A divorce can be a stressful experience. From my 12 years of experience as a lawyer handling divorce matters, I have seen this stress further aggravated by long-running and fiercely contested divorces, and its associated legal costs.
Contested divorces happen when parties disagree on the terms of a divorce and take the matter to court. Where possible, I always advise my clients to opt for a Simplified Uncontested Divorce (SUD). Such divorces happen when both parties have agreed to all the terms of the divorce. The advantages are obvious: the divorce can be completed much faster and is less costly.
If you are already contemplating a divorce, I have prepared this article in the hopes of making it easier for you to obtain an SUD.
Tip #1: Ensure that the Reason For Divorce is One that is Unlikely to be Contested
First, we need to reduce the chances that the reasons for the divorce would be contested by the other party.
In Singapore, the only ground for divorce is “irretrievable breakdown of marriage”. You can use one of the following 4 ways to prove that the marriage has broken down:
- Adultery Your spouse had an affair and you find it intolerable to live with him or her.
- Unreasonable behaviour Your spouse behaves in a way that you cannot reasonably be expected to live with him or her.
- Desertion Your spouse has deserted you for at least 2 years.
- Separation You and your spouse have been separated for at least 4 years, or 3 years if your spouse has consented to the divorce.
Because there is a larger element of blame in proving “adultery” or “desertion”, there is a higher likelihood of the other party contesting a divorce that is filed based on “adultery” or “desertion”.
This is because they wish to avoid being seen as the reason why the marriage failed. Therefore where possible, cite “unreasonable behaviour” or “separation” as the reason for the marriage breaking down instead.
Unreasonable behaviour can be phrased so that it is neutral as to fault
Now, you may worry that citing “unreasonable behaviour” sounds like you are blaming your spouse for the divorce. Not to worry, this is something that a divorce lawyer can help you with.
Your lawyer can draft the divorce application in neutral terms so that your spouse does not feel that he or she is being blamed for the divorce. For example, if A says that B is extremely quarrelsome, this fact can be neutralised to “A feels that B is extremely critical of her, and the couple no longer sees eye to eye on many issues. This results in many differences of opinions which leads to arguments.”
Phrased this way, the description remains factual and true, but sounds more neutral in terms of whether the other party is at fault for the divorce. If the other party feels that he or she is not to blame for it, it may be easier for him or her to agree to an SUD.
Citing separation as a reason for divorce
If you intend to cite “separation” as a reason for your divorce, my advice is to obtain a deed of separation to avoid any uncertainty. This deed of separation is proof that you and your spouse have separated.
Not to worry if you have been separated for many years without such a deed, however. If the facts are clear that you have been separated as a couple, you will be considered separated.
You can also be considered separated even if both of you are still living in the same household. For this to work, you must show that both of you are doing things individually and avoid any behaviour that shows a marital relationship.
Thus, merely abstaining from a sexual relationship with your spouse may not be enough. You should also avoid cooking or cleaning for each other, or going on holidays together.
Tip #2: Be Reasonable When Negotiating Ancillary Matters, such as Maintenance and Child Custody
Amongst the most important ancillary matters are spousal maintenance and child custody. It is best to approach these matters reasonably. Unreasonableness here can lead to your spouse contesting the divorce.
Child and spousal maintenance
When deciding a reasonable amount for child or spousal maintenance, it is best to look at your income and expenses, how much the children will need, and how much is your spouse’s earning power and expenses.
Do avoid these pitfalls when negotiating your child and spousal maintenance:
- Disagreements over nominal, or small, maintenance. In Singapore, a spouse who does not obtain an order for maintenance as part of divorce proceedings will be prevented from obtaining spousal maintenance from their ex-spouse in the future. Therefore, if you are the wife, you may think it would be in your best interest to fight for a nominal maintenance of S$1 that can be varied if you require it in the future. However, do consider this carefully. If you can support yourself financially and do not require any maintenance from your husband, forgoing this nominal maintenance may pave the way for an uncontested divorce. I have seen parties fight so much over a S$1 nominal maintenance that negotiations break down, causing SUD to fail.
- Lack of clarity in the consent order. A consent order contains all the terms that govern the ancillary matters to the divorce, such as child and spousal maintenance, and child custody. Some clients prefer an “evergreen order” that will always be applicable regardless of the change in circumstance. For example, they may prefer an order where the husband is required to pay a percentage of costs, such as enrichment lessons for their child. However, this ambiguity may lead to a contested divorce. For example, your husband may have agreed to pay for the child’s enrichment lessons, but at a community centre and not at Kumon, which is much more expensive and not what he had intended to pay for. This could be a point of contention in the divorce negotiations that prevents the other party from agreeing to an SUD. Hence, where possible, it is best to be clear on the specifics of a consent order. You may always request a variation of the maintenance order if your needs change in the future.
Child custody is another thorny issue when it comes to negotiating a divorce. The courts will not finalise a divorce until it is satisfied that the divorcing couple has made and agreed on arrangements which are in their children’s best interests.
And yet, this is a common point of contention for divorcing couples that prevents them from agreeing to an SUD.
From experience, the issues surrounding child custody revolves around these two points:
- Sole custody of the children. Divorcing couples often want to have full custody of their child. However, the Singapore courts will usually prefer to grant joint custody of the children. Sole custody will generally only be granted in situations where the relationship between the couple has turned so acrimonious that they are unable to communicate or cooperate, or if the other spouse agrees to give up custody.
- Split custody of the children. Split custody is when one spouse is granted custody over one sibling while the other spouse is granted custody over the sibling. Divorcing couples often apply for split custody so they can each purchase a flat after a divorce. However, the courts frown upon this. They prefer siblings to stay together for emotional support. If you are planning to separate your children, the court may require that the terms of the divorce provide a way for the children to be together.
Tip #3: Choose Financially Sound Decisions When Dealing with Matrimonial Assets
Another contentious point is how to deal with matrimonial assets, such as the matrimonial home.
When the property market is unfavourable, you may make a loss from the sale of the matrimonial home such that the proceeds are not able to cover your loan and CPF contribution.
Your spouse may contest the divorce if you decide to sell the matrimonial home under such market conditions, especially if he or she is unable to cover the mortgage due to a shortage of funds. For this reason, you may wish to explore other options, such as transferring the property.
Do consult a lawyer on this as they can help arrive at a solution that is in the interest of both parties.
Tip #4: Ensure that You Understand the Terms of the Consent Order
It is not uncommon for divorcing couples to misunderstand the labels that they used in the consent order.
For example, both parties agree to provide reasonable access to the child. However, both are unclear on what “reasonable access” means, and start disputing the term after the divorce has been finalised.
Before agreeing to the divorce, make sure that you understand these terms. Clarify any ambiguities and include both parties’ common understanding of the terms into the consent order if necessary.
As can be seen, the attitude and mindset in which divorcing couples approach a divorce can have an impact on whether the divorce will be uncontested or not. In general, you should:
- Be neutral when stating the reasons for your divorce. Avoid placing blame where possible.
- Be reasonable when negotiating your maintenance and the custody of your children.
- Be open to other arrangements when dividing your matrimonial assets. This is especially important in an unfavourable property market.
- Be clear on the terms of your consent order. Clarify any ambiguities before agreeing to the divorce.
A divorce lawyer can advise you on many aspects of a divorce, from the presenting of the reasons for your divorce, to helping you negotiate and understand the terms of your consent order. Do not hesitate to contact me if you are contemplating a divorce.