Jessica Chow

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Legal articles by Jessica Chow

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    string(3275) "Maintenance is a way for a wife to have her financial needs met when a divorce happens. A court is often required to answer the crucial questions of how much maintenance a wife should get, and for how long she should receive it.

The court will need to consider whether an ex-wife in a divorce has an automatic entitlement to payments of maintenance. If she has given up her career in order to bring up her children, she is likely to need maintenance for the remainder of her life if she cannot resume that career.

However, maintenance is not always life-long, as its purpose is really to help the spouse as long as it takes for her to regain her self-sufficiency.

In recent case law (ATE v ATD), the courts have stated broad guidelines as to when nominal wife maintenance should be paid, and when it should not. The three main principles are:

 	
There should be no automatic award of nominal maintenance as a matter of course;
 	
Nominal wife maintenance will not be awarded simply because a wife claims her situation will change in the future;
 	
When deciding whether to award nominal maintenance, the court will consider the underlying rationale and purpose of the payments to a former wife.

The Women’s Charter, in section 114(2) states the overarching reason for maintenance as being financial preservation – the wife must be maintained at a standard of living that is equal to that she enjoyed whilst married. However, this section of the charter must be applied in a “common-sense holistic manner, that takes into account the new realities that flow from the breakdown of marriage”.

Moreover, there are different reasons behind the duty of a husband to maintain his wife during a marriage (section 69(1)) of the Charter, and the obligation to maintain a former wife (section 113). In Elements of Family Law in Singapore [(LexisNexis, 2007)] at p 476, the following guidance is given by Prof Leong Wai Kum:

“In the former situation, the objective is to provide modest maintenance, namely, to help her overcome her immediate financial need, which may well be the same objective when ordering maintenance for a dependent child. In the latter situation, maintenance ordered for a former wife, however, serves the far more ambitious objective of giving her a fair share of the surplus wealth that the spouses had acquired during the subsistence of the marriage.”

Courts often take into account each party’s portion of the marital assets when they calculate the right quantum of maintenance, since the power to order wife maintenance is in addition to the power to order division of matrimonial assets. See the case law of BG v BF [[2007] 3 SLR(R) 233] at [75]−[76], Rosaline Singh [[2004] 1 SLR(R) 457] at [13]; Tan Bee Giok at [27] and AQS [[2012] SGCA 3] at [51].

When maintenance is awarded to a former wife, it is done with the consideration that she must try to regain self-sufficiency, and that she should not expect to depend for her whole life on the maintenance paid by the former husband (see the Singapore High Court decision of Quek Lee Tiam v Ho Kim Swee (alias Ho Kian Guan) [1995] SGHC 23)."
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In a divorce, when does an asset become a matrimonial asset?
People going through a divorce often wonder, “what happens to an asset I acquired before I got married? Is that now a matrimonial asset that my spouse can make a claim for?”

To answer this, we need to look at the Women’s Charter, which defines what a ‘matrimonial asset’ is, in section 112(10):

 	
“A matrimonial asset is any asset acquired before marriage by one or both parties to that marriage, which is:
 	
Ordinarily used or enjoyed by both parties, or one or more of their children, while the parties live together for the purposes of household, shelter, transportation, recreation, aesthetic or social purposes; or
 	
Substantially improved in the course of the marriage by the other party, or both parties;
 	
Or another asset of any nature which one or both parties acquired during the marriage.
 	
But doesn’t include any asset (which is not a matrimonial home) that one party acquired at any time, by way of gift or inheritance, that has not been substantially improved through the marriage by the other or both parties.”

So under the Women’s Charter, an asset one party acquired prior to the marriage does indeed become a matrimonial asset as long it was used or enjoyed by one or both spouses or their children, while they lived together, OR as long as it was substantially improved during the marriage by either or both of them.

In caselaw from some years ago, the courts have ruled that if parties no longer live in a property, it ceases to be a matrimonial asset (see cases such as BGT v BGU [2013] SGHC 50).

The Court of Appeal was recently asked to consider this scenario again in the case of TND v TNC [2017] SGCA 34. Here, the wife had claimed that the law could be interpreted to mean that once an asset has become a matrimonial asset, it remains as such, according to the meaning of section 112(10)(a)(i) of the Women’s Charter. The husband argued that, as the family had only lived there for 15 months, the property was not an asset of the marriage as they had only lived there for a total of 15 months.

The court had to evaluate whether the asset, acquired before marriage, and “ordinarily used or enjoyed” during the marriage for the purposes listed in section 112(10) even though only for a short time, was still a matrimonial asset when the marriage ends, some years later. In that case, the court took the wife’s view, that the property was indeed a matrimonial asset, and was thus able to be claimed by the wife.
What does this case mean for you?

 	
Properties which the parties treated as a marital home for a long time, but that they don’t currently live in at the time of divorce, are covered by section 112(10)(a)(i), as are the parties’ last place of residence before divorce, which they used as a marital home.
 	
Say, for instance, that a married couple live for 25 years in a property they bought before marrying, which they use as their marital home. Their adult children leave home, and the married couple move to a small apartment, also acquired pre-marriage. A couple of years later they divorce. In this case, both the last place of residence (the apartment) and the first property they lived in are treated as marital property by the Women’s Charter. Just because the parties no longer live there, it doesn’t mean that the house they were in for 25 years as the cradle of their family life should not be treated as a matrimonial asset.
 	
The court will make their decision based on the facts and circumstances of the case that are presented to them.
 	
Though the courts have said that an asset can remain a matrimonial asset even when the parties don’t live in it, that in itself doesn’t always mean that such a property has to be divided exactly as other assets acquired whilst married are. Courts having to decide about matrimonial assets under section 112(1) have the discretion to divide them according to however they see it most equitable to do so. They’ll bear in mind the nature of the asset, the length of time the parties ordinarily used or enjoyed it, and it was paid for (in other words, whether it was partially paid for during the course of the marriage).

In the case of TND v TNC [2017] SGCA 34, although the court said the property was a matrimonial home because the family had lived there, as it was only used for just over a year, the husband was entitled to a higher share, as he had made higher direct contributions.
Conclusion – at what point should matrimonial assets be valued?
Parties divorcing will want to know what is the operative date to be used to determine the asset pool and value those assets? This is a key question for three main reasons:

 	
The spouses may have already separated, prior to the divorce proceedings, and no longer intend to jointly accumulate matrimonial assets.
 	
There are 2 stages to divorcing in Singapore: to end the marriage, parties first must obtain an Interim Judgement, and then the court will hear and rule on ancillary issues such as how to divide assets.
 	
In general, it takes about a year to finish a divorce in Singapore. It usually ends when the court concludes the ancillary matter hearing.

Of course, while the divorce process progresses, the asset’s value might fluctuate. Another possibility is that assets may increase or decrease in value due to the stock market, or bonuses awarded, or the crystallisation of share options.

This is why the most important question for many people is: what is the cut-off date at which the assets in the asset pool should be determined and valued?

There are four possible answers to when this date should be:

 	
The date of separation
 	
The date they file for divorce
 	
The date the obtain Interim Judgement
 	
The date the ancillary matters hearing is held.

In the case referred to above of TND v TNC, the Court of Appeal stated that “the ancillary matter hearing date is the one that must be used when valuing the matrimonial assets”.

Therefore, unless parties can persuade the court that a different date should be used, then all marital assets will be valued at the very end of the divorce process – when the ancillary matters hearing occurs. This is important for family litigants to bear in mind."
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How does the Family Court make parental custody decisions?
Following a divorce, if children are involved then there will have to be decisions made about who gets custody, care and control of them. It is always preferable that the parents make these decisions and agree between them amicably, as part of the divorce deal. This is because nobody knows the children better than their own parents.

Sadly, sometimes these joint decisions are not possible, and a judge has to intervene to make the decisions on behalf of the parents. This isn’t ideal because clearly the judge will not know the children in any great detail, yet they are required to make decisions of the most profound importance which will affect the children for years to come.

Judges will usually base their decision on what they believe to be in the child’s best interest, and not on what the parents want. You may find it surprising that no weight is given to the parents’ wishes, but the law in Singapore requires judges to think only of what is best for the child’s interests, not the parents’ wishes in deciding matters of care and control.
Factors used to determine the child’s best interests:
To work out what is best for the child, the judge may consider the following:

 	
The emotional ties and love which exists between each parent and the child
 	
The wishes of the child (providing they are mature enough to express them)
 	
The nature of each parent’s relationship with their child
 	
The ability a parent has to spend time with their child
 	
During the marriage, which parent was the primary caregiver for the child?
 	
Where the child lives – if the child is settled, residing only in one place, then the judge may be reluctant to change the status quo
 	
Siblings should ideally be kept together rather than separated
 	
Whether the relationship between a child and one parent is being obstructed by the other parent

Appointing a Child Representative
Sometimes the court may appoint a third party individual to act in the child’s best interests. This person is known as a Child Representative, and can act in any proceeding or action which involves the custody or welfare of a child; they are effectively the voice of the child in court.

The Child Representative will make decisions based on what they think is in the child’s best interests, based on their observations of the child. They do not take into account what the parents may want for themselves.
Custody Evaluation Report (CER)
Sometimes, in situations when there is a dispute over child custody matters, the courts will ask the Ministry of Social and Family Development to investigate and produce a report to be used to decide on custody matters. This report is known as a Custody Evaluation Report.

The report usually contains some of the following information:

 	
The wishes of the child
 	
The interactions the child has with its parents
 	
Investigations into any allegations of a parent mistreating the child

In this way, the report becomes represents an objective insight into matters which involve the child, and acts as the voice of the child in court.

We would advise anyone who is going through a divorce, and who has children, to contact us and seek professional advice from our leading divorce lawyers."
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