Should I Separate from my Spouse?
If you are going through tough times in your marriage and are unable to communicate with your spouse, separation may be an option you are considering. For some, separation is a time out for parties to cool down and consider if they want to try to save the marriage. In such cases separation can help both spouses by giving them the much-needed space to collect themselves and work towards reconciling and rebuilding the marriage. They can also seek help from professional counsellors during this separation period to work out their problems in the marriage and to consider their options moving forward.
Not all separations lead to a divorce. Some couples use the period of separation to reconcile their differences. Separation is also a good option for couples who do not wish to divorce for moral, religious or practical reasons. For such cases, the type of separation is important so as to safeguard the interests of vulnerable persons e.g. young children or home-makers.
How to Avoid an Acrimonious Divorce
Divorces can get acrimonious. This is especially so when parties do not agree on the reason for the divorce (e.g. unreasonable behaviour or adultery) or the terms of the divorce (ancillary matters i.e. matters relating to their children and the division of matrimonial assets). For instance, if one spouse accuses the other spouse of behaving in an unreasonable manner, it is likely that the other spouse would refute such claims with his or her side of the story. It is also common for parties to agree on the reason for the divorce but disagree on the ancillary matters.
A Deed of Separation will help minimise acrimony between parties as it encourages parties to compromise and reach a common ground. It also provides clarity on the reason and terms of the divorce.
A Deed of Separation is a practical step towards a “fuss-free” and “friendly divorce”. It will minimise any unpleasantness that is commonly associated with “nasty” divorces as a period of 3 years separation is a valid reason for an uncontested divorce, and it is non-fault based. We will explore the requirements for separation and the advantages and disadvantages of having a Deed of Separation below.
Requirements for a Separation
If you are planning a separation and considering divorce as an option at a later time, you should ensure that the separation is done in a way that complies with the legal requirements necessary for a divorce in the Singapore Family Court.
You could enter into a separation agreement verbally and mutually agree to live in separate rooms or separate addresses. But the problem with such “unofficial” type of separation could be that parties are not able to remember the commencement date of the separation given that it could continue for years. There could also be periods in between that parties decide to stay together and this could complicate matters..
To qualify for a divorce, the official term used for separation is “living apart”. Subject to the consent of both parties, the period of separation must be a minimum of 3 years under the Singapore divorce law. The test the Court uses is whether the parties have led separate lives i.e. they lived their own lives independently from each other and do not concern themselves with each other’s lives. A common evidence provided in the divorce papers is that the wife did not cook or clean for the husband or that the parties did not have meals together.
It is common for a couple to be separated but still live under the same roof. A common myth is that for separation to be effective or valid, the married couple must have lived at separate addresses. While living at separate addresses would certainly constitute separation, it need not be so. A married couple living under one roof but in separate bedrooms or separate sleeping arrangements would qualify if they indeed led separate lives in doing so.
It is also possible for a married couple to be separated even though they stay in the same bedroom. However, the Court would have to consider all the circumstances. Should you need advice on this matter, we will be able to provide you with the necessary legal advice.
Deed of Separation
Advantages of a Deed of Separation
(a) It is a mutually agreed formal and “official” step to be separated.
(b) It clarifies the start date of separation and earliest date to apply for divorce.
(c) Neither party can accuse the other of deserting or leaving the marriage unilaterally.
(d) It gives parties time to work things out but have a deadline to commence divorce.
(e) It gives the couple time to wait things out e.g. fulfilling the Housing and Development Board (“HDB”)’s requirement to stay in the flat for a Minimum Occupation Period before the flat can be sold, or waiting till their children are older.
(f) It fulfils the minimum 3-year separation to qualify for a divorce due to 3 years’ separation.
Disadvantages of a Deed of Separation
(a) The couple remain legally married.
(b) Parties cannot remarry during the period when they are still separated and not officially divorced.
(c) The couple needs to co-operate on matters relating to their children and matrimonial assets.
(d) Parties cannot apply for a new HDB flat.
How a Deed of Separation is prepared
A Deed of Separation is a formal agreement that includes the terms of your separation and is recognised by the Singapore Family Court. It must be signed willingly by both parties. Usually, a lawyer will be appointed by one party to prepare it. The other party can choose to appoint his own lawyer if he feels that he requires legal advice before signing. Otherwise, the other party can be self-represented. The deed will be kept by the parties and used when they want to apply for the divorce.
A basic Deed of Separation will confirm that parties agree to live separately. Parties will also agree to not harass each other and that they are free to associate themselves with other persons.
Additional terms that can be included are: the custody, care and control and access rights to the children, the division of matrimonial assets and other details such as the maintenance for the children and wife.
While the Deed is a mutual agreement, the Singapore Family Court has the power to consider the fairness of the terms and vary them in the case that circumstances may have changed since it was signed. If the Court deems the terms unfair, it has the power to make orders and vary the Deed. However, it is unlikely that the Court will order that the entire Deed is unenforceable save for exceptional circumstances.
This is a way to make your Deed of Separation official by way of a court order.
The process to apply for a judicial separation is similar to that of a divorce, except that in a judicial separation, the couple remains legally married. The advantage of a judicial separation is that the terms of the agreement are endorsed by the Court and will therefore be enforceable by a court order if one party breaches any of the terms.
Advantages of a judicial separation
The advantages of applying for a judicial separation are as follows:
(a) The terms of separation are enforceable as it is made in the form of a court order.
(b) The couple is still legally married.
(c) Order can be rescinded and parties remain married.
Disadvantages of a judicial separation
(a) The disadvantages of applying for a judicial separation are as follows: Parties cannot remarry when the court order for judicial separation is in effect.
(b) The couple needs to co-operate in matters relating to their children and matrimonial assets.
(c) Parties cannot apply for a new HDB flat.
If one party does not comply with the terms of the court order, the other party is entitled to apply to Court to enforce it.
Judicial separation is also often chosen by couples who do not wish to be divorced because of moral or religious reasons.
Consequences of judicial separation
Since parties remain legally married, they will not be eligible to buy their own HDB flat. This may be a problem for some couples who wish to lead separate lives but are unable to purchase a separate HDB flat to move into in order to stay separated from their spouses.
A couple who is judicially separated is also not entitled to a share of his or her spouse’s assets if one of them dies without a will. It is therefore prudent for parties to do a Will and Lasting Power of Attorney. Please click here to read more about Will and LPAs.
A couple who wishes to get a divorce after obtaining a court order for judicial separation will still have to apply separately for a divorce as the final order for divorce may be different from the initial court order for judicial separation.