How to Prove Separation for a Singapore Divorce
In a divorce, the only legal ground for commencing proceedings is an irretrievable breakdown of the marriage. To prove this, there can either be justifications based on fault (adultery, unreasonable behaviour or desertion) or non-fault (separation).
For the latter, 3 years of separation is required in cases of non-contested divorces. For contested divorces, 4 years of separation is required. How then, does one prove that there was indeed separation, especially if the couple continues to live in the same house during the period of separation?
Physical Separation Alone is Not Enough
It would be easier to prove separation if the couple decides to live apart from each other during the period of separation. However, past cases have shown that the presence of physical separation alone is insufficient.
There must also be intention on the part of both parties to be apart. For example, if one spouse is obliged to live abroad due to business matters, this will not constitute separation for the purposes of the divorce.
Furthermore, with physical separation, there must also be a loss of consortium. Consortium is the right of companionship and association with each other in a marriage. A couple who is living apart but whose daily conduct suggests that they did not intend to put an end to the marriage will not be considered separated for the purpose of a divorce.
For example, should a spouse continue to do everything which he/she had been doing before moving out, especially if they are done together as a couple, the separation would not be considered valid.
Any physical separation should be done for a continuous period. Nonetheless, if a couple resumed cohabitation for a duration of 6 months or less, the judge will not take it into consideration. This is to promote attempts at reconciliation.
Separated but Living Together
Even if a couple decides to live under the same roof during their period of separation, it is still possible to prove the separation. Parties may be living together physically, but must maintain separate households.
This is a fact-centric matter which the judge will look at all circumstances to determine if there was a loss of consortium and a breakdown in marriage between the couple even whilst living together.
To bolster your case that the separation was valid, it is advised that you do not perform typical spousal duties for your spouse when living in the same space, such as cooking or cleaning for each other. You and your spouse should also keep your financial expenses separate, and sleep in different bedrooms.
The fact that the spouse did not obtain a final judgment also does not change the fact that the judge may not give it much consideration in its entirety.
Separation vs Desertion
Desertion is another possible justification for a divorce. However, it is distinct from separation.
Whether conduct can be considered as desertion depends on the deserting party’s frame of mind. It must be shown that the deserting party had intended to bring the marriage to a permanent end. Hence, an agreed separation cannot give rise to desertion on the part of the spouse who leaves. This is unless both parties originally agreed to separation, and one party later offered to resume cohabitation but the other refused the offer.
The desertion must also have occurred for a continuous period of 2 years, and is likely to continue until the commencement of proceedings.
Procedure in Proving Separation
If you and your spouse have decided on an uncontested divorce, you should obtain a formal consent in written form from your spouse, which can be filed in the Memorandum of Appearance (MOA). The MOA is one of several documents to be filed for the purpose of divorce proceedings.
You are also encouraged to apply for a deed of separation before proceedings are commenced, so as to set out arrangements relating to issues such as assets and finances.
When filing for divorce, a statement of particulars should be provided stating the date on which separation was commenced, and the duration of the separation. This should be the date you and your spouse intentionally decided to bring the consortium to a permanent end.
The reason for you and your spouse’s intention to live separately should also be provided. If you and your spouse lived in separate physical locations, the different residential addresses should be included if known. If you and your spouse remained in the same home during the period of separation, you should provide details of how the both of you maintained separate households during this time.
Ultimately, in determining if the separation is valid to justify the divorce, the judge will consider how the interests of the children (if any) may be affected by a dissolution of their parents’ marriage, as well as whether it would be just and reasonable to grant an interim judgment in favour of the divorce.
You should provide as much evidence of the separation as possible in order to strengthen your case.
If you are still unsure of whether you have sufficient proof of separation, you may want to approach one of our experienced divorce lawyers for advice.
For a comprehensive guide on the costs of engaging a divorce lawyer in Singapore, click here.
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