TCT v TCU

• Jurisdiction: Singapore
• Judge: Valerie Thean JC
• Judgment Date: 22 May 2015
• Neutral Citation: [2015] SGHCF 3
• Date: 22 May 2015
• Docket Number: Registrar’s Appeal from the Family Courts No [A]
• Published date: 29 May 2015
• Plaintiff Counsel: Cheong Zhihui Ivan and Ng Yu Hui Michelle (Huang Yuhui) (Harry Elias Partnership LLP)
• Hearing Date: 23 April 2015,08 April 2015
• Defendant Counsel: Liew Tuck Yin David (Lawhub LLC)
• Court: High Court (Singapore)
• Subject Matter: Wife,Family Law,Child,Maintenance

Valerie Thean JC: Introduction

Where a wife seeks maintenance for herself and her child under s 113(a) and s 127 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Charter”) after the commencement of divorce proceedings, must she prove, as is required in applications under s 69 of the Charter, that the husband has failed to provide reasonable maintenance?

I answered this question in the affirmative while allowing an appeal from a husband (“the Husband”) against the decision of a district judge (“the Judge”) awarding interim maintenance for his son (“the Son”) and wife (“the Wife”) on 23 April 2015. These are my grounds of decision.

The facts

The Wife is at present about 42 years old, the Husband is about 40. They married on 14 July 2005. The Son, aged 9, is their only child.

As at 20 August 2014, the Wife earned a gross monthly salary of $16,303.¹ As at 24 September 2014, the Husband earned a gross monthly salary of $17,375.² The Husband’s mother, who was also residing at the matrimonial home, took care of the Son when the parents were working and also paid for various expenses for the Son and the household on behalf of the Husband.³ The Husband later reimbursed his mother, albeit with delay.

After some eight years, the Wife commenced divorce proceedings on 25 February 2014. Interim judgment was granted on 3 July 2014. Parties, meanwhile, still reside in the matrimonial home and the Husband’s mother continues to care for the Son while the Wife and Husband are at work.

The application for interim maintenance

On 20 August 2014, the Wife applied for interim maintenance in Summons No [B].⁴ She sought $1,000 in monthly maintenance for herself and $4,000 in monthly maintenance for the Son.

The Judge’s decision

The Judge dealt with this on 31 October 2014, 4 December 2014 and 8 January 2015. Although the Judge “[could not] say that the Husband neglected or refused to maintain either [his child or wife]”, she ordered that the Husband pay maintenance for the Wife at $500 a month and the Son at $1,500 a month.

She explained, in the following terms, that s 113 of the Charter did not contain the same legal threshold as s 69:⁵

2. It must be borne in mind that this was an application under [s 113 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Women’s Charter”)] and not [s 69]. Whilst both statutory sections [deal] with maintenance orders that a [court] may make, there were different legal thresholds to be met. a. Section 69(1) states that any married woman whose husband neglects or refuses to provide her reasonable maintenance may apply for such maintenance. Section 69(2) similarly stated that where a parent has neglected or refused to provide reasonable maintenance for his child, the parent can be ordered to do so. b. On the other hand, [s 113] does not impose the element of “neglect” or “refusal” to provide maintenance before the [court] can order such maintenance to be payable to the wife or former wife.

3. [Counsel for the Husband] repeatedly submitted that the [Husband] was not neglecting to pay for the child’s maintenance especially, thus the [Wife’s] application had to fail necessarily. But this was misconceived. It was clear that the legal provisions under [s 113] did not require any “neglect” or “refusal” on the part of the [Husband]. Had this been an application under [s 69], it was possible that the [Husband] would then have been able to successfully rely on this argument.

In dealing with the evidence, the Judge found that the Wife’s figures as to expenses incurred by herself, the Son and the household were overstated. She found that the Son’s monthly expenses were $2,149.99 rather than $3,995.64 as submitted by the Wife. She also found that the Wife’s monthly expenses were $514.54 instead of $1,833.67, and that the household monthly expenses were $500 instead of $1,500.

The appeal

Dissatisfied, the Husband appealed. Parties first appeared before me on 8 April 2015. The main ground of appeal was that the Judge had not made a specific finding that the Husband had neglected to reasonably maintain his Son and Wife. At that point, it was unclear from the Wife’s submissions on appeal whether in the event that there was a need to prove that the Husband had failed to maintain her and the Son, this criterion was made out. I gave both parties an opportunity to illustrate the proportion of the household expenses and the maintenance for the Son and Wife that was paid by each party, with counsel to return on 23 April 2015 with any relevant reply.

My decision

On 23 April 2015, after considering the submissions and hearing counsel, I allowed the appeal and set aside the orders made below. I also fixed costs to the Husband at $5,000, both for the appeal and the matter below. I explain my reasons here.

The appeal against the Judge’s orders The legal context The availability of two modes of seeking interim maintenance once divorce proceedings commence

Where parties are in a marriage, the relevant provision for seeking maintenance is s 69 of the Charter, which reads as follows:

Court may order maintenance of wife and children 69.—(1) Any married woman whose husband neglects or refuses to provide her reasonable maintenance may apply to the court, and the court may, on due proof thereof, order the husband to pay a monthly allowance or a lump sum for her maintenance.

(2) The court may, on due proof that a parent has neglected or refused to provide reasonable maintenance for his child who is unable to maintain himself, order that parent to pay a monthly allowance or a lump sum for the maintenance of that child.

…

Once divorce proceedings have commenced, the wife may use s 113(a) (for the wife) and s 127 (for the child). They read as follows:

Power of court to order maintenance 113. The court may order a man to pay maintenance to his wife or former wife —

(a) during the course of any matrimonial proceedings;

…

Power of court to order maintenance for children 127.—(1) During the pendency of any matrimonial proceedings or when granting or at any time subsequent to the grant of a judgment 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.

Commonality in criteria for child maintenance

In the case of child maintenance, the relation between s 127(1) of the Charter and s 69(2) is made clear by s 127(2), which states:

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).

In addition, the factors for determining the quantum for child maintenance are located in s 69(4) of the Charter. Do ss 69(1) and 113 of the Charter have the same commonality?

For spousal maintenance, as the Judge mentioned, there are no express statutory criteria mentioned within s 113 of the Charter. Nevertheless, in light of how the same factual situation could result in either remedy being used, it would be desirable for like situations to be treated alike. The object of the sections and its legislative history support this interpretation.

Legislative history

Section 69 of the Charter finds its origin in a new s 60, which was inserted in 1981 by the Women’s Charter (Amendment) Act (Act 26 of 1980). This changed the common law paradigm which previously necessitated culpability and substituted it with a need basis: see Leong Wai Kum, “The Duty to Maintain Spouse and Children during Marriage” (1987) 29 MLR 56 at pp 62–63.

Then Acting Minister of Social Affairs, during the deliberations of the Select Committee of Parliament on the Women’s Charter (Amendment) Bill (Bill No 23/79), explained in the report dated 25 February 1980:⁶

The existing [s 60] is not entirely satisfactory and this is borne out by the criticism by the YMCA, Ms Leong Wai Kum, the Lawyer’s Christian Fellowship and Mr Michael Hwang. Therefore, a new [s 60] is to be enacted to lay down principles for a Court to grant maintenance for the wife and children. These principles are similar to those laid down in the new Part IX of the Women’s Charter. [Emphasis added]

The new Part IX mentioned by the Minister contained the power to order maintenance and the principles for determining the amount of maintenance to be paid.

In Letchme v Gopal [1980] 1 MLJ 143 (“Letchme”), the High Court stated, obiter, in the context of the 1970 Rev Ed of the Women’s Charter, that “[a]s against an erring husband, a wife has a remedy for her maintenance and in seeking to enforce this remedy she can elect either to go to the subordinate courts or to the High Court depending on whether the maintenance sought is (1) the primary and only relief she is seeking or (2) whether it is ancillary to proceedings, under Pt IX of the Women’s Charter, affecting her marital status. If it is the former she can only use the subordinate courts as her forum, if the latter then the High Court is her forum.”.

It would be ideal if the two sections, put together in the same statute for the first time in 1961 when the Charter was enacted, did not overlap. Prof Leong Wai Kum, for example, in Leong Wai Kum, “The Duty to Maintain Spouse and Children during Marriage” (1987) 29 MLR 56 at p 66, criticised Letchme and thought that the two remedies “cannot both be available to an applicant at the same time”. Indeed it would be more appropriate if, after the commencement of divorce, married women only used s 113 of the Charter. This would make for neatness, enabling all pending proceedings after commencement of divorce to be in a single suit before the court. However, where a woman is still married but is involved in pending divorce proceedings, there is nothing in the Charter to prevent her filing an application under s 69(1) rather than s 113(a) if she requires interim maintenance. In practice many...