ATT v ATS

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 03 April 2012
• Neutral Citation: [2012] SGCA 22
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 51 of 2011
• Published date: 10 April 2012
• Year: 2012
• Hearing Date: 06 February 2012
• Plaintiff Counsel: Prabhakaran s/o Narayan Nair (Derrick Wong & Lim BC LLP)
• Defendant Counsel: Koh Tien Hua/ Lim Sok Hui Gina (Harry Elias Partnership LLP)
• Subject Matter: Family Law
• Citation: [2012] SGCA 22

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

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 $8400 (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

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”)¹. 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.² She was thereafter financially dependent on the Husband, who was the Managing Director of his family owned company, [OO] Pte Ltd (“OO”).³

Over the course of their marriage, the couple held three immovable properties as joint tenants,⁴ the distribution of which constituted the crux of this appeal. These consisted of the [DDD] property, a semi-detached house worth about $2.85m (“DDD”); the [MMM] property, an apartment which was valued at approximately $1.85m (“MMM”); and a Malaysian property in Port Dickson (“the Malaysian property”) with an agreed value of $32,866.46 (collectively “the three immovable properties”). The Husband also made two other real estate investments under his own name – the first was at Queen Astrid Park (“the Queen Astrid Park property”), which he bought with two friends and subsequently sold at a profit. His share of the proceeds thereof was then used to fund, inter alia, his purchase of a 20% share in a property at One Jervois (“the One Jervois property”).⁵

The interim judgment for divorce was granted by the Family Court on 6 October 2009. Following this, as the value of the matrimonial assets clearly exceeded $1.5 million, the hearing of ancillary matters was transferred to the High Court which stretched over 5 separate days.

The Wife’s position on the division of matrimonial assets underwent a process of piecemeal refinement. Initially, she asked broadly for a just and equitable share of the matrimonial assets.⁶ During the second hearing on 16 September 2010, she mooted a “property swap” proposal in which MMM would go to her and DDD to the Husband. At this stage, the Wife contended that the Malaysian property should be sold and the proceeds evenly divided. She also staked a claim of 30% over the Husband’s profits from his investment in the Queen Astrid Park property and 30% over the One Jervois property (based on 100% ownership by the Husband absent any documentary evidence to support his claim that he holds only 20% thereunder).⁷ On 30 November 2010, she clarified her position in relation to MMM, offering to take over its outstanding mortgage loan so long as the Husband’s Central Provident Fund (“CPF”) contributions (and any accrued interest thereon) need not be refunded by her. In return, she was prepared to give up her claims to DDD, the investment proceeds of the Queen Astrid Park property, the sale proceeds of the One Jervois property, but still wanted 30% of the moneys in the Husband’s bank accounts.⁸ Her final proposal, confirmed on 22 February 2011, was that she would forego her claims to DDD and all of the Husband’s ancillary assets in exchange for MMM. The outstanding mortgage on MMM would also be borne by her, but the Husband would have to rely on his own resources to refund into his CPF account any moneys (including accrued interest thereon) taken out from that account to pay for the purchase of MMM. Beyond this, each party was to retain all assets and CPF moneys held in their sole names.⁹

The Husband’s position throughout was that MMM should be sold, with the balance of proceeds divided 70:30 in his favour. All the other assets were to be divided 80:20, also in his favour.¹⁰ It was agreed that they should have joint custody of the three children, with care and control to the Wife and reasonable access by the Husband.¹¹

The decision below

The Judge was of the view that the Wife’s proposal for a “property swap” (see [5] above) constituted a just and equitable distribution of the matrimonial assets, and ordered the titles of DDD and MMM, along with any existing liabilities, to be transferred to the Husband and Wife respectively (see at [37] – [38] of the GD). Both parties were also to close all joint investment and bank accounts, with no distribution of moneys left in those accounts, if any. We pause here to observe that the wording of the order relating to the joint investment and bank accounts just mentioned may appear strange – why should there be no division of whatever remained? This was because the net balance of these accounts was in the negative (see [7] of the GD). Apart from this, each party was to retain assets held in his or her respective sole names (see [2] of the GD).

In reaching this conclusion, the learned Judge made the following significant findings of fact and rulings: The Husband failed to make full and frank disclosure of his income (see [9] of the GD); The Husband’s losses in foreign exchange trading (“Forex trading”) were his alone to bear, and no part of the $700,000 loan (which was secured against DDD) taken out to indemnify those Forex losses should be borne by the Wife (see [23] of the GD); and The Wife’s contributions to the Husband’s business [PP] (“PP”), could be traced into capital repayments on the outstanding loan which was taken out to acquire MMM (see [31] of the GD).

Division of the matrimonial assets Principles governing appellate intervention on division of matrimonial assets

The principles governing appellate intervention of the decision of the High Court on the question of division of matrimonial assets were restated in Yeo Chong Lin v Tay Ang Choo Nancy and another appeal [2011] 2 SLR 1157 (“Yeo Chong Lin”) at [80] as follows:

In order for this court to disturb the division ordered by the Judge of 35:65 in favour of the Husband, it must be shown that the Judge had erred in law or had clearly exercised her discretion wrongly or had taken into account irrelevant considerations or had failed to take into account relevant considerations: see Koh Bee Choo v Choo Chai Huah [2007] SGCA 21 at [46].

Whether the Judge below had taken into account irrelevant considerations or had failed to take into account relevant considerations in determining the division of matrimonial assets

As stated in [8] above, the Judge held that the Husband’s Forex trading losses or outstanding liabilities under the $700,000 loan (secured against DDD) should not be borne by the Wife and thus taken into account for the purposes of determining the pool of matrimonial assets. She reasoned at [23] of the GD:

The Wife was a homemaker since 1999 and was financially dependent on the Husband. As the Husband was the sole breadwinner, it fell on the Husband to take on the financial responsibility of taking care of the needs of the family and household as well as to finance the purchases that now represent the bulk of the assets. I did not think that upon termination of the marriage, the family arrangement that had prevailed over the last 15 years should suddenly change in such a way as to make the Wife pay for her share of the investment losses sustained during the marriage.

With respect, we were of the view that the Judge had erred on this point. While it was true that during the currency of the marriage, the Husband bore the financial burden of the family, we were unable to see why that fact should mean that losses suffered by the Husband in his business venture should be disregarded (and his alone to bear) in determining the pool of matrimonial assets to be divided between the parties. The approach taken by the Judge did not seem to accord with fairness or justice. A marriage is in part an economic union in which each spouse’s financial well-being is entwined with the other. Just as gains are shared, so should the losses. It cannot be the case that appreciating assets fall to be divided as part of the common pool whilst depreciating assets or liabilities incurred in seeking to enhance the wealth of the family are attributed entirely to the investing spouse. Adopting such a stance would unfairly penalize the breadwinning party for every financial loss incurred. The present case illustrated this.

For example, in relation to the Husband’s investment in the Queen Astrid Park property, it was not disputed that part of the investment profits was ploughed back into capital repayments on MMM.¹² This was a gain which the Wife benefited from even though it came from the Husband’s investment venture. Further, it was not really in dispute that the $700,000 loan taken out on the security of DDD was to meet the Husband’s Forex losses and that the Wife had also signed the relevant loan documentation.¹³ There was no basis to treat the...