Drafting a Deed of Separation in Singapore (Instead of Divorcing)
Falling out of love can be a far more painful thing than trying to fall in love. Sometimes, you may need to spend some time apart from your spouse to decide whether the relationship is worth salvaging, or whether you should make the split a permanent one.
Troubling as this time may be, you should take stock of the situation and see how you would want to handle your separation in the best possible manner.
In this article, we will tell you what a Deed of Separation is in Singapore, and how such a deed can help you provide a measure of guidance in what may be a very turbulent period in your life. It will cover:
How is Separation Different from Divorce in Singapore?
Before diving into what a Deed of Separation does, a clarification of the terminology should be made. Specifically, you should first be aware that there is a difference between the terms “separation” and “divorce” in Singapore.
When you are divorced, this means that your marriage has come to an end. In other words, you are at liberty to look for another partner, and can even marry that person. In a separation, however, the marriage legally still subsists, but it may be heading toward the stage of divorce. You can thus think of separation as a precursor to divorce.
Apart from this definition, there are other differences between separation and divorce.
Under the Women’s Charter, certain requirements have to be met before you can file for divorce. For example, you must be able to prove irretrievable breakdown of the marriage and must have generally been married for at least 3 years.
However, and unlike in divorce, there are no formal requirements for getting separated. Nor do you need to wait for any period of time before you can initiate a separation.
So as long as you feel that you would like to separate from your spouse, and your spouse likewise feels the same way, you are free to do so.
What is a Deed of Separation?
A Deed of Separation, or a separation deed, is a legally binding written document signed by a married couple that sets out their agreement to live apart.
The Deed of Separation will normally contain terms such as:
- Residential arrangements for spouses if they will no longer live together;
- Who will have custody and care and control of the children during the time of separation, and in divorce (should you decide to permanently split from your spouse);
- How the spouse without care and control of the children will have access to them;
- Whether there should be any maintenance provided by one spouse to the other spouse and his/her children;
- How the matrimonial assets between the spouses should be divided (for example, who will get to keep the car, monies in a joint bank account and so on);
The contents of a Deed of Separation are quite similar to the judgment orders usually made during the ancillary hearing stage of divorce proceedings. However, unlike a judgment order, which can be unilaterally decided by a judge after hearing the parties’ submissions, you get to negotiate with your spouse on the terms that should be included in the Deed of Separation before it is signed.
In Which Situations Might You Want to Separate Instead of Divorce in Singapore?
Since separation can be a precursor to filing for divorce, there are some scenarios in which it may be more advantageous for you to separate as opposed to initiating a divorce proceeding. Some of them include:
- If you have not crossed the threshold time to commence divorce proceedings yet. Since Singapore law dictates that you must have generally been married for at least 3 years before you can file for divorce, divorce may not be a suitable option for those who have been married for less than 3 years;
- If you want to give yourself more time to decide whether you want to salvage or dissolve the marriage;
- If you do not want to divorce immediately because it may affect your young children;
- If you or your spouse comes from a strong religious background where divorce is frowned upon;
- If you have not fulfilled the Minimum Occupancy Period (MOP) to sell your HDB flat. If you divorce from your spouse during the MOP, you will be required to surrender your flat to HDB at the prevailing market prices. Thus, if you want to retain your HDB flat during this time, you may be better off entering into a Deed of Separation with your spouse;
- If you wish to settle all ancillary matters with your spouse as amicably as possible. When you commence fresh divorce proceedings, many of the ancillary matters, such as custody of children or division of matrimonial assets, could be contested by your spouse and this could lead to long and protracted legal proceedings. However, if you had already taken the efforts to enter into a consensual agreement with your spouse on how to handle such matters through your Deed of Separation, and your spouse is amicable to such an arrangement, you may avoid such protracted proceedings entirely.
In Which Situations May You Want to Sign a Deed of Separation Instead of Separating Through Other Ways?
Keep in mind that entering into a Deed of Separation is not the only way you can separate from your spouse. There are also two other forms of separation recognised in Singapore:
- Informal separation; and
- Judicial separation.
When there is informal separation, this means that the couples, through their behaviour, demonstrate that they no longer live together as a couple. Unlike a Deed of Separation, parties who separate informally do not enter into any formal agreement as to the terms of the separation.
You can demonstrate informal separation by showing that there has been a clear disruption of marital or sexual relations. This can occur, for example, where you no longer live with your spouse in the same matrimonial house, or where you no longer assist each other with spousal duties, such as cooking for one another.
You can also come to an understanding as to how you want to stay separated from each other. However, unlike having a Deed of Separation, such an agreement is not put in writing. This may cause more confusion to arise, since the terms of the separation are only informally agreed between the parties, and therefore can be more readily misinterpreted (intentionally or otherwise) by either party.
On the other hand, if a Deed of Separation has been drafted, the terms of the separation are clearly stated in a document. This provides clarity and certainty as to how spouses regulate their terms of separation.
Under the Women’s Charter, it is also possible for either spouse to apply to the court for a judicial separation. However, the application for judicial separation must include the grounds for the separation, which are the same as the grounds in proving divorce.
The result is that you would need to establish certain factual grounds before you and your spouse can separate. This is obviously a bit more inflexible than separating via a Deed of Separation, where you can mutually agree with your spouse that you no longer wish to live together without having to prove any grounds.
Cost of Drafting a Deed of Separation
The cost of drafting a Deed of Separation normally depends on the complexity of the deed that is to be drafted, and how the lawyer charges for their services, among other factors.
For drafting more complex deeds of separation (for example, when there are many private properties, businesses or trust funds that would have to be split between the spouses), you can expect to pay a higher fee. Some law firms also charge either a fixed package rate or an hourly rate to draft the Deed of Separation for you.
Provided you meet certain eligibility criteria, the Legal Aid Bureau can also assist you with finding a lawyer to draft a Deed of Separation at a subsidised rate.
Must the Deed of Separation be Registered with the Court to be Enforceable?
Under Singapore law, you do not need to register a Deed of Separation with the Registry of Deeds for the terms of the deed to be enforceable.
As a result, it is entirely up to you whether you want the deed to remain a private document between yourself and your spouse or register it with the Registry of Deeds.
However, if your Deed of Separation deals with property titles, that particular deed should be registered. Failure to register such a deed will mean that you cannot produce the deed in court as evidence of your interest to title in the property in question.
When drafting a Deed of Separation, It is up to you to decide what form the deed should take, such as the terms that it contains. That said, you will have to comply with certain procedural steps to ensure that you have validly executed the deed. Specifically, the deed has to be signed, sealed and delivered. This means that:
- The deed has to be duly executed by all signatories to the deed (i.e. the deed has to be signed by all the parties);
- The deed has to be sealed. While there is no need to affix a wax seal, there needs to be some physical manifestation of a seal that at least appears on the document; and
- The deed has to be delivered. This means that the deed should be sent to the other party.
Take note that if you wish to register your deed, you will have to formally execute it and lodge it with the Singapore Land Authority.
What Should Parties Do After Signing the Deed?
The answer to this question depends on what you want to achieve from separating with your spouse.
As far as possible, you should adhere to the terms of the Deed of Separation. This means that if you and your spouse have formally agreed to undertake certain arrangements, such as taking care of your children or moving to separate residential locations, then you should abide by such arrangements.
It is always open to you to attempt to reconcile with your spouse at a later point in time if you feel that both of you are ready to give the marriage another chance.
However, if you know for a fact that you want to divorce your spouse, then you should take care to ensure that you and your spouse respect the terms of the Deed of Separation and live independent lives.
This means that you should not take part in common household activities such as cooking, paying for rent or cleaning the house, which may otherwise give the impression that the marriage is still afoot.
It is, however, not necessary for you and your spouse to live in different residential addresses. The two of you can still continue living in the same unit, provided that both of you sleep in different rooms and live separate lives.
Take note that during this period of separation, you and your spouse still remain legally married to one another. Thus, you are not allowed to marry someone else while being separated from your spouse. You will have to wait until you have divorced your spouse, and the divorce has been finalised, before you can proceed with remarriage.
Can a Deed of Separation be Set Aside or Varied?
The terms of a Deed of Separation can be set aside or varied.
Normally, a court will set aside the deed if there are very good reasons for showing that continuing to uphold the deed will lead to serious injustice between the parties. Some ways in which you can persuade a court to set aside the deed include showing that:
- You thought you were signing something else when you were signing the deed;
- You had been forced or compelled into entering into the deed against your will;
- At the time of signing the deed, you did not have the mental capacity to understand the deed (for example, you may have been very drunk);
- Your spouse had unduly influenced you into signing the deed (for example, your spouse had emotionally blackmailed and manipulated you, or exploited your vulnerability, to get you to sign the deed);
You can also choose to terminate the deed of your own volition. This will normally be the case when you are able to reconcile with your spouse and no longer wish to remain separated.
If you want to vary the terms of the deed, you have two options. You can choose to either:
- Create a new Deed of Separation with the changed terms; or
- Enter into a simple agreement to vary the terms of the deed.
Additionally, the court can also vary the terms of the deed to make them fairer and more equitable, especially if it finds that the circumstances under which the deed was initially made have since changed drastically.
This could be the case where, for example, one spouse is no longer able to provide the monthly maintenance that he or she agreed to in the Deed of Separation because he or she had just lost his or her job, or had encountered a serious accident affecting his or her capacity to work.
Using the Deed of Separation to File for Divorce Later On
One of the reasons you will be allowed to file for divorce is the ground of separation. To demonstrate that there has been an irretrievable breakdown in the marriage on the basis of separation, you can show that you and your spouse have separated for at least 3 years (if both parties consent to the divorce) or 4 years (if one spouse does not consent to the divorce).
Signing and abiding by a Deed of Separation is one way of establishing proof that you and your spouse have formally agreed to separate from a particular date onwards.
The document can also be used to show that you and your spouse have agreed that in the event of divorce, important ancillary matters such as custody of the child, division of matrimonial assets, have already been agreed between the both of you. The court can then use that document as a form of guidance when deciding these ancillary issues.
However, do take note that the court has the discretion to disregard the terms in the deed and impose its own orders if it feels that it is fair and just to do so, such as where the terms of the separation have been breached (see below).
What Can You Do If the Deed of Separation Has Been Breached?
Since the deed is, in effect, akin to a settlement agreement, you can sue your spouse if you find that he or she has breached the terms of the Deed of Separation.
For example, if the terms of Deed of Separation provided that you are to receive a monthly maintenance of $1,000 from your spouse, and your spouse fails to pay this amount, you can then proceed to sue your spouse in court for this amount.
This also applies for other scenarios, such as where your spouse did not provide access to the child, or where your spouse refuses to leave the matrimonial house despite having agreed to do so. In such scenarios, the court may uphold the terms of the Deed of Separation (assuming the deed had been validly made) and issue a court order directing your spouse to either provide access or leave the house (as the case may be).
In the same vein, take note that breaching the terms of Deed of Separation can have serious repercussions. On top of you getting sued, the court may take this conduct into account in deciding the ancillary issues pertaining to any divorce application filed later.
Thus, if you choose to intentionally breach the terms of the Deed of Separation, the court may choose to disregard the terms of the deed and impose what it deems as a fair and equitable order on the parties. This could result in the court imposing orders that are less advantageous to the party who had breached the agreement.
Accordingly, you should always strive to abide by the terms of the Deed of Separation that you have agreed to.
As you can see, coming up with the Deed of Separation in Singapore involves a lot of considerations. Besides, there is also the very real possibility that you may be in a state of emotional turmoil during such a difficult time. In such situations, it would be beneficial for you to seek legal advice from lawyers who would be able to assist you with the merits and necessity of drafting such a deed.
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