Att v Ats

• Jurisdiction: Singapore
• Judgment Date: 03 April 2012
• Date: 03 April 2012
• Docket Number: Civil Appeal No51 of 2011
• Court: Court of Appeal (Singapore)

ATT

Plaintiff

and

ATS

Defendant

[2012] SGCA 22

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No51 of 2011

Court of Appeal

Family Law—Maintenance—Whether wife's future earning capacity should be considered

Family Law—Matrimonial assets—Division—Grounds for disturbing order below—Whether express ratio of division needed

Family Law—Matrimonial assets—Division—Increase in value of asset after hearing of ancillary matters—Whether appeal could succeed on grounds of change in value alone

Family Law—Matrimonial assets—Husband suffering significant financial losses—Whether losses were shared by passive spouse

The respondent was the homemaker wife (‘the Wife’) in a marriage which lasted 15 years until she filed for divorce in July 2009. The appellant husband (‘the Husband’) was the sole breadwinner of the family. Over the course of the marriage the couple held three immovable properties as joint tenants - [DDD], [MMM] (‘MMM’), and a Malaysian property. At the hearing of ancillary matters before the High Court the Wife proposed a ‘property swap’ wherein MMM would be allocated to her and the other two properties to the husband. All other assets were to be retained in their respective names, and the Husband would lose his CPF contributions to the MMM property. The High Court judge (‘the Judge’) accepted this as a just and equitable distribution. In value terms this represented a 58:42 division in favour of the Wife, who was also awarded a monthly maintenance of $8,400. In reaching this conclusion the Judge was persuaded, inter alia, by the Husband's failure to make full and frank disclosure of his income and the Wife's contributions to the Husband's business, PP Pte Ltd (‘PP’). The Judge also found that the Husband's losses in foreign exchange trading, which amounted to $700,000, were his alone to bear.

The Husband appealed against the Judge's division and also sought a reduction in monthly maintenance to $2,250. After the Husband filed his Notice of Appeal, MMM was sold as part of an en-bloc sale for about $1 m above its valuation at the time of the ancillary hearing.

Held, allowing the appeal in part:

(1) Following Yeo Chong Lin v Tay Ang Choo Nancy[2011] 2 SLR 1157, the decision of the High Court would only be disturbed if it could be shown that the Judge had erred in law, exercised her discretion wrongly, taken into account irrelevant considerations or failed to take into account relevant considerations: at [9].

(2) A marriage was in part an economic union in which the financial well-being of both spouses was entwined. Where one spouse took charge of the couple's investments, the passive spouse had to take the good as well as the bad unless it could be shown that the losses were not incurred bona fide or for some other good reasons should not be treated as a loss of the family. The learned Judge therefore erred in finding that the Husband's foreign exchange trading losses were his alone to bear: at [11] and [12].

(3) Further, on the facts, the Wife's role in PP was limited to issuing cheques and cash upon the instructions of the Husband, who substantively managed the business. The Wife could not be said to have materially contributed to the assets of the family through the vehicle of the Husband's business venture: at [13].

(4) The Judge was correct in raising an adverse inference against the Husband for his failure to make full and frank disclosure of his income: at [24].

(5) Taking the above factors into consideration, as well as precedents in similar cases, the wife's share of the three immovable properties was over-generous and should be reduced: at [18] to [22] and [23].

(6) A more just and equitable distribution would be for the three immovable properties to be divided 55:45 in favour of the husband, after deducting any outstanding loans as well as the parties' original CPF contributions (plus accrued interest): at [23].

(7) Barring special circumstances or compelling reasons, the mere change in value of an asset between the ancillary orders and the final appeal should not be a ground to revisit the division made by the court below: at [25].

(8) In awarding maintenance, the Wife's future earning capacity should be considered. Following Quek Lee Tiam v Ho Kim Swee (alias Ho Kian Guan)[1995] SGHC 23 the Wife should exert herself to secure gainful employment and earn as much as reasonably possible. However, having considered all the relevant circumstance of the case, there were no persuasive grounds to disturb the monthly maintenance ordered by the Judge: at [28]

[Observation: The broadbrush approach to the division of matrimonial assets could not be so heuristic as to become indeterminate. Ordinarily, the first step was to delineate what exactly constituted the pool of matrimonial assets. The value of the pool should then be assessed, and the court would determine a just and equitable division after having regard to all the circumstances of the case. Having gone through this exercise, it might then proceed to ascertain the most expedient means of physically executing the division: at [14] and [15].]

Koh Kim Lan Angela v Choong Kian Haw [1993] 3 SLR (R) 491; [1994] 1 SLR 22 (folld)

Koh Bee Choo v Choo Chai Huah [2007] SGCA 21 (refd)

Lim Choon Lai v Chew Kim Heng [2001] 2 SLR (R) 260; [2001] 3 SLR 225 (refd)

Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR (R) 520; [2007] 3 SLR 520 (refd)

MZ v NA [2006] SGDC 96 (refd)

MZ v NA [2006] SGHC 95 (refd)

NI v NJ [2007] 1 SLR (R) 75; [2007] 1 SLR 75 (refd)

NK v NL [2007] 3 SLR (R) 743; [2007] 3 SLR 743 (folld)

Quek Lee Tiam v Ho Kim Swee [1995] SGHC 23 (folld)

Wee Ah Lian v Teo Siak Weng [ 1992] 1 SLR (R) 347; [1992] 1 SLR 688 (refd)

Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157 (folld)

ZD v ZE [2008] SGHC 225 (refd)

Women's Charter (Cap 353, 1997 Rev Ed) ss 95 (3) (b) , 112, 112 (2)

Women's Charter (Cap 353, 2009 Rev Ed) ss 95 (3) (b) , 112, 112 (2)

Prabhakaran s/o Narayan Nair (Derrick Wong & Lim BC LLP) for the appellant

Koh Tien Hua/ Lim Sok Hui Gina (Harry Elias Partnership LLP) for the respondent.

Chao Hick Tin JA

(delivering the grounds of decision of the court):

Introduction

1 This was an appeal against the decision of the High Court in ATS v ATT [2011]SGHC 213 (‘the GD’) on the issues of division of matrimonial assets and maintenance of the respondent (‘the Wife’) and their children. The Judge ordered a ‘property swap’ between the appellant (‘the Husband’) and the respondent, viz, for each party to take one of the properties in Singapore, as an expedient means of achieving categorical equivalence between the parties (see [37] of the GD). The Husband was also ordered to pay a monthly maintenance of $8,400 (ie, a global sum for the maintenance of the Wife and their children) to the Wife (see [48] of the GD). At the conclusion of the hearing, we partially allowed the Husband's appeal by awarding him 55% of the matrimonial assets in question, with no change to the maintenance sum awarded to the Wife and the children. We now give the reasons for our decision.

Background facts

2 The couple were married on 19 January 1994 and had three children (presently 17, 13 and 9 years old) before the Wife filed for divorce on 16 July 2009, on the ground of irretrievable breakdown due to the fact that the Husband had behaved in such a way that the Wife could not reasonably be expected to live with him under s 95 (3) (b) of the Women's Charter ( (Cap 353, 1997 Rev Ed) as amended by S 42/2005) (‘Women's Charter’). We pause to note that the wording of the relevant provisions of the governing statute of the present appeal and that of the Women's Charter (Cap 353, 2009 Rev Ed) are the same. The Wife had worked as a quantity surveyor and building manager until 1999 when she became a full-time homemaker. She was thereafter financially dependent on the Husband, who was the Managing Director of his family...