High-stakes divorces: A comparative analysis of legalese and settlements in Singapore and UK

“Judge expresses concern as divorcing couple rack up 'apocalyptic' legal bill of GBP 5 million [$ 6.4 million]”. This was among the headlines dominating the UK in 2022, in respect of the widely-reported divorce of Russian businesswoman Alla Rakshina and her ex-husband Lazaros Xanthopoulos.

By April 2023, the GBP 5 million had skyrocketed to some GBP 9 million ($11.5 million); the case is now dubbed “some of the most costly and destructive litigation imaginable.” To add insult to injury, it was the financially affluent wife—recognised by Forbes as the 75th richest woman in Russia at the timewho had to fund the entirety of the matter’s litigation costs.

How did legal costs escalate to such a degree? One possible reason: in the UK, the spouse who is less financially secure is entitled to apply to court for an order that the other spouse bears their legal fees during the divorce proceedings. This entitlement does not exist in Singapore.

The policy of the Singapore courts can be seen from the apex court’s comment that “seeking…for the [h]usband to be a general insurer of [the wife’s] legal costs and/or damages in the proceedings…is…wholly contrary to the very purpose of awarding maintenance to the former wife in the first place.” 

Typically, in Singapore, parties fund their legal fees through use of their existing assets, savings that they have accumulated, and, in deserving cases, on pro-bono or deferred-payment terms extended by law firms here. The Singapore policy is an entrenched one because as seen by the UK experience, ordering one party to bear the other’s legal fees during and throughout the proceedings would likely only fuel the fire of the divorce, which would be wholly contrary to the principle of therapeutic justice aimed to minimise animosity between divorcing spouses as far as possible, and which lies at the heart of divorce proceedings in Singapore. 

As observed by Sir Jonathan Cohen who heard the Alla Rakshina case: “I have not the slightest doubt that this litigation would never have been conducted by [husband] in the way that it has been if he was paying his costs from his own pocket.”

Crucially, the Singapore legal system aims to keep legal costs of divorce proceedings manageable through the court’s stringent control over the proceedings by way of robust case conferences and court directions that clearly set out the parameters and timelines within which parties must work.

Furthermore, it is only in very exceptional cases where cross-examination is permitted in the hearings, and instead, cases are predominantly determined based on affidavit evidence alone, usually limited to two rounds, with further rounds of affidavits requiring leave-of-court. All this is to ensure that divorce proceedings are brought to an expeditious but fair conclusion, yet again with the aim of achieving therapeutic justice. The “no-fault” regime in Singapore also renders minute examinations of parties’ conduct during the marriage irrelevant, save in cases where the conduct is extreme and undisputed. 

Contrasting approaches to the issue of conduct in Singapore and the UK

As the Women’s Charter does not specifically enumerate conduct as a factor to be considered in determining the award to be given in a divorce, the go-to case of lawyers seeking to persuade the Singapore courts to apply a discount in an award, by reason of a party’s conduct, is Chan Tin Sun v Fong Quay Sim [2015] 2 SLR 195. In this case, the wife had been convicted of poisoning the husband over a lengthy period. As a result of and because of this conduct, her share of the matrimonial assets was discounted by 7% by the Singapore Court of Appeal. 

Notwithstanding the precedent of Chan Tin Sun, the Singapore courts are not generally persuadable.  In TQU v TQT [2020] SGCA 8, no discount was imposed despite some fairly extreme behaviour of the wife. False accusations made by the wife resulted in criminal charges against the husband, of which he was eventually acquitted after a lengthy criminal trial. Would the position in TQU have been different if the husband had, after his acquittal in the criminal trial, successfully sued his wife for malicious prosecution? Arguably so since the conduct would then have met the threshold of being “undisputed” in the subsequent divorce proceedings.

Given that only undisputed conduct is taken into consideration, the door to cross examination is firmly shut on the issue of conduct in Singapore. 

The Singapore position is to be contrasted with that in the UK. The Matrimonial Causes Act (MCA) Section 25(2)(g) expressly provides that the court shall, in exercising their power under Section 24 of the MCA, have particular regard to “the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it”.

In Wachtel v Wachtel , the test was set as conduct that is “both obvious and gross,” so much so that to order one party to support another whose conduct falls into this category is repugnant to anyone’s sense of justice. What is of note however is that the test does not provide that the conduct must be “undisputed”.

Further, under Section 25(2) of the MCA, conduct is also a relevant issue in the determination of spousal maintenance, and this includes conduct during the divorce proceedings themselves, as clarified by the UK’s Court of Appeal in RR v CDS.

In Singapore, the courts have made it clear that: “The court is not equipped to scrutinise the conduct of the parties to assign blame, nor should it be so in light of the no-fault basis of divorce embodied within the Act.”

Nonetheless, and setting aside the issue of conduct, where one spouse has clearly suffered economic prejudice during the marriage, and the division exercise has not sufficiently evened out the financial inequalities between the formerly married couple, Singapore courts are willing to impose a duty on one spouse to maintain the other. 

This can be done on an interim, for example, whilst divorce proceedings are ongoing, or a final basis at the conclusion of the proceedings, and would generally cover any reasonable expense that one may have or is likely to have in the foreseeable future, assessed in the light of a series of factors, including the income, earning capacity, and other financial resources that the parties have or are likely to have, the standard of living enjoyed by the family before the breakdown of the marriage, and that party’s financial needs, obligations, and responsibilities. 

From this, the “multiplicand” (the sum of money reasonably needed per month as maintenance) and the “multiplier” (the number of years for which maintenance is reasonably needed) can be derived.

Similar approach in both countries in determining maintenance

Both the Singapore and UK courts appear to take a similar approach towards determining the multiplicand. The key difference, other than that already described, therefore lies in the multiplier.

The starting point in Singapore has historically been the Ong Chen Leng formula (as updated by the Court of Appeal in Wan Lai Cheng):

However, in the 30 years since the formula was first coined here, the courts have increasingly recognised that the dynamics of marital relationships have changed, with women in Singapore increasingly achieving educational and economic equality with men. With life expectancy on the rise, a stringent application of the formula could amount to some hundreds of thousands of dollars of maintenance being awarded, including in unjustifiable situations where the former wife is young and well able to re-enter the workforce; clearly, unless the facts of the case are extraordinary, it would not be reasonable for a former wife to pursue huge sums for such long periods, and a former husband obligated to bear those sums.

As such, the Singapore courts are now quick to state that the Ong Chen Leng formula is a guide rather than a rule of law. It is therefore no wonder that as far as reported decisions are concerned, the formula does not appear to have been readily applied here in its entirety since the case itself in 1993, and indeed, was only last applied at a discounted rate in 2013. 

In particular, recent decisions have clarified that where cases involve younger wives who are, financially speaking, more capable of ‘getting back on their feet’ post-divorce, including by securing gainful employment, compared to say, older wives who may have taken on the homemaking role in the marriage or who have little to no earning capacity at the time of divorce, the courts are unlikely to be as generous. In this regard, the recent trend seems to be that spousal maintenance is awarded for a period of around four to six years, simply to allow the former wife to “weather the transition of divorce.”

UK joint lives order and maintenance

This is in stark contrast to the UK courts that are empowered by statute to make spousal maintenance orders for such terms as they think fit, including ordering periodical maintenance payments until the death of either one of the parties. These are commonly known as joint lives orders. 

Such joint lives orders can be seen in the UK as recently as 2018, in the seminal case of Waggot v Waggot. In Waggot v Waggot, the wife was, at first instance, awarded maintenance to help cover her needs, assessed at GBP 175,000 ($223,500) per year, with no reduction for assumed future earnings, as “although [the judge] expected the wife to have obtained paid employment after four or five years, he did not consider it fair to do so, largely because of the level of the husband’s income but also because of uncertainty as to whether and what [the wife] might be earning.” 

It was therefore concluded that, without the imposition of a joint lives order, the wife would be unable to adjust without undue hardship. Whilst this aspect of the lower court’s findings was overturned on appeal, and the joint lives order converted to a maintenance order with a definitive end-date, the fact remainsthat it is enshrined in UK statutes that life-long maintenance orders can still be sought, and may be granted in deserving cases. As such, despite what appears to be the start of a gradual shift against joint lives orders in the UK, it cannot be ignored that there is a risk of life-long maintenance being awarded there. 

Another difference with spousal maintenance in Singapore that is worthy of note is that it is not awarded by right; it is supplementary to the exercise of division of matrimonial assets. In fact, the Singapore courts have explicitly stated that “[t]he idea that maintenance is an unalloyed right of a divorced woman is an idea borne from the time when women were housewives living on the maintenance of the men.” As such, as society develops and becomes less paternalistic and patriarchal, women too are becoming more self-sufficient and less dependent on men, and so spousal maintenance consequentially becomes less necessary.

Thus, where a former wife’s entitlement to the matrimonial pool itself is deemed sufficient, the Singapore courts are unlikely to also award spousal maintenance to her. Once again, the Singapore courts are seeking to emphasise that an award of spousal maintenance is not intended to create lifelong financial dependency by the former wife on the former husband. 

By contrast, as already seen in Waggot v Waggot, the UK courts had, at first instance, awarded a joint lives order in the wife’s favour despite the fact that she had also been awarded some GBP 9.76 million ($12.47 million) from the pool.Even on appeal, the wife was awarded continuing maintenance of a further five years, as sought by the husband, notwithstanding the size of her award. 

Section 25(2)(a) of the MCA directs the UK courts to have regard to “…other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire.” 

So, while the UK courts would examine the returns, for example, that are reasonably likely to accrue from the award of the matrimonial assets, the Singapore courts would instead take a broad-brush approach. In TQT v TQU, an award of some SGD 3.4 million ($2.56 million) was deemed sufficiently large to obviate the need to provide for any further spousal maintenance.

Singapore—husbands cannot seek maintenance

As a final note, Singapore’s recognition of the continuing existence of gender inequality is reflected in the law that prevents husbands from seeking maintenance, whether interim or final, from their wives, unless the husbands are incapacitated. Had the Alla Rakshina case been heard in Singapore therefore, ex-husband Xanthopoulos, unless incapacitated, would not have been entitled to any maintenance whatsoever, whether interim or final. Luckily for him, his divorce was heard in the UK, and although not incapacitated by Singapore standards, received maintenance in the form of long-term housing, and financial maintenance for a period of four years, from Rakshina. Incidentally, as at the time of publication of this article, Xanthopoulos has sought and obtained leave to appeal, as well as succeeded in obtaining a further order for payment of his legal fees for this further litigation from Rakshina.

Now that we have given an overview of the key financialancillary issues, we now move on to what is often the core of a marriage: the children. Watch out for our next article, where we explore how Singapore courts deal with custody, care and control, and access to the children, with particular focus on the key issues that can arise when one parent wishes to leave Singapore and the other wishes to remain: a live topic in light of the large expatriate community in Singapore.  Josephine Chong, LLB Hons Second Class, Upper Division, NUS Law (1989), Advocate & Solicitor Singapore, Josephine Chong LLC (www.josephinechongllc.com)

Kym Anstey,LLM Merit, London School of Economics (2018), LLB Hons 2^nd Class, Upper Division, Durham University (2016), Advocate & Solicitor Singapore, Solicitor of the Senior Courts of England & Wales

*Please note that the above is not to be construed as legal advice from Josephine Chong or Kym Anstey, which can only be given upon knowledge of all circumstances.