Everything you need to know about adultery in divorce

Adultery in a marriage can be devastating. If you have discovered that your partner has been cheating on you, you may feel betrayed, powerless, or alone.

You may choose to work things out, or you might seek a divorce. Either way, the situation is complicated and your decision will be a personal one. What are your options? Is the act of adultery grounds for divorce? How will it affect the divorce?

To find the answers to these questions and more, we consulted the team of divorce lawyers at PKWA Law. With their extensive experience with clients who have gone through this difficult situation, they gave us advice on your divorce rights and options.

Above all, remember that you are not alone. There are those who will support you, help you fight for your rights, and find what's right for you in this trying time.

IN THE EYES OF THE LAW, WHAT IS ADULTERY?

Before anything else, we need to know what exactly counts as adultery.

According to Singapore law, adultery is very specific and defined: adultery is committed when a person voluntarily engages in sexual intercourse with a person of the opposite sex, other than his/her spouse.

While emotional adultery can be just as destructive to your marriage, it doesn't fall under the legal definition of adultery.

DOES KISSING AND FLIRTING COUNT AS ADULTERY?

No, these acts of infidelity, though serious, aren't considered as adultery.

Adultery under Singapore divorce refers to full sexual intercourse between your spouse and a member of the opposite sex. All other kinds of sexual activity falling short of sex - while damaging to your marriage - do not constitute as adultery.

ALSO READ: Saying no to adultery website

IS ADULTERY A GROUND FOR DIVORCE?

Adultery is one of five grounds for divorce in Singapore. Essentially, you must prove that your marriage has irretrievably broken down. To prove this, you can use one of five facts:

1. Adultery
2. 3 years of separation with consent
3. 4 years of separation
4. Unreasonable behaviour
5. Desertion

WHAT DO I HAVE TO DO TO PROVE ADULTERY?

During divorce proceedings, the courts will study the facts presented to them. That's why if you choose to pursue adultery as grounds for divorce, you will have to prove that adultery, in fact, occurred.

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Also, if your partner (the Defendant in this case) denies committing adultery, the courts will require you (the Plaintiff) to provide evidence that adultery has taken place.

Such proof includes evidence of the act of adultery itself or the birth of a love child. As you can imagine, it can be difficult to secure such evidence. The services of a private investigator can be engaged, but this can be costly.

If there is no direct evidence, you can also rely on text messages, email exchanges, travel records or credit card bills to prove that your partner was inclined to commit adultery, and that there was an opportunity to do so.

WHAT CAN I DO IF I CANNOT PROVE ADULTERY?

If your spouse's acts don't fall under the legal definition of adultery, or if you are unable to find evidence of adultery, you may still file for divorce under unreasonable behaviour.

In fact, in 2018, 59.5 per cent of divorces filed by women under the Women's Charter were for "unreasonable behaviour", according to the Singapore Department of Statistics.

The term "unreasonable behaviour" is very broad. In the context of a situation where you suspect that your spouse has an affair but you don't have proof, you can rely on the alternative ground of "unreasonable behaviour" if your spouse had behaved intimately or inappropriately with another person, and you cannot reasonably be expected with him/her.

IS THERE A TIME LIMIT AFTER ADULTERY WAS COMMITTED?

You need to file for divorce within six months upon knowing of your partner's adultery. If you've lived with your partner for more than six months after you learned of the adultery, then you will not be able to use adultery as a basis for divorce.

It's advisable to file for divorce as soon as possible - once you are certain your partner has committed adultery, and you are sure you would like to commence divorce proceedings.

IF I HAVE FORGIVEN MY SPOUSE IN THE PAST, CAN I STILL GET A DIVORCE BASED ON ADULTERY?

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It's not uncommon for wives to forgive the spouse who has strayed. People stay together for many reasons.

Sometimes, they recognise that the adultery isn't a cause but rather an effect of other problems in the marriage. Other times, couples stay together because of the children.

Whatever the reasons, if you live with your spouse as a couple for a period of more than six months after you find out about the adultery, you will not be able to use it as grounds for your divorce.

DOES ADULTERY AFFECT MY CLAIMS FOR ASSETS AND CHILDREN IN DIVORCE?

No. There is a misconception that the innocent spouse will have the upper hand when it comes to division of matrimonial assets, maintenance and child custody issues. This is not the case at all.

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Adultery is relevant in proving that you are entitled to a divorce. However, adultery does not come into play when the court is deciding on issues of asset division, finances and child custody.

It's important to note that the courts still take into account the unique circumstances of each case.

For example, if the Defendant (your partner) leads a promiscuous lifestyle and has many sexual partners, the courts will take this into consideration. In such cases, it's likely that the courts will deem that it would not be in the best interest of the children if custody were given to the Defendant.

This decision is entirely up to the discretion of the courts. In general, adultery is not a consideration for claims in assets or custody of the children.

DO I NEED TO NAME THE PERSON WHOM MY SPOUSE COMMITTED ADULTERY WITH?

You may elect to name the third party as a co-defendant in the divorce proceedings. However it is important to note that naming and "shaming" the other person has minimal impact on the outcome of the case and it is not necessary to do so.

ABOUT PKWA LAW PRACTICE

PKWA Law is one of Singapore's largest family law firms, specialising in divorce law, family law, wills and probate.

PKWA Law's family lawyers are consistently recognised as among the leading family lawyers in Singapore by respected legal publications such as Asian Legal Business, Benchmark Litigation and Doyle's Guide to Singapore Family Lawyers.

Conveniently located at HDB Hub, PKWA Family Law charges affordable fixed fees that are catered for the average Singaporean.

PKWA Law's family lawyers practise only family law. Their specialisation in family law means that they are vastly experienced, and you can be sure that your case will be handled skilfully and professionally.

PKWA Law's contact details:

Address: 480 Lorong 6 Toa Payoh #16-01 HDB Hub East Wing, 310480

Tel: 6854-5336

Website: www.pkwalaw.com

Blog: www.sgdivorcelawyer.sg

This article was first published in theAsianparent.