BPC v BPB and another appeal

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 10 January 2019
• Neutral Citation: [2019] SGCA 3
• Plaintiff Counsel: Johnson Loo Teck Lee and VM Vidthiya (Drew & Napier LLC)
• Docket Number: Civil Appeals Nos 226 and 227 of 2017
• Date: 10 January 2019
• Hearing Date: 25 September 2018
• Subject Matter: Maintenance,Matrimonial assets,Date for determination of pool of matrimonial assets,Adverse inference,Family Law,Division,Child,Date for valuation of matrimonial assets
• Year: 2019
• Defendant Counsel: Koh Tien Hua and Chew Wei En (Eversheds Harry Elias LLP)
• Court: Court of Appeal (Singapore)
• Citation: [2019] SGCA 3
• Published date: 16 January 2019

Judith Prakash JA (delivering the judgment of the court): Introduction

This pair of cross-appeals arises out of orders relating to the division of the matrimonial assets and the maintenance for the children made by the High Court judge (“the Judge”) in Divorce Suit No 4447 of 2010 (“the Divorce Proceedings”) on 13 November 2017, in respect of which the Judge issued brief oral grounds (“the GD”). The Divorce Proceedings ended a 17-year-long dual-income marriage which produced two children (“the Children”) and a pool of matrimonial assets valued at $38,010,639. The pool was ordered to be divided in the ratio of 66.76:33.24 in the Husband’s favour.

Civil Appeal No 226 of 2017 is an appeal by the wife, [BPC] (“the Wife”), against the Judge’s decision to assign a 60:40 weightage between direct and indirect contributions. Civil Appeal No 227 of 2017 is an appeal by the husband, [BPB] (“the Husband”), against the Judge’s decisions to: adopt the date of the ancillary matters hearing as the operative date for both determining the pool of matrimonial assets and valuing the matrimonial assets in the parties’ sole names; assess the Wife’s direct contributions towards the purchase of their current matrimonial home on Bukit Timah Road (“the Home”) as being 78% of the cost thereof; assign a 60:40 weightage between direct and indirect contributions; and order the Husband to pay $11,000 per month in child maintenance and 75% of the Children’s school fees and other expenses. We shall hereinafter refer to these cross-appeals as “the Wife’s Appeal” and “the Husband’s Appeal” respectively.

Having heard the submissions of the parties, we reserved judgment. We now furnish our decision and the accompanying reasons.

Background

The parties married in December 1993. They have two children who were born in 2002 and 2006 respectively (“the Children”). Their first child was conceived via in-vitro fertilisation (“IVF”) procedures.

The parties’ respective careers

The parties have always been focused on their respective careers, and during the marriage both frequently worked long hours. Until 1999, the Husband worked as an engineer at his family’s company, while the Wife worked as an analyst in a bank.

In 1999, the Husband and the Wife went to the United States to pursue post-graduate studies in the same university. They returned to Singapore in September 2001 after completing their further studies.

Subsequent to their return, the Wife took up various senior executive roles in various banks, while the Husband took on various consultancy-related roles in a series of companies. He also started his own consulting firm (“the Firm”). At this stage of their careers, the Wife consistently commanded a steadier income than the Husband.

This changed in 2005 when the Husband founded, with four partners, a venture capital fund (“the Fund”). The Husband was granted a total of 833,184 share options in the Fund on 15 August 2005, which were to be vested proportionately over five years, and were to be exercised within five years of each vesting. Subsequently, on 27 February 2013, the Husband was granted an additional 196,627 share options, bringing his total number of share options to 1,029,811. The vesting of these share options may be summarised as follows:

Date of vesting	Date of expiry	Number of share options
15 August 2006	14 August 2011	166,637
15 August 2007	14 August 2012	166,637
15 August 2008	14 August 2013	166,637
15 August 2009	14 August 2014	166,637
15 August 2010	14 August 2015	166,636
27 February 2013	26 February 2018	196,627
Total:	1,029,811

Since the inception of the Fund, the value of the Husband’s interests in the Fund has grown astronomically, particularly in 2015 and 2016, to the extent that the assets in the Husband’s sole name now completely dwarf those in the Wife’s – as of June 2016, the Husband’s shares in the Fund alone were valued at $28,021,805.

The Fund required the Husband to shuttle frequently between Singapore and Shanghai, with his trips increasing in frequency in 2006. The Wife remained in Singapore with their family at all times. In 2008, the Husband was appointed the Vice Chairman (China) of the Fund, resulting in his being stationed in the People’s Republic of China on a full-time basis.

The parties’ dealings in real estate

During the course of their marriage, the parties purchased three apartment units together. Details of these are as follows: On 3 March 2005, the parties purchased a property on Peck Hay Road for $1,700,000 which they sold a few months later at a profit of $300,000. On 26 September 2005, the parties purchased a property at Mount Sinai Rise (“the Sinai Property”) for $2,380,000. This was sold in April 2007 for $4,500,000. On 27 June 2007, the parties purchased the Home for $3,100,000. They moved in in January 2009 and it remained the matrimonial home until the end of the marriage. As of 2016, the Home was worth $3,950,000.

The Divorce Proceedings

Fissures in the marriage emerged when, in August 2008, the Wife confronted the Husband about her discovery of his adultery with a Chinese woman (“the Partner”). The Husband confessed to having an extramarital affair with the Partner. On 25 August 2009, the Husband purchased an apartment in Shanghai, and added the Partner as a joint owner of the apartment. In March 2010, the Husband unilaterally reduced monthly maintenance for the family from the usual $16,374 to $15,000. In June 2010, the Wife found out about the Husband’s purchase of the Shanghai apartment and his adding of the Partner as a joint owner. In September 2010, the Husband further reduced monthly maintenance for the family to $5,000.

On 2 September 2010, the Wife commenced the Divorce Proceedings. Thereafter, the Wife changed the locks to the Home, thereby preventing the Husband from walking in and out of the Home freely as he had been wont to do in order to spend time with the Children.

On 22 September 2010, the Wife applied for interim maintenance. The Husband was ordered to pay a monthly maintenance of $10,000 on 16 March 2011. The divorce proceeded and interim judgment was granted on 8 November 2011. The ancillary proceedings commenced on 21 June 2016, the rather long lapse of time between the two dates being largely due to the filing of applications for discovery and interrogatories by the Wife in order to obtain full disclosure from the Husband.

The decision below

The Judge issued the GD on 13 November 2017. She first ordered, by consent, that the parties shall have joint custody of the Children, with care and control to be given to the Wife, and with access rights granted to the Husband.

Next, regarding the determination, valuation and division of the matrimonial assets, the Judge held that: the date of the ancillary matters hearing (and not the date of interim judgment) shall be the operative date for both determining the pool of matrimonial assets and valuing the matrimonial assets; pursuant to these dates, the assets in the matrimonial pool were valued at $38,010,639 and were to be divided between the parties in the ratio 66.76:33.24 in favour of the Husband, with this ratio being obtained from valuing: the ratio of their respective direct contributions as 87.94:12.06 in favour of the Husband; the ratio of their respective indirect contributions as 65:35 in favour of the Wife; and the relative weightage assigned between the direct and indirect contributions as 60:40 in favour of direct contributions; pursuant to this ratio, the Husband was to transfer to the Wife his interest in the Home (with the Wife bearing the costs and expenses of the transfer); the Wife was to be entitled to the funds in their United Overseas Bank joint account and the Husband was to pay the Wife $7,013,875; and each party was to retain the assets in their own names.

Finally, as regards the issue of maintenance, the Judge decided that: (a) there shall be no order for maintenance for the Wife; and (b) in respect of the Children, the Husband is to pay the Wife $11,000 per month as general maintenance and also 75% of the Children’s school fees, related education expenses and the first child’s growth hormone expenses.

The appeals

In the Wife’s Appeal, the Wife challenges the Judge’s decision regarding the division of matrimonial assets solely on the ground that the Judge should have assigned a 50:50 weightage between direct and indirect contributions.

In the Husband’s Appeal, the Husband challenges aspects of the Judge’s decision regarding the determination, valuation and division of the pool of matrimonial assets, as well as maintenance for the Children. Regarding the determination, valuation and division of the asset pool, the Husband contends that: the operative date for both determining the pool of matrimonial assets and valuing the matrimonial assets should be the date of interim judgment; the Wife should be found to have only made 60% of the direct financial contributions towards the purchase of the Home; the Husband should be found to have made more than merely 35% of the indirect contributions; and the court should have assigned a 70:30 weightage between direct and indirect contributions. As regards maintenance for the Children, the Husband submits that he should only be required to pay $8,300 per month in child maintenance and 50% of the specified expenses.

The issues to be determined

In the light of the foregoing, the issues that arise for this court’s consideration are: regarding the determination, valuation and division of the pool of matrimonial assets: first, whether the operative dates for the determination of the pool of matrimonial assets and the valuation of the matrimonial assets in the parties’ sole names should be the date of interim judgment or the date of...