Many spouses, primarily the wife, ask us: “In a divorce, what is a fair amount of spousal maintenance to ask for?”

The needs of the wife and the status and standard she was accustomed to during the marriage to her husband will be kept in mind when awarding maintenance. It shall not be excessive but reasonable considering the mode of life she was used to during marriage allowing her the comfort that she was afforded by the husband. The scope of maintenance is very wide and would be in such provision that would enable an adult to live a normal life, and not mere subsistence.

Any amount of maintenance to be paid by the husband to the wife or former wife or by the woman to her husband or her former husband is based on the means and needs of the parties, also having regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage (Section 78 Law Reform Act 1976).

In the matter of James Sloan v Sarala Devi Sockalingam [2012] 2 CLJ 115 – the Court held that both parties contributed equally to the breakdown of the marriage. The husband testified that the wife’s angry disposition and volatility were the biggest factors in the breakdown of the marriage to the extent that he could no longer continue in the marriage with her. The wife claimed the breakdown of the marriage was due to her husband’s “private activities” that required the wife to participate in wife-swapping amongst others, and that he would become angry if she refused to participate and this led to abuse. Since the wife also contributed towards the breakdown of the marriage, it was not possible for the court to grant her the full amount of maintenance that she would have deserved had she not contribute to its breakdown.

Amongst various other considerations that the court would consider is whether the husband has the means to pay the amount claimed without himself struggling to make ends meet in his daily life. In James Jemut Masing v Fiona Frances Masing nee Henderson [1994] 2 CLJ 390 – the husband proved that he was not a man of substantial means and that he was also suffering from diabetes and other medical complications. His medical expenses were substantial and the amount required by the wife would heavily burden the husband.

The issue of a fair and reasonable maintenance must be further determined by reference to the facts and circumstances of every individual case that comes before court. In Chaw Anui v Tan Kim Chai [2004] 4 MLJ 272, the court took into consideration the following:

  1. duration of marriage – here the parties were married for 34 years and the wife devoted the best part of her youth to the marriage;
  2. the wife’s role in the marriage – the wife was 55 years old and had been a housewife during the 34 years of marriage and could not be likely to gain employment;
  3. the wife’s health – she suffered depression and other ailments due to the advancement of age;
  4. the financial means of the husband; and
  5. the standard of living enjoyed by the wife during their marriage.

The purpose of the maintenance and its scope must also be looked at. The courts take the view that the nature of maintenance as a “form of material provision that will enable an adult to live a normal life and a child to be brought up properly”.  Maintenance cannot mean only mere subsistence i.e. the food she puts in her mouth but also means the clothes on her back, the house in which she lives and the money she has to have in her pocket, all of which vary according to the means of the man who leaves a wife behind. It is the duty of the father to maintain the standard of living the children enjoyed in the past, i.e. during the existence of the marriage.

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This article was written by Aileen Lau . Aileen heads the family law practice at Donovan & Ho. She has extensive experience in both contested and uncontested divorce proceedings, and has advised clients on family law matters ranging from child custody, adoption, payment of alimony and division of matrimonial property.

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