Delivered in Parliament on 10 January 2022
I declare that I am a lawyer with a firm that practices family law. However the contents of this speech reflect my own views on the Bill.
In this debate, I wish to make a few comments on the provisions relating to divorce, in particular the introduction of a provision allowing divorce by mutual agreement.
Clause 29 of the Bill introduces a new fact that can be relied upon to file for a divorce – that the marriage has broken down due to the spouses agreeing that there has been an irretrievable breakdown. The new S 95A will add this new fact, to the existing facts for divorce which centre around adultery, unreasonable behaviour, desertion and separation. In order to rely on this new fact, the spouses must enter an agreement in writing, stating their reasons for concluding that the marriage has broken down, what efforts they have made to reconcile, and what considerations they have given to the arrangements concerning their financial affairs and any child of the marriage.
In principle I am supportive of the inclusion of divorce by mutual agreement (DMA). This will empower the parties to a marriage to decide for themselves whether their marriage has failed, as they are probably the best-placed parties to assess whether they can continue to maintain the marriage. Currently, the potentially acrimonious nature of divorce proceedings can be traumatic. To illustrate, in my past professional work, I have seen how the children of the marriage can be pressured by one parent to give evidence against the other parent, in a bid to prove that the other parent was an unreasonable or irresponsible person. The scars on the family from divorce are undeniable. If the amendment in this Bill can reduce the acrimony and emotional toll on a divorcing family, I support that rationale fully.
Earlier, the Minister of State explained in some detail how the DMA provisions will work. Nevertheless, I wish to seek two clarifications about this change.
Divorce by Mutual Agreement: To What Extent can Parties Override the Traditional Grounds for Divorce?
First, the new fact of mutual agreement broadens the possibility of divorce beyond the conventional grounds mentioned earlier. For the traditional grounds, the law imposes time requirements which need to be satisfied. For instance, for adultery and unreasonable behaviour, the Women’s Charter has always required that the offended spouse must not have continued to live with the offending spouse for more than 6 months after the last incident; this is to show that the offended spouse finds it unreasonable to continue living with such behaviour from the offending spouse. As for the fact of desertion, the offending spouse must have abandoned the other party for a continuous period of 2 years or more. As for using separation as a fact for divorce, the period required is that either the spouses have lived apart for at least 4 years, or for at least 3 years where the other spouse consents to the divorce.
With the introduction of divorce by mutual agreement, it seems to me that parties can agree to divorce where the situations could have come under the traditional grounds but the usual time frames have not been met. For instance, if the spouses have been living apart, they can agree to divorce if they have been separated for much shorter periods than 3 years, say for just 6 months. To this end, I wonder if retaining the provision for divorce on 3 years’ separation with consent makes sense, as it may be redundant to insist on 3 years once the parties agree to divorce.
Since the purpose of allowing mutual agreement is to do away with onerous requirements of the traditional grounds, the parties can override what was required previously and set their own personal threshold for concluding that their marriage has failed. Some will have lower thresholds.
Is there a risk then that divorces will become too easy? On this question, I do note that there is no change to the requirement that one cannot generally file for divorce until after 3 years of marriage. I agree that this requirement should be preserved. Nevertheless, with the introduction of divorce by mutual agreement, the requirements for divorce have arguably been relaxed. Should we then expect an increase in divorce rates?
Divorce by Mutual Agreement: What safeguards re Parties Agreement as to Finances and Children?
My second clarification on divorce by mutual agreement is about how the rights of the spouses and children will be safeguarded.
The proposed Section 95(6) provides that the spouses must enter an agreement with certain requirements, which includes spelling out what considerations they have given to sorting out their financial affairs and any child of the marriage. I am concerned about the risk that the parties may enter an agreement which is unfair to one spouse or not in the best interests of the children. This could well happen when the spouses have unequal bargaining power, or when one spouse has legal representation and the other does not. On this point, I do acknowledge the Minister of State’s point to that this could happen in other types of divorces as well.
Specifically on DMA, I have this clarification. If the Court comes across an agreement that is clearly one-sided or detrimental to the children, am I right to assume that the Court may still endorse the divorce by mutual agreement, but re-write the arrangements regarding finances and children? In my view, it is critical for the Court to play a watchdog role for any vulnerable parties.
Enforcement of Maintenance Orders
Finally, before I end, I would like to speak briefly on the issue of the enforcement of court orders for maintenance payments. As MPs, we do come across single parents who are frustrated and demoralised by having to file repeated applications to court to get ex-spouses to pay up. These efforts incur legal costs and may require multiple court attendances without any tangible outcome. I also understand that when there are arrears in maintenance payments, it is not uncommon that the defaulting parent will be allowed to pay the arrears in instalments, placing further hardship on the other parent to find ways to pay bills and feed the children. If the defaulting parent defaults again, the onus is on the innocent parent, once again, to take out further enforcement proceedings.
Although not covered in this Bill, I note that there are plans by the government to provide a more efficient and effective means to enforce maintenance orders, and to minimise the need for repeat enforcement. It was stated in MSF’s Press Release of 1 November on this Bill, that the government is looking into making enhancements to the enforcement of maintenance orders under another law, the Family Justice Act, which will be tabled sometime this year. The Minister of State confirmed this earlier as well. This is welcome news. It is absolutely necessary to reduce the burden on the parent who is simply seeking to obtain for themselves and their children, what is due from an ex-spouse. I look forward to studying the upcoming changes, which hopefully will strengthen support for single parents and secure children’s rights.