Foo Ah Yan v Chiam Heng Chow

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judgment Date: 20 February 2012
• Date: 20 February 2012
• Docket Number: Civil Appeal No 58 of 2011

[2012] SGCA 15

Court of Appeal

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

Judith Prakash J

Civil Appeal No 58 of 2011

Foo Ah Yan

Plaintiff

and

Chiam Heng Chow

Defendant

Cheah Kok Lim (Cheah Associates LLC) for the appellant

Michael Moey Chin Woon (Moey & Yuen) for the respondent.

AQS v AQR [2012] SGCA 3 (refd)

BG v BF [2007] 3 SLR (R) 233; [2007] 3 SLR 233 (folld)

NI v NJ [2007] 1 SLR (R) 75; [2007] 1 SLR 75 (folld)

Ong Chen Leng v Tan Sau Poo [1993] 2 SLR (R) 545; [1993] 3 SLR 137 (refd)

Quek Lee Tiam v Ho Kim Swee [1995] SGHC 23 (folld)

Rosaline Singh v Jayabalan Samidurai [2004] 1 SLR (R) 457; [2004] 1 SLR 457 (refd)

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

Yow Mee Lan v Chen Kai Buan [2000] 2 SLR (R) 659; [2000] 4 SLR 466 (distd)

Women's Charter (Cap 353, 1997 Rev Ed) s 114 (2) (consd) ; ss 69 (1) , 69 (4) , 113, 114, 114 (1) (a) , 114 (1) (c)

Matrimonial and Family Proceedings Act 1984 (c 42) (UK) s 3

Matrimonial Causes Act 1973 (c 18) (UK) s 25

Matrimonial Proceedings and Property Act 1970 (c 45) (UK) s 5

Family Law—Ancillary powers of court—Maintenance—Wife—Section 114 (2) Women's Charter (Cap 353, 1997 Rev Ed)

Family Law—Ancillary powers of court—Maintenance—Wife—Whether husband who had not maintained wife during marriage could raise this fact in divorce ancillary proceedings in order to avoid providing maintenance after divorce

This case concerned the obligations of the respondent (‘the husband’) to maintain the appellant (‘the wife’) after the dissolution of their 13.5-year long marriage. The husband had retired shortly after the marriage. The wife had also stopped working shortly after the parties were married. At the commencement of ancillary proceedings, the husband was 72 years old and the wife was 60 years old. As there were no children to the marriage, and the wife did not claim a share of the matrimonial assets, the only relevant ancillary matter was that of maintenance of the wife.

The trial judge ordered lump sum maintenance of $75,000 to be paid to the wife 14 days after the wife transferred a property overseas back to the husband. The wife appealed, arguing that the sum of $75,000 was insufficient, and that maintenance should not be conditional upon the transfer of said property back to the husband.

Held, allowing the appeal and ordering the husband to pay the wife lump sum maintenance of $126,000:

(1) Section 114 (1) of the Women's Charter (Cap 353, 1997 Rev Ed) (‘the Act’) set out a non-exhaustive list of factors to be considered when ordering maintenance after the dissolution of the marriage. The guiding principle of financial preservation required the wife to be maintained at a standard, which was, to a reasonable extent, commensurate with the standard of living she had enjoyed during the marriage: at [12], [13] and [25].

(2) In order to achieve a commonsense response to the requirements of justice in each and every case, Singapore courts have applied s 114 (2) of the Act purposively, and in a commonsense holistic manner, which took into account the new realities that flowed from the breakdown of a marriage. Therefore, a former wife had to , where possible, contribute to preserve her pre-breakdown lifestyle: at [15] and [16].

(3) Although a husband was prima facie obliged to maintain his former wife beyond his retirement and up to the latter's remarriage, or death of either party, the former wife who had assets of her own should not expect a full subsidy for her lifestyle: at [17].

(4) There was no hard and fast rule regarding the monthly quantum and period over which lump sum maintenance was to be calculated. As factors leading to the breakdown of marriages were varied and often incommensurable, no single formula could ensure a just result in each and every case: at [18] and [19].

(5) There was no broad proposition to the effect that a husband who had not maintained his wife during the course of the marriage need not do so after the divorce. Such a proposition was devoid of authority. Furthermore, a husband's obligation to maintain his wife during the marriage under s 69 (1) of the Act and the obligation to maintain a former wife under s 113 of the Act were based on different considerations: at [21] and [22].

(6) While non-provision of maintenance during the course of the marriage might point towards the wife's financial independence, it was not a factor that should be given conclusive weight: at [23].

(7) Although the trial judge's concern that the wife should take the necessary steps to transfer the property overseas back to the husband ought to be appreciated, there was merit in the wife's argument that this could prejudice her if the transfer took a long time. In the circumstances, the maintenance payment should not be linked to the transfer of this property, although the wife should provide her fullest co-operation for the transfer to be effected: at [28]

Andrew Phang Boon Leong JA

(delivering the grounds of decision of the court):

1 This was an appeal by the wife against a decision of the High Court ordering lump sum maintenance of $75,000, to be paid 14 days after the wife transfers a property back to the husband (see Foo Ah Yan v Chiam Heng Chow [2011] SGHC 202 (‘the GD’)). The order of the learned judge (‘the Judge’) embodied the terms of the husband's offer, which was made in response to the wife's claim for lump sum maintenance of $292,000. We allowed the wife's appeal and now set out the detailed grounds for our decision.

The factual background

2 This case concerned the obligations of the respondent husband to maintain the appellant wife after the dissolution of their 13.5-year long marriage. The parties were married on 11 October 1995, and by the time the ancillary proceedings had commenced, the wife was 60 years old and the husband was 72 years old. As there were no children of the marriage, and the wife did not claim a share of the matrimonial assets, the only ancillary matter before this court was that of maintenance of the wife.

3 The parties resided in a double-storey corner terrace house during the marriage. The husband retired in 1996, shortly after the marriage. He continued to receive an income of $2,600 per month, constituted by rental of $1,800, an annuity of $350 from his National Trades Union Congress (‘NTUC’) insurance policy and allowances from the children from his previous marriage. The wife, who was a full time accounts clerk and bookkeeper drawing a monthly salary of $2,550, also stopped working shortly after the marriage.

4 Several factual disputes took centre stage during the proceedings below. Firstly, there was a dispute over whether the husband had maintained the wife during the marriage. The wife claimed that maintenance had been provided, although, as the Judge noted, her position regarding the quantum of maintenance allegedly provided had been inconsistent (see the GD at [6]- [8]). The husband, in contrast, insisted that he had not maintained the wife during the marriage. As was apparent during submissions (at least on the part of the husband), this insistence was thought to justify the position that a husband who had not maintained his wife during the course of the marriage need not do so after the marriage was dissolved. This was an unfortunate reading of a husband's obligation to maintain his former wife under the Women's Charter (Cap 353, 1997 Rev Ed) (‘the Act’), which we shall elaborate on later. The second factual dispute concerned the wife's current financial position. According to her, she now earns $1,100 per month ($800 as a part time accounts clerk and bookkeeper, and $300 from multi level marketing sales). The husband alleged that she was earning more, given the sizable difference between her monthly income of $1,100 and her claimed monthly expenses of $6,344.50.

5 At a hearing before the Judge on 26 April 2011, the husband made an offer of a lump sum payment of $75,000 payable over threemonthly instalments provided the wife re-transferred a property in Hainan, Republic of China, known as Unit 15 B Lion...