Divorce By Mutual Agreement (DMA) and Relevance of Other 5 Facts
2. As a starting point, I need to clarify that there is only 1 “ground” for divorce and that is the “irretrievable breakdown of marriage”. To show this, a party can rely on 5 (now soon to be 6) facts – i.e. adultery by the other party, unreasonable behaviour of the other party, desertion of 2 years, separation of 3 years with consent and separation of 4 years without consent. With the introduction of the 6thfact there are concerns that divorce would be made easier. This view is unfounded, in my opinion.
3. Instinctively, DMA conjures the image of 2 parties nonchalantly shaking hands while laughing and flippantly throwing away their marriage. Contrary to this image, DMA imposes 3 requirements – i.e.(i) the reasons leading parties to conclude that their marriage had irretrievably broken down; (ii) the efforts made to reconcile; and (iii) considerations given to the arrangements to be made in relation to the parties’ children and financial affairs. Requirements (ii) and (iii) are interesting to me for the following reasons:
3.1 For the other 5 facts, parties do not have to show their efforts to reconcile. This means that parties who (for whatever reason) agree to end their marriage, cannot just walk out at the first instance. They would need to show their efforts to reconcile. Even if parties “go through the motions”, there is a glimmer of hope that these motions would make parties pause and perhaps decide to work on their marriages further. As to whether this requirement should be extended to the other 5 facts, I do not think so. There are many circumstances where a marriage breaks down due to 1 parties’ actions (e.g. violence, adultery, abuse, neglect, etc.). In such circumstances, the other party should not be forced to reconcile and risk being trapped in a lopsided marriage.
3.2 Interestingly, arrangements in relation to children and financial affairs are usually dealt with as “Ancillary Matters”. From the requirements, it does not seem like a concrete “agreement” needs to be reached but at least parties should apply their minds to the impact of a divorce, most commonly on the children and finances. This is great and again I ask myself whether it should be extended to the other 5 facts, and again I do not think so. Most of the time, divorce does not happen overnight and is contemplated only as a last resort,after 1 or both parties have been through a series of events chipping away at the very foundation of their marriage. Sometimes parties hold on until they are not able to hold on any longer. In such circumstances, it is plainly not in the parties’ best interests to remain married. Even if parties have not figured out what to do with the children and the finances, the Family Court processes are there to facilitate the resolution of such issues – hopefully amicably.
3.3 A perusal of the link to MSF’s website (see above) also reveals that:
“7 A bare agreement without reasons is not enough. Parties must be acting voluntarily, have the requisite knowledge of the terms and intend to enter into the agreement. If the court finds the required submission insufficient or believes there is a possibility of reconciliation, the court may order further mediation, counselling, or family support programmes as appropriate. The court must also reject any agreement if the court considers that reconciliation is reasonably possible. This is a parties-centric test assessed based on the circumstances of each individual case. It allows a couple to take joint responsibility for the breakdown of their marriage.”
3.4 I sincerely hope that this aspect would practically be able to pick out those divorces entered into hastily. Very often, such divorces involve 1 or both parties who have not obtained proper legal advice. Personally, I have encountered situations where potential clients insisted on acting in-person once I explained the requirements in order to satisfy the Court that the “grounds” for divorce were met. When they pushed me to dispense with certain explanations in the Statement of Particulars, I advised them of the potential that the Court would at least ask for clarifications, as the Court is not a mere rubber-stamp. This would mean more time and costs compared to doing things properly. I do not know if their divorces went through, and I hope that they are not suffering from the negative effects of a hasty divorce. Again, I have encountered many clients who earlier refused to get legal advice and hastily agreed to bad terms. I tried my best and managed to correct the situation a bit but alas there was only so much I could do because of the irreversible damage done.
5. To me, the unspoken usefulness of this new DMA fact is the ideals that it seems to espouse. It sends the message that, “Hey, if you want to divorce, and if you can do it without assigning blame, please do so. But please also understand that divorce has implications, so you should at least apply your mind to these. Most important are the children and finances”. While I do not see the structure of divorce proceedings changing drastically for now, perhaps if more parties approach divorce with this mindset, then maybe we would see divorcees moving away from a pure “winner-takes-all-so-kill-or-be-killed” mindset.
Extension of the Mandatory Parenting Programme (MPP) to More Cases
6. MPP is a 2-hour session where counsellors help parties explain the impact of divorce. After the MPP a Certificate of Completion would be given. Previously, the MPP was only required for divorce proceedings under the “normal” track where there was no formal agreement on the children and all other divorce matters. Parties who managed to agree to all issues (i.e. ground for divorce and Ancillary Matters), and could proceed under the Simplified Divorce Proceedings track, did not have to attend the MPP.
7. In my opinion, the MPP would be useful for parties even if all terms had been agreed upon. There is much uncertainty post-divorce and families going through divorce would have to get used to a “new normal”. No doubt there would be teething issues, so it would be helpful to at least be briefed on some aspects to consider and be prepared for.
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