Your Spouse Doesn’t Want to Divorce: What to Do
The process of getting a divorce in Singapore entails many procedures and issues to consider, which can be quite draining. It only gets more complicated when your spouse does not agree to a divorce and/or refuses to cooperate.
In this article, we will discuss:
- What happens if your spouse does not want a divorce?
- Several scenarios on how your spouse may evade or contest the divorce and the respective courses of action you should take.
- What if you are unable to get your spouse’s consent to the divorce as they are missing
- The differences between the procedures and natures of Muslim divorces and civil divorces in handling similar situations with a dissenting or an uncooperative spouse
- Whether you should engage a divorce lawyer
What Happens If Your Spouse Does Not Want a Divorce?
Simply put, even without your spouse’s agreement or cooperation, proceedings can still carry on and the Singapore court can still decide on the divorce.
To begin with, there are two types of divorce, simplified uncontested divorce and contested divorce.
As the name indicates, a simplified uncontested divorce refers to when both parties are able to reach a consensus on the matters of their divorce beforehand, and the court will review the parties’ agreed divorce terms before deciding whether to grant the divorce. The court will not make a decision on the matters of the divorce on the parties’ behalf.
However, when your spouse does not want a divorce, or when there are still unresolved issues in relation to the divorce, your divorce follows the contested divorce route. Under this route, the court will decide on the matters that you and your spouse disagree on (including whether the divorce should be granted). The contested divorce route will enable court proceedings to commence without your spouse’s consent.
The main difference between both types of divorce is that contested divorces involve adversarial hearings, while uncontested divorces do not. This means that if the divorce is contested, both you and your spouse are obligated to present your evidence and case to the court to convince the judge of your position for wanting a divorce, or for contesting the divorce or aspects of it.
There are several ways your spouse may choose to contest or avoid the divorce as a whole. Some of the most common methods include:
- Filing a Defence for a contested divorce;
- Ignoring the divorce papers; and
- Refusing to show up in court.
Filing a defence
Once you have filed your Writ of Divorce, your spouse may choose to file a Defence if they do not agree with your reasons for a divorce. They may also argue that the marriage has not irretrievably broken down.
In response, you may file an additional document called a Reply to Defence and counterclaim to dispute your spouse’s disagreement.
To resolve this, the court will first fix a trial to determine if the marriage should be dissolved or not. Following which, if the marriage is deemed to be dissolved, there will be subsequent hearings to decide on the ancillary matters.
Ignoring the divorce papers
Alternatively, your spouse could simply ignore the divorce papers.
In this case, a Request for Setting Down Action for Trial can be filed. The court may then choose to set a hearing date to decide on the divorce matters, regardless of whether your spouse is present or not.
Refusing to show up in court
Lastly, your spouse could also just intentionally not appear in court. However, this will not affect your application for the divorce as proceedings will still continue in their absence.
It is certainly not uncommon for there to be disputes when it comes to divorce matters but this can result in several undesirable situations.
The back-and-forth in a contested divorce means more complexity to your divorce proceedings, leading the entire process to become more expensive and time-consuming than a simplified uncontested divorce, ultimately taking a greater toll on your well-being.
On the other hand, the process of a simplified uncontested divorce is more straightforward as both you and your spouse are already agreeable to the divorce. In turn, this means that the procedures both of you have to follow to obtain the divorce mainly consist of filing certain documents to acknowledge and consent to the divorce proceedings.
Hence if you are able to persuade your spouse to consent to the divorce and all ancillary matters, this would help both parties avoid expensive and time-consuming divorce proceedings.
What If You are Unable to Get Your Spouse’s Consent to the Divorce as They are Missing?
When you file for a divorce, a Writ of Divorce will be issued by the court. The Writ must then be “served” on your spouse to notify them about the commencement of divorce proceedings.
This act of handing the Writ directly to your spouse is referred to as personal service and is executed by authorised personnel such as a solicitor’s clerk or a process server. Once the Writ has been briefly explained to your spouse, service is said to be effected, and it does not matter if your spouse refuses to accept the document.
That said, your spouse could attempt to avoid the personal service by refusing to open the door or by simply leaving and vanishing, making it hard to trace them down to effect the service of the Writ of Divorce.
In this case, you may apply to the court for other modes of service or the dispensation of the service.
Order for substituted service
There are several modes of substituted service, namely:
- AR registered post;
- Posting on the front door of your spouse’s last-known address;
- Electronic means such as social media or email; and
- Advertisements in publications that your spouse is likely to read.
To apply for an order of substituted service, there should be at least 2 failed attempts at personal service. You will then be required to submit an application by way of summons, along with a supporting affidavit, that explains your justification of your choice of substituted service.
Service to be dispensed with
When all attempts at service have failed, if the court deems it appropriate, the court may then dispense with the service.
For further reading, we go deeper into both alternatives in our article on what to do if your spouse cannot be found.
How Would Applying for a Divorce Under Syariah Law Differ From Applying Under Civil Law When Your Spouse is Unconsenting or Uncooperative?
Muslim marriages are governed by an entirely different system known as Syariah law, with their primary statute being the Administration of Muslim Law Act (AMLA).
Compared to civil law, Syariah law sets out different regulations and proceedings for Muslim divorces which are derived mainly from the Holy Quran. Other sources like Sunnah (traditions), hadith (sayings and deeds of the Prophet Muhammad), and ijma (the consensus of Islamic scholars on Syariah law) are supplementary and further reinforce the Holy Quran teaches.
Applying for a divorce under Syariah law when your spouse does not want to
We previously touched on contested divorces under civil law, which for the most part, follow a fixed and standardised procedure. In contrast, under Syariah law, there are several ways for you to go about applying for the dissolution of your marriage, even if your spouse is opposed to it.
- Talak by the Husband;
- Cerai Taklik; and
- Talak by Hakam
Talak by the husband
Considered a husband’s right, the pronouncement of Talak is a means to end a marriage that can be made only by the husband. Moreover, a Muslim man does not need any reason to divorce his wife and she is also unable to contest or object to his decision.
However, it is worth noting that while Talak does not call for specific reasons to be utilised, the husband may be subjected to unfavourable consequences if he does not have a proper justification for his choice. For example, his wife may be able to claim a greater amount from him after the divorce, or he may lose access to his children.
While a Muslim woman does not possess a right similar to the pronouncement of Talak, Syariah law dictates and recognises several other circumstances in which a woman may attain a divorce even if her husband is not agreeable.
Pertaining to the dissolution of a marriage, the Syariah court has the power to declare the annulment of a Muslim marriage on various grounds such as the mistreatment of the wife or the impotence of a husband.
In this case, even if a husband objects to the wife’s desire for a divorce, the court may overrule it and grant the wife an annulment of marriage. Section 49 of the AMLA sets out an extensive list of the various circumstances that a Muslim woman may obtain a decree for Fasakh under.
However, it is crucial to note that any supporting evidence must come from not just the wife, but also 2 other witnesses.
Another way that a Muslim woman may achieve her divorce in spite of her husband’s disagreement is by way of redemption (Khuluk). This refers to a payment made in exchange for the husband’s pronouncement of Talak.
To be clear, both spouses ultimately need to consent to the divorce. However, in the case that a Muslim man refuses to divorce his wife, she may pay a sum of money to obtain his pronouncement of Talak. The amount to be paid is determined by the Syariah court.
At the time of the marriage or after, a Muslim couple would have discussed and established a written Taklik. Much like a contract, terms and conditions of the marriage can be found in the couple’s Marriage Certificate, with Cerai Taklik referring to the breach of a marriage condition.
Even if the husband opposes a divorce, the wife will still be able to initiate divorce proceedings by proving a breach of the marriage contract. In other words, the husband’s refusal and consent does not hold any influence over the wife’s commencement of divorce proceedings.
Talak by Hakam
Asides from the methods listed, a divorce can also be declared through arbitration (Tahkim), where Talak can be pronounced by a court-appointed arbitrator (Hakam).
Hakams may step in and preside over divorce proceedings under 3 circumstances:
- When the husband does not consent to the divorce; or
- If there is no clear breach of a marriage condition under Taklik; and
- A ground for Fasakh cannot be established.
When the Hakams are convinced that a divorce is the best decision for the both of you, they may grant a divorce through the pronouncement of Talak.
Refusing to show up for mediation sessions
Mediation sessions are an imperative part of Muslim divorces which aim to help couples mend their relationship or agree on the terms of their divorce. Typical terms include the custody of children and the division of the matrimonial home.
A divorce is able to be concluded far quicker if you and your spouse are able to agree on the terms of your divorce. Nevertheless, there is still a possibility that your spouse may intentionally skip the mediation sessions.
Similarly to civil divorces, if your spouse intentionally avoids the mediation sessions, you may get an order for substituted service to deliver the documents relaying the terms of your divorce to your spouse.
However, while your spouse’s absence may prolong the entire divorce process, it may also benefit you as your spouse will not be present to contest your case.
Engaging a Divorce Lawyer for a Divorce From an Unwilling Spouse
Things could seem bleak and you might feel trapped when you’re caught in a web of overwhelming emotions and responsibilities, perhaps even more so with a contested divorce. However, rest assured that the right lawyer will help you navigate through this challenging journey, all while handling the numerous procedures and formalities that have to be complied with.
In such a stressful period of your life, you may look to them for objectivity and trust them with information that may otherwise be difficult to share with others.
In addition, while it is definitely possible to represent yourself in court, do take note that you will be held to the same standards and processes as if you hired a lawyer. Engaging a divorce lawyer, someone who possesses both knowledge and experience, will ensure that your rights and interests are protected.
Obtaining a lawyer’s expertise could potentially also save you spending more time and money on the more complicated proceedings of a contested divorce, should your spouse not agree to a divorce.
Divorce can be daunting, but you are not alone in this. If you require further assistance or legal advice, do not hesitate to reach out to any of our experienced divorce lawyers.
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