Getting a Divorce by Mutual Agreement in Singapore
If you are considering getting a divorce, some of the considerations that may be weighing on your mind are the length and complexity of the legal process, and whether it will impact your children negatively.
Currently, even when the decision to get a divorce is mutual, a married couple can get a divorce only if they can show that their marriage has broken down irretrievably by proving one or more of the existing five legally defined facts, as will be explained below. However, the need to do so can drag out the divorce process and even result in greater hostility between the spouses.
In the spirit of reducing animosity and bringing about healing in the divorce process, the Singapore parliament has passed a bill to amend the Women’s Charter to include a sixth fact – divorce by mutual agreement. In this article, we will cover the following topics:
What is the Divorce Process in Singapore?
In Singapore, divorce is a two-stage process comprising:
- The dissolution of marriage, where the court will decide if the marriage has irretrievably broken down; and
- The ancillary matters stage where the court will decide how the parties’ affairs (e.g. maintenance and custody) should be dealt with.
Divorce proceedings can be contested or uncontested. In an uncontested divorce, the couple agrees on all the terms of the divorce, across both stages. On the other hand, if there is any disagreement on any single issue, regardless of which stage the issue comes up in, the divorce application becomes contested. For example, if the couple agree on everything except how the matrimonial assets are to be divided, the divorce application will still be classified as being contested.
You can find out more about what you have to do at each stage of the divorce process here.
What is Divorce by Mutual Agreement?
Divorce by mutual agreement refers to the option for a couple to file for a divorce on the basis that they mutually agree that the marriage has irretrievably broken down, at the first stage of the divorce process. This is also sometimes known as an “amicable divorce”. However, the two are not exactly the same since divorce by mutual agreement is not necessarily always amicable, as we will explain in more detail below.
It is important to note that the option to file for divorce by mutual agreement has not yet come into effect in Singapore, but it is expected to come into effect sometime in 2023. Thus, married couples looking to file for divorce before the changes come into effect cannot rely on the option for divorce by mutual agreement. Instead, they must prove that their marriage has irretrievably broken down using one or more of the existing five legally defined facts:
- Adultery: The other spouse (defendant) has committed adultery and the spouse applying for divorce (plaintiff) finds it intolerable to live with the defendant.
- Unreasonable behaviour: The defendant has behaved in such a way that the plaintiff cannot reasonably be expected to live with the defendant.
- Desertion: The defendant has deserted the plaintiff for at least 2 years.
- Separation without consent: The parties have separated for at least 4 years (if the defendant does not consent to the divorce).
- Separation with consent: The parties have separated for at least 3 years (if the defendant consents to the divorce).
How Does Divorce by Mutual Agreement Differ From the Other Existing Options?
Divorce by mutual agreement differs from the other existing options in the following two ways:
1. Divorce by mutual agreement is one of the no-fault methods of obtaining a divorce
Under the new option for divorce by mutual agreement, the couple can agree to file for a divorce as joint applicants, and need not cite any reason to blame each other for the irretrievable breakdown of the marriage.
This differs from the fault-based methods for getting a divorce such as adultery, unreasonable behaviour and desertion. In a fault-based divorce, the spouses have to take the position of a plaintiff or defendant, and the plaintiff has to cite a reason to blame his/her partner for the irretrievable breakdown of the marriage.
For example, when relying on the fact of adultery, the plaintiff must get hold of evidence to prove the defendant’s adultery, and must show that he/she finds it intolerable to live with the defendant.
2. Divorce by mutual agreement does not require separation for a certain duration
To file for divorce by mutual agreement, the couple can be living in the same household right up till the point they file for divorce.
However, this does not do away with the other requirements for getting a divorce in Singapore, that continue to apply to divorcing by mutual agreement. The relevant requirement that still continues to impose a time-related condition is that couples must have been married for at least 3 years before being eligible to obtain a divorce in Singapore. Read more about these requirements for getting a divorce in Singapore.
How Do You Get a Divorce by Mutual Agreement?
The couple must submit a written agreement to the court documenting their agreement that the marriage has irretrievably broken down, and must state:
- Their reasons for concluding that the marriage has irretrievably broken down;
- The efforts that they have made to reconcile; and
- The consideration that they have given to the arrangements for their financial affairs and any children of the marriage, post-divorce.
There are a few things to take note of when choosing to file for divorce by mutual agreement:
- When evaluating whether the contents of the written agreement are sufficient, the court will consider factors such as whether parties are acting voluntarily and intended to enter into the agreement, and whether they have sufficient knowledge of the terms of the agreement. If the court finds that the written agreement is insufficient, the court may order the couple to go for mediation, counselling or family support programmes as appropriate.
- The court will also consider whether reconciliation is reasonably possible. If the court is convinced that there is reasonable possibility of reconciliation, the court must reject the application and may again order the couple to undergo mediation, counselling or family support programmes as appropriate.
Hence, you may wish to engage a lawyer for assistance in drafting the agreement in a way to show that you have thought through the matter and believe that there is no possibility of reconciliation.
What are the Benefits of Divorcing by Mutual Agreement?
Couples can complete the divorce process without unnecessary acrimony and without the need to blame the other spouse for the breakdown of the marriage.
Even though a couple must submit their written agreement with their reasons for concluding that the marriage has irretrievably broken down, the couple would not have to engage in a finger-pointing exercise or dig up past incidents to prove those facts.
Instead, the reasons can reflect the joint responsibility of the couple, such as both spouses having a deep-seated difference in values, or having cultural differences in raising their children.
Second, children are less likely to be negatively impacted during the divorce process. Divorcing by mutual agreement reduces the effect that an otherwise acrimonious divorce proceeding could have. For example, it has been noted that children are sometimes caught in-between their divorcing parents, and may be pressured to give evidence for/against one parent to help establish one of the fault-based facts.
On the flipside, in a divorce by mutual agreement, children may be better placed to cope with the divorce process and adapt to life after their parents’ divorce. This is because an integral part of the process of divorcing by mutual agreement involves the couple putting in effort to reconcile prior to filing for divorce, and discussing adequate arrangements for their affairs, as well as the affairs of their children post-divorce.
Third, by opting to get a divorce by mutual agreement, you can possibly get a divorce quicker than by proving irretrievable breakdown of marriage using the other facts. Relying on one of the three fault-based facts may result in contested divorce proceedings, which may take a longer time to be resolved since the plaintiff will have to prove the fact at trial. Even if you choose to rely on the facts of separation, you still have to live apart for the required number of years before you can file for divorce. In comparison, when filing for a divorce by mutual agreement, you can technically file for divorce as soon as you pass the 3-year mark in your marriage.
What are the Cons of Divorcing by Mutual Agreement?
First, the option of divorcing my mutual agreement is not yet available. Hence, couples who want to get a divorce before it comes into effect have to get one via proving the other facts.
Second, and more importantly, the core of the new option is that both spouses have to agree that the marriage has irretrievably broken down. Therefore, divorcing by mutual agreement is not possible where:
- One spouse does not agree that the marriage has irretrievably broken down; or
- Both spouses agree that the marriage has irretrievably broken down but one spouse wants to file for divorce on a fault basis. The spouse may believe that doing so could give them an advantage at the ancillary matters stage, e.g. that it could be easier to get sole custody of their children by proving that the other parent committed adultery or demonstrated violent behaviour in the past. However, this is inaccurate as the court’s primary consideration in this regard is what arrangement would be in the children’s best interests.
Divorce by Mutual Agreement Does Not Necessarily Mean that the Divorce Will be Completely Amicable
As a final note, getting a divorce by mutual agreement does not necessarily mean that the divorce will be completely amicable. The option of divorcing by mutual agreement only pertains to the first stage of the divorce process, i.e. convincing the court that the marriage should be dissolved. As a result, the second stage on the ancillary matters can still be contested, and in that sense, could potentially become unamicable.
One mechanism that could potentially reduce animosity, is the requirement for the couple to include in their submission to the court that they have given consideration to the post-divorce arrangements for their financial affairs and any children of the marriage.
The hope is that the couple would have put some thought into trying to reach an agreement on the ancillary matters as well, and hence reduce the likelihood that they will have major disagreements in the second stage of the proceedings.
The option of filing for divorce by mutual agreement could reduce bitterness, pain and litigation costs on divorcing couples. It also facilitates the making of post-divorce arrangements, which will ultimately benefit both spouses as well as their children.
If you wish to find out more about the option of filing for divorce based on mutual agreement, or if you are considering filing for divorce based on the other facts for now, you may wish to consult a divorce lawyer. The lawyer will be able to provide you with advice on whether you are eligible to file for a divorce, help you navigate the divorce procedure, and represent you in negotiations or mediations with your spouse or his/her legal representative to iron out any disagreements regarding the divorce.
To consult a lawyer for divorce, you may want to contact our list of divorce lawyers.
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