BJS v BJT

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 12 July 2013
• Neutral Citation: [2013] SGHC 130
• Court: High Court (Singapore)
• Docket Number: Divorce Suit No 3657 of 2008
• Year: 2013
• Published date: 28 August 2013
• Hearing Date: 02 May 2013,27 February 2013,22 November 2012
• Plaintiff Counsel: Luna Yap (Luna Yap LLC)
• Defendant Counsel: Johnson Loo (Drew & Napier LLC)
• Subject Matter: Family Law,Custody,Matrimonial Assets,Division,Maintenance
• Citation: [2013] SGHC 130

Belinda Ang Saw Ean J: Background

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.

The wife, now 35 years of age, was studying English in Singapore when the couple first met in 2000.¹ 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 1.² The husband is a self-made man whose wealth is generated by his business efforts and acumen.

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 of the wife and son’s living expenses. This letting arrangement ceased sometime in 2010.³ Currently, the wife and son live in the HDB Flat with the wife’s parents who had come from China to be with their daughter and her son.

Even after the wife left her husband, she continued to be gainfully employed in various companies, taking home a gross monthly salary of between S$1,400 and S$1,560. She is currently a part-time sales person and earns about S$1,000 a month.

Custody, care and control and access

The wife wants sole custody, care and control of the son. The husband has no objection to the wife’s application. At the same time, he did not ask for access. In these circumstances, I ordered that the wife be given sole custody, care and control of the son with reasonable access to the husband.

Division of Matrimonial Assets Disclosed assets

An area of dispute that dominated the ancillary proceedings was what assets (including the husband’s business) should be taken into account in the division. Save for their CPF accounts, I propose to touch on the source and nature of the assets in turn.

The husband’s business

Prior to and during the marriage, the wife worked in Company 1 drawing a monthly salary of S$1,500.⁴ She later became a director of Company 1 on 21 May 2001 until 16 January 2002.⁵ In April 2002, two months after the marriage, the husband incorporated Company 2. The wife was a director and the largest shareholder holding 99% of the issued shares in Company 2. The other director and shareholder of the remaining 1% share in Company 2 was the husband’s late father. However, the husband subsequently became a director and shareholder of Company 2 after the wife (following instructions from the husband) resigned as a director and transferred her shares on 20 June 2005. Company 2 was struck off the company register on 4 April 2008.

Another company, Company 3 was incorporated in 1996 prior to their marriage. The husband was a director of Company 3 but he was not a shareholder. The wife was neither a shareholder nor an officer of Company 3. Although the shares in Company 3 were not held by the parties, it was not disputed that the husband ran some of his business through Company 3. Company 3 was struck off the company register in 2006.

Xiamen property

There was an apartment in Xiamen, China, worth about RMB 800,000 (“the Xiamen property”).⁶ It is not disputed that the husband paid for the Xiaman property which was registered in the wife’s name. According to the husband, the use of the wife’s name for the purchase was purely for convenience as the wife was a Chinese national.⁷

The Xiamen property was sold at the end of 2004,⁸ but the husband kept the proceeds of sale for himself.⁹ According to the wife, the husband indicated his desire to sell the Xiamen property in early 2004. On 29 July 2004, the husband and wife signed an agreement (“the Child Support Agreement”) whereby the husband agreed, inter alia, that upon the sale of the Xiamen property, the husband would deposit the proceeds of sale into the son’s bank account for his maintenance. The parties also agreed that both the wife and son would have the right to occupy the HDB Flat. The husband rejects the Child Support Agreement as non-binding and unenforceable.

I should mention that the wife alleges that her parents contributed a sum of S$20,000 towards renovating and furnishing the Xiamen property.¹⁰ The husband does not deny this. However, I will not say more about this contribution since no claim for reimbursement is made.

Singapore assets

The husband owned a landed property, Property X, which was purchased before the marriage. Although the parties had lived in Property X during the marriage, there is a dispute over the duration and frequency of their stay there.

Prior to separation, the husband and wife lived with the husband’s late father in an apartment in a condominium development (ie, Property Y). At the material time, the registered proprietor of Property Y was the husband’s father. To all intents and purposes, Property Y, in my view, was the parties’ matrimonial home.

The other property acquired by the husband during the marriage is the five-room HDB Flat. The HDB Flat was purchased in the husband’s sole name.

I now come to the wife’s car, a Toyota Corolla (“the Toyota”) that was purchased by the husband. After the wife moved to the HDB Flat, she continued to have the use of the Toyota until April 2004 when the husband sold it and kept the proceeds of sale.¹¹

Finally, the joint bank account. On 13 December 2002 (ie during the marriage), a joint account at the DBS Bank was opened in the name of the wife and her father-in-law (“the Joint Account”). Between 13 December 2002 and 31 December 2002, about S$650,000 was deposited and withdrawn from the Joint Account. There is a dispute as to whether this amount should be added to the matrimonial asset pool.

Parties’ position on the division of matrimonial assets

As stated, the dispute before me was over the assets to be included in the matrimonial asset pool as well as their respective values. According to the wife, the matrimonial assets and their respective values are as follows:

S/No	Item	Value (SGD)
(1)	Property X	11,000,000.00
(2)	Property Y	2,200,000.00
(3)	Company 1 and related companies	6,640,440.00
(4)	HDB Flat	500,000.00
(5)	Net sale proceeds of the Xiamen property	240,000.00
(6)	Purchase value of Toyota	68,000.00
(7)	Husband’s CPF between 2002 and 2004	64,832.00
(8)	Wife’s CPF between 2002 and 2004	2,229.79
(9)	Money in DBS Joint Account in the names of the husband’s late father and the wife	650,000.00
	Total	21,363,501.79

The wife says that for her indirect contributions to the marriage and family, she is entitled to 10% of the value of the above assets and an additional 5% in light of the husband’s failure to make full and frank disclosure of his assets.

On the other hand, the husband’s contention is that the only matrimonial asset that is subject to division is the HDB Flat. The husband’s proposal is that the HDB Flat be sold in the open market and the net proceeds of sale (after deduction of the outstanding loan on the HDB Flat, refund of the husband’s CPF monies (including accrued interest) and cost and expenses of sale) be utilised towards the purchase of a three-room HDB flat in the same location for the wife and son (“replacement flat”). If the net proceeds of sale are insufficient to purchase a replacement flat, he is ready to make good the shortfall.

As for the wife’s asset values stated in [17] above, the husband maintains that the figures are exaggerated and inflated.

What are “matrimonial assets”?

The statutory definition of “matrimonial assets” is set out in s 112(10) of the Women’s Charter (Cap 353, 2009 Rev Ed):

(10) In this section, “matrimonial asset” means — (a) any asset acquired before the marriage by one party or both parties to the marriage — (i) ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter or transportation or for household, education, recreational, social or aesthetic purposes; or (ii) which has been substantially improved during the marriage by the other party or by both parties to the marriage; and (b) any other asset of any nature acquired during the marriage by one party or both parties to the marriage,

but does not include any asset (not being a matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage.

Property X

The wife argues that Property X is a matrimonial asset because the parties had resided in that property during their marriage. The husband disagrees, maintaining that it was a property acquired before the marriage and it was not the place where the parties normally lived nor was the purpose and length of stay enough to satisfy the tests in s 112(10).

In relation to assets acquired by one party before the marriage, s 112(10)(a)(i) requires the property to be “ordinarily used or enjoyed by both parties ... while the parties are residing together for shelter…or for recreational purposes” before the property can be considered a matrimonial asset. In Ryan Neil John v Berger Rosaline [2000] 3 SLR(R) 647 at [59]-[60], Prakash J agreed with the District Judge...