Judicial / Deed of Separation

A) Relevant Law?

• Under section 101, 102

B) Judicial or Legal Separation in Singapore: When and How to File

i. What is Judicial Separation?

Pursuant to section 101(1) of the Women’s Charter, a couple may file for judicial separation if they no longer wish to live together, but do not want or are unable to section 101(1)obtain a divorce.

Being granted a Judgment of Judicial Separation means that a couple no longer need to cohabit together. However, since the parties have not obtained a divorce, the couple is still considered legally married.

C) Judicial separation vs deed of separation

There are some similarities between judicial separation and signing a deed of separation, which is a legally binding document between a married couple stating their mutual decision to live separately.

For one, the couple will still be considered legally married even after the order for judicial separation is granted or the deed of separation is signed. Additionally, both judicial separation and deed of separation will address ancillary matters such as custody of the children, maintenance and division of matrimonial assets.

However, to start a judicial separation, the couple first has to file an application for judicial separation with the court. After that, it is the court that will decide on any ancillary matters, that the couple cannot agree on, on their behalf.

On the other hand, the court is not involved if a couple decides to make a deed of separation. The deed of separation is drafted by the couple themselves, so they are the ones who mutually decide on all the ancillary matters. The deed of separation also need not be filed with the court after it has been drafted or signed.

D) When might you resort to judicial separation as opposed to making a deed of separation and vice versa?

One might resort to judicial separation instead of a deed of separation in the following circumstances:
1. If there is a possibility that the other party will not comply with the terms of the deed of separation. For example, where the other party may refuse to pay maintenance as agreed in the terms. In this case, a judicial separation may be preferred as parties are legally obliged to follow the court orders. Parties that do not comply can be punished for contempt of court; or

2. The couple qualifies for judicial separation under the grounds of irretrievable breakdown of marriage set out above. On the other hand, couples might opt for a deed of separation over judicial separation as it provides more flexibility in allowing them to include their own terms in the deed.

E) Judicial separation vs divorce

Both divorce and judicial separation are granted on the same ground of irretrievable breakdown of the marriage. However, unlike judicial separation, which retains the marital status of the couple, a grant of divorce terminates the marriage. Parties to a divorce are therefore free to remarry, unlike parties who have undergone judicial separation.

G) How to File for Judicial Separation in Singapore

i. Legal requirements for judicial separation To apply for judicial separation, the couple must be married for at least 3 years. The court must also be convinced that the marriage has irretrievably broken down due to at least one of the following reasons:

• • The other party has committed adultery and the applicant finds it intolerable to live with him/her;
  • The other party has behaved in such a way that the applicant cannot reasonably be expected to live with him/her;
  • The other party has deserted the applicant for a continuous period of at least 2 years immediately preceding the filing of the writ for judicial separation (i.e. writ);
  • The parties to the marriage have lived apart for at least 3 years before filing for judicial separation and the other party consents to it; or
  • The parties to the marriage have lived apart for at least 4 years before filing for judicial separation.
  However, if you are relying on the reason of desertion, take note that the court may void the judgment of judicial separation if it was obtained in the absence of the other party, or if there was reasonable cause for the alleged desertion.

H) Procedure and fees for filing a judicial separation application

A writ for judicial separation may be filed using Form 3 along with a statement of claim (Form 6) by either party to the marriage. Parties are to specify which reason(s) of irretrievable breakdown of marriage is being relied on in the statement of claim and provide evidence to prove the reason(s) specified, in addition to furnishing other particulars. Costs for judicial separation would include lawyers’ fees and administrative costs such as filing fees. The exact cost for judicial separation would depend on the facts of each case. When reviewing the application for judicial separation, the court will consider:

• Whether the marriage has irretrievably broken down
• Whether satisfactory arrangements have been made for the parties’ children, including custody over them, their education and financial provision for them

I) After the Judgment of Judicial Separation has been Granted

i. Ancillary matters
After the granting of the Judgment of Judicial Separation, the court will proceed to make orders for any remaining ancillary issues that have not been addressed yet. This could include the division of matrimonial assets or granting of maintenance.

The ancillary matters are typically addressed during the Ancillary Matters Case Conference. However, if they cannot be resolved during the Case Conference, trial dates will be given for a judge to decide on them on the couple’s behalf.

ii. Remarriage
After a Judgment of Judicial Separation is granted, the couple cannot remarry since the judgment does not terminate the marriage.

iii. No claim to deceased spouse’s assets
If a spouse dies without a will, the surviving spouse is usually entitled to a share of their assets. However, couples who have judicially separated are not entitled to a share of their spouse’s assets if one of them dies without a will.

iv. Reconciliation
If the couple wishes to reconcile, they may file for a rescission of Judgment of Judicial Separation (Form 7) to have it cancelled.
If the couple which has successfully obtained a Judgment of Judicial Separation later wishes to obtain a divorce, the couple will still have to file for divorce. —
Filing for judicial separation can have important implications on issues such as your marital status. If you wish to file for judicial separation, please speak to a divorce lawyer for advice on the necessary steps to be taken.