When making maintenance and custody orders during divorce proceedings, the court will take many factors into account. For example, who will make major life decisions for the children? Where will the children live, and how will visitation work? What amount of maintenance, if any, is reasonable?
The court will ultimately make orders that they consider just and fair and in the children’s best interest. Life, however, can change. For example, what happens if you lose your job, your ex-spouse wants to relocate with the children, you want to remarry, or the children need more money?
Fortunately, Singapore law recognises that circumstances may change, and it might be appropriate for court orders to be varied from time to time.
The Women’s Charter grants the court the power to change maintenance, child custody, and care orders. This article will focus on S118 and S128 of the Charter and discuss when the court can vary a maintenance or custody order.
Contested vs By Consent Variation of Court orders
It is always best if you and your ex-spouse can agree to the variation order upfront. This makes the application more straightforward, and the variation can be obtained quickly in about one month. It saves you a lot of time and money.
If you don’t agree to the variation with your ex-spouse, it will require a considerable amount of additional time and paperwork. First, you will need to prove that there has been a material change in circumstances. Then, it may take at least 6 months before an application is heard.
Varying maintenance orders
S118 deals with the court’s power to vary maintenance orders. It states that the court may vary an existing maintenance order if the order was:
- based on any misrepresentation or mistake of fact; or
- where there has been any material change in the circumstances.
Maintenance orders can be varied, even if it was granted as a consent order that the parties agreed to.
Whether you are the one paying or receiving, any party may apply for a variation of a maintenance order. If there is a maintenance order, even for S$1 a month, the court can vary the order. You cannot apply for a variation if there is no order in place.
When the application involves child maintenance, the court’s paramount consideration is always the child’s best interest.
What constitutes a material change in circumstances?
What amounts to a material change will depend on the circumstances of your case. The court has the discretion to look at the new situation relative to the circumstances when the court made the order and consider whether it is reasonable to vary the order.
The court will not vary an order if the material change in circumstances is self-inflicted. If, for example, the maintenance is too little to cover basic living expenses because the receiving party is living a lavish life, the court will not vary the order.
If the court thinks it’s reasonable to vary an order, it can increase the amount of maintenance. It may, however, also decide that it is appropriate to decrease the amount.
Factors the court may consider include:
- One of the parties lost their job or found gainful employment.
- The cost of living increased or decreased after a relocation.
- One of the parties inherited a sum of money.
- The husband remarries or has more children.
- The wife moves in with a boyfriend who supports her financially.
- One of the parties suffers a severe medical condition.
The court’s approach to variation applications
The High Court recently clarified when a material change in circumstances would be sufficient to render it unfair to expect the maintenance order to remain the same. In CKO v CKP  SGHC 92, the court held that remarriage or retirement are per se not sufficient changes in circumstances to vary a subsisting maintenance order. However, the subsequent new financial obligations and the drop in income may be factors to consider. To decide whether there was a material change, the court referred to two other cases, ATS v ATT  SGHC 195 and BZD v BZE  SGCA 1.
In BZD, the Court of Appeal clarified that the question is not just whether there was a material change per se, but, instead, whether the change was sufficiently material that it is no longer fair to expect the status quo to remain.
In essence, the court will approach an application for a variation much like it would apply its discretion when considering a new maintenance application. Reasonableness will always be a deciding factor.
How do you apply for a variation?
The party seeking the variation must file a formal application by way of a summons. It must include a supporting affidavit setting out the facts on which you are relying for your application. In addition, you must state your reasons for the application and provide as much documentary evidence as you can.
Varying child welfare orders
Section 128 of the Women’s Charter grants the court the power to vary orders relating to the welfare of the children. Therefore, the court may change an order if a variation is needed to protect the child’s interest better.
When will the court grant a variation order?
S 128 states that the court may, at any time, vary an order for custody or care and control if it is satisfied that the order was based on:
- any misrepresentation or mistake of fact; or
- there has been a material change in circumstances.
Any interested party may apply for a variation.
An example of misrepresentation could be when a mother created the impression that she would resign her job to take care of the children full-time to persuade the court to grant her custody. Subsequently, it turned out that she had no intention of giving up her career to raise the children full-time. Or the father created the impression that he would reduce his business travels to spend more time with the children; in reality, he knew it wasn’t possible.
Whether there was a material change in circumstances will again depend on the facts of the case.
- The parent’s financial ability to care for the child changed significantly.
- The parent’s health makes it impossible to spend the same amount of time with the child.
- A parent relocates.
- Evidence of abuse became apparent.
- The relationship between the parent and the child has changed significantly.
- The child’s interests or needs might support a variation in the order.
- The parent moved to a more suitable residence where the child can have a better quality of life.
Ultimately, the court will consider the application against the welfare and best interest of the child. Therefore, the court will only order a variation if it is in the child’s best interest. This approach was reiterated in ATS v ATT  SGHC 156, where the court referred to section 125 of the Women’s Charter, which states that the child’s welfare is the “paramount consideration”.
How does the court determine the best interest of the child?
The court will consider the child’s financial and physical needs and the child’s moral well-being, happiness, and comfort. The court will recognise that parent-child relationships can change. Sometimes a variation might be necessary to serve the child’s best interest, even if no specific “event” constitutes a material change.
To decide on what is best for the child, the court will consider, among other factors:
- the child’s wishes (if the child is mature enough to express their views, or if there is an opinion from a professional);
- the need for both parents to be involved in the child’s life;
- the relationship between siblings; and
- the parents’ behaviour.
How do you apply for a variation of custody orders?
The party seeking the variation must file a summons and include an affidavit explaining why it would be in the child’s best interest to vary the existing orders. In addition, you should include your proposals for the new order and how you intend to comply with the new order, where applicable.
In ATS v ATT, the application failed because the applicant could not point to evidence that would constitute a material change in circumstances. In addition, the applicant did not explain how the care arrangement he outlined in his affidavit was in the children’s best interest.
The same applied in APK v APL  SGHC 255, where the court clearly stated that the party who applies for a variation of a custody order based on a material change in circumstances has the burden of proving such a change. The applicant failed since he did not explain why there has been a material change in circumstances so that it was now in the interest of the children’s welfare to vary the custody order.
What if the circumstances change again?
You may apply for another variation in the court order. There is no limit on the number of times that an order can be varied.
The court may grant variations of orders made after a hearing or consent orders based on agreements between the parties. However, a variation application cannot be used as a backdoor or a way to get around the original order.
Be careful that you don’t apply for variations of court orders without a sound basis for your application or in a situation where the material change is self-inflicted.
Your application must be well-prepared, based on facts and properly presented to the court.
If you feel that your circumstances warrant a variation, you should speak to a lawyer with experience in family law. An experienced lawyer is familiar with the requirements and the court’s approach to variation applications. In addition, a family lawyer will help you decide on the most effective way to seek a variation of orders.