Foo Ah Yan v Chiam Heng Chow

• Jurisdiction: Singapore
• Judge: Steven Chong J
• Judgment Date: 12 September 2011
• Neutral Citation: [2011] SGHC 202
• Court: High Court (Singapore)
• Docket Number: DT No 3864 of 2008
• Published date: 13 March 2012
• Year: 2011
• Hearing Date: 31 January 2011,26 April 2011
• Plaintiff Counsel: Palmer Stuart Andrew (Straits Law Practice LLC)
• Defendant Counsel: Moey Chin Woon Michael (Moey & Yuen)
• Subject Matter: FAMILY LAW,Ancillary Matters,Maintenance of former wife
• Citation: [2011] SGHC 202

Steven Chong J: Introduction

The plaintiff was 47 years old and the defendant was 58 years old when they were married on 11 October 1995. This was the defendant’s second marriage and the plaintiff’s first. The defendant’s first wife passed away from cancer on 27 May 1994. The defendant has three sons from his first marriage. During their marriage, the plaintiff and the defendant resided at No 2 Li Hwan Close, Singapore 557126 which was their matrimonial home. The matrimonial home was a gift from the defendant’s father and was where the defendant had been staying since 1974 when he married his first wife.

The defendant averred in his Defence and Counterclaim that he and the plaintiff had lived separate lives since 2000. There had been no communication between the parties and they had ceased having conjugal relations since 2000. The divorce was uncontested and the parties had obtained an interim judgment on 17 April 2009. The duration of their marriage was about 13.5 years.

At the hearing on 31 January 2011, the plaintiff’s counsel, Mr Stuart Andrew Palmer (“Mr Palmer”) confirmed that the plaintiff was not claiming any share of the matrimonial property or the defendant’s assets. As there was no child arising from this marriage, the only remaining ancillary matter before me concerned the maintenance of the plaintiff. When the hearing resumed on 26 April 2011, Mr Palmer repeated the plaintiff’s position that she was not claiming any share of the matrimonial property or any of the defendant’s assets and that she was content with maintenance.

The plaintiff did not adduce any evidence of the monthly maintenance which the defendant had allegedly provided to her during the subsistence of the marriage. Instead, she pursued different amounts for her maintenance which were not supported by any evidence. In her amended Statement of Particulars (“Statement of Particulars (Amendment No 1)”) filed on 27 February 2009, the plaintiff confirmed that the defendant has not been giving her any maintenance. In spite of the complete absence of any evidence to support her claim for monthly maintenance, the defendant nevertheless offered a lump sum maintenance of $75,000 to the plaintiff, payable in three monthly instalments, in order to achieve a clean break with the plaintiff. Given that the defendant is already 74 years old and has long since retired, I was of the view that this was a generous offer by the defendant. Faced with this offer, Mr Palmer had nothing to add other than to say that he had no instructions to accept or reject the offer. Under these circumstances, I ordered the defendant to pay the plaintiff a lump sum maintenance of $75,000 payable in three monthly instalments subject to a condition which I will elaborate below. At the hearing, I made it quite clear that I would not have ordered the lump sum maintenance of $75,000 but for the generous offer from the defendant.

As the plaintiff has since appealed against my order, I now state my full grounds for my decision.

The plaintiff’s maintenance claim

In the course of her application, the plaintiff’s stance on the maintenance paid by the defendant during the marriage underwent several changes: In her original Statement of Particulars filed on 1 August 2008 at paragraph 1(g), she initially claimed that the defendant “has not been giving the Plaintiff any monthly maintenance for the past five (5) to six (6) years. Prior to that, the defendant use (sic) to give the Plaintiff monthly maintenance of $800 to $1,000”. In her Statement of Particulars (Amendment No 1), the reference to the allegation that the defendant had provided the plaintiff with monthly maintenance of $800 to $1,000 was deleted altogether with the result that paragraph 1(g) read that “The Defendant has not been giving the Plaintiff any monthly maintenance”. The effect of the amendment was that the plaintiff claimed that the defendant had not been giving her any maintenance at all throughout the marriage. In the plaintiff’s Affidavit of Assets and Means filed on 9 June 2009 (“plaintiff’s Affidavit of Assets and Means” or “her Affidavit of Assets and Means” as the case may be), she, however, alleged that the defendant had provided her with monthly maintenance of about $1,000 (see paragraph 16 of the plaintiff’s Affidavit of Assets and Means). At paragraph 21 of the plaintiff’s 3rd affidavit filed on 20 November 2009 (“plaintiff’s 3rd affidavit” or “her 3rd affidavit” as the case may be), the plaintiff alleged that the defendant used to pay her monthly maintenance of $800 to $1,000 even after she stopped working. At the hearing on 31 January 2011, Mr Palmer submitted that the plaintiff was claiming for either a monthly maintenance of $6,000 or alternatively, a lump sum maintenance of about $290,000. Notwithstanding the affidavit evidence of the plaintiff, Mr Palmer submitted that the defendant had been giving the plaintiff monthly maintenance of $1,800 from 1995 to July 2008. At the resumption of the hearing on 26 April 2011, Mr Palmer repeated the plaintiff’s claim for a lump sum maintenance of $292,000 which was the product of a monthly sum of $1,800 and a multiplicand of 13.5 (ie, the length of the marriage).

From the above summary, it is clear that the plaintiff’s case on the monthly maintenance which the defendant had allegedly provided to her during the marriage changed from $800 to $1,000, to $1,800, to nothing at all.

Having identified the moving target for the plaintiff’s maintenance claim, it is necessary to examine the evidence adduced by the plaintiff in support of her claim. At the hearing on 31 January 2011, the plaintiff alleged that the defendant had paid her monthly maintenance in the sum of $1,800 but when queried by the court, Mr Palmer confirmed that the plaintiff did not have any evidence to support the alleged maintenance payments by the defendant. Mr Palmer submitted that the alleged maintenance payments were by way of cash which were left by the defendant on a table in the matrimonial home. This was not stated in any of the plaintiff’s affidavits. Owing to the complete lack of evidence, Mr Palmer then requested for an adjournment to attempt an amicable resolution to which the defendant readily agreed.

At the resumption of the hearing on 26 April 2011, the issue of the plaintiff’s maintenance, unfortunately, remained unresolved. Mr Palmer repeated the plaintiff’s claim for a lump sum maintenance of $292,000. It was conceded by Mr Palmer that, other than the plaintiff’s mere assertion, there was no evidence to substantiate any maintenance payment by the defendant during the marriage.

When further queried by the court as regards the plaintiff’s position as evinced in paragraph 1(g) of the Statement of Particulars (Amendment No. 1), where she admitted that she did not receive any maintenance, Mr Palmer proffered an explanation that it was drafted in such terms in order to achieve a consensual divorce.

The defendant’s position in respect of the plaintiff’s maintenance claim

Originally the defendant’s position was that no maintenance should be ordered for the plaintiff because the defendant did not provide her with any during the marriage as both parties kept their finances separate during the marriage. The defendant, however, submitted that if maintenance was ordered by the court, it should be no more than $21,160¹ on a lump sum basis. The explanation provided by the defendant’s counsel, Mr Michael Moey (“Mr Moey”), for this amount was as follows: At most, the defendant should only be required to provide the plaintiff with maintenance to rent a room. The defendant submitted that an average room rental in a Housing Development Board (“HDB”) flat is about $575 per month.² Given that the defendant has since retired, the decision in Yow Mee Lan v Chen Kai Buan [2000] 2 SLR(R) 659 where Prakash J at [97] held that “the wife cannot expect to be maintained at the same standard after the husband retires”, and that any maintenance should be halved after the husband’s retirement, should be followed such that, in this case, the maintenance should be half of the monthly room rental, ie, $287.50 which the defendant rounded up to $300 per month. Given that the average life expectancy of an average Singaporean male was about 79 years, the appropriate multiplicand should, at best, be seven years since the defendant was already 72 years old when the application was first filed by the plaintiff. This would translate to a sum of $25,200 ($300x12x7). The defendant suggested a 20% discount for lump sum payment which works out to be $20,160 and not $21,160 as submitted by Mr Moey.

At the resumption of the hearing on 26 April 2011, Mr Moey informed the court that the defendant was prepared...