improper association, family violence, neglect of the family, and irresponsible financial behaviour (e.g. extreme gambling habits).
If parties agree on the grounds for divorce, there would be savings in time and costs, and acrimony between parties may be reduced.
If you wish to dispute the allegations raised in your spouse’s divorce papers, you may file a defence (to challenge your spouse’s divorce application) and a counterclaim (if you wish to seek a divorce on different facts).
In most cases, the names of parties will be redacted from reports published on the divorce. However, parties are not restricted from sharing orders and judgments made in their favour if they wish to show that they obtained a divorce based on the offending spouse’s adultery or unreasonable behaviour.
A divorce can be filed on the basis of a 3-year separation if both parties consent to the divorce.
But if one party does not consent to a divorce, an aggrieved spouse may file for a divorce based on a 4-year separation despite the offending spouse’s non consent.
It is possible to have a separation even while both parties are living under the same roof.
Separation requires (1) a “physical” element in the termination of marital relation between the parties; and (2) a “mental” element in that the separation is an intentional choice of either one or both parties.
For example, parties living under the same roof may be treated as having separated where they have executed a deed of separation and do not engage in marital activities (e.g. cooking or cleaning for each other, having sexual relations, etc). Conversely, parties who merely sleep apart in different rooms or households but spend all waking hours together as a couple may not qualify as being separated.
A spouse’s exclusive right to have sexual relations with the other spouse is an aspect of marital relations. As separation is a disruption of marital relations, the law usually does not penalise separated spouses for getting involved in new relationships. However, a party can only remarry after the grant of final judgment for the divorce.
In the event that your separation is “defective”, getting involved in another relationship before obtaining a divorce may entitle your spouse to file for divorce based on adultery or unreasonable behaviour (i.e. improper association).
One way to avoid this is to have a deed of separation allowing both parties to live separately as though they were both unmarried, and that neither party shall have any claim against the other for engaging in other relationships during the separation.
Consummation refers to having at least one act of sexual intercourse after solemnisation. “Non-consummation” may render your marriage voidable (i.e. capable of being set aside on the application of either party to Court).
“Non-consummation” may be proven by either party’s physical or psychological incapability to have sexual intercourse, or by showing one party’s wilful refusal to do so.
In general, being at fault for the marital breakdown would not affect your rights to custody or matrimonial property.
However, the Court’s primary consideration is the welfare of the child when determining issues of custody, care and control. A spouse guilty of exceptionally egregious conduct which caused the breakdown of the marriage may be deemed unsuitable to bear the responsibilities of being given custody and/or care and control of the child.
Where the plaintiff spouse alleges that there is a third party responsible for the breakdown of the marriage (e.g. the third party who committed adultery with the defendant spouse), that third party may be joined as a co-defendant in the divorce proceedings.
A co-defendant may be ordered to pay part of the successful plaintiff spouse’s legal costs.
Parties may file for an uncontested divorce on the “simplified track” where both parties agree on (1) the facts establishing an “irretrievable breakdown” in the marriage and (2) the ancillary matters (division of matrimonial assets, maintenance, custody, and care and control). Under the simplified track, the Court may (with both parties’ consent), make the orders agreed upon by both parties without requiring their attendance in Court.
Where parties are unable to agree on the facts establishing an “irretrievable breakdown” in the marriage and the ancillary matters, the divorce will proceed on a contested basis. A contested divorce will involve more time and costs than an uncontested divorce.
A divorce may be filed on a contested basis but appear “uncontested” where the defendant spouse refuses to enter appearance and/or file a defence. In such a situation the Court has the power to proceed to hear the plaintiff spouse’s case and decide on its merits.
“Custody issues” can be categorised as either relating to “legal custody” or “care and control”. Whenever the Court is to decide on a matter affecting a child, the welfare of the child will be its primary consideration.
Legal custody (or simply “custody”) refers to the responsibility to make medium and long-term decisions for the child (e.g. choice of school, whether to receive medical treatment). In general, the Courts prefer to order joint custody so that the child benefits from the involvement of both parents in his/her development; it is only where the Court considers one parent unfit or unable to exercise co-parenting responsibility that sole custody is ordered for the child’s welfare.
Care and control refers to parental responsibility for the child’s day to day needs and decisions. Care and control is usually granted to one parent, but “shared” care and control (i.e. the parents take turns to have care and control) may be ordered in certain cases (e.g. the child will not be negatively affected by the routine and parties have shown a strong capacity for co-parenting). Where there are multiple children born in a marriage, the Court’s preference is not to split siblings in making care and control orders; but should the Court do so, detailed access orders will be made to ensure that the siblings do not become estranged.
The parent who is not granted care and control will usually be given access (i.e. opportunity to spend time with the child according to the terms of the Court order). Access orders are usually “unsupervised” (i.e. that parent may spend time in private with the child), but the Court may order access to be under supervised conditions in certain situations for the child’s welfare (e.g. the parent has a history of family violence against the child).
A non-exhaustive list of factors which the Court considers in granting care and control includes:
The age of the child;
The relationship of the child with the parents;
Whether there are siblings;
Each parent’s past involvement in caring for the child;
Whether the child’s routine will be disrupted;
Both parents’ capacity and willingness for co-parenting;
Each parent’s proposed parenting plan; and
The child’s wishes.
In general, matrimonial property refers to property which was (1) acquired during the marriage; and (2) acquired due to the efforts of both spouses.
Property acquired before the marriage may “become” matrimonial property through ordinary usage or substantial improvement by either spouse during the marriage.
Property acquired via gift or inheritance may “become” matrimonial property through substantial improvement by either spouse during the marriage or if it was the matrimonial home.
The Court has the power to make a just and equitable division of matrimonial assets between the parties during ancillary proceedings, after granting interim judgment for divorce.
The just and equitable division is typically determined by assessing each spouse’s direct contributions and indirect contributions (both financial and non-financial) to the welfare of the family during the marriage.
For marriages with certain traits (e.g. long single-income marriages), the Court may incline towards an equal division irrespective of parties’ contributions.
Monies accumulated by the spouses in any bank account (whether jointly held by the spouses or solely held by one spouse) during the marriage will generally be matrimonial property and subject to division in divorce proceedings.
Under the Women’s Charter, wives and incapacitated husbands may claim maintenance from their spouse.
While spousal maintenance orders made during the marriage generally focus on financial preservation, spousal maintenance orders made in ancillary proceedings also serve as a means for the Court to grant a spouse their fair share of the wealth accumulated during the marriage.
A maintenance order may provide for a lump sum payment, a specific sum to be paid periodically (and whether it is for a fixed period of time), or a nominal sum (e.g. $1 every month). The Court may also decide not to make any maintenance orders.
The Court in determining the amount of maintenance to be paid will assess all the circumstances of the case, including:-
Each spouse’s income, earning capacity, property and other financial resources;
Each spouse’s financial needs and liabilities;
The family’s past standard of living;
The age of parties and the duration of the marriage;
Any physical or mental disabilities;
Any contributions made to the welfare of the family;
In divorce or nullity of marriage proceedings, any benefits (e.g. future pension) that may be lost;
The conduct of parties; and
In divorce proceedings, the financial position parties would have been in, if the marriage had not broken down.
In general, the length of divorce proceedings depends on the number of issues which are contested between parties, and the complexity of the contested issues.
An uncontested divorce on the simplified track may take at least 4 months to conclude.
A contested divorce typically takes about nine months to a year to proceed to trial. The length of the trial varies in each case. The entire contested proceedings may take at least 18 months.
Legal costs may be charged based on a lump sum or on an hourly rate. The costs charged by each lawyer may vary based on their standing, experience and nature of the legal work concerned. Longer and more complex proceedings will, of course, incur higher legal costs.
Certain facts to establish an irretrievable breakdown in the marriage appear to attribute “fault” to the defendant spouse (e.g. adultery, desertion, unreasonable behaviour).
The Court may order the spouse who is found responsible for the breakdown of the marriage to pay reasonable costs (which may include more than legal expenses – e.g., private investigator) incurred by the aggrieved spouse in obtaining the divorce.
In general, the Court has a broad discretion in determining whether and how much costs should be ordered against the parties. The Court will consider all the relevant circumstances including:-
who caused the breakdown of the marriage;
the nature and complexity of the proceedings;
the conduct of parties in the proceedings; and
whether parties were represented by lawyers.