On 10 January 2022, Parliament had passed the Women’s Charter (Amendment) Bill (the “Amendment Bill”).
Currently, in order to divorce, you will have to prove that the marriage has irretrievably broken down.
To establish this, there are 5 facts that you can rely on, namely:
- Adultery– Where your spouse has committed adultery and you find it intolerable to live with him/her;
- Unreasonable Behaviour – Where your spouse has behaved in such a manner that you cannot reasonably be expected to live with him/her;
- Desertion– Where your spouse has deserted you for a continuous period of at least 2 years;
- 3 Years’ Separation (With Consent) – Where you and your spouse have been separated for a continuous period of at least 3 years. For this fact, your spouse’s consent to divorce is required; and
- 4 Years’ Separation – Where you and your spouse have been separated for a continuous period of at least 4 years. For this fact, your spouse’s consent to divorce is not required.
One of the main changes that the Amendment Bill will introduce is a new fact of divorce – Divorce by Mutual Agreement (“DMA”), the new 6th fact.
In this article, we will address some of the commonly asked questions that we have received regarding DMA.
What is DMA?
Once the Amendment Bill has been enacted, there will be a 6th fact that you can rely on, namely:
Divorce by Mutual Agreement (“DMA”) – where you and your spouse agree that the marriage has irretrievably broken down.
What is the effect of DMA?
DMA will allow you and your spouse to divorce without specifically pinning the blame on one specific party (as opposed to relying on the Fault-Based Facts). Under DMA, you and your spouse will be taking joint responsibility for the breakdown of the marriage.
DMA vs the Fault-Based Facts
DMA can be contrasted with the fault-based facts of Unreasonable Behaviour (which is the fact most commonly relied on), Adultery, and Desertion (the “Fault-Based Facts”). When relying on the Fault-Based Facts, one spouse is stating that the marriage has irretrievably broken down because of the other spouse (i.e. that it is the other spouse’s “fault”).
Accordingly, DMA provides Parties with an opportunity to have a divorce without acrimony. This is particularly important when there are children to the marriage, as Parties will still have to co-parent even after divorce.
DMA vs the Separation Facts
While 3 Years’ Separation (With Consent) and 4 Years’ Separation (the “Separation Facts”) are not fault-based, citing these facts will require spouses to wait before they can file for divorce.
In the interim period, the situation and relationship between spouses could become tense which is not ideal for Parties and their children (if any). This awkward period can be avoided if Parties are able to rely on DMA.
What are the requirements of DMA?
To rely on DMA, the following requirements must be fulfilled:
- Parties must be married for at least 3 years – the general restriction on filing for divorce during the first 3 years of marriage still applies to DMA
- Parties must have a written agreement (the “Agreement”) that the marriage has irretrievably broken down that includes:
- The reasons that led Parties to conclude that their marriage has irretrievably broken down;
- The efforts that Parties have made to reconcile; and
- The consideration that Parties have given to the arrangements to be made in relation to their financial affairs and any child of the marriage.
The Court will not accept the Agreement if it is not satisfied with Parties’ reasons, or if it finds that there is a reasonable possibility for Parties to reconcile.
What are some reasons that I can use in DMA?
Examples of the reasons that can be cited by Parties relying on DMA include:
- Having vast differences in values;
- Being unable to see eye-to-eye;
- Having constant misunderstandings;
- No longer having any love for each other; and
- Growing apart and being unable to see their lives together.
Can I divorce using DMA now?
While Parliament has passed the Amendment Bill, this is not yet in effect. The changes to be introduced by the Amendment Bill will only come into operation on a date that the Minister appoints by notification in the Gazette. The likely date for this is in 2023.
Until the Amendment Bill takes effect, any divorce will have to be based on the pre-existing 5 facts.