For Divorce Petitions filed before 14 April 2003, the Women's Charter (Matrimonial Proceedings) Rules 1998 apply. All documents are to be stamped and filed at the Family Court Registry.
Procedure
Divorce is a two-stage process. In the first stage, the court will deal with the question of the divorce itself, i.e. whether the marriage should be dissolved (i.e. discontinued). In the second stage, the court will deal with the "ancillary matters", i.e. the children, the matrimonial assets (for example, the HDB flat), and maintenance for the wife and children.
The steps in a matrimonial proceeding are as follows:
(* denotes a court session where the attendance of parties and/or their lawyers in court is required.)
First Stage
Step 1: Filing of Divorce Petition
To commence a divorce proceeding, the Petitioner (i.e. the applicant) must stamp and file the following documents at the Family Court Registry:
(1)
Divorce Petition : the divorce Petition must state which of the 5 facts (i.e. adultery, unreasonable conduct, desertion or separation) the divorce is based on, with sufficient information given, as well as the prayers (i.e. applications) on the ancillary matters;
(2)
Certificate with Regard to Reconciliation ;
(3)
Notice of Proceedings to the Respondent (the spouse who is being sued for divorce) or Notice to a Person Entitled to Intervene to the Co-Respondent (the person with whom the Respondent is committing adultery or having an improper association);
(4)
Acknowledgment of Service ;
(5)
Memorandum of Appearance ;
(6)
where the divorce is based on 3 years' separation with consent, the Respondent's consent to the divorce;
(7)
where there are minor children, an Agreed Parenting Plan or Proposed Parenting Plan ; and
(8)
where there is an HDB flat for division, an Agreed Matrimonial Property Plan or Proposed Matrimonial Property Plan , with the requisite replies from HDB and CPFB to the HDB standard queries and CPFB Standard Queries .
If you need assistance in drafting or preparing the divorce papers, it is advisable for you to seek legal advice.
The Petitioner must serve the divorce papers on the Respondent and the Co-Respondent (where applicable). This is to give the Respondent and Co-Respondent notice that a suit has been started against them. Service may be effected by:
(1)
personal service: an authorised person (usually the clerk of a law firm) must hand the divorce papers to the Respondent or Co-Respondent personally; or
(2)
service by registered post: the divorce papers maybe sent to the Respondent's or Co-Respondent's address by registered post but he/she must sign and return the Acknowledgment of Service to you for service to be valid.
A divorce Petition can also be served on a Respondent who is residing outside Singapore, without getting the prior approval of the court, by using one of the above means.
If the above service fails, the Petitioner may apply, by filing a Summons-in-Chambers, for:
(1)
substituted service, that is, ask the court to approve an alternative mode of service, e.g. by pasting the divorce papers on the front door of the place where the Respondent normally resides, or by placing an advertisement of the divorce in the newspapers (if the country in which the Respondent resides is known); or
(2)
dispensation of service, that is, ask the court to approve that the divorce papers need not be served. However, the court will only grant this if reasonable efforts have been made to locate the Respondent and even the country in which the Respondent can be found cannot be ascertained.
A divorce Petition can also be served on a Respondent who is residing outside Singapore, without getting the prior approval of the court.
If a Respondent or Co-Respondent wishes to be heard by the court, he must complete 2 copies of the Memorandum of Appearance within 8 days from the date of service of the divorce papers. The memorandum must state whether the Respondent is defending (i.e contesting) the Petition or contesting only the ancillary matters. The completed Memorandum of Appearance must then be stamped and filed in court. Even if the Respondent or Co-Respondent is of the view that the Family Court of Singapore has no jurisdiction to hear the case, he should still file the memorandum under protest, (that is by stating the reasons why he objects to the Family Court hearing the case.
If the Respondent or Co-Respondent fails to file the Memorandum of Appearance within the prescribed time, the Petitioner may file a document called "Praecipe" to search the court records and upon confirmation that no appearance has been entered, file an "affidavit of service" and "Certificate of Non-appearance" . With this certificate, the Petitioner may proceed to set down the case for hearing (i.e go straight to Step 7).
Respondents and Co-Respondents should therefore note that if they simply ignore the divorce papers and fail to file the necessary papers, the court may proceed to hear the case and grant the divorce Petition.
Step 4: Filing of Answer and/or Cross Petition & Related Documents
If a Respondent wishes to defend (i.e. contest) the Petition, he must stamp and file an 'Answer' within 22 days from the date of service of the divorce papers on him. The answer must address all the allegations in the Petition and set out the facts that the Respondent is relying on to contest the Petition. The answer must also be served on the Petitioner's counsel (or the Petitioner if he does not have a lawyer).
If the Respondent also wants to get divorced, but disagrees with the grounds set out in the Petition, then, in addition to an Answer, he may file an 'Answer and Cross Petition' by setting out which of the 5 facts he is relying on to get a divorce and the facts in support. If the cross-Petition is filed based on the Petitioner's adultery and the third party is known, the Respondent must name and serve the cross Petition on the Third Party (known as the 'Party Cited') personally.
If the Respondent wishes to contest the ancillary matters only, and not the divorce Petition, he need not file an Answer.
The Respondent should note that if he fails to file the Answer within the prescribed time, the Petitioner may proceed to set down the Petition for hearing and the court may grant the divorce Petition without hearing the Respondent (i.e. go straight to Step 7).
If a Co-Respondent wishes to contest the Petition, he need not file an answer provided his Memorandum of Appearance indicates that he denies the charge of adultery but is not defending the Petition on any other ground.
The Respondent should also note that at the same time as filing his Answer, he should also file an 'Affidavit of Means and Assets', that is, a statement that sets out his income and property, that is affirmed/sworn before a Commissioner for Oaths. In practice, the court will still hear the Respondent's objections to the divorce even if he fails to file this document.
Step 5: Filing of Reply and/or Answer to Cross Petition
The Petitioner may file and serve on the Respondent a 'Reply', within 14 days of the receipt of the Answer. He may also file a 'Reply and Answer to Cross-Petition' if the Respondent has filed an Answer & Cross Petition.
The Petitioner may also file an Affidavit of Means and Assets in reply to the Respondent's Affidavit of Means and Assets (if one has been filed).
The court will call parties to attend a 'Status Conference' if a Petition is not set down for hearing promptly. The objective of the status conference is to enable the court to monitor the case to ensure that there is no delay in completing the case. No status conference will be held if the Petition has already been set down. If the Petitioner has set down the case after the status conference was fixed by the court, the Petitioner may request that the status conference be vacated.
If a Petitioner fails to attend a status conference, the Deputy Registrar may make such orders as he or she considers appropriate, including striking out the Petition (i.e. dismissing the case without a full hearing).
At the status conference, in appropriate cases, the Deputy Registrar may also refer parties for mediation and counselling to assist them to resolve their dispute early.
The Petitioner must set down the divorce case for hearing after the time has expired for the Respondent to file a Memorandum of Appearance, or if a memorandum has been filed, the time has expired to file an answer or reply, as the case maybe. If the matter is not set down promptly, the court will call parties to attend a status conference (see Step 6) to give directions to expedite the matter.
To set down the case, the Petitioner has to stamp and file the Notice of Setting Down Action and the Request for Setting Down Action for Hearing. At same time, a 'Bundle of Pleadings' which contains the following documents is required to be filed:
(i)
Petition;
(ii)
the agreed or proposed parenting plan;
(iii)
the agreed or proposed matrimonial property plan(s);
(iv)
Memorandum of Appearance or certificate of non-appearance;
(v)
answer/cross Petition (if any);
(vi)
reply/answer to cross Petition (if any);
(vii)
any other pleadings filed with the leave of the court; and
(viii)
further and better particulars (these are additional documents filed to give more facts in support of the divorce Petition or other pleadings).
Once the case is set down, the court will stream the case into different tracks in accordance with whether an Answer and/or Cross-Petition has been filed:
(1)
If the case is not contested (i.e. no answer was filed), the registry will fix a hearing date for the Petition on the uncontested list (known as "Uncontested Divorce Hearing) (go to Step 11). The hearing date will be fixed after 10 days from the date of setting down. If an earlier date is required, the consent of all other parties has to be obtained or the leave of the Judge has to be obtained; or
(2)
If the case is contested (i.e. an answer is filed or the Co-Respondent's memorandum indicates he is contesting the divorce), the registry will fix the case for a pre-trial conference (go to Step 8).
The court will call parties to attend a PTC if the divorce Petition is contested. PTCs are conducted by Deputy Registrars for the following purposes:
(i)
to ascertain which issue is in dispute and to consider the possibility of settlement and for this purpose, to refer parties for mediation or counselling; and
(ii)
to give orders on evidence and the preparation of the case to ensure an early and smooth trial.
Mediation and counselling are processes to assist family members to resolve (i.e. settle) or narrow (i.e. reduce) their family disputes. In both processes, a neutral person will first help parties to explore all the options that are available to the parties to solve their problems, and then craft a solution that meets the interest and needs of the parties and their children. The goal of mediation and counselling is therefore to seek a result that both parties can accept, that is, a win-win solution.
Mediation and counselling are confidential. In other words, the positions taken by parties or any concessions made by them will not bind them if there is no settlement at the end of the session. The judge hearing the case will also not get to know what was said during mediation or counselling.
Mediation is voluntary in the Family Court in that parties must consent to mediation. Mediation may be conducted by a judge or a volunteer mediator who is a qualified lawyer, counsellor or social worker. Mediation is normally fixed in cases where the dispute is over the ground of the divorce, the division of matrimonial assets or maintenance.
Counselling, on the other hand, is conducted by professional counsellors who have qualifications in social work or psychology. Parties and/or their children may be ordered by the court to attend counselling. Counselling is normally fixed in cases where the dispute is over the possibility of reconciling the marriage and the custody or care of or access to the children.
A joint conference is co-mediation jointly conducted by 2 mediators, a legally trained person (usually a judge) and a counsellor. It is normally fixed in cases which involve issues of a legal nature (such as the ground of the divorce or division of assets) and an emotional nature (such as whether the marriage has broken down irretrievably or matters concerning the children).
Mediation and counselling may address both the divorce issue as well as the ancillary matters. If parties know what to expect in these processes and are adequately prepared for the sessions, they will find that these processes are useful in either settling the case or at the least, in clarifying what the real disputes are. To find out how to prepare for mediation and counselling, refer to the Mediation pamphlet and Counselling pamphlet.
If the divorce Petition is settled through mediation or counselling, the case will be fixed for uncontested divorce hearing (go to Step 11). If the Petition is not settled, the court will give directions (that is, orders) on the further conduct of the case (go to Step 10).
If the divorce Petition cannot be settled, the court will fix another PTC after the mediation and counselling sessions. At the adjourned PTC, the Deputy Registrar will:
(i)
give orders on evidence and the preparation of the case to ensure an early and smooth trial: for example, the parties and their witnesses will be ordered to file affidavits of evidence-in chief (that is, sworn statements on what the parties intend to say in court); and
(ii)
ascertain the number of trial days required and fix the hearing dates.
The matter will then proceed for contested divorce hearing, that is, a trial (go to Step 11).
The divorce Petition may be fixed for hearing on the uncontested list or the contested list.
For uncontested divorce hearing, the hearing will be quite short- usually lasting 5-10 minutes only. The hearing will be in an open court together with many other cases (as many as 30 cases may be heard in one morning or one afternoon). The Petitioner will have to go into the witness box, and confirm certain essential paragraphs in the Petition: the marriage, the particulars of the children, the ground of divorce and the prayers sought. If the Respondent is also proceeding on the Cross-Petition, the Respondent will take the stand after the Petitioner. In either case, the other will be asked whether he has objections to the Petition or Cross-Petition, if he is present in court. If there is no objection and the judge is satisfied that that the marriage has irretrievably broken down, he will grant a "Decree Nisi" to be made absolute in 3 months. The "Decree Nisi" is a provisional order for divorce, which is "made absolute", i.e. confirmed, after 3 months. In practice, if the Respondent has no objection to the divorce Petition, he need not attend the hearing.
Where the ancillary matters have been agreed upon at the divorce hearing, parties may tender a 'Draft Consent Order' which sets out the terms of agreement on the ancillary matters, for the judge's consideration. The judge will record these orders if the terms are in order. The whole divorce case is then concluded (go to step 16). Where the ancillary matters have not been agreed upon, the practice is that the ancillary matters will be adjourned for hearing in chambers (go to step 12).
If the Respondent is absent on the divorce hearing date, the court may still hear the Petition and grant the divorce if it deems fit. A contested divorce hearing is very different from an uncontested divorce hearing in that a trial will be conducted. The parties will each have to give evidence in open court, to prove their respective cases. They will also have to call witnesses to support their case. The parties and their respective witnesses will be "cross-examined". "Cross-examination" is carried out by the other party's lawyer, who will ask questions on what was said in evidence. The respective lawyers will also make "submissions", i.e. present a summary of the case, and make arguments supporting the case, to the judge. The whole process may take anything from one day to several days, depending on the number of witnesses and the complexity of the case. Contested divorces are comparatively much more time-consuming and costly than uncontested divorce hearing. If the court is satisfied, after hearing both parties, that the marriage has irretrievably broken down, he will grant a "Decree Nisi" to be made absolute in 3 months. The "Decree Nisi" is a provisional order for divorce, which is "made absolute", i.e. confirmed, after 3 months.
If the ancillary matters are not settled before the hearing of the divorce Petition, they will normally be adjourned for hearing in chambers. The court will then fix a PTC for the ancillary matters before fixing dates for hearing. PTCs are conducted by a Deputy Registrar and the following matters will be dealt with:
(i)
which of the ancillary matters (custody of children, maintenance for wife or children, division of matrimonial property or recovery of legal costs) are contested;
(ii)
to consider the possibility of settlement and for this purpose, to refer parties for mediation and/or counselling;
(iii)
to give orders on evidence: for example, the court may order parties to disclose their bank accounts or salary statements and any relevant reports on the children etc.; and
(iv)
to consider the need for an investigation into and for a report to be prepared on the welfare of the children and whether to appoint a Court Appointed Counsel to protect the welfare of the children.
Mediation and counselling are processes to assist family members to resolve (i.e. settle) or narrow (i.e. reduce) their family disputes. In both processes, a neutral person will first help parties to explore all the options that are available to the parties to solve their problems, and then craft a solution that meets the interests and needs of the parties and their children. The goal of mediation and counselling is therefore to seek a result that both parties can accept, that is, a win-win solution.
Mediation and counselling are confidential. In other words, the position taken by parties or any concessions made by them will not bind them if there is no settlement at the end of the session. The judge hearing the case will also not get to know what was said during mediation or counselling. However, if children have been ordered to attend counselling in order for a report to be put up, the matters disclosed during counselling will not be confidential. Parties and the children will be informed, before such a counselling session, that confidentiality will not be maintained.
Mediation is voluntary in the Family Court in that parties must consent to mediation. Mediation may be conducted by a judge or a volunteer mediator who is a qualified lawyer, counsellor or social worker. Mediation is normally fixed in cases where the dispute is over the division of matrimonial assets or maintenance.
Counselling, on the other hand, is conducted by professional counsellors who have qualifications in social work or psychology. Parties and/or their children may be ordered to attend counselling. Counselling is normally fixed to conciliate disputes over the custody or care of or access to the children. Counselling may also be ordered for the children for their wishes to be ascertained and for a report to be put up on their welfare.
A joint conference is co-mediation i.e. mediation jointly conducted by 2 mediators (a legally trained person (usually a judge) and a counsellor). It is normally fixed in cases which involve issues of a legal nature (such as the division of assets) an emotional nature (such as the custody of children etc).
If parties know what to expect in these processes and are adequately prepared for the sessions, they will find that these processes are useful in either settling the case or at the least clarifying what the real disputes are. To find out how to prepare for mediation and counselling, refer to the Mediation pamphlet and Counselling pamphlet. It is important for parties to bring along the relevant documents (such as bank statements, salary slips and CPF statements) for mediation.
If the ancillary matters are settled through mediation or counselling, the court will fix a date for Consent Orders to be recorded (go to Step 15). If the ancillary matters are not settled, the court will give directions (i.e. orders) on the further conduct of the case (go to Step 14).
If the ancillary matters cannot be settled, the court will fix another PTC after the mediation and counselling. At the adjourned PTC, the Deputy Registrar will:
(i)
give orders on evidence and the preparation of the case to ensure an early and smooth hearing: for example, the parties will be ordered to file affidavits (that is, sworn statements) for the ancillary matters;
(ii)
order the appropriate person (e.g. a court counsellor, a social worker from MCDS or a psychiatrist from the Child Guidance Clinic or in private practice) to furnish a report on the welfare of the children (if necessary); and
(iii)
ascertain the number of days required and fix the hearing dates.
When all necessary affidavits, documents and reports have been filed, the ancillary matters will then proceed for hearing in chambers (go to Step 15). The ancillary matters may be fixed for hearing on the 'Normal List' or on the 'Special List'. Fixing on the normal list means that the case will be fixed for hearing on the same morning or afternoon as 3-4 other cases, whereas a 'special' fixing means that the case will be fixed for hearing for half a day or more. Parties should therefore assess the complexity of the case and indicate to the court how much time they would require to argue their case.
Consent orders. Where the ancillary matters have been settled, whether or not through mediation or counselling, the parties should tender a Draft Consent Order setting out the agreed terms, which is signed by both parties. If the agreement is in order, the court will grant an order in terms, i.e. approve the Draft Consent Order. Where the agreed terms require clarification, for example, where parties have agreed that not all the children shall be under the custody of the same parents, the court may require affidavits to be filed to justify why the orders should be made.
Contested hearing. Where the ancillary matters have not been settled, the hearing of the ancillary matters is usually conducted in chambers and the facts which parties are seeking to rely on should be adduced by way of affidavits. The leave of the court should be sought if parties wish to cross-examine the deponents. Cross-examination is not normally allowed.
Before making the application for the decree nisi to be made absolute, parties must meet the following conditions:
(i)
the time period prescribed for making the decree absolute has expired (usually 3 months from the date of the decree nisi (see Step 11)); the court's approval must be sought if parties desire to make the application earlier;
(ii)
if more than one year has passed from the date of the decree nisi, an affidavit (sworn statement) must be filed to explain the delay and the court's approval must be obtained to apply for the decree absolute;
(iii)
the ancillary matters, in particular, the custody, care and control of the children, have been decided by the court, the written court orders have been obtained and the parenting plan (where applicable) has been filed; and
(iv)
there is no appeal against the decree nisi; and
(v)
no person has filed an appearance (a notice) to object to the decree being made absolute.
Documents to be filed. The documents to be stamped and filed to make the decree absolute are as follows:
(i)
Notice of Application to Make Decree Nisi Absolute ;
(ii)
Affidavit on search conducted to ascertain if an appeal has been lodged and whether any persons have filed an appearance to object ;
(iii)
a copy of the Decree Nisi ;
(iv)
the Parenting Plan (where applicable) ; and
(v)
2 copies of Certificate of Making Decree Nisi Absolute.
If the above papers are in order, the Certificate of Making Decree Nisi Absolute, duly signed and sealed, will be returned to parties. If the papers are not in order, the application will be rejected, with the reasons stated by the Family Registry. The applicant should rectify the errors and re-file the application.
A person who has been married for less than 3 years will have to seek the leave of the court (i.e. the approval of the court) if he wishes to file a divorce Petition. To apply for the court's approval, he may file an Originating Summons in court accompanied with an affidavit (i.e. a written statement that is sworn or affirmed before a Commissioner for Oaths) that sets out:
(a)
the grounds of the application;
(b)
particulars of hardship or depravity;
(c)
whether an application for the court's approval has been filed in the past;
(d)
whether attempts have been made at reconciliation and if so, the nature of the attempts;
(e)
details of the circumstances that may help the court to decide if there is a possibility of reconciliation; and
(f)
the date of birth of each party.
The originating summons must be served on the other party, who is known as the Respondent, in the same manner as a divorce Petition (see Step 2 above). The court will then fix the application for hearing in chambers before a District Judge. Unlike a divorce Petition, the Respondent need not enter an appearance. He is entitled to be heard as of right.
(ii) Summons-in-Chambers (SIC)
An SIC is an application that is heard in chambers (i.e., it is a private hearing, unlike a trial, which is heard in open court), by either a District Judge or a Deputy Registrar. Parties and their witnesses need not testify in court when SICs are heard as such applications are heard based on affidavits (i.e. a document that sets out the evidence of the parties and that is sworn or affirmed before a Commissioner for Oaths).
SICs can be filed for a range of matters that are related to a suit and can be filed at any point in time during the proceedings or after orders have been made by the court.
Common SICs filed in divorce proceedings include applications for:
substituted service or dispensation of service;
interim custody or access;
interim maintenance;
injunction: an application to freeze assets to prevent disposition;
amendment: an application to correct a court document;
discovery: an application for information such as bank account statements,
striking out: an application to remove a document or a portion of a document from the court's file;
extension of time : an application to be given more time to take a step that is required under the Rules;
approval to file a Decree Nisi Absolute after 1 year from the date of the decree nisi; and
variation of a court order: this application is normally made to change the access orders or the maintenance amount awarded by the Court.
(iii) Appeals
If either party is dissatisfied with a court order, he may file an appeal against the order. In the appeal papers (known as the Notice of Appeal), he must state the date of the order and the name of the District Judge or Deputy Registrar who had made the order, as well as specify which part of the order he is appealing against. If the order in question is made by a Deputy Registrar, the appeal papers must be filed at the Family Court Registry. If the order in question is made by a District Judge, the appeal papers must be filed at the Appeal Section at the Civil Court Registry. You should seek legal advice if you need assistance in drafting the appeal papers.
(iv) Praecipes
A praecipe is a request to the court. Praecipes are commonly filed when a person wishes to search the court's records, to inspect the court's file or to extract a certified true copy of a court document . Praecipes have to be stamped and filed in court.
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