ARY v ARX and another appeal
Judge | Sundaresh Menon CJ |
Judgment Date | 10 March 2016 |
Neutral Citation | [2016] SGCA 13 |
Court | Court of Three Judges (Singapore) |
Published date | 16 March 2016 |
Year | 2016 |
Docket Number | Civil Appeals Nos 3 and 5 of 2015 |
Citation | [2016] SGCA 13 |
Plaintiff Counsel | Ong Ying Ping and K Manickam (East Asia Law Corporation) |
Subject Matter | Matrimonial assets,Division,Maintenance,Family Law |
Hearing Date | 26 November 2015,22 October 2015 |
Defendant Counsel | Wong Hin Pkin Wendell, Eoon Zizhen Benedict and Goh Mei Shi Valerie (Drew & Napier LLC) |
These are two related appeals against the decision of a judge (“the Judge”) on the division of matrimonial assets and maintenance in the ancillary matters of a divorce. Her decision is reported at
These appeals present us an opportunity to further clarify the legal position on the operative date for determining the pool of matrimonial assets for division in a divorce.
BackgroundThe husband and wife were married on 29 October 1994, and remained married for approximately 15 years, until the relationship broke down in June 2009, when the parties separated by mutual agreement. The husband, now aged 43 and who originally hailed from Turkey, is currently resident and employed in the Hong Kong Special Administrative Region. He works for a large international media agency (“IMA”) and earns a monthly salary of about $36,000.
The wife is a 52-year-old Scotswoman. She was a homemaker for a large part of the marriage, but is currently employed as a part-time bookkeeper and earns about $2,500 every month. The wife resides in Singapore with their two sons, who are 16 and 11 years of age. Both children are enrolled in an international school in Johor Bahru. They were boarders at that school when the matter was before the Judge, but had ceased boarding arrangements by the time the matter came before us. Parties have agreed on the custody, care and control, and access arrangements for the children.
The marriage and the early yearsThe parties met in 1993 when the wife was on holiday in Turkey. The wife was then a banker in England and earning a substantial salary. The husband lived and worked in Turkey. Just prior to the marriage, the husband moved to London to live with the wife. He became a full-time student reading for a university degree, and he also enrolled in an English language course.
The wife claims that during the early years of their marriage, she was the “sole financial provider”. She funded the husband’s passage to England and his education there.
In 1999, their first son was born. The husband, having graduated from his degree programme, took up employment at IMA in London in that year.
His career has been a successful one. He has risen through the ranks to his current position as a regional sales manager.
The moves to Hong Kong, Japan and then SingaporeThe parties relocated to Hong Kong in 2003. The decision to relocate was caused by a confluence of three events that year. First, the husband was promoted, and offered a position at IMA’s Hong Kong office. Second, the wife was made redundant by her then employer, a European bank. Third, the wife became pregnant with their second son, and gave birth to him in December that year. The wife stopped working to become a homemaker soon after.
Parties disagree over the reason the wife became a homemaker. The wife says that she sacrificed her career so that she could focus on the family.
The family relocated two more times after moving to Hong Kong. In 2004, the husband was posted to Japan, and in 2006, he was posted to Singapore. The family went with him wherever his career brought him.
The separation and divorce proceedings The husband had an affair while the family was in Singapore. This caused the marriage to deteriorate. The wife found out about the affair in January 2008,
The husband filed for divorce on 2 February 2010. Interim judgment was granted on 26 October 2010. The ancillary proceedings commenced on 30 June 2012.
The decision below and the arguments on appealWe will now provide a broad overview of the Judge’s decision in the court below, as well as the parties’ arguments on appeal, followed by an analysis of the issues of this appeal.
There were two main issues before the Judge. The first concerned the division of the matrimonial assets, and the second, maintenance for the wife and children.
In respect of the division of the matrimonial assets:
In respect of the maintenance for the wife and children:
The husband appeals against the Judge’s decision on division. His challenge to the decision on division is mounted at three levels. First, he argues that the operative date should not be the date of commencement of ancillary proceedings, but rather, the date the parties separated. Second, he argues that the Judge erred by including a Turkish property in the matrimonial assets. Third, he argues against an equal division of the matrimonial assets. He says that the division should be in the proportions of 70:30 in his favour, which is more closely aligned to the parties’ financial contributions.
Both the husband and wife appeal against the Judge’s decision on maintenance. The wife says that maintenance should be increased to $10,200 monthly comprising $4,500 for her personal and household expenses, $4,700 for rent, and $1,000 for holiday expenses. The husband, on the other hand, argues that the maintenance should be reduced to $5,000 monthly.
We will address the division of matrimonial assets and maintenance separately because they raise discrete legal principles and facts.
Issues relating to the division of matrimonial assetsThe husband’s appeal against the Judge’s decision on division raises the same three issues (see [18] above). First, what the operative date for determining the pool of matrimonial assets should be. Second, whether a property in Turkey (“the Turunc property”) should be included in the pool of matrimonial assets. Third, whether the Judge’s division of the matrimonial assets in equal proportions is just and equitable.
What the operative date for determining the pool of matrimonial assets should be The decision belowThe appropriate operative date for determining the pool of matrimonial assets received extensive argument in the court below. It was a pivotal point because there was a surge of about 50% in the total matrimonial assets between the parties’ separation in June 2009 and the commencement of ancillary proceedings on 30 June 2012. The surge was due to the husband’s receipt of some $520,000 in salary and bonuses during that period.
The Judge accepted the wife’s position that the operative date should be when the ancillary proceedings commenced. The Judge held that the court had a “broad discretion” in selecting an operative date for determining the pool of matrimonial assets (the Judgment at [22]). The wife was responsible for the welfare of the children even after the breakdown of the marriage and the grant of interim judgment (the Judgment at [31]). This allowed the husband to focus on his work, and obtain the salary and bonuses. Those monies should therefore be included in the pool of matrimonial assets for division.
The parties’ cases on appeal On appeal, the husband maintains his position that the operative date should be the date the parties separated. He gave four reasons. First, the parties’ intentions are an important factor in determining the operative date. By June 2009, the parties manifested a clear intention not to contribute to the matrimonial assets. They were living apart and had closed their joint accounts (except for one to deduct rent and utilities and a second overseas account to collect rental proceeds). Thereafter, they managed their assets separately.
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