Giuseppe De Giosa v Shirin Carmel Marie Jacob

• Court: Family Court (Singapore)
• Judge: Sowaran Singh
• Judgment Date: 16 March 2015
• Neutral Citation: [2015] SGFC 29
• Citation: [2015] SGFC 29
• Hearing Date: 25 February 2015,27 February 2015,26 February 2015
• Published date: 29 April 2015
• Docket Number: Divorce Petition No.3745 of 2011
• Plaintiff Counsel: Ms.See Tow Soo Ling (M/S Colin Ng & Partners)
• Defendant Counsel: Mr.Vinit Chhabra (M/s Vinit Chhabra Partnership)
• Subject Matter: Family Law,division of matrimonial assets

District Judge Sowaran Singh: Background

The parties married in Italy on the 21 September 2002. The Plaintiff (husband) was described¹ as being a 63-year-old Italian citizen and the Defendant (wife) a 55-year-old Singapore citizen. He is now a retiree and operates an art gallery through his company Degiostart Pte Ltd and she is gynaecologist by profession². He was previously working in a bank and was offered early retirement in March 2010. They have no issue from this union. It was the wife’s second marriage and she has a grown up daughter³ from her previous marriage. The husband filed for a divorce on the 5 August 2011. Subsequently the wife filed a Defence and Counterclaim. Interim Judgment (IJ) was granted on the 8 March 2012 on their respective claims based on the unreasonable behaviour of the other. It was a short marriage. The ancillaries were adjourned to Chambers and came up for hearing on the 25 & 26 February 2015 and concluded on the 27 February 2015.The only issues were the question of maintenance for the wife and the division of their considerable matrimonial assets both in Singapore and overseas. Numerous affidavits had been filed by the parties including several by their respective witnesses.

The Parties Positions in Brief

In his written submissions⁴ the husband relied heavily on the fact that as their marriage was contracted in Italy in accordance Italian law and procedures the parties had agreed that the relevant assets acquired during their marriage ought to be divided equally between them. The assets that each of them had before the marriage or which they inherited could be kept by each respective party. He relied on this agreement, section 112 (2)(e) of the Women’s Charter (Cap 353) and the seminal decision of the Court of Appeal in TQ v TR [2009] SLR (R) 961.

On the issue of maintenance for the wife, the husband said that he had not maintained her since he left for Italy to work in February 2006 and the wife was more than capable to maintain herself. She was a shrewd businesswoman and had been jet-setting to many places. For a period before their marriage and until November 2005, the wife and her daughter had lived in his rented apartment. During this period he paid for the rent and all the household expenses. In August 2004 they bought the property an apartment at 235 The Arcadia #05-03 (the Arcadia) intending it to be their matrimonial home. In August 2005 they bought another property at Block 82 Tiong Poh Road #01-03 (the TP property) as an investment and which was rented out. He was working overseas first in Italy (from February 2006), then in India (from February 2007) and finally in Hong Kong (from March 2009 to March 2010)⁵. In April 2008 they bought another apartment at 20 Durham Terrace, London (the Durham property) as a joint investment.

However, he submitted that if the court did not apply Italian law, then his position was to ask for a fair and equitable division of the assets listed at Table 8 of his submissions⁶. These were: - the 31 carpets, various paintings and artefacts acquired by him during their marriage up to March 2010. - art and artefacts acquired by the wife during their marriage. - the wife’s Mercedes-Benz car (SJH 7767P). -the wife’s one share in her company “A Company For Women” (ACFW) incorporated in 2004. -option fee, deposit and net sales proceeds received by the wife from the sale of Block 78 Yong Siak Street #03-18.

The wife in her written submissions⁷ wanted a sum of $15, 000 as monthly maintenance for herself or a lump sum. As for their other assets she asked that each party keep what was in their respective names and possession except for the husband’s Italian property and pension monies for which she wanted a share. The husband’s 1% share in the Arcadia property ought to be transferred to her without any consideration. According to her the husband had left her in February 2005 when she was preparing to renovate the Arcadia property. In 2006 the husband commenced his posting in Italy and remained not contactable. She believed he had left her for good. In November 2006 through her then solicitors she sent a letter dated 16 November 2006 to the husband that she intended to commence divorce proceedings against him. Instead the husband responded by filing for a judicial separation in Italy the following month. Throughout 2007 the judicial separation remained alive until the husband withdrew it at the end of the year.

She complained that the husband had married her not out of love but only for her assets. After she bought the Arcadia apartment the husband stayed in it for only 3 months from November 2005 to February 2006. He did not give up the rental of his apartment even until 2006 when he flew to Italy to commence his posting there. From 2008 to 2010 the husband was posted to India and Hong Kong (HK). In HK he had an apartment and sent a large number of art/artefacts that she had paid for. The husband had used her during the marriage and contributed very little or nothing at all.

Oral submissions during the hearing

During the hearing, apart from their written submissions, the court took the parties through the list of assets that had been listed by the husband in his submissions at paragraph 28 (Table 2) to confirm some salient facts⁸. There were other issues that arose during the oral submissions including a dispute over whether the wife had in fact signed the marriage certificate.

Decision The general principles

The court took into account the relevant provisions of the Charter (Chapter 353) on the question of maintenance as well as the division of the home and other assets. The Court of Appeal in TQ v TR [2009] SLR (R) 961 at [103] held that in so far as prenuptial agreements relating to the division of matrimonial assets were concerned, the governing provision was section 112 of the Charter. In particular, the ultimate power resides in the court to order the division of these assets in such proportions as the court thinks “just and equitable”. In arriving at its decision the court will have regard to all the circumstances of the case and this would include a prenuptial agreement. What weight the prenuptial agreement will be given will depend on the precise facts and circumstances of the case. On the facts of this case the court was of the view that the wife must have known and agreed to the conditions when they were getting married in Italy, little weight ought to be given to the agreement. However, having regard to all the circumstances the court did not feel able to give effect to that agreement and divide the assets equally between the parties, as this would not be just and equitable. Here the marriage lasted about 8 years out of which the parties only lived together for an even shorter period as the husband was based overseas for a good number of years. They had no children from the union although the wife had to take care of her young daughter from her previous marriage who was living with them then. The wife had been earning much more than the husband and had been in possession of more assets than him. She had contributed in financial terms far more than the husband had put into these assets. In view of the foregoing, an equal division of their assets would be unjust and inequitable.

In AQT v AQU [2011] SGHC 138 (where the parties married in June 1992 and interim judgment was granted in January 2009 and the marriage lasted 17 years) at [49] Lai, J reiterated the principles of s 114 of the Charter succinctly cited by the Court of Appeal in BG v BF [2007] 3 SLR (R) 233 at [74]:

“The High Court in Wong Amy v Chua Seng Chuan [1992] 2 SLR (R) 142 made some crucial observations in relation to these powers: (a) adequate provision must be made to ensure the support and accommodation of the children of the marriage; (b) provision must be made to meet the needs of each spouse; and (c) at the end of the day, it is the court’s sense of justice which demands and obtains a just solution to many a difficult issue: see also Quek Lee Tiam v Ho Kim Swee [1995] SGHC 23”

It is recognised that the wife had been deprived of working capacity during the marriage and maintenance is needed to ease her back into the workforce and even out any economic prejudice she might have suffered during the marriage. However, the Wife was expected to regain as much self-sufficiency as possible (see Quek Lee Tiam v Ho Kim Swee (alias Ho Kian Guan) [1995] SGHC 23)”.

The court also drew guidance from several judgments of our superior courts on the division of matrimonial assets namely: BCB v BCC [2013] SGCA 14 where the Court of Appeal observed that the fundamental principle that the court ought to utilise the broad-brush approach should be borne firmly in mind. The broad-brush approach is also buttressed by other complementary principles and one such principle is that indirect contributions of every stripe should be taken fully into account. At [12] Andrew Phang Boon Leong JA delivering the judgment of the Court emphasised:

“In our view, it is of the first importance to note that the observations quoted at the end of the preceding paragraph apply with equal force to both husband as well as wife alike. It is not simply one or the other spouse’s indirect contributions that must be given their full value; both spouses indirect contributions must be taken fully into account, when the court concerned is exercising its discretion pursuant to s 112. The importance of this particular observation in the context of the present appeal will become clear in a moment.”

AYQ v AYR [2012] SGCA 66 where the Court of Appeal at [16] reiterated the broad-brush approach towards the division of assets. In ZO v ZP [2011] SGCA 25 Andrew Phang Boon Leong, JA, at [23] put it succinctly that:

“Ultimately, the court is directed to take a “broad-brush” approach to the process of division of matrimonial assets by resisting the “temptation to lapse...