Maintenance laws must be made gender neutral

The Women's Charter needs to be tweaked to ensure that men are protected too
By Radha Basu, The Straits Times, 8 May 2014

A 69-year-old man, Mr T, has been ordered to pay $70,000 in maintenance to his former wife despite the fact that he is retired, she earns more than him and he paid the mortgage on their marital home.

Singapore's highest court recently upheld the maintenance order even as it acknowledged that it seemed a "little generous" based on the "facts of this case".

However, happily for Mr T, rather than tamper with the maintenance, the Court of Appeal lowered his former wife's share of the property proceeds from 90 to 55 per cent after scrutinising the couple's finances and their respective contributions to the marriage.

It also struck down the lower court's order for the retiree to maintain his adult children.

According to court documents, the retired expatriate lives on around $2,800 a month, the bulk of it being pension payments from his home country. His last drawn pay when he worked was $5,000.

His Singaporean ex-wife is a decade younger than him and earns between $4,000 and $7,000 a month as a self-employed corporate trainer.

Bias against men?

THE former naval officer's predicament is not unique. As women earn more, Singapore's courts are seeing more cases of well-off ex-wives demanding large sums in maintenance from their former spouses. Some of these women earn more than the men.

Unlike divorce laws in countries like the United States, Australia, Canada and much of the European Union, the Women's Charter - which governs marriage and divorce matters in Singapore - does not allow men to claim maintenance from their wives.

In Britain, for instance, spousal maintenance is paid by the man or woman with the higher income to the one with the lower income. It is generally awarded when one party cannot support himself without payments from the other.

Here, women can be eligible for maintenance regardless of their financial status.

High Court judge Choo Han Teck sparked widespread debate here recently by asserting that maintenance was not the "unalloyed right" of a woman. He was rejecting a working woman's demand of $120,000 in maintenance from her ex-husband. She earned $215,600 annually as a regional manager in a multinational company - which was more than what he earned.

Justice Choo's statements have struck a chord with Mr T. After slugging it out with his ex-wife in Singapore's courts for nearly four years since he first filed for divorce in 2010, he says he understands the need of the law to protect women from deadbeat men who do not look after their children or leave ex-wives in penury after divorce. "But still, Singapore's maintenance laws are loaded against men," he told The Straits Times. "We should get a fair hearing too."

Ten family lawyers polled by The Straits Times aver that maintenance should be based on need, not gender, though some acknowledge that only men in certain situations - such as those who are house-husbands or cannot work - should be eligible.

Even women's groups such as Aware and the Singapore Council of Women's Organisation agree that maintenance should be paid to men in suitable cases.

Protecting women

WHEN the Women's Charter was first enacted in 1961, it was an empowering law designed to protect women, who were clearly the weaker sex. Among other things, it gave women the right to be sole owners of property, to be recognised for their contribution as a mother, wife and homemaker, and to be recognised as an equal partner in a marriage.

At the time, only around 20 per cent of women worked in Singapore. The female labour force participation rate here has since climbed to nearly 60 per cent, higher than what it is in developed countries such as the US, Britain and Germany. Some divorce lawyers say that between 30 and 50 per cent of women in divorce cases have earnings that are on a par with or more than the men.

Men at risk

THERE are several groups of men who are at risk of losing out under current laws. First, those, like Mr T, who are retired or earn less than their wives.

Rich men with homemaker wives demanding large maintenance sums form another group. In a case last week, a judge rejected a housewife's claim for $32,000 in monthly maintenance from her millionaire businessman husband, which the judge said was "unrealistically high". Instead, he awarded her $8,000 a month for 12 years.

Then, there are men who are obliged to maintain former wives who deliberately quit jobs or refuse to work despite being educated and employable.

One man told The Straits Times he has been ordered to pay maintenance to his wife, despite the fact that she earned only slightly less than him and walked out of the marriage after cheating on him with a far richer man. She quit her job shortly before the divorce.

There are also those who become house-husbands by mutual consent but cannot seek maintenance after divorce, even though they contribute heavily to bringing up the children. In one such case recently, the judge gave a house-husband 25 per cent of the sale proceeds of the flat, although his working wife paid for virtually all of it. While that could be taken in lieu of maintenance, the sum is less than what is often awarded to the stay-at-home wives of men who are sole breadwinners.

Finally, and perhaps most importantly, there is a small group of low-income men who cannot work because of disability or ill health and must depend on their breadwinner wives.

Family lawyer Aye Cheng Shone remembers a case a couple of years ago where a lorry driver husband lost his job after being seriously injured in a worksite accident. His wife, the main breadwinner, filed for divorce once the children grew up.

If the gender roles were reversed and the man had filed for divorce after being unwilling to support his incapacitated wife, he would no doubt have had to pay her a hefty sum in maintenance. She could also be entitled to at least half the proceeds of the matrimonial flat, even if he had been the one who paid for it in full.

But in this case, the man ended up losing his flat - as his wife paid for most of it. He also could not claim maintenance and ended up with virtually nothing from the long marriage.

Mrs Shone, who represented the woman in the case, cannot help but feel sorry for the man.

"I often wonder how this case would have been dealt with if the woman had been injured instead of the man," said the divorce lawyer with more than 18 years' experience who often represents low-income clients.

She said that during divorce proceedings, judges often award a "nominal" $1 maintenance even to rich women. The award is to ensure that they have the right to return to court to ask for higher maintenance should their financial situation worsen any day.

Men are often convinced to agree by being told things like, what if your ex-wife got cancer, said Mrs Shone. "That often makes me wonder, what if the man got cancer, there is no provision in our law for women to help out in such cases."

Those who are in favour of equality with regard to the right to claim maintenance stress that such a move will in no way diminish the power of the law to protect low-income or stay-at-home mothers who need maintenance. Indeed, four in 10 married women do not work and women continue to shoulder the greater share of childcare burdens.

Other reforms needed

THERE are three other areas where the Charter needs tweaking. First, in keeping with the times, it should be named the Marriage Charter or the Family Charter, say lawyers. Ironically, barring the maintenance provision, the Charter is fairly gender neutral. Yet, its name erroneously conveys the impression that it protects women more than men.

Secondly, tying paternal visitation rights to maintenance payments also needs to be seriously considered. This is important because of frequent complaints that women with custody of the children, while quick to accept maintenance money, often prevent the children from meeting their dad.

But above all, in an era where gender and parental roles are evolving continually, the law should be amended so that a person is entitled to maintenance from former spouses, primarily if they cannot support themselves.

Divorce is never easy and both parties - and the children - lose out.

But what the law can ensure is that independent and eminently employable ex-wives do not continue to live off their ex-husbands, even after short marriages, just because the letter of the law - drafted in a very different Singapore - allows them to do so.

Pay women alimony for 'love labour'
By Andy Ho, The Straits Times, 16 May 2014

A JUDGE recently questioned the right that every woman has to seek maintenance or alimony at divorce.

Justice Choo Han Teck thought that this "unalloyed right" spoke to "patronising gestures" in the law called the Women's Charter that "belie deep chauvinistic thinking".

He rejected the request of a woman, a 48-year-old regional sales manager of a multinational firm, for $120,000 in alimony from her former husband, a 47-year-old senior prison officer after their 10-year marriage ended in 2012. She earned slightly more than him.

The judge hoped that Parliament might someday amend or replace the current law with a broader one fairer to the genders.

The reaction has been mostly supportive of the judge's views. However, the issue may be seen from a different perspective, and it may not be quite right to dismiss outright a working woman's claim for alimony just because she earns as much or more than her husband.

One could argue that the law has justly institutionalised the right of a woman to seek alimony. It neither grants alimony automatically nor specifies its quantum. These are always decided by the court based on all relevant factors in any particular case.

Justice Choo wanted an end to the "idea that women needed protection (if) women were to be accepted as equal to men in marriage and in divorce".

But to see it as answering a "need" for such "protection" in the first place suggests a view of alimony where the man is compelled to give his former wife a handout, making the wife the beggar.

It will become clearer that alimony is no handout if we consider that men and women view and invest in marriage and children differently.

Men and women make asymmetrical and non-identical investments in marriage. Practical tasks, such as one parent driving the kids to school while the other drives them home, can be re-assigned quite easily between them or even to another adult family member.

But time spent playing with and caring for the children, for example, cannot be rescheduled as easily. That is because in many marriages here, like it or not, a woman's identity and self-worth are likely to be tied to her roles involving such "love labour".

The woman often shoulders a heavier burden of care work. Even where the husband is willing to do more housework and spend more time caring for the children than fathers did in previous generations, the wife's "love labour" burden is not necessarily lessened hugely.

Instead, sociological studies in the United States show that even as husbands increase their childcare time, wives do so, too, instead of cutting back on it.

Such research also consistently show that the success of family relationships matter more to women. This is why, gendered wage differentials apart, it is almost always the wife who gives up paid employment to stay home to care for the kids as she has a greater need to assuage those feelings of guilt when the kids are left at childcare or with a maid.

Today, women are also under social pressures to be the perfect mother: If she is working outside, she is still expected to ensure her children have the best meals, play group, preschool, kindergarten, school and maybe sports. Men are not as pressured.

So there is no thoroughgoing gender equality in most marriages, and the reason might well be just that the genders intrinsically differ.

The woman is almost always the primary caregiver at home but, in divorce, the legal system devalues her non-market contributions to the marriage.

Instead, the law implicitly expects her to return to paid employment if she had left it for the family. She is to be "supported" until she becomes self-sufficient financially, which should be as soon as possible, never mind her opportunities are fewer at 45 or even at 35 than they were at 25.

When these gendered roles in marriage are factored in, alimony can be seen as an entitlement, not a handout. That is, it is simply money that the man owes the woman because of her manifold investments in the marriage.

Some experts propose factoring these roles into marriage to be seen as a relationship where the wife is the creditor who extends credit to the husband by, above all, her asymmetrical share in household work, childcare and love labour. Alimony is then just collecting on this debt at divorce.

Other experts liken marriage to an investment partnership, in which husband and wife invest equally but differently.

The man gets to concentrate on his career while the woman focuses more on the family's needs, the kids especially. Thus, they should both reap the financial outcomes of that co-investment deal equally after it ends.

Here, he pays alimony to buy out her share of future proceeds in the post-divorce years that he will continue to reap from their earlier joint investment.

So it would be unjust for him to continue receiving proceeds from their co-investment without compensating her at divorce as she was an equal stakeholder in it.

Whether as an equal investment partner or as the creditor, she is entitled to reimbursement - with interest - at divorce. This is why the law rightly accords a woman the automatic right not to alimony but to seek it at divorce. That is, even where the wife with paid employment earns as much as or more than her husband, she should still have the presumptive right to ask for alimony.

She is not begging for a handout. She is simply asking for what she is entitled to. Even a nominal alimony, which Justice Choo derided, is required in most divorces according to the co-investment or creditor models, to equalise the genders if the woman's non-market contributions to the marriage are to be justly acknowledged.

Only when an empirical examination shows she did not thus contribute to the marriage should a judge deprive her of alimony - and not because of some formalistic commitment to an acontextual notion of gender equality.

Don't belittle 'love labour' of dads

DR ANDY Ho suggested retaining current spousal maintenance laws that favour women ("Pay women alimony for 'love labour' "; last Friday).

The basis of his paternalistic attitude is that men and women are intrinsically different - as innate caregivers, women extend more "love labour" to their families than men.

In today's society, however, women have different priorities in life.

Some embrace family life fully and become housewives, while others prefer a mix of work and family life.

Some prefer married life with no children, while a minority reject marriage for the sake of their careers. The concept of "love labour" is lost on them.

Dr Ho quoted a sociological study to show that in the United States, even as husbands increase their childcare time, wives do so too, instead of cutting back.

This puzzling mutual increase appears to be related to higher standards for both mothers and fathers with regard to spending time with their children.

However, Dr Ho neglected to add that the same paper indicated that there has been steady growth in Britain in the percentage of families where the man contributes more time to the family than the woman.

Today, there is intense pressure on men to be good caregivers, on top of their roles as breadwinners and protectors of the country.

There are calls to extend paternity leave, and organisations such as Families for Life actively promote bonding between fathers and their children.

Some men have even given up their jobs and become stay-home dads, the highest form of "love labour".

We can no longer afford to let paternalistic attitudes define our divorce laws. To maintain such laws is to belittle the "love labour" fathers are increasingly extending to their families.

Sulthan Niaz
ST Forum, 22 May 2014

Maintenance not a reward for spousal sacrifice
By Debbie Ong, Published The Straits Times, 24 May 2014

FAMILY law academics, myself included, have long argued that laws relating to spousal maintenance in divorce cases should be gender-neutral, equally available to both the husband and wife based on their needs.

Section 113 of the Women's Charter only enables a divorced woman to seek maintenance from her former husband. The provision aims to ensure that a wife who has been economically disadvantaged by her role in the marriage is fairly provided for when she moves on to post-divorce life. This is different from treating maintenance as a "reward" for homemaking sacrifices.

Straits Times writer Andy Ho suggested in the article "Pay women alimony for 'love labour'" (May 16, 2014) that "When these gendered roles in marriage are factored in, alimony can be seen as an entitlement, not a handout. That is, it is simply money that the man owes the woman because of her manifold investments in the marriage... Even a nominal alimony, which Justice Choo derided, is required in most divorces according to the co-investment or creditor models, to equalise the genders if the woman's non-market contributions to the marriage are to be justly acknowledged."

The article suggests that maintenance should be given to a wife as an entitlement because she invested effort in the marriage through her homemaking contributions. But this view does not sit well with the current law of maintenance and the division of assets.

The law already provides for the recognition of homemaking contributions when the court divides matrimonial assets between the spouses. The courts have explained that the underlying basis for the maintenance of a former wife is the "financial preservation" of the wife. It is also used to even out any financial inequalities between the spouses, taking into account any economic sacrifices by the wife during marriage. A homemaker wife who has given up her career or accepted a slower career path will find that her earning capacity has been diminished by the family-driven choices she made. It is fair to award her the maintenance sum that she needs in order to transit into post-divorce life, having been financially disadvantaged from taking on the homemaking role for many years. Her homemaking contribution is one of a number of factors that are relevant in determining the maintenance sum, but it does not form the basis for maintenance.

Family law ensures that homemaking contributions are recognised when the court divides up the matrimonial assets between the spouses upon their divorce. The breadwinning and homemaking efforts of both the husband and the wife are accorded recognition when the court exercises its power in Section 112 to divide matrimonial assets in a "just and equitable" manner.

In 2007, the Court of Appeal held that "the division of matrimonial assets under the Act is founded on the prevailing ideology of marriage as an equal cooperative partnership of efforts".

Thus the power to divide assets aims to give to each spouse a fair share of the assets acquired during the marriage through their different contributions. The power to order maintenance primarily aims to provide for the needs of the wife who may have suffered a financial disadvantage.

Maintenance plays a supplementary role to the Division of Assets in evening out the financial inequalities between the spouses. Together, the two powers ensure fairness in the financial arrangements when a marriage ends.

In Singapore, judges have done their best to ensure fairness.

Last month, Justice Choo Han Teck rightly rejected a woman's $120,000 lump sum maintenance claim from her former spouse, as she was financially independent.

Maintenance claims have been dismissed in many cases, particularly in situations where the wife has significant independent means or has received a substantial share of the matrimonial assets.

But why is the maintenance obligation one-sided in favour of women?

Historically, the common law doctrine of "unity of personality" had the effect of fusing the spouses' legal personalities. As a result, the law treated only the husband as having the legal personality to carry out legal acts for both of them, while the wife gave up her legal capacity upon marriage. In return, the wife obtained the right to be maintained by her husband.

This common law was received in Singapore in 1826.

Maintenance thus began as a one-sided obligation under common law. Although there was the opportunity to remove this unilateral character of maintenance when the Women's Charter was enacted in 1961, the Charter retained the wife's unilateral right to be maintained.

In 2011, the Parliamentary debates on the amendments to the Women's Charter made it clear that the one-sided maintenance obligation would remain. The then Minister for Community Development, Youth and Sports explained that "the brutal truth is, even today, although we have made much progress, women and children still need protection".

Today, however, husband and wife are equal partners in the marriage union. Section 51 of the Women's Charter provides that women are able to hold and dispose of any property.

Both spouses are also mutually bound by Section 46 of the Women's Charter to cooperate with each other in safeguarding the interests of the union. It follows that each is equally obliged to provide for the other.

Of course, even if the law was made gender-neutral, it is likely that in reality there would be far more homemaker wives than homemaker husbands seeking maintenance. But the law would be more just and fairer than it is today.

The writer is an Associate Professor, Faculty of Law, at the National University of Singapore.

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