EB v EC (divorce: maintenance of stepchildren)

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 15 March 2006
• Neutral Citation: [2006] SGHC 44
• Docket Number: Divorce Petition No 603972 of 2003
• Date: 15 March 2006
• Published date: 15 March 2006
• Year: 2006
• Plaintiff Counsel: Christopher Yap (Christopher Yap & Co)
• Citation: [2006] SGHC 44
• Defendant Counsel: Pauline Anthony (Pauline Anthony & Co)
• Court: High Court (Singapore)
• Subject Matter: Family Law,Child,Wife leaving matrimonial home with children and filing for divorce,Wife applying for maintenance for children pending hearing of divorce petition,Whether husband under duty to maintain wife's children from wife's previous marriage after wife leaving matrimonial home with children,Whether court having power to order husband to pay maintenance for wife's children from wife's previous marriage,Maintenance,Sections 70(1), 70(2), 127(1) Women's Charter (Cap 353, 1997 Rev Ed)

15 March 2006 Judgment reserved.

Woo Bih Li J:

Background

1 This matrimonial case raises a number of interesting issues. I will first set out the background.

2 On 13 May 2000, Mr EC (“the respondent”) and Mdm EB (“the petitioner”) were married. They lived together with the petitioner’s two children, A and B, from an earlier marriage. The respondent and the petitioner have one child from their marriage, C, born in 2002.

3 In November 2003, the petitioner left the matrimonial home. On or about 6 November 2003, she filed a petition for divorce. The respondent answered and cross-petitioned. Both petitions were based on the unreasonable behaviour on the part of the other party. After a contested hearing, a decree nisi was granted on 27 May 2005 based on the petition and cross-petition. On 12 October 2005, District Judge (“DJ”) Valerie Thean made orders in respect of various ancillary matters. The respondent then appealed to the High Court on some of the orders made by DJ Thean. However, before his appeal was heard, the respondent restricted his appeal to only one aspect, ie, the maintenance of $300 for A and B each which he had been ordered to pay by DJ Regina Ow on 24 March 2004. I should say something more about that order and the developments since then until DJ Thean’s order of 12 October 2005 when DJ Thean stopped the maintenance for A and B but declined to make that order with retrospective effect.

4 The petitioner had filed an application by way of Summons in Chambers No 652363 of 2003 seeking maintenance for herself and the three children pending the hearing of the divorce petition. On 24 March 2004, DJ Ow made an order for the respondent to pay maintenance of $1,000 per month for the three children comprising:

(a) $300 for A;

(b) $300 for B; and

(c) $400 for C.

Being dissatisfied with that order, the respondent filed an appeal to the High Court. However, he withdrew that appeal.

5 Instead, on or about 9 November 2004, the respondent filed an application by way of Summons in Chambers No 651776 of 2004 to rescind or vary DJ Ow’s order. On 1 February 2005, DJ May Loh dismissed the respondent’s application.

6 As I have mentioned, a decree nisi was eventually granted by DJ Thean on 27 May 2005. Her decision on ancillary matters was given on 12 October 2005.

7 The respondent’s counsel, Ms Pauline Cynthia Anthony, had taken the point before DJ Thean that the respondent was not liable to maintain A and B, who are not his biological children, because of s 70(2) of the Women’s Charter (Cap 353, 1997 Rev Ed). She submitted that as the petitioner had taken away A and B, with C, in November 2003, the respondent was no longer under a duty to maintain A and B. Quite clearly, s 70(2) must be read together with s 70(1).

8 These provisions state:

70.—(1) Where a person has accepted a child who is not his child as a member of his family, it shall be his duty to maintain that child while he remains a child, so far as the father or the mother of the child fails to do so, and the court may make such orders as may be necessary to ensure the welfare of the child.

(2) The duty imposed by subsection (1) shall cease if the child is taken away by his father or mother.

9 DJ Thean was of the view that s 70(2), which comes under Part VIII of the Women’s Charter, does not apply when there is a petition for divorce under Part X. DJ Thean concluded that s 127(1) (under Part X) of the Women’s Charter, which allows the court to order a parent to pay maintenance during the pendency of any matrimonial proceeding for the benefit of his child, prevails. As for s 127(2), DJ Thean was of the view that it does not incorporate s 70 because, in her view, “the relevant sections in Part X have specifically laid out the varied circumstances in which the court is allowed to order maintenance”.

10 Sections 127(1) and 127(2) state:

127.—(1) During the pendency of any matrimonial proceedings or when granting or at any time subsequent to the grant of a decree of divorce, judicial separation or nullity of marriage, the court may order a parent to pay maintenance for the benefit of his child in such manner as the court thinks fit.

(2) The provisions of Parts VIII and IX shall apply, with the necessary modifications, to an application for maintenance and a maintenance order made under subsection (1).

11 DJ Thean also noted that “child” is defined under s 122 of the Women’s Charter to mean “a child of the marriage as defined in section 92 but who is below the age of 21 years”. In turn, s 92 defines “child of the marriage” as meaning:

any child of the husband and wife, and includes any adopted child and any other child (whether or not a child of the husband or of the wife) who was a member of the family of the husband and wife at the time when they ceased to live together or at the time immediately preceding the institution of the proceedings, whichever first occurred; and for the purposes of this definition, the parties to a purported marriage that is void shall be deemed to be husband and wife[.]

The court’s reasons and conclusion

12 Although the respondent had initially disputed that he had accepted A and B as members of his family, DJ Thean found otherwise. In the appeal before me, the respondent did not pursue this contention. Therefore, A and B are children of the respondent’s marriage as defined in s 92 and hence they are also his children as defined in s 122 and for the purpose of s 127(1).

13 The first issue is whether s 70 applies to Part X and in particular to s 127(1). If so, Ms Anthony submitted that in view of s 70(2), the respondent’s duty to maintain A and B ceased when the petitioner left the matrimonial home with them.

14 Before me, Ms Anthony further submitted that the duty to maintain children is not found in Part X but in Part VIII of the Women’s Charter. Ms Anthony relied, inter alia, on Leong Wai Kum, Principles of Family Law in Singapore (Butterworths Asia, 1997) which states, at pp 855–856:

The Women’s Charter, after the Women’s Charter (Amendment) Act 1980, provided for two groups of adults liable for this duty, viz., a parent of the child and a person who has accepted the child as a member of his or her family. The duty, because of the way the provisions developed, was still divided into two distinct periods, viz., while the parents’ marriage subsisted and after the parents’ marriage was terminated by decree. The former had begun in the Straits Settlements Summary Criminal Jurisdiction Ordinance 1872 while the latter not until the Straits Settlements Divorce (Amendment) Ordinance 1941. The duties developed fairly independently of each other. The anomaly of having separate provisions of the same duty by keeping these two periods apart, was noted in 1987 …

The Select Committee on the Women’s Charter (Amendment) Bill [Bill No. 5/96] accepted the suggestion from two representors to correct this anomaly. By a series of amendments, the Women’s Charter (Amendment) Act 1996 removes all substantive provisions on maintenance of a child from Part X of the Women’s Charter on ‘Welfare of Children’ upon termination of their parents’ marriage, retains the more useful provisions in Part VIII on ‘Maintenance of Wife and Children’, and makes consequential adjustments to the provisions retained. As a result of this fairly major formal change, the substantive provisions on maintenance of a child are all in Part VIII of the Women’s Charter. No substantive provisions and, what is more important, none to suggest the duty is different at another time, appears in any other Part. All that Part X has are provisions which allow the court, upon or after granting a decree to annul or terminate a marriage, to address the question whether to order any person to provide maintenance for a child affected by the decree.

15 Having considered the above and Part VIII and Part X, I am of the view that this submission is correct. The duty to maintain a child is stated in various provisions under Part VIII. Section 68(1) under Part VIII stipulates the duty of a parent to maintain his children but this applies only to his biological children. The definition of “child of the marriage” in s 92 applies only to Part X and not Part VIII. Accordingly, Part VIII has an additional provision to cover...