O'Connor Rosamund Monica v Potter Derek John

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 09 March 2011
• Neutral Citation: [2011] SGHC 53
• Plaintiff Counsel: G.R. Raman (G R Law Corporation)
• Docket Number: DT No 310 of 2008/T
• Date: 09 March 2011
• Hearing Date: 10 January 2011
• Subject Matter: Matrimonial Assets,Family Law,Division
• Published date: 15 March 2011
• Citation: [2011] SGHC 53
• Court: High Court (Singapore)
• Year: 2011

Lai Siu Chiu J: Introduction

This was a rehearing of ancillary matters between O’Connor Rosamund Monica (“the Wife”) and Derek John Potter (“the Husband”). The parties were married on 19 September 1986. They have no children. Their first matrimonial home was at No. 47B Block H, Jalan Arnap Singapore 249356 (“Kim Lin Mansion”). This was purchased by the Wife and her sister, before the parties’ marriage. It became the parties’ first matrimonial home when the Wife’s sister moved out. After selling Kim Lin Mansion and renting two flats for 3 years, the couple purchased No.79, Farrer Drive, Sommerville Park #05-03 (“Sommerville Park”) as their second matrimonial home.

The parties divorced on 14 October 2008 following a separation period of 4 years. On 22 September 2009, the parties appeared before this court for the first time (“the first hearing”) wherein the following orders were made (“the first order”); see O’Connor Rosamund Monica v Potter Derek John [2009] SGHC 258: The Wife and the Husband were to hold shares in Sommerville Park in the proportion of two-thirds and one-third respectively. In the event the Wife chose to buy over the Husband’s share in Sommerville Park, the Wife was to give notice of her election to the Husband’s solicitors within ten days from 22 September 2009 and the sale of the Husband’s one-third share should be completed within 90 days of 22 September 2009. The purchase price to be paid by the Wife was to be determined by a valuation to be conducted by Knight Frank Pte Ltd as of 22 September 2009 with the costs and expense of the valuation and the transfer to be borne equally by both parties. The Husband was not to occupy Sommerville Park after 22 September 2009 but was at liberty to have his personal possessions remain in Sommerville Park until the day of completion after which he was to remove them. The Husband was to pay the Wife a lump sum of $50,000 by way of maintenance. This amount was to be deducted from the Husband’s one-third share in the sale of Sommerville Park. The Husband was to refund the Wife a sum of $10,000 for her contribution towards his purchase of the Tanglin Club membership. The parties were to retain all other assets in their respective names. Costs of the High Court proceedings up to 31 August 2009 were awarded to the Husband on a party and party basis. Thereafter the Husband would have his costs on an indemnity basis. Both sets of costs were to be taxed unless otherwise agreed. Dissatisfied with the first order, the Wife appealed to the Court of Appeal in Civil Appeal No 132 of 2009 (“the Appeal”) in relation to (a) and (b) under the first order.

The crux of the Appeal was that in dividing the matrimonial assets, this court had overvalued the Wife’s assets. Her counsel accepted responsibility for this error. He explained that he had mistakenly submitted at the first hearing that cash gifts that the Wife had received from her mother and grandmother were in addition to, and not part of, her total assets.

The Appeal was heard on 6 April 2010. The issues before the Court of Appeal were: Whether it was correct to award only two-thirds of Sommerville Park to the Wife. Whether the order for lump sum maintenance of $50,000 was fair and reasonable. Was this court justified in estimating past maintenance at $400 per month and future maintenance at $500 per month with a multiplier of 6 when calculating the lump sum award of $50,000?

After hearing the parties, the Court of Appeal made the following orders: (a) The action was remitted back to this court for further hearing. The value of immoveable properties owned by the Wife and the Husband was to be fixed, and the assets of the parties involving foreign currencies were to be converted into Singapore currency, as at a date one month prior to the further hearing before this court. The Wife was to pay the Husband costs fixed at $12,000 inclusive of disbursements for the first hearing. The costs of the Appeal would be determined by the Court of Appeal after the conclusion of the further hearing before this court. The Court of Appeal decided that the Husband should also have the right to request further discovery from the Wife.

On 10 January 2011, pursuant to prayer (a) granted by the Court of Appeal, the ancillary matters came on again for hearing before this court (“the second hearing”). This court varied the first order as follows: Sommerville Park was to be sold in the open market within 90 days with the Husband having conduct of the sale. The net sale proceeds less sales commission and other incidental expenses were to be divided equally between the parties. The Wife was to have the first right of refusal to purchase the Husband’s 50% share in the property. If she exercised the option, the value of the matrimonial property was to be fixed at $3m. Prayer (e) of the first order (see [2] above) awarding lump sum maintenance of $50,000 to the Wife was rescinded. The Husband was entitled to set off and deduct from the Wife’s share of the sale proceeds of Sommerville Park the costs of $12,000 awarded to him by the Court of Appeal for the first hearing. In the event the Wife exercised the option to purchase the Husband’s 50% share in Sommerville Park, she would also have to pay him the following: costs of the second hearing; costs if awarded by the Court of Appeal (for the Appeal); (iii) the costs of $12,000 for the first hearing; costs ordered under Summonses Nos. 2940/2010 and 4132/2010 by the courts below (for the Husband’s applications for discovery); and notional rent of $1,500 per month for the duration that the Husband had not occupied Sommerville Park since 30 September 2009 until completion of its sale. The Husband was awarded indemnity costs of $18,000, excluding disbursements, which would be on a reimbursement basis.

As the Wife has appealed against the second order (in Civil Appeal No 13 of 2011), I shall now set out my reasons.

The issues

There were several salient issues raised at the second hearing. In relation to the division of Sommerville Park, it had to be decided whether the Wife’s disclosed assets included the monetary gifts she had received from her mother and grandmother. In addition, new evidence had been unearthed from the discovery process the Court of Appeal had ordered. In the light of those considerations, this court had to reassess the Wife’s contributions towards the purchase of Sommerville Park.

On the issue of maintenance, this court was also required to re-evaluate the various statutory factors in view of the findings this court made in relation to the Wife’s assets.

Sommerville Park Applicable Law on the Division of Matrimonial Assets

The starting point for the division of matrimonial assets is s 112(1) of the Women’s Charter (Cap 353, 2009 Rev Ed) (“Women’s Charter”):

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.

The court’s discretion in deciding a division of matrimonial assets is guided by various factors listed in s 112(2) viz: (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 of business; and (h) the matters referred to in s 114(1) so far as they are relevant.

The parties’ contributions to Sommerville Park were a particularly significant factor in this case. It is therefore useful to refer to NK v NL [2007] 3 SLR(R) 743 at [22] – [29] (“NK v NL”) where Andrew Phang Boon Leong JA enunciated the principles governing the division of the matrimonial home: First, he rejected the traditional approach, as illustrated by Tan Bee Giok v Loh Kum Yong [1996] 3 SLR(R) 605 at [47], which regarded direct contributions as a prima facie starting point before making adjustments to reflect the non-financial contribution of the parties. Second, he stressed the importance of the courts not engaging in a minute scrutiny of the conduct and efforts of both spouses, since it may disadvantage the spouse whose efforts were difficult to evaluate in financial terms (NK v NLat [28]). Third, at [29], Phang JA wrote,

...it is paramount that courts do not focus merely on a direct and indirect contributions dichotomy in arriving at a just and equitable division of matrimonial assets... At the end of the day, no one factor should be determinative as the court’s mandate is to come to a just and equitable division of the matrimonial assets having regard to all the circumstances of the case.

Another important factor in the present case was the parties’ non-financial contributions. Dealing with this was tricky albeit necessary. As LP Thean JA noted in Lim Choon Lai v...