Chen Siew Hwee v Low Kee Guan (Wong Yong Yee, co-respondent)

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong J
• Judgment Date: 28 September 2006
• Neutral Citation: [2006] SGHC 172
• Citation: [2006] SGHC 172
• Date: 28 September 2006
• Year: 2006
• Plaintiff Counsel: Koh Geok Jen and Raymond Yeo Khee Chye (Jen Koh & Partners)
• Docket Number: Divorce Petition No 675 of 2004
• Defendant Counsel: Randolph Khoo Boo Teck and Veronica Joseph (Drew & Napier LLC)
• Court: High Court (Singapore)
• Published date: 02 October 2006

28 September 2006

Andrew Phang Boon Leong J:

Introduction

1 The present proceedings centred on ancillary matters that flowed from the divorce proceedings between the parties. The petitioner wife (“wife”) and respondent husband (“husband”) had been married for 17 years. This was the wife’s first marriage and the husband’s second marriage. There were no children from the marriage, although the husband had a son from his first marriage (who is currently 25 years old).

2 The wife filed for divorce on 3 March 2004. The decree nisi was granted on 28 September 2004.

3 The wife is 48 years old and does not work.

4 The husband is 50 years old and is retired.

5 In so far as ancillary matters are concerned, the wife applied for interim maintenance of $24,000 per month. The learned district judge awarded her $10,000 maintenance per month instead (with effect from 1 February 2004). On appeal, the learned judge ordered that the wife be paid interim maintenance of $12,000 per month (also with effect from 1 February 2004).

6 The proceedings before the present court related not only to the issue of maintenance but also to the division of matrimonial assets.

The present proceedings

7 It is appropriate to set out my principal holdings first.

8 In so far as the division of matrimonial assets was concerned, I held, first, that the following items were not within the pool of matrimonial assets, having regard to the definition of “matrimonial asset” in s 112(10) of the Women’s Charter (Cap 353, 1997 Rev Ed) (“s 112(10)”):

(a) All assets derived from the 3,066 shares given to the husband in Eng Cheong Peng Kee Pte Ltd, and as set out in Annex A of the husband’s submissions to the court.

(b) All assets derived from the 1,700 shares given to the husband in Low Peng Boon Pte Ltd, and as set out in Annex A of the husband’s submissions to the court.

(c) The husband’s Singapore Island Country Club membership.

9 I note that the assets derived from the shares referred to in (a) and (b) above (which shares I will hereafter refer to, collectively, as “the shares”) constituted the bulk of the assets which were in dispute in the present proceedings. Indeed, as it turned out, these assets became the principal focus of the present judgment.

10 I further held that the remaining assets fell within the pool of matrimonial assets, which I divided in the proportion of 35 per cent to the wife and 65 per cent to the husband.

11 However, in so far as the husband’s Central Provident Fund moneys were concerned, I held that only post-marriage amounts formed part of the pool of matrimonial assets.

12 I further ordered that the parties were to itemise those assets within the pool of matrimonial assets that required a fixed value to be placed upon them (this would include, for example, the matrimonial home). I also ordered that these assets be valued by an independent assessor appointed by agreement between the parties and, if the parties could not agree, then by an independent assessor to be appointed by the court from names furnished by the parties.

13 In so far as maintenance of the wife was concerned, I ordered that the husband pay the wife a monthly sum of $12,000.

14 I ordered, further, that the husband pay to the wife a sum of $10,000, being the cost of the private investigators’ services.

15 Finally, I ordered that costs were to be agreed, or taxed if not agreed.

16 The wife was dissatisfied with my decision and filed a notice of appeal against part of my decision. There were in fact two main points of dissatisfaction. There was a third, where the wife asserts that she is entitled to the costs of the proceedings in respect of the ancillary matters as well as the appeal. At least in so far as the former (viz, the costs of the proceedings in respect of the ancillary matters) are concerned, I had in fact ordered that costs be agreed, or taxed if not agreed. Unfortunately, whilst the parties were ultimately able to agree with regard to the issue of maintenance, they could not resolve the issue of the costs of the proceedings in respect of the ancillary matters. At the hearing to record the terms of settlement with respect to the issue of maintenance, I reserved the issue with respect to the costs of the hearing of the ancillary matters. Counsel for the wife wrote in subsequently (by letter of 16 August 2006) for an audience in order to make the necessary submissions on the issue with respect to the costs of the proceedings in respect of ancillary matters. Both parties in fact made their submissions on costs on 1 September 2006. However, because of the nature of the submissions, I adjourned the matter until the Court of Appeal hands down its decision in this appeal. I note that the present law is embodied in the Singapore Court of Appeal decision of Tham Khai Meng v Nam Wen Jet Bernadette [1997] 2 SLR 27 at [49] and [50], which holds that as the hearing of the ancillary matters is a continuation or a part of the hearing of the divorce petition, the party who is awarded the costs of the petition (the wife in the present proceedings) is also entitled to the costs of the hearing of the ancillary matters. It seems to me, with respect, however, that although it is true that the hearing of the ancillary matters is, in a sense, a continuation of the hearing of the divorce petition, in reality, the hearing of the ancillary matters is a discrete set of proceedings which may not always result in a decision in favour of the party who has been awarded the costs of the petition. Indeed, the present proceedings, at least in so far as the issue relating to the division of matrimonial assets is concerned, constitute a good illustration. It is hoped that the Court of Appeal might be able to clarify the situation in this regard, bearing in mind the fact that the award of costs is also a discretionary exercise. Absent any modification of the existing law, I am, of course, bound by the principle laid down in the Court of Appeal’s decision in Tham Khai Meng v Nam Wen Jet Bernadette.

17 Leaving aside the issue of costs, the wife’s first point of dissatisfaction related to my holding to the effect that the shares were to be excluded from the pool of matrimonial assets. The wife wishes to argue, on appeal, that these shares should be deemed to be matrimonial assets and that she should be entitled to 35 per cent thereof or, alternatively, to a fair and just share as the appellate court deems fit.

18 The second point of dissatisfaction related to my order with regard to maintenance. The wife originally wished to argue, on appeal, that the husband should pay her a monthly sum of $20,000 or, alternatively, a fair and just sum as the appellate court deems fit or, in the further alternative, a lump sum of a fair and just amount as the appellate court deems fit.

19 However, shortly after the notice of appeal had been filed, as noted above, the parties managed to resolve the second issue (with regard to maintenance). I recorded the terms of settlement on 5 July 2006.

20 In short, this leaves only the first point (at [17] above), and I now give my detailed grounds for my decision on this particular issue. The first port of call, so to speak, must necessarily be s 112(10) itself.

Section 112(10) of the Women’s Charter

21 The resolution, in these proceedings, of the issue relating to whether or not the shares should be included in the pool of matrimonial assets turns on the proper interpretation of the definition of a “matrimonial asset” under s 112(10); the provision itself reads as follows:

(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.

[emphasis added]

22 One of the key arguments tendered by Ms Koh Geok Jen, counsel for the wife, was that the italicised words in s 112(10), as reproduced in the preceding paragraph, qualified only para (b) of the provision. Hence, so the argument went, the shares, having been acquired by the husband before the marriage, fell within the pool of matrimonial assets to be divided by this court under para (a), not being “encumbered”, as it were, by the italicised words just referred to.

23 Not surprisingly, Mr Randolph Khoo, counsel for the husband, argued to precisely the opposite effect. He argued that the italicised words at [21] above qualified both paras (a) and (b) of s 112(10). Hence, the shares, although potentially falling within the ambit of para (a) rather than para (b), had also to satisfy the conditions embodied in the qualifying (and italicised) words located right at the end of the provision itself. Mr Khoo argued, further, that these conditions had not been satisfied by the wife. In particular, he argued that the shares, not being a matrimonial home and having been acquired by the husband by way of a gift, had not been “substantially improved during the marriage” either by the wife or by both parties to the marriage. In the circumstances, therefore, the shares did not fall within the pool of matrimonial assets within the meaning of s 112(10) (in particular, para (a) thereof).

24 It was clear that in order to make out his argument (as briefly set out in the preceding paragraph), Mr Khoo had to surmount two cumulative hurdles. He had to...