AQS v AQR

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 12 January 2012
• Neutral Citation: [2012] SGCA 3
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 19 of 2011
• Year: 2012
• Published date: 23 April 2012
• Hearing Date: 08 November 2011,30 September 2011
• Plaintiff Counsel: Anparasan s/o Kamachi and Sharanjit Kaur (KhattarWong)
• Defendant Counsel: Ranjit Singh (Francis Khoo and Lim)
• Citation: [2012] SGCA 3

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

This was an appeal against the ancillary orders made by the High Court Judge (“the Judge”) in AQR v AQS[2011] SGHC 139 (the “GD”) pursuant to the parties’ divorce. The appellant is the wife (“the wife”) and the respondent is the husband (“the husband”). The parties had their marriage dissolved by Interim Judgment on 30 March 2010. The Judge made her ancillary orders on 14 January 2011. We heard the parties on 30 September 2011 and allowed the appeal in part. We now set out the grounds for our decision.

FactsThe marriage

The husband is an American citizen of German origin. The wife is a Vietnamese citizen. Both have been Singapore Permanent Residents since 18 January 2002. At the time of the ancillaries, the husband was 50 years old and the wife 42 years old.

The parties met in 1993 in Hanoi where the husband was working for a foreign company and the wife was employed as a hotel bar waitress. They married in Hanoi on 22 August 1996.

At the time, the wife was a single parent with a daughter, [C]), whom she had had in 1990 out of wedlock. At the time of the hearing before us, [C] was 20 years old. It was undisputed that the husband financially supported and cared for [C] as part of the matrimonial household since the parties married.

The parties moved to Singapore in February 1998 when the husband found a job in Singapore. Their only child, [B] was born in Singapore in July 1999. At the time of the hearing before us, she was 12 years old.

During the subsistence of the marriage, the wife was a full-time homemaker and the husband worked as a director of sales in an American company in Singapore.

The matrimonial home and the Memorandum signed by husband on 5 April 2006

The matrimonial home at [address redacted] (“the matrimonial flat”) was acquired between 2005 and 2006. The Option to Purchase the matrimonial flat (“the Option”), dated 14 December 2005, was originally in the husband’s sole name.¹ The exercise of the Option, dated 28 December 2005, was however in the names of both the husband and wife.² Subsequently, the husband’s solicitors wrote a letter dated 27 February 2006 to the solicitors of the vendors of the matrimonial flat, stating that they had received instructions from the husband and wife that the conveyance was to be in the wife’s sole name. The reason for this was a “private family arrangement” between the husband and wife.³ The husband also wrote a letter, dated 20 March 2006, to his property agent directing that the matrimonial flat be transferred to the sole name of the wife.⁴ Significance was placed by the wife as to the aforesaid sequence of events.

Furthermore, on 5 April 2006, the husband signed a memorandum “To Whom It May Concern” (“the 5 April 2006 Memorandum”) where he stated that:⁵

I, [the husband], hereby certify that, in case of a divorce between my wife, [the wife], and me, the paramount decision on dividing assets is the future wellbeing of our children, [C] and [B].

Therefore, I will commit to leaving 70% of our common assets at the time of divorce at the disposal of my wife and my children.

The 5 April 2006 Memorandum was signed only by the husband. The wife relied heavily on this 5 April 2006 Memorandum in the ancillaries below and in the appeal before us.

The breakdown of the marriage

The husband left the matrimonial flat in December 2006 after a domestic conflict.

Unusually, [C] left the matrimonial flat to live with him. [C] gave evidence that⁶:

When I found out the [husband] was moving out of the home, I had voluntarily asked him if I could move out together with him as I have been very traumatised by the [wife’s] behaviour and abuse, pushing me into depression, and I no longer wanted to live in constant fear of being attacked by her everyday.

However, the husband continued to return to the matrimonial flat and interacting with the wife and [B], including helping [B] with her homework and even having sexual relations with the wife,⁷ though their relationship continued to be problematic. The husband’s Statement of Particulars in the divorce suit (see below at [13]) – in both the original and amended versions – included lengthy details of the wife’s unreasonable behaviour both before and after December 2006 when he left the matrimonial flat.

The husband filed for divorce on 25 April 2008 on the basis of s 95(3)(b) of the Women’s Charter (Cap 353, 1997 Rev Ed)(the “Women’s Charter”), ie, that the wife had behaved in such a way that the husband could not reasonably be expected to live with her. The wife initially contested the divorce and filed a defence on 13 June 2008. Subsequently, however, parties agreed to an Amended Statement of Particulars⁸, and the husband’s suit proceeded on an uncontested basis on the ground of the wife’s unreasonable behaviour. Interim Judgment was granted on 30 March 2010.

The ancillary proceedings

As at the date of the ancillary hearing, the husband resided at rented premises which he had leased at $2,700 per month for his own and [C]’s accommodation. The wife resided at the matrimonial flat with [B], and it was undisputed that the husband nevertheless continued to pay for all the outgoings of the matrimonial flat.

The custody, care and control and access to [C] were never issues in the ancillary proceedings. The wife requested that no order be made in respect of the custody, care and control, and access of [C].⁹ At the time of the hearing before us, [C] was still living with the husband and being financially supported by the husband.

The ancillary matters that came up for hearing before the Judge pertained to:Custody, care and control of [B];Division of the matrimonial assets including the matrimonial flat; andMaintenance for the wife.

The husband and wife eventually consented to joint custody of [B] with care and control to the wife.

The assets

Only four assets were really in contention in the ancillaries.

The first asset was the matrimonial flat. Both the husband and wife claimed a 100% share of this in the division of matrimonial assets.

The second and third assets were two properties the parties had acquired in Australia (“Gracemere Gardens” and “Gracemere Waters” respectively; collectively “the two Australian Properties”). The husband asked for a 100% share in these properties whereas the wife asked for 70%, allegedly in accordance with the 5 April 2006 Memorandum, or in the alternative at least 50% as a “just and equitable” division.

The fourth asset was the various bank accounts of the parties other than the bank accounts for the mortgage loans taken out for the matrimonial flat and the two Australian properties. One bank account was in the husband’s sole name, one in the wife’s sole name and the remaining four were in their joint names, but it was undisputed that the husband was the exclusive source of funds in all. The wife asked for an equal division of all the accounts in credit.

The remaining properties owned by either or both parties – namely, the wife’s properties in Vietnam, the bank accounts for the mortgage loans taken out for the matrimonial flat and the two Australian properties, and the parties’ respective CPF accounts – were not in dispute.

The wife alleged that husband had not disclosed certain assets¹⁰ such as bonuses, incentives, and other financial benefits under his employment contract; insurance policies; other bank accounts; rental income from Gracemere Gardens property; tax refunds; and stock options under Clause IIIA of his Employment Contract¹¹. She also denied that he was liable to pay tax to the US authorities, as he had claimed in his affidavits. However, the Judge rightly held that the wife provided completely no documentary evidence to back up such allegations, and the husband provided cogent rebuttals of her assertions in the Plaintiff’s 3rd Affidavit (see GD at [34]). The wife quite rightly dropped these assertions in the appeal before us. However, the one matter she did pursue was her allegation that the husband failed to disclose his stock options under Clause IIIA of his Employment Contract. The Judge in [34] of the GD accepted the husband’s explanation that his stock options had no value because the company had not gone public – his company was a small start-up company and had no plans to go public and therefore had not attached any monetary value to its stock. We will address this further at [45] below.

Decision Below

Other than the matters pertaining to the custody, care and control of [B], the Judge made, inter alia, the following orders:The wife was to transfer to the husband all her rights, title, and interest in the matrimonial flat as well as her rights, title and interest in two Australian properties without consideration. The cost of transfer for all three properties was to be borne by the husband;The husband was to pay the wife a lump sum maintenance of $250,000 as well as a one-off payment of $10,000 to assist her in shifting out of the matrimonial flat, totalling $260,000;The husband was to meet [B]’s expenses, including but not limited to schools, tutors, school bus operators, guitar tutor, life and accident insurance companies, handphone service operator, doctors and dentists, by direct payment to these third parties or by GIRO arrangements;The husband was to continue to maintain [C] who was at liberty to continue to reside with the husband;The wife, at the husband’s expense, was to seek counselling for anger management for a period of six months from a psychiatrist whose services should first be approved by the husband;Other than the transfer of the properties set out in (a) above, the parties were to retain their assets which were in their sole names including the wife’s two properties in Ho Chi Minh City, Vietnam.The wife was to remove her name from the two¹² joint accounts...