07:50 AM Chen Siyuan (Assistant Professor of Law, Singapore Management University)

    Maintenance under the Women’s Charter ADB v ADC [2014] SGHC 76


    Under the Women’s Charter (Cap 353, 2009 Rev Ed), a man can be ordered by the court to maintain his wife while the marriage subsists and can also be ordered to continue maintaining his former wife after the marriage has terminated. Because a woman cannot, under any circumstance, be statutorily compelled by the court to maintain her husband or former husband, the maintenance regime under the Women’s Charter has been criticised for failing to uphold equality in spousal relations (see eg, Leong Wai Kum, Elements of Family Law in Singapore (2nd ed, LexisNexis: 2013) at pp 661–662; Kelvin Low, Kelry Loi, and Serene Wee, “Towards a Maintenance of Equality: A Study of the Constitutionality of Maintenance Provisions that Sexually Discriminate (Part I)” (1998) 19 Singapore Law Review 45 at 76). The High Court in ADB v ADC has now joined in the criticism as well, suggesting that maintenance can potentially be used to suppress women – albeit for reasons perhaps quite dissimilar on closer scrutiny.

    The parties in this case were married in 2002 but started leading separate lives in 2009, and an interim judgment for divorce was granted in 2012. They had kept and spent their personal income separately and were financially independent of each other throughout the marriage. The wife, a regional sales manager of a multi-national company who drew an annual income of around $200,000, sought $120,000 in lump sum maintenance for herself and separate maintenance for the child. She drew a higher income than her husband, and also had twice the amount of assets. The judge dismissed her claim for maintenance, noting that though the wife had been a devoted mother and wife whilst juggling her full-time job, this factor should only be taken into account for the purposes of determining the division of matrimonial assets and not maintenance (but see BG v BF [2007] 3 SLR(R) 233 at [74]–[75]). The judge further pointed to precedents such as AAE v AAF [2008] 3 SLR(R) 827 and Anthony Guo Ninqun v Chan Wing Sun [2014] SGHC 56 where applications for maintenance were purportedly denied on the basis that the wives in those cases were highly financially independent of their husbands. The judge then made the following general observations on maintenance: (1)    Token awards of maintenance are unnecessary as an order that there be no maintenance for the time being, but that the parties are at liberty to apply for variation or rescission of the order, would suffice to preserve the parties’ rights; (2) If, however, the court is of the view that there should simply be no maintenance at all not because the husband is unable to pay but because the wife had not depended or would not be depending on any maintenance, the appropriate order should just be “no order for maintenance”; (3) The idea that “maintenance is an unalloyed right of a divorced woman is an idea borne from the time when women were housewives living on the maintenance of the men”; (4)    The idea that “women needed protection was yoked to an old attitude that should be changed. If it were to continue even where protection is no longer needed, it might lead to the suppression of women in the name of chivalry. If the woman is truly equal and independent, she does not require nor would she … desire patronising gestures [that] belie deep chauvinistic thinking”; and (5) The Women’s Charter should be “replaced by a wider, more encompassing bill that might be more suitably named the Marriage Charter, but when that moment might be is for the legislature to determine”.

    The basic thrust of the decision must be that where a wife or former wife is capable of paying her own way through life, any order for maintenance sought (whether during marriage or upon divorce) should and must be rejected by the court. As a matter of perceived principle – notwithstanding the fact that orders for maintenance are sought for by women of their own volition on the basis of nothing else but their own beliefs and calculations that they would require maintenance – the idea underlying this proposition is that this is the best way to properly recognise that women are on equal footing as men, something which the maintenance regime under the Women’s Charter purportedly does not do so. But, as a matter of the written law, though not referred to by the judge in his judgment, s 114 of the Women’s Charter actually already provides unequivocal guidance to the court on the determination of maintenance in the sort of factual matrix that confronted the court here.

    In other words, under existing legislation, if a wife or former wife has little or no justification – financial or otherwise – for seeking maintenance, the court will simply not order any maintenance. On the facts of this case, ss 114(1)(a), (b), and (c) would readily have provided an answer to the question presented by the application, even if the conclusion reached would likely have been the same as that of the judge, had it been expressly applied (in this regard see also Wong Amy v Chua Seng Chuan [1992] 2 SLR(R) 143 at [39]–[40]; Tan Sue-Ann Melissa v Lim Siang Bok Dennis [2004] 3 SLR(R) 376 at [27]; Foo Ah Yan v Chiam Heng Chow [2012] 2 SLR 506 at [22]). So the law already gives the courts the flexibility to decide each application on its various facts and circumstances, including the possibility of fully respecting the autonomy (broadly conceived) of either party in the appropriate terms, such as making no order on maintenance (with liberty to apply or otherwise). In this connection, it is also jurisprudentially settled that the court has extremely great discretion in determining matters of maintenance (and indeed, any post-divorce ancillary matters as well) in as equitable a way as possible (see ADP v ADQ [2012] 2 SLR 143 and its related comment, Chen Siyuan and Nicholas Poon, “Void Marriages, Maintenance, and Matrimonial Assets” (02/2012) SLW Commentary; TQ v TR [2009] 2 SLR(R) 961), and it is unhelpful to impose a de facto fetter on this discretion; specifically, it is not implausible to construe ADB v ADC as proposing that women should in effect be slow to resort to maintenance (and therefore courts should be slow to grant) as, by default and as a starting point, all women should have jobs and therefore be fully capable of financial self-sustenance. Though the judge did not discount that there could be extenuating circumstances such as to justify (substantial) maintenance, this was not elaborated upon either: a generous interpretation of the judgment would mean that the aforementioned construction should be confined to the facts of the case, ie when a wife is working and even earns more and has more assets than the husband, the seeking of maintenance should not even be entertained; however, if a broader interpretation is taken, the sentiments expressed are unnecessarily broad and do no favours to women who work and are also the primary caregivers in the family (on this, many cases have accepted that mothers have naturally stronger connections to children when matters of custody arise) and/or women who may be facing wider environmental issues such as gender-discrimination as regards pay and promotion prospects at work. 

    Indeed, laws are usually designed to protect the most vulnerable in society and the rules on maintenance in the Women’s Charter are no exception. As raised and noted repeatedly in Parliament over the years – and even as recently as in the 2011 parliamentary debates – the parties who require maintenance the most are almost always single mothers who struggle to keep a job and look after their children (and maybe even other family members) at the same time, a problem no doubt compounded by ever-escalating costs of living in Singapore. Such individuals number in the thousands every year, with many former husbands often falling into arrears for maintenance payments (this prompted Parliament to introduce new enforcement measures in the last few years). ADB v ADC may thus have made the wholly unintended but unfortunate insinuation that women, particularly as regards the aforementioned group of women, who seek maintenance are somehow weaker and less independent than those who do not, when the Women’s Charter expressly gives them the (albeit asymmetrical) prerogative to do so and previous parliamentary debates explain why this is so. In this light, the judge’s claim that the original purpose of maintenance of protecting women has since been eroded – thus impliedly recommending that the very concept of maintenance should be abolished sooner rather than later – is ironic, especially since divorce figures have been on the rise in absolute and relative terms, and consequently, the number of women who may need recourse to maintenance are actually increasing and not decreasing. Before departing, there is, of course, merit to the claim that token maintenance should not be granted as some kind of symbolic gesture. However, as mentioned, the existing legislation in the form of s 114 is already clear on whether such orders are compatible with the rules and purposes of the maintenance provisions, and this is without first mentioning that it is not clear if the wife in this case had even insisted on token maintenance.

    * This blog entry may be cited as: Chen Siyuan, "Maintenance under the Women’s Charter ADB v ADC [2014] SGHC 76" (3 July 2015) 

    ** A PDF version of this entry may be downloaded here

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