Foo Ah Yan v Chiam Heng Chow

JudgeChao Hick Tin JA
Judgment Date20 February 2012
Neutral Citation[2012] SGCA 15
Citation[2012] SGCA 15
CourtCourt of Appeal (Singapore)
Published date27 February 2012
Docket NumberCivil Appeal No 58 of 2011
Plaintiff CounselCheah Kok Lim (Cheah Associates LLC)
Defendant CounselMichael Moey Chin Woon (Moey & Yuen)
Subject MatterFamily Law,Ancillary powers of court,Maintenance,wife
Hearing Date18 January 2012
Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

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

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.

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 policy1 and allowances from the children from his previous marriage.2 The wife, who was a full time accounts clerk and bookkeeper drawing a monthly salary of $2,550,3 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.5 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).6 The husband alleged that she was earning more,7 given the sizable difference between her monthly income of $1,100 and her claimed monthly expenses of $6,344.50.8

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 three monthly instalments provided the wife re-transferred a property in Hainan, Republic of China, known as Unit 15B Lion City Apartment (“the Hainan property”), back to him.9 It was not disputed that the Hainan property, purchased in 200010 and registered in the wife’s name, was wholly paid for by the husband.11 The wife did not argue that the Hainan property was a gift to her.12

Decision of the High Court

The Judge found that the wife had been financially independent throughout the marriage (see the GD at [27]), and, as such, the only “loss” suffered by her following the dissolution of the marriage was the loss of accommodation (see the GD at [24]). The wife’s financial independence was inferred from her failure to prove receipt of maintenance during the course of the marriage (see the GD at [17] and [27]), her failure to explain how she had bridged the difference between her monthly expenses of $6,344.50 and the monthly sums allegedly provided by the husband during the marriage (see the GD at [22]), as well as the fact that parties had kept their finances separate (see the GD at [19]).

The Judge held that, but for the husband’s offer, he would have awarded the wife a lump sum of no more than $48,300 (see the GD at [27]), based on a multiplicand of $575 per month (the monthly rental for a room in a Housing and Development Board (“HDB”) flat) and a multiplier of 7 years, ie, $575 x 12 x 7. In the light of this, the Judge found the husband’s offer to be generous and thus ordered him to pay $75,000 in three monthly instalments of $25,000, commencing within 14 days after the wife transferred the Hainan property back to him (see the GD at [4] and [28]).

The issues on appeal

The issues which arose before this court were as follows: Whether the Judge was correct in finding that lump sum maintenance of $75,000 was fair and reasonable in the circumstances (“Issue 1”). Whether the maintenance order should be conditional upon the transfer of the Hainan property back to the husband (“Issue 2”).

As alluded to at [4] above, an interesting question that arose in connection with Issue 1 (and which will be dealt with below) was whether a husband who had not maintained his wife during the course of the marriage was entitled to raise this in divorce ancillary proceedings in order to avoid having to maintain his former wife post dissolution of the marriage.

Parties’ respective arguments on appeal

Counsel for the wife, Mr Cheah Kok Lim (“Mr Cheah”), argued that proof of maintenance during the marriage should not be the chief focus since the Act does not require a wife to produce such proof before she may claim maintenance post dissolution of the marriage.13 Mr Cheah argued that, since a husband is under a duty to maintain his wife during the marriage, the provision of maintenance during the marriage is, at best, one of the many factors that the court should consider when ordering maintenance to be paid after the divorce.14 He also took issue with the Judge’s inference that the wife was financially independent, arguing that the sum of $6,344.50 represented her current estimated expenses, which included anticipated medical expenses of $500 and rental of $1,500 which she would now have to pay.15 Finally, Mr Cheah argued that the court should take into account the wife’s old age,16 the husband’s financial resources, as well as the fact that the wife had not received any share of the matrimonial assets.17 In the circumstances, he argued that a lump sum payment of $292,000 in favour of the wife, based on a multiplicand of $1,800 per month (ie, the rental of an HDB flat) and a multiplier of 13.5 years, being the length of marriage, would be the appropriate order.

In response, counsel for the husband, Mr Michael Moey (“Mr Moey”), argued that as the husband had never maintained the wife during the course of the marriage, there was no reason why he had to do so now.18 Mr Moey argued that the husband was, in any case, only obliged to provide the wife with rental of a room in an HDB flat because parties had shared a bedroom in the matrimonial home and the wife was usually away for most part of the day, treating the home like a hotel.19 Mr Moey argued that providing more maintenance to the wife would be tantamount to giving her a share of the matrimonial assets via the back door.20

Our decision Issue 1 The general law on maintenance of a former wife

The court derives its power to order maintenance from s 113 of the Act. Section 114 of the Act was modelled on s 25 of the Matrimonial Causes Act 1973 (c 18) (UK) (“the 1973 UK Act”). The 1973 UK Act is a consolidating act, which repealed and re-enacted s 5 of the Matrimonial Proceedings and Property Act 1970 (c 45) (UK) (“the 1970 UK Act”), prior to the amendment in 1984 referred to below (at [15]). Section 114 of the Act sets out a non-exhaustive list of factors to be considered as well as the guiding principle of financial preservation, as follows:

114.—(1) In determining the amount of any maintenance to be paid by a man to his wife or former wife, the court shall have regard to all the circumstances of the case including the following matters: the income, 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; the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; the standard of living enjoyed by the family before the breakdown of the marriage; the age of each party to the marriage and the duration of the marriage; any physical or mental disability of either of the parties to the marriage; 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 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 lose the chance of acquiring.

In exercising its powers under this section the court shall endeavour so to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other.

[emphasis added]

Generally, assessment of the appropriate monthly multiplicand begins with the wife’s financial needs as derived from her particulars of expenditure, scaled down for reasonableness: see the Singapore High Court decision of Quek Lee Tiam v Ho Kim Swee (alia Ho Kian Guan) [1995] SGHC 23 (“Quek...

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