BCB v BCC

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 28 January 2013
• Neutral Citation: [2013] SGCA 14
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 15 of 2012
• Year: 2013
• Published date: 05 February 2013
• Hearing Date: 28 November 2012
• Plaintiff Counsel: Raymond Yeo (Raymond Yeo)
• Defendant Counsel: Mimi Oh, Cindy Lim and Simren Kaur (RHT Law Taylor Wessing LLP)
• Subject Matter: Family Law,Matrimonial Assets
• Citation: [2013] SGCA 14

Andrew Phang Boon Leong JA (delivering the judgment of the court):

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.

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.

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

The matrimonial assets of the parties were as follows: The Braemar Home, with an estimated net value (deducting the loan) of $2.3 million; The HDB Flat, with an estimated net value (deducting the loan) of $273,000; Assets in the Husband’s name totalling $60,000; and Assets in the Wife’s name totalling $130,000.

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 and Wife was 34.9:65.1. Insofar as the issue of indirect contributions was concerned, the Judge considered: the length of the marriage (15 years); the birth and upbringing of the three children; that the Husband had been as much involved in the upbringing of the children as the wife; the fact that the Husband travelled frequently and that, during these times, the Wife took care of the children on her own; and that the Wife’s income was principally relied on when the Husband was not doing so well in his business.

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

Our decision Introduction

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

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 (“NK v NL”), for example, this court observed as follows (at [23]–[27]): 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 s 106 of the Women’s Charter (Cap 353, 1985 Rev Ed) where the underlying spirit of s 106(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 commentators have since contended that the traditional approach should apply with equal force under the new s 112 of the Act, which removes the reference to equality (see, for example, Naina Parwani, “Division of Property”, The Singapore Law Gazette (April 2000) at pp 16-18). 24 With respect, we are unable to agree. The traditional approach was considered in the Singapore High Court decision of Soh Chan Soon v Tan Choon Yock [1998] SGHC 204 by Warren L H Khoo J, who interpreted direct financial contributions as only one factor amidst the multifarious factors for consideration (at [6]-[7] and [9]), as follows:

As I said, the learned district judge went meticulously into the arithmetics of how much money each party contributed towards the acquisition of the flat, and came to the percentages she did. In doing this, [her] [H]onour no doubt followed the approach in some reported cases (including some from the High Court). Without intending any criticism, however, I would only say that in the vast majority of the run-of-the-[m]ill cases that come before the courts, for the purpose of arriving at a just and fair division of the matrimonial assets, it is not particularly helpful to try to ascertain, sometimes in the face of conflicting evidence, the exact amount of money that each party has put in directly for the acquisition of the family home.

In the usual situation of a couple with limited means striving to raise a family and building up a home, each party will in the normal course make his or her contribution in monetary or non-monetary terms. If both are working and earning an income, the wife, for example, may pay for the daily household expenses and the children’s needs while the husband may pay the down payment for a flat and the monthly repayments of the mortgage. It cannot in justice be said that the wife does not indirectly contribute to the equity in the flat. In a relationship ruled by the heart rather than the head, she would not keep accounts of what she has expended for the family. When it comes to dividing the family assets in the unfortunate event of a divorce, it would not be right to start from the basis that the party who is shown by documentary evidence to have made direct monetary contribution to the equity of the family home should be treated as having made a greater contribution than the other party.

...

There is a touch of artificiality in such cases to use as the starting point in a division of the matrimonial assets the amount of money each party has contributed directly towards the acquisition of the home. This ignores the indirect contributions, monetary and otherwise, most of which are incapable of any meaningful ascertainment either because no record was kept or because the nature of the contribution is irreducible into monetary terms.

[emphasis added]

25 These observations were cited with approval in the Singapore High Court decision of Louis Pius Gilbert v Louis Anne Lise [1999] 3 SLR(R) 402 by Goh Joon Seng J and considered in the (also) Singapore High Court decision of Yow Mee Lan v Chen Kai Buan [2000] 2 SLR(R) 659 by Judith Prakash J, who emphasised (at [32]) that a party’s financial contributions to the acquisition of any particular matrimonial asset could not be primarily determinative of how it was divided, and that the court was free to give as much weight or more to other non-financial factors. Prakash J further held (at [43]) that:

... [M]arriage is not a business where, generally, parties receive an economic reward commensurate with their economic input. It is a union in which the husband and wife work together for their common good and the good of their children. Each of them uses (or should use) his or her abilities and efforts for the welfare of the family and contributes whatever he or she is able to. The partners often have unequal abilities whether as parents or as income earners but, as between them, this disparity of roles and talent should not result in unequal rewards where the contributions are made consistently and over a long period of time.

26 Prakash J’s approach was unequivocally endorsed by this court in Lim Choon Lai v Chew Kim Heng [2001] 2 SLR(R) 260, where L P Thean JA, who delivered the judgment of the court, stated as follows (at [14]):

In our respectful view, the approach adopted by Judith Prakash J in Yow Mee Lan v Chen Kai Buan [[2000] 2 SLR(R) 659] is correct. In determining a ‘just and equitable’ division of matrimonial assets under s 112(1) of the Women’s Charter, the court must, as directed by s 112(2), have regard to all the relevant circumstances of the case at hand, and in particular the matters enumerated in that subsection, in so far as they are applicable, and on that basis determine what a ‘just and equitable’, division should be. The matters enumerated there comprise both financial and non-financial contributions made by the parties. Where financial contributions are concerned, the court must, of course, take into account the sums contributed by each party; these are the matters specifically mentioned in paras (a) and (b) of s 112(2). However, this does not mean that the court should engage in a meticulous investigation and take an account of every minute sum each party has paid or incurred in the acquisition of the matrimonial assets and/or discharge of any obligation for the benefit of any member of the family, and then make exact calculations of each party’s contributions. The court must necessarily take a broader view than that. As for the non-financial contributions, they also play an important role, and depending on the circumstances of the case, they can be just as important. At the end of the day, taking into account both the financial and non-financial contributions, the court would adopt a broad-brush approach to the issue and make a determination on the basis of what the court considers as a ‘just and equitable’ division. [emphasis added]

27 These clarifications unequivocally reiterate the duty of the court to remain cognisant of the limitations of using the parties’ direct financial contributions as a starting point. This is eminently sensible as direct financial contributions alone are far from determinative of the actual contributions to the economic partnership as a whole. Three...