What is annulment?
You can apply for annulment if your marriage is deemed ‘void’ or ‘voidable’ at law.
A marriage is considered ‘void’ if:
On the other hand, a marriage is considered ‘voidable’ if:
If a marriage is ‘void’, it simply means that the marriage is invalid from the outset, and the marriage is automatically annulled. You may still wish to apply to court to obtain a formal judgement of nullity. On the other hand, if a marriage is ‘voidable’, the marriage is still legally valid, so the plaintiff has to take the active step of applying to court to have the marriage annulled.
What are the benefits of annulment?
1.There is no three-year waiting period: Unlike divorce, you can apply for annulment during the first three years of the marriage.
2.Annulment is also available in long marriages: The court can order annulment of a marriage even if the marriage has lasted for a relatively long time.
3.Reinstatement of ‘single’ marital status: Regardless of whether the marriage was ‘void’ or ‘voidable’, your marital status would be reinstated as ‘single’ if a judgement of nullity is obtained.
4.Does not affect legitimacy of children: Generally, the legitimacy of children born during a marriage that is later annulled will not be affected.
What is separation?
Separation is an alternative you may wish to consider if you feel that divorce is unsuitable in your present circumstances (e.g. you wish to preserve the status quo of your marriage, or you do not have the financial ability to run and maintain separate households). More importantly, a separation may offer you and your spouse the space and time to contemplate reconciliation or iron out your differences, rather than to go straight to divorce, which is a final order.
Being separated does not necessarily mean that you and your spouse must live in separate houses. You and your spouse can be considered ‘separated’ as long as there are clear boundaries established, and you do not do things that spouses living under the same household may reasonably be expected to do with one another, for example doing chores for one another, taking holidays together, or being intimate with one another.
What are the types of separation?
A. Deed of Separation
A Deed of Separation is a legally binding document based on mutual agreement between you and your spouse. It does not need to be registered or filed with the court, and can be revoked by consent at any time. Generally, a deed of separation would state:
· You and your spouse’s mutual decision to live separately;
· When your separation was deemed to have started; and
· How your relationship is to be governed once you are separated.
What are the benefits of drafting a Deed of Separation?
· Parties are to mutually agree on terms and enter the Deed of Separation with both eyes open;
· Can be revoked if parties are able to work through issues;
· Lays the groundwork for divorce in the future by drawing clear boundaries and timelines for separation, which could serve as proof of the separation in obtaining the divorce later on; and
· In the event of commencement of divorce proceedings, more certainty in relation to ancillary matters such as the division of matrimonial assets , maintenance , as well as care and control and custody of children .
B. Judicial separation
Instead of drafting and entering a Deed of Separation, you may apply to court for judicial separation. As it is a formal court application, it would be costlier than a Deed of Separation.
Obtaining an order of judicial separation is similar to obtaining an order of divorce in the sense that you and your spouse must have been married for at least three years, and you must prove the irretrievable breakdown of your marriage. Following an order of judicial separation, the court may also make ancillary orders for the division of matrimonial assets, maintenance, as well as care and control and custody of children. Enforcement proceedings could thus be taken out in court if parties fail to abide by the terms of the judicial separation and/or ancillary orders.
What are the benefits of undergoing a judicial separation?
If you plan to separate ahead of getting a divorce, a judicial separation is more advantageous than a
Deed of Separation as the court, in making ancillary orders post-divorce, will be unlikely to deviate from the ancillary orders made post-judicial separation. On the other hand, if parties have a Deed of Separation in place and go to divorce later on, the court may not and need not abide by the provisions of the Deed of Separation in making ancillary orders.
So… When is divorce still a viable option?
Separation does not automatically lead to a divorce. If after undergoing a separation you still wish to divorce, separate divorce proceedings must be taken out. You should consider carefully before opting for separation first as it would mean that you incur an extra round of legal fees.
If your marriage has irretrievably broken down , annulment is not an option, and divorce is truly inevitable, you could consider applying for divorce at an earlier stage so that you can focus on moving on and rebuilding your life. In certain instances, we have seen that delaying divorce proceedings have resulted in complicated situations. In one case, the husband moved overseas, leaving his wife being unable to contact him to move the divorce forward. In another instance, the husband took advantage of the delay to dissipate his assets, leaving fewer assets for the division of matrimonial property later on.