Wednesday, September 11, 2013
Notes on Singapore Divorce Law and Singapore Child Custody Law
Jeremy D. Morley
Singapore Divorce Jurisdiction:
Singapore courts shall have jurisdiction to hear proceedings for divorce, presumption of death and divorce, judicial separation or nullity of marriage only if either of the parties to the marriage is (a) domiciled in Singapore at the time of the commencement of the proceedings; or (b) habitually resident in Singapore for a period of 3 years immediately preceding the commencement of the proceedings.
In proceedings for nullity of marriage on the ground that the marriage is void or voidable, the court may, nonetheless, grant the relief sought where both parties to a marriage reside in Singapore at the time of the commencement of the proceedings.
No writ for divorce may be filed in Singapore unless at the date of the filing of the writ 3 years have passed since the date of the marriage.
Grounds for a Singapore Divorce:
A party seeking a divorce in Singapore must satisfy the court that the marriage has "irretrievably broken down." In order to prove that the marriage has "irretrievably broken down," a plaintiff must show the existence of at least one of the following grounds:
(a) That the other spouse has comitted adultery (i.e. had consensual sexual relations with another person) and that the plaintiff finds it intolerable to live with him/her; and/or
(b) That the other spouse has behaved in such a way that the plaintiff cannot reasonably be expected to live with him/her (for example, the other spouse has comitted family violence against the plaintiff); and/or
(c) That the other spouse has deserted the plaintiff for a continuous period of at least 2 years just before the commencement of the divorce proceedings; and/or
(d) That spouses have lived apart for a continuous period of at least 3 years just before commencement of the divorce proceedings, and both spouses agree to the divorce; and/or
(e) That the spouses have lived apart for a continuous period of at least 4 years just before the commencement of the divorce proceedings but the other spouse does not agree to the divorce.
If the plaintiff continues to live with the other spouse for more than 6 months after discovery of adultery, the adultery cannot be the basis for the divorce petition.
Desertion means leaving the plaintiff without agreement and without reasonable cause. In execeptional cases, where the other spouse has without reasonable cause driven the plaintiff out of the home and continues to exclude the plaintiff from the house for a period of 2 years, that can also constitute desertion.
"Living apart" requires the intention of staying apart from each other with the view of ending the marriage, as well as the physical act of staying apart. However, spouses may still be considered as staying apart even if the are staying at the same address, if they have led completely separate lives and have separate households (i.e. not staying in the same bedroom. no having sexual relations, not doing any household chores such as cooking, washing, cleaning, ironing, etc. together, or for each other; not having meals together as a family; not going out together as a family, etc.) for the required length of time, for the purposes of obtaining a divorce based on three or four years separation.
Singapore Prenutial Agreements:
The Singapore Court of Appeal rendered a weighty and well-reasoned decision on the enforceability of prenuptial agreements in the case of TQ v. TR,  SGCA 6 (Feb. 3, 2009). The opinion is especially important for its analysis of the (substantial) weight to be given in Singapore to foreign prenuptial agreements entered into in Singapore.
Traditionally Singapore followed the English rule that prenuptial agreements are unenforceable and, as in England, that ancient and much discredited rule has give way to a principle that prenuptial agreements may be considered in a court's determination of what is a fair result, along with a host of other factors. The Singapore Court of Appeal now holds that it will normally enforce foreign prenuptial agreements.
The Singapore case concerns a prenuptial agrement between a Dutch husband and a Swedish wife entered into in the Netherlands where the parties were married before returning to their residence in London. This agreement was prepared by a Dutch civil law notary in the Netherlands. After six years of marriage the couple moved to Singapore with their children. The agreement provided that "there shall be no community to matrimonial assets whatsoever between the spouses" and that "the matrimonial property regime in force between them shall be governed by Netherlands law."
The court determined that the Singpore courts should accord "siginificant [even critical] weight" to th terms of a prenuptial agreement between foreign nationals that is goverened by and valid according to a foreign law, unless its terms violate the public policy of Singapore.
Singapore Asset Division Upon Divorce:
A Singapore court that grants a judgment of divorce, judicial separation or nullity of marriage, has the power to order division between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset "in such proportions as the court thinks just and equitable."
The factors a court should consider include:
(a) the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets;
(b) any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage;
(c) the needs of the children (if any) of the marriage;
(d) the extent of the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party;
(e) any agreement between the parties with respect to the ownership and division of the matrimonial assets made in comtemplation of divorce;
(f) any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party;
(g) the giving of assistance or support by one party to the other party (whether or not of a material kind), including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business; and
(h) the matters that are relevant to determining a spouse's entitlement to spousal maintenance.
Hague Abduction Convention:
Singapore acceded to the Hague Convention on the Civil Aspects of International Child Abduction, effective from March 1, 2011. The Convention entered into force between the United States and Singapore on May 1,2012.
Singapore enacted the International Child Abduction Act on September 16, 2010 to implement Singapore's obligations under the Convention. The Ministry of Community Development, Youth and Sports is designated under the Central Authority to discharge the relevant functions under the Act.