Factors taken into consideration for maintenance of former wife
In Singapore, according to Section 114(1) of the Women’s Charter, the court will take into account all the circumstances of the case in assessing the maintenance due to a former wife from her husband.
Needs of the former wife
The starting point in the calculation of maintenance is the financial needs, obligations and responsibilities of the former wife as these have been affected by the standard of living enjoyed by the family before the breakdown of marriage. However, the former wife must be reasonable in estimating her needs after the divorce. The court also expects the former wife to strive for self-sufficiency whether or not she had worked during marriage. Where appropriate, the court may even draw adverse inference of the former wife being able to secure employment and estimate how much this might be. Furthermore, where the former wife has been awarded a proportion of the matrimonial assets, this may generally reduce her financial needs in the assessment of her claim for maintenance.
The court will take into account the husband’s capability of meeting the needs of the former wife. Thus the court usually considers the income, earning capacity, property and other financial resources which each of the parties has or likely to have in the foreseeable future. Where the husband is incapable in meeting the needs of the former wife, the court will order a smaller sum.
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Likelihood of remarriage
The effect of this is that the court will most likely not choose to order maintenance in a lump sum as it would be unfair to the husband to have paid maintenance covering the period his former wife had remarried.
Agreement in full and final settlement must be approved by court
According to Section 116, it states that if the agreement purports to be in settlement of all future claims to maintenance, it will not be effective until it is approved by the court with or without conditions attached. But if it is approved, the agreement can provide a good defence to any claim for maintenance.
Courts may vary terms of agreement
According to Section 119, courts may vary the terms of agreement if there are any marital change in the circumstances.
Types of Maintenance Orders
In Singapore, according to Section 113 of the Women’s Charter, the court has the power to order the husband to continue to maintain his former wife. The Women’s charter bestows discretion on the court to make an order of maintenance that is the most appropriate in the circumstances.
1) In terms of when it is made relative to the conclusion of the final matrimonial proceedings, interim or final;
2) In terms of the size of the order, nominal or substantial
3) In terms of how money is to be paid, by a lump sum or periodic payments
According to Section 133(a), an interim order of maintenance may be allowed ‘during the course of any matrimonial proceedings’. As this is an interim order, the courts are not expected to take as much care in calculating the amount of maintenance to be ordered for the interim period.
2) Nominal or substantial order
Usually when the former wife makes out her case for maintenance from her husband, there is a substantial order in her favour. However, if the former wife fails to make out her case, the court may either dismiss her application or make a nominal order for the former wife. The nominal order preserves her entitlement to maintenance as it can be varied at any point of time to become more substantial.
3a) Lump sum order
When the husband has the financial means, for example, valuable assets, the court may get the most out of the sum calculated as the former wife’s monthly needs over the number of years which the court determines is fair, to require the husband to continue to maintain her, so that her maintenance is payable in lump sum. This is provided for in Section 115(1) of the Women’s Charter.
How is lump sum assessed?
The judge will first assess the former wife’s monthly needs. The judge will then evaluate the number of months or years that her monthly needs ought to be multiplied by. The monthly needs is known as the ‘multiplicand’ and the number of months is known as the ‘multiplier’.
3b) Periodic payment order
An alternative to lump sum order of maintenance, is the periodic payment of maintenance. Periodic payment is of continuing nature. This attracts several other provisions of the law. Firstly, according to Section 115(2), the court has the discretion to make further order to secure the payment so that the former wife is assured of the payment.
This is beneficial to the former wife if there are difficulties enforcing the order. Secondly, there are rules to determine the duration of the order for periodic payments in that an event in future may put an end to the order. According to Section 117, the lifespan of an order changes depending on whether the order is secured or unsecured. When the order is secured, where the former wife is assured payment, the order for periodic payment lasts until the former wife remarries or dies.
However, when the order is not secured, where there are no funds to assure payment, the order ends on the death of the husband. Lastly, according to Section 118, the order for periodic payments can be varied at any time during its subsistence.
The provision provides 3 reasons for varying or rescinding the order:
a) Order was made based on misinterpretation of facts
b) Order was made based on mistake of facts
c) Marital change