Bjs v Bjt

• Jurisdiction: Singapore
• Judgment Date: 12 July 2013
• Date: 12 July 2013
• Docket Number: Divorce Suit No 3657 of 2008
• Court: High Court (Singapore)

BJS

Plaintiff

and

BJT

Defendant

[2013] SGHC 130

Belinda Ang Saw Ean J

Divorce Suit No 3657 of 2008

High Court

Family Law—Maintenance—Whether amount of final maintenance ordered should be same as interim maintenance

Family Law—Matrimonial assets—Division—Wife working for short period in business built up by husband over 30 years—Husband temporarily installing wife as director and shareholder in related company to carry on business if husband convicted—Whether wife satisfied requirement of substantially improving business—Whether shares in related company were matrimonial assets—Sections 112 (10) (a) (ii) and 112 (10) (b) Women’s Charter (Cap 353, 2009 Rev Ed)

Words and Phrases—“Ordinarily used”—Parties staying in property occasionally during marriage—Whether requirement of “ordinarily used” in s 112 (10) (a) (i) Women’s Charter (Cap 353, 2009 Rev Ed) satisfied if the parties’ stay at property was occasional or casual—Sections 112 (10) (a) (i) Women’s Charter (Cap 353, 2009 Rev Ed)

The parties separated after two years of marriage and the wife and their three-month-old son moved into a five-room HDB flat (“the HDB Flat”) registered in the husband’s name. The wife commenced divorce proceedings on 23 July 2008.

Other than the HDB Flat, there was little agreement over which other assets constituted matrimonial assets. To a lesser extent, the issue of maintenance was also in dispute.

The husband purchased [Property X] in his sole name before the marriage. The parties stayed in [Property X] occasionally during the marriage. [Property Y] was their matrimonial home. The husband’s father was the registered owner of [Property Y]. He passed away before the date of the hearing for ancillary matters. The wife alleged that the beneficial interest in [Property Y] belonged to the husband because (a) he paid for it and (b) it was bequeathed to him in his father’s will (“Will”). The husband did not produce a copy of the Will.

The husband owned and ran a successful business which he built up over 30 years. The business was operated through [Company 1]. The wife worked in [Company 1] prior to and during the marriage. Shortly after the marriage, the husband incorporated [Company 2] and made the wife its director and a 99% shareholder. Between 2002 and 2003, about half the business’ revenue was booked in [Company 2] ’s accounts. The husband was being investigated for tax evasion at the material time and [Company 2] was incorporated by him so that the wife could carry on the business should he be convicted. Following their separation, the wife resigned as a director and transferred her shares back to the husband.

During the marriage, a joint account was opened by the wife and the husband’s late father (“the Joint Account”). About S$650,000 was deposited and withdrawn from the Joint Account around the time the husband was under investigation. The husband also purchased two other assets in the wife’s name during the marriage. These assets were sold after the parties separated and the husband kept the sale proceeds. The husband argued that the two assets (represented by the sale proceeds) as well as his CPF moneys accumulated during the marriage (“the Remaining Assets”) were not matrimonial assets because the wife did not contribute to their acquisition.

In relation to maintenance, the husband was paying an interim maintenance of S$2,000 per month for the wife and the son prior to the hearing. The husband proposed to continue paying the same amount as maintenance.

Held:

(1) In relation to [Property X], since it was acquired by the husband before the marriage, s 112 (10) (a) (i) required it to be “ordinarily used or enjoyed by both parties … while the parties are residing together for shelter … or for recreational purposes” before it could constitute a matrimonial asset. The requirement of “ordinarily used” would not be satisfied if the parties’ use or stay at the property in question was occasional or casual. [Property X] was therefore not a matrimonial asset: at [23] and [24] .

(2) In relation to [Property Y], the husband could have easily produced the father’s Will to rebut the wife’s allegations but chose not to. An adverse inference was drawn from this and [Property Y] should be treated as a matrimonial asset. The position was the same even if the parties were already separated at the time the husband became beneficially entitled to [Property Y]: at [27] and [28] .

(3) In relation to the business, it was not easy for the wife to prove that she had substantially improved it bearing in mind her short marriage, the fact that the husband’s business was already established, and that the effect of any contribution by the wife would take time to mature into discernible contributions to the business. There might be situations where a business took off during a short marriage but this was not the case here. The business was therefore not a matrimonial asset by virtue of s 112 (10) (a) (ii): at [32] .

(4) The wife’s alternative contention that [Company 2] ’s shares were matrimonial assets by virtue of s 112 (10) (b) was unduly technical. On her own case, the husband’s business could not be separated into its constituent companies. To value [Company 2] on its own ignored the realities of how the business was run or the reason why [Company 2] was set up in the first place: at [33] .

(5) In relation to the S$650,000, it was not inconceivable that the husband had “parked” this sum in the Joint Account to keep it beyond the reach of the tax authorities. It was evident that the husband had no qualms about using nominees to hold his interests when it suited his purposes. This sum was to be included in the matrimonial asset pool: at [39] .

(6) In relation to the Remaining Assets, so long as an asset in question fell within the statutory definition of matrimonial assets, the asset was liable for division. Arguments relating to the parties’ respective contributions would be only relevant in determining what was a just and equitable division of these assets. The Remaining Assets were thus liable for division: at [34] and [37] .

(7) In evaluating the parties’ contributions to the marriage and family welfare there was no bias in favour of the income earner who contributed financially to the acquisition and accumulation of the matrimonial assets during the marriage. The indirect contributions of both parties (as the home-maker or child-carer) should be given their full value: at [41] .

(8) Regard should be given to the wife’s assistance rendered to the husband by acting as his nominee (through her appointment as a director and shareholder of [Company 2]) during a particularly difficult period and time of uncertainty. This cooperation enabled the husband to create a working environment for his business to continue: at [43] .

(9) Certain non-disclosures were taken into account in deciding which assets were to be included in the pool of matrimonial assets and their values. Other earlier complaints of non-disclosures were addressed after the husband changed his legal representation. There was no lingering suggestion that the husband was hiding other assets and there was therefore no reason to increase the wife’s award to take into account the husband’s non-disclosures: at [47] .

(10) Having regard to the wife’s indirect contributions and the husband’s direct and indirect financial contributions, and bearing in mind the needs of the son under s 112 (2) (c), the wife should get a 15% share of the matrimonial assets. A just and equitable division would be achieved by the outright transfer of the HDB Flat, free of all encumbrances, to the wife plus a cash component of S$6,507 (round-up to the nearest dollar): at [49] .

(11) There was no reason for the final maintenance order to be pegged to the interim maintenance order, which was usually calculated on a conservative basis. The husband was to pay a monthly maintenance of S$1,800 for the son and S$1,200 for the wife: at [52] to [54] .

BCB v BCC [2013] 2 SLR 324 (folld)

Lee Bee Kim Jennifer v Lim Yew Khang Cecil [2005] SGHC 209 (refd)

Ong Boon Huat Samuel v Chan Mei Lan Kristine [2007] 2 SLR (R) 729; [2007] 2 SLR 729 (distd)

Ryan Neil John v Berger Rosaline [2000] 3 SLR (R) 647; [2001] 1 SLR 419 (refd)

Tang Ngai Sheung Peggy v Wong Yeu Yu [2008] SGHC 221 (refd)

Women’s Charter (Cap 353, 2009 Rev Ed) ss 112 (10) (a) (i) , 112 (10) (a) (ii) , 112 (10) (b) (consd) ;ss 112 (2) , 112 (2) (c) , 112 (10)

Luna Yap (Luna Yap LLC) for the plaintiff

Johnson Loo (Drew & Napier LLC) for the defendant.

Judgment reserved

Belinda Ang Saw Ean J

Background

1 The plaintiff, [BJS] (“the wife”) and the defendant, [BJT] (“the husband”) were married on 6 February 2002 following a short courtship. The husband, a Singapore citizen, is 21 years older than the wife who is a Chinese national. The parties have one child, a son born in December 2003 (“the son”). The marriage lasted for about two years before the parties separated in March 2004. The wife commenced divorce proceedings on 23 July 2008 and interim judgment was granted on 8 October 2008.

2 The wife, now 35 years of age, was studying English in Singapore when the couple first met in 2000. The husband, now 56 years of age, owns a successful business which he built up over the last 30 years. The business is currently operated through a private limited entity referred to herein as [Company 1]. The husband is a self-made man whose wealth is generated by his business efforts and acumen.

3 The parties’ relationship deteriorated shortly after they were married. In early March 2004, after a quarrel, the wife moved into a five-room HDB flat (“the HDB Flat”) with the son who was three months old at the time. Although the parties disputed the exact details of the living arrangement in the HDB Flat, it is clear that the wife and son occupied one of the bedrooms and the rest were rented out to finance part...