How to Vary a Maintenance Order After a Singapore Divorce
You or your ex-spouse may have been ordered by the judge to pay maintenance at the ancillary matters proceedings during a divorce. Maintenance may be in the form of spousal maintenance, where one spouse has the legal obligation to provide financial support to the other, or child maintenance, where the parent has to financially support the child.
It is possible to vary the amount of maintenance, for example, if your or your child’s current situation requires a larger maintenance from your ex-spouse to support your needs. If you have been ordered to pay maintenance but are now unable to pay the amount ordered, you may also wish to vary the maintenance order.
This article will discuss the variation of the maintenance ordered as part of divorce proceedings, including:
- Who can apply to vary the maintenance order?
- When will the court likely grant a variation of the maintenance order?
- How can you apply to vary the maintenance order?
Who Can Apply to Vary the Maintenance Order?
Both you and your ex-spouse may apply to the court at any time to vary the maintenance sum, regardless of whether you are the paying or receiving party.
You may also apply to vary the maintenance sum on behalf of your children below 21 years old.
Children above 21 years old, on the other hand, are no longer entitled to maintenance unless they meet one of the conditions set out below. Under these circumstances, the child may still apply to the court to vary the maintenance sum:
- He/she has a physical or mental disability;
- He/she is or will be serving full-time national service;
- He/she is still schooling or undergoing training for a trade, profession or vocation; or
- There are special circumstances such that the court is satisfied that the provision of maintenance is necessary
Note that an order to vary the maintenance order can be applied for only if there is an existing maintenance order. In other words, the court must have previously ordered your ex-spouse to give you and/or your child at least $1 monthly maintenance. If there was no order for maintenance, you and/or your child do not have the right to seek maintenance post-divorce.
When Will the Court Likely Grant a Variation of the Maintenance Order?
In relation to spousal maintenance, the court will likely grant a variation of the maintenance order if it is satisfied that:
- The order was made based on any misrepresentation or mistake of fact (such as where the provider’s income is in fact higher than what was represented); or
- There has been a material change in the circumstances. What constitutes a “material change” will be discussed in further detail later in this article.
When it comes to child maintenance, the court will likely grant a variation if:
- There is a change in circumstances (e.g. where there is a change in the needs of the child or the income of the provider of maintenance);
- There is some other good cause (meaning, where there is good reason to do so, such as where there is a change in the general cost of living); or
- It is reasonable and for the welfare of the child to do so.
Do note that the amount of maintenance can be varied by the court. This is so even if the amount was previously agreed upon by the parties or was granted by the court pursuant to a consent order, which is an order of court entered by agreement between the parties with the court’s approval.
In deciding whether to vary the maintenance order, the court will adopt the same principles as when it is deciding a new maintenance application. In other words, the court has a wide discretion to consider all the circumstances of the case and the reasonableness of the claims. The only difference is that the court will look at your current circumstances at the point where you are making the request to vary the maintenance order, and compare them with what they had been when the original maintenance order was made.
What may be considered a material change in circumstances
A material change in circumstances generally refers to a material change in the financial ability of the spouse providing maintenance, or a material change in the needs of the recipient spouse and/or children. Most applications will typically be made on this ground.
The courts have increased the maintenance amount in the following circumstances:
- When the provider of maintenance, who was previously unemployed, found employment
- When the recipient of maintenance lost their job and thus their ability to meet their own and their children’s expenses
- When the child’s educational expenses increased, such as when he/she started attending university
The courts have also decreased the maintenance amount where:
- The provider of maintenance lost their job
- The provider of maintenance’s business failed
- The provider of maintenance became bankrupt
- The recipient of maintenance’s cost of living decreased after relocating
- The recipient of maintenance inherited a sum of money
- The child graduated from university and found employment
The above examples are not exhaustive. Whether the court will consider something to be a material change in circumstances ultimately depends on the facts of each case.
For example, in the case of AYL v AYM, the husband sought to reduce the amount of maintenance he had to pay monthly pursuant to a consent order by arguing that there were two material changes in the circumstances.
First, a change in his financial circumstances due to the failure of his business venture. The court found that the husband was well aware of the risks of his business venture at the time the consent order was made. However, as the husband had not relied on the success of his business when he agreed to the consent order, the failure of his business was not a material change in circumstances.
Second, the parties had obtained an unexpected windfall from the sale of the matrimonial property. The court found that the higher sale proceeds received from the sale of the matrimonial property constituted a change in material circumstances. As the wife received a much higher sum than expected from the division of matrimonial assets and could better provide for herself and her children, this justified a reduction in the quantum of maintenance.
What may not be considered a material change in circumstances
Remarriage, by itself, cannot constitute a material change in circumstances that relieves a spouse from their obligations to their family from a previous marriage.
However, a spouse’s fresh commitments to their new family could be a factor affecting whether there has been a material change in circumstances. This is because their commitments may impact their ability to pay maintenance.
In determining if the spouse’s conduct in assuming new commitments is reasonable, the court will consider:
- The reasonableness of the commitments assumed, bearing in mind their obligations to their previous family;
- Whether the spouse and their new family have explored and exhausted all reasonable solutions for the spouse to perform their obligations to both families; and
- The financial circumstances and needs of their previous family.
In the case of George Sapooran Singh v Gordip d/o MD Garsingh, the husband applied to court to rescind the maintenance order as he was unable to continue working due to his cancer diagnosis and caregiving duties to his second wife. He argued that his loss in income constituted a material change in circumstances.
However, the court found that the husband was in remission and his true reason for not returning to work was to remain as his second wife’s caregiver. By doing so, the husband was found to be plainly subordinating and disregarding his obligation to the ex-wife. The court also found that the husband had undisclosed sources of cash inflow and was therefore able to make ends meet and meet his obligations to his ex-wife at the same time.
Therefore, the court concluded that the husband’s behaviour was unreasonable and could not constitute a material change in circumstances. Consequently, the husband’s application to rescind the maintenance order was denied.
Material change cannot be self-inflicted
Parties are not permitted to rely on a material change in circumstances that is self-inflicted. For instance, the provider of maintenance who intentionally reduces their income or financial health just to avoid paying maintenance and applies for a variation is likely to have their application rejected by the court. Similarly, the beneficiary of maintenance cannot be allowed to apply for an upward variation due to their own lavish spending habits.
In light of the above, it is therefore recommended that you seek legal advice to assess your circumstances and determine your chances of successfully obtaining a variation of your maintenance order.
How Can You Apply to Vary the Maintenance Order?
An application to vary maintenance granted as part of a divorce should be made by summons with a supporting affidavit. This should be filed in the original suit under which the original maintenance order was made. The supporting affidavit should indicate why you are seeking to vary the maintenance order. You should also include evidence to support your application.
For example, if you have lost your job and are seeking to reduce the quantum of maintenance, you may wish to include your letter of termination of employment and your previous payslips to demonstrate a material change in circumstances.
This application has to be made through the eLitigation system, which can only be accessed by a lawyer. It cannot be filed through the Family Justice Courts’ online Integrated Family Application Management System (iFAMS) system. You may consider engaging a divorce lawyer to assist you with the application.
If you choose not to engage a lawyer, you will have to visit one of the LawNet & CrimsonLogic Service Bureaus to submit the application as a litigant-in-person.
While there are various ways in which you can apply to vary a maintenance order, one of the most common options is to cite a material change in circumstances. As this article has outlined, material change in circumstances refers to changes in the financial ability of the spouse providing maintenance, or the needs of the recipient of maintenance which warrants the need to vary the maintenance order. However, not all situations will be considered by the courts to be a material change.
If you wish to vary the maintenance order after getting a divorce in Singapore, it is recommended that you engage a divorce lawyer. Your lawyer will be able to advise you on whether you can successfully apply for a variation, be it on the ground of a material change in circumstances or otherwise, and can assist you with filing the necessary court application.
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