Spousal and Child Maintenance

Spousal and Child Maintenance

All parents in Singapore have a duty by law to maintain their children until they are 21 years old. Sometimes, that legal duty goes beyond a child’s 21st birthday. The legal power to compel them to do this comes from the Women’s Charter, which covers both child and spousal maintenance during marriage and also in the case of a divorce.

Section 68 of that Charter contains the duty for parents to provide reasonable financial support to their children, including illegitimate children. The duty applies regardless of which parent has custody of the children, or even if they are with a third party.

Section 69 of the Charter contains instructions regarding the payment of maintenance for a wife or an incapacitated husband. There is no automatic duty to pay spousal maintenance; instead the court will take into account several factors and decide if such an order is relevant. To make a maintenance order, the court must be satisfied that the spouse or parent has refused or neglected to pay reasonable maintenance.

However, the legal duty to maintain children and spouse goes beyond marriage. In this article we’ll look at the maintenance orders that can arise during divorce proceedings. We’ll explore when the court will make such an order, and on what basis they will calculate the amount.

Spousal maintenance

A court has the power to order maintenance to be paid as part of matrimonial proceedings under section 113 of the Women’s Charter. It can compel a husband to make maintenance payments to his wife/former wife, or compel a wife to make payments to her incapacitated husband/former husband.

Calculating spousal maintenance

Section 114 of the Charter contains some of the factors the court must take into account when deciding on the amount of any maintenance payment. The list isn’t exhaustive, however, but includes:

  • The current and future financial needs, responsibilities and obligations of each party,
  • The current and future income, earning capacity and finances of each party to the marriage,
  • How long the marriage lasted,
  • The standard of living the family had prior to the divorce,
  • How old each party is,
  • The mental and physical abilities of each party,
  • The contributions each party made to the welfare of the family and the marriage,
  • The value of any benefit lost to the party following a divorce, like a pension for instance.

Will a maintenance order always be granted by the court?

This depends on the circumstances of each case. The court will aim to put the parties back into the financial position they were in before the marriage broke down, and as if they had both fulfilled their financial obligations towards each other. The principle is financial preservation, i.e. that a wife be kept at a standard that is similar to that she enjoyed whilst married.

However, a court will only make such an order if it’s practicable and equitable to do so. They will always aim for fairness in any maintenance order.

The court made clear in the case of VPU v VPT [2021] SGHCF 11 that financial preservation does not mean that both parties must have matching financial situations after a divorce. In this case, the court did not make a maintenance order, instead ruling that, “the reality of divorce is that both parties will have less money than they had during the marriage”.

If a wife is a high-earner or gets valuable property as a result of the marriage, the court may decide it is not fair to order maintenance to be paid.

Nominal maintenance orders

Remember that the court cannot alter or increase maintenance under section 112(4) if there isn’t a maintenance order to begin with. The wife should ensure she gets at least nominal maintenance when divorcing so that she has the option of approaching the court in future if her situation changes. Even a nominal $1 maintenance allows this option to be used in the future.

However, the court won’t automatically order nominal maintenance. The case of ATE v ATD [2016] SGCA 2 illustrated that it is not the husband’s role to become a sort of “general insurer”. Instead, the wife must present valid reasons in support of her application for nominal maintenance.

Maintenance for incapacitated husbands

A husband who becomes incapacitated can claim maintenance from their wife; this has been the case since 2016.

In this context, ‘incapacitated’ means the husband was or became incapacitated before or during the marriage. This could mean physically, or mentally or due to illness, so that he cannot earn a living. He cannot support himself financially, in other words.

The court will consider the same factors as they would in a wife’s maintenance order, when deciding whether to grant maintenance to the husband, and how much to grant.

Must maintenance be paid for your whole life?

No, it is not a lifelong obligation – you can ask the court to vary or rescind the order if you have just cause, or you can prove your situation has changed. The test will be whether an adjustment can be made without causing undue hardship to the recipient.

This may happen in the following circumstances:

  • The financial situation of the person paying maintenance gets significantly worse
  • The spouse receiving maintenance remarries
  • The receiving spouse’s income improves substantially so as to cover the cost of their everyday life

Child maintenance

Even after divorce or remarriage, a parent’s duty to maintain their children remains. Where a parent is proved to have neglected this duty and the child cannot provide for themselves, the court has power to order the parent to pay monthly maintenance amounts to that child. Alternatively, the court may order a one-off lump sum of maintenance to be paid. Occasionally, adult children older than 21 years old might be entitled to receive maintenance.

Factors the court considering in assessing child maintenance amount

The court usually takes into account the child’s living costs such as accommodation, food, clothing, medical bills, and education, but there is no fixed formula that they use.

Maintenance will either be order to be paid monthly or as a lump sum.

The factors the court considers are contained in section 69(4) of the Charter:

  • How old the parents are and whether/how that affects their ability to earn
  • The child’s financial needs
  • The child and the parents’ earning capacity
  • Any mental/physical disabilities the child may have
  • Welfare contributions the parents may make
  • The standard of living the child has
  • The manner in which the child is expected to be trained or educated
  • The parents’ conduct, where relevant.

Can the court order maintenance to be paid to children older than 21 years?

Child maintenance usually ceases when a child reaches 21. Sometimes though the court will order it to continue.

The Women’s Charter provides for this in section 69(5), if the child:

  • Is mentally or physically disabled,
  • Is still undergoing training for a profession, trade or vocation,
  • Is doing national service full-time,
  • Has some other circumstance which justifies an order of maintenance.

Are parents allowed to agree that only one of them should pay?

Although parents can make agreements between themselves, they can’t escape the duty they have to maintain their children. Any agreements will be examined by the court, who will always have the welfare of the child as their main priority. They will reject any agreement biased towards one parent, or that doesn’t serve the child’s needs adequately.

What are the consequences of disobeying a child or spousal maintenance order?

Even if one of the parties finds their circumstances have changed, they can’t simply stop paying. Under section 71, the court has the power to:

  • Fine someone for each breach of the order,
  • Imprison someone for up to a month for each month of non-payment,
  • Order someone to have financial counselling,
  • Issue a garnishee order,
  • Sentence the non-payer to up to 40 hours of community service,
  • Make the non-payer give security for any future defaults in payment.

The punishment does not mean the duty to pay maintenance has been cancelled – after serving their punishment they must still then pay the maintenance.

Applying for a maintenance order

Usually, maintenance orders are resolved during the divorce proceeding.

If someone applies for a maintenance order without a divorce, they can do so via iFAMS or by attending the registry of the Family Justice Court. Once the court is happy that the application is in order, they will issue a summons to the other party.

If the other party attends and agrees to the order for maintenance, then the order will be granted. But if the party does not appear, then they risk having an arrest warrant issued for them.

Where parties are unable to reach agreement regarding maintenance, a trial may then be held.

Anyone going through a divorce or wanting to apply for spousal or child maintenance should make sure they understand their rights in Singapore. Lawyers specialising in this area will help you follow the right procedures and secure the best outcome in your circumstances.

Should you require legal representation, kindly contact us for a free first consultation with one of our lawyers.
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