To begin with, Section 4 of the Law Reform (Marriage And Divorce) Act 1976 (hereinafter referred to as “LRA”) provides that a subsisting marriage shall only be dissoluble by the LRA.

There are 3 instances where a marriage could be dissolved:-

(a) by the death of one of the parties; or

(b) by order of a court of competent jurisdiction; or

(c) by a decree of nullity made by a court of competent jurisdiction.

It is pertinent to note that it is only after one’s marriage is dissolved that he or she can remarry. To remarry when the existing marriage is subsisting is an offence in law as provided under Section 494 of the Penal Code. Under this provision, the offender shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine. Further, if the fact (that the offender is married) is concealed from his or her “new spouse”, he or she is further liable under Section 495 of the Penal Code and shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine.

As mentioned above, there are 3 instances of dissolution of a marriage. This article will zoom in on dissolution by order of a court of competent jurisdiction.

Before one can file divorce, the age of marriage is the first thing to look at because the earliest time when one can file divorce is 2 years after the marriage as required under Section 50 of the LRA. However, there is an exception. If it can be proven that the case is one of exceptional circumstances or hardship suffered by the petitioner.

The next question to consider is the types of divorce. There are two types of divorce, by mutual or consent of both parties and without the consent of another party. We normally call it joint divorce petition (“JDP”) or single divorce petition (“SDP”).

The right to file divorce with mutual consent or agreement (ie JDP) falls under Section 52 of the LRA. The Petitioners filling the divorce petition would be both parties, husband and wife. The following must be fulfilled: there is free consent and proper provision or term is made for the wife and the child.

The right to file divorce without consent or agreement from another party (ie SDP) falls under Section 53 of the LRA. It is provided therein that either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down. It must be proven that “the marriage has irretrievably broken down”. In hearing the petition, the court shall inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances make it just and reasonable to do so, make a decree for its dissolution.

Based on Section 52 and Section 53 of the LRA, the main difference is this: reasons of filing divorce need not be disclosed if the divorce is mutually agreed. To the contrary, the reasons leading to the breakdown of marriage have to be sufficiently disclosed and proven if the divorce is not mutually agreed.

Apart from the above, before one files a SDP, there is another additional requirement to be fulfilled. The matrimonial difficulty must be referred to a conciliatory body (Tribunal of Marriage) and that body has certified that it has failed to reconcile the parties. The referral to a government conciliatory body is to allow parties to the marriage to attend to what we normally call “counselling sessions” by the experts. This is a statutory effort to resolve the matrimonial difficulty to the satisfaction of the parties and to persuade them to resume married life together. In reality, when either party approaches the Tribunal, the intention is to fulfill the legal requirement but not to resolve the matrimonial difficulty as he or she would be thinking that the marriage is already beyond repair.

Nevertheless, there are instances where this requirement can be dispensed. For instance, where the petitioner alleges that he or she has been deserted by and does not know the whereabouts of his or her spouse. It is only when the requirement is fulfilled or the exception to the requirement is fulfilled that a SDP can be filed by either party under Section 53 of the LRA. This requirement does not apply to a JDP.

Further, before and when filing a SDP, the Petitioner (the Applicant) must consider whether there are sufficient facts or proofs of breakdown of marriage to satisfy the court that the marriage has irretrievably broken down. How to prove that the marriage has irretrievably broken down? Proof of breakdown is codified under Section 53 of the LRA. In summary, they are adultery, unreasonable behaviors, desertion and separation for a continuous period of 2 years.

Based on the above, the best option to dissolve a marriage is by filing a Joint Divorce Petition. It involves lesser procedures, and can be completed in a shorter time. Most importantly, both parties need not to go into the reasons of breaking up, which could be very unpleasant. But of course, where terms cannot be agreed upon, filing one-sided divorce would be inevitable.

The contents of this article or write-up are for informational purpose only. The information provided does not and is not intended to constitute legal advice. For legal advice, please contact us.