Case Update: ATE v ATD and another appeal [2016] SGCA 2 – Court of Appeal refused wife nominal maintenance

Summary: Singapore Court of Appeal held that an ex-wife was not entitled to nominal maintenance as she was more than capable of taking care of herself.

The purpose of nominal maintenance is to preserve the right of the wife to apply for substantive maintenance should the need arise in the future. This is important  because once an application for maintenance (other than an order for interim maintenance (see the Singapore High Court decision of Ryan Neil John v Berger Rosaline [2000] 3 SLR(R) 647 at [64])) has been made and rejected, that is the end of the matter inasmuch as the wife concerned is precluded from applying for maintenance should such a need to do so arise in the future (Tan Bee Giok v Loh Kum Yong [1996] 3 SLR(R) 605 (“Tan Bee Giok”) at [15]; see also the recent decision of this court in APE v APF [2015] 5 SLR 783 at [2]). In light of this principle, a court must carefully consider all the circumstances of the case concerned as a rejection of the wife’s application for maintenance would have very significant consequences indeed. However, there needs to be a balance inasmuch as the consequences ought not to result in courts being “timorous souls” – always preserving the wife’s right to maintenance by ordering nominal maintenance. What the court does need to do is to closely examine the facts and circumstances of the case in order to arrive at a principled decision as to whether or not nominal maintenance ought or ought not to be ordered. This is a factual inquiry: [27].

The courts cannot – and ought not to – order nominal maintenance automatically or as a matter of course. As already alluded to above, the court must examine closely all the facts and circumstances of the case before deciding whether or not to award nominal maintenance in order to preserve the wife’s right to apply for maintenance in the future: [28].

It will not suffice for the wife to argue without more that she is entitled to an order of nominal maintenance simply because her situation might change in the future. Indeed, it has, in general, never been the duty of the courts to compensate parties for the vicissitudes of life: [29].

More importantly, accepting such an argument would not only result in the blanket order of nominal maintenance in virtually every case, it would also result (in substance and effect) in making the husband a general insurer of sorts: [29].

The court ought always to bear in mind the underlying rationale and purpose for the award of maintenance generally to former wives. As the CA stated in Foo Ah Yan v Chiam Heng Chow [2012] 2 SLR 506 (“Foo Ah Yan”), the overarching principle embodied in s 114(2) is that of financial preservation, which requires the wife to be maintained at a standard that is, to a reasonable extent, commensurate with the standard of living she had enjoyed during the marriage – but we also cautioned that s 114(2) had to be applied in a “commonsense holistic manner that takes into account the new realities that flow from the breakdown of marriage”: [31].

On the facts, the ex-wife was as professionally successful as the husband. There was no evidence that her earning capacity had been adversely affected through the course of marriage. The ex-wife was more than capable of taking care of herself and had in fact been doing so. Further, the husband’s take-home pay is already being directed towards their child’s maintenance so that relieves the ex-wife of her financial burden in that regard. Therefore, the Court saw no reason to impose on the husband a continuing (albeit contingent) obligation to provide the ex-wife with maintenance at some indeterminate time in the future: [44]-[45].

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