Divorce is far from a simple or straightforward matter. The considerations are often multifarious, but one intangible yet omnipresent aspect is none other than culture. From customs to communication methods, culture finds itself underpinning our beliefs, values and decision-making process for significant life events, such as divorce. In this article, we will examine the role of culture in divorce, and its consequent impacts on divorce proceedings.
Different cultures harbour different ideologies concerning divorce. The range of divorce patterns and trends across Asia or in any continent precludes any hasty generalisations from being made, because the different perceptions of divorce are not set in clear contrast. While acknowledging that many Asian countries have gradually adopted more progressive mindsets, Confucianism values and concepts of sanctity of marriage remain generally evident in many Asian legislations such as in Japan, China and more. The differences in ideologies that stem from culture manifest in the following few ways.
Legislation that is in place reflects the cultural influences on divorce. Understandably, policies and law would be governed by overarching concepts of what each culture recognises to be most appropriate for them. For example, in a bid to reduce the steadily-rising divorce rates in China, Chinese legislature approved a 30-day cooling off period in May 2020 after parties file for divorce. “We need to prevent this kind of impulsive divorces, [that happen in a fit of anger]” claims Cheng Xiao, vice president and law professor at Tsinghua University.[1] Further, Japanese legislation states that a spouse cannot divorce at his/her sole discretion. According to Article 763 of the Japanese Civil Code[2], husband and wife need to arrive at a mutual agreement before divorcing. The alternative would be filing a petition for mediation and, failing that, filing a lawsuit for divorce with the court.[3] From these cases, one can see the importance of holding together a family unit, and how that ideology translates into respective legislations.
However, legislation is constantly evolving and updated as well. For dynamic cultures – one that is also constantly evolving and progressing, countries can possibly experience a shift in ideologies, leading to a change in perception of divorce in respective societies. Recently, the Ministry of Social and Family Development in Singapore collected opinions from the public about amicable divorces, which aims to reduce acrimony between couples seeking divorce. Fault-finding and finger-pointing is an archaic principle that has been entrenched in our culture, mirrored by the need for couples to cite five fact-based faults to prove the “irretrievable breaking-down of marriage”, and also the adversarial practice of one party being a plaintiff and the other, a defendant. The new proposed model of amicable divorces does away with the aforementioned requirements, and overall represents a significant shift in ideology concerning divorce. Other countries like Australia, Malaysia and Japan have also already put their own versions of amicable divorces into practice. [4]
Another example of how different cultures influence divorce, would be the time period before a couple can legally start divorce proceedings. Under Sections 93 and 94 of the Women’s Charter[5], couples in Singapore can only file for divorce or start the ancillary process after three years of marriage, with exceptions of exceptional hardship, unreasonable or cruel behaviour. In contrast, countries such as Australia and England only require a period of separation. These countries allow for couples to get legally divorced after at least 12 months and at least two years respectively of separation, while allowing them to start settling ancillary matters before that date. The difference in time periods as above points to the lack of liberty and legal constraints that a couple has to face when getting a divorce.
A family’s inclusion in a couple’s divorce is an interesting cultural aspect as well. While the union and separation of a couple undoubtedly concerns the rest of their family, it is worthy to note the degree of involvement of families in divorces for different cultures. It is not uncommon for Asian couples to conduct large family meetings for the purpose of discussing the divorce, as opposed to countries with more westernized ideologies like Australia and France, where couples are more individualistic and independent about such matters. In general, the Asian society’s perception of a breakdown of marriage may be viewed as the breakdown of a family, which is why families in Asian societies feel like they have a greater stake in the relationship. Nevertheless, there still are Western countries that adopt a similar approach. This can be seen from how Spanish couples undergoing a divorce may tend to involve their families more.
In the same varying degrees that de facto relationships are recognised in different cultures, their separations are correspondingly recognised. In Australia, de facto couples’ separation and ancillary matters are handled in the Family Court or the Federal Circuit Court, which means that matters are handled the same way as married couples[6]. In contrast, there is no jurisdiction for de facto couples in Singapore to have their separation heard or division of property to be decided, except for child matters under the Guardianship of Infant Act where the de facto couple is recognised as joint guardians of the child. The cultural acceptance or recognition of de facto couples directly corresponds to their legal rights when separated as well.
Overall, the above examples clearly demonstrate the different impacts that differing cultures can have on divorce. But bringing the question home, how has the justice system in Singapore evolved to better accommodate the changing attitudes towards divorce and family? Originally, the Family Courts were created in 1995 as part of the Subordinate Courts to hear matters under the Women’s Charter, such as maintenance, child abuse and protection matters. The judiciary understood that in order to address the needs of youth and families in distress, endorsing the traditional adversarial approach towards dispute resolution, would not complement societal expectations that family members are meant to be harmoniously united together. Hence, the creation of a separate court, would instead allow for familial and divorce proceedings to be handled in a more amicable and less combative manner, protecting the nuclear family. While this was groundbreaking development for Singapore’s justice system, it was not the end. In 2014, the Family Justice Courts was established, pursuant to the Family Justice Act passed on 4 August 2014, as a separate judicial body to better suit the needs of family justice matters. The recent establishment of an independent Family Justice Courts in Singapore echoes the evolving ideologies in Singapore on family justice, where establishing judicial bodies to properly address family justice matters is now more seriously looked at, and considered necessary.
Having said the above, culture always has and will have a heavy influence on divorce matters. Current cultural trends propagate the idea that a balance should be struck between maintaining the sanctity of marriage, while granting couples an appropriate degree of autonomy. While the detriments of divorce are undoubtedly grave and impact issues from poverty to progeny, enough autonomy should nonetheless be accorded to each individual so as to allow individual liberty and independent decision making. Granted, at the end of the day, each culture has their own judgement as to where that balance is struck, and like it or not, that judgement influences many aspects of a divorce.
This article was co-written by Sarah-Mae Thomas LLC and Asia Law Network. Thank you to Sarah-Mae Thomas, Managing Director, for your help on the article.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.
[1] https://www.theguardian.com/world/2020/may/29/anger-in-china-at-law-ordering-cooling-off-period-before-divorce
[2] https://iclg.com/practice-areas/family-laws-and-regulations/japan
[3] https://yilaw.jp/en/divorce-en/#:~:text=Whether%20it%20is%20possible%20to%20divorce%20legally%20in%20Japan,Kyogi%2DRikon%E2%80%9D%20in%20Japanese
[4] https://www.singaporelawwatch.sg/Headlines/making-the-divorce-process-more-amicable-being-considered
[5] https://sso.agc.gov.sg/Act/WC1961?ProvIds=pr93-,pr94-
[6] https://www.gotocourt.com.au/family-law/de-facto-relationships/
Chloe Lee
“Now the writer, as I think, has the chance to live more than other people in the presence of this reality. It is his business to find it and collect it and communicate it to the rest of us.” - Virginia Woolf, A Room of One’s Own
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