1. Apart from going to Court to apply for a divorce,
are there any other channels through which unhappy spouses can settle
their differences? What are the differences between these other channels
and divorce proceedings?
   
You may consider making use of the following alternatives:-
(i) Deed of Separation – It refers to a separation agreement that can be made between the two parties
by themselves. The agreement can specify a period of separation,
and what the parties do with their children (if any) and how their children’s
and each other’s maintenance will be provided. It is recommended that a
lawyer be consulted before such an agreement is made.
A deed of separation is appropriate where the parties are
in a harmonious relationship and there is a good chance that each party
will agree to be bound by the terms.
But the downsides of this option are:
- If any party has breached the term(s) of the Deed, the other
party can only sue the breaching party for breach of contract. The enforcement
of it is different from the enforcement of a court order made in divorce
or judicial separation proceedings.
- Legal Aid is not available for negotiating a deed of separation.
- In situations where proceedings for divorce or judicial
separation are issued subsequently, the existence of a deed of separation
does not prevent the Court from making a different order even though
the deed embodies terms to the effect that the parties intended it to
be final: because the law provides that any term in a deed that restricts
the right of any party to apply to the Court in future proceedings shall
be void. But in future proceedings the Court will usually be inclined
to uphold the terms of the deed (assuming it was made voluntarily and
each party had the opportunity to seek independent legal advice) unless
there is very good reason to do otherwise.
(ii) Separation Order – Under some circumstances, and if no
agreement can be reached, one party can apply to the District Court for
a separation order together with maintenance orders (e.g. Either
party may be ordered by the Court to give financial support to the other
party, and/or the children, for the costs of living.) provided that
he or she has not committed adultery. In the case of a wife, she may
apply
where the husband has been convicted of having assaulted her, or has
deserted her, or is guilty of persistent cruelty to her, or her infant
children, or has knowingly transmitted venereal disease to her, or has
compelled her to be a prostitute, or is a habitual drunkard or drug addict.
In the case of a husband, he may apply where the wife has been guilty
of persistent cruelty to his children or is a habitual drunkard or drug
addict.
If the Court finds that there are sufficient grounds, it may
order that the parties be separated, i.e. they need not live together
any more although they are still legally husband and wife (they are not
free to re-marry at this stage). The Court may also make orders relating
to the custody of the children and the maintenance of the other spouse
and of the children.
(iii) Judicial Separation – A spouse or couple may apply to the District Court for a judicial separation,
which is a legal process through which parties obtain formal recognition
of their separation. The minimum 1 year rule of marriage does not apply to judicial separation. However, to get a judicial separation,
the applicant has to prove basically the same facts as they would in
a divorce. The effect of a judicial separation is the same as a separation
order, i.e. the parties are still husband and wife but they need not
cohabit. Parties who are judicially separated are not free to re-marry.
The Decree is only granted subject to the requirement that satisfactory
arrangements have been made for the welfare of any children.
There are several possible reasons why a couple would apply for judicial separation
instead of divorce, for example:
- when one or both parties are opposed to divorce on either
religious or moral grounds;
- one party does not wish to give the other the ability
to remarry;
- when the parties have been married for less than 1 year
and are therefore unable to apply for divorce;
- in order to prevent the loss of benefits available only
to a spouse.
The existence of a judicial separation decree does not preclude
either party from applying for divorce subsequently.
(iv) Mediation – Family mediation has been increasingly used
as an alternative way of settling family disputes other than going to
court, especially for separating or divorcing couples in respect of
the issues arising from marriage breakdown.
What is "family mediation"?
In practical terms, family mediation is a problem-solving process designed to
help separating/divorcing couples reach their own mutually acceptable
agreements regarding on-going arrangements for their children and/or
the resolution of financial matters.
It is a voluntary process in which a trained, impartial third person (the mediator)
can assist both parties to communicate and negotiate issues in a confidential
setting.
In a family mediation session, the mediator will help you
to:
- discuss and decide which areas are in dispute;
- explore each party's needs and interests;
- expand options and select the most suitable solution;
- draw up your agreement in detail setting out how you have
agreed to solve each problem.
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