Maintenance and Variation of Maintenance: Factors Considered by the Court

Author: Patrick Tan and Melissa Wong

This article will look at the factors considered by the Court when assessing how much maintenance to award.

 

The right to Maintenance

Maintenance is the provision of financial support for living expenses.[1] It is a right which was traditionally only for women and children, as it has its roots in conventional views that women and children are dependent on the husband’s or father’s financial provision in the marriage. However, due to recent changes in the law in 2016, this right has also been extended to incapacitated husbands as well.

Maintenance can be applied for via the courts (1) during the subsistence of a marriage, or (2) during matrimonial proceedings or (3) after divorce, nullity or judicial separation. For the ease of reference, items (2) and (3) shall be referred to collectively as “during or after matrimonial proceedings”.

A wife’s and child’s right to maintenance during the subsistence of a marriage is enshrined in sections 68 and 69 of the Women’s Charter. The former wife’s right to maintenance (or alimony) during or after matrimonial proceedings is enshrined in section 113 of the Women’s Charter. A child’s right to maintenance during or after matrimonial proceedings is enshrined in section 127 of the Women’s Charter.

 

Factors considered when assessing maintenance

Section 69(4) provides the main factors that would assist the courts in assessing the amount of maintenance during the subsistence of a marriage, whereas section 114 Women’s Charter provides the factors to be considered when maintenance is assessed during or after matrimonial proceedings have taken place.

These factors in these provisions overlap substantially, as can be seen in the table below comparing the factors side by side. This table includes some examples of some items that would fall under each factor for the court’s consideration.

 

The above factors are not exhaustive, although this list has evolved over the years to include factors in the common law (for example item 8 for factors considered during marriage) that have been shown to be relevant. The court is not closed off to considering other factors if they can be proven to be relevant to the assessing maintenance awarded.

Further, other factors that the court would consider also include the level of acrimony between the parties, the urgency of the parties’ financial needs and if there is any difficulty in enforcing the orders. These factors would affect the type of maintenance order that is being made. For example, as the court can choose between awarding a lump sum or periodic payments, the court would likely make a lump sum order if the relationship between the parties is extremely acrimonious and if the court is of the opinion that it would do parties some good if they had a clean break from each other. The urgency of the requirement of maintenance could also result in whether an interim order (which would be temporary) or a final maintenance order be made.

Factors considered when varying a maintenance order

Even when a “final” maintenance order is made, it does not mean it cannot be amended if any changes were to take place. Maintenance orders can be varied and changed if the court is convinced that there is (a) a material change in circumstances or (b) misrepresentation or (c) mistake of fact.[2] As for the variation of child maintenance, the guiding principle of the welfare of the child[3] is also grounds, in addition to the above, that can be used to vary a maintenance order for a child.

The most commonly used factor to vary maintenance orders is the “material change in circumstances” factor. Sufficient evidence must be presented to persuade the court that there has been a change that is material enough for the variation to be allowed. Examples of such factors constituting a material change would be a party losing a job or source of income, or the onset of an illness which could require significant financial expenditure.

 

Conclusion

It appears that if maintenance is applied for during the subsistence of a marriage, the factors attributing “fault” to either party could then affect the amount of maintenance or if maintenance is even offered. A more objective stance is taken for assessing maintenance after the breakdown of a marriage. In conclusion, the factors considered when assessing maintenance will continue to evolve, as each case is evaluated on its own facts.

 

[1] httpsssss://en.oxforddictionaries.com/definition/maintenance
[2] Section 72 and 118 Women’s Charter
[3] Section 73 Women’s Charter

 

Written by: Patrick Tan and Melissa Wong