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First Steps Towards a Gender-Neutral Maintenance Obligation
Siew Jey Ren
I. INTRODUCTION
Recent amendments made to the Women’s Charter1 have extended the possibility of obtaining maintenance to incapacitated husbands who are able to prove their need. This article will discuss the significance of these changes and the arguments raised against full gender neutrality in our maintenance provisions.
II. THE WOMEN’S CHARTER (AMENDMENT) ACT 2016
A. Differences in attitudes towards maintenance of spouses and maintenance of children
The unilateral character of the maintenance obligation provided for in s 69 and s 113 of the Women’s Charter is an aspect of the law that has persisted through changes from fault-based divorce to fault-neutral divorce.2 Prior to the 2016 legislative amendments, it has never been possible for husbands to apply for maintenance from their wives. It has been suggested that the practice of placing the maintenance obligation solely upon the husband was inherited from the common law as quid pro quo for the historical rule that a married woman relinquished her personal property rights.3 Although this rule is no longer part of our law, the Singapore Legislature has been reluctant to transform the maintenance obligation into one that is mutual and gender-neutral. The relevance of gender is unique to the duty between spouses inter se; the duty of spouses to maintain their children does not differentiate on this basis and is equally applicable to both mother and father.4 No one doubts that parents, regardless of gender, have a responsibility to support their dependent children.
The position vis-à-vis maintenance of children appears more consistent with the aspirational ideal of marriage as an equal cooperative partnership espoused under s 46 of the Women’s Charter. In contrast, controversy has resurfaced each time proposals seeking to abolish gender as a differentia in spousal maintenance were raised. For instance, during the second reading of the Women’s Charter (Amendment) Bill,5 the Minister for Social and Family Development, Mr Tan Chuan-Jin, cited feedback received during the public consultation that gender neutrality in maintenance would be inappropriate in a society where men are expected to be the primary breadwinners.6 The Minister took great pains to stress that this was by and large the case, and that it reflected economic reality. Similar views were aired during the round of amendments in 19967 with the caveat that further developments would be possible in the future where the disparity between men and women was less marked.8
That we should speak of ‘parent’ rather than ‘father’ and ‘mother’ but insist on ‘husband’ and ‘wife’ instead of ‘spouse’ speaks to differing societal attitudes as well as the differences between maintenance during the subsistence of a marriage and post-divorce. While maintenance during the subsistence of a marriage for both dependent spouse and child is primarily concerned with the modest goal of meeting financial needs,9 maintenance of an ex-spouse serves the more ambitious objective of giving her a fair share of the wealth acquired over the course of the marriage.10 It would appear from public feedback that resistance was not merely directed towards the expansion of the category of persons who could be compelled to provide maintenance, but also the provision of maintenance to a wider class of recipients.11 Association with notions of dependency and need would be particularly damaging to the perception of the male as the breadwinner and head of the household in the context of post-divorce alimony, given its suggested aim of compensating for economic prejudice suffered during the marriage.
Several related concepts of dependency are also at play. It has been pointed out that certain types of dependency are developmental and biological in nature, with the result that they are universally experienced at some point in our lives.12 Children and many of those advanced in age are dependent in this sense, as well as those who become incapacitated as adults. There is also a distinct type of dependency that is structural in nature; this has been characterised as ‘derivative’.13 This concept recognises the reality that those who are assigned the role of caring for others are themselves dependent upon resources to undertake that care. Derivative dependency and its associated caretaking role are not universally experienced but assigned to certain members of society through a confluence of cultural and legal factors. To the extent that full gender neutrality in our maintenance provisions is perceived as recognition of a broader latitude for assuming derivative dependency, a degree of cultural resistance must be expected. However, the compromise of allowing a small subset of incapacitated former husbands to apply for maintenance represents a calibrated step in the right direction insofar as it confines the expansion to those who can prove their dependency falls within the former type. For this reason, it should not be perceived as a threat to existing gender roles.
B. The argument that wide economic disparities still exist between women and men
One common argument raised against gender neutrality in our maintenance provisions is that significant economic disparities persist between women and men, as signalled by gaps in labour force participation rates and other socio-economic markers.14 Taking the factor of normative attitudes out of the equation, this argument essentially hinges on using gender as a reliable proxy for need. It is uncontroversial that maintenance under the Women’s Charter is contingent on a host of circumstances including the need for maintenance and the capacity to provide for it.15 Where provisions in force direct the courts to have regard to fact-specific elements, it becomes both unnecessary and illogical to fashion gender as an additional requirement in deserving cases.16 Even if it is conceded that gender may serve as an accurate proxy for need, the existence of a general observation does not require all non-incapacitated men to be excluded,17 nor does allowing the claims of dependent men in any way defeat the claims of dependent women.18
C. The argument based on social values
In ATE v ATD,19 the Singapore Court of Appeal observed that a husband should not be regarded as a general insurer vis-à-vis his wife through the award of nominal maintenance as a matter of course. Faced with the occasional factual matrix where the wife earned more than the husband, the courts have readily held that maintenance cannot be considered an unalloyed right. There has been judicial recognition of the potential reverse discrimination against women engendered by ‘patronising gestures’ of token protection.20 In general, it has become rightfully more acceptable to recognise women outside the dependent role, but there remains a lack of progress on the legislative front in recognising men within the dependent role.21 Apart from the questionable desirability of traditional gender roles, it is disingenuous to argue that retaining differential treatment de jure is an effective way of promoting preferred social values relating to the financial responsibilities of husbands and the economic dependency of wives given that maintenance is not awarded on the blanket basis of social characteristics, but contingent on multiple factors independent of gender.22
D. The argument that an additional burden will be placed on wives of incapacitated husbands
A third issue that was directly addressed by the Minister for Social and Family Development concerns the potential imposition of a long term burden on former wives of incapacitated men.23 It was pointed out that monetary difficulties could be exacerbated by the presence of young children, and that long term support might disadvantage the former wife in entering future relationships.24 Beyond the strict criteria that must be met before a husband or ex-husband may apply for maintenance,25 the courts’ consideration of case-specific circumstances such as earning capacity and need would largely minimise the occurrence of situations in which maintenance obligations result in financial difficulty. The implementation of supportive measures and a referral protocol between the Social Service Offices and the Community Justice Centre26 to assist dependents and defaulters who are genuinely unable to keep up with maintenance payments is a further step towards preserving the welfare of families post-divorce.
III. CONCLUSION
Legal suppositions that defy marital reality recall the famous words of Charles Dickens in Oliver Twist, “the law is an ass … the law is a bachelor”. Recognising the need for the law to be in step with evolving mores and attitudes towards marriage, the 2016 amendments made to the Women’s Charter strive to strike a delicate balance on an emotive issue strongly felt about by many Singaporeans. Legislation, as was rightly pointed out by the Minister, is only part of an entire effort, and the push for symbolic change should not ignore the sensitivities involved and the need to be effective and relevant. Nevertheless, it is to be hoped that the day will arrive when the idea of gender neutrality ceases to attract controversy, and parity is achieved in line with the broader principles of the Women’s Charter.
[1] (Cap 353, 2009 Rev Ed Sing), as amended by Women’s Charter (Amendment) Act 2016 (No 7 of 2016).
[2] This follows from the Women’s Charter (Amendment) Act 1980 (No 26 of 1980), which substituted the fault principle with the modern principle of proof of an irretrievable breakdown of marriage.
[3] Leong Wai Kum, “Fifty Years and More of the Women’s Charter of Singapore” (2008) 1 SJLS 1 at 22-23.
[4] As provided for by ss 68 and 69(2) of the Women’s Charter.
[5] (No 6 of 2016).
[6] Parliamentary Debates Singapore: Official Report, vol 94 (29 February 2016) (Mr Tan Chuan-Jin).
[7] In the form of the Women’s Charter (Amendment) Act 1996 (No 30 of 1996).
[8] Parliamentary Debates Singapore: Official Report, vol 66 at col 520-528 (27 August 1996) (Mr Abdullah Tarmugi).
[9] Leong Wai Kum, Elements of Family Law in Singapore (Singapore: LexisNexis, 2007) at 476.
[10] Ibid.
[11] Supra note 6.
[12] Martha Albertson Fineman, “Women, Marriage and Motherhood in the United States: Allocating Responsibility in a Changing World” (2011) 1 SJLS 1 at 4.
[13] Ibid.
[14] In 2016, there was a 15.8 percentage point difference in labour force participation rate and a wage gap of $438 in median gross monthly income based on gender. Ministry of Social and Family Development, Data Tables: Gender, online: <https://www.msf.gov.sg/research-and-data/Research-and-Data-Series/Pages/Data-Tables-Gender.aspx>.
[15] As provided for by ss 69(4) and 114(1) of the Women’s Charter.
[16] The discussion of the US Supreme Court case of Orr v Orr 440 US 268 (1979) in Kelvin Low, Kelry Loi & Serene Wee, “Towards a Maintenance of Equality (Part I): A Study of the Constitutionality of Maintenance Provisions that Sexually Discriminate” (1998) 19 SingLRev 45 at 58-59 is instructive.
[17] Leong Wai Kum, “The Next Fifty Years of the Women’s Charter—Ripples of Change” (2011) 1 SJLS 152 at 170.
[18] Supra note 16 at 59.
[19] [2016] SGCA 2.
[20] ADB v ADC [2014] SGHC 76 at [11].
[21] Parliamentary Debates Singapore: Official Report, vol 94 (29 February 2016) (Mr Seah Kian Peng).
[22] Supra note 16 at 58.
[23] Parliamentary Debates Singapore: Official Report, vol 94 (29 February 2016) (Dr Lily Neo).
[24] Ibid.
[25] As provided by the definition of “incapacitated husband” and “incapacitated former husband” under s 2 of the Women’s Charter. During the second reading of the Women’s Charter (Amendment) Bill 2016, the Minister for Social and Family Development also gave some examples of husbands and ex-husbands who would not qualify: (i) an incapacitated husband or ex-husband who is able to earn a livelihood sufficient to maintain himself; (ii) an incapacitated husband or ex-husband who has other means, such as income from investments or insurance pay-outs, to support himself; and (iii) an ex-husband who becomes incapacitated after the divorce has been finalised.
[26] Ministry of Social and Family Development, Maintenance Support, online: <https://www.msf.gov.sg/policies/Marriages/Divorce-and-Child-Custody/Pages/Getting-a-Divorce.aspx>.