Divorcing a Husband Who’s Not Working
While there has been much talk about more working wives/mothers in Singapore in the past few years, the number of husbands/fathers choosing not to work for various reasons has also been burgeoning in the background. For example, a Ministry of Manpower report in 2017 found that there had been more than a two-fold increase in stay-at-home fathers compared to 2007.
This article will focus on how your husband’s unemployment may impact the ancillary matters (i.e., division of matrimonial assets, custody, care and control and access, maintenance for the wife and maintenance for the child). At the outset, the courts generally take a “no fault” approach to the ancillary matters where they would not penalise or discredit your husband for his decision not to work (even if this decision had been cited as one of the reasons for the breakdown of the marriage). That being said, the courts will have regard to the fact that your husband is or was not working so far as this affects your husband’s contributions and financial means.
DIVISION OF MATRIMONIAL ASSETS
In most cases, the court will use a structured approach to divide parties’ matrimonial assets, where they have regard to parties’ direct contributions and indirect contributions when determining how to divide the matrimonial assets in a just and equitable manner.
Direct contributions refer to financial contributions made by either or both parties for the purpose of acquiring assets.
Here, the fact that your husband had not been working does not have much relevance as direct contributions will typically be calculated with regard to evidence of the financial contributions in question (e.g., CPF property withdrawal statement showing that how much of parties’ CPF monies have been utilised to pay for the matrimonial home).
Indirect contributions refer to financial and non-financial contributions made by either or both parties towards the welfare of the family and the marriage.
Indirect financial contributions may refer to household expenses, renovation expenses and any other costs that are incidental to taking care of the household and family. Here, your husband’s unemployment is only relevant to the extent that your husband may have been less likely to make substantial indirect financial contributions given that he was not drawing any income.
Indirect non-financial contributions may refer to the respective efforts made by parties to benefit the family. In this regard, if your husband had not been working and instead spent his time at home, it may be the case that your husband had substantial indirect non-financial contributions since he had the opportunity and time to tend to the home and spend time with the child.
Do note that the above may not apply in the event that parties were in a long marriage and you were primarily the breadwinner and your husband was primarily the homemaker. In such cases, the courts may choose not to apply the structured approach and instead proceed to divide the matrimonial assets in a manner that is close to equal division.
MAINTENANCE FOR WIFE
Can my husband claim maintenance from me if he was/is not working?
Under the Women’s Charter, a husband does not have a universal right to maintenance from his wife. Only an incapacitated husband has such a right.
An “incapacitated husband” refers to a husband who is or becomes incapacitated from earning a livelihood due to any physical or mental disability or any illness, where he was unable to maintain himself during the marriage and continues to be unable to maintain himself.
If your husband was not working for reasons other than a physical or mental disability or any illness, he is unlikely to fall within the meaning of “incapacitated husband” and as such he does not have any right to claim maintenance from you.
Can I claim maintenance from my husband if he was/is not working?
The right of a wife to claim maintenance from your husband remains even if your husband had not been working. That being said, the fact that your husband had not been working may have implications on the kind of maintenance order made by the court.
The court will strive to make an order that results in just and fair outcome, bearing in mind that the main aim of maintenance is that of financial preservation. In doing so, the court will pay attention to all the circumstances of the case. Amongst other factors, the court will look at your income and earning capacity as well as your husband’s income and earning capacity. In this regard, it may well be that your husband has limited financial means given that he had not worked for some time. At the same time, you may have used your income to maintain yourself (and even your husband) during the marriage. In some cases, such factors may point the court towards finding to some extent that you may not require substantial maintenance from your husband to continue with your current lifestyle after the divorce, and making orders that reflect this conclusion.
MAINTENANCE FOR CHILD
At the outset, it is important to note that your husband has an obligation to maintain the child in his capacity as the child’s father, and this applies regardless of whether or not he had been working.
Nevertheless, when it comes to determining how the child’s expenses are to be split between parties, the court will take into account all the circumstances of the case, including the respective income and earning capacity of the parents. In this regard, the court may find it fair for the parent who is working to bear a greater portion of the child’s expenses than the parent who is not working.
In the event that your husband later manages to secure a job or other source of income, it may amount to a “change of material circumstances” which would justify a variation of the court order.
CUSTODY, CARE AND CONTROL, AND ACCESS
When it comes to making orders relating to the custody, care and control and access of a child, it is well established that the paramount consideration is the welfare of the child.
In reaching a decision that serves the best interests of the child, the court will take into account all the circumstances of the case.
Custody concerns which parent(s) are to have decision-making powers over key areas of the child’s life, such as education, medical decisions and religion.
In most cases, your husband’s unemployment is unlikely to feature heavily here as the fact that your husband is not working would generally not affect his ability to make decisions on the child’s behalf.
Care and control, and access
When a parent has “care and control”, this means that the child lives with that parent, and that parent is responsible for taking care of the child on a day-to-day basis. The parent that does not have care and control will be given “access” to the child.
Your husband’s unemployment is likely to play a bigger role in determining the appropriate care and control and access arrangements for your child.
For example, the court may give some weight to whom the child’s primary caregiver had been. If your husband had not been working and instead been a stay-at-home father, the court may see your husband as having been the child’s primary caregiver. Depending on the facts of the case, the court may be reluctant to bring about a significant change to the child’s life, and may order care and control arrangements that reflect this status quo. On the other hand, if your husband is intending to return to the workforce after the divorce, the court may recognise that your husband’s availability will inevitably be affected by his new job and give less weight to the fact that your husband is presently the child’s primary caregiver.
Ultimately, the courts will strive to make an order that would be in the best interests of the child.
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