District Judge Miranda Yeo Eng Joo:
The Petitioner, the former husband, applied for rescission of the maintenance order made in favour of the Respondent, the former wife, and for the former wife to pay maintenance for the only child of the marriage.
I ordered that the maintenance order of 19 August 2010 for the former wife is to be rescinded with effect from February 2017. I also ordered the Respondent to pay maintenance for the child of $250 per month with effect from 30 April 2017 and thereafter on the last day of each subsequent month. Both parties have appealed against my decision.
Background
The parties were married on 11 May 2000. On 13 July 2007, a decree nisi was granted to dissolve the marriage on both the Petition and Cross-Petition on grounds of unreasonable behaviour. By consent, it was further ordered in Order (3) of the Decree Nisi that – The Petitioner and Respondent shall have joint custody of the child of the marriage, namely, A (f) born on XX.XX.2000 with care and control to the Petitioner. The Respondent shall have liberal and weekly access to the child including twice a month overnight access; The Petitioner shall pay the Respondent a monthly maintenance sum of $1,250.00 for a period of 5 years with effect from the date of the decree nisi. With effect from 13 August 2012, the Petitioner shall pay the Respondent a reduced maintenance sum of $750.00 per month for another period of 5 years. The said maintenance shall cease thereafter or upon remarriage by the Respondent. All payments shall be deposited into the Respondent's OCBC Account on the 13th day of each month.
It is to be noted that the maintenance order made on 13 July 2007 was not an order for payment of lump sum maintenance in instalments. It was an order for monthly maintenance with a limitation on the time period for which the monthly maintenance is to be paid. Such an order for payment of monthly maintenance can be subject to variation in terms of quantum and time period.
On 29 March 2010, the Petitioner applied to vary the Decree Nisi to the extent that there be no maintenance for the Respondent on the grounds that there were material changes in circumstances. On 19 August 2010, an order was made varying Order 3(2) of the Decree Nisi. Order 5.1(a) of the Order of Court dated 19 August 2010 provided that the Petitioner is to pay the Respondent monthly maintenance of $750 per month with effect from 13 April 2010 and Order 5.1(b) provided that the Petitioner’s obligation to pay maintenance was suspended from May 2010 to August 2010.
On 4 January 2016, a consent order was made under EMO31/2016 in relation to the Respondent’s application for enforcement whereby the Petitioner shall pay the Respondent agreed arrears of $16,850.00 as at 4 January 2016 (excluding January 2016 maintenance) as follows: $250.00 on or before 25 January 2016. The balance sum of $16,600.00 in instalments of $1,250.00 per month with effect from 25 February 2016 and thereafter on the 25th day of each month for 4 months till 25 May 2016. The balance sum of $11,600.00 in instalments of $250.00 per month with effect from 25 June 2016 and thereafter on the 25th day of each month.
Under EMO31/2016, the current maintenance of $750.00 per month remains payable. The Petitioner was also ordered to show proof of maintenance payments from January to May 2016.
The application
The Petitioner’s present application is as follows - Order 3(2) of Decree Nisi dated 13 July 2007 be varied with no maintenance to be paid by the Plaintiff to the Defendant and for the Defendant to pay maintenance for the child of the marriage namely, A wef June 2013; Order 5.1(a) and 5.1(b) of the Order of Court dated 19 August 2010 be varied with no maintenance to be paid by the Plaintiff to the Defendant wef June 2013; the Defendant do pay the Plaintiff a sum of $350.00 per month wef June 2013 towards the maintenance of the child of the marriage namely, A till the child reaches 21 years old or on completion of tertiary education, whichever is later.
Variation of maintenance
An applicant has to show a material change in circumstances under section 118 of the Women’s Charter (Cap. 353) in order to vary or rescind a maintenance order. Section 118 of the Women’s Charter provides that –
“The court may at any time vary or rescind any subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or of the person against whom the order was made, or, in respect of secured maintenance, of the legal personal representatives of the latter, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.”
The variation must be based on material changes that relate to the circumstances prevailing at the time the order for maintenance was made (George Sapooran Singh v Gordip d/o MD Garsingh [2016] SGHC 197 at [27]).
Circumstances at the time the maintenance order was made
The Petitioner would have to show that there had been a material change in the circumstances prevailing at the time existing when the Order of 19 August 2010 was made.
As the original maintenance order made on 13 July 2007 was a consent order, there were no affidavits filed at the time the order was made regarding the circumstances that prevailed at that time.
Based on the affidavits filed by the Petitioner in relation to his application to vary the consent order in 2010, the relevant circumstances which prevailed in 2010 were as follows – The Petitioner had care and control of the only child of the marriage. The child was 7 at the time of the divorce proceedings and her expenses and needs have increased with the passage of time. He had remarried and there were expenses in relation to his wife and 2 children. His wife and 2 children lived in China and he had to make frequent trips to China to spend time with them. His expenses and the sums he had to send to the new family have increased over the years. The Respondent had found gainful employment. (This position was not correct as the Respondent exhibited evidence that she was a full time student.) The Petitioner’s work as a roofing contractor had been adversely affected and he has not been able to pay his debts. He had to rely on loans from his sister and parents to pay the Respondent what he owed in terms of maintenance arrears. He faced criminal proceedings for road traffic offences and he will face a custodial sentence. (He eventually served 3 months imprisonment.) The Respondent discontinued her job and became a student during the marriage. She appeared to be studying for many years. The Petitioner’s income was declared at $3,000 some years ago but was reduced to $2,000 per month because of a decline in the family business. The Petitioner ceased working for the business run by his parents. The parents’ business had not been making much money in recent years. The parents mortgaged their home at 36 XXX Singapore XXXXXX and sold their Bukit Batok apartment and car because of business debts. The Petitioner’s parents were in great financial difficulty. The Petitioner’s parents bore the food and other expenses of the Petitioner and his daughter because they lived with them. The Petitioner’s mother used to leave between $20 to $50 per day for the Respondent during the marriage because the Respondent said she was studying. The Petitioner’s mother had stopped her practice of leaving between $100 and $150 at a time for the Petitioner and the Respondent.
In the Respondent’s reply affidavit filed for the 2010 proceedings, the Respondent claimed that – It was the Petitioner’s parents who were providing for and looking after the daughter, not the Petitioner. The Petitioner had a string of girlfriends (this allegation was denied by the Petitioner). The Respondent was a full-time student at Nanyang Polytechnic pursuing a diploma in business management. She was then a third year student and would graduate the next year. The Petitioner worked and helped out in his parents’ business known as X Company. The Respondent’s mother gave him cash of at least $150 as his daily pocket money and settles his expenses. Although the Petitioner always declared his pay to be $2,000 a month, his credit card debts show he is living a lavish and extravagant lifestyle. Although there are letters of demand for payment, the Respondent believed that the Petitioner’s mother will not allow her only son to be adjudged a bankrupt. The Petitioner had been hauled to court 4 to 5 times for drink driving offences. The Respondent was totally dependent on the monthly maintenance for her living expenses. She had to draw on her line of credit which she obtained when she was working as an air stewardess when the Petitioner defaulted on his maintenance payments.
Circumstances at the time of the present application
The Petitioner filed 3 affidavits (on 24 June 2016, 12 July 2016 and 4 October 2016) in support of his application for rescission of the Respondent’s maintenance and for the Respondent to pay maintenance for their child. The Plaintiff’s sister, C, also filed an affidavit on 4 October 2016. In his affidavits, the Petitioner stated that – He has had care and control of the daughter since she was 6 years old and solely paid for her expenses. The only child’s expenses have increased manifold and his expenses have also increased. He agreed to the order made on 19 August 2010 as the Respondent claimed she was still studying and he believed her studying would make her employable at some point and she can pay maintenance towards the upbringing of the child. The Respondent is secretive about her whereabouts and employment. The Respondent is still unemployed and has chosen to remain unemployed for 5 over years. The Respondent hardly visited the daughter and only...
