Foo Ah Yan v Chiam Heng Chow

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court):

[1] This was an appeal by the wife against a decision of the High Court ordering lump sum maintenance of $75,000, to be paid 14 days after the wife transfers a property back to the husband (see Foo Ah Yan v Chiam Heng Chow [2011] SGHC 202 (“the GD”)). The order of the learned Judge (“the Judge”) embodied the terms of the husband’s offer, which was made in response to the wife’s claim for lump sum maintenance of $292,000. We allowed the wife’s appeal and now set out the detailed grounds for our decision.

[2] This case concerned the obligations of the respondent husband to maintain the appellant wife after the dissolution of their 13.5 year long marriage. The parties were married on 11 October 1995, and by the time the ancillary proceedings had commenced, the wife was 60 years old and the husband was 72 years old. As there were no children of the marriage, and the wife did not claim a share of the matrimonial assets, the only ancillary matter before this court was that of maintenance of the wife.

[3] The parties resided in a double storey corner terrace house during the marriage. The husband retired in 1996, shortly after the marriage. He continued to receive an income of $2,600 per month, constituted by rental of $1,800, an annuity of $350 from his National Trades Union Congress (“NTUC”) insurance policy and allowances from the children from his previous marriage. The wife, who was a full time accounts clerk and bookkeeper drawing a monthly salary of $2,550, also stopped working shortly after the marriage.

[4] Several factual disputes took centre stage during the proceedings below. Firstly, there was a dispute over whether the husband had maintained the wife during the marriage. The wife claimed that maintenance had been provided, although, as the Judge noted, her position regarding the quantum of maintenance allegedly provided had been inconsistent (see the GD at [6]–[8]). The husband, in contrast, insisted that he had not maintained the wife during the marriage. As was apparent during submissions (at least on the part of the husband), this insistence was thought to justify the position that a husband who had not maintained his wife during the course of the marriage need not do so after the marriage was dissolved. This was an unfortunate reading of a husband’s obligation to maintain his former wife under the Women’s Charter (Cap 353, 1997 Rev Ed) (“the Act”), which we shall elaborate on later. The second factual dispute concerned the wife’s current financial position. According to her, she now earns $1,100 per month ($800 as a part time accounts clerk and bookkeeper, and $300 from multi level marketing sales). The husband alleged that she was earning more, given the sizable difference between her monthly income of $1,100 and her claimed monthly expenses of $6,344.50.

[5] At a hearing before the Judge on 26 April 2011, the husband made an offer of a lump sum payment of $75,000 payable over three monthly instalments provided the wife re-transferred a property in Hainan, Republic of China, known as Unit 15B Lion City Apartment (“the Hainan property”), back to him. It was not disputed that the Hainan property, purchased in 2000 and registered in the wife’s name, was wholly paid for by the husband. The wife did not argue that the Hainan property was a gift to her.

[6] The Judge found that the wife had been financially independent throughout the marriage (see the GD at [27]), and, as such, the only “loss” suffered by her following the dissolution of the marriage was the loss of accommodation (see the GD at [24]). The wife’s financial independence was inferred from her failure to prove receipt of maintenance during the course of the marriage (see the GD at [17] and [27]), her failure to explain how she had bridged the difference between her monthly expenses of $6,344.50 and the monthly sums allegedly provided by the husband during the marriage (see the GD at [22]), as well as the fact that parties had kept their finances separate (see the GD at [19]).

[7] The Judge held that, but for the husband’s offer, he would have awarded the wife a lump sum of no more than $48,300 (see the GD at [27]), based on a multiplicand of $575 per month (the monthly rental for a room in a Housing and Development Board (“HDB”) flat) and a multiplier of 7 years, ie, $575 x 12 x 7. In the light of this, the Judge found the husband’s offer to be generous and thus ordered him to pay $75,000 in three monthly instalments of $25,000, commencing within 14 days after the wife transferred the Hainan property back to him (see the GD at [4] and [28]).

[8] The issues which arose before this court were as follows:

(a) Whether the Judge was correct in finding that lump sum maintenance of $75,000 was fair and reasonable in the circumstances (“Issue 1”).

(b) Whether the maintenance order should be conditional upon the transfer of the Hainan property back to the husband (“Issue 2”).

[9] As alluded to at [4] above, an interesting question that arose in connection with Issue 1 (and which will be dealt with below) was whether a husband who had not maintained his wife during the course of the marriage was entitled to raise this in divorce ancillary proceedings in order to avoid having to maintain his former wife post dissolution of the marriage.

[10] Counsel for the wife, Mr Cheah Kok Lim (“Mr Cheah”), argued that proof of maintenance during the marriage should not be the chief focus since the Act does not require a wife to produce such proof before she may claim maintenance post dissolution of the marriage. Mr Cheah argued that, since a husband is under a duty to maintain his wife during the marriage, the provision of maintenance during the marriage is, at best, one of the many factors that the court should consider when ordering maintenance to be paid after the divorce. He also took issue with the Judge’s inference that the wife was financially independent, arguing that the sum of $6,344.50 represented her current estimated expenses, which included anticipated medical expenses of $500 and rental of $1,500 which she would now have to pay. Finally, Mr Cheah argued that the court should take into account the wife’s old age, the husband’s financial resources, as well as the fact that the wife had not received any share of the matrimonial assets. In the circumstances, he argued that a lump sum payment of $292,000 in favour of the wife, based on a multiplicand of $1,800 per month (ie, the rental of an HDB flat) and a multiplier of 13.5 years, being the length of marriage, would be the appropriate order.

[11] In response, counsel for the husband, Mr Michael Moey (“Mr Moey”), argued that as the husband had never maintained the wife during the course of the marriage, there was no reason why he had to do so now. Mr Moey argued that the husband was, in any case, only obliged to provide the wife with rental of a room in an HDB flat because parties had shared a bedroom in the matrimonial home and the wife was usually away for most part of the day, treating the home like a hotel. Mr Moey argued that providing more maintenance to the wife would be tantamount to giving her a share of the matrimonial assets via the back door.

[12] The court derives its power to order maintenance from s 113 of the Act. Section 114 of the Act was modelled on s 25 of the Matrimonial Causes Act 1973 (c 18) (UK) (“the 1973 UK Act”). The 1973 UK Act is a consolidating act, which repealed and re-enacted s 5 of the Matrimonial Proceedings and Property Act 1970 (c 45) (UK) (“the 1970 UK Act”), prior to the amendment in 1984 referred to below (at [15]). Section 114 of the Act sets out a non-exhaustive list of factors to be considered as well as the guiding principle of financial preservation, as follows:

[13] Generally, assessment of the appropriate monthly multiplicand begins with the wife’s financial needs as derived from her particulars of expenditure, scaled down for reasonableness: see the Singapore High Court decision of Quek Lee Tiam v Ho Kim Swee (alia Ho Kian Guan) [1995] SGHC 23 (“Quek Lee Tiam”) at [16]. The overarching principle embodied in s 114(2) of the Act is that of financial preservation, which requires the wife to be maintained at a standard, which is, to a reasonable extent, commensurate with the standard of living she had enjoyed during the marriage. A clear application of this principle was found in Quek Lee Tiam (at [19]), where Lai Kew Chai J held that:

[14] The statutory directive in s 114(2) has, however, been criticised for ignoring the very fact that triggered the application for maintenance, viz, termination of the marriage, and for restricting the court to the sole consideration of parties’ conduct when reflecting upon the justice of the order: see Halsbury’s Laws of Singapore vol 11 (LexisNexis, 2006 Reissue) (“Halsbury’s”) at para 130.853. The first criticism was articulated in the following terms by Lord Hailsham of St Marylebone LC during the parliamentary debates on the UK Matrimonial and Family Proceedings Bill (which was subsequently enacted as the Matrimonial and Family Proceedings Act 1984 (c 42) (UK) (“the 1984 UK Act”)) (see Parliamentary Debates (Hansard) - House of Lords (21 November 1983) vol 445 at col 35):

References may also be made to the following publications by the Law Commission for England and Wales: The Financial Consequences of Divorce: The Basic Policy – A Discussion Paper (Law Com No 103, 1980), especially at paras 21–22, 42–44 and 66–69 and The Financial Consequences of Divorce – The Response to the Law Commission’s Discussion Paper, and Recommendations on the Policy of the Law (Law Com No 112), especially at para 17.

[15] Yet, whilst England and Wales have abandoned their equivalent of the s 114(2) directive after amendments vide the 1984 UK Act (see, in particular, s 3), with the result that s 25 of the UK Matrimonial Causes Act 1973 now only directs the court to consider a non-exhaustive list of relevant factors, our legislature has not followed suit (see Leong Wai Kum, Elements of Family Law in Singapore (Singapore: LexisNexis, 2007) (“Elements of Family Law in Singapore”) at p 796 and Halsbury’s at para 130.853). Our courts have, however, applied s 114(2) purposively to achieve a commonsense response to the requirements of justice in each case – a point which has been acknowledged by the work just mentioned (see Halsbury’s at para 130.853). As this court noted in BG v BF [2007] 3 SLR(R) 233 (“BG v BF”) at [74]–[75]:

[16] The purposive approach to the s 114(2) directive recognises that there could be an infinite number of reasons why the applicant should not get all she asks for, and requires s 114(2) to be applied in a commonsense holistic manner that takes into account the new realities that flow from the breakdown of a marriage: see the Singapore High Court decision of NI v NJ [2007] 1 SLR(R) 75 (“NI v NJ”) at [15]–[16]. Indeed, Lord Gardiner LC referred to instances of the possible pitfalls which might occur (and which the commonsense holistic approach adopted by the Singapore courts avoids) during the debate in the House of Lords on clause 5 of the UK Matrimonial Proceedings and Property Bill (which was later enacted as s 5 of the 1970 UK Act that was, in turn, and as noted above at [12], the provision upon which s 114 of the Act was modelled), as follows (see Parliamentary Debates (Hansard) - House of Lords (4 December 1969) vol 306 at cols 267-268):

Consequently (and in accordance with this commonsense holistic approach), our courts have held, inter alia, that a former wife must, where possible, exert reasonable efforts to secure gainful employment and contribute to preserve her pre-breakdown lifestyle: see, for example, Quek Lee Tiam at [22] and NI v NJ at [14]–[16].

[17] The court must also consider the husband’s financial ability to meet the maintenance order. Thus, although 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, the former wife who has assets of her own should not expect a full subsidy for her lifestyle: see, for example, the Singapore High Court decision of Yow Mee Lan v Chen Kai Buan [2000] 2 SLR(R) 659 (“Yow Mee Lan”) at [93].

[18] As for the period over which maintenance is to be paid, this court, in Ong Chen Leng v Tan Sau Poo [1993] 2 SLR(R) 545 (“Ong Chen Leng”) at [35]–[36], applied a multiplier of 17 years to the multiplicand of $600 per month as a compromise between the average life expectancy of a woman (70 years) and the usual retirement age of a Singapore male worker (65 years), less the wife’s present age (50 years). This was however not a hard and fast rule: see Rosaline Singh v Jayabalan Samidurai (alias Jerome Jayabalan) [2004] 1 SLR(R) 457 (“Rosaline Singh”) at [13] and Yow Mee Lan at [97], where the High Court in the latter case held as follows:

[19] In the final analysis, it is the reasonableness of the maintenance claim vis-à-vis the husband’s ability to pay, which guides the court’s application of the principle of financial preservation (see also the recent decision of this court in AQS v AQR [2012] SGCA 3 at [52] (“AQS”)). As factors leading up to the breakdown of marriages are varied and often incommensurable, no single formula can ensure a just result in each and every case. Consequently, courts have accepted that the exercise of assessing maintenance must be undertaken flexibly, with “a commonsense dose of realities” (see Quek Lee Tiam at [21]).

Can a husband who has not maintained his wife during the course of the marriage raise this fact in divorce ancillary proceedings in order to avoid providing maintenance post dissolution of the marriage?

[21] In any event, we were unable to locate authorities in support of the husband’s broad – indeed, sweeping – proposition to the effect that one who has not maintained his wife during the course of the marriage need not do so after the divorce. Indeed, s 69(1) of the Act imposes an obligation on a husband to provide maintenance to his wife during the course of the marriage. Of course, what is reasonable depends on all the circumstances of the case; that a wife is financially capable does not per se excuse a husband from his duty to maintain her, although it may affect the quantum of maintenance deemed to be reasonable: see Tan Cheng Han, Matrimonial Law in Singapore and Malaysia (Butterworths Asia, 1994) at pp 205–206. While non-provision of maintenance during subsistence of the marriage could therefore be justified in some situations, a husband’s reliance on his failure to provide maintenance during the marriage per se, in order to evade his duty to maintain his former wife after divorce, cannot possibly sit well with the court’s sense of justice.

[22] Furthermore, the duty of a husband to maintain his wife during the marriage, as provided by s 69(1) of the Act, and the obligation to provide maintenance to a former wife under s 113 of the Act are driven by separate forces. As Prof Leong Wai Kum pointed out in Elements of Family Law in Singapore at p 476:

Indeed, while the court must have regard to all circumstances of the case when ordering maintenance in both contexts, the matters that the Act specifically directs the court to consider under ss 69(4) and 114 of the Act are not identical. It is thus conceivable that one who justifiably fails to maintain his wife during the course of their marriage may nevertheless be obliged to do so after the marriage has ended.

[23] We have emphasised that while non-provision of maintenance during the course of the marriage may point towards the wife’s financial independence, it is not a factor that should be given conclusive weight. In any event, we were mindful that, despite his claims that no maintenance had been provided to the wife, the husband had admitted to providing her with accommodation and related outgoings during the marriage itself.

[24] Although the wife did not produce evidence of payment of rental to her nephew with whom she is currently residing, the Judge decided to give her the benefit of doubt as it was unclear whether she would be able to stay with her nephew indefinitely (see the GD at [25]). This was a sensible approach, which accorded with the following observations made (albeit in a slightly different context) by this court in Tan Bee Giok v Loh Kum Yong [1996] 3 SLR(R) 605 (“Tan Bee Giok”) (at [24]):

[25] We were however of the view that it would be more reasonable to provide the wife with rental of an HDB flat, rather than that of a room in an HDB flat. When applying the principle of financial preservation, the standard of living against which the wife’s current maintenance entitlement should be gauged is that which she enjoyed prior to the breakdown of the marriage, instead of that prior to the marriage: see s 114(1)(c) of the Act and Quek Lee Tiam at [19]. Bearing in mind that parties had resided in a double storey terrace house during the marriage, a rented room in an HDB flat fell too far short of the standard of accommodation commensurate with that of the matrimonial home. Indeed, this view is wholly consistent with – and serves, in fact, to illustrate - the commonsense holistic approach which has been endorsed by our courts (as to which see above at [16]).

[27] In the circumstances, we were of the view that an order for lump sum maintenance of $126,000 would be fair and reasonable, based on a multiplicand of $1,500, being the monthly rental of an HDB flat, and a multiplier of 7 years. The husband submitted that Yow Mee Lan should be applied to halve the multiplicand in order to account for his status as a retiree. However, the fact that the husband is already retired served to distinguish this case from Yow Mee Lan, where the court took into account the husband’s prospective retirement by halving maintenance for the relevant post-retirement period. Since the multiplicand of $1,500 was arrived at after considering the parties’ age and the wife’s relative self-sufficiency, the husband’s retirement has already been accounted for.