Feedback on MSF Recommendations on Divorce

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Feedback on MSF Recommendations on Divorce

Focus on the Family Singapore's view on no-fault divorce

By Focus on the Family Singapore | 3 June 2021

The high rates of divorce is an issue of deep concern and great interest to us as a local charity committed to helping everyday families thrive. We thank MSF for sharing its recommendations after speaking to divorcees and Divorce Support Specialist Agencies (DSSAs), and in turn allowing us to give our inputs. We are saddened about cases where individuals are so languishing in their marriage that they see the end of it as the only option.

We have debated long and hard the difficulties of this problem and obtained inputs on this specific issue from various parties, including children of divorce. We offer herewith our perspectives from our work with some 40,000 families each year and our digital/media outreach to approximately 4.2 million family members.

We refer to the MSF Consultation Paper on its recommendations for programmes for parents/children going through divorce, counselling/mediation support for couples going through divorce, and an “amicable divorce”* option, so as to reduce acrimony, enhance child centricity, and encourage families to heal and move on.

We wish to address the three objectives cited by MSF, and hope to obtain more information from MSF that could assure us and our constituents of the benefits of some of its proposals.

Together, we hope to co-create the best possible outcome for families and for Singapore as a whole, both now and in the future.

* We are assuming in our response that the proposed "amicable divorce" option requires the couple’s mutual consent. If MSF is instead considering an option that includes unilateral divorce1, we have made brief comments where relevant but request for further study as the implications of that would be greater.

The Problem of Divorce Makes Marriage Even More Important

Relationships do break down, simply because we live in an imperfect world. In certain cases, both individuals in a marriage are in such poor physical, emotional and mental states that ending the marriage seems to be the only solution. This is not a situation anyone wants to be in, or would envision for themselves when they chose to get married. Marriage is an important decision which individuals consider carefully because it binds two persons together for life.

Singapore society celebrates the union of couples because strong marriages make for strong families, which in turn makes for a strong society. An increase in the number of marriages also signals an increase in birth rates – an endeavour we have spent billions trying to bring about (Soin, 2016).

We are in agreement with you on the detrimental effects of divorce (Ministry of Social and Family Development, 2020), and wish to work together with you to tackle the challenges in the area of divorce, particularly in the three areas which MSF has highlighted.

  1. REDUCING ACRIMONY
    We acknowledge the difficulties of apportioning and proving fault in a marriage, and understand that the intention of an "amicable divorce" is to minimise pain for mild cases and reduce mud-slinging in extreme ones where the child may be caught in-between. It is important to recognise, however, that a relationship breakdown leading to divorce is by nature already potentially acrimonious – one party has broken trust with another by not honouring the marriage vow – for better or worse, for richer or poorer, till death do us part.

    The current system already allows a form of no-fault or "amicable" divorce except that the couple needs to have lived apart for 3 or 4 years. One of the reasons for the 3-4 years of separation is expressly to allow the couple more time to work out their relationship issues instead of prematurely or carelessly calling it quits. Studies in US show that 30-44% of American marriages had at least one attempt at reconciliation before divorce, and between 12% and 15% of separations result in reconciliation (Binstock & Thornton, 2003). It will be good for MSF to provide similar figures for the Singapore context. These families could well lose a chance for restoration under a No-Fault Divorce (NFD) system.

    The implication of an "amicable divorce" is that couples no longer need to wait out the 3 years to finalise a divorce – it can be reduced to just 3 months2. Divorce will indeed become easier and quicker, and in some countries, the implementation of NFD has increased divorce rates and changed the marriage landscape (see more under Other Considerations). Yet, the potential of such a system in reducing acrimony is unclear.

    Who does it benefit?
    Since 2015, MSF has introduced a simplified track of divorce (Simplified Uncontested Divorce – SUD) for couples who are able to reach an agreement on both the divorce and ancillary matters in spite the fault-system. It was reported that 60% chose SUD, stating fault of adultery/desertion/unreasonable behaviour, or being separated for 3-4 years.

    It was reported that 60% chose SUD


    • Is the recommended “amicable divorce” option targeted at the 40% who presently contest the divorce? If they already contest the divorce despite being given a simpler option, would they similarly still not choose an "amicable divorce"?
    • Is the recommended "amicable divorce" option targeted at the 60% who now need to cite fault (Group a); or is the intent to speed up the process of divorce for those who cite separation (Group b)?

    The number of individuals a NFD system could potentially benefit is unclear. Its ability to reduce acrimony is also unclear. Just because no fault is stated in the court documents does not mean no fault is committed, perceived or remembered. MSF should provide figures on reasons cited for uncontested vs contested divorces in the past 5 years for a better picture of how this proposed regime is likely to reduce acrimony for the proposed “beneficiary group” and elaborate on how a NFD system could reduce acrimony.

    Even in situations where a quick divorce is the best option, a more targeted solution for these cases should be applied instead of a blanket amendment of the current law, which may lead to unintended consequences of increasing and speeding up divorces.

  2. ENHANCING CHILD CENTRICITY
    While research has shown that children in a high-conflict home may be better off if their parents get a divorce, they do better when their parents remain married in a low-conflict home (Amato, 1995). In fact, research has shown that children from divorced families continue to fare badly even after their parents have divorced, so long as their parents remain in conflict (Department of Justice, 2015). This shows that the negative effects of parents’ conflict on children do not necessarily go away after a divorce, but is dependent on whether the parents learn to resolve their conflicts amicably even after the divorce.

    Much of the discussion over-simplifies the issue to give children only 2 options:
    1. stay in a family where parents are in constant, unresolved and at times toxic, conflict; or
    2. have their parents separate/divorce.

    Yet we all recognise that the best – but least discussed – option for children is to grow up in a family where parents demonstrate healthy conflict and model grace, forgiveness, transformation and growth.

    What if we prioritised ensuring that the parents are equipped with constructive conflict resolution skills, regardless of whether they eventually still end up divorced? Would introducing a NFD system encourage the adoption of such skills or conveniently eliminate the need to address conflict resolution?

    Another common strain in this discussion has been about the negative impact of parents’ love-less marriage on children (Co, 2021). What is missing from this discussion, however, is the positive impact of both parents’ “love-full” relationship (assuming neither is a bad parent) with their child. While continuing in a love-less marriage may be painful for the adults, reducing the child’s access to either of his parent, both of whom he/she loves, may be even more painful for the child.

    It is arguable whose and which pain is worse or more, but if we intend to be more child-centric, we need to give more weight to the pain which the child would be forced to bear that is of no fault of theirs. Children, especially at a young age, are powerless to change their parents’ situation. Instead of putting the burden of adult conflicts on children, adults should behave as adults and bear the responsibility of working through their own conflicts so that children do not need to choose between two dreadful options.

    The voice of children
    A common thread from our ongoing survey of individuals who experienced their parents’ separation/divorce is that children need to have their voices heard on the issue of their parents’ divorce. Some felt it could have changed the outcome for their parents’ marriage and their family, or at least it would have helped them to be more at peace with the decision. However, more than 70% said that their voice was not heard, mostly because their parents’ divorce took place when they were 12 years old or younger (Summary report in Annex).

    “If they have heard our voices, they might have changed their mind and worked things out.”

    We thus support MSF’s recommendation to have all parents of children under the age of 21 years, including parents on the SUD track, attend the Mandatory Parenting Programme (MPP) before filing a divorce application. We further propose extending MPP to those contemplating but have yet to file a divorce (pre-divorce stage).

    Parents need to be made aware of both the impact of a high-conflict home and of divorce on their children, reminded of their responsibilities as adults, and given practical handles on how to effectively resolve conflict and help their child grieve the change in family relationships while continuing to provide stable and loving relationships for them.

    Given that the MPP has been conducted for several years now, there should be an evaluation of its effectiveness, including whether a 2-hour programme is sufficient help for parents to process the divorce plus acquire the necessary skills needed for co-parenting. In our almost 20 years of experience equipping everyday parents, we would hazard a guess that much more needs to be done for the sake of the child.

    Finally, in the same way that the court currently appoints a Child Representative when there are disputes in a divorce proceeding, MSF should consider always providing the child a “friend” to represent his/her interest, starting even before the divorce is filed.

  3. ENCOURAGING FAMILIES TO HEAL AND MOVE ON
    Our society’s goal should be to help families become stronger over time – whether they choose to stay together after weathering different challenges including threat of divorce, or start separate new families after a divorce.

    Divorce or separation in marriage is painful and often messy because marriage is, in the first place, a challenging endeavour. A good marriage requires two very different individuals to have a common vision for their new family and be willing to work towards that, often at great personal sacrifice and putting the other person’s interests above self. When a marriage breaks down, the loss of that shared vision and self-investment is often coupled with feelings of injustice and betrayal, causing emotional turmoil and animosity. Healing and release from such emotions takes time.

    Ironically the long, painful process of wrestling with the question of why the marriage has broken down, and taking the time to grieve or to make changes to save the relationship with help from external parties like trained counsellors and a supportive community, can bring growth and strength for the next stage of the individual’s life journey. Sometimes that healing and subsequent strengthening of the individual can actually enable a return to the marriage3.

    While an "amicable divorce" could shorten the divorce process and make it easier to temporarily numb the pain, it does not necessarily lead to a restoration of the individual or healing of the family because it is not a policy targeted at helping individuals deal with root problems in marriage.

    Worse still, individuals who have had their healing process conveniently shortened may bring unresolved issues and destructive relationship habits into subsequent relationships. By making divorce easier, we could unwittingly undo the healing process necessary for individuals and hamper the ability of families to move on to healthier relationships and better futures.

    We support MSF’s recommendation for counselling, and further suggest that it not just be done for those who are unsure whether to divorce and may want to still save their marriage, but for all who are filing for divorce. Such counselling and other marriage support programmes have caused a reduction in divorce rates among Muslim marriages (Wong & Tan, 2018).

Other Considerations: Impact of NFD

No-Fault Divorce (NFD) has been seen to adversely impact the marriage landscape in countries which have implemented it as well as having the unintended effect of weakening women’s position. Philosophically, it shapes society into one which reduces the importance of promise-keeping4 and erodes the core value of the permanence of marriage, thereby de-stabilising the future of our children.

  • …On Divorce & Marriage Rates
    A study on the US states which allowed NFD showed that divorce rates increased immediately after its implementation (Nakonezny et al, 1995). As Parkman observed, “No-Fault divorce changed the assumptions that people make before marriage. Knowing that it is easier to dissolve a marriage may lead people to enter marriages that they would not have considered when dissolution was more difficult, resulting in an additional number of fragile marriages and eventually an increase in the divorce rate” (Parkman 1993).

    In Australia, NFD together with its other public policies dramatically changed the landscape of marriage and family formation in Australia, first by dramatically increasing the number of divorces soon after its implementation, and subsequently reducing the number of marriages because it had undermined the stability of marriage. Women thinking about marriage and children take the effects of those changes into account, reducing their willingness to marry, to specialise in home production, and to have children5 (Maley, 2015).

    Given the many personal and societal benefits of marriage (Adshade, 2019), divorce is a situation which both individuals and society wish to avoid. Current marriage laws6 are therefore formulated to support that. While this means couples need to go through some amount of difficulties and even incur high costs to obtain a divorce, it is meant to effectively discourage couples from taking marriage lightly, and encourage them to continue working on their marriage.

  • …On Women’s Rights
    There has been much discussion recently about women’s rights. Even as we continue to advocate for women’s welfare in marriages, it is good to bear in mind that provisions in the current fault-divorce system serves to protect women’s interests.

    In Singapore, the Women’s Charter was passed in 1961 to promote marriage equality, making it both the husband’s and wife’s obligation to safeguard the union of marriage, and to care for and provide for their children. While women’s rights are more equal today, women continue to bear more of the burden in caring for the home and children than men. A marriage and therefore a divorce – especially in the early years when the children are young – naturally exacts a greater cost on women than men in most cases, even if the women is economically independent (Lloyd, 1987).

  • …On Protection Afforded by the Marriage “Contract”
    The current marriage law punishes an adulterer, deserter and a person who behaves in such an unreasonable manner that he/she cannot be lived with, and rightly so, because these are immoral behaviour which makes for a fragile and fragmented society. In this case, moral behaviour goes beyond a religious and relational definition to a wider communal one. For a society to function, the principles of the law of contract must hold.

    In commercial contexts, a contract serves to provide all parties involved sufficient certainty about the future through enforceable penalties or, at the very least, some form of restitution when terms are breached. This prevents someone from breaking the contract quickly and easily. A marriage must have the same, if not greater, level of guarantee, especially where innocent children are involved as powerless parties of the marriage contract. At its core, public policies that make it easy to break one’s promises makes for an unjust and weak society.

    Should we further extend NFD to include the option of unilateral divorces, the examples of US and Australia prove that this would ironically remove the protective rights and reduce the bargaining power of the spouse who did not want or cause the divorce, and result in many adverse outcomes.

  • …On the Institution of Marriage & Family
    While the analogy of a contract is used to highlight the importance of honouring one’s promise, marriage is more of an unbreakable, lifetime commitment. The fact that nobody goes into a marriage expecting to divorce demonstrates this as a core tenet of our society’s values.

    To use contrary views now to justify NFD7 will inevitably support a fundamental shift in values and beliefs where the institution of marriage is no longer a lifelong commitment. Are we ready to shift governmental and civic resources away from protecting marriages, knowing the greater fallouts to be expected from more divorces? Or would we be prudent and aim upstream to ensure that marriages start strong and end well, prioritising resources for pre-marriage programmes and in-marriage support instead?

    Looking again to the examples of US and Australia, changes to family law and other public policies to lower the costs of separation had the unintended consequence of eroding the institution of marriage and family.

    The eroding of marriage as an institute8 in America evolved into the "soul-mate" model whereby individuals’ emotional welfare is elevated and a divorce is justified when the marriage becomes unfulfilling. This has created a “divorce divide” between college-educated married couples and their less educated peers as "marriage is now disproportionately appealing to wealthier, better-educated couples because less-educated, less-wealthy couples often do not have the emotional, social, and financial resources to enjoy a high-quality soul-mate marriage" (Wilcox, 2009). This spells not just a weakening of personal relationships for individuals and families, but serves to create more fault-lines in society by class, wealth and status.

    Marriage and Family is the bedrock of our society. NFD or “amicable divorce” is a decision not to be taken lightly.

Conclusion

Divorce impacts individuals differently and while it can be beneficial to some, it has also been detrimental to others (Amato, 2000). Any policy change that can potentially lead to an increase in divorce needs to be proceeded with caution.

In summary:

  1. We do not support the recommendation for "amicable divorce" or NFD, given its uncertain benefits (reduction of acrimony) but definite disadvantages both in the short-term and long-term. A more fine-tuned approach should be taken to address specific/exceptional situations.
  2. More needs to be done to study the purported benefits of the proposed "amicable divorce" against other options and interventions. We request MSF to share the following:
    1. Clarity on the number and profile of individuals the recommendation aims to help, by citing reason for divorce (fault vs separation) and whether the divorce is un/contested.
    2. Elaboration on how NFD can reduce acrimony.
    3. Number of separations that reconciled the marriage during the waiting period.
  3. We support MSF’s recommendation to have all parents of children under the age of 21 years attend the MPP before filing for divorce, including parents on the SUD track. In addition:
    1. We recommend extending MPP to those considering divorce as an option.
    2. We request for an evaluation of the effectiveness of the current MPP to determine if it is sufficient for parents to pick up the skills needed for co-parenting, as well as helping them process for themselves and with their children the impact of conflict and divorce plus how to nurture stable and loving relationships at home.
  4. We support MSF’s recommendation for counselling for those who are unsure and want to save their marriage, and further suggest that:
    1. counselling be done for all who are filing for divorce.
    2. upstream measures be more aggressively adopted to make marriage preparation compulsory or the norm, and avail continual marriage programmes to address inevitable marital challenges that couples go through in different seasons of their lives.
    3. We propose elevating children’s voices in the divorce decision, and consider providing the child a “friend” akin to a “Child Representative” in court to represent his/her interest, starting from even before the divorce is filed.
    4. We suggest a deep-dive study of the examples of other societies which have implemented NFD and similar law and policies, to specifically assess how marriages and families have been impacted, so as not to repeat their mistakes and to develop a system that works best for the long-term and greater good of Singapore children and society.

Contact person:

Head of R&D, Elisa Ng: Elisa.Ng@family.org.sg

References:

  1. Either party can initiate a divorce without citing fault, even against the wishes of the other party. In Australia, 77% of the divorces were initiated by one party only.
  2. It is worth noting that in Australia, a one-year separation is necessary even for NFD.
  3. Even if the individual moves on to another marriage, such help will increase the chances of their second marriage working, bucking current trends (Tan, 2016).
  4. Honour and honouring has always been and will be the blueprint for Singapore’s success, and essential for Singapore’s future and survival. About - Honour Singapore
  5. Maley described how the fault-based system used to provide wives the institutional guarantees against the loss of her partner, the collapse of her marital expectations, and the prospect of rearing children alone in conditions of relative impoverishment, without which reduces her desire to have more children thereafter causing a reduction in birth rates.
  6. No divorce within the first 3 years of a marriage; Irretrievable breakdown of marriage being the sole reason for divorce.
  7. “And with longer lifespans, it is unrealistic to expect people to stick with a specific partner for 50 years or more, especially if they made those commitments at a young age” says sociologist Paulin Straughan https://www.channelnewsasia.com/news/singapore/no-fault-divorce-benefits-safeguards-experts-msf-14794700
  8. Couples no longer need a marriage to legitimise having sex or giving birth and raising children.

 

Bibliography

View Annex: Survey of Individuals Whose Parents Divorced

 

© 2021 Focus on the Family Singapore. All rights reserved.

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