Ang Teng Siong v Lee Su Min

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 29 April 2000
• Neutral Citation: [2000] SGHC 76
• Docket Number: Divorce Petition No 1455 of 1998 (Registrar's Appeals Nos 5051 and 5054 of
• Date: 29 April 2000
• Year: 2000
• Published date: 19 September 2003
• Plaintiff Counsel: Michael Hwang SC and Irving Choh (Wong Partnership)
• Citation: [2000] SGHC 76
• Defendant Counsel: Harry Elias SC and Foo Siew Fong (Harry Elias Partnership)
• Court: High Court (Singapore)
• Subject Matter: Family Law,Wife to retain membership,Using sale proceeds of previous matrimonial home to purchase current matrimonial home,Whether previous home intended as gift to both parties or to wife alone,Club membership,Division of matrimonial home,Refunding to husband sum paid for transferability of membership,Matrimonial assets,Whether court should trace source of funds for previous home to determine respective beneficial interests of parties in current matrimonial home,Divorce,Previous matrimonial home gift from wife's father

: There are two issues which I have to address in this judgment. The first, and main, issue relates to the division of the matrimonial home and the second to the amount which is payable by the husband to the wife in respect of the Singapore Island Country Club (`SICC`) membership. These matters are the subject of cross-appeals by the husband and wife from the decision of the learned district judge who adjudicated on the ancillary matters arising out of these divorce proceedings.

Matrimonial home

The matrimonial home in question is the house at 9 Mt Rosie Terrace (`Mt Rosie`). This was purchased in 1991 in the joint names of the parties. In the court below, the judge found that the direct identifiable contributions made by the parties to the purchase worked out to approximately 31.4% by the husband and 68.6% by the wife. Her Honour then took into account the fact that the parties had been married for 14 years and there was a young daughter in the care of the wife who had shouldered most of the responsibilities of providing the child`s needs. She concluded that it was just and equitable that the matrimonial home be sold and that the proceeds of sale after deduction of the outstanding mortgage loan and the costs incurred in the sale be divided between the parties with 75% going to the wife and 25% to the husband.

The husband`s appeal against the division is based on a challenge to the judge`s finding that his wife`s direct contribution amounted to 68% of the purchase price. He submitted that if the sources of the funds for the purchase were correctly attributed he would have contributed 69% of the price while the wife contributed the remaining 31%. If this submission is accepted, he is willing that the wife`s indirect contributions be valued at 19% so that each party would get a 50% share in the house. Both parties agreed that the assessment of the proportions in which they contributed to the purchase of Mt Rosie would depend on what interest each of them is held to have had in their first matrimonial home which was a flat in a development known as 16 Leedon Heights. The husband`s main argument was that they were each beneficially entitled to a half share in that flat.

As summarised by the judge, the relevant facts are as follows. The parties were married in January 1985. Between February 1985 and December 1986, they lived in New Zealand while the husband completed his pilot training there for the Singapore Air Force. In July 1986 while they were still in New Zealand, the Leedon Heights flat was purchased in their joint names by the wife`s father, a lawyer, who paid for the flat in full.

On their return to Singapore, the parties made Leedon Heights their matrimonial home and the husband paid for the property tax, utilities bills and conservancy charges. The flat was sold in 1991 and the net proceeds of sale received by the parties amounted to $615,130.15. The parties used the proceeds of sale to purchase a property at Jalan Haji Alias in their joint names but quickly changed their minds and sold it within months at a minuscule loss. They then went on to buy the Mt Rosie property at the price of $965,000.

The purchase of Mt Rosie was financed as follows:

(1) $541,897.86 from the proceeds of sale of Leedon Heights;

(2) $71,924 (being the total of two sums of $14,500 and $57,424 paid at different times) paid by the wife`s father;

(3) $237,392 paid by the husband towards the mortgage loan as at 14 May 1999.

The wife claimed that the total amounts paid under sub-paras (1) and (2) above had to be attributed to her because the Leedon Heights property was a gift to her alone and the other sums paid by her father had also been meant as gifts to her solely. The husband on the other hand contended that the Leedon Heights property was a gift to both of them and therefore since the profits from its sale had been channelled into Mt Rosie, each party was entitled to credit for half the amount so channelled.

The finding of the judge was that the Leedon Heights property was a gift from the wife`s father to his daughter only and therefore the profits from its sale belonged to her solely. That meant the wife had contributed a total sum of $613,821.86 (inclusive of the amounts paid by her father) towards the matrimonial property. The learned judge went on to find that the husband had contributed only in respect of his payments towards the mortgage loan and these contributions amounted to $281,086 when the interest that would have accrued on his CPF contributions was taken into account. This was the basis for her finding that the husband had contributed only 31.4% of the cost of Mt Rosie as against the wife`s contribution of 68.6%.

(i) Considering Mt Rosie on its own

The husband sought to have the judge`s finding on the beneficial interests in Leedon Heights in two ways. The first approach which the husband asked me to adopt was to consider Mt Rosie on its own, without tracing the source of funds for its purchase to the sale proceeds from the earlier matrimonial home. Counsel for the husband pointed out that Mt Rosie was in the parties` joint names and that the husband had undoubtedly a beneficial interest in Mt Rosie by virtue of his direct contributions towards its purchase price. The wife`s argument had been that the parties` financial contributions were unequal and to support that she had relied not on any direct financial contributions made by her but on the fact that part of the purchase price for Mt Rosie came from the sale proceeds from Leedon Heights and part from her father`s contribution to the purchase price for Mt Rosie. Her stand required the court to look into the source of funds for Leedon Heights and then find that her father had provided those funds as a gift for her whereas the husband`s approach was that the sale proceeds from Leedon Heights should be taken as belonging to the parties jointly since they originated from the sale of a matrimonial home in the parties` joint names.

Counsel`s authority for his submission was the decision of the Court of Appeal in Hoong Khai Soon v Cheng Kwee Eng [1993] 3 SLR 34 . The facts in that case were that the husband was originally a joint tenant of No 7 Bedok Rise with his mother. The mother had paid the entire purchase price of that property so the husband held his interest in it as a gift from her. Subsequently, the Bedok Rise property was sold and part of the sale proceeds were channelled into the acquisition of another property, No 1B Jalan Haji Salam, which was held by the husband and his brother as tenants-in-common. The trial judge had held that No 1B Jalan Haji Salam was not available for division because it was a gift from the husband`s family. The Court of Appeal overturned this holding and commented (at p 39) that:

The husband, as joint tenant of No 7 Bedok Rise, must be presumed to own half the beneficial interest in that property. No evidence is being put forward to rebut that presumption. It follows that he owned half the proceeds of sale.

Justice Lai Kew Chai who delivered the court`s judgment went on to discuss the manner in which No 1B Jalan Haji Salam had been acquired and concluded at p 40 of the report (in a passage on which counsel for the husband here particularly relied):

In the absence of documentary evidence or other evidence as to the figure, we are left to make a rough and ready approximation that the husband paid for half of No 1B Jalan Haji Salam as renovated. The money came from the proceeds of sale of No 7 Bedok Rise. Although the latter property was a gift, we do not think we should trace the source of funds for a purchase to its origin. It would be inimical to the concept of a matrimonial partnership if the source of funds for every asset acquired during marriage had to be shown to not originate from the generosity of a third party.

To a certain extent the above dictum has been overtaken by amendments to the Women`s Charter (Cap 353) (`the Act`) effected after Hoong Khai Soon `s case was decided. The present s 112 of the Act only applies to the division of those assets that constitute `matrimonial assets` and by sub-s (10) a matrimonial asset 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 that marriage by the other party or by both. Now, therefore, if one party receives a gift during the marriage from a third party that gift cannot be divided as a matrimonial asset upon divorce unless it is the matrimonial home or has been improved by the other party or both. 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. For the time being it appears that the matrimonial partnership stops short of extending to gifts received by either party.

In the case of the matrimonial home, the issue of whether the source should be investigated still exists because that is a matrimonial asset, however it was acquired, and also because the views expressed in Hoong `s case are inconsistent with the attitude taken by the Court of Appeal in a later case, Tham Khai Meng v Nam Wen Jet Bernadette [1997] 2 SLR 77 . In Tham `s case, the property for division was located at Brighthill Crescent. Each of the parties claimed that they had contributed about 80% of its purchase price while the other had only contributed only 20% of the price. In support of their respective claims, both parties referred to and relied on the proceeds of sale of an earlier property at Highland Walk. This had been acquired and sold in the joint names of the husband and wife but had been paid for almost entirely by the wife`s father.

Both parties made detailed arguments on the acquisition of Highland Walk and how their respective shares in it had to be calculated. The Court of Appeal held that since evidence had been...