Ape v Apf

• Jurisdiction: Singapore
• Judgment Date: 09 September 2015
• Date: 09 September 2015
• Docket Number: Civil Appeal No 186 of 2014
• Court: Court of Appeal (Singapore)

APE

Plaintiff

and

APF

Defendant

[2015] SGCA 47

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

Judith Prakash J

Civil Appeal No 186 of 2014

Court of Appeal

Family Law—Maintenance—Wife—Correct order to be made when preserving wife's right to maintenance

In dealing with the ancillary matters which arose pursuant to the divorce of the appellant wife (‘the Wife’) and the respondent husband (‘the Husband’), the High Court judge (‘the Judge’) below: (a) granted joint custody of the only child of the marriage to both parents; (b) divided the matrimonial home in the ratio of 70:30 in favour of the Wife; (c) awarded a monthly sum of $1,500 in respect of maintenance to the child to be borne equally by both parents; and (d) sought to preserve the Wife's legal right to future maintenance by making ‘no order’ on her application for maintenance. The Wife appealed against the whole of the Judge's decision.

Held, dismissing the appeal but varying the maintenance order made in respect of the Wife:

(1) There was no reason to interfere with the Judge's decision on all the ancillary issues, save that it was necessary to make one clarification pertaining to the order made in respect of the Wife's maintenance: at [1] and [2] .

(2) In Tan Bee Giok v Loh Kum Yong[1996] 3 SLR (R) 605 (‘Tan Bee Giok (CA) ’), this court observed that if a wife's legal right to maintenance for the future was sought to be preserved, then the correct order to make would be one for nominal maintenance. This was the (normative) proposition which would apply in future cases where the court was of the view that a wife's legal right to maintenance ought to be preserved. Correlatively, an order rejecting a wife's application for maintenance would, as this court also pointed out in Tan Bee Giok (CA) , entail the wife being ‘precluded forever from applying to court for maintenance’: at [5] .

(3) The Judge in the present case had sought, in substance, to equate the legal effect or result of an order for nominal maintenance with that for an order that there be no order on an application for maintenance. However, that was mistaken. An order for nominal maintenance, by its very terms, clearly preserved a wife's right to apply for a variation of that maintenance order in the future should the need arise as a result of a material change in the circumstances. In contrast, an order that there be ‘no order’ on a wife's application for maintenance was, in substance, a rejection of that application itself as this court observed (albeit in a different context) in Sinwa SS (HK) Co Ltdv Nordic International Ltd[2015] 2 SLR 54. Therefore, in order to preserve the Wife's right to apply for maintenance to the court in the future, it was ordered that there would be nominal maintenance of $1 per year for the Wife: at [2] and [6] to [8] .

[Observation: Two recent local High Court cases had expressed certain views (albeit in obiter dicta) which did not represent the correct legal position regarding the correct order to be made when preserving a wife's right to maintenance: at [9] .

In ANJ v ANK[2014] SGHC 189, the High Court applied Tan Bee Giok (CA) in granting nominal maintenance but went on to observe that it was ‘not logical to maintain a distinction between nil maintenance and $1 maintenance a month’. However, as had been explained, Tan Bee Giok (CA) was good law still and it was undergirded by a substantive conceptual and principled basis which went beyond the mere (and literal) figures: at [10] .

In ADB v ADC[2014] SGHC 76, the High Court observed that if it was thought necessary to preserve a wife's right to maintenance in the future, then the appropriate order to make was an order that there be ‘no maintenance for the time being with liberty to apply’. This formula appeared to comprise two limbs. The first was, in substance, an order that there be ‘no order’ with regard to a wife's application for maintenance. As explained, such an order was, in substance as well as effect, a rejection or disallowance of a wife's application, thus precluding her from ever claiming maintenance again. In those circumstances, the second limb (which was a liberty to apply) would have nothing to apply to. This was because it was settled law that the ‘liberty to apply’ order only supplemented the main orders of the court in form and convenience so that the main orders could be carried out and might not be used to vary the order of the court: at [11] and [12] .]

ADB v ADC [2014] SGHC 76 (refd)

ANJ v ANK [2014] SGHC 189 (refd)

ANJ v ANK [2015] 4 SLR 1043, CA (refd)

Anwar Siraj v Teo Hee Lai Building Construction Pte Ltd [2014] 1 SLR 52 (refd)

Sinwa SS (HK) Co Ltd v Nordic International Ltd [2014] SGHC 132 (refd)

Sinwa SS (HK) Co Ltd v Nordic International Ltd [2015] 2 SLR 54, CA (folld)

Tan Bee Giok v Loh Kum Yong [1996] 1 SLR (R) 130; [1996] 2 SLR 188, HC (refd)

Tan Bee Giok v Loh Kum Yong [1996] 3 SLR (R) 605; [1997] 1 SLR 153, CA (folld)

Rules of Court (Cap 322, R 5, 2014 Rev Ed)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Koh Tien Hua, Adriene Cheong, Michelle Ng and Thian Wen Yi (Harry Elias Partnership LLP) for the appellant

Sim Bock Eng, Chan Yu Xin and Hazell Ng Li Phin (Wong Partnership LLP) for therespondent.

Andrew Phang Boon Leong JA

(delivering the grounds of decision of thecourt):

Introduction

1 This was an appeal against the decision of the High Court judge (‘the Judge’) in APE v APF[2015] SGHC 17 (‘the GD’) dealing with all the ancillary matters which arose pursuant to the divorce of the appellant wife (‘the Wife’) and the respondent husband (‘the Husband’). We dismissed the Wife's appeal. As we stated after hearing the oral submissions from the respective parties, we found no reason to interfere with the decision of the Judge on all the issues. We therefore upheld his decision to: (a) grant joint custody of the only child of the marriage to both parents; (b) divide the matrimonial home in the ratio of 70:30 in favour of the Wife; (c) award a monthly sum of $1,500 in respect of maintenance to the child to be borne equally by both parents; and (d) preserve the Wife's legal right to future maintenance.

2 However, we found it necessary to make one clarification pertaining to the last-mentioned issue of maintenance to the Wife. Specifically, our...