AAE v AAF

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 28 April 2009
• Neutral Citation: [2009] SGHC 104
• Docket Number: Divorce Transferred No 4091 of 2006
• Date: 28 April 2009
• Year: 2009
• Published date: 13 May 2009
• Plaintiff Counsel: Loh Wai Mooi (Bih Li & Lee)
• Citation: [2009] SGHC 104
• Defendant Counsel: Tay Choon Leng John and Gregory Fong (John Tay & Co)
• Court: High Court (Singapore)
• Subject Matter: Whether property purchased with proceeds of pre-marriage assets considered matrimonial assets,Whether husband liable to maintain non-biological child whom he had treated as child of family,Whether presumption of legitimacy in s 114 Evidence Act (Cap 97, 1997 Rev Ed) operated where paternity not in dispute,Ancillary powers of court,Family Law,Family court

28 April 2009

Belinda Ang Saw Ean J:

1 The plaintiff began divorce proceedings against the defendant on 12 September 2006. For convenience, the plaintiff, [AAE], is referred to hereinafter as “the Husband” and the defendant, [AAF], as “the Wife”. Interim Judgment was granted on 3 April 2007. The parties were married on 22 February 1994. During the marriage, the Wife gave birth to a son (“the Child”).

2 The ancillary orders made on 24 September 2008 were as follows:

(a) The division of the matrimonial assets shall be in the following ratio:

(i) In respect of the matrimonial home at [XXX] (“the [XXX] property”), 75% to the Husband and 25% to the Wife;

(ii) In respect of the other matrimonial assets comprising (a) the property at [YYY] (“the [YYY] property”), (b) assets in the Husband’s name in the total sum of $197,490 and (c) assets in the Wife’s name in the total sum of $965,040, 85% to the Husband and 15% to the Wife.

(iii) Arising from the division of the matrimonial assets in the ratios ordered, the Wife is to pay the Husband the sum of $402,760.50;

(b) (i) In lieu of payment of $402,760.50 from the Wife to the Husband, the Wife shall transfer to the Husband all her rights, title and interest in the [XXX] property and the [YYY] property.

(ii) The Husband shall bear the cost and expenses relating to the transfer of the aforesaid two properties.

(iii) The aforesaid transfers are to be effected by the Wife in favour of the Husband within 4 months from 24 September 2008.

(c) The Wife shall withdraw by 22 October 2008 the caveats lodged by her in respect of the [XXX] property and the [YYY] property.

(d) No maintenance is payable by the Husband to the Wife.

(e) No maintenance is payable by the Husband to the Wife for the maintenance of the Child.

(f) The Wife shall have custody, care and control of the Child.

(g) The Wife shall move out of the [XXX] property within four months from 24 September 2008.

(h) The Wife shall pay the Husband costs fixed at $8,000

3 The Wife has appealed against the ancillary orders. I now publish the reasons for my decision.

Matrimonial assets

(i) The [XXX] and [YYY] properties

4 The [XXX] property was the matrimonial home. It was purchased in 1994, shortly after the marriage. According to the Husband, it was the parties’ first and only matrimonial home. That assertion was not disputed by the Wife in any of her three affidavits. Nevertheless, at the hearing, the Wife tried without evidence to take a contrary position through her counsel, Mr Gregory Fong. The [YYY] property was acquired by the Husband in 2000. It was not disputed by the Wife that both properties were paid for in full by the Husband. The matrimonial home was bought with the Husband’s CPF moneys, cash savings and a housing loan. The [YYY] property was bought for $1.3m and was wholly paid for by the Husband with his share of the sale proceeds of a property at [ZZZ] (“the [ZZZ] property”).

5 Counsel for the Husband, Ms Loh Wai Mooi, argued that both the [XXX] property and the [YYY] property were not matrimonial assets as they were largely paid for with proceeds from the sale of pre-marriage assets. Specifically, the pre-marriage assets comprised the [ZZZ] property, which was acquired by the Husband and his brother in 1988, and his share of [AAA] (“the [AAA] property”). Additionally, Ms Loh argued that there had been no substantial improvement of either property during the marriage by either the Wife or by both parties.

6 The Husband’s father died in 1990 and he and five others inherited the [AAA] property. The Husband and his brother then took a loan from Citibank to buy over the other beneficiaries’ shares in the [AAA] property. That was in 1990. In 1994, the Husband and his brother sold the [AAA] property for $3.7m. The sale proceeds enabled the two brothers to fully discharge the loans taken by them for the purchase of both the [AAA] property and the [ZZZ] property. In the case of the Husband, this was done prior to his marriage to the Wife.

7 The brothers sold the [ZZZ] property in a collective sale in 1999. The next year, with his share of the sale proceeds of some $3m, the Husband went ahead to redeem the mortgage on the [XXX] property. He also bought the [YYY] property outright. I must mention that both properties were held in the names of the Husband and the Wife as joint tenants.

8 Ms Loh’s argument centred on the authority of Chen Siew Hwee v Low Kee Guan (Wong Yong Yee, co-respondent) [2006] 4 SLR 605 (“Chen Siew Hwee”), where Andrew Phang J (as he then was) enunciated the law on the tracing of gifts acquired during the course of a marriage (at [57] – [58]):

According to Judith Prakash J in the Singapore High Court decision of Ang Teng Siong v Lee Su Min [2000] 3 SLR 55 … at [11], where a spouse receives an asset by way of gift or inheritance during the course of the marriage, “the owner of the gifted asset would have to show that it originated from the generosity of a third party in order to prevent it from being divided upon divorce” …[W]here funds derived from a gift are used to acquire a new asset, this new asset will qualify as an “asset … acquired … by gift” within the qualifying words unless it can be shown that the donee (here, the husband) has demonstrated an intention that the new asset should be considered part of the pool of matrimonial assets. Put in another way, the new asset will be “acquired … by gift” if the donee intends the new asset to assume the same nature of the original asset, ie, that of being a gift.

[Emphasis in original]

9 Ms Loh drew an analogy between gifts received by a spouse during marriage and assets purchased utilising proceeds from the sale of pre-marriage assets. It was accordingly submitted that “the pre-marriage character of the [old] asset was retained in the new asset”. For that reason, Ms Loh contended, the [XXX] property and the [YYY] property were to be excluded from the pool of divisible assets.

10 The [XXX] property was the matrimonial home, and as such it is irrefutably a matrimonial asset. As for the [YYY] property, the reasoning advanced by Ms Loh is difficult to appreciate. Gifts from third parties and assets purchased with money obtained from the sale of pre-marriage assets (not gifted) are two completely different matters. Even taking, for the sake of argument, a gift analysis, the relation of the original gifted asset here – the [AAA] property – to the eventual two properties sought to be excluded from the matrimonial asset pool is, at best, remote. In the first place, only one-sixth of the [AAA] property was gifted to the Husband. At best only this one-sixth share, for the sake of argument, is possibly in issue but even then it is too negligible to be counted. In addition, the [XXX] property was not entirely paid for with proceeds from the sale of the [ZZZ] property and the [AAA] property (see [4] above). The [YYY] property was purchased with proceeds from the sale of the [ZZZ] property, which was in turn purchased from the proceeds from the sale of the [AAA] property (see [6] & [7] above). The entire connection is arguably convoluted. The most important fact was that the Husband registered the Wife as a joint tenant. The Husband’s conduct – permitting the Wife’s name to be included as a joint tenant - was strong evidence of the Husband’s intention not to have the two properties remain as non-matrimonial assets. His intention was to “integrate” his pre-marriage assets (including inheritance) into the pool of matrimonial assets. In this regard it is worth reiterating the rest of Phang J’s observations at [57] in Chen Siew Hwee:

In the context of the precise factual matrix in the present proceedings, it is clear, in my view, that the assets derived from the shares, albeit assuming different forms from the original gift, ie, the shares, nevertheless retained the essential quality of being gifts. It would be quite a different situation if the husband had utilised proceeds from the shares to purchase gifts for the wife or to otherwise utilise such proceeds for and on behalf of the family. [Emphasis in the original]

(ii) Other assets in the Husband’s name

11 Ms Loh argued that assets in the sole name of the Husband were not matrimonial assets. On the other hand, the Wife claimed a share of those assets. The main issue was whether the assets in question were “matrimonial asset[s]” within the meaning of s 112(10) of the Women’s Charter.

12 The Husband is a partner of the family business called [LY] Trading (“[LY] Trading”) which was started by the Husband’s father in 1983. The Husband’s partner is his brother and each owned an equal share in the business. It is not disputed by the Wife that the Husband works for the business and she had played no part at all in the business. The business premises of [LY] Trading were bought by the Husband’s father but it was later given in 1983 to the Husband and his brother for the business. The Wife accepted that the Husband’s share in the property was a gift from his late father and it was made before the marriage. I accepted Ms Loh’s submissions that the business and its physical premises were not matrimonial assets within the meaning of s 112(10).

13 At one time, the Husband and his brother owned as joint tenants three units in [GW] Building. They were purchased in 1985. One unit was sold before the marriage and the sale proceeds were utilised to repay the loans for the purchase of the units. A second unit (#[xx-xx]) was sold in 2007 leaving the third and last unit (#[yy-yy]) still in the joint ownership of the brothers. The Wife accepted that the three units were pre-marriage assets and they were never improved substantially during the marriage as required by s 112(10). I accepted Ms Loh’s submissions that the units were not matrimonial assets. The basis of the Wife’s claim was premised on a complete misconception that as long as the property was sold during the marriage, she was entitled to a share of...