FLP 4 - Maintenance PDF

Takeaways Parents have a duty to maintain their children regardless of whether they are married or not. The court considers factors such as the child\'s needs and the parent\'s ability to pay when ordering child maintenance. Maintenance orders for ex-spouses are based on the needs of the receivin...

Takeaways Parents have a duty to maintain their children regardless of whether they are married or not. The court considers factors such as the child\'s needs and the parent\'s ability to pay when ordering child maintenance. Maintenance orders for ex-spouses are based on the needs of the receiving spouse and the paying spouse\'s ability to pay. Nominal maintenance orders are no longer ordered as a matter of course and require exceptional circumstances. Maintenance during marriage is based on the concept of consortium and provides temporary relief for a wife. The right to maintenance is independent of the wife\'s misconduct, but the quantum may be affected. Andrew Yip (00:01.206) In this lecture, we will discuss the issue of maintenance, firstly in relation to children and secondly in relation to spouses. Andrew Yip (00:14.616) You would recall this slide from the last lecture. Now, in the previous lecture, we touched on custody, care, and control and access of children. Now, we will move on to maintenance of the children and the maintenance of spouse. Andrew Yip (00:34.702) We start with the issue of maintenance of the child. Now, though we will be discussing the issue of maintenance as part of ancillary matters pursuant to divorce proceedings, you should note that as with all matters relating to children, child maintenance claims can also be made other than during divorce proceedings. It can be made during the marriage or it can be made regardless of marriage. We start with section 68. which states that, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children. Note that this is a duty or responsibility that applies regardless of whether the child is legitimate or illegitimate. This also means that even if the parties are not married, the child\'s parents continue to owe parental responsibilities to maintain their child. The case of WX and WW specifically deals with the case of an illegitimate child who had to be maintained. As to when the court may order any parent to pay maintenance and the considerations in making such orders, we refer to section 69 of the Women\'s Charter. We will unpack section 69 in the next few slides. When matrimonial proceedings are afoot or subsequent to the grant of a divorce, the court\'s power to order maintenance for the child is found in Section 127, which is part of Part 10 of the Women\'s Charter. But as for the substantive requirements of a parent to maintain his or her child, Section 127 actually refers us back to the law in Parts 8 and 9 of the Women\'s Therefore, the principles and factors set out in part 8, which refers to maintenance of children, as well as part 9, which refers to enforcement of maintenance orders, applies to the ancillary issue of child maintenance. Andrew Yip (02:48.366) Let\'s take a closer look at Section 69. Subsection 2 states that, Andrew Yip (03:10.862) The High Court decision of WHA and WHB explains this legal requirement in Section 69, Subsection 2. At the outset, it should be borne in mind that it is the complainant who has the burden to satisfy the court of this legal requirement. In other words, that the respondent has neglected or refused to provide reasonable maintenance for the child. In determining whether this requirement is met, the court will assess what is reasonable maintenance as a monetary sum on the facts of the case and will take a practical approach to assess whether the parties have reasonably provided such maintenance. There must also be neglect or refusal on the part of the respondent. To find that there has been neglect or refusal, the non -paying party must be aware or ought to have been aware of the child\'s needs or expenses. The court may also consider the mode of provision of maintenance. If the mode of provision is not reasonable, the court may find that there is neglect or refusal on the part of the respondent to provide maintenance. One example given by the court of an unreasonable mode could be where the paying party insists on providing maintenance only on reimbursement basis, requiring copies of every single receipt, even for mundane recurring expenses. Another example that was given by the court was where the paying party only provides reimbursement one year after the expenses are Andrew Yip (05:11.63) I move on now to subsection 4 of section 69. Subsection 4 sets out the factors that the court should consider in ordering maintenance. Now, there are many factors which are listed in this provision, but the primary considerations to take into account when one looks at what is the liability and quantum of maintenance to be paid, it really would be matching the children\'s needs against the parents\' ability to pay. So this would typically be assessed by considering what are the child\'s reasonable expenses and what is the party\'s income or earning capacity, as well as their own personal financial obligations. I would also like to highlight this case of WBU and WBT, which refers to the court\'s approach in apportioning maintenance between parents. The mother in this case, who was the higher income argued that there should be a starting point that maintenance be apportioned equally such that parents bear financial responsibility equally. The court rejected this proposition that equal apportionment is the starting point. The court said that while the parents have an equal duty under Section 68 to maintain their child, this duty does not translate to equal quantum of maintenance. Instead, apportionment of maintenance between parents is subject to the facts of each case. On the facts of WBU and WBT, the court determined that it was appropriate to apportion the maintenance based on the party\'s respective ratio of Andrew Yip (07:01.613) What is the duration of this responsibility to maintain a child? Is it indefinite? Section 69, subsection 5 provides that a child has to be maintained up to 21 years of age. However, there is an extended obligation beyond 21 years for a child who is still financially dependent on the parent. For example, where the child is under a disability, if the child is still serving national service, if the child is undergoing instruction at an education establishment. And this has been a factor that has been taken into account in applications dealing with children who are still studying in tertiary institutions beyond 21 years. If the child is receiving training for a trade or if there are any other special circumstances for the parent to continue his or her obligation to maintain the beyond 21 years. Andrew Yip (08:04.205) So far, have been considering the issue of child maintenance in the context of ancillary matters in divorce proceedings. Where the maintenance application is made in any other situation, for example, during the marriage, you may need to consider who might be the person who can make the application for the child. Section 69, subsection 3, lists who may apply. Where the child himself can do so, would be where he is above 21 years of age. Alternatively, a guardian can do so on his behalf or a person with actual custody. Though in this instance, this provision is probably intended to refer to someone with physical custody of the child. The child\'s siblings who are above 21 can also be the applicant. And finally, a person who is appointed by the minister. Andrew Yip (09:03.917) Just to complete the picture, do note that in certain circumstances, a non -parent may also have a duty to maintain a child. This is provided for under Section 70 of the Women\'s Charter, which imposes a duty on a non -parent to maintain a child whom he or she has accepted as a member of his or her family. An example of such non -parents is step -parents. parents who have married the biological parent of the The cases of EB &EC and TDT and TDS discuss the scope of Section 70. Firstly, the non -parent must have voluntarily assumed parental responsibility for the child\'s maintenance. Secondly, the non -parent\'s duty only arises when the child\'s parents have failed to maintain the child. The Court of Appeal also stated, that this duty seizes when the child is taken away from the non -parent in the context of a breakdown of the marriage between the non -parent and the child\'s parent. Accordingly, where an interim judgment is granted in respect of a divorce between the non -parent and the child\'s parent, any duty that the non -parent may have to maintain the child would also cease. Andrew Yip (10:37.581) We now move on to consider the issue of maintenance of an ex -spouse upon the termination of marriage, and this is governed by Section 113 of the Women\'s Charter. The many factors that the Court should consider for this purpose is stated in Section 114, but the dominant factors are again as what we saw in the issue of child maintenance, is really firstly, the needs of the receiving spouse. Again, secondly, the ability of the paying spouse to pay such maintenance. Now you may ask, isn\'t this somewhat a gender bias provision? Yes, perhaps, because while the wife has the right to apply for maintenance from her husband, the husband cannot similarly apply for maintenance from his wife unless he is shown to be incapacitated. On this point, The definition of incapacitated husband is found in section two of the Women\'s Charter and refers to a husband who during the marriage is or becomes incapacitated by any physical or mental disability or any illness from earning a livelihood and is unable to maintain himself and continues to be unable to do The basis for the provision of maintenance under the statutory provision. is that of financial preservation. And this was stated in the case of Kwak Lee Tiam and Ho Kim Swee. Although in later cases, the courts have further explained the rationale for the law imposing a duty on a former husband to maintain his former wife. And this being to even out financial inequalities, taking into account any economic prejudice suffered by the wife. Andrew Yip (12:35.393) during the marriage. I encourage you to take a look at the case of BG and BF on this, as well as the court of appeal decision of Fu A Yan and Chiam Heng Chow. Andrew Yip (12:51.745) You will see from the discussion of division of matrimonial assets in a different lecture, in a subsequent lecture, that the court would normally make an order for division of assets first, and then it follows with the orders on maintenance for the wife in order to supplement the needs of the wife further. This is actually pursuant to the principle The power to order maintenance of an ex -spouse should be supplementary to the power to order a division of matrimonial assets. And you will find this principle in the case of ATE and ATD. Andrew Yip (13:35.181) Now the second last point on this slide, there is also the concept of nominal maintenance, such as a maintenance for \$1. The rationale for a nominal maintenance order is to preserve a spouse\'s right to apply for substantive maintenance in the future. Maintenance orders can be varied under the Women\'s Charter, but there must be a maintenance order before it can be varied. Nominal maintenance orders therefore used to be quite common in the past, as wives sought to protect their right to claim maintenance from their ex -husbands in the future. However, in 2016, the Court of Appeal decided that nominal maintenance should not be ordered as a matter of course. To justify a nominal maintenance order, the spouse would have to show some exceptional circumstances that justifies preserving her right to future substantive maintenance. Andrew Yip (14:38.765) The duration of a maintenance order, now this is provided in section 117 of the Women\'s Charter. So unless the order is expressed before any shorter period, a maintenance order will generally expire only upon the death of either spouse or upon the remarriage of the spouse receiving the maintenance. Andrew Yip (15:04.493) So far, have been discussing the maintenance of a spouse following a divorce. Contrast this with the maintenance of a wife or incapacitated husband during the marriage where there are no divorce proceedings. For this, the basis would be entirely different, and it rests on the concept of consortium. So section 69 is the relevant section that allows for the provision of maintenance during the marriage. and it is not regarded as an ancillary matter. In order to bring about such an application, one has to be a woman or a married incapacitated husband. And in this particular instance, a married woman can include a Muslim wife or a foreign wife in Singapore as well. You may wish to note that one cannot be regarded as a married woman if one is a party to avoid marriage. However, where the marriage is avoidable one, the spouse is validly married until the marriage is annulled and so arguably would be able to bring about such an application. Andrew Yip (16:17.421) In a situation where once a marriage is terminated or annulled, then one is no longer a married woman and will then have to pursue the claim under Section 113 of the Women\'s Charter instead of Section 69. Do note that under Section 69 of the Women\'s Charter, the purpose is to provide temporary relief for a wife during a subsisting marriage, whereas Section 113 of the Women\'s Charter is intended to provide for maintenance of an ex -wife. Do note that the circumstances of the wives in these two positions would be different and so the considerations and goals will vary. I encourage you to refer to the case of Fu A -Yen on this distinction. Finally, note that the right to maintenance is independent of the wife\'s misconduct, although the quantum involved may be affected if there has been shown to be some misconduct on her Andrew Yip (17:29.547) This brings me to the end of this lecture on maintenance. See you in the next lecture. \#separator:tab \#html:false The {{c1::right to maintenance}} is {{c2::not}} contingent on the {{c3::wife\'s misconduct}}. The amount involved in {{c1::maintenance}} may be influenced in the presence of evidence of {{c2::misconduct}} by the wife. The circumstances and goals for wives differ under {{c1::Section 69}} and {{c2::Section 113}} of the Women\'s Charter, leading to varying considerations. s69 WC - the court may order maintenance of spouse {{c6::during the marriage}} if {{c6::found to have neglected or refused maintenance}}. {{c3::s113}} of the Women\'s Charter governs the maintenance of an ex-spouse or incapacitated husband {{c3::during the course of the matrimonial proceedings or post-marriage termination}}. {{c4::s114}} WC factors the court will consider in assessing the {{c4::quantum of maintenance}}: (a) the income, {{c5::earning capacity}}, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future; (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; (c) the {{c5::standard of living}} enjoyed by the family before the breakdown of the marriage; (d) the age of each party to the marriage and the duration of the marriage; (e) any physical or mental disability of either of the parties to the marriage; (f) 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; and (g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage that party will {{c5::lose the chance of acquiring}}. A maintenance order typically ends upon the {{c1::death}} of either spouse or the {{c2::remarriage}} of the recipient spouse. {{c1::Eligibility}} for maintenance during marriage includes {{c2::being a woman}} or a {{c2::married incapacitated husband}}. The duration of a maintenance order is outlined in section {{c1::117}} of the Women\'s Charter. unless the order is expressed before any shorter period, a maintenance order will generally expire only upon the death of either spouse or upon the remarriage of the spouse receiving the maintenance. The maintenance of an ex-spouse is expected to complement the division of matrimonial assets to ensure the ex-spouse\'s {{c1::needs}} are supplemented, as illustrated in the case of ATE and ATD. The basis for the provision of maintenance for an incapacitated husband is {{c1::financial preservation}}, aiming to address {{c2::financial inequalities}} and {{c3::economic prejudice}} faced by the wife during the marriage. Section 114 outlines factors like the needs of the receiving spouse and the paying spouse\'s {{c1::ability}} to provide {{c2::maintenance}}. {{c1::Eligible applicants}} for child maintenance outside divorce proceedings include {{c2::child above 21 years}}, {{c2::guardian}}, {{c2::person with actual custody}}, {{c2::child\'s siblings above 21 years}}, and {{c2::person appointed by the minister}}. Such persons need to apply individually under s69WC. The factors that contribute to the extended obligation of child maintenance beyond 21 years include{{c1::Child under a disability}},{{c1::child serving national service}},{{c1::child undergoing education}}, and{{c1::other special circumstances}}. {{c1::Maintenance}} reflects the principle of {{c2::No-Fault Divorce}}. Under Section 114 WC, the main factors for maintenance assessment include the needs of the {{c1::wife/incapacitated husband}} and the spouse\'s {{c2::ability}} to pay. Maintenance during marriage is not applicable if the woman is part of a {{c1::void marriage}}. {{c1::Factors}} in maintenance orders according to Section 69(4) include {{c2::matching children\'s needs with parents\' ability to pay}}, {{c2::child\'s reasonable expenses}}, {{c2::income}}, and {{c2::financial obligations}}. Maintenance of stepchildren{{c1::EB v EC}} and {{c1::TDT v TDS}} are legal cases that serve as precedents for issues related to the maintenance of {{c2::stepchildren}}. In EB v EC, By accepting the child as a member of his or her family, he or she has represented to the child that he or she accepts the duty of maintenance of the child. If the child's parents fail in it, the courts may enforce the responsibility which the adult had assumed. If the basis of the liability is a {{c3::voluntary assumption of responsibility}}, it would appear that this responsibility cannot be enforced as resolutely as the duty of a parent. under {{c3::s70(1)}}, the parent cannot simply abandon the responsibility by changing his mind. The primary considerations in child maintenance under Section {{c2::69(4)}} of WC involve Balancing the {{c1::child\'s needs}} with {{c1::parents\' ability}} to pay. Eligible applicants for child maintenance under Section 69(3) of WC include {{c1::Child above 21}}, guardian, person with {{c1::physical custody}}, {{c1::siblings above 21}}, and person appointed by the {{c1::Minister}}. According to {{c2::Section 69(4) of WC}}, child maintenance considers {{c1::Income, earning capacity and financial resources}} versus personal {{c1::expenses}} of the parties. Maintenance orders post-divorce are covered under Section 127 of Part 10 of the {{c1::Women\'s Charter}}. Maintenance{{c1::Sections 68, 69, 70, 127 WC }} are significant for {{c2::Child Maintenance}}. {{c1::Section 127}} empowers the court to order {{c2::maintenance}} for a child during divorce proceedings, applying laws from Section 68 and 69. s68 WC - parents have an equal duty to maintain their {{c1::child}} as per the law, {{c1::regardless of legitimac}}y. s69 WC - During the marriage and prior to the commencement of divorce proceedings, the Court may order {{c4::maintenance of wife, incapacitated husband and children}} s70 WC - Parents have a duty to maintain {{c3::Non-Biological Children}} as well.