In her recent address at the Family Justice Courts Workplan 2020, the Family Justice Courts presiding judge Justice Debbie Ong lauded the increasing number of divorces which were on the “simplified track”.
This is where both parties agree on all matters relating to the divorce without any contest or litigation, and they merely apply to the court to grant them a divorce. Almost six in 10 divorce cases in 2019 were filed as such.
For other cases involving litigation, Justice Ong said that the family justice system must minimise distress and move from an adversarial approach where each litigant pursues his or her own interests single-mindedly towards a therapeutic justice system where the parties involved adopt a problem-solving mindset that facilitates healing.
Such a system should be a coordinated, multi-disciplinary one where counselling, therapy, mediation and adjudication are provided for those who need them, she added.
It is heartening that the Singapore judiciary is proactively promoting a different brand of justice for divorces to make it less acrimonious. In doing so, the focus is on supporting families holistically to help them cope with the fallout from the marital breakdown.
Ultimately, however, whether an amicable divorce can be achieved rests squarely on the couple themselves.
It takes commitment on the part of both parties to want to part amicably. This becomes even more crucial in the success of co-parenting their children after the divorce.
What may this commitment look like?
Sometimes, it means giving some time for the other party to come to terms with the prospect of divorce.
If a spouse is too emotional to even begin talking about the potential divorce or related issues, consider seeing a mental health professional first. Give each other time to process the denial, hurt, anger and/or resentment that is natural in every separation.
Consider mediating the divorce and related issues such as custody and maintenance before going to court to file a writ of divorce.
A mediator who is specialised in family law would often be able to assist parties in reaching an agreement on all the issues. Ideally, this would take into consideration their concerns yet remain practical and workable for the children who would likely have to be shuttled between two households after the divorce.
The couple can choose to see the mediator with or without their respective lawyers.
For the avoidance of doubt, my suggestion of voluntary private mediation before any filing of a writ of divorce is different from the court-mandated mediation process that takes place more commonly now.
Since 2011, the law has required that all divorcing parents attend mandatory mediation and counselling when they commence divorce proceedings. This means the mediation and counselling start only after the legal divorce process has started.
Often, when legal action is taken, especially if the other party is caught unawares, it causes further strain and heightened tension between both sides.
Also, if the issues are too complex and broad, it would often be unrealistic to expect the court to assist in the resolution of all issues in the face of pending court applications and under definite time constraints.
Usually, at this stage, when parties have already incurred a fair amount of legal fees in the filing of court documents, there is heightened levels of tension and keen expectations to see legal outcomes.
This can make it less conducive for effective mediation.
This calls for a need to seek professional assistance earlier in the process, which is the crux of my suggestion.
Once parties manage to reach an agreement on all issues relating to the divorce, the appointing of a lawyer and filing the divorce papers on an uncontested basis (simplified track) would be a straightforward process.
Even if not all issues are resolved, the private mediation process which took place before the divorce papers are filed should at least narrow the issues of contention which would facilitate a more productive the court-mandated mediation process after the divorce papers are filed.
What are the challenges in encouraging more divorcing couples to voluntarily go for early mediation?
For one thing, this would have to be self-driven and dependent on both parties’ good faith.
If one party does not want to participate, then it would be difficult to compel him or her to do so until the process is mandated by the court. Perhaps more can be done to educate couples on the advantages of early mediation.
When a couple is determined to preserve the good memories they share and for those with children, to preserve the co-parenting relationship for their sake, and they enter into discussions with minds open to understanding the other’s perspective, I would say that the chance of reaching an amicable resolution is high.
Even if the discussions do not culminate in a full agreement, the legal process after the filing of the writ for the divorce is well placed to assist the parties in reaching a resolution through court-mandated mediation and counselling.
Nonetheless, it is always advantageous to begin the discussion before starting the legal process.
I had the privilege of mediating the separation terms of a couple who was determined not to involve the court.
The couple had to discuss issues relating to the living arrangements of their children including the potential of having to relocate to a different country should either parent’s job require it.
How the children’s expenses were to be shared between the couple was also an issue. Their various properties situated in different countries had to be distributed and each party’s emotional attachment to particular properties had to be taken into consideration.
There were times when parties were frustrated and emotional. Through sheer grit and patience, the couple managed to reach an agreement on all issues over four sessions in a space of eight months. I was impressed by the commitment of the couple.
We are in the midst of a worldwide pandemic. There is mounting pressure on all fronts. Stress is pervasive.
To all couples who are contemplating divorce, there is no need to rush through the process or file the writ for divorce in a hurry.
Consider consulting a marriage therapist or a marital mediator first, or consult lawyers who are trained in family law and able to not only give you advice on the law, but also provide an objective perspective of the emotional dynamics between you and your spouse.
These professionals should be able to aid you in exploring possible options which would minimise acrimony and protect the children from unnecessary stress arising from the breakup of the family unit.
In a crisis, all the more we have to conserve resources, and protect our children.
ABOUT THE AUTHOR:
Angelina Hing is founder and managing director of Integro Law Chambers. She was a district judge in the Family Justice Courts from 2009 to 2016.