Bcb v Bcc

JurisdictionSingapore
Judgment Date28 January 2013
Date28 January 2013
Docket NumberCivil Appeal No 15 of 2012
CourtCourt of Appeal (Singapore)
BCB
Plaintiff
and
BCC
Defendant

Sundaresh Menon CJ

,

Andrew Phang Boon Leong JA

and

Tan Lee Meng J

Civil Appeal No 15 of 2012

Court of Appeal

Family Law—Custody—Care and control—Wife awarded care and control of children—Whether order should be varied

Family Law—Matrimonial assets—Division—Wife providing more direct financial contributions to assets—Husband making indirect contributions—Whether both spouses' indirect contributions had to be taken into account when court exercised discretion—Section 112 Women's Charter (Cap 353, 2009 Rev Ed)

Family Law—Matrimonial assets—Division—Wife providing more direct financial contributions to assets—Husband making indirect contributions—Whether broad-brush approach towards division of matrimonial assets should be used—Whether forensic search for actual financial contributions failed to adequately value indirect contributions—Section 112 Women's Charter (Cap 353, 2009 Rev Ed)

Family Law—Matrimonial assets—Division—Wife providing more direct financial contributions to assets—Husband making indirect contributions—Whether broad-brush approach towards division of matrimonial assets should be used—Whether traditional approach should be used instead—Section 112 Women's Charter (Cap 353, 2009 Rev Ed)

Family Law—Matrimonial assets—Division—Wife providing more direct financial contributions to assets—Husband making indirect contributions—Whether same principles of division applied where wife provided more direct financial contributions—Section 112 Women's Charter (Cap 353, 2009 Rev Ed)

Family Law—Matrimonial assets—Division—Wife providing more direct financial contributions to assets—Husband making indirect contributions—Whether there was starting point of equal division of matrimonial assets—Section 112 Women's Charter (Cap 353, 2009 Rev Ed)

A marriage of 15 years, which saw the birth of three children, came to an end and the husband (‘the Husband’) and wife (‘the Wife’) sought their respective shares of the matrimonial assets as well as care and control orders. With respect to the issue of the division of the matrimonial assets, there were four classes of assets, but the judge below found it appropriate to exclude two of those classes in relation to the division exercise, ordering that each party retain their respective assets. This left two assets to be dealt with: (a)the Braemar home, and (b)the HDB flat (‘the Properties’). The judge below found that the ratio of direct contributions by the Husband and Wife was 34.9: 65.1. With respect to indirect contributions, the judge below awarded the wife another 5% for indirect contributions. He ordered that the Properties be divided in the proportion of 30% to the Husband and 70% to the Wife.

Held, allowing the appeal in part:

(1) The Husband's appeal with regard to the issue of care and control of the children was wholly without merit: at [2] .

(2) The traditional approach towards the division of matrimonial assets placed undue emphasis on direct contributions. The Judge applied, in substance, the traditional approach. The broad-brush approach should have been utilised instead: at [8] and [9] .

(3) An approach rooted in the forensic search for the actual financial contributions of the parties towards the acquisition of the assets would inevitably fail to adequately value the indirect contributions made towards the other expenses that were incurred in the course of raising a family and would also be a heavily fact-centric exercise: at [10] .

(4) The Singapore courts had avoided extreme points of departure. There was no starting point of an equal division of matrimonial assets: at [10] .

(5) It was not simply one or the other spouse's indirect contributions that had to be given their full value. Both spouses' indirect contributions had to be taken fully into account when the court was exercising its discretion pursuant to s 112 of the Women's Charter (Cap 353, 2009 Rev Ed): at [12] .

(6) The trend from past cases which shared broadly similar facts appeared to be that for marriages of moderate lengths of time or for marriages which had lasted for a very long time and where there were children to the marriage and both parties were working and had made direct as well as indirect contributions to the marriage, the courts would recognise all these contributions despite arguments to the effect that one party had made more direct financial contributions: at [27] .

(7) Simply because the facts of the present case were slightly different in so far as it was the wife (instead of the husband) who had contributed more direct financial contributions to the assets did not mean that the same principles of division did not apply in the present case: at [35] .

(8) The Judge appeared to accord too much emphasis to the direct financial contribution of the parties. The Judge did not take sufficient account of the Husband's indirect financial contributions: at [36] and [37] .

(9) Taking into account all the relevant circumstances, the net sale proceeds from the Properties should be divided in the proportion of 40% to the Husband and 60% to the Wife: at [40] .

AEL v AEM [2009] SGDC 413 (refd)

AHJ v AHK [2010] SGHC 148 (refd)

AKF v AKG [2010] SGHC 225 (refd)

AYQ v AYR [2013] 1 SLR 476 (refd)

Chow Hoo Siong v Lee Dawn Audrey [2003] 4 SLR (R) 481; [2003] 4 SLR 481 (refd)

Liew Chui Fong v Yew Kok Chin [2007] SGHC 225 (refd)

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

Lim Ngeok Yuen v Lim Soon Heng Victor [2006] SGHC 83 (refd)

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

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

Pan Yee Ching v Wee Aik Joo [2001] SGHC 351 (refd)

Pang Rosaline v Chan Kong Chin [2009] 4 SLR (R) 935; [2009] 4 SLR 935 (refd)

Soh Chan Soon v Tan Choon Yock [1998] SGHC 204 (refd)

Wong Suit Kam v Tan Beng Wah Benny [2006] 2 SLR (R) 601; [2006] 2 SLR 601 (refd)

YG v YH [2008] SGHC 166 (refd)

Women's Charter (Cap 353, 2009 Rev Ed) s 112 (consd)

Raymond Yeo (Raymond Yeo) for the appellant

Mimi Oh, Cindy Lim and Simren Kaur (RHT Law Taylor Wessing LLP) for the respondent.

Judgment reserved.

Andrew Phang Boon Leong JA

(delivering the judgment of the court):

1 This is an appeal by the husband against the decision of the judge (‘the Judge’) in BCB v BCC [2012] SGHC 144 (‘the GD’) with regard to two issues, viz,the issue of care and control of the children and the division of matrimonial assets pursuant to s 112 of the Women's Charter (Cap 353, 2009 Rev Ed) (‘the Act’), respectively.

2 After considering the submissions of the parties, we were of the view that the husband's appeal with regard to the issue of care and control of the children was wholly without merit and dismissed the appeal for the reasons given by the Judge in the GD.

3 However, we reserved judgment with regard to the issue relating to the division of matrimonial assets. Let us now turn to the background briefly before setting out our decision in relation to this particular issue.

Decision below in relation to the division of matrimonial assets

4 The matrimonial assets of the parties were as follows:

(a) the Braemar home, with an estimated net value (deducting the loan) of $2.3 million;

(b) the HDB flat, with an estimated net value (deducting the loan) of $273,000;

(c) assets in the husband's name totalling $60,000; and

(d) assets in the wife's name totalling $130,000.

5 The Judge found it appropriate to exclude items (c) and (d) in the preceding paragraph from the equation, ordering that each party retain their respective assets. In so far as items (a) and (b) (‘the Properties’) were concerned, the Judge found that the ratio of direct contributions by the husband (‘the Husband’) and wife (‘the Wife’) was 34.9:65.1. In so far as the issue of indirect contributions was concerned, the Judge considered:

(a) the length of the marriage (15 years);

(b) the birth and upbringing of the three children;

(c) that the Husband had been as much involved in the upbringing of the children as the wife;

(d) the fact that the Husband travelled frequently and that, during these times, the Wife took care of the children on her own; and

(e) that the Wife's income was principally relied on when the Husband was not doing so well in his business.

6 Having regard to the circumstances, the Judge awarded the Wife an additional 5% for indirect contributions.

Our decision

Introduction

7 The general principles which ought to guide the courts with regard to the division of matrimonial assets pursuant to s 112 of the Act (‘s 112’) are well-established and we therefore do not propose to rehearse them in detail here. We would only observe that, in the context of the present appeal, the very fundamental principle that the court concerned ought to utilise a broad-brush approach should be borne firmly in mind.

Broad-brush approach instead of the traditional approach

8 It bears reiterating that this court, has, on previous occasions, stated its inability to agree with the traditional approach towards the division of matrimonial assets, which places undue emphasis (or even focus) on direct contributions. In NK v NL [2007] 3 SLR (R) 743, for example, this court observed as follows (at [23] - [27] ):

  1. 23 The traditional approach is to consider direct contributions as a prima facie starting point before making adjustments to reflect the non-financial contribution of the parties (see, for example, Tan Bee Giok v Loh Kum Yong [1996] 3 SLR (R) 605 ('Tan Bee Giok') at [47] ). This prevalent approach of the courts held sway under the former s106 of the Women's Charter (Cap 353, 1985 Rev Ed) where the underlying spirit of s106 (2) was to lean towards equality subject to the considerations mentioned therein. This appears to be the approach adopted by the Judge in the present case. Some...

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