Goh Keng Boey v Ong Jim Hwee

• Jurisdiction: Singapore
• Judge: Yarni Loi
• Judgment Date: 28 May 2015
• Neutral Citation: [2015] SGFC 65
• Court: Family Court (Singapore)
• Docket Number: Divorce No. 5808 of 2012S, HCF/DCA 79/2015, HCF/DCA 80/2015
• Published date: 23 July 2015
• Year: 2015
• Hearing Date: 14 April 2015,28 April 2015
• Plaintiff Counsel: Ms Lim Poh Choo (Alan Shankar & Lim LLC)
• Defendant Counsel: Mr Chong Chin Pun (Ee Bin & Lau)
• Subject Matter: Catch words: Family Law-Ancillaries-Division of assets-Maintenance
• Citation: [2015] SGFC 65

District Judge Yarni Loi: Introduction

This is my judgment in respect of ancillary orders made in these divorce proceedings between the Plaintiff-wife and Defendant-husband who married on 26 November 1975. Interim Judgment for divorce was granted on 28 February 2013 on the basis of 4 years’ separation (“IJ”). Prior to their separation, they were married for 34 years. The Plaintiff and Defendant are both about 59 years old. They have 3 grown up sons, aged 38, 37 and 28.

The issues in this case concern maintenance for the Plaintiff and division of matrimonial assets, including parties’ matrimonial flat at Block 326 Hougang Avenue 7 #07-333 Singapore 530326 (“Matrimonial Flat”).

After considering all the evidence and submissions, I ordered that the Plaintiff be entitled to 65% of the value of the Matrimonial Flat, with parties to retain their own assets; the Plaintiff has the option of purchasing the Defendant’s 35% share, failing which the Matrimonial Flat will be sold in the open market, with the net sale proceeds divided in the proportion 65% to the Plaintiff and 35% to the Defendant; and the Defendant shall pay to the Plaintiff a nominal maintenance amount of $1 per month. (“AM Orders”.)

Both parties have appealed against the AM Orders. I now give my full reasons.

Brief background facts

The Plaintiff is presently a child-care teacher earning $1,400 (gross) and $1,241.50 (take-home). She worked for the major part of the marriage, save for some years when she stayed at home to look after the household/children. Even during the years when she stayed at home, she would do some sewing or babysitting to earn income on the side. The Defendant is currently a part-time taxi driver earning about $1,000 per month. He worked throughout the marriage, although not as a taxi driver.

In their first 2 years of marriage, parties lived with the Defendant’s parents and siblings. Their first child was born in September 1976, less than a year after their marriage. When their first-born was about 2 years old, they moved out of the Defendant’s parents place and rented a HDB flat of their own. Around this time, their second son was born.

In 1980, they acquired their first 3-room HDB flat at Ang Mo Kio (“AMK Flat”) for the price of $15,800. The Defendant paid for the AMK Flat, whilst the Plaintiff’s income was used to contribute towards the family’s expenses. In 1986, their third son was born. In 1991, parties sold their AMK Flat for the price of $47,000 and purchased their current Matrimonial Flat in their joint names. The Plaintiff and the children currently reside at the Matrimonial Flat. The Defendant lives separately from them.

Division of assets – the legal principles

Under Section 112(1) of the Women’s Charter, the Court has the power to order a division or sale of matrimonial assets as the court thinks just and equitable. Section 112(2) provides that it is the duty of the court to have regard to all the circumstances of the case including the extent of the contributions made by the parties towards acquiring, improving or maintaining the asset; any debt owed or obligation incurred by either party for the joint benefit or for the benefit of any child of the marriage; the needs of the children; the extent of contributions made by each party to the welfare of the family; any agreement between the parties with respect to the ownership and division of the matrimonial assets; any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party; and the giving of assistance or support by one party to the other party which aids the other party in the carrying on of his occupation or business.

In exercising its powers, the court is to adopt a broad-brush approach and “it is essential that courts resist the temptation to lapse into a minute scrutiny of the conduct and efforts of both spouses” (NK v NL [2007] 3 SLR (R) 743). In ZO v ZP [2011] 3 SLR 647, the Court of Appeal further emphasized that direct and indirect contributions are to be given due weight and no single factor is determinative of the outcome. The court is also not expected to make an exact calculation of each spouse’s contribution, whether financial or non-financial; and the exercise is to be done “based on feel and the court’s sense of justice in arriving at a just and equitable division.” (Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157). See also ATT v ATS [2012] 2 SLR 859 at [15] and BCB v BCC [2013] 2 SLR 324.

A structured approach however is not inconsistent with the broad-brush approach and the High Court in ARL v ARM [2015] SGHC 61 at [12] summarised the guiding principles as follows: first, delineate what exactly constitutes the pool of matrimonial assets; second, assess the value of the pool so that the court’s deliberation can be made with reference to a working quantum; third, consider all the circumstances of the case, including but not limited to the factors listed in Section 112(2) of the Women’s Charter, particularly the direct financial contributions as well as the indirect financial contributions of each party, and thereby determine what is the just and equitable proportion; and finally, ascertain the most expedient means of executing the division in that proportion.

Matrimonial Pool

In this case, the total pool of matrimonial assets has a combined net value of approximately $635,588, with the following breakdown:

No.	Description	Value (S$)
	Matrimonial Flat
1	Value of Matrimonial Flat	425,000
	Assets in Plaintiff’s name
2	Bank Account	7,058.97
3	CPF Account	43,890.87
	Sub-total	50,949.84
	Assets in Defendant’s name
4	Bank Account	1,212.18
5	UOB Investment Account [XXX]	24,000
6	UOB Account [XXX]	8,008.66
7	CPF Account	96,417.74
8	Value of undeclared assets	20,000 + 10,000
	Sub-total	159,638.58
	Total	635,588.42

I will now address the reasons I added Item 8 (namely, the value of the Defendant’s undeclared assets assessed at $30,000) into the matrimonial asset pool.

It is settled law that a party’s failure to fulfil the duty of full and frank disclosure may lead the court to draw adverse inferences against him, and if the court decides to draw an adverse inference, it can elect to either add a specific sum of the undeclared asset to the pool or order a higher proportion of known assets. The Court of Appeal in ATT v ATS [2012] SGCA 22 held that:

“It is now a matter of trite law, following the decision in Wee Ah Lian v Teo Siah Weng [1992] 1 SLR(R)347 (at [55]), that a party’s failure to fulfil the duty of full and fair disclosure may lead the court to draw adverse inferences against him. In NK v NL [2007] 3 SLR (R) 743, the Court of Appeal held (at [59], [61]-[62]) that in drawing such an inference, the presiding court may elect to either add a specific sum of the undeclared asset to the matrimonial pool for division or order a higher proportion of the known assets to the other party. This approach was subsequently reiterated in Yeo Chong Lin (at [65]).”

Before an adverse inference can be drawn, the person who alleges that the other party has failed to give full and fair disclosure has the legal burden of proving: (a) some substratum of evidence to establish a prima facie case against the other party; and (b) show that the other party has some peculiar access to the information he is said to be hiding. (see Koh Bee Choo v Choo Chai Huah [2007] SGCA 21.)

In the present case, the Plaintiff argues that the Defendant has failed to give full and frank disclosure of his assets, in particular, that he has failed to give a satisfactory account of: (a) CPF withdrawals made in March 2009 amounting to $27,280.78 (“CPF Withdrawals”); and (b) cheque withdrawal of $10,000 which he made from his POBS Current Account No. [XXX] (“Cheque Withdrawal”).

In respect of the CPF Withdrawals, it is undisputed that in March 2009, the Defendant withdrew a sum of $27,280.78 from his CPF Account which was credited into his POSB Account No. [XXX], and the sole question is whether and how he utilised the withdrawn monies. According to the Defendant, he spent $7,239.83 on an obituary for his sister who had passed away at around that time. In support of his position, he produced his bank account statements reflecting that the sum of $7,239.83 was debited from his account on 3 April 2009 as well as a copy of an invoice dated 3 April 2009 in respect of an obituary advertisement for his sister. In light of his evidence, I am satisfied that the sum of $7,239.83 has been accounted for.

However, I am not satisfied that he has accounted for the balance of approximately $20,000 of his CPF Withdrawals. According to the Defendant, he paid his brother the amount of $25,000 representing his share of the hospital and medical costs of his late parents who passed away on 24 December 2005. In support of his case, the Defendant produced a note purportedly signed by his brother stating that the Defendant had paid him $25,000 in cash on 21 December 2009. The note states that “The above cash amount is [the Defendant’s] part of payment towards my late mother, Lim Kim Hock, hospitalisation and medical cost, when she was hospitalized in 2005 prior to her demised. The total hospital and medical cost then was in excess of $150,000 shared amongst all our siblings. [The Defendant] was unable to finance his...