A recent divorce case has caught the attention of the local mainstream media, as well as a local non-profit women’s rights group and not a few bewildered legal practitioners. In the course of the proceedings, a question was raised about the wife’s physical appearance in determining the amount of money which the wife was to receive in maintenance (or, more popularly, “alimony”), and the resulting judgment drastically reduced the alimony to just 5% of what was asked. A statement defending the judgment was presented to the Court as to why the wife’s good looks would come into play in the decision, saying, “This was not an irrelevant question because the court can take into account the chances of re-marriage when exercising its discretion in ancillary issues… ”.

Prior to this, I’ve never encountered a case where the question of whether “the wife was attractive” had been raised by a court in the course of deciding alimony. The article should have also raised enough eyebrows among the public as well, enough for my “layman” administrator to pick it up as it was published on online share on our Facebook page.

It must be said, the question itself is controversial for good reason. That a divorcee’s looks should be taken into consideration for her own future prospects of re-settling down with another – and consequently as grounds for deciding how much money she should be getting from her previous partner as a result – is not without merit. The moral implications of such evaluation, however, verily speaks of bias against a certain demographic of women whom psychological studies have shown usually enjoy rather favourable dispositions whilst dealing with society.

Looking at the relevant section in the Women’s Charter, one notes that:

114. —(1) In determining the amount of any maintenance to be paid by a man to his wife or former wife, the court shall have regard to all the circumstances of the case including the following matters:

1. the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
2. the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
3. the standard of living enjoyed by the family before the breakdown of the marriage;
4. the age of each party to the marriage and the duration of the marriage;
5. any physical or mental disability of either of the parties to the marriage;
6. the contributions made by each of the parties to the marriage to the welfare of the family, including any contribution made by looking after the home or caring for the family; and
7. in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage that party will lose the chance of acquiring.

(2) In exercising its powers under this section, the court shall endeavour so to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other.

Looking at the particular factors highlighted, one might be excused for thinking that the people drafting this piece of legislation wanted to focus on financial assets, and not physical attractiveness.

Even considering “the chances of remarriage”, should one not consider pitting an attractive 37-year-old divorced mother with a 12-year-old son in tow against, say a 26-year-old divorcee with reasonably comparable physical attributes and no children?

Here’s the inevitable rub: this seemingly far-fetched interpretation of a “circumstance of the case” to be regarded by the court in determining maintenance does bring up a very liquid point which the law has up till now found awkward at best in addressing. In the case of ancillary matters, how do you put a monetary value – positive or negative – on such subjective entities as beauty, sex appeal, or charm? And what about honour, trust and love? Should the factors leading to the breakdown in marriage also be quantified, such as boredom, frigidity, selfishness, or hate?

Should this be the way courts in future consider the issue of maintenance?