How does the court decide on the amount of maintenance?

How does the Family Court decide on spousal and children maintenance?

This article will briefly cover three areas regarding an ex-wife’s maintenance:

  1. Determining the amount
  2. Nominal maintenance
  3. Variation of maintenance

How does the Court determine the amount of maintenance for ex-wife?

The Court looks at a variety of factors when making a maintenance order. There is no definite formula. Nevertheless, section 114(1) of the Women’s Charter provides some guidance in the form of a non-exhaustive list of factors that the Court will consider. Some of the factors include:

  1. Earning capacity of the parties;
  2. Assets of the parties;
  3. Financial needs of the parties;
  4. Age of each party; and
  5. Standard of living of the parties before the divorce.

In considering the factors above, the main principle that guides the Court is that of financial preservation. This means that the Court will, as much as it is possible, maintain the parties in the financial position as it was during the marriage before the breakdown.

The Courts recognize that it may not be possible to maintain such a possibility. In Foo Ah Yan v Chiam Heng Chow [2012] SGCA 15, the courts held that the principle of financial preservation should be applied in a commonsense holistic manner. This means that while the Court acknowledges that the husband should maintain the ex-wife, it would nevertheless consider the breakdown of the marriage. Ultimately, the Court believes that the ex-wife should not expect a full subsidy and should have some effort in preserving her lifestyle before the divorce.

Having said that, the Court would also consider the husband’s ability to meet the maintenance order and balance it against the ex-wife’s claim.

What does “no order as to maintenance” mean?

The usual order to preserve an ex-wife’s right to maintenance is to make one for nominal maintenance. In other words, the Court will award the wife maintenance of $1 per month to protect her right such that she would be able to vary the amount in the future.

However, The Court of Appeal in 2015 saw the need to affirm the position regarding an order for nominal maintenance again. In APE v APF [2015] SGCA 47, the Court clarified that making no order for maintenance is an outright rejection of a wife’s application for maintenance. This means that the ex-wife would not apply for maintenance when such an order is given. Therefore, the correct order to make is the original position that an order for nominal maintenance should be made to preserve the ex-wife’s right.

What will the Court consider in a variation of maintenance order?

To vary a maintenance order, the applicant must show a mistake of fact, misrepresentation and/or material change in circumstances. In this article, we will focus on what is constitutes a material change in circumstances.

To apply for a downward adjustment of maintenance, the material change must be adverse. For example, the husband might find it difficult to meet the payment due to illness or unemployment. It must be noted here that the adverse change must not be self-induced.

In the ex-wife’s case, to apply for an upward adjustment, the wife’s needs would be balanced with the ex-husband’s ability to pay. Some examples may include a significant increase in the ex-husband’s income or perhaps a sudden windfall.

Author

Sheila Cheng

Specialist Family Lawyer

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