Lee Leh Hua v Yip Kok Leong

• Jurisdiction: Singapore
• Judge: G P Selvam J
• Judgment Date: 27 February 1999
• Neutral Citation: [1999] SGHC 52
• Docket Number: District Court of Appeal No 5029 of 1998
• Date: 27 February 1999
• Year: 1999
• Published date: 19 September 2003
• Plaintiff Counsel: Appellant in person
• Citation: [1999] SGHC 52
• Defendant Counsel: Lisa Yeo (Lawrence Chua & Partners)
• Court: High Court (Singapore)
• Subject Matter: s 112 Women's Charter (Cap 353),Matrimonial home,Family Law,Whether court obliged to exercise power under s 112 of Women's Charter to order division,Husband instructing HDB to give proceeds in wife's sole name,Sale of matrimonial home before divorce,Whether wife entitled to sale proceeds as of right

Judgment:

GP SELVAM J

The facts

1.This is an appeal against the decision of the Subordinate Court in DP 3289/97. The wife was the petitioner. The marriage was solemnised on 26 February 1988. The couple lived and cohabited at Block 435 Yishun Avenue 6, [num ]04-2108, Singapore 760435 (`the matrimonial home`).

2.The petition stated that since November 1993 the husband without the consent of the wife and without reasonable or probable cause left the matrimonial home and remained separate and apart from her. By way of particulars it was asserted that the husband since September 1993 had a liaison with a Thai girl and approached the wife to dissolve the marriage because the husband was deeply in love with the Thai girl. The husband was even prepared, said the wife, to sell the matrimonial home and give the net sale proceeds to her as a form of compensation for dissolving the marriage. The wife tried to save the marriage but failed.

3.Now it is necessary to interpose the crucial events which resulted in the decision appealed against. In 1988, the year they were married, they purchased a flat from the HDB for about $64,000. Both parties drew from their CPF savings for the purchase. It was purchased in their joint names.

4.On 23 November 1993 the husband granted a power of attorney to the wife empowering her to sell the flat. Consequently it was sold for $190,000. After repayment of loan and refund to the CPF there was a balance of $122,135.56. This was evidenced by a completion account issued by the HDB on 5 April 1994. On the date of completion the HDB wanted to issue a cheque in the joint names. On the instruction of the husband, however, the cheque was issued in the name of the wife only. By the time the property was sold the parties had separated. From October 1993 the parties lived apart. After the sale the wife lived with the husband`s mother for a while at the latter`s flat. Soon after that, on 1 June 1994, the wife purchased another HDB flat in her sole name. The matrimonial home was sold and the equity was handed over to the wife in the presence and at the request of the husband some six months after the effective separation of the parties. Then on 3 June 1994 on the husband`s instructions his lawyers wrote to the wife confirming that the parties had been living apart from each other since October 1993 and asking whether the wife would sign a deed of separation. The wife did not respond. There was a reminder in July 1994. Again the wife remained silent. After a lapse of seven months the husband`s lawyer wrote to the wife stating that :

We have been instructed by our client that you have upon the sale of the previous matrimonial flat at 435 Yishun Avenue 6 [num ]04-2108, Singapore 2776 utilised the proceeds of sale of the flat to purchase a new flat as agreed by the parties at Block 117 Simei Street 1, [num ]03-540 Singapore 1852 and that to date you have not given a set of the keys to the flat to our client, neither have you met with our client for the distribution of the balance of the proceeds of sale as agreed. Our client had agreed to the execution of a power of attorney in your favour as requested by you in view of his work commitments that required him to go abroad during that period.

As our client paid for the entire purchase price of the previous matrimonial flat except for your initial contribution of $3,000, our client as you are aware is entitled to the balance of the proceeds of sale which to date you have not given account of to our client nor have you made any attempts to return the same to our client.

As such, our instructions are to request for a set of keys to the flat purchased to be made available to our client within the next seven days together with a statement of account relating to the sale of the previous matrimonial flat.

Once again the wife did not respond.

5.All was quiet until September 1996 when the wife engaged solicitors who asked if the husband was agreeable to a divorce based on separation of three years. The husband`s lawyers responded stating that they would take instructions and asking whether the wife had given her instructions pertaining to the decision of matrimonial assets/property. There was a terse reply from the wife`s solicitors: `There is no matrimonial asset/property existing`.

6.The husband`s position thereafter was that unless there was `a resolution or an amenable agreement to resolve his claim` in respect of the property he would not consent to the divorce.

7.Matters remained quiet again until October 1997 when the wife filed a divorce petition. As the husband had refused to consent she could not rely on separation for three years. So she alleged desertion for three years. Her only prayer was for dissolution of marriage. There was no prayer for any ancillary orders. There was no issue to the marriage. the wife referred to the husband`s liaison with the Thai girl and added : `He was even prepared to sell the matrimonial flat at Block 435 Yishun Avenue 6 [num ]04-2108 Singapore 760435 in April 1994 and gave all the nett sale proceeds of the flat to the petitioner as a form of compensation for dissolving the said marriage`.

8.The husband filed a memorandum of appearance. He did not refute any of the assertions of the wife. He, however, stated that he wanted to be heard on this claim: `Matrimonial flat at Blk 435 Yishun Ave 6, [num ]04-2108 - recovery of my rightful share to this flat`.

9.On 10 December 1997 the petition was heard. Counsel for both parties were present. A decree nisi was pronounced without any hitch. The issue on matrimonial asset and costs were adjourned to be heard in chambers. The husband`s claim in respect of the matrimonial home was misconceived because the flat having been sold some four years prior to the petition was heard it could not longer be made an issue of. However, the parties and the court below treated the equity of $122,135.56 as the real issue to be resolved.

10.The wife`s position in respect of the equity was this: the entire amount was hers and there should be no division of it because the husband said she could keep it by way of compensation for the mental devastation she underwent upon his revelation of his liaison with the Thai girl and the consequential separation. He took the opportunity of the sale of the flat to make a clean break with her. `Allowing me to keep the proceeds of sale of the matrimonial flat`, said the wife, `was a means...