Divorce must be last resort; if inevitable, welfare of children must be protected : Sun Xueling


At the first Parliament sitting of 2022, amendments to the Women’s Charter were passed, including the option of divorce by mutual agreement (DMA). Minister of State for Social and Family Development Sun Xueling said during the second reading of the Bill that despite the introduction of DMA, divorce must be a last resort and the first priority is to save marriages where possible. She continued that where there is no alternative but divorce, the aim is to help families heal and move on. Reducing acrimony and promoting of child-centricity in divorce is key. Here’s an excerpt of her speech on Jan. 10, 2022.

I am glad that there is consensus between members on several areas.

First, as raised by many members, divorce is and must be a last resort. Where possible, we aim to save the marriage and help couples resolve their issues. I agree with Mr Yip Hon Weng that couples should be encouraged to seek counselling early before marital issues worsen.

Where there is no other option apart from divorce, we aim to help couples to heal and ensure that the welfare of the children is protected.

Mr Melvin Yong brought up the worrying trend of more recent cohorts divorcing earlier. He asked why such a trend has emerged. We believe that this is due in part to higher expectations of marital satisfaction and greater stressors in the early years of marriage especially as more couples are dual income juggle career and parenthood. This is a trend not just emerging in Singapore, but has been apparent in many parts of the world for some time.

Therefore, as raised by Mr Lim Biow Chuan, Mr Yip Hon Weng, Mr Melvin Yong and Mr Zhulkarnian Abdul Rahim, our commitment is to protect the marriage, and save it where possible. We must do more, beyond legislation.

The legislative amendments must be seen in totality with non-legislative initiatives which will help couples resolve issues at all stages of their relationship.

When stresses begin to emerge, we have marital and family counselling under FAM@FSC to help families resolve issues early. Mr Melvin Yong suggested that marriage therapy be made more accessible and affordable. Mr Yip Hon Weng also asked if there are sufficient trained professionals to cater to demand, what the average waiting time is for appointments, and if there is remedial action if the couple does not attend subsequent counselling sessions. Ms Mariam Jaafar similarly asked about funding and resources for such services. By the end of this year, there will be 10 FAM@FSCs across the island that can support couples facing marital and familial stress, and they will be well equipped to manage the projected demand.

In terms of the waiting time, parties will be contacted by the agency within a week. As these counselling sessions are voluntary, there is no remedial action that can be taken by the Ministry or the FAM@FSC should the couple not choose to continue. Nonetheless, if counselling were ordered by the court, then in the case of non-compliance, the court may make any further orders as it sees fit, including staying proceedings until parties have attended counselling.

If couples are not able to resolve their issues, and are contemplating divorce, we are also working on a Family Assist portal which will provide couples with links to marital counselling and allow reflection and information so couples can make an informed decision.

Finally, should couples choose to proceed with divorce, within the divorce process, couples are given opportunities to resolve their issues and u-turn on the decision.

Mr Yip Hon Weng had asked if the Ministry would consider mandating pre-divorce counselling for couples citing DMA. Ms Mariam Jaafar raised similar points on requiring divorcing couples to take parenting education courses and making counselling mandatory. With the amendments, all divorcing couples with minor children must attend MPP before filing for divorce. At MPP, counsellors may assess the couple’s suitability for reconciliation and refer them for further support. Mr Melvin Yong asked if this pre-divorce counselling could be extended to those who cite “Unreasonable Behavior”. We agree it is good to do so but our priority at this point is to extend MPP to all divorcing couples with minor children, regardless of the fact they cite. We will explore extending pre-divorce counselling further at a later stage.

I also fully agree with Ms Shahira Abdullah that religious organisations can play an important role in mediation and counselling, and parties may choose to opt for counselling by religious organisations if they are of the same faith. I would like to thank Mr Zhulkarnian Abdul Rahim for sharing the Syariah Court’s experience with implementing the Marriage Counselling Programme. Indeed, it is learning from the Syariah Court’s positive experience that we have decided to introduce pre- divorce counselling.

Members also agree that it is key that families are supported throughout the divorce process. On the Programme for Children, Ms Joan Pereira raised the importance to support all children, including the older ones. We fully agree and as part of the MPP, the counsellor would encourage parents to sign their children up for suitable programmes.

To Mr Louis Ng and Mr Zhulkarnian Abdul Rahim’s queries on why the Programme for Children is not mandatory, what the types of interventions under the Programme for Children are, and whether there can be a national body to harmonise programmes for all children affected by Muslim and civil divorce, I would first like to assure Members such as Ms Shahira Abdullah, who also brought up the need for Muslim marriages to be supported as well, that MSF and MCCY work closely together to ensure the programmes offered to all children affected by divorce are similar. In addition, the Programme for Children is also available to children affected by Muslim divorce. There is therefore no need for a separate body to oversee this. The Programme for Children covers various component items. It includes an assessment of the needs of the child, counselling, psychological services as well as specific evidence- based programmes such as Children-in-Between.

MSF had considered mandating all minor children whose parents are undergoing divorce to attend a programme to help them cope better with the divorce. However, we believe that parents, even as they undergo divorce, must still assume primary responsibility for their children’s well-being, rather than have the Government mandate a programme for their children. Mandating counselling for all children may also cause additional stress and not all children may be ready to attend the programme.

Lastly, on the issue of child access enforcement, I agree with Mr Lim Biow Chuan and Mr Zhulkarnian Abdul Rahim that children cannot be used as a negotiating tool in their parents’ quarrels and those who breach access orders must face consequences. Both Members brought up the need for enforcement orders to be made judiciously, especially in the case of a term of imprisonment.

I assure Members that the court will take all aspects of the case into account in making its orders, including whether the child had refused access to the parent, and a term of imprisonment is intended to be imposed on egregious cases of non-compliance. The court may reverse the grant of care and control to the access parent if it is in the best interest of the child to do so. On orders to make-up access, as with all orders related to the child, the court will make this order taking into consideration the best interest of the child. For parties with counselling orders, FAM@FSCs and DSSAs will work closely with the courts to support them in issues faced with access. The 10 FAM@FSCs set up by the end of the year will be able to manage the expected caseload.

However, we have also heard different views raised, particularly on whether we should make the divorce process more expeditious, or whether doing so could lead to easier divorces and erode the institution of marriage.

I fully agree with Ms Sylvia Lim, Mr Lim Biow Chuan and Mr Melvin Yong that a balance must be struck between making it too difficult for couples to divorce and making it too easy to give up their commitment.

Beyond non-legislative efforts to strengthen the family and upstream measures to help families facing stress, we also want to ensure that the divorce process affords parties opportunities to save their marriage and u-turn on their decision,

and the divorce process, even with the introduction of DMA, is not made easier and faster.

For this reason, the safeguards to ensure the decision to divorce is a considered one remains.

This includes: 3-year minimum marriage period before divorce can be filed; minimum 3-month period before divorce is finalised; and the existing 5 facts for parties who prefer to rely on them.

The divorce process also remains largely the same no matter which fact is cited, including DMA. In fact, citing DMA requires further submissions to the court:

  1. The reasons leading parties to conclude that their marriage has irretrievably broken down;
  2. The efforts made by parties to reconcile; and
  3. Considerations given to the arrangements to be made in relation to the parties’ children and financial affairs.

It is also for this reason that we will not be reducing the 3- year minimum marriage period before a divorce can be filed, as Ms Carrie Tan suggested.

The 3-year minimum period is an important safeguard to ensure couples do not enter or exit a marriage lightly.
The first year of marriage is often not an easy one given the many transitions and adjustments for couples.

The 3-year minimum period will allow couples sufficient time to adjust, seek help, and overcome difficulties, rather than leave the marriage just because things are difficult. If they truly wish to pursue divorce, the 3-year minimum period will allow them sufficient time to consider their decision carefully, and make attempts at reconciliation.

Nonetheless, there are legitimate reasons where a party may need to exit the marriage before the 3-year minimum marriage period is up, and the Women’s Charter allows for that. In cases of exceptional hardship or depravity, parties may seek the court’s permission to file for divorce before the 3-year minimum marriage period is up.

However, where parties have made and failed every effort to save their marriage, and have no other option left but divorce, there is a need and a place for DMA, in cases where parties agree on the divorce, to reduce acrimony.

Mr Lim Biow Chuan asked why DMA is needed when the separation fact allows couples to divorce without apportioning fault. Divorcees who filed for divorce on the simplified divorce track shared how though they had agreed on the divorce and ancillary matters, having to cite a fault-based fact did dredge up pain and hurt, and the hurt deepened when parties read the affidavits from each other. They expressed how they wanted instead to be able to take joint responsibility for the marital breakdown instead of citing fault. They also told us they found it hard to rely on the separation fact as they felt like their lives were put on hold and they could not move on. This was not good for their well-being. It was also not good for their children’s well- being because try as they might, they admitted they could not focus on their children until the divorce was finalised. In the meantime, the children were exposed to the tensions in their relationship during the separation. DMA therefore allows such couples to jointly take responsibility for the breakdown of the marriage and heal and move on from the divorce.

Mr Lim Biow Chuan raised concerns as to whether DMA would effectively reduce acrimony given parties must submit the reasons leading them to conclude the marriage has irretrievably broken down, and they may disagree on matters concerning their children and finances. It is inevitable that in certain cases, even with DMA, the couple will face acrimony in the divorce process. However, providing the option for parties to jointly take responsibility rather than pinning the blame solely on one party would more likely set the frame and mindset for a less acrimonious and conflictual process. Thereafter, when parties proceed to the ancillary discussion, they are more likely to do so without the resentment of either having to bear full blame for the divorce, or the pain of having to dredge up past hurts. Having jointly taken responsibility for the breakdown of the marriage, they can begin ancillary discussions more amicably.

I would like to emphasise again and assure Mr Lim Biow Chuan, Mr Ang Wei Neng, Mr Melvin Yong and Mr Yip Hon Weng that DMA differs from the “no-fault” divorce that we see in other jurisdictions.

Unlike other overseas regimes where parties are not required to prove that the marriage has irretrievably broken down, or where the filing for divorce by one party is sufficient to prove the marriage has irretrievably broken down, DMA is a sixth fact to prove the sole ground of divorce and is done through an agreement that cites (i) reasons for the breakdown, (ii) efforts at reconciliation, and (iii) considerations for children and financial matters.

One party cannot unilaterally divorce the other. Some jurisdictions have removed the ability for a party to contest the proceedings. Under the Women’s Charter, the defendant is able to file a defence against a divorce application, irrespective of the fact cited.

I would also like to assure Ms Sylvia Lim that we do not expect the number of divorces to increase significantly with the introduction of DMA. Spikes or long-term increase in divorce rates occur when a regime switches from fault-based to no-fault. We had made transition in 1980 from purely fault-based regime to hybrid regime with no-fault grounds and had introduced a simplified divorce track in 2015. We saw no significant increase in divorce then.

Cover image credit: CNA