Family Law

• Citation: (2016) 17 SAL Ann Rev 451
• Date: 01 December 2016
• Published date: 01 December 2016
• Publication year: 2016

16.1 This chapter is divided into four main parts: custody; division of matrimonial assets; divorce and validity of marriage; and maintenance.

Custody

16.2 There is only one case of note that pertained to custody in this year's survey, and it concerned the variation of a term in a postnuptial marital agreement governing care and control arrangements.

Upholding a deed of separation

16.3 In AUA v ATZ,1 the marriage between the parties broke down after only 19 months and they entered into a deed of separation. The deed, which was negotiated over five months with the parties being represented by lawyers throughout, contained detailed provisions on various matters relating to the care of their daughter (who was eight years old when the appeal was heard). After an interim judgment of divorce was granted, the wife applied to set aside the deed on the ground of undue influence while the husband applied to vary the incidence of care and control of the daughter (which resided with the wife in accordance with the deed). The High Court held that the deed had been entered into freely and voluntarily and that there was no basis to set it aside, but also rejected the argument that the care and control arrangement should be varied.

16.4 On appeal, the husband maintained that he was justified in seeking greater care and control and argued that he deserved to play a more active role in the child's life as he was a devoted father and he wanted to maintain the integrity of the bond with the child. The wife argued that changing the care and control arrangement would be excessively disruptive for the child as she had very different parenting styles from the husband and in any event, the husband already had substantial access to the child. The Court of Appeal, in dismissing the husband's appeal, made the following points:

(a) For the division of matrimonial assets and, to a lesser extent, the maintenance of children, the substance of the question is one of finances and the court will be inclined towards playing a comparatively minor role. However, where the welfare of the child is concerned, it is not something to be or can be bartered or negotiated at the termination of a marriage.

(b) Whether the marital agreement is a prenuptial or postnuptial arrangement, there is a presumption that any terms therein relating to custody or care and control of children are unenforceable; further, in the heat of matrimonial disputes, the interests of the child may unwittingly have been relegated to second place when the agreement is being negotiated.

(c) Accordingly, a court is not bound by anything relating to the child's welfare that may be set out in a marital agreement. The court treats the terms of any such agreement with great circumspection and will not give effect to them unless it is satisfied that doing so will be in the best interests of the child.2

16.5 On the facts of this case, the court placed great weight on the fact that the husband already had generous access to the child, who was able to spend up to half her leisure time with the husband as the wife. Further, given that the husband lived close to where the wife resided, a shared care and control order would not have allowed him to spend very much more time with the child than he already could. Finally, as both parties were not challenging the joint custody arrangement, the most important decisions affecting the long-term upbringing and the welfare of the child could only be made with the consent of both parents. In these circumstances, there was no need to destabilise and disrupt the child's life at this stage, especially since she had been living with the wife for almost seven years and had just made the transition to primary school.

16.6 Marital agreements have assumed greater currency in the past decade or so, but this decision is a reminder that where there are terms in such agreements that relate to children, the court will not even consider those terms as a reference point as the welfare principle is paramount and supersedes not only the parties' interests but the parties' intentions. This is a position that has been adopted since the seminal decision of TQ v TR,3 which was relied upon by the court in this case. This is also not a position that is unique to Singapore, as was observed by the Court of Appeal in AOO v AON,4 which noted that England also

adopts the same view.5 Hence, even in the face of divorces that have a multi-jurisdictional character, it is unlikely that agreements that are contrary to the welfare of the children will easily find places of enforcement. However, as will be seen in a subsequent part of this chapter, terms in such agreements that pertain to the financial affairs of the spouses are treated very differently.

Division of matrimonial assets

16.7 There are two cases of note that pertained to the division of matrimonial assets. In the first case, the husband had left the matrimonial home more than a year before the interim judgment, and three years before the start of ancillary proceedings. What is the appropriate cut-off date when assessing what falls under the pool of matrimonial assets? The Court of Appeal provided important clarifications on this issue. In the second case, the Court of Appeal had to grapple with the issue of whether terms in a postnuptial marital agreement governing the division of matrimonial assets should be varied if the agreement does not appear to, adequately, factor in a party's indirect contributions to the marriage.

Operative date for determining the pool of matrimonial assets

16.8 In ARY v ARX,6 the husband and wife married in 1994. During the early years of the marriage, the wife was the main source of financial stability as her salary far outstripped the husband's. In 1999, their first son was born. Over time, the husband became successful in his career, earning around S$40,000 a month at one point. In 2003, the parties relocated to Hong Kong. The wife also stopped working after their second son was born. In 2006, the parties relocated to Singapore after the husband was posted there. In 2008, the wife discovered the husband was having an affair. They separated in June 2009 when the husband left their rented matrimonial home. The husband continued to pay for the rent and the children's expenses, and gave the wife S$1,200 a month. The husband filed for divorce in February 2010 and an interim judgment was granted in October 2010. The ancillary proceedings began in June 2012.

16.9 The High Court held that the operative date for determining the pool of matrimonial assets was the date the ancillary proceedings began (June 2012). Based on that date, the assets amounted to S$1.47m. The husband's contention that the operative date should be either June 2009

or October 2010 instead was rejected. Based on those dates, the assets amounted to S$966,000 and S$1.29m respectively. With respect to maintenance, the wife was awarded S$7,700 a month, which comprised S$3,000 for her personal expenses and S$4,700 for the children and rent. The husband also agreed to pay for the children's education, which amounted to S$7,250 a month.

16.10 The Court of Appeal took the opportunity to clarify the law on the appropriate starting date for determining the pool of matrimonial assets. In setting out the law, it noted the following points:

(a) Section 112(10)(b) of the Women's Charter7 defines a matrimonial asset as one acquired during the marriage. While a court has the discretion to select the appropriate operative date, the discretion is neither free nor unguided.

(b) In Yeo Chong Lin v Tay Ang Choo Nancy,8 the Court of Appeal had identified four possible operative dates. In chronological order, they are: the date of separation; the date the writ of divorce was filed; the date of interim judgment; and the date of the ancillary matters hearing.

(c) Generally, the date of interim judgment has particular appeal as it would be wholly unreal to treat assets acquired beyond that date as matrimonial assets; once an interim judgment is granted, the marriage has for all practical purposes come to an end.

(d) Further, the interim judgment indicates that the parties no longer intend to jointly accumulate matrimonial assets9 and the court recognises that there is no longer any matrimonial home, no consortium vitae, and no right on either side to conjugal rights.10

(e) There is no reason why the actual division should not be done when the interim judgment is granted if all the relevant material is before the court at that time; it does not accord with good sense to encourage parties to drag out ancillary proceedings.11 The parties should also be enabled to arrange their financial affairs and move on to a different phase in their lives.

(f) Consequently, unless the circumstances or justice of the case warrant(s) it, the default date should be the date in which the interim judgment is granted. The court must exercise care when departing from the default position, and should give reasons when it does. This is because it also has the discretion to determine the date at which the matrimonial assets should be valued, and the discretion to determine how the matrimonial assets should be divided.12

16.11 What, however, may constitute exceptions to the default position of adopting the date of interim judgment as the operative date? One example cited by the court is when a party incurs a large amount of expenditure such that the matrimonial assets have been unfairly depleted by the unacceptable actions of that party. Specifically, as pointed out in cases such as AJR v AJS,13 if a party has indulged in excessive vices and, in doing so, wastefully dissipated the matrimonial assets before they have been divided by the court, the court ought to take that into account when deciding the appropriate operative date.14

16.12 On the facts of this case, the court first found that the husband did not manifest a clear...