Anthony Patrick Nathan v Chan Siew Chin

• Jurisdiction: Singapore
• Judgment Date: 22 September 2011
• Date: 22 September 2011
• Docket Number: Divorce Transferred No 342 of 2007
• Court: High Court (Singapore)

Anthony Patrick Nathan

Plaintiff

and

Chan Siew Chin

Defendant

[2011] SGHC 210

Quentin Loh J

Divorce Transferred No 342 of 2007

High Court

Family Law—Custody—Wife asking for care and control of daughter who already resided with her—No actual dispute between parents over any matter of weight relating to upbringing of daughter—Whether no order as to custody and care and control should be made

Family Law—Maintenance—Wife receiving generous apportionment of matrimonial assets in the circumstances—Whether wife should be paid maintenance

Family Law—Matrimonial assets—Division—Applicable principles for determining just and equitable apportionment of assets

Family Law—Matrimonial assets—Division—Determination of operative date for determination of matrimonial assets

Family Law—Matrimonial assets—Division—Distinction between jointly owned assets and separately owned assets—General principles for determining valuation dates for jointly owned assets and separately owned assets

The husband (‘the Husband’) and wife (‘the Wife’) were married for 25 years and had two children. The Husband moved out of the matrimonial home in January 2005. Interim judgment of divorce was granted in October 2007 and the ancillary matters were heard in January 2011. The ancillary matters pertained to the following: (a) the custody and care and control of the children; (b) the division of matrimonial assets; and (c) the maintenance of the Wife and the children.

The son (‘the Son’) had turned 21 by the time of the ancillary matters hearing and the daughter (‘the Daughter’) was to turn 21 soon after it. The Daughter was living in the matrimonial home with the Wife. The Wife sought care and control of the Daughter while the Husband asked for no order to be made.

The parties jointly owned the matrimonial home and separately owned a number of other assets. There were disputes over whether certain of the separately owned assets were matrimonial assets. Notable among the disputed assets was a private condominium in Malaysia (‘the Malaysian Property’) which the Husband had acquired before the interim judgment of divorce was granted. He contended that this was not a matrimonial asset as it had been acquired independently from the Wife as his retirement home after he started sleeping separately from her in mid-2002. Also noteworthy were some of the Husband's Great Eastern insurance policies (‘the Great Eastern policies’) , which he had surrendered after the interim judgment of divorce was granted. The surrender proceeds were reinvested into managed funds.

The Husband asked that the matrimonial home be sold and the sale proceeds be apportioned 80:20 in his favour. He also asked for each party to largely retain their own assets. The Wife asked for the entire matrimonial home on account of her direct and indirect contributions. Failing that, she asked for 65% of the matrimonial home. She also asked for 50% of the Husband's assets.

At the ancillary matters hearing, the Wife's solicitor was directed to obtain his client's clarification on, inter alia, the surrender values of her insurance policies and an entry in the ‘Trading and Profit & Loss Account’ of one of her businesses (viz, Baby Breeze.Biz Pte Ltd) .

Finally, regarding maintenance, the Wife stated that her ‘income capacity’ was reasonably estimated at a monthly sum of $4,000 to $5,000. She sought a monthly maintenance sum of $2,500 as maintenance for her and the Daughter.

Held, making the consequential orders:

(1) The issue of custody, care and control was no longer relevant to the Son as he had reached majority by virtue of turning 21 in May 2010: at [10].

(2) The Daughter was already residing with the Wife and the Husband appeared to find that acceptable. There was no actual dispute between the parents over any matter of weight relating to the Daughter's upbringing. There was no need to risk the possibly negative psychological effect that might have come about if the Wife had ‘won’ and the Husband had ‘lost’ the custody suit. Therefore, the court made no order as to custody and care and control: at [13].

(3) For the division of matrimonial assets, the court opted for the ‘global assessment methodology’ as there was no need for the separate apportionment of different classes of matrimonial assets. This would achieve a just and equitable apportionment with minimal reshuffling of the matrimonial assets: at [15].

(4) As the hearing of the ancillary matters took place more than three years after the interim judgment of divorce was granted, it was sensible in the factual circumstances to apply the date of the interim judgment of divorce as the operative date for the determination of matrimonial assets: at [20].

(5) Matrimonial assets could broadly be divided into jointly owned assets and separately owned assets. The former might include the matrimonial home, as well as joint investments in shares or other immovable property. The latter were held in the sole name of either party and might include the parties' own immovable property, personal bank accounts or investment accounts: at [21] and [22].

(6) As a general principle, jointly owned assets should be valued at the date of the judgment on ancillary matters since the parties themselves had implicitly agreed to keep those matrimonial assets to that date: at [23].

(7) On the other hand, separately owned matrimonial assets should generally be valued at the date on which the matrimonial assets were determined. A party should neither be exposed to the risk of gains or losses flowing from the other party's separate acquisition of new assets (funded out of existing matrimonial assets) , nor be exposed to the risk of gains or losses flowing from the other party's continued holding of the existing separately owned matrimonial assets. A party should not need to expressly disassociate itself from a particular asset so as to avoid the risk of gains or losses flowing from it: at [25], [26]and [28].

(8) The aforesaid rules regarding the dates for the valuation of jointly and separately owned matrimonial assets should only be applied generally as the starting points for consideration. There were foreseeable situations in which it might be inequitable to adhere to them. Ultimately, the date on which matrimonial assets should be valued was up to the court's discretion, just as it was when it came to the operative date on which the pool of matrimonial assets should be determined. What was critical was to arrive at a ‘just and equitable division’ in all the circumstances in each particular case: at [29].

(9) The operative date for the determination of whether the Malaysian Property specifically was a matrimonial asset was the date of the interim judgment of divorce and not an earlier date. It was therefore a matrimonial asset. First, the Husband was still living under the same roof as the Wife when he bought the Malaysian Property. Perhaps more pertinently, setting an earlier operative date for the Malaysian Property specifically would have made no real practical difference in this case anyway and it was neater to have one operative date for all the matrimonial assets: at [37] and [38].

(10) It would not have been fair to expose the Wife to the risk of gain or loss which the Husband unilaterally took in reinvesting the surrendered Great Eastern policies into certain managed funds which he picked. Therefore, in line with the general principle that separately owned matrimonial assets should be valued at the date on which the matrimonial assets were determined (see holding (7) above) , it seemed most fair to value all the Great Eastern policies as closely to the date of interim judgment as possible: at [42].

(11) Applying the relevant principles regarding the dates on which matrimonial assets should be determined and valued, the pool of matrimonial assets was valued at $4 m: at [60].

(12) At the ancillary matters hearing, counsel for the Wife candidly conceded that the Husband had made more financial contributions to the family than the Wife. The Husband did not seem to be the irresponsible father which the Wife had made him out to be. He had paid for the matrimonial home's utilities long after the interim judgment of divorce had been given. He had also made multiple fund transfers to the children, who had written affectionate cards to him: at [76] to [78].

(13) Taking a general view on the evidence, the court was not entirely convinced that the Wife had made up for her lesser financial contributions to the family via her indirect non-financial contributions to the same. The Husband appeared to have made his fair share of indirect non-financial contributions to the family. Therefore, a greater proportion of the matrimonial assets would be apportioned to the Husband: at [80].

(14) In determining a just and equitable apportionment of the matrimonial assets, the court also had regard to s 112 (2) (f) of the Women's Charter (Cap 353, 1997 Rev Ed) . There was no evidence that the Wife had paid the Husband any rent since he moved out: at [81].

(15) As the Wife did not satisfactorily clarify the surrender values of her insurance policies and the queried entry in the ‘Trading and Profit & Loss Account’ of Baby Breeze.Biz Pte Ltd even though she was directed (through her solicitor) to do so, the court drew adverse inferences against her and ordered a higher proportion of the known assets (than it would have otherwise ordered) to be given to the Husband: at [82] to [86].

(16) For the reasons above and adopting the broad-brush approach, it was just and equitable to apportion 60% ($2.4 m) of the matrimonial assets to the Husband and 40% ($1.6 m) to the Wife. As the Wife already held matrimonial assets amounting to approximately $600,000 on her own, the court ordered that the matrimonial home be sold and $1 m of the sale proceeds be transferred to her: at [87] and [88].

(17) As what was apportioned to the Wife in...