A marriage may be ended either by annulment or divorce. However, each process entails different requirements and legal consequences that you must consider before making your decision. If you are thinking about ending your marriage, consider the following aspects of each process carefully to ensure that the path you choose is most suited to your situation.
Basic definitions and legal implications
A divorce is the end of a valid marriage between you and your spouse. The marriage is regarded as valid but terminated.
After the divorce, you and your spouse will be considered divorcees.
Annulment is a legal procedure which nullifies a marriage entirely. If granted, an annulment declares that the marriage was not valid from the start, and hence, never actually existed.
If granted an annulment, you and your spouse’s marital status both revert back to ‘single’.
Whether your marriage meets the grounds for each process
There are different grounds to establish to consider for either process. You should engage the services of an experienced divorce lawyer to establish your best options. The list below may be helpful in determining which process is more suitable for you.
Grounds for Divorce
To convince the court that your marriage has “broken down irretrievably”, you must prove at least one of the following about your marriage:
- That your spouse has committed adultery;
- That your spouse has exhibited unreasonable behaviour over the course of your marriage such that you cannot reasonably be expected to live with him or her;
- That your spouse has deserted you for a continuous period of at least 2 years,
- That you and your spouse have lived separately for 3 years continuously with consent; or
- That you and your spouse have lived separately for 4 years continuously.
Grounds for Annulment
To have your marriage annulled, it must be deemed void or voidable by the court.
Marriages deemed void are those that fail to meet the formal requirements of a marriage. Your marriage may be void if:
- It is a marriage between Muslims that are registered/solemnised under civil law;
- One party is already married under any law;
- One party is below the age of 18 and has not been granted special authorisation;
- You and your spouse are closely related; or
- Your marriage was not properly solemnised.
Voidable marriages are marriages that may be deemed invalid for various reasons, but which the court allows to continue existing unless either party chooses to prove otherwise.
A marriage is voidable if:
- Your marriage has not been consummated because either party is incapable of doing so;
- Your marriage has not been consummated because of either party’s wilful refusal;
- Your marriage took place without either party’s valid consent, due to one party consenting under duress, mistake or mental disorder; or
- At the time of the marriage, the wife was already pregnant by another man.
In a divorce application, the court is generally willing to grant divorce only if the parties have been married for more than three years. This threshold serves to preserve the institution of marriage and deter couples from abandoning their marriage in its early stages. Divorce in a marriage younger than three years will only be granted in exceptional circumstances.
In contrast, you are to apply for an annulment in the first three years of your marriage. The only exemption to this rule is if you are seeking an annulment of the ground of absence of consummation due to refusal or incapacity, in which case you may apply for an annulment regardless of you long you have been married.
Annulments and divorces can be very complex and confusing legal issues. An experienced divorce lawyer would be able to help to understand the differences and choose the more appropriate path depending on your situation.
Impact on HDB ownership
In a divorce, you and your spouse will be allowed to mutually agree on what should happen to the HDB flat after the divorce. This is, of course, subject to the HDB regulations. However, there are more options available to parties. For example, if mutually agreed, one of you may transfer your interest in the flat to the other to allow him or her to keep the flat.
Alternatively, the property could also be sold on the open market and the sale proceeds divided in specified proportions.
If you and your spouse are unable to agree on what should happen to the flat after your divorce, the court will decide on your behalf when dividing your matrimonial assets.
In an annulment, neither party is allowed to keep the HDB flat. It will have to be surrendered to HDB at the prevailing compensation price.
If you or your spouse have listed your parents in in the application to buy the flat and both you and your spouse are willing to transfer ownership to one of the parties, you may be allowed to retain the flat with your parents. You would need to check with HDB as to the possible options.
Children in an annulled/divorced marriage
Children born of your marriage will not be significantly affected if you choose one process over the other.
Children born of a voidable marriage are recognised as legitimate, and children born of a void marriage will be considered legitimate if both or either partner reasonably believed that the marriage is valid.
The court is also empowered in both divorce and annulment cases to make ancillary orders relating to your children regarding maintenance, custody, access, and care and control.
Contact Family Lawyer
The first step before starting the annulment or divorce process is getting an experienced divorce lawyer. Our experienced family lawyers can represent your interests and walk with you through the divorce or annulment process in Singapore.
If you require legal representation, contact Gloria James-Civetta & Co for a free 30 minute consultation with one of our family lawyers.