ABX v ABY and others

• Jurisdiction: Singapore
• Judge: Andrew Ang J
• Judgment Date: 24 February 2014
• Neutral Citation: [2014] SGHC 33
• Court: High Court (Singapore)
• Hearing Date: 09 November 2012,21 January 2014,07 October 2013,15 August 2012,01 March 2013,18 February 2014,11 July 2013,10 February 2014,19 November 2013,07 January 2013,07 January 2014,05 December 2012
• Docket Number: Divorce Transferred No 670 of 2006
• Plaintiff Counsel: Kenneth Siow (Temple Counsel LLP)
• Defendant Counsel: Ellen Lee (Ramdas & Wong),the third defendant is unrepresented.
• Subject Matter: Family Law,Matrimonial assets,Division,Maintenance,Child
• Published date: 03 March 2014

Andrew Ang J:

This judgment is in respect of the ancillary matters in these long and involved divorce proceedings. The plaintiff, ABX (“the Wife”), married the first defendant, ABY (“the Husband”), on 13 August 1998. The second and third defendants are the Husband’s mother, ABZ (“the Mother”); and sister, ACA (“the Sister”), respectively. The Husband, aged 44, is a Singaporean. The Wife, aged 41, is a former Chinese national who acquired Singaporean citizenship in July 2005.¹ They have twin sons, now aged 12 (collectively, “the Children”).

An earlier order of court made on 1 March 2013 dealt with the custody and care and control of the Children. The matters which remain are the division of the matrimonial assets and the maintenance of the Wife and Children. I will deal with each in turn.

Background

The Husband was the sole breadwinner of the family during the marriage. Until his resignation in March 2005 for alleged ill-health,² the Husband was the vice-president of [L], the subsidiary company of a listed company [M] that oversaw the Hong Kong and South China operations of [M]’s group of companies. At the same time, he sat on the boards of eight of the companies in the said group. He stated that his last drawn income in 2005 was S$10,000 per month (exclusive of a post tied monthly allowance of US$2,800).³ He has been effectively unemployed since he quit.⁴

The Wife was a housewife during the marriage. The couple lived in Hong Kong in the early years of the marriage as the Husband was posted there for work from 1996 to 2005.⁵ She did the household chores with the help of a part-time maid,⁶ although the Husband sought to minimise her contributions in this regard.

In 2002, when the Children were five months old, the Wife returned to Singapore where she resided with the Mother at the latter’s house (“the Mother’s House”).⁷ The Wife claimed she was fully responsible for taking care of the household chores and attending to the Children, as well as the training and supervision of the maids (there being two, before one went home).⁸ The Husband contended that the Wife relied on the maids and the Mother to take care of the Children, and that the Mother was the person who ferried the Children around for their various activities.⁹ He also said there was no need for her to train the maids since the first maid, hired and already well trained by the Mother, had helped to train the new maid instead.¹⁰

The family continued to reside in the Mother’s House after the Husband returned to Singapore from Hong Kong in 2005. The marriage broke down not long afterwards and the Wife moved out on 14 February 2006 with the Children.¹¹ The Wife filed her petition for divorce on 20 February 2006 and the decree nisi was granted on 23 January 2007.

Division of matrimonial assets What are the matrimonial assets?

Section 112(10) of the Women’s Charter (Cap 353, 1997 Rev Ed) (“Women’s Charter”) defines a “matrimonial asset” as follows: (10) In this section, “matrimonial asset” means — (a) any asset acquired before the marriage by one party or both parties to the marriage — (i) ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter or transportation or for household, education, recreational, social or aesthetic purposes; or (ii) which has been substantially improved during the marriage by the other party or by both parties to the marriage; and (b) any other asset of any nature acquired during the marriage by one party or both parties to the marriage,

but does not include any asset (not being a matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage.

Broadly summarised, the Husband’s position was that there were no matrimonial assets worth dividing, as anything of value that he had in his name belonged in reality to the Mother or were gifts that were not subject to matrimonial division. He relied on the Mother (now aged 69¹²) to support him financially, being unable to work because of his poor mental state. Even when he was gainfully employed, he never earned as much as the Wife imagined and what money he had was expended on his family and the Wife’s allegedly wasteful ways. Each party should simply keep what were in their names.

The Wife disputed the Husband’s contentions. She submitted that the Husband had not fully disclosed his assets. He had drawn high salaries for more than a decade and was also involved in other big businesses. She also alleged that his claim of unemployment was a sham and that the Husband remained financially and economically productive. Even if he was not working, it was by choice.

The Wife maintained that the following four properties were matrimonial assets: The flat in [address redacted] (“the Flat”); The motor car used by the family (“the Car”); The Husband’s AIA Life Insurance Policy (“the Insurance Policy”); and The ordinary membership in Tanah Merah Country Club (“the TMCC Membership”).

In addition to the disputed properties above, the only other asset of significant value is the money in the Husband’s Central Provident Fund accounts (“the Husband’s CPF Accounts”). His last CPF contribution was made on 14 April 2005.¹³

The Flat

The Flat is by far the most valuable of the assets in dispute. It was acquired on 16 December 1999¹⁴ at the price of S$1,148,100 by the Husband and the Mother as joint tenants. The option fee of S$11,481 and the sum of S$103,329 payable upon the exercise of the option (together comprising 10% of the purchase price) were paid by cheques drawn on the Mother’s bank accounts. The Husband and the Mother also contributed S$100,000 and S$50,000 respectively towards the purchase price through withdrawals from their CPF accounts. Another S$428,224.63 was paid at the completion of the purchase by cheque from a DBS account in the joint names of the Mother and the Husband (“the DBS Joint Account”).¹⁵

In addition to the above, a DBS Mortgage Loan (“the Mortgage Loan”) of S$448,000 was taken out to pay the balance of the purchase price. Over time, S$57,490.10 of the Husband’s CPF funds was used towards monthly repayments of the Mortgage Loan.¹⁶ The Flat had an existing tenant and the rent collected was partly used to pay for the Mortgage Loan (as well as property tax, monthly maintenance fees, sinking funds, among other outgoings). The Mother claimed that the Husband was never given any share of the rent although the Husband had declared it as his income “for income tax purpose only”.¹⁷

The Mortgage Loan was for a term of 30 years but it was fully discharged on 1 February 2005, just five years into the loan.¹⁸ The Mother said she “only managed to find” copies of three of the cheques used to redeem the mortgage:¹⁹ one cheque for S$83,000 from a Citibank account in the joint names of the Mother and the Sister (“the Citibank Joint Account”); one cheque for S$60,000 from an OCBC account in the joint names of the Mother and the Husband’s grandmother (“the OCBC Joint Account”); and one cheque for S$24,664 from the DBS Joint Account. In addition to the three cheques for S$167,664 in total, the Mother said that she also made repayments “every now and then” in various sums in addition to the fixed monthly sums, but no evidence was provided as to such payments or the source of the funds used.²⁰

Both the Husband and the Mother asserted that the entire beneficial interest in the Flat belonged to the Mother, and that the Husband was merely holding his share in trust for the Mother. They maintained that the Mother paid the entirety of the purchase price, except for the Husband’s CPF contribution. Even so, the Husband characterised his CPF contribution as a “loan” to the Mother, which loan the Mother has repaid through her contributions to the family.²¹ The Mother claimed that it was never intended that the Husband should have a stake in the Flat, as it was always an investment for her retirement and that of her husband, if not for the latter’s untimely death on 25 October 1999.²² The Husband’s parents had decided to purchase the Flat in the joint names of the Mother and the Husband in order to utilise the Husband’s CPF money as the Mother was worried that there would be insufficient money in her CPF account.²³ The Mother chose the manner of holding in joint tenancy with the Husband for the sake of convenience only.²⁴ The Husband and the Wife never resided in the Flat.²⁵

The Wife asserted that although the ostensible source of the funds used to pay for the Flat came from bank accounts that were either in the Mother’s name or in joint names, the moneys used to pay for the Flat originated from the Husband. The Mother was only responsible for her S$50,000 CPF contribution towards the principal sum.²⁶ The Flat was purchased to be the couple’s matrimonial home, but after his father’s death, they decided instead to live with the Mother to keep her company and to take care of her.²⁷

In support of the Wife’s contention that the moneys for the purchase originated from the Husband, counsel for the Wife, Mr Kenneth Siow (“Mr Siow”), referred to evidence that indicated that the Husband had ample means and the money to pay for the Flat by himself. He highlighted that there were a number of unexplained transfers in the Husband’s Hongkong Shanghai Banking Corporation Limited account (“the HSBC Account”), such as the deposit of a total sum of S$147,896.13 for the month of September 2003 alone. The HSBC bank statements from September 2003 to April 2005 showed that the Husband had withdrawn a total of S$1,002,913.90 for the 22-month period. This indicated that the Husband had substantial sums of moneys entering the HSBC Account from undisclosed sources. Mr Siow submitted that these unexplained withdrawals were...