Breaking up is hard to do, but an expat divorce abroad is a whole different story. Getting divorced in Singapore as a foreigner is a lot more complicated than it is for Singaporeans. Here, legal experts walk us through the Singapore divorce process for expats – from filing for a divorce in Singapore and jurisdiction to splitting assets, child custody and more.
Can foreigners divorce in Singapore?
Expats can divorce in Singapore as long as at least one of the spouses has lived in Singapore for a continuous period of three years, explains SARAH-MAE THOMAS, a Singapore- and Australia-qualified lawyer, and managing director of Sarah-Mae Thomas LLC. The firm specialises in family law, civil litigation and juvenile matters.
“It doesn’t matter if the marriage took place overseas or if the couple didn’t register their marriage in Singapore. If one partner is Singaporean and the other is an expat, the parties will not need to meet this three-year requirement,” says Sarah-Mae.
“Do note, however, that there is an absolute bar – save for two limited exceptions – of divorce in the first three years of marriage, regardless of whether you’re an expat or Singaporean.”
Filing for a divorce in Singapore: The first steps
When filing for divorce in Singapore as an expat, Sarah-Mae says you’ll need to provide evidence that you have resided in Singapore for three consecutive years. Evidence may include your tax documents, tenancy agreements or employment passes. Since the requirement is only for either party to meet the jurisdiction rather than both, it would be fulfilled so long as the husband, for example, has been in Singapore for three years, even if his wife has just joined him.
If you’ve met the jurisdictional requirement, you will need to consider whether you want your divorce to take place in Singapore or in another country. Where you divorce can significantly affect the outcome, so it’s important to consider the advantages and disadvantages of divorcing in another country versus Singapore.
“If there are a few countries in the mix, it’s always best to be well informed of your rights,” says SarahMae. “Thinking about your rights is important, but you also need to think of enforceability; for example, it might be easier to enforce an Order of Court in the country where the person is living.”
Meeting with a divorce lawyer, she says, will help you understand the Singapore divorce law processes involved and put your mind at ease. In fact, she often puts her clients in touch with divorce lawyers from other countries so that they can benefit from an online roundtable discussion and get “big picture advice” – a premier service her firm provides to further assist expat clients.
Grounds for divorce in Singapore
Once you’ve met the jurisdictional requirements and both parties have agreed to proceed with the divorce in Singapore, you’ll need to prove that the marriage has “irretrievably broken down” – the sole ground for divorce in Singapore. To do this, you must substantiate one of five scenarios. These include:
A spouse (plaintiff) can file for divorce if his or her spouse (defendant) has committed adultery, and the plaintiff now finds it intolerable to live with the defendant. However, the plaintiff must file for divorce within six months of discovering the adultery.
#2 Unreasonable behaviour
The plaintiff can file for divorce if he or she finds it impossible to live with the defendant due to unreasonable behaviour. Examples may include physical or emotional abuse, infidelity, addiction, compulsive habits, financial irresponsibility and emotional neglect.
In this situation, the defendant has abandoned the plaintiff for a continuous period of at least two years, with no plans of returning.
#4 Separation of three years with consent
In this scenario, both parties have lived apart – or in separate rooms under the same roof – for a continuous period of three years, and the defendant consents to a divorce. To prove separation, the plaintiff must demonstrate that the parties intended to live apart by choice, rather than by necessity (for instance, going to live overseas for work), or a loss of marital companionship.
#5 Separation of four years
If both parties have been separated for four consecutive years, they won’t need each other’s consent to get a divorce. However, they’ll still need to corroborate separation by choice to prove that the marriage is damaged beyond repair.
Who gets what?
The division of assets is one of the biggest things to deal with in a divorce. Matrimonial assets – all property that’s acquired during the marriage – can include anything from insurance, shares and businesses to cars, artwork and jewellery. Under Singapore divorce law, the Court has the power to order the division of matrimonial assets in a “just and equitable” manner,” explains VIVIENE SANDHU, a litigator with more than 23 years of experience in all areas of family law and civil litigation. To arrive at a fair division of assets, the Court takes into account various factors to ensure that all parties are treated justly. Some of these factors include:
- The extent of direct financial contributions made by each party in monetary terms;
- the extent of indirect contributions made by each party to the welfare of the family (for example, bringing up the children or caring for an aged dependent);
- any prenuptial agreements regarding the divisions of assets;
- The needs of the children from the marriage, if any; and
- The financial independence of each party after divorce.
In addition to these key factors, the length of the marriage and the size of the matrimonial pool of assets accumulated are considered when determining the proportion each party will be entitled to, explains Viviene. So, a spouse who wasn’t working throughout the marriage is still entitled to a share of the matrimonial assets, so long as he or she has made significant contributions to the family’s wellbeing; for example, a stay-at-home mum who has raised two kids, or a dad who gave up his job to care for his disabled daughter.
But, what happens with overseas assets?
Viviene says that any matrimonial assets or properties located overseas are included in the process of asset division in Singapore as long as:
- They were acquired by one or both parties during the marriage; or
- they are used by one or both parties or their children for various purposes; or
- they were acquired before the marriage but have substantially improved in quality during the marriage.
Assets received as gifts or inheritance, however, are excluded from the matrimonial pool of assets for division in Singapore.
Viviene Sandhu is a Partner at Clifford Law.
#08-04 The Adelphi, 1 Coleman Street
6223 4456 | cliffordlaw.sg
Contested vs uncontested divorce proceedings
What happens when one spouse doesn’t want a divorce in the first place?
“In Singapore, divorce proceedings can still go on even when one party is contesting the divorce. A unilateral desire to continue with the marriage will not, by itself, be sufficient to stop the divorce proceedings,” explains NITHYA DEVI, a family law practitioner at Kalidass Law Corporation.
“In the event that one spouse does not want the divorce, or both parties are not able to agree on the terms for the divorce, the spouse who is proceeding with the divorce has to file for the divorce through the contested divorce route.
The court will then make a determination based on these factors:
- Whether or not the marriage has irretrievably broken down; and
- ancillary matters such as division of assets, maintenance and child custody
“The spouse who is contesting the divorce will be given a chance to file a Defence, explaining why they do not agree with getting a divorce or the reasons for the divorce. However, if they choose not to do so and fail to respond or attend court hearings, the proceedings will continue in their absence,” says Nithya.
“That said, the process is easier if the parties agree on the divorce and the ancillary matters. In that case, the parties can file for a divorce under the simplified uncontested divorce route, where the court grants the divorce upon reviewing the terms for the divorce.
Uncontested divorce proceedings are more simplified and straightforward, and save both parties time and money if they are able to reach a consensus.”
What happens if my spouse threatens to cancel my Dependant’s Pass?
“Going through divorce proceedings in a foreign country is already stressful. To add to this, you may be pressured or threatened by your spouse to agree to terms that are unfavourable to you,” says Nithya.
“In the event that your spouse threatens to cancel your Dependant’s Pass (DP), you can apply to the Family Justice Courts of Singapore to prevent your spouse from doing so until the divorce is finalised. However, once the divorce is finalised, it is likely that the DP will be cancelled. If you wish to remain in Singapore, you can apply for an Employment Pass if you are working in Singapore, or a Long-Term Visit Pass if your child is a Singapore citizen or Permanent Resident.”
Getting divorced in Singapore: Advice for Aussie expats
An Australian expat in Singapore does not have to file for divorce in Singapore even if he or she was married there – although that expat certainly can if he or she has been living in Singapore for at least three years. The Aussie expat may, instead, choose to file an application for divorce in Australia, even while residing in Singapore.
So, how do you decide if you want to divorce in Singapore or Australia?
There are significant differences between the Australian family law system and the Singapore family law system, explains FIONA HOAD, director at Somerville Legal. As an accredited specialist in family law with over 20 years of experience in the field, she regularly works with Australian expats looking to get divorced while living in Singapore. And, in doing so, she has seen first-hand how these differences can greatly affect the outcome of divorce, including property and parenting matters.
One key difference is the amount of time a couple needs to be separated before filing papers. In Australia, you can file an application for divorce after being separated from your spouse for 12 months. In Singapore, however, you need to be separated for at least three years in order to file for divorce
Additionally, Fiona says, a divorce order in Australia simply ends your legal union as a married couple. Yet it doesn’t finalise property law and parenting matters like it does under the Singapore law system. In Australia, you’ll have 12 months to apply for property division and custody settlements after the divorce has been finalised.
Another major differentiator? Australia has a no-fault divorce system, which means that the spouse who is filing for divorce does not have to prove that the other spouse did something wrong. In Singapore, the fault-based family law system requires couples to cite adultery or other faults that have led to the marriage’s demise. “If an Australian expat files for divorce in Singapore, they trigger the Singapore family law system in relation to property and parenting, which can lead to a less favourable outcome for one party,” says Fiona.
To determine which country’s law system will be best for you as an Australian expat, Fiona suggest seeking legal advice – and as soon as possible. Acting quickly can help ensure that the divorce proceedings take place in the country of your choice.
“For example, if you want to file for divorce in Australia but your spouse wants to file for divorce in Singapore, you’ll need to get in first by filing an application to commence proceedings in Australia. If your spouse files for divorce in Singapore first, you will be left dealing with all of your family law matters in Singapore, which can result in a less favourable outcome for you,” says Fiona.
Child custody in Singapore
Other than division of assets, there are other key issues to be decided, including child custody, and care and control of the children if they’re under 21 years of age. Here, MALA RAVINDRAN, managing director of Law Connect LLC, answers our questions about child custody as part of the Singapore divorce process.
What are the different types of child custody in Singapore?
As a common law jurisdiction, Singapore has adopted English law given its colonial history. The usual custody orders applicable upon a divorce are sole custody to either parent or joint custody to both.
However, to supplement this, the Court also usually grants care and control to one parent, and access orders to the other. This means that one parent is responsible for the child’s day-to-day welfare. The other parent is protected by getting rights to see the child during previously specified days and times by way of an order of court.
What’s the difference between sole child custody, and care and control?
Clients often misunderstand the difference between sole child custody in Singapore, and care and control. Having sole child custody in Singapore means that the parent with sole custody makes all decisions in relation to the child’s welfare; they don’t need to consult the other birth parent on particular matters.
However, Singapore divorce law recognises that a child’s birth parents have automatic rights over their offspring. This usually translates into a joint child custody order rather than sole child custody. Sole custody is usually granted only in exceptional circumstances.
A joint child custody order entitles both birth parents to make decisions regarding the child’s wellbeing. This can include decisions about the child’s upbringing, healthcare, choice of schooling and religious matters.
As Singapore recognises the concept of joint parental responsibility for a child as both parents responsible for bringing the child into the world, the default position is usually an order for joint child custody in a divorce, rather than sole custody. This means both parents have equal rights in relation to responsibility for a child’s general welfare and wellbeing.
Shared care and control
There is a relatively new order being granted by the Courts, known as “shared care and control”. This essentially means that the children have two homes, and both parents share care and control. It’s usually only granted in cases where divorced parents are able to put their differences aside in favour of the child’s. A total of 9.5 percent (256 couples) were given such “shared care and control” in 2020.
How does the court decide which type of child custody to grant?
The default position is an order for joint child custody. This means that only exceptional circumstances – for example, physical, sexual or emotional abuse of the child, or proof of or conviction by either one parent of sexual offences against third parties – may result in the Court ordering sole child custody to one parent.
Also, if it can be proven that all avenues for counselling and mediation have been exhausted but failed between the two parents, or the lack of cooperation between the two parents starts to have negative effects on the child, a sole custody order may succeed.
Can the parent with sole custody relocate the children back to his or her home country?
Yes, if a sole custody order has been granted in accordance with the terms of the International Child Abduction Act (Cap 143C) and/or the Hague Convention. Singapore acceded to the Hague Convention in 2016 but the Contracting State must be a country that has accepted Singapore’s accession to the Hague Convention. If not, then the parent without sole custody may still be able to take out an application against the parent with sole custody to prevent them from leaving with the children.
This article first appeared in the December 2021 edition of Expat Living. You can purchase the latest issue or subscribe, so you never miss a copy!
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