VOX v VOY

• Jurisdiction: Singapore
• Judge: Lim Keng Yeow
• Judgment Date: 15 February 2021
• Neutral Citation: [2021] SGFC 11
• Court: Family Court (Singapore)
• Hearing Date: 11 November 2020,13 November 2020
• Docket Number: Divorce No 338 of 2007 (Summons No 478 of 2020)
• Plaintiff Counsel: V Kanyakumari (Tan Kok Quan Partnership)
• Defendant Counsel: Raymond Yeo (Raymond Yeo Advocates & Solicitors)
• Subject Matter: Spousal maintenance,Variation,Rescission,Material change in circumstances
• Published date: 20 February 2021

District Judge Lim Keng Yeow : Introduction

This is an application by the plaintiff (“the ex-husband”) to vary the existing maintenance orders made in favour of the defendant (“the ex-wife”). I eventually made orders which would result in the ex-husband’s maintenance obligations being fully discharged after 15 months. Both parties appealed against the orders.

The parties in this case were married on 23 July 1992. On 13 April 2007, Interim Judgment of divorce was granted, and ancillary matters were determined on 1 April 2010. Orders made relating to maintenance of the ex-wife were that the ex-husband was to pay her: $3,000 per month as maintenance; $2,700 per month as housing allowance upon her vacating the matrimonial home, and $1,000 per month as transport allowance when the motor vehicle used by her was returned.

On 10 November 2014, the orders were varied. The High Court, on appeal, ordered that housing allowance would be fixed at $1,500 instead of $2,700 and left the other payments to the ex-wife undisturbed. Hence, since end-2014, the ex-wife has been receiving a total of $5,500 per month in maintenance.

The parties’ cases

The ex-husband filed this application seeking to discharge his maintenance obligations as regards the ex-wife. The key basis of his application is that he had retired since 26 June 2019 after working for 35 years. He was now no longer drawing any income¹. This, it was contended, amounted to a material change in circumstances under s 118 Women’s Charter (“WC”). In addition, it was argued that the law of maintenance was not intended to create a situation of lifelong dependency by an ex-wife on maintenance payments by an ex-husband². For these reasons, it was totally not inappropriate for his financial obligations toward the ex-wife to cease.

The ex-wife contested the application on the basis that she remained financially dependent on the ex-husband³. She also argued that the ex-husband’s retirement and consequential loss of income at 61 years of age was self-induced. Furthermore, his retirement did not mean that he now had no financial ability to continue with payments. Hence, she contended that existing maintenance payments should continue, or at least remain for another three years⁴.

Material change in circumstances

The first main issue to be determined was whether variation or rescission of existing maintenance orders was possible or warranted in the circumstances.

Under s 117 WC, maintenance orders in favour of a wife that are not expressed to end at any given time continue until either ex-spouse deceases, or until the wife remarries, unless the order is subsequently rescinded. Whether and when such an order is to be rescinded is provided for in s 118 WC: the court may “vary or rescind any subsisting order for maintenance…where there has been any material change in the circumstances”.

Not every change in circumstances satisfies the requirements of s 118 WC. In ATS v ATT, the High Court held that three conditions must be met⁵: The material change asserted is a change from circumstances prevailing during the ancillary matters hearing; The change arose after the ancillary matters hearing; and The change is enough to satisfy the court that a variation or rescission of maintenance is necessitated.

Material changes on the part of the ex-husband

The ex-husband relied principally on his retirement and the loss of a monthly income as such a material change. The ex-wife did not dispute the fact of his termination of employment. On this issue, she contended, firstly, that the retirement represented purely self-induced circumstances. The suggestion appeared to be that the situation was brought about by the ex-husband’s own doing and allowing this would be unfair to the ex-wife. Secondly, despite his retirement, he remained capable of continuing with his obligations under the existing orders.

Purely self-induced circumstances?

In arguing that the ex-husband could not rely on his retirement, the ex-wife referred to cases such as See Toh Weng Foong v Chew Cheng Moi⁶, where the court did not allow the variation sought on the basis that the adverse change in circumstances was self-induced⁷.

In my view, the principle to be applied is not that a party can only rely on adverse changes that were forced upon the party or which the party had no choice over. That cannot be so, as the courts have clearly been willing to regard circumstances resulting from a party’s volitional choices as a material change sufficient to justify a variation in that party’s favour.

A good example would be the remarriage of an ex-husband. In dealing with submissions that these circumstances were brought about purely by his own choices and ought not affect his ongoing maintenance obligations, the High Court in ANH v ANI held as follows:

It is a reasonable presumption that no one remarries merely to reduce his obligations of maintenance to the ex-spouse. It is therefore not right to deride the father here for his remarriage as if it were a problem of his own making as counsel submitted. The court has no business commenting, let alone pontificating, upon whether a divorcee should marry or not⁸.

The remarriage carried every probability of children being produced and that the capacity of the ex-husband there to continue with maintenance payments would be affected. Despite that, the court did not treat it as representing self-induced circumstances aimed at curtailing his maintenance obligations. Instead, the court presumed the absence of such motives and wholly accepted the remarriage as amounting to a material change in circumstances.

That, in my respectful view, must be correct. After all, a divorced individual should have every right and liberty to move on with life and make his or her own choices in life, neither totally heedless of existing legal obligations especially to one’s children, nor having to be fettered by the possible implications of one’s choices on the ex-spouse.

Hence, the fact that the circumstances relied on as material changes flowed from the personal choice of a party and were therefore “self-induced” should not mean that they must be disregarded. It should be where the inference ought to be drawn that a party had strategically engineered that set of adverse circumstances in order to advance one’s position or secure an advantage in legal proceedings that it would be inequitable to allow the party to benefit from the circumstances that he or she had created.

On the facts of this case, there was no evidence to support such an inference. I noted the following: The ex-husband occupied a senior position in a financial institution and drew substantial salaries exceeding by far the monthly amounts he was ordered to pay the ex-wife. To suggest that he opted to lose all that simply to achieve the aim of paying less or no maintenance appeared far-fetched and needed to be substantiated. Of course, it is not beyond a person driven by spite to make such a choice. Such a motive would, however, be inconsistent with the undisputed fact that the ex-husband had already been dutifully paying her maintenance for nearly a decade, while also providing for the children solely; Being aged 61, the ex-husband had already worked for some 35 years. I noted that he did not put forward any health-related reasons, but desiring retirement at his phase in life was neither something extraordinary nor difficult to understand. After all, it would not be unreasonable to infer that he faced stressors and demands commensurate with his high pay. Suggestions that he could or should still work for another few years were, in my view, not too far different from contending that an ex-husband should not remarry; His entry into retirement was no small matter for him in that it was likely to be irrevocable, considering the understandable challenges in obtaining other employment for anyone at his age; He retired as of 26 June 2019, and it was only some 8 months later that the variation application was filed on 18 February 2020, and Stoppage of maintenance payments since December 2019 was not necessarily indicative of any particular motive as regards his earlier retirement.

In my judgment, the evidence before me was insufficient to support an inference that the ex-husband’s retirement was merely a strategic ploy aimed at defeating his maintenance obligations. I accepted that the retirement and the consequential loss in income and income earning capacity would amount to a material change under s 118 WC.

Financial ability to pay has not changed?

An ex-husband’s retirement may not always warrant the variation or rescission of the maintenance order. What matters is whether he continues to have the financial ability to meet the maintenance order: Foo Ah Yan v Chiam Heng Chow⁹.

In the instant case, the ex-husband would have been fully conscious of the extent of his financial situation when he went into retirement. There was nothing to indicate a forced retirement or that he should be surprised by what he had gotten himself into. Hence, against his claims to have had to resort to a number of loans and redemption of insurance policies, I was not persuaded that he would voluntarily decide to go into retirement and forego his substantial salary only to throw himself into financial dire straits. I drew the inference that he should be able to continue with maintenance payments,...