Divorce by Mutual Agreement: New Law on Divorce

From 1 July 2024, new provisions in the Women’s Charter have come into force, which allow married couples to seek divorce by mutual agreement (“DMA”). These new provisions, specifically section 95A(1)(f) and subsection (6)(a), apply where the married couple agrees that the marriage has irretrievably broken down. Hence, couples can now cite any of the following six facts to prove the irretrievable breakdown of their marriage, which remains the only ground for divorce:

(1) Where a party has committed adultery;

(2) Where a party has behaved in such a manner that their partner cannot reasonably be expected to live with them;

(3) Desertion for 2 or more years;

(4) Separation for 3 or more years and the couple consent to divorce;

(5) Separation for 4 or more years; or

(6) Mutual agreement (in force from 1 July 2024)

The new law complements the Family Justice Courts’ focus on therapeutic justice, aims to reduce hard feelings between the divorcing couple and protects children’s interests.

Underlying Rationale Behind the Introduction of DMA

Following a comprehensive review of divorce law in Singapore which began in 2020, panel interviews with divorcees and discussions with law practitioners, religious leaders and various stakeholders, Parliament proposed several amendments to the Women’s Charter to further its goal of achieving therapeutic justice in divorce proceedings. A significant amendment was the introduction of DMA.

The main purpose behind the introduction of DMA is to avoid unnecessary acrimony between the married couple and to protect children from getting caught in the middle of divorce and ancillary disputes. It allows couples to take joint responsibility for the breakdown of their marriage without feeling compelled to fault each other. It also ensures that couples are not forced to live separately for at least three years if they do not wish to blame each other for the breakdown of their marriage, which would be particularly detrimental to children.

At the same time, the law strives to maintain the sanctity of the marriage institution. Hence, married couples applying for DMA are required to provide the Court with details of the circumstances of their relationship and its breakdown.

Requirements under an Application for DMA

A DMA application should contain an agreement between the married couple that the marriage has irretrievably broken down. The couple can only make an application after at least 3 years of marriage.

Where a married couple makes an application for DMA, the Court must be convinced of the credibility of the application. This reiterates the idea that marriage is a public institution and therefore divorce is not a matter that can be decided wholly in private. Hence, the new law strikes a fine balance between facilitating divorce without inciting further acrimony within the family unit, and protecting the sanctity of marriage as a public institution.

The parties are required to provide the following information in an application for DMA:

1. Reasons for their Mutual Agreement

The parties must submit reasons for their mutual decision that their marriage has irretrievably broken down. They may take joint responsibility for the breakdown of their marriage instead of placing the blame on one party over the other; this facilitates less adversarial divorce proceedings. Some reasons they may provide include unresolvable differences in personal, cultural or religious values, regular arguments that lead to emotional stress, or major differences in lifestyle.

2. Reconciliation Efforts

It is essential for the parties to show that they have made genuine attempts to reconcile, but to no avail. Examples include attending counselling sessions with a marriage counsellor and evidence of communication indicating efforts to resolve differences.

The Court must be convinced that there is no reasonable possibility of reconciliation before it accepts a DMA application. This will depend on the individual circumstances of the case, including the strength and clarity of the reasons provided by the parties for their mutual agreement and the sincerity of their reconciliation efforts. If the Court believes that there is a reasonable possibility of reconciliation, it may reject a divorce application and instead instruct the parties to attend mediation, counselling or family support programmes.

3. Financial Arrangements and Arrangements for Children

The parties must show that they have considered and discussed the financial arrangements and arrangements in relation to children after the divorce. This is to minimise disputes and tension when ancillary matters such as division of matrimonial assets, child and spousal maintenance, and care and control of children, are being decided. It also protects children from being forced into the midst of acrimonious divorce proceedings.

It is not necessary for the parties to have finalised their decisions pertaining to financial and child arrangements; however, the Court must be satisfied that they have at least considered these matters.

Advantages of DMA

There are several advantages of applying for divorce by mutual agreement. Firstly, it promotes an amicable conclusion of the marriage and facilitates a smoother transition into post-divorce circumstances. The likelihood of the couple maintaining a cordial relationship is also greater.

Secondly, it protects children’s interests and reduces the negative impact of divorce on them. In situations where the married couple must provide fault-based reasons behind the breakdown of their marriage, children may be forced to pick sides and get alienated from one parent. On the other hand, where the married couple is able to take joint responsibility without attributing unnecessary blame on each other, both parties can maintain a good relationship with their children.

Thirdly, DMA avoids the monetary and time costs of acrimonious divorce proceedings, which can take several years to conclude. This also protects the financially stronger party from taking advantage of costly proceedings to further their personal interests rather than the interests of the family.

Finally, DMA reduces stigma against divorce by acknowledging that a marital relationship may break down even in the absence of radical reasons such as adultery, abandonment or one party’s unreasonable behaviour.

Potential Concerns Regarding DMA

While the new law is a welcome change to the divorce regime, there may be some concerns regarding its practical effects. Firstly, it threatens to diminish the sanctity of marriage as a public institution by making it easier for married couples to get divorced without assigning blame. Secondly, some married couples may apply for DMA for collateral reasons or in pursuit of their personal agenda, thus misusing the new provision.

However, these risks are likely to be minimised with the requirements under an application for DMA, specifically the need to provide reasons for the irretrievable breakdown of the marriage and proof of reconciliation efforts. Ultimately, the Court has the power to grant or deny the divorce process based on the individual circumstances of each case; and where a married couple’s DMA application is vague or unsatisfactory, the Court is likely to reject it.

Conclusion

Divorce by mutual agreement is a significant step towards achieving therapeutic justice in divorce proceedings, reducing acrimony within the married couple, and protecting children’s interests. At the same time, it maintains the sanctity of marriage as a public institution by requiring the parties to provide reasons for the irretrievable breakdown of their relationship, efforts to reconcile and consideration of financial and child arrangements.

Commonly Asked Questions

How does the new DMA provision affect financial arrangements in a divorce?

In a divorce by mutual agreement, couples must demonstrate that they have considered their financial arrangements post-divorce. While it is not mandatory to have finalised all decisions regarding financial affairs, the Court requires evidence that both parties have discussed and planned for the division of matrimonial assets, child and spousal maintenance, and other financial matters. This preparation helps to minimise disputes and ensures a smoother transition. Engaging in mediation or seeking legal representation can aid in reaching amicable financial agreements.

What is the role of the mandatory co-parenting programme in the new DMA law?

The mandatory co-parenting programme is designed to help divorcing parents navigate their responsibilities towards their minor children post-divorce. This programme aims to minimise the emotional impact of the divorce on children and promote effective co-parenting. Under the new DMA law, parents are required to participate in this programme, demonstrating their commitment to the well-being of their children. The programme provides guidance on managing co-parenting arrangements, fostering a stable environment for the children despite the parents' separation.

What are the potential benefits and risks of opting for an uncontested divorce by mutual agreement?

An uncontested divorce by mutual agreement offers several advantages, including a more amicable separation, reduced legal costs, and less emotional stress for all parties involved, particularly minor children. It allows couples to avoid lengthy and contentious court battles, fostering a more cooperative post-divorce relationship. However, there are concerns that the ease of obtaining a divorce without assigning blame could diminish the sanctity of marriage as a public institution. Additionally, there is a risk that some couples might misuse the provision for personal gain. Nevertheless, the Court's requirement for detailed reasons and reconciliation efforts helps mitigate these risks, ensuring that the DMA process remains fair and just within family law.