Variation of Maintenance Orders in Singapore

A Maintenance Order is an order that the Family Justice Courts can make to direct any party to financially provide for his/her spouse, ex-spouse or children. Contrary to popular opinion, Maintenance Orders are not a “life sentence” and they are not binding for life. Due to a change of circumstances (e.g. you require a higher amount of maintenance or you can no longer afford to fulfil those Maintenance Orders due to loss of employment or illness), you may apply to the Family Justice Courts to rescind or vary those orders.

What is maintenance and who can apply for maintenance?

Maintenance is a form of financial support. Under the Women’s Charter, maintenance can be applied for by any of the persons listed below:

  1. Married women, whose husbands fail, neglect or refuse to reasonably maintain them(?) during a marriage;
  2. Incapacitated husbands (i.e. husbands that are unable to maintain themselves due to physical or mental disability or illness), whose wives fail, neglect or refuse to reasonably maintain them(?) during a marriage;
  • A child below the age of 21 years old, whose parents fail, neglect or refuse to provide reasonable maintenance;
  1. A child above the age of 21 years old but is currently a student or full-time National Serviceman, whose parents fail, neglect or refuse to provide reasonable maintenance; and
  2. Wives, incapacitated husbands, or children of a marriage currently in the process of divorce.

Maintenance Orders can be ordered at different times: during the marriage, during divorce proceedings, or after divorce has been granted. However, Maintenance Orders may only be varied or rescinded in certain circumstances on which we will elaborate below.

What are the types of Maintenance Orders that the Family Justice Courts can make?

  1. For Maintenance of Wife or Incapacitated Husband

Generally, for spousal maintenance, the Family Justice Courts will either grant monthly maintenance (i.e. where a fixed sum of maintenance is paid monthly until the wife re-marries) or lump sum maintenance (i.e. where a fixed sum of $X may be ordered to be paid in instalments over a period of time or all at once).

If there are reasons for keeping spousal maintenance alive, the Family Justice Courts will order nominal maintenance (e.g. S$1.00 maintenance). An order for nominal maintenance is ordered to preserve the right of the ex-spouse to apply for an upward variation of the nominal maintenance in the event of a material change in future.

  1. For Maintenance of Children

The Family Justice Courts may order monthly maintenance to maintain the children of the dissolved marriage (i.e. where a fixed sum of maintenance is paid monthly until the child reaches 21 years old and/or up to their first tertiary education). This maintenance is usually paid to the parent with care and control of the children.

Read more on our article relating to Wife, Child and Husband maintenance, Family law, divorce law in Singapore here.

Under what circumstances can a Maintenance Order be varied?

1. Where there is a material change in circumstances

Based on recent cases, this is the most common reason for an application to vary Maintenance Orders.

The Family Justice Courts have found the following scenarios to be a “material change in circumstances”:

i. Loss of employment

A loss of employment is a good indicator that there has been a “material change in the circumstances”. In the case of Wong Lai Kum v Lim Khee Tee [2012] SGHC 151, the husband had applied to rescind the order of his ex-wife’s maintenance based on ex-husband’s loss of employment. One of the factors which the Court took into consideration was the fact that it would be difficult for the ex-husband to be re-employed due to his old age at 78 years old, and ordered the recission of the Maintenance Order (i.e. cancellation of the Maintenance Order) as he satisfied the Court that there was a material change in the circumstance, i.e. the loss of his income.

Conversely, a gain of employment may also amount to a “material change in circumstances”. In the case of MarychristineKnittel-Hanks (mw) v Kenneth G Hanks [1992] SGHC 332, the Court ordered an upward variation of the children’s maintenance after the ex-husband found gainful employment. When the original Maintenance Order was ordered, the ex-husband had been unemployed, hence the Court ordered the ex-husband to pay a lesser maintenance amount for the children.

ii. Bankruptcy and Failure of Business

Bankruptcy or failure of business can be considered a “material change in circumstances” as these are major events that impact a person’s financial status significantly. Usually, an ex-spouse who has declared bankruptcy will apply for a variation of the Maintenance Order as he/she may no longer be capable to upkeep the maintenance anymore.

iii. Decrease in salary

In order for one to convince the Court that the maintenance sum as previously ordered should be varied, the decrease in salary must be of a significant degree. The applicant should also provide evidence to the Court that he/she has suffered some form of financial hardship or financial difficulty as a result of this said decrease in salary.

If the decrease in salary is suffered by the paying party, he/she may apply for a reduction in maintenance. Conversely, if the decrease in salary is suffered by the receiving party, he/she may apply for an upwards increase in maintenance to sustain the expenses.

iv. Inheritance

If an ex-spouse receives a large inheritance, the paying party may apply to rescind or lower the amount of spousal maintenance payable. However, this is subject to the Court’s examination of the circumstances. The question often asked is whether the inheritance is “large enough” to justify a full recission of a Maintenance Order.

v. Remarriage

When an ex-wife remarries, the ex-husband will no longer be required to pay for spousal maintenance as her new husband is supposed to be maintaining her expenses.

When an ex-husband remarries, he may try to apply for a downward variation of the Maintenance Order citing the new financial obligations which he has taken on with his new family after remarrying. However, such applications are closely examined on a case-by-case basis.

The Court usually takes a common-sense approach when determining whether a remarriage qualifies as a “material change of circumstances”. In this regard, the Court will find a balance between 2 different considerations: (i) that the Maintenance Order should not serve as a “life sentence” to bog down the ex-husband from establishing a new family, and (ii) that in entering into a new marriage, the ex-husband’s responsibility to maintain his ex-wife/children does not change.

2. Mistake or Misrepresentation

In the case of XZ v YA [2009] SGHC 51, the ex-wife had misrepresented to the ex-husband that she was going to quit her job to take care of their children. Relying on the ex-wife’s representation, the ex-husband then agreed to pay a monthly maintenance of S$4500 for the ex-wife and children. Eventually, the ex-husband found out that the ex-wife did not quit her job. The ex-husband took up a variation of Maintenance Order in Court and succeeded in reducing the amount of maintenance payable by S$1000.

 

What is the procedure to vary a Maintenance Order?

A variation application can be made by way of summons with a supporting affidavit to the Family Justice Courts.

The summons should state what orders you seek from the Court, whereas the supporting affidavit should consist of the reasons behind the application and the supporting evidence (e.g. termination letter, list of expenses or payslips, etc.) to allow the Court to assess the merit of your application.

If you are unsure about how to make such an application, feel free to speak to our experienced Family Lawyers in Singapore today.