UHK v UHL

• Jurisdiction: Singapore
• Judge: Kenneth Yap
• Judgment Date: 14 April 2023
• Neutral Citation: [2023] SGFC 12
• Court: Family Court (Singapore)
• Docket Number: Divorce No 273 of 2017
• Hearing Date: 03 January 2023,06 January 2023
• Citation: [2023] SGFC 12
• Year: 2023
• Plaintiff Counsel: Johnson Loo Teck Lee and Lew Zi Qi (Liao Ziqi) (Drew & Napier LLC)
• Defendant Counsel: Tang King Kai (Tang & Partners)
• Subject Matter: Family law,Maintenance of children,Variation
• Published date: 21 April 2023

District Judge Kenneth Yap: Introduction

This is the Plaintiff Husband’s application for variation of the ancillary orders to cease paying spousal maintenance of $3,000 per month. The Husband claims there has been a material change of circumstance on the basis that the Defendant Wife’s health condition has improved and currently holds down regular employment at a salary of $3,300 per month.

I allowed the Husband’s application in part and reduced monthly spousal maintenance to $500. Both parties have appealed against this order. I provide my reasons as follows.

The Parties and Their Background

The parties had a short marriage with no children. The marriage effectively lasted 13 months from 11 November 2011 until the parties entered into a Deed of Separation on 21 February 2013, wherein the Husband agreed to the following maintenance terms:

The Husband shall pay to the Wife a monthly sum of $2,500.00 as maintenance for the Wife commencing from the 15th day of February 2013 to the 15th day of December 2013 and from the 15th day of January 2014 onwards, the Husband shall pay to the Wife a monthly sum of $3,000.00 as maintenance for the Wife.

On 23 January 2017, the Husband commenced divorce proceedings on the grounds of four years’ separation, with ancillary orders made on 6 September 2017. At the first instance, the District Judge ordered a gradual reduction in the quantum of maintenance, i.e. that the Husband should pay $3,000 monthly maintenance for one year, followed by $1,500 for 4 months, and for no maintenance to be paid thereafter from 1 January 2019. The Wife filed an appeal, and on 16 April 2018, the High Court allowed the appeal and directed that the Husband continue to pay $3,000 to the Wife as maintenance “until it is varied”.

The Facts Relating to the Application

The Wife in this case suffered from debilitative medical conditions which manifested prior to the marriage. She was diagnosed with connective-tissue disease involving systemic lupus erythematosus and rheumatoid arthritis in 2009. This auto-immune disease causes the formation of soft tissue abscesses and deep ulcers over various parts of her body, especially in the limbs, hips and arms. When symptoms manifest, the wounds require medical treatment to excise the tissue, as well as cleaning of the affected sites multiple times on a daily basis. The affliction of rheumatoid arthritis also resulted in pain and swelling at her joints which required pain management. These conditions hindered the Wife’s ability to move freely and work, requiring her to be on lifelong medication and treatment.

After parties had entered into a Deed of Separation, the Wife was nevertheless able to work for a short period, having found employment as a sales coordinator as at 10 June 2013, earning a monthly salary of $2,600. However, in September 2013, her medical condition suddenly worsened and became so debilitating that she could not work. She suffered sudden bilateral patella tendon rupture, underwent surgery to repair the ruptured tendon on 24 October 2013, and was wheelchair bound for several months after her discharge on 12 November 2013. Thereafter, she continued to suffer multiple medical conditions. Her thyroid was diagnosed to be cancerous, and on 15 September 2017, she underwent an operation to remove her thyroid gland. According to the Wife, she suffered heavy menstrual periods after the surgery, and remained lethargic and drowsy. A memorandum dated 15 January 2018 (which was admitted as additional evidence in the course of the appeal) provided by Dr Fong Hui Chai, an orthopaedic surgeon at the Singapore General Hospital, noted the following:

The above mentioned is suffering from multiple medical conditions and has undergone several surgical procedures since September 2010. She has been diagnosed with an undifferentiated connective tissue disease, with systemic symptoms and will require lifelong medical treatment. Of note, X ray of her knees shoes (sic) significant inflammatory arthritis affecting both knees, which causes her to suffer from chronic pain and will be a significant impediment to regular employment. Considering the chronic nature of her medical condition, she is unfit to perform regular work duties. [Emphasis added]

Indeed, the Wife still had not resumed work by the hearing of the appeal against the ancillary orders on 16 April 2018.

This has presently changed. The Wife has recently sought gainful employment following the stabilisation of her medical condition, which is presently kept under control by the application of corticosteroids and a weekly anti-TNF injection. Since April 2022 to the present, she was able to obtain regular employment, earning a monthly income of $3,300. She explains in her affidavit that this was only possible because her treatments have put her condition in check, and she did so because she needed to augment her income as her parents needed her support.

The Husband argues that the Wife’s employment since April 2022 constitutes a material change of circumstances that justify cessation of maintenance payments. He tenders extensive surveillance by a private investigator to show that that the Wife is able to walk, attend work for the entire day, take public transport, run errands, go shopping, date a male friend, attend at entertainment venues, travel overseas and live what appears in all respects to be a normal life, over the course of observation from 8 to 25 July 2022. He argues that her earnings now exceed the maintenance sum of $3,000, and that maintenance should therefore be ceased. In any case, he relies on the principle of self-reliance to submit that medical condition or otherwise, the Wife should be expected to stand on her own two feet in the four and the half years that have passed since the ancillary orders were resolved. In fact, counsel for the Husband points out that over the course of nearly ten years since the Deed of Separation in 2013, the Husband has already paid her a total sum of about $351,500.

In response, the Wife has tendered recent medical notes from her doctors that suggest that her condition still persists and could still prevent her from working again at a later date. In this regard, two fresh documents were tendered in these proceedings. The first is a medical note drafted by Dr Deborah Huang based on an examination on 19 April 2021, which reveals the presence of a cystic lesion in the Wife’s left knee. The second is a letter drafted by A/P Lee Haur Yueh of SGH on 11 October 2022, which indicates that the Wife’s ulcers/wounds impact her activities of daily living and may make it difficult for her to be actively working. Counsel for the Husband urges the court to place little weight on these medical memoranda, as they are not formal medical reports, and should not be taken to represent a considered medical opinion of the doctors on the Wife’s ability to work. While this may be so, I would not discount the tenor of the medical views proffered, which is that while the Wife’s medical condition is under control, there is no long term cure to her condition and she is reliant on medication and further treatment to have a chance of leading a normal life. I also accept that there is a possibility that she may suffer a relapse at some point which may render it difficult for her to be gainfully employed, although this is a possibility that is too speculative for the purposes of the present variation application.

The Applicable Law

The applicable provision on variation of maintenance orders is found in s 118 of the Women’s Charter 1961:

118. The court may at any time vary or rescind any subsisting order for maintenance … 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.

In ATS v ATT [2016] SGHC 196, Belinda Ang J summarised the applicable principles that the Court would apply to determine whether there has been a “material change in circumstances”: -

Generally, when the ‘change in circumstances’ condition in s 72 and/or s 118 is invoked, the variation court strictly decides from the time-point post-ancillary order. The court should thus examine whether: (a) Such change being alleged is a change from circumstances prevailing during the ancillary matters hearing; (b) Such change being alleged arose after the ancillary matters hearing; and (c) Such change being alleged is sufficient enough to satisfy the court that a variation or rescission of maintenance is necessitated (in light of the factors that determined the final maintenance order made at the ancillary hearing”

In determining spousal maintenance, the overarching principle is that of financial preservation, i.e. the former wife should be maintained at a standard that is, to a reasonable extent, commensurate with the standard of living she had enjoyed during the marriage. This principle in turn is subject to the countervailing reasoning that the law of maintenance does not seek to create life-long dependency on the part of the former spouse, who should strive to regain financial self-sufficiency over time and not depend on the ex-husband for maintenance for life. In ATS v ATT [2016] SGHC 196, Belinda Ang J (as Her Honour then was) elucidated on the self-sufficiency principle at [34]:

It is not controversial that the law of maintenance does not seek to create situations of life-long dependency by former wives on maintenance from their former husbands; former wives where reasonable would be expected to regain some level of financial self sufficiency: Quek Lee Tiam v Ho Kim Swee (alias Ho Kian Guan) [1995] SGHC 23 (“Quek Lee Tiam”) (at [21]–[22]). This was reiterated in NI v NJ [2007] 1 SLR(R) 75 (at [11]) that the former wife should “exert herself, [to] secure a gainful employment, and earn as much as reasonably possible.” The Court of Appeal in ARY v ARX and...