BHN v BHO

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 29 April 2013
• Neutral Citation: [2013] SGHC 91
• Court: High Court (Singapore)
• Docket Number: Divorce Suit No 2038 of 2011
• Year: 2013
• Published date: 16 May 2013
• Hearing Date: 16 January 2013
• Plaintiff Counsel: Wong Soo Chih (Ho, Wong & Partners)
• Defendant Counsel: Tan Siew Kim and Christine Tan (RHTLaw Taylor Wessing LLP)
• Subject Matter: Family Law,Matrimonial Assets,Division
• Citation: [2013] SGHC 91

Belinda Ang Saw Ean J: Introduction

The plaintiff (wife) and defendant (husband) were divorced after more than 20 years of marriage. Interim judgment was granted on 13 May 2011. As the parties had agreed on issues relating to the custody, care and control, access and maintenance, the only unresolved issue was the division of the matrimonial assets. At the hearing of the ancillary matters on 16 January 2013, the parties agreed that they each would retain assets in their own names except for the jointly-owned matrimonial home (“the matrimonial property”). Thus, the focal point in the present case was what each side considered to be a just and equitable division of the matrimonial property in light of the parties’ respective contributions during the marriage. Orders were duly made at the end of the hearing.

The extracted Order of Court dated 16 January 2013 read as follows: 3. Orders Made: a. Parties shall have joint custody of the two children of the marriage with care and control of [the son] to the Plaintiff and care and control of [the daughter] to the Defendant. b. There shall be reasonable access of their son to the Defendant. c. There shall be reasonable access of their daughter to the Plaintiff. d. The Defendant to pay a sum of $800 and $400 as monthly maintenance to the Plaintiff and their son with effect from 1 February 2013 and thereafter on the first day of each month. e. The Defendant shall maintain their daughter with no contribution from the Plaintiff. f. As for [the matrimonial property], the respective share of the parties in the property shall be 60% to the Defendant and 40% to the Plaintiff. g. Either party shall have the option to purchase the other’s share in [the matrimonial property] based on the valuation of $1,800,000 less the outstanding mortgage loan amount. Parties to indicate within a month their decision whether to exercise the option. h. If none of the parties wish to exercise the option in paragraph (g) above, [the matrimonial property] is to be sold in the open market at the highest prevailing price within 6 months from the expiry of the option period. i. As for the net sale proceeds derived from either paragraphs (g) or (h) above, it is to be understood that each party is to refund to their own CPF accounts the monies utilized for [the matrimonial property] including accrued interest from their respective net sale proceeds. j. Each party to retain all other assets in their own names. k. There shall be liberty to apply. l. Each party to bear their own costs of the application.

The plaintiff has appealed against her award of a 40% share of the matrimonial property in paragraph 3(f) of the Order of Court dated 16 January 2013. I now set out my grounds of decision on this one issue.

The background facts

The parties were married on 5 May 1989. There are two children of the marriage, a son aged 19 and a daughter aged 17. By May 2008, the parties decided to live separately after almost 20 years of marriage. In MSS 1172 of 2009, the plaintiff applied for interim maintenance for the son and herself. A consent order was reached on 12 June 2009 whereby the defendant agreed to pay the plaintiff a monthly maintenance of $2,200, comprising $400 towards the son’s maintenance, $800 towards utilities, maintenance and property tax of the matrimonial property, and $1,000 towards the mortgage of the matrimonial property. The parties duly entered into a deed of separation on 28 July 2009, which incorporated the terms of the consent order and also set out their agreement on custody, care and control and access of their children. Subsequently, the plaintiff commenced divorce proceedings on 27 April 2011, on the ground of 3 years of separation. As stated, interim judgment was granted on 13 May 2011.

Both parties were gainfully employed throughout most of the marriage. The defendant is 57 years of age and the plaintiff is aged 51 years. When the parties were first married, the defendant was teaching at a university whereas the plaintiff was working at a bank. The defendant worked full-time throughout the marriage and is presently employed at another university. In 2011, his gross monthly income was $16,385. The plaintiff also continued to work full-time at the bank during the marriage, except from August 2007 to December 2008 when she worked part-time. The plaintiff’s gross monthly income was about $10,093 in 2011, but was as high as $13,137 in 2007.

The parties did not purchase their matrimonial home until 1998. Initially, they resided at a hostel at the university where the defendant was teaching at that time. In November 1998, the parties purchased the matrimonial property in their joint names for $830,000.¹ Both parties contributed CPF funds as well as cash towards the initial purchase. The balance of the purchase price was financed by a staff housing loan taken out by the plaintiff, as she was a bank employee.² At least on paper, the mortgage repayments were serviced by the plaintiff by way of CPF contributions as well as a monthly cash instalment of $1,200.

The parties resided at the matrimonial property from 1999 until 2006. Thereafter, the matrimonial property was rented out and the family lived in a rented apartment until their separation in May 2008. After the separation, the defendant continued to live there with their daughter while the plaintiff with their son moved to a rented apartment at Sommerville Park. The monthly rental proceeds of $3,200 from the matrimonial property were wholly applied to the plaintiff’s rental of $4,100 for Sommerville Park, and the defendant paid the shortfall of $900 per month. In July 2009, the plaintiff and the son moved to an apartment at Farrer Road while the matrimonial property was rented out for $3,500 from September 2009 onwards.³ It is not disputed that the rental proceeds from the matrimonial property was applied towards the monthly rental of $2,800 for the Farrer Road apartment and the rental surplus was retained by the plaintiff.⁴ Presently, the defendant resides at another rented apartment with the daughter.

During the marriage, the children’s behavioural problems were a major source of conflict for the parties. The son was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and was prone to violent outbursts. The daughter suffered from Obsessive Compulsive Disorder (“OCD”). Moreover, the children did not get along and the son was often abusive towards his sister. In February 2008, the daughter’s OCD condition deteriorated and the plaintiff admitted the daughter to Mount Elizabeth Hospital despite the defendant’s disapproval. After the daughter’s discharge in April 2008, the daughter went to live with the defendant. However, in June 2008, the plaintiff removed the daughter from the defendant’s care with the assistance of the Ministry of Community Development, Youth and Sports (“MCYS”) and admitted the daughter to the Institute of Mental Health (“IMH”). The defendant appealed to MCYS for an urgent discharge, and the daughter was discharged in September 2008 to the defendant’s care. As an interim arrangement, the daughter went to live with a foster family approved by MCYS.

In late November 2008, the plaintiff again removed the daughter from the foster family and placed her under the maternal grandmother’s care, but took the daughter to her home in February 2009 when the maternal grandmother could not cope with the daughter. The son, however, did not react well to this arrangement and even punched the plaintiff on one occasion. Soon after, the defendant arranged for the daughter to live with the foster family for 2 years while he continued to fetch her to school daily. In mid-2011, the defendant took the daughter to his home and has been caring for the daughter since then.

Division of the matrimonial property

The value of this property was stated to be $1.8m (as at October 2012). There was an outstanding mortgage of about $200,000 as at 4 November 2012. The plaintiff sought a division of the matrimonial property in the ratio of 80% in her favour and 20% to the defendant. On the other hand, the defendant felt that a ratio of 60% in his favour and 40% to the plaintiff was fair, arguing that the court should take into account the rental income from the matrimonial property that was retained by the plaintiff.

In assessing the division of matrimonial property, the search is invariably for the requirements of a just and equitable division. Section 112(2) of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Women’s Charter”) lists the factors to be taken into consideration in light of all the circumstances of the case.

It is quite often that a party seeks to obtain a larger percentage in the division of the matrimonial home by relying on the size of his or her direct financial contributions towards the acquisition of the matrimonial home. It is also not unusual to see one side denigrate or downplay other forms of contributions by the other party to the acquisition of the matrimonial home. In this regard, the judgment of the Singapore Court of Appeal in BCB v BCC [2013] 2 SLR 324 (“BCB”) is a fitting reminder that indirect contributions of every stripe should be taken fully into account, and that direct contributions should not be given undue emphasis (BCB at [8] & [11]). BCB also emphasized that the indirect contributions of both the husband as well as wife should be given their full value (BCB at [12]).

The observations in Soh Chan Soon v Tan Choon Yock [1998] SGHC 204 (“Soh Chan Soon”) (cited in NK v NL [2007] 3 SLR(R) 743 at [24] and BCB at [10]) are equally instructive. In that case, Warren L H Khoo J stated the following (at [7]):

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...