Abx v Aby

• Jurisdiction: Singapore
• Judgment Date: 24 February 2014
• Date: 24 February 2014
• Docket Number: Divorce Transferred No 670 of 2006
• Court: High Court (Singapore)

ABX

Plaintiff

and

ABY and others

Defendant

[2014] SGHC 33

Andrew Ang J

Divorce Transferred No 670 of 2006

High Court

Family Law—Maintenance—Child—Husband choosing to remain unemployed while wife earning salary—Husband having higher potential earning capacity than wife and getting much greater proportion of sales proceeds of flat—Whether husband should pay for maintenance of child

Family Law—Matrimonial assets—Division—Consequential order to sell flat affecting share which was not matrimonial asset—Whether court was empowered to make such order—First Schedule para 2 Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Family Law—Matrimonial assets—Division—Indirect contributions made during period of reconciliation after grant of decree nisi—Whether such contributions should be taken into account

Family Law—Matrimonial assets—Gift—Husband claiming that his mother paid for premiums of life insurance policy owned by him—Whether payment of some premiums of continuing insurance policy amounted to gift of entire policy

Family Law—Matrimonial assets—Gift—Husband nominating wife as beneficiary of 50% of life insurance policy—Whether statutory trust had arisen in favour of wife—Whether husband's nomination of wife amounted to inter-spousal gift to wife—Section 73 Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed)

Family Law—Matrimonial assets—Wife claiming that husband paid for flat jointly owned by husband and his mother—Husband and his mother failing to disclose relevant bank statements—Whether adverse inference should be drawn

ABX (‘the Wife’) and ABY (‘the Husband’) were married on 13 August 1998 and had twin sons (collectively referred to as ‘the Children’). The Husband was the sole breadwinner while the Wife was a housewife. The couple were based in Hong Kong during the early years of the marriage. The Wife returned to Singapore with the Children in 2002 and the Husband returned in 2005 after he resigned from a well-paying position and has allegedly been unemployed since. The Wife filed her petition for divorce on 20 February 2006 and the decree nisi was granted on 23 January 2007.

The main property in dispute was a flat (‘the Flat’) that the Husband and his mother (‘the Mother’) had acquired as joint tenants in 1999. The Mother was the second defendant in this case. The Husband argued that the beneficial interest in the Flat wholly belonged to the Mother, while the Wife stated that it was the Husband who had made nearly all the payments. In the course of proceedings, a number of court orders were made against the Husband and the Mother to disclose relevant bank statements, but they failed to do so.

In 2002, the Mother acquired a car (‘the Car’) in her name under a hire purchase agreement. The Wife claimed, but the Husband denied, that the moneys used to pay for the Car actually belonged to the Husband.

The Husband was also the owner of a life insurance policy (‘the Insurance Policy’). The Mother was initially named the sole beneficiary of the Insurance Policy but the Husband later added the Wife as a beneficiary in equal shares with the Mother. The Husband claimed that the Insurance Policy was a gift from the Mother as she had bought the policy for him and paid all the premiums. He prayed that the court order the Wife to assign her interest as a beneficiary ‘back’ to the Mother. The Wife argued that she was the beneficial owner of a 50% share of the Insurance Policy, which share should be paid to her based on the surrender value of the Insurance Policy.

Also in dispute was a Tanah Merah Country Club ordinary membership (‘the TMCC Membership’) in the Husband's name, which the Husband claimed was a gift from his grandmother and the Mother before his marriage.

In relation to maintenance of the Children, the court had ordered joint custody as well as shared care and control of the Children, but the de facto situation was that each parent had the separate care and control of one child. Both the Husband and the Wife took the de facto situation for granted in their respective submissions on the issue. The Wife asked for the Husband to pay maintenance for the child under her care and control. The Husband, on the other hand, submitted that each party should maintain the child residing with him or her. He also highlighted the fact that he was unemployed, unlike the Wife, who was salaried.

The Wife also asked for a nominal sum of S$1 a month as maintenance for herself.

Held:

(1) Despite numerous court orders, the Husband and the Mother failed to produce relevant bank statements. An adverse inference was drawn against them that if the bank statements were produced, they would bear out the Wife's rather than the Mother's or the Husband's assertions as to the provenance of the funds for the purchase of the Flat: at [25] and [26] .

(2) The Mother and the Husband had not rebutted the presumption that two parties who contributed unequally to the purchase of a property in joint names intended to hold the property in their proportionate shares. Therefore, the Mother and the Husband's beneficial ownership of the flat was proportioned in the same way as their contributions, ie,14.4% and 85.6% respectively. The Husband's share of 85.6% of the Flat was a matrimonial asset as it was acquired during the marriage (and it was not a gift or inheritance): at [31] to [33] .

(3) The Car more likely belonged to the Mother than the Husband as it was in her name and she made the payments for its upkeep, despite entries she had made suggesting otherwise: at [38] .

(4) The Insurance Policy was a continuing contract and the Mother did not gift it in its entirety simply because she helped to start the Husband off. Even if the Mother had paid for some of the premiums, such payments were gifts of cash and not the gift of the Insurance Policy itself. In any event, the Husband was named as the life insured, owner and payor of the Insurance Policy, and he had not satisfied the court on the evidence that this was not the case: at [42] .

(5) Section 73 of the Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) (‘CLPA’) was applicable as the Wife was nominated as a beneficiary before the commencement of s 10 of the Insurance (Amendment) Act 2009. On principle, there should be no legal impediment to the creation of a statutory trust under s 73 of the CLPA over part of the Insurance Policy. Accordingly, a statutory trust had arisen in favour of the Wife over a 50% share in the Insurance Policy: at [44] and [47] .

(6) The Wife's 50% beneficial interest in the Insurance Policy was a matrimonial asset as it was, for practical purposes, an inter-spousal gift by the Husband to the Wife. However, this did not mean that the Wife would necessarily receive the whole of that interest when the matrimonial assets were divided: at [49] and [51] .

(7) The TMCC Membership was actually acquired by the Husband after marriage and an adverse inference was drawn that the payments for the membership fee likely originated from funds transferred by the Husband: at [53] and [54] .

(8) It was appropriate to recognise the indirect contributions of the parties to the marriage during a period of reconciliation after the date of the decree nisi, even if the attempt to mend the marriage was ultimately unsuccessful: at [62] .

(9) Adopting a broad brush approach, the Wife was entitled to a share of 25% of the matrimonial assets to reflect her indirect contributions to the marriage: at [63] .

(10) The valuation of the matrimonial assets in that case should be as at the date of the final ancillary hearing. The value of the Flat had increased substantially since the date of the decree nisi. It would not be just and equitable for the Husband and the Mother to exclude the Wife from the benefit of the Flat's appreciation in value when it was their own fault that the hearing for the final ancillaries was delayed: at [65] and [66] .

(11) Unless otherwise agreed, the Husband and the Mother were to sell the Flat in the open market and pay the Wife 25% of the Husband's 85.6% beneficial interest in the net sale proceeds of the Flat. Although the Mother's interest was not a matrimonial asset, under para 2 of the First Schedule of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed), the High Court had the general power, in any cause or matter relating to land where it appeared necessary or expedient,to order the land or any part of it to be sold and to give all necessary and consequential directions. The Mother, who had been joined as a defendant, would suffer no undue hardship as a result of such sale: at [67 (a) ] , [68] and [69] .

(12) As for the maintenance of the Children, although the Husband was unemployed, the court was not satisfied that that was not by his own choice. Given his substantially higher earning capacity and the fact that he would have much more of the net sale proceeds of the Flat than the Wife, he was better placed to pay for the maintenance of the child in the Wife's care and control than the Wife. The Husband was to pay S$2,500 to the Wife as maintenance for that child. That, however, was not to be taken as the court's endorsement of the de facto situation: at [73] and [74] .

ABP v ABQ [2009] SGHC 192 (refd)

Anthony Patrick Nathan v Chan Siew Chin [2011] 4 SLR 1121 (refd)

BG v BF [2007] 3 SLR (R) 233; [2007] 3 SLR 233 (refd)

Ladd v Marshall [1954] 1 WLR 1489 (refd)

Lim Geok Swan v Lim Shook Luan [2012] SGHC 18 (refd)

Lim Lina v Estate of Quick Cheng Gee, deceased [2012] 1 SLR 905 (refd)

Saniah bte Ali v Abdullah bin Ali [1990] 1 SLR (R) 555; [1990] SLR 584 (refd)

Tan Hwee Lee v Tan Cheng Guan [2012] 4 SLR 785 (refd)

Wan Lai Cheng v Quek Seow Kee [2012] 4 SLR 405 (folld)

Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157 (refd)

Conveyancing and Law of Property Act (Cap 61, 1994 Rev Ed) s 73 (consd) ;s 73 (1)

Insurance (Amendment) Act 2009 (Act 3 of 2009) s 10

...