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These were 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 £5m had skyrocketed to some £9 million; unsurprisingly, the case is now dubbed "some of the most costly and destructive litigation imaginable".² To add insult to injury, it was the financially affluent wife (who was recognised by Forbes as being the 75^th richest woman in Russia³) who had to fund the entirety of the matter's litigation costs.⁴

How did legal costs escalate to such a degree, one may ask? 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.⁵ This entitlement does not exist in Singapore.

How, then, are the continuing legal fees of divorce funded in a jurisdiction where 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" ⁶? 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 and/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 which aims 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 H in the way that it has been if he was paying his costs from his own pocket." ⁷

• 1. Mowat L, "Judge expresses concern as divorcing couple rack up 'apocalyptic' legal bill of £5m" (Sky News, April 12, 2022) https://news.sky.com/story/judge-expresses-concern-as-divorcing-couple-rack-up-apocalyptic-legal-bill-of-5m-12588698 accessed August 22, 2023
• 2. Lazaros Panagiotis Xanthopoulos v Alla Aleksandrovna Rakshina [2023] EWFC 50 at [2]
• 3. See Lazaros Panagiotis Xanthopoulos v Alla Aleksandrovna Rakshina [2022] EWFC 30 at [12]
• 4. Ibid. It was well accepted by both the wife and the court that the husband in this case had no significant resources of his own (see the 2023 decision at [17(ii)]).
• 5. s 22ZA of the UK's Matrimonial Causes Act 1973 ("MCA"). Note that strictly speaking, such an order is now separate to an order for 'maintenance pending suit' (that is, a periodical sum of monies paid to the less financially secure spouse whilst the proceedings are ongoing), this has only been the case since around 2013, when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 inserted s 22(2) MCA, which states that "[a]n order under [s 22] may not require a party to a marriage to pay to the other party any amount in respect of legal services for the purposes of the proceedings", and came into effect on 1 April 2013.
• 6. TDT v TDS and another appeal and another matter [2016] 4 SLR 145 at [72]
• 7. Lazaros Panagiotis Xanthopoulos v Alla Aleksandrovna Rakshina [2023] EWFC 50 at [50]

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, which 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 hearing(s), 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 yet 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 ⁸.

The contrasting approaches to the issue of "conduct" in Singapore and the UK

Because 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 resulting 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. Section 25(2)(g) of the MCA expressly provides that the court shall, in exercising their power under s 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".

• 8. Chan Tin Sun v Fong Quay Sim [2015] 2 SLR 195

In Wachtel v Wachtel⁹, 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 ¹⁰.

In Singapore, the courts have made it clear that¹¹:

"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.¹² This can be done on an interim (ie. whilst divorce proceedings are ongoing) and/or a final (ie. at the conclusion of the proceedings) basis, 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 which 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.¹³ From this, the "multiplicand" (ie. the sum of money reasonably needed per month as maintenance) and the "multiplier" (ie. the number of years for which maintenance is reasonably needed) can be derived.

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 ¹⁴ formula (as updated by the Court of Appeal in Wan Lai Cheng ¹⁵):

((Average life expectancy of a woman + Usual retirement age of a Singapore male worker) / 2) - Wife's present age

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,¹⁶ 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.

• 9. [1973] Fam 72
• 10. [2020] EWCA Civ 1215
• 11. Chan Tin Sun v Fong Quay Sim [2015] 2 SLR 195 at [25]
• 12. Tan Sue-Ann Melissa v Lim Siang Bok Dennis [2004] 3 SLR(R) 376, as approved by BG v BF [2007] 3 SLR(R) 233..
• 13. See s 114 WC
• 14. Ong Chen Leng v Tan Sau Poo [1993] 2 SLR(R) 545 ("Ong Chen Leng")
• 15. Wan Lai Cheng v Quek Seow Kee and another appeal and another matter [2012] 4 SLR 405
• 16. See, for example, Lee Yong Chuan Edwin v Tan Soan Lian [2000] 3 SLR(R) 867, where an award of spousal maintenance amounting to S$960,000 was upheld even up to appeal to Singapore's Court of Appeal

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;¹⁷ 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 2013.¹⁸ 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 employment¹⁹ (compared to say, older wives who may have taken on the homemaking role in the marriage and/or who have little to no earning capacity at the time of divorce), the courts are unlikely to be as generous.²⁰ In this regard, the recent trend seems to be that spousal maintenance is awarded for a period of around 4 ‐ 6 years, simply to allow the former wife to "weather the transition of divorce".²¹

This is in stark contrast to the UK courts which are empowered by statute to make spousal maintenance orders for such term(s) as they think fit, including ordering periodical maintenance payments until the death of either one of the parties! ²² 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.²³ In Waggot v Waggot, the wife was, at first instance, awarded maintenance to help cover her needs (assessed at £175,000 per year), with no reduction for assumed future earnings, as "although [the judge] expected the wife to have obtained paid employment after 4/5 years, he did not consider it fair to do so, largely because of the level of the husband's income²⁴ but also because of uncertainty as to whether and what [the wife] might be earning".²⁵ 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 remains that 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".²⁶ 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.

As such, 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.²⁷ By way of 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 £9.76 million from the pool.²⁸ Even on appeal, the wife was awarded continuing maintenance of a further 5 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 ²⁹, an award of some S$3.4 million was deemed sufficiently large to obviate the need to provide for any further spousal maintenance.

• 17. TNL v TNK and another appeal and another matter [2017] 1 SLR 609 ("TNL v TNK")
• 18. See BJZ v BKA [2013] SGHC 149. In this case, the multiplier of 21.5 years calculated per the Ong Chen Leng formula was reduced to 16 years.
• 19. See, for example, NI v NJ [2007] 1 SLR(R) 75
• 20. See UBM v UBN [2017] 4 SLR 921, as recently approved by the High Court in WGE v WGF [2023] SGHCF 26
• 21. TNL v TNK
• 22. See s 28(1) MCA ‐ these are more commonly known as "joint lives orders"
• 23. [2018] EWCA Civ 727 ("Waggot v Waggot")
• 24. Some £3.7 million in 2014, compared to the wife's assumed net income of some £60,000 (see Waggot v Waggot at [20] and [24])
• 25. Ibid. at [24]
• 26. ADB v ADC [2014] SGHC 76 at [10]
• 27. See ATS v ATT [2016] SGHC 106
• 28. Waggot v Waggot at [5]
• 29. [2020] SGCA 8

Conclusion

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.³⁰ Had the Alla Rakshina case been heard in Singapore therefore, Mr Xanthopoulos, unless incapacitated, would not have been entitled to any maintenance whatsoever, whether interim or final. Luckily for Mr Xanthopoulos, his divorce was heard in the UK, and he (although not incapacitated by Singapore standards) received maintenance in the form of long term housing, and financial maintenance for a period of 4 years, from Madam Rakshina. Incidentally, as at the time of publication of this article, Mr 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 Madam Rakshina.³¹

Now that we have given an overview of the key financial ancillary issues, we now move on to what is often the core of a marriage: the children. In the next chapter, 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.

• 30. In Singapore, only a former wife or former incapacitated husband may seek spousal maintenance from their spouse under s 113 Women's Charter 1961. See also USA v USB [2020] 4 SLR 288. This position is to be contrasted with that in the United Kingdom, where either party is in principle entitled to seek maintenance from their former spouse (see s 23(1)(a), (b) and (c) MCA).
• 31. [2023] EWFC 158 (Decision dated 26 September 2023)

Josephine Chong, LLB Hons 2^nd Class, Upper Division, NUS Law (1989), Advocate & Solicitor Singapore

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 LLC, which can only be given upon knowledge of all circumstances.