Divorce Proceedings & Interim Maintenance Applications

Clients undergoing divorce proceedings are under a lot of distress and require guidance on what and how much (if any) to claim against their spouse in the form of maintenance.

Maintenance is a form of financial support. Under the Women’s Charter (Cap. 353), Section 69, you can apply for maintenance;

• For your child, from the other parent, if he or she neglects or refuses to provide the child with reasonable maintenance;
• For yourself, from your husband, if you are a married woman whose husband neglects or refuses to provide you with reasonable maintenance;
• For yourself, from your wife, if you are an incapacitated husband whose wife has neglected or refused to provide you with reasonable maintenance; or
• For yourself, from your parent, if you are over 21 and you are still a full-time NSman or student.

What Maintenance Orders Can the Court Make?

The Court may order one party to pay maintenance for a wife and/or the child, or an incapacitated husband, if there is neglect in doing so.

Some of the more common maintenance orders which can be made by the Court are set out below:

• A monthly allowance;
• Repayment of specific expenses that are being paid by one party; or
• Direct payment of expenses to a service provider e.g. Childcare Centre, Utilities Providers.

It is not easy to navigate the minefield of terms under the Women’s Charter, which is the law governing (amongst other things) divorces, custody of children, maintenance of children and wife.

Our lawyers at IRB LAW LLP are able to review your case in a practical and careful manner and advice you on what you are able to claim (if any). They will guide you on the difference between maintenance for wife, maintenance for an incapacitated husband and the maintenance of children.

Interim Maintenance Applications

Before divorce proceedings have commenced and/or in the early stages of divorce, an incapacitated husband or wife may need interim maintenance for themselves or the children. The family unit is also an economic unit which requires the contribution of both the husband and wife. However, we often see spouses, upon a breakdown of the marriage, stopping all financial contribution to the family.

In other words, in many disputes, even before the matter reaches the Court, the spouses unilaterally stop the maintenance that they are paying for the other spouse and/or children.

We take the view (consistent with the law) that the act of stopping maintenance or reducing maintenance because of the breakdown of marriage is wrong. The breakdown of marriage is different and separate issue from the obligations of maintenance and other obligations that remain on husband and wife.

If a spouse reduces maintenance or stops maintenance, one may make an application to Court for interim maintenance. Please visit here for more information: https://www.familyjusticecourts.gov.sg/what-we-do/family-courts/maintenance.

In order to better explain the principles of maintenance applicable, especially interim maintenance, we have reviewed a recent decision of the High Court and set out a summary of the principles discussed therein.

Summary of the Law

The Women’s Charter governs the law of spousal and child maintenance in Singapore. The charter grants the court the power to make maintenance orders The court may grant interim maintenance orders before divorce has been applied or during the pendency of the matrimonial proceedings if there are urgent reasons.

There are a multitude of factors that the court has to consider when an application for interim maintenance is made by a party. The court must review all the factors of the case. Specifically, the court must be guided by the following:

1. the financial needs of the wife, incapacitated husband or child;
2. the income, earning capacity (if any), property and other financial resources of the wife, incapacitated husband or child;
3. any physical or mental disability of the wife, incapacitated husband or child;
4. the age of each party to the marriage and the duration of the marriage;
5. the contributions made by each of the parties to the marriage to the welfare of the family, including any contribution made by looking after the home or caring for the family;
6. he standard of living enjoyed —

• by the wife before her husband neglected or refused to provide reasonable maintenance for her;
• by the incapacitated husband before his wife neglected or refused to provide reasonable maintenance for him; or
• by the child before a parent neglected or refused to provide reasonable maintenance for the child;
• in the case of a child, the manner in which he was being, and in which the parties to the marriage expected him to be, educated or trained; and
• the conduct of each of the parties to the marriage, if the conduct is such that it would in the opinion of the court be inequitable to disregard it.

The court’s approach was recently confirmed when the General Division of the High Court (Family Division) dismissed an appeal for an interim maintenance order in VRJ v VRK [2021] SGHCF 9.

Summary

The court held on appeal that there was no need to order interim maintenance. The special facts of this case is as follows: The appellant (the wife) had access to substantial funds to maintain herself and the children pending the finalisation of the divorce proceedings. For the court to grant an interim maintenance order, the appellant must show that the respondent refused or neglected to provide reasonable maintenance, and there is a need for an interim order.

The court’s discretion to grant interim maintenance orders under the Women’s Charter

• Section 69(2) of the Women’s Charter states that the court may, on due proof that a parent has neglected or refused to provide reasonable maintenance for his child who is unable to maintain himself, order that parent to pay a monthly allowance or a lump sum for the maintenance of that child.
• Section 127(1) provides that the court may order a parent to pay maintenance for a child at any stage during the pendency of any matrimonial proceedings. Section 127(2) provides that Part VIII applies. Section 69(2) falls under Part VIII.
• Section 69(1) provides that the court may, on the application of a wife, and on due proof that her husband has neglected or refused to provide reasonable maintenance for her, order the husband to pay a monthly allowance or a lump sum for the maintenance of that wife.
• Section 113(1)(a) provides that the court may order a man to pay maintenance to his wife or former wife during the course of any matrimonial proceedings.

When will the Court grant an interim order?

The court will only interfere and grant an interim order before the divorce hearing for expedient or urgent reasons. An interim maintenance order will only be made if there is a clear need for it.

Duty of the Court

At the interim stages of the proceedings, and since it is an interim order only, the court proceeds on a broad-brush manner when calculating the amount of maintenance to order.

Referring to Lee Bee Kim Jennifer v Lim Yew Khang Cecil [2005] SGHC 209 at para 7, the court confirmed that at this interim stage of the proceedings, the court is not in a position to do a thorough investigation of the parties’ financial positions or their lifestyles. Until the later stages of proceedings, the court will instead proceed conservatively when making interim orders.

The wife, in this case, had sole access to substantial amounts of money which belonged to the parties as husband and wife. Although she argued that she would not use or access the money, neither the law nor her husband forbids her to use the money for maintenance. She had access to more than sufficient funds for her and the children’s maintenance until the divorce hearing. The judge on appeal thus agreed with the District Judge that there was no need for an interim order.

What is the Objective of an Interim Maintenance Order?

The court reiterated that the objective of interim maintenance is to provide modest maintenance to help the parties to meet immediate financial needs until divorce proceedings are finalised.

In this regard, the court referred to Foo Ah Yan v Chiam Heng Chow [2012] 2 SLR 506, where the court stated that the overarching principle of awarding maintenance is that of financial preservation, which requires the wife to be maintained at a standard that is, to a reasonable extent, similar to the position she would have been in had the marriage not broken down. At the same time, the new realities that flow from the breakdown of the marriage must be taken into account.

In VRJ v VRK, the wife had enough funds to meet their immediate financial needs and beyond. Hence, there was no need for an interim order for financial preservation.

The Burden of Proof

The District Judge in VRJ v VRK referred to TCT v TCU [2015] 4 SLR 227 where Valerie Thean, JC, held that despite the difference in wording between section 69, 113 and 127, all required proof of neglect or refusal to provide reasonable maintenance. The wife must prove that the husband failed to provide reasonable maintenance to succeed with an interim order application.

On appeal, this court agreed with the DJ in VRJ v VRK, that the wife did not succeed in proving that the husband neglected or refused to provide reasonable maintenance for her or the children. The husband initially agreed to pay monthly maintenance for her and the children, pending the finalisation of the divorce proceedings. At some stage, he stopped the monthly payments arguing that the wife had more than sufficient funds.

The court followed the TCT v TCU judgement and held that both section 113(1)(a) and 69(2) of the Women’s Charter require the wife, who is the appellant, to show that the husband neglected or refused to provide reasonable maintenance. The court found that the funds available to the wife were ample to provide for their needs, and it cannot be said that the husband contributed such a minimal amount that it amounted to neglect or refusal. The wife had sole access to substantial funds, and there was no need for an interim order.

The fact that the wife is refusing to use the money that she has access to does not mean that the husband neglected or refused to provide maintenance. Likewise, the fact that the husband stopped paying after initially agreeing to pay monthly contributions does not in itself justify an interim order. It does not show a need to make an interim order to order the husband to provide monthly payments.

The Court’s Decision on Appeal

The wife’s appeal against a decision of the District Judge who refused to make an interim maintenance order was dismissed. It was held that the DJ was correct in not granting an interim maintenance order.

Interim Orders and Backdating Maintenance

The court made a final comment on backdating maintenance that is worth noting when considering interim maintenance orders. Some earlier district decisions indicated that if a party did not apply for an interim maintenance order before the ancillary matters hearings, it is unlikely that the court will grant an application for backdating maintenance. In another case, TG v TH [2007] SGDC 172, however, the District Court backdated the maintenance order as the wife’s reason for not applying for an interim maintenance order was to save costs.

In VRJ v VRK, the judge referred to AMW v AMZ [2011] 3 SLR 955, where it was held that to compel a party to apply for interim orders is to encourage applicants to incur unnecessary costs and to clutter the court’s calendar. Woo Bih Li J, in AMW v AMZ, held that when the court makes final maintenance orders, the court could backdate maintenance if the court thinks it is fair to do so. This wide power to order maintenance from whichever date the court considers fair should not be fettered by an approach that requires interim applications.

On appeal in VRJ v VRK, Choo Han Teck J followed this approach. He held that the court can predate the maintenance order to a date before the writ was filed to a time when the failure to provide reasonable maintenance began, regardless of whether an interim order was applied for.

Comments

This case confirms the position that an appellate court will not readily interfere with a lower court’s refusal to grant an interim maintenance order. The court has wide discretion regarding the division of matrimonial property, and the presumption would be that the decision appealed against was right. This approach followed in Lee Bee Kim Jennifer v Lim Yew Khang Cecil [2005] SGHC 209. If the appellant cannot point out specific evidence to show that the trial judge erred in dismissing the application, the appellate court is unlikely to change the outcome.

Courts are generally conservative in deciding whether to grant an interim order at a stage in the matrimonial proceedings where the court has not had the opportunity to do a thorough investigation into the parties’ financial position. Interim maintenance is seen as a “tide over” sum until the final hearing.

Interim orders are reserved for situations where there is a need for such an order to provide modest maintenance for immediate financial needs pending later divorce proceedings. Where the parties have access to funds to cover such needs, there is no need for an interim order, and the court will rather err on the side of conservatism.

This judgment provides good guidance to parties to divorce proceedings on the court’s attitude and approach when considering interim maintenance orders.

On the burden of proof as set out in sections 69, 113 and 127, it might be prudent to amend the wording of the Women’s Charter to clarify and align the wording so that there is no room for different statutory interpretations. Was it the intention of the legislature to create the same test whilst using different words? As the case law stands at the moment, the answer is in the affirmative.