Lie Chin Chin

Guide to Divorce Proceedings: Divorce Hearing and Interim Judgment

SUMMARY:

You have commenced divorce proceedings. What happens now? What will you need to prove in order to get divorced successfully? This article seeks to arm you with the information you need to make preparations for the first stage of divorce.
 
After ensuring that the Singapore Courts has the jurisdiction to make a divorce order in your case, and that either (a) you and your spouse (the “Defendant”) have been married for 3 or more years, or (b) you have been married for less than 3 years but are able to show that you have been suffering from exceptional hardship, or there is exceptional depravity on your spouse’s part, you must then prove that there has been an irretrievable breakdown of your marriage.
 
You may prove irretrievable breakdown of marriage through one or more of the following factual situations:
1. Adultery
You may show that the Defendant has committed adultery and that you find it intolerable to live with the Defendant. The Courts have a high standard of proof when it comes to proving adultery.

 

Do note that if you have continued living with your spouse as husband and wife for more than 6 months upon finding out that the Defendant has committed adultery during the course of your marriage, this may cause the Court to doubt your claim that you cannot tolerate living with your spouse due to the adultery.

 

“Even in cases where there is adultery involved, it may be wiser or a better strategy to proceed under the separate fact of “unreasonable behaviour” as this is easier to prove and may save you time and costs in the long run.”
– Lie Chin Chin “Instant Legal Protection for Your Family”, page 102

How can I prove adultery? 

The Court requires you to show evidence of the Defendant’s adultery. There are many ways to prove adultery depending on the situation, and here are a few ways to do so. 
 
If you are able to hire a private investigator, or obtain these by yourself, you could show the Court photographic or video evidence of the Defendant in intimate positions with another person, or in compromising situations e.g. the Defendant and another person holding hands and walking into a hotel lobby, them walking out from a hotel room, or them walking in a hotel corridor towards a room, etc.
 
You could also obtain your spouse’s text messages, emails exchanges or telephone conversations that indicate or point towards adulterous behavior e.g. details of arranging meet ups, or the use of overly familiar or inappropriate language including terms of endearment.
 
Documentary evidence such as records/receipts for hotel rooms or flight tickets, or credit card bills, could also be used as evidence.
 
If you suspect that your spouse’s adultery has resulted in the birth of an illegitimate child, the DNA of that child (should you be able to obtain it) could also be used as indirect evidence of adultery.
 
Previously, a client has succeeded in proving adultery with the help of written testimonies. The client had managed to obtain sworn written testimonies from hotel staff who witnessed his spouse acting intimately with another man. 
 
It is possible that none of the aforementioned examples of evidence is individually able to form conclusive evidence of adultery. Thus, if you are seeking to prove that adultery has taken place, you should try to obtain as much evidence as possible to produce in Court.

Case Study 1 on proving adultery:  

A private investigator’s evidence will be extremely useful if you are able to obtain such services. In a past case, a husband hired two private investigators to follow his wife and monitor her actions as he was suspicious of her relationship with another man, “M”, with whom she spent much time with.
 
The private investigators followed the wife and M to the carpark at Jurong Bird Park and witnessed them in very intimate positions in various states of undress. These private investigators were called as witnesses in court and were subject to very close cross-examination. Although there were a few discrepancies between them, the core of their evidence, namely that they had witnessed the wife and M getting into a car together, parking in a carpark, being in intimate positions, and the fact that the wife and M did not have any explanation for being in the same vehicle at the carpark of Jurong Bird Park, were enough to convince the Court beyond reasonable doubt that the wife and M had committed an act of sexual intercourse, and the wife had committed adultery.

Case Study 2 on proving adultery:  

The Court can also draw an inference that there was adultery if the Defendant is shown to be inclined to committing adultery and that there was an opportunity for the Defendant to do so. The Court stated that this method of proving adultery was allowed because direct evidence of adultery was hard to come by. However, the opportunity to commit adultery must be paired with some conduct of the Defendant and the third party which would show that they would commit adultery if given the opportunity. 
 
This is a high threshold to cross. The Court would look very carefully for any conduct that may show inclination to commit adultery. In one case, a Mr A filed for divorce, stating that his wife committed adultery with her colleague, “D”. Mr A argued that D and Mr A’s wife were found locked in D’s classroom on one occasion and that his wife had begun taking contraceptive pills without his knowledge. 
 
The Court found that the contraceptive pills were indeed taken by the wife because she was not ready to have another child. However, her gynecologist was the one who started her on the pills and she started taking those pills even before she met D. Further, the wife and D gave full, comprehensive and corroborative accounts of why the classroom door was locked – they were discussing professional issues, and D always had a habit of locking his doors. An independent witness further confirmed these matters. The wife and D had also never exhibited any acts of familiarity and intimacy. The Court thus did not find the commission of any acts of adultery and dismissed the application for divorce.

2. Unreasonable Behaviour

You may show that your spouse has behaving in such a way that you cannot reasonably be expected to live with your spouse. It would not be enough to show that you and your spouse are incompatible.
 
The Court looks first at whether you, with your characteristics, personality, faults and other attributes, can reasonably be expected to live with your spouse, or whether it would be intolerable for you to do so. 
 
Next, the Court looks at your spouse’s behaviour and considers his or her acts or inactions that might have affected the marriage. Your spouse’s behaviour need not be malicious in order to be unreasonable.
 
Do note that if you have stayed with your spouse for more than 6 months after your last claimed instance of your spouse’s unreasonable behavior, this may cause the Court to doubt your claim that you cannot reasonably be expected to live with your spouse.
 
What if the people around me think that my spouse’s behaviour is alright or acceptable, but I find his or her behaviour intolerable? 
Since the Court looks at your personality and characteristics, it may not matter that others think his or her behaviour acceptable. 
 
For example, you may be married to someone whose culture finds kissing other women on the cheeks and hugging others acceptable, but if you, due to your personal views and upbringing, find this intolerable, you should voice your concerns to your spouse. If he or she ignores or disregards your concerns and continues these actions, this may be argued as unreasonable behaviour in your opinion.
 
On the flipside, you could be married to someone whom you find unreasonably conservative. Your spouse may try to restrict your behaviour or control the way you express yourself, and you may find that this upsets your relationships with other people. This could also be argued as unreasonable behaviour in your opinion.
 
What are some examples of unreasonable behaviour?
As mentioned, unreasonable behaviour must be seen as unreasonable from your perspective. This makes it very subjective, and some types of behaviour may be considered unreasonable for certain people, but reasonable for others. Here are a few examples that you may be able to relate to.
 
You may not be able to tolerate your spouse’s drinking habits; he or she may habitually drink to excess and/or come home drunk, or may act in a way that you find unacceptable. 
 
Your spouse may also constantly insult you, discourage you or belittle you, this could also be a form of unreasonable behaviour to you. 
 
Other examples of behaviour you may find unreasonable could be where your spouse gambles excessively, or spends lavishly beyond your means. Your spouse may also refuse to work, or refuse to take care of the children, or refuse to help out around the house. You spouse could also be physically, verbally, emotionally or mentally abusive. 

Case Study 1 on what amounts to unreasonable behaviour:

Mr X and Ms Y were married for 7 years and had one son. Ms Y was applying for a divorce and stated that Mr X was violent, aggressive and had a very bad temper. Among other things, Ms Y stated that Mr X would regularly verbally threaten her and her son. She cited an incident at Lawry’s Restaurant where Mr X threatened to punch their son in the face when he felt that their son was interrupting his iPhone game during dinner. Mr X later lifted their son up by the shirt and dragged him for about 5 meters when the child accidentally fell whilst playing. Mr X also pinned their son on the ground on a separate occasion and forcefully pulled their son. The Court found Mr X’s behavior unreasonable and found that the cumulative effect of Mr X’s actions on Ms Y was to affect her to such an extent that she could not reasonably be expected to live with Mr X and granted the divorce on Ms Y’s claim.
 
Case Study 2 on what amounts to unreasonable behaviour:
Ana and Carlos were married for over 20 years. Carlos stated that Ana failed to discharge her wifely duties, showed no affection for him and had refused to have sex with him for a period of approximately 7 years leading up to the divorce. Carlos testified that he found it extremely humiliating to be denied a normal married life, and this caused him much emotional and mental trauma. He also stated that Ana was hot-tempered and extravagant, and was very cold and unfriendly towards him. 
 
Ana was found to be aware that Carlos felt deprived by her refusal to have sexual relations with him, yet she continued to behave in a way she knew would adversely affect Carlos. Ana continued demanding maintenance of $7,000.00 per month and made Carlos leave the master bedroom although he was the one paying rent for the house, all while refusing to have conjugal relations with him even though she knew that it would affect him adversely. All in all, the Court found Ana’s behavior unreasonable, found that Carlos could not reasonably be expected to live with her, and granted Carlos a divorce.

3. 2 Years of Desertion

You may show that your spouse has deserted you for a continuous period of at least 2 years immediately before you commence your divorce proceedings in Court. Parties must have been physically separated and the deserting party must have had an intention to desert. 
 
To prove physical separation, you must show that there has been a breakdown of a common household. You must show the Court that you and your spouse have been living in and keeping separate households. Just staying in separate houses may not amount to keeping separate households if parties exhibit other behaviour, such as meeting and communicating daily, or attending events and presenting themselves as husband and wife, that indicate that they do not intend to end their marriage.
 
You must also show that your spouse had the intention to desert to you, and that this desertion was non-consensual. There is no intention to desert if you and/or your spouse’s situation required you to live apart.

Case Study on desertion:

In a previous case, Mr A applied for divorce. He alleged that his wife had deserted him for a period of 2 years by leaving him physically and stopping all contact with him. However, the Court found that he frequently abused her in the past. The wife was forced to leave the matrimonial home and Mr A for her own safety. The Court then found instead that it was Mr A who had deserted his wife. This is an example of expelling conduct, where Mr A’s conduct was so grave that it did not just give his wife good reason to leave, but forced her to leave. The Court would then hold the party that exhibited the expelling conduct accountable and responsible.

4. Separation

For both types of separation, physical separation alone is insufficient. One or both parties must have had the intention to be apart. Similar to desertion, separation due to extenuating circumstances requiring separation cannot be used to prove irretrievable breakdown of marriage.
 
There must also be a loss of consortium, which is the right of companionship and association between spouses. Again, similar to desertion, spouses who live apart but who exhibit behaviour showing that they do not intend to end their marriage, e.g. doing chores for one another, or attending events as husband and wife, will not amount to separation. To show separation, you and your spouse could do things such as carrying out your own household chores and keeping separate finances.
 
a. 3 Years of Separation (with spousal consent to grant of divorce – uncontested divorce)
You may show that you and your spouse have lived apart for a continuous period of at least 3 years immediately before you commence your divorce proceedings in Court.
 
Procedure for Establishing Separation
You should obtain formal written consent from your spouse, which you can file in the Memorandum of Appearance. You must also provide a Statement of Particulars that will state the following:
  1. The date on which you and your spouse separated (the date you and your spouse decided to end consortium)
  2. The duration of your separation
  3. Reason for you and your spouse intending to live separately
  4. If you and your spouse live in separate physical locations, the known residential address(es) of you and your spouse or if you and your spouse live under the same roof during separation, details of how you both maintained separate households during separation.
This is where a Deed of Separation may come in handy. You can use the arrangements for separation in the Deed and any evidence of you following through with the arrangements stated to show the Court how you maintained separate households during separation.
 
b. 4 Years of Separation (without the need for spousal consent to grant of divorce)
You may show that you and your spouse have lived apart for a continuous period of at least 4 years immediately before you commence your divorce proceedings in Court.
 
  Case Study 1 on when there is no separation:
The court may consider that spouses are not separated where depending on the factual matrix of the case. In one example, the husband had left the matrimonial home and slept in a different house, but the parties were not considered living separately as the husband spent all his waking hours with his wife and children. The Court stated that he was merely choosing not to sleep at home. The husband had continued to enjoy all the advantages and burdens of a typical married life. For this reason, the Court did not grant a divorce as there was no separation.
 
Case Study 2 on when there is no separation:
In another case, it was also found that unless the spouses’ living apart is by choice, it would not give a clear indication on the state of the parties’ relationship and thus not be a reason for divorce. The Court found that Mr D and Ms R first began living separately for legitimate reasons – Mr D had business interests overseas, and R was bringing up their son in Singapore. 
 
After they sent their son to Switzerland for boarding school, the parties continued to live apart. It was then that Mr D, in filing for a divorce, claimed that parties had already lived apart for more than 4 years. Ms R then showed evidence that this was untrue as the two had continued to spend holidays together as a couple and family. The Court found that there was no separation in this case.
 
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