ARG v ARH

• Jurisdiction: Singapore
• Judge: Jen Koh
• Judgment Date: 11 March 2011
• Neutral Citation: [2011] SGDC 76
• Court: District Court (Singapore)
• Docket Number: Divorce Suit No. 2479 of 2008
• Published date: 06 July 2011
• Year: 2011
• Hearing Date: 29 June 2010,13 April 2010,18 May 2010,03 August 2010,28 September 2010,09 March 2010
• Plaintiff Counsel: Ms Lee Mong Jen (Messrs Wu LLC)
• Defendant Counsel: Ms Foo Siew Fung (Messrs Harry Elias Partnership)for the Defendant (wife)
• Citation: [2011] SGDC 76

District Judge Jen Koh: Introduction

This is an appeal by the wife against an order made on 28 September 2010 in respect of the division of the matrimonial flat and maintenance for the wife in ancillary matters.

Background to this matter

The husband and the wife were married on 13 November 2001 at the Singapore Marriage Registry. The husband is currently about 34 years old and he works as a Storeman. The wife is about 38 years old and she works in a casino. The parties have one child, B (female), born on 10 August 2003. The child is about 8 years old and a Primary 2 student in a local Singapore.

The parties own a Housing and Development flat at xxx (“the matrimonial flat”). The matrimonial flat is a 5 room flat bought by the parties in joint names as joint tenants in or about May 2006. The parties also own a Malaysian property in xxx, bought in or about November 2001 in the husband’s sole name. The parties also had a car in Malaysia (in the husband’s name) and another vehicle, a xxx, in Singapore (in the wife’s name).

Divorce Proceedings

In May 2008, the husband filed for divorce on the ground that the marriage had broken down irretrievably in that the wife had behaved in such a way that he could no longer reasonably be expected to live with her. The wife contested the husband’s writ and filed a Counterclaim on the husband’s unreasonable behaviour. In the interim, other applications were taken out by the parties including applications for personal protection orders and an application by the wife for interim maintenance.

The parties managed to resolve the contested applications and the divorce proceedings amicably and an Interim Judgement was granted on 10 October 2008 on both the husband’s Claim and the wife’ Counterclaim.

The ancillary matters remained unresolved and were adjourned to chambers.

Ancillary Matters

All issues were contested in the ancillary matters and in support of their positions, the parties filed and tendered the following affidavits and documents:

The husband
Affidavit of Assets and Means	20 April 2009	PAOM
2nd ancillary affidavit	14 August 2009	P2
3rd ancillary affidavit	3 November 2009	P3
4th ancillary affidavit	1 February 2010	P4
Fact and Position Sheet	18 February 2010	P Form 35A
Written Submissions	13 April 2010	PS1
Letter dated 22 April 2010 (re: status of Malaysian property)	22 April 2010	PA1
Request for Further Arguments	20 May 2010	PFA
Reply Submissions to Further Arguments (by wife)	29 June 2010	PFA1
Supplemental affidavit	30 July 2010	P5
Further submissions	28 September 2010	PS2
The wife
Affidavit of Assets and Means	20 April 2009	DAOM
2nd ancillary affidavit	15 June 2009	D2
3rd ancillary affidavit	14 August 2009	D3
4th ancillary affidavit	2 November 2009	D4
5th ancillary affidavit	12 February 2010	D5
Fact and Position Sheet	18 February 2010	D Form 35A
Written submissions	5 March 2010	DS1
Request for Further Arguments	27 May 2010	DFA
6th ancillary affidavit	2 August 2010	D6
7th ancillary affidavit	17 September 2010	D7
8th ancillary affidavit (See Phang Hak)	17 September 2010	D8

Ancillary Orders 18 May 2010

The ancillary matters came on for hearing on 13 April 2010. I directed the husband’s counsel to write to Malaysian solicitors for an update on the foreclosure on the Malaysian property due to the non payment of the housing loan. The husband wrote to court on 22 April 2010 (PA1). I then fixed the matter for decision on 18 May 2010.

On 18 May 2010, I made the following orders: 1 Parties are to have joint custody of B (f) with care and control to the Defendant and assisted access to the Plaintiff at the Centre for Family Harmony for three hours every weekend. Access to be reviewed after three months. Costs of assisted access shall be equally borne equally between the parties. 2 The Plaintiff is to contribute monthly maintenance of $400 with effect from 1 June 2010 as maintenance for the child. Thereafter maintenance to be paid on the first day of every calendar month. Payment direct into Defendant’s bank account POSB xxx 3 The Defendant is granted an option to buy over the Plaintiff’s 45% share in the matrimonial flat at xxx(“the matrimonial flat”). The 45% share is to be determined by a valuation report and less amount of outstanding loan. This option shall be exercised within 8 weeks from the date of this order. Upon receipt of his 45% share, the Plaintiff is to refund his CPF account of monies utilized for the purchase of the matrimonial flat inclusive accrued interest and the Defendant shall bear costs and expenses of the sale or transfer of the Plaintiff’s 45% share. 4 In the event that the Defendant chooses not to exercise this option then upon expiry of the 8 week notice period or any other earlier date as may be communicated to the Plaintiff, the matrimonial flat is to be sold in the open market with the parties having joint conduct of the sale. Upon successful sale, the sale proceeds shall be used to repay outstanding housing loan plus costs and expense of sale. The balance thereafter is to be apportioned as to 55% to Defendant and 45% to Plaintiff and each party is to refund their respective CPF account of monies utilized there from for the purchase inclusive accrued interest. 5 The Defendant’s 55% share in the matrimonial flat shall include her claims to maintenance. 6 The Malaysian property xxx Johor is to be sold in the open market with the Plaintiff having sole conduct of the sale. Upon successful sale, sale proceeds are to be utilized to repay outstanding loan and costs and expense of sale. The net sale proceeds are to be divided equally between the parties and any losses are also to be borne by the parties in equal shares. 7 The Defendant shall not have any claim against the sale proceeds of the Malaysian car xxx 8 The Defendant is at liberty to retain the xxx without any payments to the Plaintiff and she is also at liberty to deal with the said car. including sale in the open market a s she deems fit. The Plaintiff shall not be responsible to for any costs expenses or losses with results to this said car. 9 No orders on the Defendant’s claim of $5,000 against the Plaintiff being monies belonging to her sister , D. 10 The Defendant is to return to the Plaintiff his personal documents which include birth certificates, educational certificates, Singapore PR card, clothes and personal effects 10 days from the date of this order. 11 Each party to bear his or her own costs in these proceedings. 12 Liberty to apply.

Request for Further Arguments

On 20 May 2010, the husband wrote in for further arguments with respects to the division of the matrimonial flat and the division of the Malaysian property. The husband referred to the completion account for the matrimonial flat tendered by the wife’s solicitors at the hearing of the ancillary matters, a document not exhibited in any affidavit. On 27 May 2010, the wife likewise wrote in for further arguments save that her request encompassed all the ancillary issues.

I fixed the matter for further arguments in view of the evidence that had come to light with respects to the cash downpayment for the matrimonial flat which was brought to my attention by the husband in his letter dated 20 May 2010. At the hearing for further arguments on 29 June 2010, I made it clear to parties that I was only minded to hear further arguments on the division of the matrimonial flat and that this had only been allowed in view of the completion account that had been tendered at the hearing on 13 April 2010.

Further Orders made on 28 September 2010

On 28 September 2010, I varied the orders for the matrimonial flat. I also made further orders for the Malaysian property, specifically, granting an option to the husband to retain the Malaysian property. By this time, I had also received the access evaluation reports from the Centre for Family Harmony. I accordingly varied the access orders in view of the recommendations made by the counsellors. The further orders are as follows: 1 The orders made on 18 May 2010 with respects to the matrimonial flat are varied to reflect the Plaintiff’s share to be 48% and the Defendant’s share 52%. 2 The orders made with respect to the Malaysian property are varied in that the Plaintiff is now granted an option to buy over the Defendant’s 50% share such option to be exercised within 30 days of the date of this order and the transfer effected within 6 months thereafter. In the event that the Plaintiff chooses not to exercise the option, then the earlier orders pertaining to the sale shall take effect. 3 Access review – The Plaintiff is to have unsupervised access with the child every Saturday for 5 hours from 10 am to 3pm. Handover is to be at the Centre for Family Harmony.

Notice of Appeal

On 7 January 2011, the wife obtained leave of court to file an appeal against the orders for the division of the matrimonial flat and maintenance for the wife.

I now set out the reasons for my decision.

The matrimonial flat

The matrimonial flat is a 5 room flat bought on 1 May 2006 for a sum of of $315,000-00 by the parties in joint names. The parties took up a private bank loan of $252,000-00 from the OCBC bank. As at December 2009, the outstanding loan was $240,261-60. As at March 2009, the open market value of the matrimonial flat was $385,000-00.

The downpayment for the matrimonial flat was $40,500-00. This is evidenced in the letter dated 24 April 2006 from Messrs DSCT who acted in the purchase and mortgage of the matrimonial flat (see annexures to...