AFS v AFU
Judge | Andrew Ang J |
Judgment Date | 07 March 2011 |
Neutral Citation | [2011] SGHC 52 |
Citation | [2011] SGHC 52 |
Docket Number | Divorce Transfer No DT 626 of 2006 and Summons No 5789 of 2010 |
Published date | 14 March 2011 |
Hearing Date | 25 November 2010,01 July 2010,03 September 2010,02 September 2010,07 July 2010 |
Plaintiff Counsel | Foo Siew Fong (Harry Elias Partnership) |
Date | 07 March 2011 |
Defendant Counsel | Suchitra Ragupathy (Rodyk & Davidson LLP) |
Court | High Court (Singapore) |
Subject Matter | Family Law |
The parties, whom I shall refer to as husband and wife, were married on 15 January 1993 in Budapest, Hungary. The wife is Hungarian and the husband is Canadian. Both are Singapore permanent residents. There are two children of the marriage, both sons, born in 1995 and 2000. In or about 2001 to 2002, the husband left the family to live with another woman, [D]. The parties entered into a Deed of Separation (“the Deed”) on 19 February 2003. The husband filed the divorce petition on 16 February 2006, and the decree
The ancillary hearings have been long and tumultuous, involving numerous summonses taken out by both parties, and spanning more than four years. The ancillary orders made by me on 25 November 2010 were as follows:
The husband has appealed against (i) and (k) of my order above. I now give my reasons for my order that the wife is to receive 25% of the matrimonial assets, consisting of S$985,000 and 11.5 million [G] Commodities shares.
Background The husband is presently the managing director of [G] Commodities Pte Ltd (“[G] Commodities”). [G] Commodities is a company listed on the Singapore Stock Exchange. The wife is an associate medical director with [H] Development Pte Ltd. As mentioned earlier, the husband had left the family around 2001 to 2002 for [D] and parties subsequently decided to enter into the Deed. The Deed was comprehensive and included all ancillary matters such as custody, care and control of the children, maintenance for the children and the wife, as well as division of matrimonial assets. More crucially, cl 11 of the Deed read:
Both parties agree that asset(s) acquired by either party from the date of this Deed will remain as asset(s) of the acquiring party.
At the time of execution of the Deed, the husband was the managing director of [J] Asia Pte Ltd (“[J] Asia”). However, subsequent to the execution of the Deed there was a buy-out of [J] Asia by [K] Holdings Pte Ltd (“[K] Holdings”) which was completed on 12 February 2004. The husband remained as the managing director of [J] Asia. As a result of the buy-out, the husband received a stock option dated 28 June 2004, which provided that the husband could acquire 25% of the current issued and paid up share capital of [J] Asia for S$1 within the next three years from the date of the option, provided that if after the exercise of the option, [J] Asia’s annual audited consolidated profit and loss accounts reflected a loss for three consecutive financial years, the husband would have to pay $500,000 for his 25% stake. The husband exercised the option on the very same day. [J] Asia was later renamed [K] Asia Pte Ltd (“[K] Asia”).
[K] Holdings was a major shareholder of [G] Commodities. Subsequently, on 10 July 2006, both [K] Holdings and the husband sold their shares in [K] Asia to [G] Commodities. The husband received 11.5 million [G] Commodities shares, estimated to be worth around S$12m, and S$985,000 in consideration for his 25% stake in [K] Asia.
As the buy-out of [J] Asia and the transfer of the shares to the husband occurred after the execution of the Deed, the husband’s assets consisting of 11.5 million [G] Commodities shares and S$985,000 (“the husband’s assets”) would therefore
The question of when the issue of a buy-out of [J] Asia arose became pertinent in order to ascertain when the husband’s assets were acquired, and whether they were acquired by the husband’s efforts expended during the marriage or after separation. The Family Court gave orders on 4
The governing provision with regard to the division of matrimonial assets is s 112 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Act”):
112.―(1) The court shall have power, when granting or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage, to order the division between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset
in such proportions as the court thinks just and equitable .
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[emphasis added in bold italics]
For a start, it should be noted that s 112(10)
It is clear that the [G] Commodities shares and $985,000 fell within s 112(10)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.
It is evident from s 112 of the Act that in deciding on the division of matrimonial assets the court must take into account all relevant matters but has the discretion in weighing the relevant factors to come to a just and equitable division for both parties. Ultimately, the court has the power and the discretion to decide what is just and equitable and arrive at a fair conclusion for both parties.
Was the Deed binding?Before me, the husband submitted that the Deed was prepared and drafted by the wife’s solicitors, M/s Rodyk & Davidson, based on the wife’s instructions. Further, both parties had the benefit of competent and independent legal advice as to the terms and effects of the Deed as affirmed in Recital 1.3 of the Deed. As such, the husband submitted that as the wife was the one who had requested for the Deed to be entered into, it was unfair for her to argue to...
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