How Adultery and Desertion Impact Divorce Outcomes in Singapore

In Singapore, divorce proceedings are governed by the Women’s Charter 1961, which provides the legal framework within which marriages may be dissolved. A divorce can only be granted upon proof that the marriage has irretrievably broken down. To establish this, the applicant must rely on one or more of the six statutory grounds. Amongst these, adultery and desertion are two recognised grounds that can be used to substantiate the breakdown of a marital relationship. Whilst both are fault-based grounds, the consequences they carry within divorce proceedings are multifaceted and often nuanced. Both grounds affect not only the grant of divorce, but also ancillary matters such as asset division, maintenance and the custody of children.

Adultery and Desertion as grounds for divorce

The Court must be satisfied that a marriage has irretrievably broken down before a divorce may be granted. This breakdown must be demonstrated through one or more factual scenarios: adultery, unreasonable behaviour, desertion for a continuous period of at least two years, separation with consent for at least three years, or separation without consent for at least four years. As of July 2024, the law also permits divorce by mutual agreement, offering couples a no-fault option.

Adultery refers to voluntary sexual intercourse between a married person and someone who is not their spouse. To use adultery as a ground for divorce, the applicant must not only prove that the spouse has committed adultery, but also that the applicant finds it intolerable to continue living with the adulterous partner. The applicant must not have continued cohabiting with the offending spouse for more than six months after discovering the act, or else the Court may infer that the conduct was condoned.

Desertion, on the other hand, refers to a scenario where one spouse abandons the other without justification or consent for a continuous period of at least two years immediately preceding the filing of the divorce petition. Unlike separation, desertion entails a unilateral withdrawal from cohabitation and the marital relationship. It requires both physical absence and an intention to permanently abandon the marriage. The deserted spouse must not have agreed to the separation.

While both adultery and desertion constitute fault-based grounds, their practical impact on the divorce proceedings goes beyond simply establishing legal entitlement to divorce.

Impact on Divorce Proceedings

Evidentiary Requirements

The use of adultery as a ground for divorce tends to entail a heavier evidentiary burden. Adultery, by its very nature, often takes place in secrecy, making direct evidence difficult to obtain. In practice, circumstantial evidence such as private investigator reports, suggestive communications, or even a confession may be used. Where evidence is inconclusive or weak, applicants may opt instead to rely on unreasonable behaviour, which encompasses a broader and more easily demonstrable range of misconduct.

Desertion, conversely, is typically easier to prove. If one spouse has left the matrimonial home without consent and has maintained that separation for the statutory period, the Court may be satisfied that desertion has occurred. However, the deserted spouse must also demonstrate that the desertion was intentional and continuous. Short returns home or temporary reconciliations may disrupt the required continuity unless they are brief and inconsequential.

Influence on Ancillary Matters

Beyond establishing the basis for divorce, adultery and desertion may influence the Court’s decision on ancillary matters. These include the division of matrimonial assets, the awarding of spousal and child maintenance, and arrangements for the custody and care of children. While Courts aim to achieve fairness and equity in these areas, the conduct of the parties may occasionally factor into the outcome.

Division of Matrimonial Assets

Under Section 112 of the Women’s Charter, the Court exercises wide discretion in dividing matrimonial assets in a manner that is just and equitable. The primary considerations include each party’s direct and indirect contributions to the acquisition, maintenance, or improvement of assets, the needs of the children and any agreements made between the parties.

Adultery and desertion do not automatically affect the division of assets. The Courts generally do not punish misconduct by allocating a smaller share of the assets to the offending party. However, where such conduct has had a tangible impact, such as through the dissipation of assets, financial irresponsibility, or a significant imbalance in domestic contributions, the Court may take it into account. For example, if an adulterous spouse has channelled family resources into supporting a third party, this may be treated as wasteful dissipation, warranting an adjustment of the division. Similarly, if a spouse has deserted the family and failed to contribute financially or domestically, the Court may find that the other party’s contributions should be weighted more heavily.

Nevertheless, such adjustments are not punitive in nature; they are designed to reflect fairness in light of the overall circumstances. Misconduct alone, unless it results in quantifiable financial consequences or impacts the welfare of the family, is unlikely to substantially alter the division of assets.

Spousal Maintenance

Spousal maintenance is awarded to ensure that a financially dependent spouse is not left destitute following the breakdown of the marriage. The Court considers various factors, including the length of the marriage, the standard of living enjoyed during the marriage, each party’s financial means and needs, and the roles assumed during the marriage.

While adultery and desertion do not disqualify a party from receiving maintenance, they may be relevant when the conduct has had a direct effect on the financial circumstances of the other spouse. For instance, a spouse who has been deserted and left to shoulder the financial burden alone may have a stronger claim to maintenance. Similarly, an adulterous spouse who has otherwise contributed minimally to the marriage may find it more difficult to justify a high maintenance claim.

That said, the primary consideration remains financial need and capacity to pay. The Court’s approach is pragmatic and avoids moral judgments unless the misconduct has had a direct and measurable impact on one party’s financial well-being.

Child Custody and Access

In all matters relating to children, the paramount consideration for the Court is the welfare of the child. Custody, care, control and access are determined based on which arrangement best serves the child’s emotional, physical and developmental needs.

Adultery and desertion may become relevant if they affect the child’s welfare. For example, if an adulterous parent has neglected the child in favour of a third party or has exposed the child to inappropriate situations, the Court may view such conduct unfavourably. Likewise, a parent who has deserted the family and failed to maintain a relationship with the child may be perceived as lacking commitment or parental responsibility.

However, the Courts do not automatically deprive an adulterous or deserting parent of custody or access rights. Unless the misconduct has demonstrably harmed the child or compromised the parent’s ability to care responsibly, such behaviour is unlikely to be decisive. The Court may still grant access or even shared care and control, provided that it aligns with the child’s best interests.

Strategic Considerations in Relying on Adultery or Desertion

Parties contemplating divorce on the basis of adultery or desertion should weigh the legal and practical implications carefully. Fault-based grounds, particularly adultery, can be emotionally charged and may prolong litigation. The evidentiary burden may necessitate private investigations or invasive disclosure, leading to heightened conflict. Desertion, although less emotionally volatile, requires a waiting period of two years, which may not be suitable for spouses seeking more immediate relief.

In conclusion, adultery and desertion are fault-based grounds that can substantiate the irretrievable breakdown of a marriage under Singapore law. While they form the legal basis for divorce, their influence on ancillary matters is contingent upon the factual context and demonstrable impact of the misconduct.