BNS v BNT

• Jurisdiction: Singapore
• Judge: Valerie Thean JC
• Judgment Date: 27 February 2017
• Neutral Citation: [2017] SGHCF 5
• Docket Number: Divorce Transfer No 704 of 2011
• Date: 27 February 2017
• Published date: 04 March 2017
• Plaintiff Counsel: Lee Ming Hui Kelvin and Samantha Ong Xin Mun (Wnlex LLC), Sunitha Parhar (instructed) (S S Parhar Law Corp)
• Defendant Counsel: Khoo Boo Teck Randolph, Moraly Joseph Veronica and Ho Wei Jing, Tricia (Drew & Napier LLC),Amolat Singh (Amolat & Partners) as the Child Representative.
• Court: High Court (Singapore)
• Hearing Date: 09 November 2016,12 December 2016,13 January 2017,30 November 2016
• Subject Matter: Child,Division,Matrimonial assets,Custody,Care and control,Family law,Maintenance,Gifts,Joint custody,Wife,Access

Valerie Thean JC: Introduction

Both the Defendant (“the Husband”) and the Plaintiff (“the Wife”) are Canadian citizens. He is a 50-year old lawyer in a global law firm, she is a 49-year old part-time events planner. Parties married on 11 May 2002 in Toronto, Canada. Both have been permanent residents of Singapore since 2003. There are two children of the marriage who are not permanent residents. Their daughter is aged 10 and their son is aged 9. The Wife commenced divorce proceedings on 17 February 2011. Interim judgment (“IJ”) was granted on 26 March 2012.

Parties have been before various courts for various related proceedings, including personal protection order applications against each other, multiple applications in their divorce and the Wife’s application for relocation, which was dealt with by the Court of Appeal in BNS v BNT [2015] 3 SLR 973 (“BNS v BNT (Relocation CA)”).

This judgment deals with parties’ ancillary matters, in particular: (i) the division of their matrimonial assets; (ii) maintenance for the Wife and children; and (iii) orders for the children as to custody, care and control and access.

Division of Assets

The first task is to ascertain the size of the matrimonial pool for division between the parties.

Matrimonial Assets

Parties were in agreement that the date of the interim judgment would be the relevant date for determining the pool of matrimonial assets to be divided. There were four main areas of dispute in relation to the constitution of this pool: the sale proceeds of a condominium in Thailand (“Thai Condo”), a cottage in Canada in the joint names of the parties (“Canadian Cottage”), a sum inherited by the Wife (“Internaxx Account”), and certain alleged dissipation of assets by the Husband.

I will deal with these specific issues first before setting out the overall division of the matrimonial pool.

Thai Condo sale deposit

The parties moved to Bangkok, Thailand, in October 2004 and purchased a condominium there in July 2005, which served as their matrimonial home and where they started a family. The Thai Condo was registered in the Wife’s sole name, and in 2011 she gave instructions to sell the property. In May 2011, a deposit of around 10% of the sale price of the Thai Condo was transferred into the Wife’s bank account.¹ In the present proceedings, parties dispute whether this 10% deposit should be taken into account as part of the matrimonial pool. The Wife contends that she spent the sum on rental and legal fees. The Husband claims that this sum should be added to the matrimonial pool because the Wife has not satisfactorily accounted for its expenditure.

I note that the Wife has only spent S$73,175.41 out of the deposit of S$99,592.67: the remainder of S$26,417.26 sits in her DBS xxx-x-xx2625 (Savings Account).² Regarding the expended S$73,175.41, the Wife did not receive any maintenance for a 15-month period from May 2011 to July 2012, which was largely before the IJ. This sum would work out to about S$4,878 per month. In my view, it is just and equitable to take the expended sum as a reasonable sum that the Wife would have spent on maintenance for herself and the children during that time. I thus hold that the expended sum was legitimately spent by the Wife. The unexpended remainder of S$26,417.26, however, remains liable for division as part of the assets within the matrimonial pool.

Canadian Cottage

The Husband claims that only 2/3 of the value of the Canadian Cottage should be taken into account in determining the matrimonial pool because 1/3 of the cottage was a gift and only 2/3 was obtained by acquisition. The Canadian Cottage was initially acquired by the Husband’s parents in 1971.³ The Husband claims that 1/3 of the interest in the property was gifted to him as part as his inheritance in 2008, and was transferred to him and the Wife as joint tenants.⁴ He further paid C$135,000 to each of his two sisters for each of their 1/3 share of the property, using funds from a joint account held by him and the Wife.⁵

In my view, the entire Canadian Cottage is liable for division. Section 112(10) of the Women’s Charter (Cap 353, 2009 Rev Ed) (“WC”) states:

(10) In this section, “matrimonial asset” means — (a) any asset acquired before 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.

Under s 112(10)(b) of the WC, “matrimonial asset” is defined as including assets “acquired during the marriage by one party or both parties to the marriage”. The Canadian Cottage was transferred to the Husband and the Wife in 2008 and clearly satisfied s 112(10)(b) of the WC. The only issue is whether the proviso applies. I find that it does not. In respect of the argument that the Canadian Cottage was partially a gift or inheritance, it is significant that the Husband’s father placed the Canadian Cottage in both the Husband’s and the Wife’s names as joint tenants. The property cannot be said to be a gift only to the Husband. The proviso in s 112(10) applies only to assets “acquired by one party… as a gift or inheritance.” It is also not disputed that the Wife contributed financially to the acquisition of the sisters’ shares of that property. Thus, the property is liable for division in its entirety.

Internaxx Account

This disputed sum arises from two payments originating from the Wife’s late father’s estate that were made to a Hong Kong Citibank account, which was in the Wife’s sole name, in 2005 and 2008 respectively. In 2009, the Wife opened a Luxembourg (Internaxx) Account in her sole name with these same funds (“Internaxx Account”). She thus contends that her inheritance contained in the Internaxx Account has been segregated from other funds within the matrimonial pool, and accordingly remains her sole property.⁶

The Husband, however, submits that during the marriage there was no distinction between funds held in the bank accounts of parties’ joint or individual names.⁷ He argues that the long-term financial plans, prepared by investment advisors Raymond James Canada and Creveling & Creveling Bangkok (“Creveling”) in 2006 and 2009 respectively, reflected the parties’ understanding that funds originating from the Wife’s inheritance would be utilized for long-term family investments.⁸ In particular, the Husband submits that parties jointly engaged Creveling in 2008 to advise them on their investments, including on the Internaxx Account, and transferred some funds to Luxembourg in 2009 for family investment purposes on their advice.⁹ The Husband further submits that he continued to help with these advisors until December 2010 and managed the family’s finances with a view to the Internaxx Account being used as the family’s long-term investment vehicle.¹⁰ The Husband contends that the above facts show the clear intent of the Wife to share the inheritance contained in the Internaxx Account with him as part of the family’s assets, even though events never formally caught up.¹¹ He also points to a form to make the Internaxx Account a joint account between the parties, which he signed, but not the Wife.¹²

Since the asset concerned was acquired by the Wife during the course of the marriage, the sole issue is whether the proviso in s 112(10) of the WC applies to exclude the funds in the Internaxx Account from the matrimonial pool. In my view, the proviso is satisfied as the Husband has not substantially improved the asset during the course of the marriage. I do not accept, based on what is before me, that the Husband’s being a co-client of Creveling or his involvement in the setting up of the account constitutes improvement of the asset, substantially or otherwise. The Husband’s indirect contribution of the kind that goes towards the general welfare of the family is also in itself “too vague and remote to justify a finding that the spouse concerned had helped to substantially improve an asset within the meaning of s 112(10)” (Chen Siew Hwee v Low Kee Guan [2006] 4 SLR(R) 605 at [51] (“Chen Siew Hee”)).

Further, the Wife has not evinced any intention to share the asset with the Husband. The Husband places reliance on Chen Siew Hwee for the proposition that inherited assets would form part of the matrimonial pool if they were utilised “for and on behalf of the family” or if it could be “demonstrate[d] that there was a real and unambiguous intention on the part of the [heir] that the [inherited] assets… were to constitute part of the pool of matrimonial assets” (at [57]). That is, however, not the case here, as the Wife’s inheritance funds had been kept separate throughout the material time and have not been commingled with the family’s assets, despite there being some degree of active management and transference of the funds from the Wife’s Citibank account in Hong Kong to the Internaxx Account. Further, the fact remains that the form to create a joint account on these funds was not signed by the Wife. These two facts show that there was no requisite intention on the Wife’s part such that her inheritance in the Internaxx Account constituted part of the matrimonial pool, whatever the Husband’s private expectations and preferences may be. Indeed, if, as the Husband argues, there was no distinction between accounts held in joint or individual names, then there would be little imperative for the joint account form to be filled out in the first place. Thus, in line with Chen Siew Hwee, I reject the Husband’s submission and find that the funds in the Internaxx Account are not matrimonial assets and thus not liable for division.

Allegations of dissipation by the Husband

The Wife alleges that the...