CKO v CKP [2021] SGHC 92

Summons No 3498 of 2020 (“SUM 3498”) was an application filed by the plaintiff, the husband (“CKO”), under s 118 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“Women’s Charter”) to seek a rescission or downward variation of the monthly maintenance payable to the defendant, his former wife (“CKP”). Under paragraph 9 of the Order of Court in relation to the ancillary matters dated 19 October 2010, CKO was to “pay monthly maintenance of $4,000.00” (the “Subsisting Maintenance Order”).

On 9 November 2020, after considering the parties’ written submissions and oral arguments, I varied the Subsisting Maintenance Order of $4,000.00 downwards to $1,500.00 with effect from 1 December 2020.

Subsequently, on 20 November 2020, CKO filed a request for further arguments. CKO sought a further downward variation of the monthly maintenance to $1,000.00 or lower. In addition, CKO wanted (a) the maintenance to be payable until he turned 62 years old and to cease thereafter; and (b) the variation to take effect from 31 August 2020 (ie, the date of cessation of CKO’s employment) or, alternatively, 9 November 2020 (ie, the date on which the order to vary the Subsisting Maintenance Order was given). After hearing parties’ further arguments on 15 February 2021, I declined to make any further orders.

CKO has since filed an appeal against my decision. I now set out the grounds of my decision.

Facts

The parties were married in 1989 and the marriage came to an end on 11 January 2011. CKO and CKP are 61 years old. CKO was formerly an equity partner in a law firm and retired in August 2020. He does not intend to seek full-time employment but intends to accept ad hoc appointments as they come. CKO owns a double-storey semi-detached house (“CKO’s Property”). CKP is a flexible adjunct teacher in a secondary school. She jointly owns a condominium unit with her sister.

There were two children of the marriage. The daughter, [C], is 28 years old and has special needs. She had been diagnosed with infantile spasms and is intellectually challenged. The son, [D], is 24 years old and pursuing tertiary education at the National University of Singapore (“NUS”).

CKO remarried on 18 May 2011. His wife, [W], is 49 years old. They have a daughter, [E], who is 8 years old. [C] and [D] live with CKO, [W] and [E] in CKO’s Property.

The parties’ cases

CKO’s case was that the Subsisting Maintenance Order ought to be rescinded or varied downwards because there has been a material change in CKO’s circumstances since the Order of Court was made for the following reasons:

CKP’s case was that there ought to be no variation order made because CKO’s retirement, remarriage and health condition do not amount to a material change of circumstances sufficient to warrant a variation of the Subsisting Maintenance Order.

The main issue

The main issue that arose for my determination was whether the Subsisting Maintenance Order should be rescinded or varied downwards.

Whether the Subsisting Maintenance order should be rescinded or varied downwards

Whether there has been a material change in circumstances

The statutory basis for the Court’s power to vary maintenance orders for former wives is set out in s 118 of the Women’s Charter:

For applications relying on the ground of “material change in the circumstances” under s 118 of the Women’s Charter, the High Court in ATS v ATT [2016] SGHC 196 (at [13]) stated the following:

The Court of Appeal in BZD v BZE [2020] SGCA 1 (at [14]) clarified that the question was not simply whether there has been any material change per se but whether the change was sufficiently material such that it is no longer fair to expect the status quo to remain.

On the evidence before me, I found that there was a material change of circumstances which rendered it no longer fair to expect the Subsisting Maintenance Order to remain.

Following CKO’s retirement, he will no longer have employment income or partnership drawings. While CKO stated that he intends to accept odd jobs or appointments that come his way, it is indisputable that there is a material drop in income as contrasted with his income of about $20,000 per month in 2010 (ie, at the time of the ancillary matters hearing).

Further, CKO’s remarriage and his responsibility to maintain [E] are fresh financial obligations that CKO did not have at the time of the ancillary matters hearing. While remarriage per se should and does not affect or compromise the pre-existing obligations that a husband owes to the wife and children from a previous marriage, the fact that the husband has fresh financial commitments as a result of remarriage could be a factor in the investigation into whether there has been a material change of circumstances (see George Sapooran Singh v Gordip d/o MD Garsingh [2016] SGHC 197 (“George Sapooran”) at [39]). CKO’s fresh financial commitment to maintain [E] does point towards finding a material change in the circumstances.

Whether rescission or a downward variation is more appropriate

I now address the appropriate order to make. In determining whether to rescind or vary the amount of maintenance payable, the factors provided for in s 114(1) of the Women’s Charter should be considered:

Having regard to s 114 of the Women’s Charter, I was not persuaded that rescission was appropriate in the circumstances. However, I varied the Subsisting Maintenance Order downwards to $1,500.00 monthly with the following considerations in mind.

First, I considered the income, earning capacity and financial resources of the parties after CKO’s retirement. On this point, the High Court in Yow Mee Lan v Chen Kai Buan [2000] 2 SLR(R) 659 (“Yeo Mee Lan”) made the following observations (at [95]):

As such, prima facie, CKO’s retirement did not justify the rescission of his obligation to maintain CKP. While CKO would no longer draw partnership drawings or an employment income following his retirement, this did not mean that he has no earning capacity. Even considering his age and health condition, I found it difficult to say that he was unable to work. CKO’s own evidence is that he has chosen not to seek full-time employment but intends to accept odd jobs or appointments that come his way. With his experience and age, I deemed it likely that he has an estimated monthly earning capacity of at least $5,500.00. In my view, this estimate is conservative. In terms of financial resources, CKO is a man of very substantial means. Aside from owning CKO’s Property (a double-storey semi-detached house), he had also inherited a sum of about $3,500,000.00 from his father. He claims that after payment of debts, he now has $1,200,000.00 in cash. While CKO did disclose that he owns “some shares”, he failed to disclose the value of those shares and/or any dividend income that he receives. CKO also did not disclose whether he has other properties from which he could derive rental income.

I noted that CKP is not without means. CKP has cash savings of about $500,000 and shares worth about $100,000. Her net monthly salary had increased from $1,685.35 (at the time of the ancillary matters hearing) to $3,526.68.

Second, I considered CKO’s fresh financial commitments to his new family as a result of the remarriage. As regards remarriage, the High Court in George Sapooran (at [39]–[40]) made the following salient observations which are worth quoting extensively:

I accepted that it is reasonable to expect the financial resources required to maintain [E] to increase as she grows older. However, it should be noted that the obligation to maintain [E] is shared between CKO and [W]. This must be so in light of s 68 of the Women’s Charter which sets out the equal duty of parents to maintain their children (see TBC v TBD [2015] 4 SLR 59 at [27]). In assessing CKO’s obligation to his new family, I noted that [W] has a stable gross monthly income of about $13,000.00. While [W] has personal financial obligations to support her elderly parents who may have medical conditions, it stands to reason that CKO’s fresh financial obligations to his new family will not be as heavy as it would be if [W] had no income at all.

Third, I considered the parties’ household expenses. As [C] and [D] live with CKO, CKO has been primarily responsible for maintaining them both. While that has been the subsisting arrangement since the ancillary matters hearing, CKO submitted that [C] has recently been diagnosed with psychosis and this resulted in a significant expected increase in medical expenditure of the household. I accepted that.

CKO claims that his monthly household expenses will be in the range of $18,000.00 to $19,000.00. The calculation comprised the following:

CKP claims that her monthly expenses are about $4,940.00 which comprised the following:

Each party alleges that the other party has exaggerated their calculations of their monthly expenses. For instance, CKP claims that CKO has grossly inflated his monthly expenses from $3,944.74 to the range of $18,000.00 to $19,000.00. In turn, CKO claims that it is an exaggeration for CKP’s monthly grocery expenditure to be $1,500.00 when that sum is the same estimate CKO uses for his household’s grocery expenditure for five persons.

I did not find it helpful to conduct a granular analysis of each item claimed by the parties to be part of their monthly expenses. However, even adopting the broad-brush philosophy that courts generally adopt when dealing with financial matters in divorce proceedings (see Fong Khai Yin v Mok Poh Yee Delia [2013] SGHC 254 at [5]), I observed that some items claimed as part of the parties’ monthly expenses (eg, voluntary contribution to CPF) are luxuries rather than necessities. To assist the court in doing justice, parties generally ought to restrict their calculations of monthly expenses to those which are reasonable.

When I compared CKP’s monthly expenses to her income, there is a resulting shortfall for CKP of $1,414.32 per month (based on her monthly expenses of $4,940.00 less her net monthly salary of $3,526.68). For a man with CKO’s substantial means, he could well afford to pay CKP maintenance of $1,500.00 per month given his earning capacity, savings and assets even with his adjusted monthly expenses being estimated at $9,794.67.

Fourth, I considered the parties’ respective health conditions. CKO submitted that his health condition which included diabetes, blockages in some arteries and vessels, early symptoms of glaucoma, high blood pressure, an irregular heartbeat, a high triglyceride level and high uric acid concentration will lead to a significant increase in his medical expenses in the near future. But what is sauce for the goose is sauce for the gander. While CKO’s health condition may indeed result in higher medical expenditure, the same can be said for CKP as she ages. CKP suffers from major depressive disorder and anxiety disorder which require her to be on medication and there is the possibility of occasional relapses. She also has knee problems causing her pain whenever she stands for long hours to teach. I accepted CKP’s submission that such increases in medical expenses as one ages were foreseeable at the time of the ancillary matters hearing. Put simply, these are expected vicissitudes of life.

In the premises, I was satisfied that a downward variation of the Subsisting Maintenance Order to $1,500.00 was fair and just having regard to all the circumstances of the case.

The date the order should take effect

As the Court of Appeal stated in AXM v AXO [2014] 2 SLR 705 (at [26]), the court varying a maintenance order has the power to backdate the variation and in so doing give it retrospective effect. In such cases, the court has a discretion to meet the justice of the case (see TYA v TYB [2018] 3 SLR 1170 at [69]).

CKO submitted that any variation of the Subsisting Maintenance Order should take effect from 31 August 2020 (ie the date CKO lost his employment) or, alternatively, from 9 November 2020 (ie the date on which the order to vary the Subsisting Maintenance Order was given).

In response, CKP submitted that CKO has not shown that he is in such “dire financial straits” that there is a need to backdate the downward variation of the Subsisting Maintenance Order. Even if the downward variation were to commence from 31 August 2020, this would be a mere $7,500.00 which is “de minimis to [CKO] and therefore no backdating of the variation is necessary”.

I agreed with CKP’s submission that backdating was unnecessary because of the low quantum involved. Considering the financial resources of both parties, it would be fairer in the circumstances not to backdate the maintenance. Therefore, I ordered that the variation take effect on 1 December 2020.

Whether an end date should be specified

While the husband is prima facie obliged to maintain his former wife beyond his retirement and up to the former wife’s remarriage or the death of either party (see Foo Ah Yan v Chiam Heng Chow [2012] 2 SLR 506 at [17]), the law of maintenance does not seek to create situations of life-long dependency by former wives on maintenance from their former husbands (see ATS v ATT [2016] SGHC 196 at [34]).

CKO submitted that the Subsisting Maintenance Order should be varied such that any monthly maintenance is payable only until CKO reaches 62 years of age (ie, the statutory retirement age pursuant to the Retirement Age Act (Cap 274A, 2000 Rev Ed)). In response, CKP submitted that it was possible that CKO could continue working until 68 years or beyond.

After considering parties’ arguments, I declined to specify an end date for the order. In this regard, I gratefully adopt Judith Prakash J’s (as she then was) analysis in Yow Mee Lan (at [94]–[95]) as follows:

Similarly, I am of the view that it would be highly speculative to assume that there would be a material change of circumstances simply because CKO reaches 62 years of age. Even though this may be the statutory retirement age, it is not uncommon for lawyers to continue working so long as their health may permit. This is so especially since CKO has to provide for [E] who is now only 8 years old. In my judgment, the fairer solution would be for CKO to seek a rescission of the order if it is required at the appropriate time in the future.

In conclusion, I allowed SUM 3498 and varied the monthly maintenance downwards to $1,500.00 effective from 1 December 2020.