Chan Tin Sun v Fong Quay Sim

• Jurisdiction: Singapore
• Judge: Tan Siong Thye JC
• Judgment Date: 12 May 2014
• Neutral Citation: [2014] SGHC 97
• Court: High Court (Singapore)
• Hearing Date: 03 February 2014
• Docket Number: DT 1835 of 2011
• Plaintiff Counsel: Andy Chiok, Kelvin Ho and Vanessa Ho (Michael Khoo & Partners)
• Defendant Counsel: Wong Chai Kin (Wong Chai Kin)
• Subject Matter: Family Law,Matrimonial Assets,Division,Maintenance
• Published date: 15 September 2015

Tan Siong Thye JC: Introduction

The plaintiff-husband is 74 years old while the defendant-wife is 72 years old.¹ They were married on 29 March 1977.² It was a marriage of 34 years. Arising from this marriage, they have one son, Chan Vi Chaya (Chen Weicai), who is 36 years old.³ He is a veterinarian working in Hong Kong.⁴

The issues

The wife is claiming a fair and equitable division of the matrimonial assets. She is also asking for lump sum maintenance. The husband, on the other hand, refuses to give her a share of the matrimonial assets. He also does not wish to pay her any maintenance. The husband’s main reason for objecting to the wife’s claims is that she had previously tried to kill him by poisoning him with arsenic.

Divorce proceedings

On 15 April 2011, the husband filed for divorce.⁵ The wife, on the other hand, filed a counterclaim alleging the husband’s unreasonable behaviour as a ground for divorce.⁶

The husband’s ground for divorce is that sometime in 2004, the wife started to poison him with arsenic.⁷ On 27 May 2010, the wife was sentenced to one year’s imprisonment for causing hurt to the husband by adding arsenic, in the form of insecticide, into his tea and food, an offence under s 328 of the Penal Code (Cap 224, 2008 Rev Ed).⁸ Consequently, the husband suffered from arsenic poisoning which caused him to suffer from anaemia and liver cirrhosis, as noted by Choo Han Teck J in Fong Quay Sim v Public Prosecutor and other matters [2011] SGHC 187 at [18].

The wife’s counterclaim was on the basis that the husband had neglected her and had also verbally abused her.⁹ She was diagnosed to have suffered from a long history of chronic spousal emotional and verbal abuse.¹⁰ Her unhappiness with the husband led her to poison him so as to get back at him.¹¹

On 15 December 2011, the Family Court granted an interim judgment of divorce to both the husband and wife on their claim and counterclaim respectively.

Division of matrimonial assets

For the division of matrimonial assets, I shall first identify the operative legal principles that are germane to this case. Thereafter, I shall discuss the facts together with these axiomatic principles.

Just and equitable principle is the bedrock for the division of matrimonial assets

Section 112(1) of the Women’s Charter (Cap 353, 2009 Rev Ed) prescribes the just and equitable principle applicable in the division of matrimonial assets: 112(1). The court shall have power, when granting or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage, to order the division between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset in such proportions as the court thinks just and equitable. Section 112(2) of the Women’s Charter also lists a number of non-exhaustive factors that the court has to take into account in the division of matrimonial assets:

112(2). It shall be the duty of the court in deciding whether to exercise its powers under subsection (1) and, if so, in what manner, to have regard to all the circumstances of the case, including the following matters:

(a) the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets; (b) any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage; (c) the needs of the children (if any) of the marriage; (d) the extent of the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party; (e) any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce; (f) any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party; (g) the giving of assistance or support by one party to the other party (whether or not of a material kind), including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business; and (h) the matters referred to in section 114(1) so far as they are relevant. Broad brush approach

It has been accepted that the court should adopt a broad-brush approach in the division of matrimonial assets. In NI v NJ [2007] 1 SLR(R) 75, V K Rajah J (as he then was) held at [18] that:

The division of matrimonial assets is a subject to be approached with a certain latitude; it calls for the application of sound discretion rather than a purely rigid or mathematical formula. All relevant circumstances should be assessed objectively and holistically. Generally speaking, however, when a marriage ends a wife is entitled to an equitable share of the assets she has helped to acquire directly or indirectly.

The non-mathematical nature of the enquiry is consistent with the broad-brush approach to the division of matrimonial assets. The Court of Appeal in BCB v BCC [2013] 2 SLR 324 at [10] has recently reaffirmed the broad-brush approach to give the court the flexibility to pursue a just and equitable outcome:

The broad-brush approach is particularly apposite because, in the nature of things, an approach that is rooted in the forensic search for the actual financial contributions of the parties towards the acquisition of the assets will inevitably fail to adequately value the indirect contributions made towards the other expenses that are incurred in the course of raising a family and will also be a heavily fact-centric exercise. Moreover, these facts will typically not be borne out by contemporaneous records, as underscored by the court in Soh Chan Soon v Tan Choon Yock [1998] SGHC 204 at [6] (cited by this court in NK v NL, as quoted above at [8] of this judgment). The broad-based approach also avoids what this court has described as an otherwise fruitless "mechanistic accounting procedure reflected in the form of an arid and bloodless balance sheet" that "would be contrary to the letter and spirit of the legislative scheme" underlying s 112 (see NK v NL at [36], an observation which was most recently referred to by this court in AYQ v AYR [2013] 1 SLR 476 (“AYQ”) at [18]). Indeed, such a broad yet principled approach enables us to strike a balance between the search for a just and principled outcome in each case and the need to remain sensitive to the nuances of each fact situation we are confronted with. We pause to note – parenthetically – that this is why the Singapore courts have avoided extreme points of departure. For example, this court has held that there is no starting point, presumption or norm of an equal division of matrimonial assets, a holding that is wholly consistent with the legislative background which resulted in s 112 and its concomitant broad-brush approach (see, for example, the decision of this court in Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520 at [50]–[58]). Another example – to be considered in a moment – is the fact that the court will take into account both direct as well as indirect contributions by both parties to the marriage.

The courts have always acknowledged the importance of indirect contributions of the parties, which originates from the wife in a vast majority of cases, when considering the division of matrimonial assets. The Court of Appeal, in AYQ v AYR and another matter [2013] 1 SLR 476 at [23], held that indirect contributions should be quantified with the full benefit of hindsight, and in a broad manner that does not narrowly focus on specific classes of assets:

... The court's assessment of a spouse's indirect contribution should thus be performed with retrospective lenses, looking back and fully appreciating the entire context and circumstances of the marriage. It should not be done in a time-specific manner, ie, assessing the extent of indirect contributions of a spouse as at that specific point in time when a particular matrimonial asset was acquired. Further, this assessment should not be done in a blinkered fashion where the court focuses on each individual class of assets and decides the weightage of a spouse's indirect contribution as regards that particular asset class, resulting in a situation where varying weights are accorded for indirect contributions in different matrimonial asset classes. This approach would accord with the view of the marital enterprise being a partnership of efforts of both spouses and that, during the course of marriage, the spouses contribute to the betterment of it in ways that they can without consciously accounting with mathematical precision as regards the quantum and type of their respective contributions. ...

I agree with the above observations. As I have stated in BMJ v BMK [2014] SGHC 14 at [38]:

... Marriage is a unique marital partnership in which parties do not indulge in “accounting with mathematical precision” during the blissful period of their marriage. Marriage is a joint enterprise; indirect contributions should not be filtered through a fine-toothed comb and must be looked at in a broad manner in order to derive a just and equitable outcome.

Application of the broad-brush approach

The broad-brush approach requires the court to take into consideration all the circumstances of the case, including the direct and indirect contributions of both parties. In this case, it is not disputed that the husband made significant direct contributions towards the acquisition of the matrimonial assets in the course of their 34-year marriage. The properties were purchased and sold by the husband. The wife did not contribute directly to the purchase of the matrimonial properties. However, the wife did...