Where Maintenance Orders Were Rescinded Due to an Inability to Pay
The court allowed a Wife’s appeal to rescind a variation order for her to financially contribute to her children’s maintenance because she was physically unable to be gainfully employed.
WDB v WDA  SGHCF 1 [Choo Han Teck J / General Division of the High Court (Family Division)
Parties obtained the final judgement of their divorce in 2016. In 2022, DJ assessed the children’s post-relocation expenses to be S$4,500 and made the variation order for the Appellant Wife to contribute $1,500. The Wife filed the present appeal to rescind the variation orders made by DJ. The appeal was allowed but Husband was granted leave to reapply if the situation changes.
The thrust of the Wife’s appeal is that she is unable to pay maintenance as she is experiencing financial difficulties brought about by her medical condition.
The Wife had previously worked as a nurse in SGH but had been rendered unable to work since March 2021 after suffering an adverse reaction to the second dose of the Covid-19 vaccination. The Wife received full pay ($8,244) for 2021 but this was subsequently reduced to half-pay for the first half of 2022 and no-pay for the rest of 2022.
The Wife’s employment with SGH was terminated on 28 December 2022. Presently, the Wife receives $2,100 per month from the rental of her flat.
In contrast, the Husband stressed that his current income is US$5,3400 (approximately S$7,062) and this sum is insufficient to cover his personal expenses and the children’s expenses as the elder child is entering tertiary education.
In allowing the appeal, the Court found that DJ was not wrong in taking into consideration the Wife’s earnings of $4,122 when he ordered the Wife to contribute $1,500 monthly to the children’s maintenance since he was unable to determine the prospects of her recovery at that time.
However, there has been a change in the Wife’s circumstances since the DJ’s order and the basis for the DJ’s decision to order her contribution no longer exists.
Specifically, in contrast to when the order was made, the Wife is now no longer gainfully employed and merely draws a $2,100 rental income which is meant to cover her personal and medical expenses.
Given that the Wife is wheelchair-bound, requires constant intubation with an oxygen tank, and can barely speak a few words without becoming short of breath, the Court found that it is clear the Wife is also in no state for gainful employment.
Although generally maintenance may be ordered on the basis of a spouse’s earning capacity even if he or she was unemployed at the time of the order, it appears that a practical assessment of the facts is required, including whether the spouse’s inability to pay maintenance is due to an inability to undertake employment as it was in the present case, or merely unwilling as it was in the case of ABX v ABY  2 SLR 969 where the Husband had chosen to remain unemployed.
Presently, it is clear that the Wife’s was physically unable to return to her previous employment as a nurse nor take on any non-nursing roles. As such, without knowing more about her other qualifications, it would appear that it would be impossible for her to increase her income until she recovers.
Hence, in the meantime, given the Wife’s current income of $2,100, requiring her to pay $1,500 for child maintenance would mean that she would be left with a meager $600 per month to cover her personal and medical expenses and this would be unreasonable.