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 will 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.[see Part III on 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 is an alternative way to settle family dispute other than going to Court. It has been increasingly used by separating or divorcing couples to settle 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.
Mediators? Who are they?
Mediators come from various professional backgrounds. They usually have qualifications in law, psychology, social work or social science. They are specially trained and have to meet accreditation requirements covering knowledge and skills in negotiation and dispute resolution. They are also required to abide by a Code of Practice.
Mediators are neutral. They
- do not take sides with either party;
- do not make decisions for parties;
- do not provide legal advice. Parties will be encouraged to consult their own lawyers for legal advice.
- do not offer counselling or therapy but may suggest such services;
- suggest new avenues to explore;
- help parties assess their own case realistically, assess the feasibility of the decisions; and
- help parties to explore settlement proposals in depth and find the solutions.