Simplified Uncontested Divorce, Not As Simple As It Seems?

May 11th, 2020 Posted by In The News, Insights No Comment yet

In 2015, the Family Justice Courts introduced the Simplified Uncontested Divorce with the aim of simplifying the process of divorce for parties who manage to come to an agreement on all the terms of their divorce and ancillary matters.

Saving time and costs for the parties, the number of Simplified Uncontested Divorces have steadily increased over the years – from 24% of all divorces filed in 2015 to approximately half of all divorces in 2018. In fact, less than 5% of all divorces filed in 2017 required a final adjudication hearing in Court (i.e. divorce trial or Ancillary Matters hearing).

While more parties are now able to finalize their divorce in the shortest amount of time and without burning a hole in their pockets or attending Court, there are also many parties who do not make informed decisions about the terms that they have agreed to and later regret their decisions to opt for Simplified Uncontested Divorces. By focusing only on the time and costs savings, these parties failed to realize that there is much more to consider besides saying “yes” to the divorce.

1. GROUNDS FOR THE DIVORCE
Although it may be obvious that the marriage has come to an end, not many parties can agree on who should accept sole responsibility for the breakdown of the marriage.

Unfortunately, the grounds for divorce under the Women’s Charter are somewhat fault-based. It is not possible to file for divorce in Singapore based on “irreconcilable differences”. Any one of the five facts must be cited in the divorce papers – adultery, unreasonable behavior, desertion for more than 2 years, separation for more than 3 years with spousal consent or separation for more than 4 years without spousal consent. The facts cited to support the claim for adultery and unreasonable behavior must have taken place within 6 months of the date of filing; you cannot rely on these facts if they occurred more than 6 months ago.

If either party is unwilling to accept sole responsibility for the breakdown of the marriage, the solution is for both parties to each accept some responsibility through the filing of a claim and counterclaim.

2. DIVISION OF MATRIMONIAL ASSETS
For most Singaporeans, their most valuable asset would be their matrimonial home. When discussing the division of the matrimonial home, it is important for both parties to be candid about their respective financial contributions towards the property. This would include disclosure of the relevant HDB and CPF documents, and receipts for renovations/furniture purchases/other household expenses etc. to each other. There is no point in hiding these documents in any event. The Court will require both parties to disclose these documents as part of the divorce proceedings if the divorce becomes contested.

Both parties should also explore their post-divorce accommodation options individually. This will likely involve a trip to your HDB Branch and/or bank to explore housing and mortgage loan options. Depending on the prevailing HDB, CPF and mortgage loan regulations and whether the Minimum Occupation Period has been satisfied for your matrimonial home, you may be able to retain the matrimonial home or sell it on the open market. If you are unable to meet the necessary requirements, your matrimonial home may need to be surrendered to the HDB with payment of penalties. In the event that either party is able to retain the matrimonial home, both parties may agree on the amount of CPF refunds to be made to the other party’s CPF account (including a partial or no refund of CPF monies used for the purchase of the matrimonial flat or accrued interest). If the decision is made to sell the matrimonial home on the open market, you may wish to decide on the sale price and conditions.

All these options may also have an implication on whether you choose to file for divorce immediately, or sign a Deed of Separation to file the divorce at a later date (e.g. after the Minimum Occupation Period is satisfied and the matrimonial home may then be sold on the open market).

Matrimonial assets also include bank account monies in joint and solely-owned bank accounts, CPF monies, insurance policies, shares etc. acquired or earned during the marriage.

If your partner does not make full financial disclosure of all of the matrimonial assets, it would be unwise for you to agree to any division of matrimonial assets and the divorce should be filed on a contested basis. It may be disadvantageous to you to take the “easy way out” by agreeing to a Simplified Uncontested Divorce in such circumstances.

3. CHILDREN
As children will undoubtedly be affected by the breakdown of the marriage, it is important for parties to fully discuss the custody, care and control and access terms in great detail.

Given that the prevailing HDB regulations require the party seeking to retain the matrimonial home to also have care & control of their children so that he/she can form a family nucleus, many parties fight over care & control of their children without having regard for the arrangements that would be in their children’s best interests.

If your partner suggests that he/she retains care & control of the children “in name” to satisfy HDB regulations while the children actually live with you, it would be unwise for you to agree to such an arrangement as this would not be in your children’s long-term best interests and may be grounds for a variation of the Court Order in future. Similarly, if your partner suggests that you agree to split care & control of the children (i.e. one child lives with you and the other child lives with him/her) in order to satisfy HDB regulations, it would be unwise for you to agree as this would not be in the children’s best interests. You may have no choice but to file the divorce on a contested basis in such an event.

To avoid future conflict, access arrangements should also be discussed in great detail (i.e. weekdays, weekends, school holidays, public holidays, birthdays, electronic, overseas trips, pick-up and return). Parties should also discuss their co-parenting strategies – for example, both parties should agree not to make negative remarks about the other parent in front of their children.

4. UNREPRESENTED DEFENDANTS
While parties often opt for the Simplified Uncontested Divorce track because of the substantial costs savings, one critical drawback is the lack of legal advice for the unrepresented Defendant.

Since lawyers can only advise their client who has engaged them (i.e. the Plaintiff), they are unable to advise the Defendant on their rights and obligations under the terms that they have agreed to.

If you are the Defendant in a Simplified Uncontested Divorce, you should always seek independent legal advice before you sign any of the divorce documents. This can be done through a one-time consultation with a separate lawyer. You should not feel pressured to sign any divorce document on the spot, as there may be legal implications that are unknown to you. Feigning ignorance of the law later on will not get you out of a terrible deal that you agreed to.

Conclusion
The Simplified Uncontested Divorce has its benefits but only for parties who enter into an agreement with their spouse voluntarily and fully understand the implications of the terms that they have agreed to. Otherwise, it will most definitely cost more time and money to vary the agreement in the future, and not all agreements can be varied or rectified.

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