How to make divorces less acrimonious

The Ministry of Social and Family Development (MSF) recently published a consultation paper on how to reduce acrimony and better support children and divorcees through the divorce process.

A divorce, even if amicable, is a deeply personal, painful and stressful situation.

The stress and pain are heightened in acrimonious divorces.

In recognition of this, Chief Justice Sundaresh Menon commented at the Family Justice Practice Forum in 2017 that while in other areas of litigation, conflict is often necessary and helpful to getting to the issues, in family justice, conflict management and reduction are critical, especially when there are children involved in the matter.

On this basis, the Government’s proposals to support children and couples undergoing a divorce and to reduce the acrimony in the process via an “amicable divorce” option are to be welcomed.

This option would allow couples to mutually agree to file for a divorce without needing to state the reason why the marriage has failed.

A divorce in Singapore is dealt with legally in two stages.

In the first stage, the parties deal with the reason for the breakdown of the marriage and in the second they deal with the ancillary matters which includes issues relating to their children and finances.

In some cases, parties agree on the cause of the breakdown of the marriage and do not contest the first stage but end up strongly contesting the ancillary matters, which at times, can take years to resolve.

This puts a great strain on the parties’ relationships, their financial means and the children involved in the dispute. This then negates any remnant goodwill that the parties enjoyed when they agreed on the cause of the divorce.

In such cases, parties often use the court as a platform to vent their frustrations with the opposing party.

Due to unresolved feelings of hurt, anger and disappointment, the parties may file unnecessary applications in court as a means of being heard.

Parents may also involve their children in the divorce process, thus placing them in a difficult situation of having to choose sides.

Such situations can have long lasting effects on children’s ability to deal with difficult and stressful situations and may result in the children facing commitment and trust issues.

At times, some parties even inundate the other party with multiple applications as a means of wearing the other party out or to intimidate the party into accepting a less than favourable resolution.

As such, any proposal being considered to reduce acrimony in the divorce process must consider it as a whole and not only in part.

The Government’s proposals are rightly aimed at first attempting to preserve marriages but if a divorce is necessary, to then ensure that it is done in as amicable a manner as possible.

To assist couples who are unsure about separating, the Government’s proposal is to provide online and in-person counselling for them.

This proposal can be further enhanced by providing access to other conflict resolution resources and professionals for parties to attempt to resolve their disputes.

Besides counsellors, affordable access to therapists, mediators or even financial, legal, or medical professionals would assist parties as the issues they face are multi-faceted.

In addition to the above, education and increasing awareness of the above avenues for help and what they entail would also reduce the stigma and doubts involved in seeking professional help. This in turn may lead to a greater adoption of such services.

However, if reconciliation cannot be achieved and the parties wish to get divorced, measures should be taken to reduce the acrimony involved in the entire process rather than just for the first stage of the divorce process.

As a starting point, the amicable divorce option, wherein parties are not required to cite any of the facts of adultery, unreasonable behaviour, desertion or separation, can be made available only to parties who have resolved their ancillary matters prior to filing their divorce papers.

This would be an enhancement to the current simplified divorce track wherein parties are still presently required to cite one of the facts above in support of their application.

Given that the parties have shown their ability to come to an amicable agreement, it would be helpful for them to be able to make a joint application for divorce without the need for one party to take blame for the divorce by being the defendant.

With regard to the remaining divorce cases that are filed on a contested basis and remain unresolved, the Family Justice Courts presently require parties to undergo mandatory counselling, when there are minor children involved, and attempt mediation as part of the process.

Mediation and counselling are some of the most effective modes of resolving disputes, if done right.

The matters discussed in a mediation cannot be used in court thereafter and the process is meant to provide parties with a safe space to discuss their concerns and views without worrying about them being twisted or used against them in the divorce if the matter remains unresolved.

However, a poorly timed attempt at mediation where it is mandated or done too early in the process when parties are not emotionally or mentally ready to consider an amicable resolution, can be counterproductive.

When mandated by the courts, parties sometimes go through the motion of attending counselling or attempting mediation merely as a means of ticking the boxes to be able to move on with their contested proceedings.

Some parties even use the process to create more acrimony by being antagonistic and making inflammatory comments during the mediation, often resulting in disputes that last longer than they need to.

To address this, mediation and counselling should be voluntary where parties agree to attempt mediation when they are emotionally and mentally ready.

Given that people emotionally and mentally deal and heal from divorces differently and at different rates, having the option of help available when they are ready, will benefit parties more.

Divorce is a complex experience for anyone who has had to go through it, and it is not a decision that anyone takes lightly. 

While there are concerns that making the divorce process less painful may result in more divorces, the current safeguards of the minimum length of marriage prior to filing for a divorce and a three-month time period before a divorce is finalised are useful in keeping divorce rates under control.

In addition, the improved access to conflict resolution mechanisms and professional help can help parties resolve their differences and preserve marriages.

In any event, making the divorce process less acrimonious is not aimed at encouraging divorces but merely a recognition that we can make an already difficult event easier for people to deal with.

The changes suggested above could help improve the emotional and mental well-being for all involved.

ABOUT THE AUTHOR:

Sudhershen Hariram is a lawyer with Tan Rajah & Cheah specialising in family law. He is also a mediator accredited with the Singapore International Mediation Institute.