ANJ v ANK

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 07 July 2015
• Neutral Citation: [2015] SGCA 34
• Date: 07 July 2015
• Docket Number: Civil Appeals No 102 and 103 of 2014
• Published date: 11 July 2015
• Plaintiff Counsel: Johnson Loo Teck Lee (Drew & Napier LLC)
• Hearing Date: 12 March 2015
• Defendant Counsel: Koh Tien Hua and Carrie Gill (Harry Elias Partnership LLP)
• Court: Court of Appeal (Singapore)
• Subject Matter: Matrimonial Assets,Maintenance,Wife,Family Law,Child,Division

Chao Hick Tin JA (delivering the grounds of decision of the court): Introduction

Civil Appeals No 102 and 103 of 2014 (“CA 102/2014” and CA 103/2014”) were two related appeals filed by the husband (“the Husband”) against the orders made by the High Court judge (“the Judge”) in relation to the division of matrimonial assets and maintenance for the wife (“the Wife”) and children following the grant of an interim order for divorce. The written grounds of the Judge are reported at ANJ v ANK [2014] SGHC 189 (“the GD”).

CA 102/2014 was an appeal by the Husband against the Judge’s grant of an interim maintenance (by way of Summons No 10876 of 2013 (“SUM 10876/2013”)) on 22 April 2014 in favour of the Wife, pending the final determination of the ancillaries. CA 103/2014 is an appeal against the Judge’s final orders made on 29 May 2014 following the hearing of the ancillary matters, where the Judge also made his final order on the Wife’s maintenance which superseded the interim maintenance order. The Husband is content to have his appeal against the interim maintenance order (ie, CA 102/2014) subsumed under CA 103/2014. Thus, hereinafter, we will refer to the two appeals as one single appeal. At the conclusion of the hearing, we allowed the Husband’s appeal in part, the main point being to vary the Judge’s ratio for the division of matrimonial assets. We now give our reasons.

Background

The parties were married on 29 September 2002. The marriage lasted about 9 years before it broke down. The Husband filed for divorce on 2 February 2012 and the Wife filed a counterclaim on 19 April 2012. Interim Judgment was granted on 30 January 2013.

Two daughters were born to the couple. The elder, A, born on 28 July 2004, was 10 years old at the time of the ancillaries hearing. The younger, B, born on 13 November 2006, was 8 years old at that time. Both were attending a primary school in the western part of Singapore.

The parties managed to resolve issues concerning custody, care, control and access amicably through mediation. A Consent Order dated 12 June 2013 gave the parties joint custody over the children, along with care and control to the Wife. The remaining issues concerning the division of matrimonial assets and maintenance were left to be decided by the court and the orders made gave rise to the appeal.

At the time of the hearing of the ancillary matters, the Husband was 40 years old and the Wife was 38 years old. The Husband was a Prisons Officer with the Singapore Prisons Service. The Wife was a Product Manager with Manulife Financial.

The parties did not controvert the pool of matrimonial assets available for division and distribution. We summarise them as follows:

Asset	Value
Matrimonial home	$1,030,434.25
Value of joint account	$8,348.01
Value of assets in Husband’s sole name	$635,063.53
Value of assets in Wife’s sole name	$377,982.82
Total:	$2,051,828.61

The decision below Division of matrimonial assets

The Judge found, on the evidence before the court, that the Husband’s financial contributions towards the acquisition of the matrimonial assets were 60% and the Wife’s were 40%. Even though the Judge found that the Husband had “played a part” in homemaking and parenting, in his view, the Wife was the primary homemaker and caregiver of the children, of whom, B was at risk of suffering from Attention Deficit Hyperactivity Disorder (“ADHD”) and/or Oppositional Defiant Disorder (“ODD”). For her indirect contributions, the Judge awarded her an additional 20% of all the matrimonial assets, and arrived at an apportionment of 60:40 in favour of the Wife.

In determining the mode of distributing the assets, the Judge wanted (and we thought there was some sense in that), as far as possible, each party to retain assets held in their respective names. As the assets in the Wife’s sole name were less than those of the Husband’s, the Judge awarded her an extra 22.79% share of the matrimonial home, on top of the 60% share she had as a result of her direct and indirect contributions, thereby giving her a total 82.79% share of the matrimonial home. He further gave the Wife an option to acquire the remaining 17.21% share belonging to the Husband (see [4.1]–[4.3] of the oral judgment annexed to the GD). The Judge intended that she retain the matrimonial home so that she and the children would have a roof over their heads.

Subsequently, the parties appeared before the Judge again during which counsel for the Husband registered his dissatisfaction with the mode of asset distribution adopted by the Judge, chiefly because the adjustment in the parties’ respective share of the matrimonial home, in effect, reduced his share of the matrimonial home while at the same time enlarged his share of the CPF account under his name. The Husband argued that the adjustment was to his disadvantage as the assets in his CPF account were less liquid than the additional share of the matrimonial home received by the Wife. However, the Judge was not minded to rescind his order as this point was not brought to his attention before he delivered the oral judgment; neither did the Husband request further arguments in this regard.

The CPF account point aside, the Judge also noted the Husband was dissatisfied with his decision not to pro-rate the quantum of the retirement funds under the Husband’s sole name. Amongst other reasons expressed at [29] of the GD, the Judge was also not minded to take that into consideration because this issue was not raised before him.

Maintenance

Given that the Wife was gainfully employed earning a monthly salary of $6,810 and therefore fully capable of maintaining herself, the Judge found that there was no need to award her a substantial sum of maintenance. He nevertheless awarded her $1 monthly maintenance to leave the window open for the court to increase the quantum in the future should circumstances justify an increase.

As for the children’s expenses, the Judge ordered the Husband and the Wife to bear 65% and 35% of their expenses respectively. He arrived at this proportion by comparing the Husband’s monthly income of $12,700 against the Wife’s monthly income of $6,810.

The children’s expenses were ascertained to amount to $5,355 in total, comprising the following components: Living expenses: the quantum of the children’s living expenses was very much disputed. The Judge found in favour of the Wife for some items, but for other items he reduced the specific quantum to more reasonable figures. Accommodation expenses: the Judge regarded two-thirds of the Wife’s accommodation expenses as the children’s accommodation expenses. Expenses of a full-time maid: the Judge regarded the monthly expenses of a full-time maid as a component of the children’s expenses.

The Judge further noted that in July 2013 the Wife filed an application for interim maintenance pending the hearing of the ancillary matters, and the application was allowed on 22 April 2014 with an order for the Husband to pay $1,200 per month to the Wife starting 1 May 2014. Following the resolution of the ancillary matters, the Judge backdated the children’s maintenance orders to commence on 1 July 2013.

Issues

The main focus in the appeal was whether the Judge erred in the division of the matrimonial assets. The remaining issues related to whether the Judge erred in the maintenance orders granted, and whether the Judge erred in ordering the Husband to bear the costs of the interim maintenance application.

Division of matrimonial assets Applicable legal principles

It is now axiomatic that the court’s power to divide matrimonial assets must be exercised in broad strokes, with the court determining what is just and equitable in the circumstances of each case. The philosophy underlying what is known as the “broad-brush approach” is that mutual respect must be accorded for spousal contributions, whether in the economic or homemaking spheres, as both roles are equally fundamental to the well-being of a marital partnership (NK v NL [2007] 3 SLR(R) 743 (“NK v NL”) at [41]). Much has been said about the importance of adhering to this rationale, and we do not propose to reprise our past comments in this regard.

We are however cognisant that it is not uncommon for lower courts, in exercise of their discretion under s 112 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the WC”), to start from the proportions of the spouses’ financial contributions to the acquisition of matrimonial assets before adjusting those proportions by giving the spouse who had made more significant non-financial contributions an “uplift” (also known as a “mark-up” or “premium”) to those proportions. This court has on past occasions disapproved of the use of the “uplift” methodology as it is inconsistent with the rationale of the broad-brush approach as well as the underlying spirit of s 112 of the WC. Objections to this approach were stated in NK v NL at [22]–[29] and Pang Rosaline v Chan Kong Chin [2009] 4 SLR(R) 935 (“Pang Rosaline”) at [23] and more recently, we reiterated the same in Tan Hwee Lee v Tan Cheng Guan and another appeal and another matter [2012] 4 SLR 785 (“Tan Hwee Lee”) as follows:

84 In our view, the Husband could arrive at such an unreasonably low figure to be awarded to the Wife – and even cite cases that appear to support his view – because his suggested approach to the division of matrimonial assets is fundamentally flawed. The Husband's approach (which has also filtered into his interpretation of the cases he cites) is one where the direct financial contributions of a spouse are first calculated, before the value of non-financial contributions is added as a form of "uplift" to the former figure. This translates into the Wife – who did not work and therefore did not provide any direct financial contribution – being awarded, as a starting point,...