Getting into another relationship while going through divorce: Is that cheating?

A question sparked by recent events.

Alfie Kwa | November 04, 2021, 10:09 AM

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Over the past weeks, I, like many other nosy Singaporeans, could not tear myself away from the Night Owl Cinematics (NOC) saga.

In spite of the multiple allegations that were thrown around on Instagram, TikTok, YouTube, and — curiously — Blogspot, one caught my eye: Sylvia Chan allegedly cheated on her then-husband Ryan Tan when they were going through their divorce.

In case you’re unfamiliar with these names, Chan and Tan are the formerly-married co-founders of NOC. In May 2020, the couple announced their divorce — and a seemingly amicable one at that — to the public.

But more than a year later, it seems like it wasn't so. What started out as an anonymous exposé about Chan ballooned into a sordid saga involving allegations of workplace mistreatment, relationship issues, and infidelity.

In a tell-all interview with local influencer Xiaxue, Chan admitted that she performed oral sex on another man when she and Tan were waiting for their divorce to be finalised.

Which had me thinking: Is it cheating if you have a romantic or sexual relationship with another person amid a divorce?”

What is the legal significance of cheating in a marriage?

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In Singapore, couples who agree to a divorce must prove to the Court that they have either been separated for at least three years, or that one of the parties has a fault, such as desertion for at least two years, unreasonable behaviour, or adultery.

To use adultery as a ground for divorce, a party must have evidence that their partner had sexual intercourse with a third party.

However as pointed out by Ivan Cheong, a Family Law specialist with Withers KhattarWong, cheating does not only entail physical intimacy.

"Flirtatious conduct like hugging, kissing or sending inappropriate texts would generally be constituted as ‘improper association’ with a third party."

Such actions can be seen as unreasonable behaviour, another cause for divorce.

Divorce proceedings can take quite a bit of time to finalise — anywhere from four to 18 months — and understandably, some might find it a tad long to go without some action. So, will a spouse's decision to have an affair during this period affect divorce proceedings?

Q: Does being physically intimate with a third party change the course of a divorce?

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According to Cheong, the party who files for divorce can amend the divorce pleadings to make reference to new facts of infidelity that may be unearthed during divorce proceedings.

"Often, it is not required as there would be sufficient particulars of the other party’s unreasonable behaviour," said Cheong.

"Finding out about a spouse's affair after filing for divorce doesn’t mean the process will be easier or that a party must amend the pleadings that have already been filed."

Would these new facts have an impact on issues like division of matrimonial assets or custody of children?

Well, yes and no, according to Cheong who pointed out that a "horrible spouse may not necessarily be a bad parent"

"It is only if the cheating or affair impacts the spouse’s ability to, say, care for the children or has affected his or her contributions to the family that this would be considered by the court when it decides on the ancillary issues like financials and parenting orders."

For instance, a spouse may bring their lover back to the family house and behave inappropriately in front of the children.

Cheong added that if a spouse decides to bring up their partner’s affair in the middle of a divorce, they should first consult their family lawyer on their case and options they have.

But in the end, it is up to the person who had been cheated on to disclose to their lawyers that their partner had cheated.

Which led me to my next question: Does cheating amid a divorce happen often?

Marriage counsellors’ on cheating cases

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To get my answers, I spoke to two marriage counsellors, and found that cheating amid a divorce isn’t actually uncommon but it is discouraged.

Q: How do people usually react to news that their spouse cheated?

“Intense feelings of betrayal, shock, anger, and hurt,” said Kenny Chen, a professional counsellor at the Singapore Counselling Centre.

It is also common for the spouse who was cheated on to struggle with self-esteem, as they grapple with the reasons why their partner decided to cheat.

Thus, Chen discourages couples from entering a new relationship, even amid their divorce.

Q: Do the couples whom you've seen consider having an intimate relation amid a divorce cheating?

“Most often, yes, and they are not wrong in thinking that way," said Chen.

"Legally, any act of disloyalty is considered infidelity, for as long as the marital relationship has not legally been nullified.”

However, Chen said that there are scenarios where couples agree to enter new relationships during the separation period.

This, he added, is a "grey area" and in such cases, couples seldom accuse each other of infidelity because of expectations that have already been laid out beforehand.

In any case, married couples are "generally discouraged" to enter new relationships with another person as long as the divorce is not official, said Chen.

This is due to the potential implications that the affair can have on their spouse’s emotional well-being. If there are children in the picture, elements such as role modelling and custody considerations also come into play.

Sam Roberts, a marriage counsellor at Olive Branch Counselling Services, said that the depth of the breakdown of the marriage is an important factor to consider.

"If the relationship was very abusive and the person wants to get out of the marriage, feeling hatred and disgust in the previous relationship, then they usually don’t care what the former partner does."

Both counsellors agreed that being intimate with a third party amid divorce would be an issue if it affects their spouse's emotional well-being. This might be the case in an uncontested divorce where one party wants to get out of the marriage while the other wants to keep it.

More thoughts on the matter

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Did I get all the answers I needed? I would say not yet.

I approached my colleagues, those who are either in a relationship or married, to pose this “very difficult question” – as one of them described.

While their overall consensus was having a relationship while going through a divorce is not considered cheating, each colleague had a different reason for their response.

    Y, 23: Going through a divorce would indicate that the relationship has already broken down. 

    "The fact that a couple is even going through with divorce proceedings should already indicate that the relationship has broken down and that the couple no longer wishes to be with each other.

    So if this has been expressed by both parties, I don’t think it’s cheating if you get involved with someone else while going through a divorce.

    Nonetheless, boundaries and expectations when moving on to a new relationship amid a divorce should be discussed beforehand."

    Q, 38: It's fine as long as they are legally separated and have no intention of working on the relationship. 

    "If the couple is legally separated, it's fine to start a new relationship with someone else. I think the separation can help couples accept the idea that they are not in a relationship any more.

    If both have no intention to work on the relationship, there's no cheating here even though you are not officially divorced."

    N, 29: A decision for a divorce doesn’t happen overnight. 

    "Divorce doesn't happen overnight. It would be strange to have one set of standards for a couple that is in the midst of finalising their divorce, and then change the standards right away on the day that they get the divorce legally recognised.

    Comparing this to cheating on someone before marriage — it's still cheating even though the couple is not married. If they have an agreement to be exclusive, the lack of formalities does not excuse infidelity.

    So in my view, an extra-marital relationship should not be considered cheating just because the divorce has yet to be legally formalised.

    Of course, whether such relationships are advisable is a totally different question.

    And it would really depend on the context of the situation. Sometimes, divorce proceedings can be intentionally delayed or dragged out by either party or even both parties. In such a case, how long do you expect people to wait before they can move on with their lives?

    I'm sure there would be many situations where it wouldn’t seem fair if someone was kept from getting into a new relationship while their soon-to-be-divorced spouse makes things difficult by causing delays."

    My conclusion

    After speaking to a divorce lawyer, marriage counsellors, and some colleagues on the topic, I can firmly say that my view on the question remains — that seeking a relationship outside when you're in the middle of a divorce isn't cheating.

    However, pondering over the responses I've received, I realised that there are nuances that should be considered.

    If there is a chance that I might hurt my partner by moving on to a new relationship, I would want to avoid moving forward until the divorce is finalised.

    Or, I’d start a conversation with my soon-to-be ex-husband about it first before moving on to another relationship.

    Either way, I hope I won’t need to take advice from my own article any time in the future.

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