What comes to mind when someone says they are filling for separation or preparing for a divorce? Divorce has been misunderstood to be a contentious process – where couples fight over assets and the care and control of their children, etc. However, this is not always the case.
More often than not, a divorcee will strive to remain on amicable terms with their ex-spouse because they want to be involved in the upbringing of their children, and do not wish for their children to be impacted negatively due to the divorce.
For a divorce to be obtained in Singapore, the parties must be married for at least three years and they must show that the marriage has “broken down irretrievably”. This can be proven in four different ways:
Adultery, Unreasonable behaviour, and Desertion are fault-based justifications, whereas Separation is a non-fault-based justification.
It is getting more common nowadays for couples to opt for the non-fault-based justification and that is to separate for a period of at least three years, before deciding if they should reconcile and/or proceeding to file for uncontested divorce.
This article aims to explain how marriage separation in Singapore works – and how a popular way to facilitate the separation process is to have a family lawyer draw up a separation agreement, commonly known as a “Deed of Separation”.
What does it mean to “separate”?
When parties choose to separate, they can do so informally (without any formal documentation), formally (by entering into a Deed of Separation) and/or by filing for a writ for judicial separation in court under section 101(1) of the Women’s Charter (Cap 353).
In order for parties to rely on separation as a ground for divorce, they are required to separate for a period of at least three years before commencing divorce proceedings. This means that parties must live apart, or lead separate lives if they are still living in the same household.
What does “leading separate lives under the same household” mean?
This means that although the parties may continue to reside in the same household (commonly their flat), they should be living in different bedrooms and ceasing conjugal relations. Parties should also do his/her own laundry and avoid having meals together as a couple/family. In short, there must be an obvious intention that the parties intend to lead their own lives without interference from the other, and they are not conducting themselves the same way as they did during the period before the “separation”. (e.g. travelling as a couple together or dating normally).
How may Separation be proven?
Most times, it is difficult to precisely point out the exact day which parties have “separated” from one another, especially if parties are still residing under the same roof. This is why most couples decide to draw up a Deed of Separation to facilitate their separation and to formalise their arrangement to separate.
What is a Deed of Separation?
A Deed of Separation is a legal document entered into between the husband and wife to clearly set out the arrangements between themselves during a period of separation. The Deed of Separation can be signed before a family lawyer or a Commissioner for Oaths.
Generally, a Deed of Separation may contain the following terms:
Apart from the terms above, other considerations may also be included in the Deed of Separation according to the wants and needs of every couple, as each marriage is unique. That said, it must be noted that the terms in a Deed of Separation may be set aside by the Family Court if they are deemed unreasonable or in contravention of the rules set out in the Women’s Charter (Cap 353). Therefore, it is best to speak to an experienced family lawyer before you proceed to enter into a Deed of Separation.
When do you need a Deed of Separation?
One key thing to note is that, although signing the Deed means that both parties are separated, parties are still considered legally married. A divorce is needed for either party to remarry.
Many couples opt to draft a Deed of Separation to avoid expensive, contested litigation. A Deed of Separation setting out the conditions of the legal separation and agreed ancillary matters may be helpful to avoid conflicts during future divorce proceedings. If you have a Deed of Separation in place, it will facilitate the Court’s process in granting the divorce based on separation after the requisite three year separation or four year separation if your spouse changes his/her mind regarding the divorce.
We know that divorce is a difficult process for all the parties involved and we aim to assist you in making it as painless as possible. If you require a Deed of Separation to formalise your separation agreement with your spouse, please speak with us. We will be able to prepare a Deed of Separation best suited to your needs.
Speak with our experienced family lawyers today.
You may wish to read up more on Will Writing in view of a separation here