Divorce Before 3 Years

A couple needs to be married for at least 3 years before either party can apply for a divorce. However, the Court will allow parties to apply for divorce before 3 years are up in certain circumstances.

What are these circumstances?

Pursuant to the Women’s Charter 1961, no application for divorce shall be filed unless 3 years have passed since the date of the marriage. However, the Court may grant permission to file an application on the basis that either the applicant has suffered exceptional hardship or there is exceptional depravity on the part of the applicant’s partner.

As a safeguard against abuse, should the Court find that the applicant obtained permission to file the application by some misrepresentation or concealment of the nature of the case, the Court can do two things.

First, the Court can order that final judgment for divorce shall not be granted until after the expiration of 3 years from the date of the marriage.

Second, the Court can dismiss proceedings without prejudice to any proceedings brought after the expiration of 3 years after the date of the marriage.

What constitutes exceptional hardship or exceptional depravity?

The terms “exceptional hardship” and “exceptional depravity” are undefined in the Women’s Charter and will be assessed by the Court in the circumstances of each case.

In the case of Ng Kee Shee v Fu Gaofei [2005] 4 SLR(R) 762, the Court stated that the intention of the rule against applying for divorce unless 3 years have passed since the date of the marriage is to promote the sanctity of marriage and ensure that parties do not rush into or out of marriage. Further, that exceptional hardship must be something out of the ordinary and more than what an ordinary person should reasonably be asked to bear.

On the facts of the case, the Court found that the applicant’s wife had no regard for the marriage and had entered into it capriciously. She set the rules of intimacy and made up her mind to leave without even writing a note to the applicant. As such, there was nothing left to reconcile and by finding that the applicant should wait for three years before applying for divorce would be visiting the wrongs of his wife on him.

Other requirements

Apart from satisfying the Court that 3 years have passed since the date of the marriage or that applicant for divorce has suffered exceptional hardship or there is exceptional depravity on the part of the applicant’s partner, the applicant must also satisfy the Court that the marriage has irretrievably broken down.

There are six ways to show that a marriage has irretrievably broken down:

1. The applicant’s partner has committed adultery and the applicant finds it intolerable to live with him or her
2. The applicant’s partner has behaved in a way that the applicant cannot reasonably be expected to live with him or her
3. The applicant’s partner has deserted the applicant for a continuous period of two or more years before the application
4. The applicant and his or her partner have lived apart from a continuous period of 3 years of more before the application and consent to a divorce being granted
5. The applicant and his or her partner have lived apart for a continuous period of 4 or more years before the application
6. Both the applicant and his or her partner agree that the marriage has irretrievably broken down

This means that in applications where 3 years have not yet passed since the date of the marriage, the applicant would not be able to rely on the 4^th and 5^th grounds to show that the marriage has irretrievably broken down.

Alternatives to obtaining a divorce

In the event the applicant is unable to obtain a divorce or does not wish to be divorced due to reasons such as giving the marriage a second chance, there are other ways to provide space between both parties.

Judicial separation – The applicant could satisfy the Court of either of the 6 ways which suggest that the marriage has irretrievably broken down mentioned above, whereupon the Court may grant a judgment of judicial separation. Following this judgment, the applicant would no longer be required to cohabit with his or her partner.

Annulment – The applicant could also satisfy the Court that the marriage was voidable. This means that the marriage can be declared void from the date of the judgment of the Court. There are six ways to show that a marriage is voidable:

1. The marriage was not consummated due to the incapacity of either party
2. The marriage was not consummated due to the applicant’s partner’s wilful refusal to do so
3. Either party to the marriage did not validly consent to it, whether due to duress, mistake, mental disorder or otherwise
4. At the time of the marriage, either party was suffering from a mental disorder of such kind or to such extent as to be unfit for marriage
5. The applicant’s partner was suffering from venereal disease in a communicable form at the time of the marriage
6. The applicant’s partner was pregnant by some other person at the time of the marriage

Significance

The law puts in place safeguards to protect the sanctity of marriage. However, the law also recognises that circumstances exist in which a divorce should be granted before the expiration of 3 years from the date of the marriage or annulled.

This publication is not intended to be, nor should it be taken as, legal advice. It is not a substitute for specific legal advice for specific circumstances. You should not take, nor refrain from taking any action(s) based on this publication. We shall not be responsible for, nor do we accept any responsibility for, any loss or damage that may arise from any reliance on this publication.