Going through a divorce can be an emotionally draining and overwhelming experience for many individuals. Added to that pressure can be any perceived legal, tactical or financial advantages that the Plaintiff (i.e. the spouse filing for the divorce) can have throughout the divorce process – simply because they filed for divorce before their spouse did so.
I started practice in Australia in 2012 and am dual-qualified in Singapore as well. Most of my family law cases involve multiple jurisdictions and complicated children matters, and I am passionate about seeing people empowered and equipped in any legal battle they might find themselves in.
The common theme I observe when I see clients are the misconceptions that they have about family law, including whether they should be the first to file for divorce.
In this article, I will address some of these misconceptions and will be discussing certain scenarios where there may be advantages of filing for a divorce first.
Misconception 1: If They File for Divorce First, I Miss Out on My Version of Events
Generally speaking, if the divorce is to occur in Singapore and does not concern other jurisdictions, there is no real advantage of filing a divorce first if you are concerned that your version of events will not be heard by the court.
To start divorce proceedings, a Plaintiff will have to file their Statement of Particulars and Statement of Claim, essentially outlining their version of events and their claim. Some people misunderstand this to mean that their version of events or claim will not be heard by the court if they do not file for divorce first.
However, if a Defendant (i.e. the other spouse who did not file for divorce first, and is defending against the divorce) fundamentally disagrees with the Plaintiff’s version of events as outlined in the Statement of Claim, then they can file their reply to the Plaintiff’s version of events, and also a counterclaim which outlines the relief they would like to claim. So in this sense, there is no real advantage to filing a divorce first as the Defendant’s side of the story can also be heard by the court.
In fact, the divorce can be set down on both the claim and counterclaim to appease both parties. Usually, this is done with edits to the claims, that are agreeable to both parties, after negotiations have taken place.
Misconception 2: I Can Get More Money or Have an Advantage in Keeping the Kids
Unlike other types of litigation or court cases, a divorce does not have a “winner” or“loser”. Some people also think that they will be awarded custody to the children or stand to pay less/gain more spousal maintenance if they “win the race” to be the first one to file the divorce.
This is simply not true. The court will consider the applications of both parties and make a fair decision on such matters.
Are There Any Advantages of Filing for Divorce First If Different Countries are Involved?
This, of course, does not mean that there are completely no advantages to filing your divorce first. If you have resided in other countries for extended periods of time or are originally from another country, it is generally better if you file your divorce papers first.
For example, if you have been permanently residing in Singapore and your child is studying here, but your spouse resides overseas, you might want to take the first step by commencing divorce proceedings in Singapore.
This is so that the divorce will be heard in Singapore, and you do not need to keep flying overseas each time there is a court hearing or mediation should your spouse have filed for divorce overseas first. You will also be able to meet with your lawyers on a regular basis in person rather than through video conference calls.
I had a case where a spouse waited too long to commence proceedings in Singapore and the other spouse commenced proceedings overseas first. This made it very complicated because once we lawyers came into the picture, we had multiple proceedings in different countries and the question of forum non-conveniens came up.
Forum non-conveniens is a legal concept where parties have to prove to the court which country is the best country to hear the court proceeding. This can drag out proceedings and my experience in these cases is that it helps to be the first to file in the country of your choice.
In addition, you may not be eligible for legal aid for the overseas proceedings if you are not a citizen of that country. For example, legal aid in Singapore is generally not available to foreigners. This may make divorcing overseas a more expensive affair.
To make matters more difficult, the language used by the foreign court may also not be in English. Hence, it was difficult in that previous case because the client had to engage lawyers overseas where the spouse also took out proceedings there first. The client was not eligible for legal aid, and I also had to speak to the judge in German on several occasions to move the matter forward.
Eventually, we settled the case here in Singapore as settling it overseas was getting too complicated and expensive.
Are There Any Financial Advantages of Filing for Divorce First If My Spouse is Hiding Assets?
While there is no real financial advantage to filing for a divorce first if you suspect that your spouse might hide their assets to prevent them from being divided, it is important to be prepared in case your suspicion comes true.
Often before the other spouse files for divorce and the parties are still residing together, it is best to start gathering evidence such as bank documents and financial documents so that you can get a picture of the financial state, and the assets belonging to the matrimonial pool, in the event the other party begins to hide assets or funnel them overseas.
This way, the court can make a fair and correct ruling on the division of the assets between both parties.
At Sarah-Mae Thomas LLC, we can help you with your divorce, whether it is contested, amicable or international. We have an empathetic approach and will fight to protect your rights.
We also have an international and child-centric focus. If you need lawyers to support you through your divorce, feel free to get in touch with us.