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The ‘amicable divorce’ option: Lawyers split over whether it can resolve messy divorces and if it erodes sanctity of marriage

The ‘amicable divorce’ option: Lawyers split over whether it can resolve messy divorces and if it erodes sanctity of marriage

Source: TODAY
Article Date: 05 May 2021
Author: Ng Jun Sen & Nabilah Awang

Several lawyers said that such a move would be limited in scope, since the option applies mainly to the first stage of the divorce proceedings but not the second stage, where matrimonial assets and child custody are decided.

  • The Government is studying an option to allow couples seeking divorce to file for an amicable divorce
  • Legal experts said this would reduce hostility in potentially messy divorce proceedings to some degree
  • The option would make divorces faster, easier and less antagonistic
  • But there is the worry that this could affect the sanctity of marriage and raise divorce rates

In one recent divorce case here, the wife was insistent on including in the divorce papers that she had caught a sexually transmitted disease from her husband, an accusation that happens quite frequently in heated divorce proceedings.

Ms Kulvinder Kaur, a partner at IRB Law, who did not name the couple for privacy reasons, said: “The husband, in turn, was adamant that his papers state that the wife went on to have two children with him, notwithstanding the disease.”

And while the matter was resolved before it went to trial in court, such acrimony in divorce proceedings are tricky to defuse.

Ms Kaur, who specialises in civil and commercial litigation, matrimonial litigation and arbitration, said that lawyers understand it is only natural that their clients are highly emotional because “these are their lives, their children, their assets”.

In a bid to reduce such hostility in divorce proceedings, the Ministry for Social and Family Development said on Sunday (May 2) that it is studying an “amicable divorce” option, which would allow couples to mutually agree to file for a divorce without needing to state the reason why the marriage has failed.

The ministry is seeking views for its consultation paper, which will wrap up on June 3.

Veteran family lawyers interviewed by TODAY all lauded the move as a step towards a form of “therapeutic justice”. 

This form of justice was an endeavour by Singapore’s courts over the past few years, defined by Chief Justice Sundaresh Menon last year as a holistic, restorative and forward-looking method of resolving disputes between family members.

However, its noble intentions aside, there were reservations that such a move, if implemented, would not do much to soften the bruising process of divorce, given the realities of why couples end up in court in the first place.

And some lawyers also pointed to a bigger-picture reason for their worries — that while an “amicable divorce” option would make it cheaper, easier and faster for couples to split apart, this could have implications on the sanctity of marriage.

Family lawyer Tan Hui Qing from TL Yap Law Chambers said: “There’s a tension between making divorce proceedings less adversarial versus being seen as ‘rubber-stamping’ divorce proceedings. It’s something that policymakers will have to consider.”

HOW DIVORCES WORK

Before 2015, divorces happen like this: Spouses seeking divorce file papers to the court and fight it out there or seek resolution through lawyers.

There were two stages to this. 

First, the parties must go through the divorce by proving that there was an “irretrievable breakdown of the marriage” by giving one of several grounds of divorce that were based on fault: Adultery, desertion, unreasonable behaviour, as well as separation for a certain number of years.

Then, both parties discuss ancillary matters such as financial support, child custody and how their assets will be divided.

To reduce the arguments and ill feelings associated with the process, the Family Justice Courts decided in 2015 to introduce a new simplified route, in which both stages of the proceedings would be mutually agreed upon by the couple.

Ms Angelina Hing, a former district judge in the Family Courts from 2009 to 2016, said that even with that in place, the law requires a reason to be given for the breakdown of the marriage, which still causes animosity.

The founder of Integro Law Chambers, which specialises in family law, said: “What happens is that lawyers, being lawyers, will have to make sure they cover all the bases, putting in every single (fault) of the other party because you never know what the other side will do.”

And so, even when both sides are hoping for a quick and peaceful resolution, the proceedings are already “filled with an invisible inflammable gas” that takes just one spark to ignite, Ms Hing added.

The latest idea for an amicable divorce option goes one step further because it could mean that both parties do not have to state the reasons why their marriage has failed, and so no blame is assigned to any one party. Both spouses become co-applicants in their divorce, rather than as “plaintiffs” and “defendants”.

Mr Ivan Cheong from law firm Withers KhattarWong said that assigning blame for the failure of the marriage would cause either spouse to feel aggrieved and would result in them trying to retaliate by stating the other spouse's faults. This raises the temperature of such proceedings.

“By removing the requirement to say unpleasant things and highlight the faults of the other spouse... both parties are not required to be antagonistic,” he said.

PROTECTING CHILDREN’S INTERESTS

If any children are involved in a divorce, they benefit when their parents split amicably, the lawyers said. 

Currently, in order to prove a breakdown of a marriage, many applicants would state that there was a failure to fulfil parental responsibilities as one of the reasons, Ms Kaur from IRB Law said.

“This tends to drag the children into the proceedings as well, to give evidence to prove or disprove the allegations that have been made… in the form of recordings or affidavits.

“The likelihood of parents resorting to this and involving the children in proceedings is reduced under the ‘amicable divorce’ process and this is in the children’s best interest,” she added.

Divorcees approached by TODAY agreed that the proposed measures would help an otherwise emotional process. 

Personal trainer Ashley Isabel Tay, 29, said that the option to be joint applicants and to do away with stating the faults for the divorce would help to make the process less emotionally draining. 

“To go through the divorce process is already traumatising. To lay a fact on paper on why the marriage just didn’t work made it even worse. To me, if there’s an option to do without it, it’d be easier to move on.”

Agreeing, freelance writer Rachel Chan, 38, said that the new option would reduce a lot of stress and time, adding that even a single word in the divorce document could be a point of contention. 

The mother-of-one child aged 10, who got divorced in 2018, said: “With the current proceedings, a lot of feelings are hurt. When you have a child, this just makes negotiations for ancillary matters a lot more complicated.”

The time and energy put into these negotiations could instead be used to help children cope with divorce, she reasoned.

LIMITATIONS OF PROPOSED OPTION

On the flipside, several lawyers said that such a move would be limited in scope, since the option applies mainly to the first stage of the divorce proceedings but not the second stage, where matrimonial assets and child custody are decided.

Senior counsel Engelin Teh from her eponymous law firm Engelin Teh Practice said: “It is very often the case that there is an amicable divorce, but a very acrimonious fight over ancillaries… It often turns uglier than the (first stage of the) divorce because it is now about dollars and cents, and about the children.”

She suggested that lawmakers could consider options in “amicable ancillaries” in future as well, which will help address this issue.

The amicable divorce option will also not help when one or both of the spouses are, from the onset, behaving badly towards each other, she added.

Agreeing, Ms Carrie Gill, a partner in the family and divorce group at Harry Elias Partnership, said that lawyers often have to play the part of counsellors, but there is little that can be done if either party is “dead set” on making the process as unpleasant as possible.

“We act for parties who are at one of the most difficult points in their life. The breakdown of a marriage, the fear of losing assets or financial security, the fear of losing one’s children — all these mean that there are many emotions involved that may prevent clients from seeing matters objectively.  

“Managing such clients and their expectations in such situations, when they are sometimes only focused on vengeance, is highly emotionally taxing,” Ms Gill said.

THE SACRED NATURE OF MARRIAGE

Noting that times are changing, Ms Teh said that a majority of the cases she saw 10 years ago were those who were adversarial to their spouse and wanted to put their last word in during divorce proceedings. Today, most people just want to get it over and done with.

“That is because the mentality back then was that they must always be in the right, and so the other party must have been wrong.

“Now, people are more pragmatic and there are more divorces among young people. There is no stigma to being divorced and people just want to move on with their life. So they want divorce proceedings to be faster, cheaper and less acrimonious,” she said.

In 2016, 18.9 per cent of those who married in 1987 had been divorced. The proportion was higher for those who married between 1991 and 2003, showing that more people are getting divorced as the years go by.

Last year, a majority of couples — 60 per cent — who filed for divorce did so under the Family Justice Courts’ simplified track, also known as an uncontested divorce.

However, some legal experts noted that making it faster and cheaper to get a divorce is problematic, because marriage vows made as a pact to enter into a lifelong commitment would ring hollow if getting divorced is as easy as making an application.

When asked why processes such as no-fault divorces, which were available in other countries, were not taken up here years ago, Ms Tan from TL Yap Law Chambers said that it is possible the Government has certain policy considerations in mind.

“I would think that as a matter of policy, the Government did not want to be seen as rubber-stamping divorce easily and giving people a very easy way out of a marriage,” she said.

At present, couples can file for a divorce only after they have been married for at least three years, Ms Hing from Integro said. This still applies for the amicable divorce option, likely because of this desire to protect the sanctity of marriage, she said.

However, one possible change if the new option is taken up is that in order to file for an amicable divorce, older couples may no longer need to spend between three and four years living apart while still married.

Right now, those who want a divorce will have to accuse the other spouse of adultery, unreasonable behaviour or desertion as the grounds for divorce. If they want to do so amicably, however, they could also do so after spending four years apart, or three years if there is spousal consent. 

The proposed option could be a preferred choice for those who want to divorce amicably without waiting for three years or more. Details of how the option will be implemented is unclear, those interviewed said.

Ms Tan wondered if the proposed option would lead to higher rates of divorces. While she accepts that the three to four years spent apart before couples can file for divorce may be a waste of time to some, it does give the couple some room to reconsider the decision to divorce, she said.

Ms Teh made her point again that like it or not, the notions of marriages and divorces have changed.

“Not everybody views marriage as having the same sanctity as it was in the past. When things didn’t work out, people in the past would try (to make it work). 

“Nowadays, for younger people, if their spouses are unfaithful, that’s it, they want to get out of the marriage. Does that mean that they don’t value the sanctity of marriage? It’s a difficult question to answer.”

Copyright 2021 MediaCorp Pte Ltd | All Rights Reserved

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