Children Caught In The Crossfire – Co-parenting During A Divorce

A divorce can have a lasting impact on a child’s life. During a divorce, a child may observe that his parents have gone from best friends to enemies that may no longer be on speaking terms. He may have to grapple with the breakdown of his family unit, and have to accept that spending time with both parents means shuttling between homes. Some children may witness constant fighting, and have also been used by their parents as messengers or pawns in the divorce battle. Needless to say, the way a divorce is handled can have different effects on a child.

Statistics show that more than 50 per cent. of young offenders or uncontrollable youths in Singapore come from families with separated or divorced parents.¹

It is always helpful if a divorce takes place in as gentle a way as possible for the children involved, as how parents behave in such an exceptional situation will shape their children’s lives and how their children view relationships and marriage in future. In order to explore and work out a divorce process that is as easy as possible for their children and to minimise the adverse impact on their children, it is best for parents to put the children’s best interests above their own during the divorce.

We have set out below some practical suggestions for parents going through a divorce in Singapore.

1.  Understand divorce proceedings in Singapore and the key rules under the Women’s Charter

A divorce is essentially a dissolution (i.e termination) of the parties’ marital relationship. In Singapore, the law on divorce is found in the Women’s Charter. Save for exceptional circumstances, one’s marriage must have lasted at least 3 years before one is eligible for a divorce. In addition, either parent must be domiciled in Singapore at the time of commencement of the divorce proceedings or habitually resident in Singapore for at least 3 years before the commencement of the divorce proceedings.

A divorce can either be uncontested or contested. If parties agree that the marriage has broken down, and agree to the grounds for which the marriage has broken down, the divorce is uncontested. If not, the divorce is contested and a trial will be required at the Family Justice Courts to decide these issues.

Secondly, parties will have to agree on ancillary issues which are issues relating to the custody, care and control of, and access to, children, the division of matrimonial assets and the maintenance of the wife and children. Again, if these are not agreed, the Family Justice Courts will need to intervene and hearings will be required to decide these issues.

If any of the issues in the process is not agreed between divorcing parents with children under the age of 21, it is compulsory for the parents to attend a mandatory parenting programme mandated by the Ministry of Social and Family Development (the “Mandatory Parenting Programme”). The Mandatory Parenting Programme is a two-hour counselling session that aims to help parents to make better informed decisions in the divorce process which would focus on their children’s needs and interests.

2.  Have the correct attitude towards the divorce

It is important to begin the process of divorce with an appropriate mind-set. In our experience, couples going through a divorce are usually consumed with heartache and hurt. This can drive them to behave in an extremely acrimonious and conflict-driven manner. As a result, we have found that many of our clients have chosen to contest divorces in situations where, had they been able to set aside their emotions, they would not have contested.

In the process of advising such clients, we often talk through their motivations for contesting the divorce. Most are emotional reasons – dragging out the court proceedings in the hope that their spouse would have a change of heart, feeling bitter that their spouse has filed for the divorce first, or disagreeing on whose unreasonable behaviour it was that caused the breakdown in the marriage.

We have mentioned above that, if parties are not able to agree that a marriage has broken down, or on the grounds of marriage, then the Family Justice Courts would need to step in. This means that parties will have to undergo a trial, including a cross-examination of each party, to let the Family Justice Courts decide whether the marriage has indeed broken down, and the reasons why. This drags out the process and results in more time and legal costs. On the contrary, if parties can agree to the grounds of the divorce, this would save time and legal costs as a trial to determine these issues would not be necessary.

In Singapore, divorces are generally granted on a “no-fault” basis. This means that the Court will generally not take into account the reasons for the breakdown of marriage when deciding on ancillary matters, for example, in the division of matrimonial assets or when deciding on maintenance. Therefore, contesting the grounds of divorce to establish fault on the part of a spouse will not do much to help a party’s position when it comes to the ancillary matters.

It is rare for the Family Justice Courts to force parties to stay in a marriage when one has chosen to end it. Choosing to contest a divorce when you know that the marriage is over will only lead to protracting the legal proceedings, and increasing the pain inflicted on your family, including your children who will be caught in the middle.

3.  Seek proper legal representation – A lawyer cannot act for both husband and wife

To have a comprehensive understanding of your rights as parents, it is vital to seek full and proper legal advice.

Even if you and your spouse have decided to resolve the divorce amicably and to reach an agreement, it is still important for you to know your rights, and whether certain proposed access and/or maintenance terms are fair and reasonable. You should seek independent legal advice if you have any concerns with the proposed agreement.

While we would not suggest that one should drag out divorce proceedings unnecessarily, we would also caution against rushing into signing an agreement that has been prepared by your spouse’s lawyers especially if you have not been independently advised by a lawyer. In particular, do note that it is against legal professional rules for a lawyer to advise both husband and wife in matrimonial proceedings as this constitutes a conflict of interests.

Questions we typically receive from our matrimonial clients include:

• What constitutes matrimonial assets that will be distributed?
• What is a fair division of the matrimonial home and the assets especially if parties’ contributions are not equal?
• Where should the child live after the divorce, and who pays for the child’s living and schooling expenses?
• Can grandparents continue to take care of the child during the divorce?
• What access arrangements would be more beneficial to the child?
• If there is a third party in the picture, how do I ensure that my child is not affected by the presence of the third party?
• If my spouse is a foreigner, how do I ensure that my spouse does not take my child away?
• I am a foreigner and have a dependent pass. How do I ensure that my spouse does not cancel my dependent pass?
• My spouse is verbally abusive to me in the presence of the child. How do I protect myself?

Each of the questions above can garner different answers, and each answer will have a direct impact on your child.

The facts of every case are different, which is why it is important for you to seek proper independent legal advice tailored to your circumstances, especially if you have found yourself asking one or more of these questions.

4.  Both parents should continue to have a presence in the child’s life

Research has shown that children have basic needs for healthy growth and development, and their parents will play a significant part in their development. However, time spent with a child is often limited for parents who are separated.

A parent’s access to a child is often limited as a result of divorce. Sometimes, this is due to one party deliberately attempting to limit the other party’s access to the child. Therefore, as parents, it is important when dealing with issues like access to a child, to look at such issues from the perspective of their children and recognise that children need both parents. With this in mind, perhaps parental conflict can be reduced and children can benefit as best as they can from a mutually agreed care and access arrangement.

To ensure that a child gets the best from both parents, the Family Justice Courts are empowered to make a broad range of access orders such as supervised access (where another party needs to be around), reasonable access or liberal access (i.e. no restrictions). As mentioned above, each case is different. You should seek valuable tailored advice on how custody, care and control and access would work in your specific situation.

5.  Divorce during a pandemic

We are living in unprecedented times, and have found that separated parents have had to make do with last minute changes to access arrangements. Parents should try to be a team in this situation, even if it is difficult. A divorce is already hard enough, let alone a divorce in the midst of a pandemic. Amidst all the fear and confusion surrounding the coronavirus pandemic, children are looking to their parents for support and reassurance.

For instance, if a party has moved out of the matrimonial home pending the conclusion of the divorce proceedings, there may be concerns with the child travelling between different households, especially during the Government’s Circuit Breaker.

We would suggest that this not be seen as an opportunity to deprive your child of speaking to or meeting your former spouse. Parents must learn to place the welfare and needs of their children before their own, and that means working well with the other party to make access arrangements that would give their child the greatest assurance of stability.

The learned Registrar Kenneth Yap of the Family Justices Courts has emphasised that parents should work jointly towards devising practical solutions for access and other child-related issues with the children’s best interests in mind, and should comply with all the Government’s Circuit Breaker measures. Talk through concerns with your spouse, and be open to new arrangements. Consider if other non-physical contact with the child could be implemented during this period, for example, pre-agreed and regular timings for telephone or video calls with the child so that the other parent continues to have contact (albeit remote) with the child. If you do not live with your child, accept that, sometimes, not physically meeting your child during this period may be a beneficial arrangement for the health and wellbeing of your child. We would also suggest that both parents take into account each other’s views and suggestions as to any proposals on parenting and home learning.

Custody and access arrangements that parents make in the next couple of weeks have an impact on the immediate safety and welfare of their children and families. In addition, the behaviour of parties during this period may also have a bearing on future custody and access arrangements. In general, the Family Justice Courts are usually more supportive of a parent who has endeavoured to make arrangements where the children’s interests and welfare are prioritised.

At Jacque Law LLC, we have many years of experience handling a wide range of matrimonial matters (including contested and uncontested divorces), and are therefore well-equipped to provide the appropriate advice to our clients. With adequate support and guidance, divorce proceedings do not have to be painful, and can often bring about peace, closure and positive change.

If you would like to discuss any of these further, please do get in touch with us.

¹Statistics highlighted in Chief Justice Sundaresh Menon’s keynote address at the Conference on At-Risk Youth 2015: Achieving, Connecting and Thriving. Source: http://www.supremecourt.gov.sg/Data/Editor/Documents/Achieving_Connecting_and_Thriving_031115.pdf

Disclaimer: This article is intended for your general information only and does not constitute legal advice. Before taking any action or omitting to take any action in relation to the matters set out in the article above, you should consult a qualified legal advisor for specific advice for your circumstances. This article may not be reproduced, or transmitted in any form or by any means, in whole or in part, unless with prior written consent.
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