Key Amendments to the Women’s Charter – Part 1 Divorce By Mutual Agreement-and Related Amendments

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By Nur Shukrina Bte Abdul Salam, Trainee at OTP Law Corporation, an affiliate of PracticeForte Advisory Affiliate.

The latest amendments to the Women’s Charter and other programs supporting families, were motivated by the government’s “priority to save marriages where possible”. However, where divorce is inevitable, the priority is to have “therapeutic justice and child-centricity be fostered and brought to the fore to reduce acrimony, bring about healing, and allow divorcees and their children to move on.”

But, what is “therapeutic justice”, and how do the recent changes relate to it?

Therapeutic Justice

According to the court in VDZ v VEA [2020] SGCA 75:

Therapeutic Justice is a lens of ‘care’.

As early as possible, parties must be able to comfortably reach therapeutic interventions and support (e.g. counselling to help parties let go and move on), and access relevant and digestible information on the processes. As part of counselling, parties must be made to understand the real consequences of breakdown and the impact on their children.

When obtaining a divorce in court, parties should not see each other as adversaries, but rather as joint problem-solvers.

Therapeutic Justice seeks to address the family’s inter-related legal and non-legal issues to reach an outcome that improves the whole family’s functioning beyond breakdown. Parties should be assisted with developing their skills to resolve their own disputes, to co‑parent, and to be familiar with how to access appropriate support services, post-divorce.

The recent changes to the Women’s Charter are in furtherance of therapeutic justice as they:

  1. provide couples, children and other related parties with more robust support early on;
  2. provide an avenue for parties to get divorced without having to make allegations that will shed a negative light on the other party and worsen parties’ relationship; and
  3. provide the court with broader powers to help parents co-parent fairly after the divorce.
  1. Divorce by Mutual Agreement (“DMA”)

The most notable amendment to the Women’s Charter is the addition of the “divorce by mutual agreement” fact, that can be relied on by parties seeking to prove an irretrievable breakdown of marriage, in order to obtain a divorce. According to Ms Sun Xueling, Minister of State for Social and Family Development (MSF), the new option would thus add a form of “therapeutic justice” in the family justice system, while maintaining safeguards to protect the institution of marriage.

  1. What is the DMA?

Under the new s95A(1)(f), read with s95A(6) of the Women’s Charter, couples who mutually agree that their marriage has broken down irretrievably have to submit a written agreement to the court stating:

  1. The reasons leading parties to conclude that their marriage has irretrievably broken down;
  2. The efforts made to reconcile; and
  3. Considerations given to the arrangements to be made in relation to the parties’ children and parties’ financial affairs.

The court must consider these matters in deciding whether to exercise its powers under Divisions 3 and 4 of the new Part 10A (on amicable settlement of disputes), e.g., to permit the parties a chance at reconciliation or to advise the parties to attend a family support programme. The court must not accept any agreement if the court considers that reconciliation is reasonably possible.

A reason that could be used to substantiate a divorce by mutual agreement, is a “deep-seated difference in values”. Children should not be cited as the reason for divorce.

  1. Will the DMA cause a spike in divorce rates?

There have been concerns over the DMA option making it easier for couples to obtain a divorce, thus eroding the sanctity of marriage and raising divorce rates. However, Ms Sun stated that, Singapore transitioned in 1980 from a purely fault-based to a hybrid regime with no-fault grounds (i.e. 3 or 4-year separation), and introduced the simplified divorce track in 2015. Ms Sun highlighted that here were no significant increases in divorce rates in both instances.

Moreover, the safeguards in the current divorce framework will also continue to apply – this includes the three-year minimum marriage period before divorce can be filed, and the three-month period before the divorce is finalised.

  1. How does the DMA “add a form of therapeutic justice in the family justice system”?

Ultimately, the DMA option is aimed at reducing tensions and protecting the children’s interests. Not having to state the fault of a divorce and prove allegations, may spare children the trauma of acrimonious divorces and prevent the destruction of children’s good opinion of their parents. It will also hopefully preserve parties’ relationship and enable them to co-parent peacefully after the divorce.

While the DMA option is similar to the 3-year separation fact under s95A(1)(d), the difference potentially lies in parties not having to separate themselves in the 3-year period if they wish to proceed under the DMA option. This means that parties may be able to make efforts to reconcile while maintaining a normal family life with their children. Unlike the separation with consent option, parties divorcing by mutual agreement may not be required to have led separate lives for 3 years (e.g. not going on family holidays together, not cooking or doing laundry for the other party, not staying in the same room).  By maintaining a nuclear family lifestyle despite the breakdown of the marriage, parties going under the DMA option may be better able to shield the children from any marital problems they may be facing.

Even if there are no children to the marriage, the DMA option provides parties with more autonomy as to how they wish to maintain their relationship in light of the breakdown of the marriage. Parties who do not have to separate under the DMA option, may be better able to maintain a pleasant relationship and approach divorce with peace and understanding.

It should be noted however, that the extent to which parties must prove effort to reconcile, is unclear. If the threshold to prove such efforts is set too high and the court’s assessment of ‘reasonable possibility’ of reconciliation under s95A(6)(c) is applied broadly, it may make it difficult for parties to fulfill the requirements under the DMA fact.  This may then render the new DMA fact otiose and parties would have to fall back on other facts to prove an irretrievable breakdown of marriage.

  1. New section 100A- Rescission of interim judgment in certain circumstances where one party misled by other party

While divorce with consent or mutual agreement helps reduce acrimony between parties, it may lead to undesirable outcomes if one party has misled the other to procure that consent or agreement.

Fortunately, the new section 100A provides recourse for a party who has been misled by the other to give consent or agreement to a divorce under s95A(1)(d) (3-year separation with consent to divorce) or s95A(1)(f) (divorce with mutual agreement), and interim judgment has been granted.

Before interim judgment is made final, the party who was misled may apply for the rescission of the interim judgment. The court may rescind the interim judgment if the court is satisfied that —

  1. the party who applied for divorce (X) misled (whether intentionally or not) the other party (Y) about any matter; and
  2. Y took that matter into account in consenting to the grant of the divorce or agreeing that the marriage has irretrievably broken down, as the case may be.

This ensures that in the absence of consent, a party will be unable to circumvent the 4-year separation requirement and will have to rely on the other facts listed under s95A(1). With rescission of the interim judgment as an available recourse, the party who has misled the other party and the court will not be able to benefit from his or her own dishonesty.