ASP v ASQ

• Jurisdiction: Singapore
• Judge: Chua Lee Ming JC
• Judgment Date: 05 May 2015
• Neutral Citation: [2015] SGHC 123
• Court: High Court (Singapore)
• Docket Number: Divorce Transfer No 4094 of 2011
• Published date: 21 May 2015
• Year: 2015
• Hearing Date: 23 March 2015,16 March 2015,16 February 2015,17 February 2015
• Plaintiff Counsel: Sharanjit Kaur d/o Sarjit Sing and Tan Hui Qing (KhattarWong LLP)
• Defendant Counsel: Koh Tien Hua and Ho Chee Jia (Harry Elias Partnership)
• Subject Matter: Family law,Matrimonial assets,Division,Maintenance,Wife,Child
• Citation: [2015] SGHC 123

Chua Lee Ming JC: Introduction

This was an application for the division of matrimonial assets and maintenance for the Defendant (“wife”) and the parties’ daughter (“daughter”).

The parties were married on 4 June 2006. The daughter was born on 31 January 2009. The Plaintiff (“husband”) filed for divorce on 23 August 2011. The wife counterclaimed and interim judgement was granted on 7 May 2012 on both the claim and counterclaim in respect of each party’s unreasonable behaviour.

I gave my orders on 17 February 2015. Pursuant to a request by the wife, I heard further arguments on 23 March 2015. My final orders were as follows: By consent, each party shall retain bank accounts in his/her own name. the Zurich Pension Fund Vista Investment Fund (“Zurich Fund”) is to be transferred to the wife’s sole name and the wife is to service the monthly payments in full until the fund matures in 2026. The daughter shall remain the beneficiary of the Zurich Fund. the husband is to retain the HSBC Growth Manage Fund which is in his name, and he shall pay the wife the sum of $1,271.26 being half the value of the Fund. The parties’ joint bank accounts are to be closed and the remaining funds in these accounts are to be paid to the wife. The husband is to retain the Alliance Life Insurance policy which is in his name and he is shall pay the wife $23,392.78 being reimbursement for her contributions to the policy. The husband shall transfer his interest in the Aviva Global Investment Fund (“Aviva Fund”) to the wife. As regards the parties’ apartments at Sims Residence and at Casa Merah, they are to be divided in the proportion of 60:40 in favour of the wife. either party may choose to retain one of the properties by paying the other his/her share of the property. Any property not so retained by either party shall be sold and the net sale proceeds shall be divided between the husband (40%) and the wife (60%). The husband shall pay maintenance for the daughter as follows: Half of all expenses/fees as invoiced by her school, upon production of such invoices by the wife; The payments necessary to maintain the BUPA health insurance policy for the benefit of the daughter; and A sum of $1,500 per month. The husband shall pay the wife the sum of $25,000 being additional maintenance for the daughter at $500 per month for the period from January 2011 to February 2015 (inclusive). No order for maintenance for the wife. Parties are at liberty to apply. Each party is to bear his/her own costs.

The wife has appealed against my orders in respect of the Sims Residence and Casa Merah apartments and in respect of maintenance (ie, paragraphs 3(e) to (h) above).

Issues relating to Casa Merah and Sims Residence apartments

The Casa Merah apartment was purchased in March 2007 in the wife’s name. The estimated value as of May 2014 was $1,430,000.¹ The outstanding mortgage as of January 2015 was $727,266.² The Sims Residence apartment was purchased for in April 2008 in the parties’ joint names. The estimated value as of July 2014 was $1,338,000.³ The outstanding mortgage as of January 2015 was $429,914.⁴

The downpayments for both properties ($132,000 for Sims Residence and $171,000 for Casa Merah) were paid using private loans from the wife’s friends and family.⁵

Initially, the Casa Merah apartment was rented out and the rentals were used to pay the mortgage payments, maintenance fees, property tax and household expenses.⁶ After the tenancy ended, the husband contributed $1,000 per month towards the mortgage payments from January 2013 to March 2014.⁷ The wife returned the first six payments to the husband. The wife paid the balance of the mortgage payments.

The parties initially stayed at the Sims Residence apartment. After the husband moved out of the Sims Residence apartment in late 2010, the wife and daughter continued to stay there. Subsequently, they moved into the Casa Merah apartment when the tenancy ended.

At first, the mortgage payments for the Sims Residence apartment were paid from the parties’ joint account. After the wife and daughter moved into the Casa Merah apartment, the Sims Residence apartment was rented out, and the rentals were used to pay the mortgage payments; the balance from the rentals was split between the parties equally.

At the hearing on 23 March 2015, the wife submitted a fresh computation of the parties’ respective financial contributions in respect of each of the two apartments. After going through the computation with counsel for both parties, the following items remained for my decision: The wife’s apportionment of contributions towards the downpayments for both apartments. The wife’s apportionment of contributions towards the mortgage and maintenance with respect to the Sims Residence apartment for the period April 2008 to December 2010. These were paid from the parties’ joint account. The wife’s claim to have contributed $103,320.28 via her CPF towards the purchase of the Casa Merah apartment. It was common ground that payments made using the rentals should be apportioned equally between the parties.

What the parties claimed to have contributed Apportionment of contribution towards the downpayments for both apartments

The wife inherited an apartment and part ownership of a piece of land in Warsaw in 2000. The apartment was sold in 2007 and a sum of US$165,786 was transferred into the parties’ joint account.⁸ The wife used US$150,000 to invest in the Aviva Fund which was referred to earlier in paragraph 3(d).⁹ The wife claimed that she used the balance sum of about S$22,600 to repay part of the private loans that were used to pay the downpayment for the Casa Merah apartment.¹⁰

The land in Warsaw was sold in 2008 and a sum of US$60,000 (about S$85,900) was transferred into the parties’ joint account.¹¹ The wife claimed that she used this amount to pay part of the private loans that were used to pay the downpayment for the Sims Residence apartment and some renovation costs.¹²

In her computations, the wife credited herself with payment of the sums of $22,600 (for Casa Merah) and $85,900 (for Sims Residence). Payments for the balance of the respective downpayments were then apportioned between the parties equally.

However, it is clear that what the parties did was to pool their incomes in their joint account. Submissions by the wife’s counsel acknowledged that the husband paid his salary into the joint account from May 2007 to November 2010.¹³ The wife treated the amounts received from the sale of the apartment and land in Warsaw as part of her “contributed income” to their joint account.¹⁴ The joint account was then used to make a variety of payments including mortgage payments and repayment of the private loans. The wife has acknowledged that the private loans were repaid from the parties’ joint income.¹⁵

In the circumstances, I took the view that the sums of $22,600 and $85,900 could not be attributed to the wife alone. Instead, both parties contributed to repayment of the private loans (and hence, payment of the downpayment) through their joint account. In the absence of any other evidence, I concluded that a reasonable way to apportion payments made using the joint account was to use the parties’ respective contributions to the joint account. This in turn depended on the parties’ respective incomes.

The husband contended that he had contributed more to the joint account as he had earned more than the wife during the period from 2006 to 2010. It is not disputed that for a period of more than a year between 2008 and 2009, during the wife’s pregnancy and maternity leave, her income dropped significantly.

The wife alleged that the husband had sent large sums of money to his parents in Croatia. The wife referred to three transfers made by the husband on 19 October 2005 (S$11,989.96), 16 May 2006 (S$39,464) and 30 June 2006 (S$39,464).¹⁶ I was of the view that the first two transfers were clearly irrelevant as they took place before the parties’ marriage. The third transfer is irrelevant to the purchase of the apartments as it took place well before either of the apartments was purchased.

The wife also alleged that the husband did not contribute his salary to the joint account during the period from September 2006 to May 2007 when he was employed by [Airline A] in Largo, Nigeria. The first answer to this is that it is largely irrelevant to the purchase of the apartments as the first property (Casa Merah) was purchased only in March 2007. The second is that even disregarding the husband’s salary for this period, the evidence is clear that the husband’s total income for the period from 2006 to 2010 exceeded hers.

In her 3rd Ancillary Affidavit, the wife set out the incomes which she said were contributed by her and the husband to their joint account from May 2005 to 2010.¹⁷ She included the sum of US$165,000 (from the sale of her apartment in Warsaw) to her “contributed income” for 2007, and the sum of US$60,000 (from the sale of the land in Warsaw) as part of her “contributed income” for 2008. The wife’s computation of her income for 2007 therefore included the US$150,000 that she used to invest in the Aviva Fund. It cannot be right for her to still include this sum as part of her “contributed income” for 2007, especially when she has asked to keep (and been given) the Aviva Fund in her sole name on the basis that the US$150,000 used to invest in that Fund came from her alone. I therefore excluded the amount from her “contributed income” for 2007.

As there were some differences in the income figures in the wife’s affidavit compared to those in the parties’ income tax statements,¹⁸ I decided to rely on the latter. It is accepted by the wife that the husband’s income tax statement for his income in 2006 and 2007 excludes his income from his employment with [Airline A] in Largo, Nigeria.¹⁹

For the period...