Evolution of the Right to Maintenance and Gender Equality
Author: Patrick Tan and Melissa Wong
The right to maintenance, enshrined in the Women's Charter, has gone through much changes to remain current and relevant in today's Singapore. This article will briefly outline and track the notable expansions and changes to the character and right to maintenance, especially in the last few years.
The said right to maintenance is found in section 69 & 113 of the Women's Charter. These laws were originally put in place to protect what seemed like the "weaker" and "less able gender" back in the 1960s when the society was largely patriarchal.
The Women's Charter was seen as a law to "protect" women and girls "from the clutches of certain men"[1]. Fast forwarding another 35 years to 1996, when amendments to acknowledge marriages to/between persons who have undergone gender reassignment and to acknowledge marriages between related parties in the Women's Charter were debated (while a forward movement), it was still clearly seen as a husband's duty to maintain his wife[2]. Up until 2008, the right to maintenance remained unilateral[3] – from husband to wife.
Changes in the last 5 years
The last 5 years however, have been the crucial years for the forward progression and change to the right of maintenance. This is largely due to "the economic status of women in Singapore [which] has progressed in tandem with our economic development over the past three decades."[4] This is from the increasing liberation of women, the rising numbers of female representation in the workforce, and the ability of a wife to now be equally, if not more financially capable than their husbands. The increasing recognition by institutions and the government of this changing dynamic is a big step forward in gender equality.
Accordingly, from July 2016 onwards, maintenance for husbands is a statutory right where they are incapacitated and are therefore unable to support themselves and unable to earn a livelihood. It was only in 2011 that any mention of maintenance for husbands was at all raised in parliament.[5]
This is an indirect but powerful acknowledgment from the government that they are now willing to allow incapacitated husbands to obtain financial provision from their wives, when these wives were, a mere 50 years ago, seen as the weaker gender, requiring protection in statute.
The court also reopened the exploration on their powers to order "no maintenance" in 2014. Justice Choo Han Teck stated that "the idea that women needed protection was yoked to an old attitude that should be changed. If it were to continue even where protection is no longer needed, it might lead to the suppression of women in the name of chivalry". Even awarding a "token sum" would be wrong if it is merely "symbolic". In light of these considerations, he dismissed an ex-wife's application for maintenance for herself, considering her financial and economic ability.
The Case of APE v APF
A short year later, the Court of Appeal in APE v APF [2015] SGCA 47 appears to take a tiny step back, perhaps in a bid to achieve the equilibrium and stabilisation in the age of exponential change to this right of maintenance, to reinforce the position that in order to keep the right of the wife to maintenance alive for any future variations, there must be the provision for a nominal sum of S$1. The reason being that a future variation of an award for a non-existing maintenance order is not possible. The logic behind this is that once a court extinguishes the right of the wife to maintenance by making "no order" to maintenance, a variation cannot be applied to "revive" a right which is no longer alive. However, this should not be seen as a detrimental step back, because it does not erode away at the right of maintenance, but simply helps to clarify further on how to ensure a presence of this right if parties wish to retain it.
In conclusion, the constantly changing and evolution of the dynamics between the genders and the acknowledgment and recognition of this is clearly responsible for such changes to the right of maintenance. What was once so rooted in patriarchy, now has become mouldable and ever-changing, and the last few years have been one clear step forward for gender equality as seen through the changes in the right to maintenance.
[1] Dr Lee Siew Choh at col 452 in the 6 April 1960 Parliamentary Debate on the Women's Charter Bill
[2] Mr Abdullah Tarmugi at col 95 in the 2 May 1996 Parliamentary Debate on the Women's Charter (Amendment) Bill, stating his position that only women should be allowed to claim maintenance from men.
[3] Leong Wai Kum, Fifty Years and More of the Women's Charter of Singapore SJLS [2008] 1-24 at page 22-23
[4] Ibid footnote 3 at page 10
[5] Ms Ellen Lee at col 2075 in the 10 January 2011 Parliamentary Debate on the Women's Charter (Amendment) Bill
Written by: Patrick Tan and Melissa Wong
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