A divorce revolution swept through the United States in the decade after Ronald Reagan signed a 1969 bill legalizing no-fault divorce in California, a decision he later considered to be one of the biggest mistakes of his political career.
Like many other parts of the world, the country of Singapore initially showed signs that it would follow the American example. In 1979, a bill was laid before Parliament that would provide an option for no-fault divorce. When the bill was referred to a Select Committee, however, its members recommended against the introduction of no-fault divorce. In the committee’s view, Singapore’s divorce law “should not make it easy for a couple to terminate their marriage without first making an effort to overcome their difficulties.” Parliament accepted the committee’s recommendations, and the provision allowing for “dissolution by mutual consent” was deleted from the bill.
More than forty years later, advocates for no-fault divorce in Singapore are basing their claims on a new foundation: “therapeutic justice.” This theory, which is also known as therapeutic jurisprudence, was developed by David B. Wexler and Bruce J. Winick in the late 1980s as an interdisciplinary approach to legal scholarship and law reform. It emphasizes the importance of reshaping and redesigning the law in order to minimize its negative effects on the mental well-being of those affected by it, and to increase its potential for positive psychological outcomes. Early scholarship in therapeutic jurisprudence tended to focus on mental health law and was only gradually expanded into other areas, such as matrimonial law.
While it is good that legal systems have become more sensitive to the psychological effects of the law on participants in the legal process, we should be wary of claims that assert that no-fault divorce is “therapeutic” for divorcing couples or their children. Advocates for the sanctity of marriage across the globe should pay close attention to this shift.
What’s Happening in Singapore
In May 2021, Singapore’s Ministry of Social and Family Development published a consultation paper titled “How To Better Support Children And Divorcees, And Reduce Acrimony In Divorce.”
The paper contains three proposals, which were developed based on engagement sessions with divorcees and social service practitioners from the Divorce Support Specialist Agencies. The first proposal is to enhance support for children affected by divorce by having parents and children attend programs to assist them in the process. The second is to provide more support for those undergoing divorce, such as counseling and mediation. These first two proposals are relatively uncontroversial.
The third, however, is problematic. The Ministry proposed an “amicable divorce” option to allow divorce to couples who mutually consented to it, without the need to cite or prove any grounds. In essence, this is a proposal to introduce no-fault divorce in Singapore, even though the Ministry refrained from explicitly using the term. The Ministry was quick to deny it had any intention to make divorce “easier.” It emphasized that current legal safeguards would remain, such as the three-year minimum marriage period before one can file for divorce, and the three-month period before divorce is finalized. It also said that additional counselling services would be provided to those who wish to save their marriage.
This consultation paper is part of a significant paradigm shift in legal and cultural attitudes toward the family justice system in Singapore. It builds on the Family Justice Act 2014, which marked the beginning of the country’s move toward the legal framework of therapeutic justice.
However, it is plain from the history of therapeutic jurisprudence that the concept of therapeutic justice does not necessarily require no-fault divorce. In fact, the two ideas developed independently of one another, and no-fault divorce was legalized in many countries long before therapeutic jurisprudence had been conceptualized.
A Better Path to Divorce Reform
The fundamental problem with the existing divorce regime is its adversarial character, a consequence of the litigation system that Singapore inherited from English common law. The common law also gave rise to divorce law’s problematic use of rigid procedures and technical rules. Another problem is that divorce proceedings in Singapore are divided into two stages: the divorce per se and the resolution of “ancillary matters,” such as the division of matrimonial assets and the custody, care, and control of the children. The latter stage is often where parties engage in a more acrimonious legal battle.
Thus, reforming Singapore’s divorce regime according to therapeutic justice principles may require a wide-ranging overhaul of the whole process.
First, the system should move away from the current technical approach that focuses on determining only whether a divorce should take place. Instead, its goal should be to ensure that everyone who is directly or indirectly affected by the divorce be made healthier physically, emotionally, mentally, and even spiritually.
Second, it should facilitate an honest exchange of views between the husband, wife, and children (if any), without being constrained by rigid technical rules concerning the legal relevance of the points being raised. Such encounters should be facilitated by professional and emotionally intelligent mediators; participants should be permitted to express hurt feelings, shame, remorse, and forgiveness.
Third, children should not be seen as “ancillary” to the divorce, but an integral part of it. The children’s voices should be amplified in the proceedings, and they should be given the opportunity to discuss, as far as possible, their views on their parents’ marriage and divorce. How much a child may participate should depend on his age and maturity.
Finally, the role of counselors should be enhanced, and the adversarial role of lawyers should be diminished. In divorce cases, the involvement of lawyers may impede rather than assist the resolution of disputes, especially when clients are highly emotional. Lawyers are almost invariably drawn by professional obligations to their clients to maximize the blame against the opposing party and to minimize compromise.
Although it is desirable for Singapore to reform its family justice system to maximize the therapeutic potential of the law, no-fault divorce is hardly the answer: it undermines the sanctity of marriage and harms innocent spouses and children, thereby failing to advance therapeutic justice.
Undermining the Sanctity of Marriage
In Singapore, as in every other country, no-fault divorce is an offense against the sanctity of marriage as a comprehensive, exclusive, and permanent union based on the sexual complementarity of a man and a woman.
Marriage is a covenant that formalizes love as a moral bond with mutual rights and responsibilities. It is uniquely ordered toward having and raising children, and it lies at the foundation of the family. Marriage also depends on the wider moral ecology, including a society’s values and norms regarding the roles, rights, and responsibilities of men and women or fathers and mothers; its norms regarding sexuality; and its attitudes toward conflict resolution and the inviolability of promises or vows. Government has an interest in protecting marriage’s integral role in society, in order both to safeguard children and to uphold the rights and responsibilities of husbands and wives.
No-fault divorce turns these principles on their head. It focuses the law on adult feelings and desires, not the needs of children. As Katy Faust and Stacy Manning write in their book, Them Before Us: Why We Need a Global Children’s Rights Movement:
No-fault divorce was the first step toward redefining marriage. Without the expectation of permanence in marriage, the most child-friendly institution ever known to mankind was transformed into a vehicle for adult fulfillment. No-fault divorce decreed marriage should exist to the extent the participants are happy; thus logic dictates that when a couple ceases to be happy, the marriage should cease to exist.
No-fault divorce is not just an administrative change. It redefines marriage not merely for divorcing couples but for all society. And, in spite of the good intentions of those who support it, no-fault divorce tends to do more harm than good. It is particularly unfair to innocent spouses when the other spouse is at fault for adultery, unreasonable behavior, or desertion. If a husband has physically abused his wife, he can simply consent to his wife’s divorce application rather than having his behavior examined by the court in the divorce proceedings. In this way, he can avoid or minimize the consequences of his abusive behavior on contested questions such as the custody of children or the division of matrimonial assets.
All divorces have a negative effect on children. Research has shown that, compared with children of continuously married parents, children of divorced parents reach adulthood with lower levels of psychological well-being, more discordant marriages, a greater likelihood of dissolving their own marriages, and weaker ties to their parents. And while high-conflict marriages may harm children to an extent that justifies divorce, the same is not clear for low-conflict marriages. Alan Booth and Paul R. Amato found that children from low-conflict families that end in divorce get less involved in community institutions and become less willing to take risks than if their parents do not divorce. Overall, research suggests that children in these “good enough” marriages would be better off if their parents reconciled and stayed together.
A Universal Human Dilemma
At the heart of divorce law is a dilemma within the human condition. All human beings seek to know and be known by another person at the deepest levels of one’s being. We are also flawed, capable of both good and evil, selfishness and altruism, love and hate. Faced with the complexities of human nature, every society faces the constant challenge to develop sound legal and moral norms to promote good values, behaviors, and habits and to restrain wrongdoing.
It is true that divorce law in Singapore needs reform; the adversarial litigation system is hardly the best way to address the numerous deep personal and psychological issues associated with divorce. Even so, no-fault divorce is not the solution.
As Singapore progresses toward reform of its divorce law, its lawmakers’ ultimate goal must be to address the underlying roots of problems through a process of healing, restoration, and reconciliation that respects the autonomy of all involved.