Setting aside a Deed of Separation

What is a Deed of Separation (“DOS”)?

Parties can apply for a Deed of Separation which will allow them to live separately from each other before they officially commence divorce proceedings. Through the DOS, parties can provide for matters non-exhaustively laid out below:

• division of matrimonial home;
• division of other matrimonial assets apart from the matrimonial home (e.g. bank account monies, investment portfolio monies, etc)
• custody, care and control (“CCC”) arrangements;
• access arrangement for the parent who does not have CCC arrangement;
• spousal and children maintenance.

A Deed of Separation is a contractual agreement between both parties and serves as a tool to help parties regulate their marital lives. The Deed of Separation indicates parties’ intentions to live separate lives as separate individuals with effect from the stipulated date. While a DOS can be tendered to court to illustrate the parties’ intentions, this document will not be granted the seal of the court. Hence, the court is not bound by the Deed of Separation and has the power and discretion to ascertain whether the terms agreed are fair and reasonable, this is especially so for matters concerning children to the marriage.

How do I set aside a DOS?

Deed of Separation may be set aside if the party satisfy the court that vitiating factors are present to render the Deed unfair or unequitable such that there are good and substantial grounds for concluding that upholding the Deed will lead to injustice.

In the case of Wong Kien Keong v Khoo Hoon Eng, some factors the court will consider are:

• whether parties were coerced into signing the Deed of Separation;
• whether parties appreciated the legal significance of the Deed of Separation;
• whether parties engaged lawyers to represent them;
• whether one party had unfair bargaining power which led to the lack of opportunities to negotiate and/or alter the agreement; or
• whether one party was mentally vulnerable or in a depressive state such that he/she was unable to function normally when signing the Deed of Separation.

Alternatives beside setting aside the DOS?

On the other hand, even while the Deed of Separation may not be set aside, it is possible to argue for a departure from some provisions of the deed or claim that less weight should be placed on certain clauses stated within deed.

Inadequate provisions

In AUA v ATZ, parties contracted for the husband to pay $1,500 - $2,000 for the child’s maintenance. However, the court took into account the respective income and earning capacities of the wife and the husband and found the husband to be a man of substantial means. On the other hand, the Wife was not well off and had to shoulder the responsibility of being the child’s primary caregiver. The court held that the provision in the Deed of Separation would leave the child with inadequate support, and did not respect the principle of common and differentiated parental responsibilities buttressed in s 68 of the Charter.

Hence, the court did not uphold the quantum of child maintenance provided in the Deed of Separation and ordered the Husband to pay $3,475 per month to include half the rent payable for the premises which the Wife and child were staying in.

Party’s lack of full and frank disclosure

In AFS v AFU, the husband and wife had entered into a Deed of Separation which provided a clause stating that each party shall retain their own assets in their respective own names. However, the court did not uphold this clause because it will cause substantial unfairness to the wife.

The court found that the husband did not comply with his duty of full and frank disclosure to the court. Even though the husband knew or ought to have known that he will be acquiring shares worth $12 million and cash worth $985,000, he chose to withhold the information. These shares and the cash were found to be matrimonial assets which the wife would have had a share of had they been disclosed under the DOS. Hence, the court awarded the wife a 25% share of the shares and the cash, on top of what she would receive under the Deed of Separation.

Hence, the court can depart from certain provisions in the DOS if parties did not comply with their duty of full and frank disclosure.

DOS is silent on certain matters

In the case of ANX v ANY, parties only provided for the division of matrimonial home but the Deed of Separation was silent on other matters such as division of matrimonial assets. Hence, the court upheld the Deed on the basis of the matrimonial home. The court then exercised their discretion and awarded the wife 8% of the parties’ matrimonial assets such as joint bank account. The court was guided by the principles laid out in section 112 of the Women’s Charter (Cap 353) when doing so. Therefore, in cases where the DOS is silent, the court has power to order otherwise.

In the event that you need clarifications on your Deed of Separation, or if you wish to ascertain whether or not to enter into a Deed of Separation with your spouse, you may contact our divorce lawyers for a consultation on your rights and obligations in order to safeguard your interest.