JAF v JAE

• Jurisdiction: Singapore
• Judge: Valerie Thean JC
• Judgment Date: 16 February 2015
• Neutral Citation: [2015] SGHC 114
• Plaintiff Counsel: The appellant in person
• Docket Number: Registrar’s Appeal from the State Courts No [Y]
• Date: 16 February 2015
• Hearing Date: 28 January 2015
• Subject Matter: Family Law
• Year: 2015
• Citation: [2015] SGHC 114
• Defendant Counsel: The respondent in person.
• Court: High Court (Singapore)
• Published date: 04 November 2015

Valerie Thean JC [delivering the oral judgment]:

Parties first appeared before me on 28 January 2015. As both are acting in person, I give brief oral grounds, some of which are legal in nature, to explain my decision.

Introduction

This is an appeal by the wife (“the Wife”) against the following orders granted by the learned District Judge (“the Judge”) in JAE v JAF [2014] SGDC 373 (“the GD”) and JBX v JBY [2014] SGDC 449 (“the Supplemental GD”) (JBX corresponds to JAE – the Husband; JBY corresponds to JAF – the Wife): that the husband (“the Husband”) was entitled to 30% of the current market value of the property in Poland (“the Poland property”); and that the Wife should not be awarded a separate sum for the cost of a return air ticket to Poland once a year.

The Poland property Background

I deal first with the Poland property. This was purchased on or around 13 February 2001, and held by the Wife in her sole name. Both parties do not dispute that the purchase was completed before the date of marriage, 25 October 2002.

The purchase price of the Poland property, including taxes, was PLN 189,220 (S$73,149.40). It was not disputed at the appeal that the Husband’s financial contribution amounted to £15,000.

This property was one of two that the Judge divided. The second was a property in Scotland (“the Scotland property”) acquired during the marriage, the division for which the Wife has not appealed.

The Judge’s decision

Although the Poland property was purchased in the Wife’s sole name, the Judge found that the circumstances of the purchase showed the parties’ intention that the Poland property was meant to belong to both parties.

The Judge relied on two grounds to divide the Poland property. The first ground was based on the matrimonial jurisdiction pursuant to s 112 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Charter”). The Judge preferred the Husband’s evidence that the Poland property was purchased as a joint investment and was intended to be used as a holiday home when the family travelled to Poland. His evidence that the family had stayed in the Poland property once after its purchase and that his parents had used the Poland property once as a holiday home was accepted. The Judge held that the Poland property fell within the scope of a “matrimonial asset” under s 112(10)(a)(i) of the Charter.

The second ground was based on the general principles of resulting and constructive trusts. The Judge observed that there was clear and sufficient evidence of the parties’ respective financial contributions to the purchase price of the Poland property. On the basis of the presumption of resulting trust, the parties were presumed to hold the beneficial interest in the Poland property in proportion to their respective contributions to the purchase price. The Judge held that the presumption of advancement was rebutted on the facts of the case because the Husband had not intended the sum of £15,000 to be a gift to the Wife. In the circumstances, the Judge arrived at the conclusion that the Husband had a 30% beneficial interest in the Poland property.

The Wife’s arguments

The Wife submitted that the Poland property should not have been divided as it does not fall within the definition of a “matrimonial asset” under s 112(10) of the Charter; parties had never lived in the Poland property.

Regarding the trust issue, the Wife took the position that the sum of £15,000 was actually a gift from the Husband: as at the date the Poland property was purchased, she did not see any future with the Husband as his previous fiancée was pregnant at that time. It was further argued that if she had not quit her job and moved to Scotland with the Husband, she would have been able to fully fund the purchase of the Poland property without any assistance from the Husband.

The Husband’s arguments

The Husband submitted that the Wife’s evidence had been inconsistent right from the start. He pointed out that the Wife had initially denied receiving any help from him in paying for the Poland property, but eventually conceded when he managed to prove that he had transferred the sum of £15,000 to her.

The Husband further argued that he had never intended the sum of £15,000 to be a gift because its source was his property in Scotland which he sold in order to start life afresh with the Wife, and both parties had intended to use the Poland property for vacation and their future joint lives; they did not live in the Poland property as the Wife’s brother had been staying there. His answer to the Wife’s argument that she could have funded the Poland property alone if she had not moved to Scotland was that the Scotland property was also in his sole name and the Wife was awarded a 35% share in it.

My decision

The preliminary issue which has to be dealt with would be whether the Poland property falls within the scope of a “matrimonial asset” which renders it liable for division under s 112(1) of the Charter. The definition of a “matrimonial asset” is set out in s 112(10) of the Charter:

(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.

Given that both parties do not dispute that the Poland property was acquired before the date of marriage, s 112(10)(b) would not be applicable. It is further noted that the Husband has not sought to argue that the Poland property was substantially improved by him (only a contribution of furniture was contended) or by both parties during the marriage. It follows then that the Poland property could only qualify as a “matrimonial asset” if s 112(10)(a)(i) of the Charter applied.

In this respect, the Judge arrived at the conclusion that the Poland property was a matrimonial asset on the basis that the parties had intended to own the Poland property together and it was meant to be enjoyed by the family for a household purpose (when they were in Poland) or for a recreational purpose (as a holiday home) and found in the Husband’s favour that there were two occasions of stay in the Poland property.

In my view, the two occasions of stay were insufficient to satisfy s 112(10)(a)(i) of the Charter. For assets acquired prior to marriage, the subsection specifically states that the asset must be “ordinarily used or enjoyed” [emphasis added] for the purposes set out therein. The property must, in fact, be 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. If parties had intended to do so, but eventually failed to carry through with the intention, it is an insufficient basis for the asset to be considered a matrimonial asset. I therefore find that the Poland property is not a matrimonial asset.

The Judge’s second ground for division applied the law of resulting and constructive trusts in finding that the Husband had a 30% beneficial interest in the Poland property.

However, the focus of s 112 of the Charter is to treat all matrimonial assets as community property to be divided in accordance with the principles set out in the section (see Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520 at [40]). A court exercising jurisdiction under s 112 uses a broad range of factors, with judgment resting on what is “just and equitable”. In contrast, principles of property law, which include the law of resulting and constructive trusts, are generally more concerned with the intention of the parties. In this respect, the power of division in s 112 may be contrasted with that of s 59 of the Charter, which allows the court to decide property issues in a summary way in accordance with property law. In this instant case, parties were not seeking a resolution on any question of title or possession of the Poland property. Section 59 of the Charter was thus inapplicable. Parties too had not applied for relief under this section. Parties had not made submissions or addressed the evidence for the use of s 59 or property law principles. For these...