BBD v BBE

• Jurisdiction: Singapore
• Judge: Colin Tan
• Judgment Date: 12 June 2012
• Neutral Citation: [2012] SGDC 206
• Court: District Court (Singapore)
• Docket Number: Divorce Suit No 2548 of 2008
• Published date: 26 June 2013
• Year: 2012
• Hearing Date: 27 October 2011,21 October 2011,10 April 2012
• Plaintiff Counsel: Mr Chen Kok Siang Joseph (Joseph Chen & Co)
• Defendant Counsel: Mr Wang Tsing-I Arthur (Tan Kim Seng & Partners)
• Citation: [2012] SGDC 206

District Judge Colin Tan: Introduction

The parties were married in May 2002. According to the Plaintiff’s Statement of Claim, the Plaintiff wife was a citizen of China, the Defendant husband was a citizen of Singapore, and the parties had one child who was born in March 2003.

In May 2008, the Plaintiff commenced these divorce proceedings, and Interim Judgment was granted in November 2008 on the basis that each party had behaved in such a way that the other party could not reasonably be expected to live with him or her.

According to the Plaintiff’s Counsel’s submissions during the hearing, the Plaintiff wife wanted 99% of the parties’ matrimonial flat, $30,000 in cash being the value of the Defendant’s car, $12,149.84 being the surrender value of the Defendant’s insurance policies, $10,500 being the value of the Defendant’s shares, $2,479.48 being the amount standing in the Defendant’s bank account, and the entire sum standing in the Defendant’s CPF Ordinary Account. The Plaintiff also wanted care and control of the child who had been staying with the Defendant and/or his parents for the past 7 years as well as $2,000 each month as maintenance ($500 for herself and $1,500 for child) from the Defendant whose take-home pay was $2,467.09.

After considering the affidavits filed by the parties and the submissions of both counsel, I made the following orders: The Plaintiff and the Defendant are to have joint custody of the child of the marriage, namely H. The Defendant husband is to have care and control of the said child. The Plaintiff wife is to have supervised access to the said child for 3 hours every Saturday at a time and place to be mutually arranged by the parties. The Defendant is at liberty to take the child out of jurisdiction as permitted under the Women’s Charter. The parties’ matrimonial flat at xxx is to be transferred to the Defendant husband. The said flat is to be transferred within 2 months of the date of the Certificate of Making Interim Judgment Final. The Registrar (and Deputy Registrar) of the Subordinate Courts is empowered, under the Subordinate Courts Act, to sign and execute all necessary documents to effect the said transfer in the event that either party fails to do so within 7 days of written notice from the other party. Save as aforesaid, neither party shall have any claim against assets held in the other party’s name. The Defendant husband is to pay to the Plaintiff wife $1 per month as maintenance for the Plaintiff wife. The Plaintiff wife is to pay to the Defendant husband $200 per month as maintenance for the parties’ said child. The aforesaid maintenance is to be paid by each party on the 1st day of each month with effect from 1st May 2012 and the parties are to deposit the said sums directly into the other party’s designated bank account. Each party is to bear his or her own costs. The parties shall be at liberty to apply.

The Plaintiff wife, being dissatisfied, has appealed and I now set out herein the reasons for my decision.

Affidavits and documents

The Plaintiff filed the following affidavits and documents for the ancillary matters hearing: Plaintiff’s 1st Affidavit filed on 6th March 2009; Plaintiff’s 2nd Affidavit filed on 19th August 2010; Plaintiff’s 3rd Affidavit filed on 10th January 2011; Plaintiff’s 4th Affidavit filed on 28th March 2011; Plaintiff’s 5th Affidavit filed on 25th October 2011 (This Affidavit was first produced during the Ancillary Matters hearing on 21st October 2012 and, during the hearing, the Plaintiff’s Counsel stated that he only wished to rely on paragraphs 14, 15 and 16 of the report exhibited and that he did not wish to rely on the rest of the affidavit or the rest of the report. The Plaintiff’s Counsel also stated that these paragraphs were only of relevance to the issue of care and control. Although the Defendant’s Counsel objected to the admission of this Affidavit, I was of the view that the Plaintiff should not to be deprived of the opportunity to put forward evidence that might be relevant and I allowed the use of this Affidavit to the extent stated by the Plaintiff’s Counsel.) Plaintiff’s sister’s Affidavit filed on 10th January 2011; Plaintiff’s 1st Fact and Position Sheet filed on 23rd February 2011; Plaintiff’s 2nd Fact and Position Sheet filed on 7th March 2011; Plaintiff’s 1st Declaration of Value of Matrimonial Assets filed on 23rd February 2011; Plaintiff’s 2nd Declaration of Value of Matrimonial Assets filed on 7th March 2011; and Plaintiff’s Counsel’s Written Submissions filed on 20th May 2011.

The Defendant filed the following affidavits and documents for the ancillary matters hearing: Defendant’s 1st Affidavit filed on 5th March 2009; Defendant’s 2nd Affidavit filed on 20th August 2010; Defendant’s 3rd Affidavit filed on 6th December 2010; Defendant’s Fact and Position Sheet filed on 6th December 2010; Defendant’s Declaration of Value of Matrimonial Assets filed on 6th December 2010;and Defendant’s Counsel’s Written Submissions filed on 21st October 2011.

Matrimonial assets

According to the parties’ Fact and Position Sheets, the parties’ matrimonial assets were as follows: matrimonial flat (xxx); Defendant’s CPF monies, insurance policies, monies in bank account, shares and motor vehicle; Plaintiff’s CPF monies and monies in bank account (both of these assets were omitted from the Plaintiff’s Fact and Position Sheets filed and the Fact and Position Sheets filed by the Plaintiff appeared to give the wrong impression that the Plaintiff had no assets at all); and Plaintiff’s monies amounting to $150,000 to $200,000 (these monies were in dispute as the Plaintiff denied having these monies).

The Plaintiff’s position

The Plaintiff’s position, as stated both Fact and Position Sheets filed by her, was as follows:

“The Plaintiff proposed that the Defendant shall give all his assets as per Agreement dated 5th March 2005 which includes his CPF monies, salaries, gold, jewelleries etc to the Plaintiff.”

During the hearing on 21st October 2011, the Plaintiff’s Counsel stated that the Plaintiff wanted the following: 99% of the matrimonial flat; $30,000 in cash being the value of the Defendant’s car; $12,149.84 in cash being the surrender value of the Defendant’s insurance policies; $10,500 in cash being the total value of the Defendant’s shares; $2,479.48 being the amount standing in the Defendant’s bank account; the entire sum standing in the Defendant’s CPF Ordinary Account.

The Defendant’s position

During the hearing on 21st October 2011, the Defendant’s Counsel stated that the Defendant wanted the following: the matrimonial flat which he had paid for solely to be transferred back to him; that the Plaintiff repay a loan of $8,000; and save for the above, each party was to retain the assets held in their own names.

The matrimonial flat

The parties’ matrimonial flat was purchased in the Defendant’s sole name in 2002. In 2005, the Defendant transferred 99% of the flat to the Plaintiff and the flat was thereafter held by them as tenants in common.

It was not disputed that the flat had been paid for by the Defendant and the Plaintiff admitted in both of her Fact and Position Sheets that she had not made any CPF or cash contributions towards the purchase of the said flat.

Was the transfer of the matrimonial flat a gift from the Defendant to the Plaintiff?

The Defendant’s version was that the transfer had taken place because the Plaintiff had threatened to leave him and return to China if he did not transfer 99% of the flat to her.

The Plaintiff’s initial version was that the transfer was voluntary and was a gift by the Defendant. Subsequently, the Plaintiff claimed that the transfer took place because she had caught the Defendant “womanizing” and that the Defendant had begged for forgiveness and “to demonstrate his earnest” he had promised to give her, among other things, 99% of the flat.

Although it was curious why the Plaintiff waited until a later affidavit before giving more details about the circumstances surrounding the transfer, I was of the view that this delay, in itself, was insufficient to demonstrate that the Plaintiff’s version was less credible than the Defendant’s version.

Given that the Defendant had executed the transfer and had failed to prove that this transfer was involuntary, I was not prepared to make a finding that the transfer was based on coercion. As such, I accepted the Plaintiff’s position that the transfer had been a gift from the Defendant to the Plaintiff.

Plaintiff’s argument that the matrimonial home ceased to be a matrimonial home after the transfer was executed

The Plaintiff’s Counsel argued (at paragraph 18 of his written submissions) that the matrimonial home ceased to be a matrimonial home when the Defendant executed the transfer in March 2005.

In Leong Choon Kum v Chia Kin Tuck [2005] SGHC 73, one of the parties had also argued that the property in question was not a matrimonial home and was therefore not a matrimonial asset. The parties had lived in the property for many years and the district judge hearing the matter had observed that the parties had made statements as to the status of the property as a matrimonial home in their affidavits and therefore held that it was a matrimonial asset. On appeal, Lai Siu Chiu J held that the district judge was correct in holding that the property was a matrimonial asset.

In the current case, the Plaintiff stated that she had lived with the Defendant “at our flat from May 2003 to October 2007” (paragraph 19 of Plaintiff’s 1st Affidavit) and she described the property as “the matrimonial flat” in her affidavits (e.g. at paragraph 7 of her 1st Affidavit and paragraph 55 of her 2nd Affidavit).

If the flat had ceased to be the parties’ matrimonial flat from March 2005 when the transfer was...