Lie Chin Chin

Expat Divorce in Singapore

Regardless of whether you are an expat/foreigner or a local, the statutory requirements and procedures for getting a divorcein Singapore are the same.

 

As an expat/foreigner who may wish to get a divorce in Singapore, you should first consider the issues of whether the Singapore courts have jurisdiction to hear your divorce proceedings, and how your judgment of divorce and the associated court orders might be enforced in your home country later on. You should consult a Singapore divorce lawyer to discuss those issues, and subsequently to guide you on the statutory requirements and procedures for getting a divorce in Singapore.

Can your divorce be heard in Singapore?

The first question you should ask is if the Singapore courts have jurisdiction to hear your divorce proceedings. Section 93(1) of the Women’s Charter gives the Singapore courts jurisdiction to hear divorce proceedings 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.

 

If you do not fall under either category, you may have to consider getting divorced in your home country, the country in which you married, or the country of your domicile. In such a case, you may have to consult lawyers from those jurisdictions.

How do I show that I am domiciled in Singapore?

“Domicile” is defined as the country of one’s permanent home, or the country to which one has a substantial connection with.

Singapore Citizens are presumed to be domiciled in Singapore unless proven otherwise (see section 3(1) of the Women’s Charter). This means that if you or your spouse is a Singapore Citizen, the Singapore courts would almost certainly have jurisdiction to hear your divorce.

 

As an expat/foreigner, you may be regarded as being domiciled in Singapore if you can show, for example, that you have stayed in Singapore for a sustained period of time, that the location of your employment is in Singapore, or that your immediately family lives with you in Singapore, and so on. Alternatively, you may be deemed to be “habitually resident” in Singapore as per section 93(1)(b) of the Women’s Charter.

How do I show that I am habitually resident in Singapore?

To be “habitually resident” has been regarded by the Singapore courts to be “habitually and normally resident … apart from temporary or occasional absences of long or short duration”. Your residence must also have been adopted voluntarily and for a settled purpose(s) – for example, you would be regarded as “habitually resident” in Singapore if you and/or your spouse live and work here. This should be fairly straightforward to prove if you have been based in Singapore for a significant period of time (or at the very least, in the three years preceding the commencement of the divorce proceedings).

 

However, when might a temporary or occasional absence from your place of “habitual residence” be too long? The Singapore courts in Lee Mei-Chih v Chang Kuo-Yuan [2012] 4 SLR 1115 indicated that a 12-month period of absence, when viewed against the backdrop of the mandatory 3-year period of “habitual residence” immediately before divorce proceedings are initiated, would lead to finding of no “habitual residence”. In other words, if you have worked in Singapore for three years but spent half that time in your home country, the Singapore courts may not necessarily view you as “habitually resident” in Singapore.

What statutory requirements do I need to fulfil if I want to get a divorce?

In terms of procedure, there is no difference between an expat divorce and a ‘local’ divorce in Singapore.

 

Firstly, you must have been married for at least 3 years. If you have been married for less than that time, you must show the court that there are extenuating circumstances, such as exceptional hardship suffered on your part, or exceptional depravity on your spouse’s part. Extraordinary hardship “must be out of the ordinary and more than what an ordinary person should reasonably have to bear”. Furthermore, the Court must also be convinced that waiting for 3 full years before getting a divorce would be impossible for you, due to the amount of suffering you would otherwise have to go through. As an alternative to divorcing, you may seek to have your marriage annulled if you are able to show that certain events have taken place (or not).

 

Assuming you have been married for more than 3 years, the next thing to consider would be the ground for divorce, and who should initiate the divorce proceedings. In Singapore, there is only one valid ground for divorce – that the marriage has irretrievably broken down. You can show that your marriage has irretrievably broken down by satisfying the courts that one or more of the following has taken place:

 

(a) that your spouse has committed adultery and you find it intolerable to live with him or her;

 

(b) that your spouse has behaved in such a way that you cannot reasonably be expected to live with him or her;

 

(c) that your spouse has deserted you for a continuous period of at least 2 years immediately preceding your filing for divorce;

 

(d) that you and your spouse have lived apart for a continuous period of at least 3 years immediately preceding the filing of the writ of divorce, and your spouse consents to a judgment of divorce being granted; and

 

(e) that you and your spouse have lived apart for a continuous period of at least 4 years immediately preceding the filing of the writ of divorce.

 

There is no ‘standard’ set of facts to show, and every case is unique. You should consult a Singapore divorce lawyer to discuss your case and what facts you should proceed on to show the irretrievable breakdown of marriage.

Once you have determined the facts to proceed on, your lawyer will be able to draft the relevant divorce papers for you and proceed to file them to Court.

 

Your lawyers will also serve the papers on your spouse. Should your spouse wish to contest the divorce, he or she would have to file a Memorandum of Appearance and Defence in Court within certain court-stipulated timelines. Should that take place, you will also have the opportunity to file a Reply to your spouse’s Defence.

 

After the filing of the last Reply, the matter will eventually come before a judge who will decide whether or not to hear the matter or to send the matter for mediation first. If the judge decides that the matter is to be heard in Court, parties will be given time to prepare a document known as an Affidavit of Evidence-in-Chief, which is each party’s record of evidence supporting his or her position. The judge will then fix dates for the matter to be heard and determine whether or not to grant the divorce. The process of filing an Affidavit (of Assets and Means) and fixing a hearing is then repeated for the ancillary matters such as the division of matrimonial assets, spousal and child maintenance, and child custody, care and control issues.

 

Alternatively, if your marriage fulfils certain conditions, or if the judge is so minded, the matter may be directed for mediation instead. Parties will be required to attend mediation with their lawyers, and a mediator will try to broker a settlement between parties for both the divorce and the ancillary matters. Any settlement that is reached by parties at mediation can then be recorded as an Order of Court and become enforceable on both parties. Depending on how the matter develops, it is not unheard of for the divorce proceedings to be settled via a combination of a court hearing and a mediation (e.g. a court hearing to decide the divorce and a mediation to settle the ancillary matters).

Can my ancillary orders be enforced in other countries?

Should you choose to get a divorce in Singapore as an expat or foreigner, your matrimonial assets, regardless of where they are located in the world, would be subject to division by the Singapore courts. The enforceability of ancillary orders for the division of your matrimonial assets would represent a major concern if you have significant assets outside of Singapore.


Singapore law does not impose any geographical limitation on what constitutes a ‘matrimonial asset’. Section 112(10) of the Women’s Charter defines a ‘matrimonial asset’ as:


(a) any asset acquired before the marriage by one or both parties to the marriage


(i) ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter or transportation or for household, education, recreational, social or aesthetic purposes; or


(ii) which has been substantially improved during the marriage by the other party or by both parties to the marriage; and


(b) any other asset of any nature acquired during the marriage by one party or both parties to the marriage.


An example of an overseas matrimonial asset falling under Section 112(10)(a) could be an overseas property that was owned by your spouse prior to your marriage, and stayed in by the both of you and your children before coming to Singapore or whenever you visit your home country. On the other hand, examples of overseas matrimonial assets falling under Section 112(10)(b) could be shares in an overseas company, or an overseas holiday home, acquired during your marriage.


In theory, you would be able to obtain ancillary orders from the Singapore courts for the division of such overseas matrimonial assets. However, before commencing divorce proceedings in Singapore, you should consider the practicalities of enforcing the Singapore ancillary orders in the jurisdictions where your overseas matrimonial assets are located. In fact, the Singapore court has traditionally shied away from making orders dealing with overseas assets, especially immovable property (i.e. houses and land), as it recognises that the division or transfer of such overseas assets may not be straightforward due to the local laws and regulations. Singapore court orders are generally enforceable in other Commonwealth jurisdictions under the Reciprocal Enforcement of Commonwealth Judgments Act, and the Reciprocal Enforcement of Foreign Judgments Act (which at present only extends to Hong Kong SAR). More specifically, maintenance orders for ex-spouses and children issued in Singapore may be enforced abroad in several Commonwealth jurisdictions under the Maintenance Orders (Reciprocal Enforcement) Act. In all likelihood, you may end up having to consult divorce lawyers from overseas, especially non-Commonwealth jurisdictions to assess the feasibility of enforcing Singapore ancillary orders. A Singapore divorce lawyer should be able to link you up with divorce lawyers from the overseas jurisdictions should the need arise.

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