AYQ v AYR and another matter

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 05 November 2012
• Neutral Citation: [2012] SGCA 66
• Court: Court of Appeal (Singapore)
• Hearing Date: 19 October 2012,24 September 2012
• Docket Number: Civil Appeal No 33 of 2012 and Summons No 4696 of 2012
• Plaintiff Counsel: Isaac Tito Shane, Justin Chan Yew Loong and Neo Bi Zhi Peggy (Tito Isaac & Co LLP)
• Defendant Counsel: Imran Hamid Khwaja and Guy Bte Ghazali (Tan Rajah & Cheah)
• Subject Matter: Family Law
• Published date: 15 November 2012

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

This is an appeal against the decision of the High Court Judge (“the Judge”) in AYQ v AYR [2012] SGHC 80 (“the GD”).

The Judge dealt with the following issues: the division of matrimonial assets between the parties, the maintenance for the Wife (“the Appellant”), the maintenance for the two children from the marriage (“the Children”), and the custody and care arrangements for the Children. In the present appeal, the Appellant appealed only against the Judge’s orders relating to the division of the pool of matrimonial assets and maintenance for herself and the Children. No appeal was made in so far as the custody and care arrangements were concerned.

The Appellant also filed Summons No 4696 of 2012 on 17 September 2012 in order to adduce additional evidence before this court (“the new evidence”), comprising the following (in relation to her recent diagnosis of and treatment for breast cancer): the Appellant’s Histopathology Report, the medical certification of her treatment, her Medical Report, copies of her medical receipts as well as her clinic’s sales summary from March 2012 to September 2012. The new evidence might, if admitted, have impacted the issue of maintenance (both with regard to herself as well as her (percentage) contribution to the maintenance of the Children). Counsel for the Husband (“the Respondent”), Mr Imran Hamid Khwaja (“Mr Imran”), helpfully stated that his client had no objection to the adducing of the new evidence but would make submissions with regard to such evidence. This was, in our view, an eminently fair approach to take. We were, in any event, minded to and eventually did admit such evidence based on the applicable legal principles.

After hearing submissions from counsel for both parties, we dismissed the appeal with regard to the issue of maintenance, albeit with liberty to the Appellant and with the appropriate evidence to apply to the court below for a variation of the maintenance order(s). In so far as the issue relating to the division of the pool of matrimonial assets was concerned, we confirmed the classification method adopted by the Judge. However, we varied the percentage of indirect contributions by the Appellant which we felt ought to be allotted a 30% weightage in each of the three asset classes. In the circumstances, the Appellant was awarded 49% (instead of 39%) of the net sales proceeds of the matrimonial home, 30% (instead of 5%) of the Respondent’s share of the Australian house sale proceeds, and 40% (instead of 20%) of the other matrimonial assets (the original orders made by the Judge are also reproduced below at [8]). Viewed from an overall perspective, the Appellant’s share of the entire pool of matrimonial assets amounted to 40.96%, whilst the Respondent’s share amounted to 59.03%. We would like to take the opportunity to emphasise once again that the court’s task, pursuant to s 112 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“s 112”), is to arrive at a “just and equitable” division of the entire pool of matrimonial assets. In this regard, we were of the view that the division made in the present case, as reflected by the respective final overall percentages, did in fact achieve such a result when viewed in the round as well. In the circumstances, we also found it appropriate to make no order as to the costs of the appeal (a similar order, incidentally, having also been made by the Judge in the court below).

We now give the detailed grounds for our decision and also take the opportunity to clarify the role of indirect contributions (particularly with regard to “the classification methodology” first referred to by this court in NK v NL [2007] 3 SLR(R) 743 (“NK v NL”)).

Brief background

By way of brief background, the Appellant is presently 51 years old whilst the Respondent is 53 years old. The parties were married in 1986. The Appellant sought a divorce citing, inter alia, unreasonable behaviour on the part of the Respondent.¹ The marriage ended after 23 years, with interim judgment for divorce being granted on 18 March 2009. There are two children of the marriage – a daughter, aged 20 years and currently pursuing a university education in England and a son, aged 16 years, pursuing his studies at an international school in Singapore.

The Appellant is an aesthetics doctor with Singapore citizenship whilst the Respondent is an eye-surgeon with Australian citizenship. They are both presently in private practice and run their own clinics.

The decision below

The Judge made the following orders on 6 March 2012: Custody of children: That parties be granted joint custody over the children and that the Wife be granted sole care and control with reasonable access to the Husband (see the GD at [4]). Division of matrimonial assets: That the Wife would obtain the following: 20% of $1,323,655.19 which was the parties’ combined matrimonial assets excluding matrimonial home sale proceeds and Australian house sale proceeds (“other matrimonial assets”), 39% of $886,887 which was the net sale proceeds of the matrimonial home, and 5% of $533,122.52 being the Husband’s share of the Australian house sale proceeds. That the Husband would obtain the balance. The sums to be paid by the Husband from the division may be set-off against his share of the matrimonial home sale proceeds. (See the GD at [5]). Maintenance: That the Husband pays the Wife $1 per month from 1 January 2010 for her own maintenance. That the Husband pays 60% of the Children’s maintenance of $2,000 per month, ie, $1,200 per month, from 1 January 2010. That the Wife reimburses the Husband for 40% of the Children’s school fees from 1 January 2009 and 40% of the daughter’s overseas accommodation and living expenses. The Husband is to give reasonable documentary evidence of these items. The sums to be paid by the Wife for reimbursement can be set-off against her share of the matrimonial home sale proceeds. (See the GD at [6]). Costs: That each party was to bear his or her own costs of these ancillary proceedings (see the GD at [7]).

Issues before this court

As noted above (at [2]), the Appellant appealed with regard to the issues pertaining to the division of the pool of matrimonial assets and maintenance, respectively. In the circumstances, there were, in effect, three issues that were raised before this court, as follows: Issue 1: Whether the Judge had accorded sufficient consideration to the Appellant’s indirect contributions in dividing the pool of matrimonial assets between the parties; Issue 2: Whether the Appellant’s percentage contribution to the Children’s maintenance should be decreased (particularly in light of the new evidence); and Issue 3: Whether the quantum of the Appellant’s maintenance ought to be increased (again, particularly, in light of the new evidence).

We turn, first, to consider Issue 1.

Our decision Issue 1: Whether the Judge accorded sufficient consideration to the Appellant’s indirect contributions in dividing the matrimonial assets The Appellant’s arguments

The crux of the Appellant’s case centred on the argument that the Judge had failed to value her indirect contributions sufficiently in dividing the pool of matrimonial assets between the parties. Counsel for the Appellant, Mr Tito Isaac (“Mr Isaac”), submitted that his client was not disputing the specific valuation amounts of the various assets making up the pool of matrimonial assets but that the dispute was only with the percentage of matrimonial assets awarded to her. In this regard, he submitted that an appropriate award for his client ought to be 45% of all matrimonial assets. In support of this, Mr Isaac proffered two specific arguments.

First, Mr Isaac argued that the Judge ought to have used “the global assessment methodology”, and not “the classification methodology”, so as to achieve a just and equitable division of the pool of matrimonial assets. He argued that, in applying “the classification methodology”, the Judge had not given due consideration to her indirect contributions, such as homemaking and child caring, to each class of asset. In particular, Mr Isaac pointed out that the Judge had only attributed 20% of the sale proceeds of the matrimonial home to her indirect contributions and was silent as to her indirect contributions as regards the remaining two classes of matrimonial assets (ie, the Australian house and the other matrimonial assets).

Secondly, Mr Isaac argued that the Judge should have used a broad-brush approach in the division of the pool of matrimonial assets and that he had erred in considering irrelevant considerations while failing to consider relevant ones. He argued that the Judge in finding that the Appellant had an increased interest in her social life, placed excessive emphasis on the findings of the private investigator report submitted by the Respondent resulting in his discounting of her indirect contributions as the Children’s primary caregiver and his failure to appreciate the “true” reason for her departure from the...