By Eldrick, Editor
From 2 May 2021, the Ministry of Social and Family Development (MSF) started gathering public feedback about a proposed model of “amicable divorce”, also known as no-fault divorce. This model, as the name suggests, excludes the need for couples to cite faults of either party for a successful divorce, contrary to current laws which mandate that divorce proceedings have to be carried out on the basis of irreconcilable differences. The proposal of this model came against the backdrop of rising divorce rates in Singapore. Indeed, statistics published in the Consultation Paper by MSF showed that among the 1987 resident marriage cohort, 18.9% of total marriages had dissolved before the 29th anniversary. Meanwhile, despite the shorter duration of marriage, the proportion of dissolved marriages among later marriage cohorts of 1991 to 2003 have already surpassed the 1987 cohort rate of 18.9% by the end of 2016. [1] At the same time, it has often been noted that divorce proceedings inflict more pain on the families, especially on the children. Therefore, no-fault divorce was proposed so as to alleviate these problems. By speeding up proceedings and encouraging families to heal and move on faster, the goal is to help couples cope with divorce in a less mutually antagonistic fashion, in light of the increasing divorce rates.
At face value, this model seems to entail that getting a divorce would be much simpler now. Instead of having to prove that one party is guiltier than the other, the couple can just agree to split amicably, thereby accumulating less pain or avoiding pain entirely during the proceedings. However, some may object to it on the basis that it undermines the sanctity of marriage. For instance, when faced with problems, married couples might become less incentivised to try and work things out given the ‘easy’ way out via no-fault divorce. Furthermore, couples might even get together knowing that they can exit the marriage easily, likewise diminishing the need for couples to try and make the marriage work in the long run. In this article, I aim to highlight that while these instances may not necessarily be the case, the presence of the no-fault divorce option does lend credence to the view that the sanctity of marriage would be undermined.
On Therapeutic Jurisprudence
The notion of no-fault divorce is parked under the larger framework of Therapeutic Jurisprudence. Therapeutic Jurisprudence is an “interdisciplinary method of legal scholarship that aims to reform the law in order to positively impact the psychological well-being of the accused person.” [2] It was coined by professors David Wexler, a practising lawyer for the Criminal Division of the United States Department of Justice before he entered academia and Bruce Winick, an internationally known scholar and lecturer in mental health law and in law and psychology. It was Wexler who fostered an interest not in law and therapy but in law as therapy that sparked off this field. [3] While laws are often practised or discussed with regards to their consequences and punishments, Therapeutic Jurisprudence aims to revise this conception to include more broadly, the effects that laws may have on the stakeholders within its ambit. In the context of marriage laws, this meant taking into account the emotional well-being of children whose parents are going through a divorce as well as the acrimony between family members during a divorce proceeding.
Under this broader juridical framework, the responsibility of the law to account for the well-being of those involved in a divorce proceeding is magnified. It is almost as if it’s a necessary duty of the law to do so, an absence of which would suggest a form of neglect and hence, reprehensible. However, detractors might claim that it is not a duty of the law to take into account one’s well-being, what matters purely is that the law is made on a just basis. There are two ways to handle this objection: Firstly, one can argue that it is not a necessary duty for the law to take into account the well-being of those involved in divorce proceedings. Instead, it is perhaps more advisable or praiseworthy for laws to do so given that the fact of the matter is that divorces are usually unpleasant. If not, one can generally push for the point that under the framework of Therapeutic Jurisprudence, it is perhaps imperative or compulsory that the law be looked at in terms of its effects on the well-being of the stakeholders, thereby including the notion of well-being under the law.
Secondly, if we hold onto our yardstick of justice, then it could also be argued that to alleviate the sufferings of the people (which is in line with promoting their well-being) involved in the divorce proceedings is more just than to do otherwise, including not doing it. Therefore, if we consider justice to be a fundamental reason behind all human acts, including the enactment of a law, then the case can be made for exercising the framework carved by Therapeutic Jurisprudence when passing laws.
On Marriage
If one disagrees with Therapeutic Jurisprudence, one would have to show, as highlighted above, how other factors of justice come into play that may potentially overshadow that value of justice that law as therapy encompasses. However, there is a more pressing issue at hand, which is the charge that no-fault divcorce undermines the sanctity of marriage.
Most opponents of no-fault divorce, when called to arms, instinctively cite this reason. They argue that when divorce is made easier, the propensity to work things out is lower. Furthermore, a society whose legal system permits the easy solubility of marriage also conveys a seeming lack of regard for marriage, thereby debilitating the status of the institution of marriage on the whole. There has been push backs against such arguments, mostly focusing on empirical data. For instance, while the introduction of no-fault divorce in the United States (US) in 1969 led to a doubling of divorce rates from 1960 to 1980, confounders such as the period’s cultural shift in favours of women’s rights meant that this rise could not be attributed to the implementation of the law alone. [4]
However, arguing via empirical data does not target the core of the concern essentially as it is still premature to observe the changes in social and cultural perspectives in Singapore, especially regarding the sanctity of marriage prior to the implementation of no-fault divorce (A longitudinal study on individuals’ perspectives on marriage upon no-fault divorce in the US would be more helpful). While the concern behind the debilitation of no-fault divorce may not be as prominent in Singapore as other more religiously conservative countries, the fact that Singapore is a multi-religious state implies that the threat looms large still, at least among religious groups who do not sanction divorce.
Is the Threat to the Sanctity of Marriage really a Legitimate Concern?
Most people are risk-averse creatures. As such, we would not plunge into something knowing that it carries with it big potential losses. Divorce is one such loss, and a very big one, considering the emotional trauma and psychological travails one has to go through. However, no-fault divorce reduces the risk involved in divorce, as such, it appeals to people’s risk-averse nature and possibly inculcates a form of belief that divorce is fine, when some might think it should not be. Therefore, no-fault divorce cheapens marriage by invoking the notion that divorces of any nature and kind are fine. The question of whether divorce is seen as neutral or negative depends, to a large extent, on people’s current impressions. This implies that the conception of divorce is largely dependent on society. As mentioned above, given that the majority of the Singapore population still carries a religion, [5] the stigma against divorce might persist for a while and hence, many might believe that no-fault divorce harms the sanctity of marriage.
I’m not passing judgements on divorcees, knowing full well that some did it in order to escape from toxic and abusive relationships, which are perfectly good reasons. Rather, I’m targeting the phenomenon of divorce, which is shaped by people’s perception. In other words, some may argue that our negative connotations of divorce should stay although this need not imply that our impressions of divorcees should be negative. On the other hand, some may argue that perhaps no-fault divorce is the starting step through which we as a society start taking a less harsh or negative stance towards marriage. Hence, there is no easy resolution to this point but it does rest on a recognisable basis, which is the extent to which laws ought to be used to change social stigmas or to conform to social stigmas.
There is also a sense that people who resort to divorce often find their marriage no longer worth fighting for. Again, if this sentiment comes from a toxic or abusive relationship, then it is naturally permissible for one, in view of one’s well-being, to exit the relationship as soon as possible. However, for most ordinary cases, some may advise that one ought not to let an overriding sense of individualism from playing a big part in the relationship.
Most conflicts, especially within a married couple, can be reduced to a difference in values, even if it is for a momentary basis. Take, for instance, caretaking. If your partner decides that scolding your child is bad, and that one should talk to her nicely, whereas you think that scolding is perfectly fine, the tension is not so much about whether one of you should carry out the act of scolding. Instead, the fundamental disagreement about whether the act of scolding ought to be carried out can be attributed to a difference in values regarding education or nurturing. Perhaps you think that nurturing a child does not necessitate any form of hostile verbal assertions but your partner thinks otherwise. Hence, when it comes to clashes in values like this, a compromise is necessary, which in turn necessitates a certain foregoing of your individualism, by which I refer simply to your individual beliefs or values. Given the many choices that many people have when it comes to dating nowadays [6], most are enticed not to put so much effort into a relationship. Likewise, for a marriage, perhaps no-fault divorce can be motivated by an overriding sense of individualism, which is against the concept of marriage in the first place. Therefore, no-fault divorce seems to call to doubt the foundation of marriage as an endeavour of compromise.
Regarding this, detractors might claim that no-fault divorce tries to help the situation of those who are trapped in an entirely loveless marriage where both parties already want to exit the marriage, thereby facilitating a mutually beneficial process. Therefore, it is not the case that both parties allow their individualism to reign free and refuse to compromise, rather it is that both parties no longer find the impetus to do so. Granted, this would suggest that no-fault divorce does not threaten the sanctity of marriage, rather, it helps to alleviate the sufferings of only those who no longer want to stay married by way of a mutual agreement.
Conclusion
The sanctity of marriage which was first preserved sanctimoniously by religion has been displaced by increasing secularity on the global level. Making divorce an easy option seems to play a role in this agenda, especially in Singapore, where the majority of people are either true devotees of particular religions or card-carrying ones. Instead of tackling divorce as a way to cope with high divorce rates, it is perhaps better to inform people of the price of marriage. While marriage brings with it a large share of happiness, it also involves the cost of one’s individualism [7], which if it does not sound entertainable, ought not to be within one’s life plans.
As I have mentioned above, this article aims to discuss if the sanctity of marriage can be preserved in face of no-fault divorce. While the bulk of the views expressed here suggests that the presence of the no-fault divorce option does lend credence to the view that the sanctity of marriage would be undermined, I also acknowledge that this suggestion is built on certain presuppositions that may not be accepted by some in the first place, the most significant one being the sanctity of marriage. However, in the context of Singapore where marriage has been institutionalised as a gateway towards a basic necessity such as getting a house, the idea of the sanctity of marriage appears to be confirmed and upheld, hence, much of the implications of no-fault divorce have to be thought through thoroughly.
Bibliography
[1] https://www.msf.gov.sg/publications/Pages/Consultation-Paper-Better-Support-Children-and-Divorcees-and-Reduce-Acrimony-in-Divorce.aspx
[2] https://www.oxfordbibliographies.com/view/document/obo-9780195396607/obo-9780195396607-0203.xml
[3] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2747488
[4] https://www.ricemedia.co/singapore-no-fault-divorce/
[5] https://www.singstat.gov.sg/-/media/files/visualising_data/infographics/c2020/c2020-religion.pdf
[6] https://www.youtube.com/watch?v=RS8R2TKrYi0
[7] See Sartre’s pessimistic analysis of love and coupledom in Being and Nothingness (Sartre, J.-P. (2003). Being and nothingness (H. E. Barnes, Trans.; 2nd ed.). Routledge.
Eldrick is a Y3 Philosophy student who likes films, music and literature. “To rejoice in one’s heart and to love, one needs solitude, but to be a success one must get about in society.” Stendhal