Breaking up is hard whether it’s a “conscious decoupling” or an acrimonious split. But an expat divorce abroad adds a whole other level of complexity. Here, legal experts walk us through the divorce process for expats – from filing for divorce and jurisdiction, to splitting assets, maintenance and mediation.
Filing for a divorce in Singapore: The first steps
KALIDASS MURUGAIYAN, founder of Kalidass Law Corporation, has years of experience dealing with divorce and criminal law matters. He explains that if you’re considering expat divorce, you will have jurisdiction to file a writ against your spouse in Singapore if you’ve been married for at least three years, and you or your spouse have been living in Singapore for three continuous years immediately prior to the divorce, or your spouse is a Singapore citizen. To establish this, you’ll need to provide details of habitual residence.
The law governing divorce in Singapore is The Women’s Charter 1961. Either party to a marriage may file for divorce on the basis that the marriage has irretrievably broken down by meeting one of five grounds for divorce: adultery, unreasonable behaviour, desertion for a continuous period of at least two years, separation for a continuous period of three years (by agreement), or separation for a continuous period of four years.
As an expat, it’s also worth getting legal advice on whether filing in your home country or country of marriage is more appropriate. “Remember, too, that if you have children under 21, attending a mandatory parenting programme is a must before filling for divorce,” says Kalidass. Once you’ve done this, you’ll be issued a certificate of completion which will need to be filed with the divorce papers. “Divorce proceedings are commenced by filing a writ for divorce together with a statement of claim and statement of particulars, a parenting plan and a matrimonial property plan.” The Court will then conduct a mediation in person with both sides.
Throughout the proceedings, the Judge has a duty to consider the possibility of reconciliation. If appropriate, the Court may give parties the opportunity to consider this option.
Contested vs uncontested divorce proceedings
JIN POH LIAW of Tan Lee & Choo is a lawyer and mediator with over 30 years’ experience in litigation and family law. He explains that the person initiating the divorce (plaintiff) details how the marriage broke down in the Statement of Particulars (SOP). The spouse is the defendant.
In a contested divorce, the defendant contests the plaintiff’s SOP by filing a Defence and/or Counterclaim. The Defence sets out the defendant’s denials of the plaintiff’s SOP while the Counterclaim contains the defendant’s version of events of how the marriage broke down.
A contested divorce is expensive and tedious. “It’s also emotionally draining as all unhappy marital issues will be rehashed, with unforgiving and harsh cross-examination of all witnesses,” says Jin Poh.
On the other hand, an uncontested simplified divorce is “straightforward, fast and cost-effective, as parties have agreed on all the issues,” says Jin Poh. One type of uncontested divorce is when the defendant, on receiving the plaintiff’s SOP, indicates they are not contesting the claim for dissolution of the marriage. Another type is when the parties, through mediation and negotiations, make changes to the SOP, Defence and/or Counterclaim to reach agreement. In both examples, the interim judgment will be granted with the ancillary matters to be heard later.
According to Jin Poh, the benefit of uncontested divorce is that “when the papers are properly prepared, the interim judgment and final judgment can be obtained within four months from the date of filing”.
Mediation in divorce
MICHELLE WOODWORTH has over 25 years of experience as a family litigation lawyer, including serving as a Family Court District Judge, mediation advocate and Principal Mediator with the Singapore Mediation Centre.
Generally, mediation is an alternative dispute resolution method to court adjudication, where a neutral third-party mediator (or co-mediators) will facilitate negotiations between disputing parties with a view to achieving a consensual outcome, explains Michelle.
When used in divorce, mediation aims to provide spouses with a safe space to discuss and reach an agreement on the issues in their divorce. “These issues include the reasons for the breakdown of the marriage, custody and care arrangements for the children, maintenance for the children and wife and/or incapacitated husband, and division of the matrimonial home and assets,” says Michelle.
If there are children below 21 years of age, and if matters can’t be resolved prior to filing divorce proceedings, mediation facilitated by the Family Justice Courts at the Child Focused Resolution Centre (CFRC) is mandatory. The focus of CFRC mediation will be on the needs of the children post-divorce. The issues of custody, care and access are all considered to be of utmost importance.
Unlike court-based mediation, divorcing couples may voluntarily attend mediation, with the Singapore Mediation Centre, the Law Society Family Mediation Scheme or before a private accredited mediator. “This is encouraged to be done before any proceedings are commenced in court so that parties can hopefully reach an amicable agreement,” says Michelle.
Protecting yourself financially during divorce
SARAH-MAE THOMAS, is a Singapore and Australia qualified lawyer, and Managing Director of Sarah-Mae Thomas LLC. The firm specialises in family law and juvenile matters, with an international focus.
According to Sarah-Mae, navigating a divorce in Singapore involves taking necessary measures to ensure financial protection, especially for EP holders and trailing spouses. She explains it is important to do the following:
• Acknowledge the differences in Singapore’s divorce laws compared to those in your home country. Crucial to financial protection is understanding your rights and obligations in areas like property division, child support and spousal support.
• Assess joint accounts by taking stock of shared finances. This is to make sure that your spouse is not dissipating shared monies without your knowledge. • Update legal documents such as wills and insurance policies to reflect your new circumstances and intentions. This ensures that your assets are distributed in line with your current wishes.
• Most importantly, consult a family lawyer. Their expertise in Singapore divorce laws can provide specific guidance tailored to your individual situation. Proper legal advice is key to making informed decisions and protecting your financial interests during this challenging time.
By following these simple steps, “you can navigate the complexities of divorce in Singapore, with a clearer understanding of your rights and securing a more stable financial future ahead,” says Sarah-Mae.
Division of property and assets
Fortis Law Corporation is a boutique private client firm, attuned to resolving disputes for individuals. HO CHEE JIA is a specialist family lawyer with the firm and has over a decade of experience involving international issues in family law.
According to Chee Jia, the division of property and assets can be one of the most contentious issues in the divorce process. This is especially so in longer marriages – where finances and assets have become more intertwined, and also where there are assets in foreign jurisdictions. This makes it more complicated to determine how the law may govern these assets.
“There’s a common misconception that only assets in joint names are liable for division, but this is not the case in Singapore,” says Chee Jia. Generally, all assets that are acquired during the course of the marriage, even assets in one party’s name, are considered matrimonial assets and will be divided. There are a few exceptions such as pre-marital assets or inheritance, explains Chee Jia.
Under Singapore law, division follows the guiding principle of reaching a “just and equitable” outcome. To achieve this, each party’s financial contributions and non-financial contributions towards a marriage are taken into account. This is unlike some other jurisdictions in the world where the starting point for the division of assets is equal division.
The differing divorce laws in other countries can sometimes make divorces involving expats more complicated. And the additional element of which jurisdiction’s laws apply comes into play. Selecting the right jurisdiction in which to obtain a divorce will have a crucial impact on how assets are divided, and can become a hotly contested issue between expatriate divorcing couples. It’s best to get good legal advice so you know where you stand, says Chee Jia.
Maintenance for spouses and children in Singapore
Singapore law provides for spousal and child maintenance (financial support), during the marriage or as part of divorce proceedings, explains SIMRIN SINDHU. Simrin is a senior litigation lawyer at Amarjit Sidhu Law Corporation with more than 20 years of legal experience.
While the law provides for maintenance payment towards a wife or an incapacitated husband, “the duty to pay spousal maintenance is not automatic and many factors will be considered before making an order for spousal maintenance,” says Simrin. In Singapore, parents also have a legal duty to maintain their children until they turn 21 years old. Also, children over 21 who are still schooling or have physical or mental disabilities can apply for maintenance, she explains.
To make a claim for maintenance you’ll need to prove your spouse has neglected or refused to provide reasonable maintenance. If you haven’t yet filed for divorce, an application for maintenance for yourself or your child can still be made by making a Magistrate’s Complaint at the Family Justice Court.
The court will consider various factors including current expenses and salary, earning capacity, debts and liabilities. For child maintenance, the financial needs of the child, any physical or mental disability, the standard of living enjoyed, and the income and assets of the parents will be considered.
Women during divorce are advised to claim for nominal maintenance as The Women’s Charter does not allow a claim for maintenance if there’s no maintenance order already in place. However, this is not given as of right, and reasons must be presented to be entitled to a nominal maintenance order.
“Failure to comply with maintenance orders, can be enforced through the courts,” says Simrin. Maintenance arrears can also be recovered up to a period of three years prior to filing the application, she explains.
This article first appeared in the December 2023 edition of Expat Living. You can purchase the latest issue or subscribe, so you never miss a copy!
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