Manokaran s/o Sangelee v Omar Devi d/o Pakri Krisnah

• Jurisdiction: Singapore
• Judge: Wong Keen Onn
• Judgment Date: 31 December 2013
• Neutral Citation: [2013] SGDC 455
• Court: District Court (Singapore)
• Docket Number: Divorce Suit No 988 of 2012
• Published date: 26 May 2014
• Year: 2013
• Hearing Date: 04 October 2013
• Plaintiff Counsel: Mr Retnam (M/s Rajah Retnam & Co)
• Defendant Counsel: Mr S R Shanmugam (M/s Shan & Co)
• Citation: [2013] SGDC 455

District Judge Wong Keen Onn: Introduction

This is an appeal by the Defendant (also referred to as “the wife”) to set aside the ancillary orders made on 4 October 2013 (“ancillary orders”) that the matrimonial home was to be divided in the proportion of 58 % of its net value to the wife and 42 % to the husband. Both parties were legally aided.

Background Facts

The parties were married on 13 August 1997. There were no children of the marriage. The Plaintiff husband is 56 years old and worked as a car polisher while the Defendant (also referred to as the “wife”), 47 years of age, is unemployed. One year later, the husband served an imprisonment term from the end of 1998 till 2001. After his release from prison in 2001, the Plaintiff husband moved out of the matrimonial flat due to unhappy differences and ceased to cohabit with the wife. The parties thereafter lived separately. The husband was also incarcerated for another 6 years from 2005 to 2011. On 1 March 2012, the husband filed for divorce on the basis of separation of four years. The Interim Judgment was granted on 14 May 2012 and the ancillary matters were adjourned to Chambers.

In respect of the ancillary matters, the Plaintiff husband filed 3 Affidavit of Assets and Means (AOM) and these affidavits were marked as P1, P2 and P3 (filed on 18 September 2012, 13 March and 25 July 2013 respectively). The husband’s written submission was marked as PS-1¹. The Defendant wife filed 3 affidavits, which were marked as D1, D2 and D3 (filed on 19 February, 8 July and 2 September 2013 respectively) and a written submission marked as DS-1² .

The Ancillary Orders

The ancillary matters came for hearing before me and after hearing the evidence and submissions, I made the following orders: It is ordered that: In full and final division of all the matrimonial assets and in lieu of maintenance payable to the Defendant, the Plaintiff shall, within 6 months of the date of Final Judgment, transfer (otherwise than by way of sale) all his rights, title and interest in the matrimonial property at Block 123 Yishun Street 11 #08-503 Singapore 760123 (“the matrimonial flat “) to the Defendant upon the Defendant paying a consideration equivalent to 42 % of the net value of the matrimonial flat (the net value is to be based on the valuation of the market price of the said flat less the outstanding loan). The valuation price is to be determined by a valuation report for the sale of the matrimonial home in the open market by an approved HDB valuer jointly appointed by Plaintiff and Defendant. From the monies he received for the transfer of his share in the flat, the Plaintiff shall refund to his CPF account the monies utilized for the purchase of the flat. Cost of the valuation to be borne equally. The parties are to bear the costs and expenses of the transfer and for the valuation report equally. In the event the matrimonial flat is not transferred within the stipulated period, the matrimonial flat at Block 123 Yishun Street 11 #08-503 Singapore 760123 shall be sold on the open market within the next 6 months and net sale proceeds after deducting the outstanding housing loan, and the costs and expenses of the sale shall be divided in the proportion of 42 % to the Plaintiff husband and 58 % to the Defendant wife. There shall be joint conduct of sale of the flat and the flat shall be sold to the highest bidder. Both parties are to refund to their CPF accounts all the CPF monies utilised for the purchase of the flat together with accrued interest. The above order is made subject to the Central Provident Fund Act (Cap 36) (“CPF Act”) and the subsidiary legislation made thereunder in respect of the Member’s CPF monies. The Board shall give effect to the terms of this order in accordance with the provisions of the CPF act and subsidiary legislation made thereunder Save as above, each party shall retain his/her assets in his/her own name and there shall be no further claims against each other. The Registrar /Deputy Registrar of the Subordinate Courts, Singapore shall be empowered to sign or execute all documents necessary relating to the matters in this order with respect to the said matrimonial property on behalf of either party, should either party fail to execute the necessary documents despite being given 7 days written notice to do so. There shall be no maintenance for the Defendant. Liberty to apply Each party to bear their own costs

The Defendant wife has appealed against my decision on the division of matrimonial assets and maintenance for her. I now set out the reasons for my decision.

The division of the matrimonial flats and other assets

The main asset that the parties owned was their matrimonial home, a 3 room HDB flat at Block 123 Yishun Street 11 #08-503 Singapore 760123, which they held as joint tenants. They had bought the flat for $137,000.00 from the resale market on 1 December 1998, about one year after their marriage. The Plaintiff proposed a market value of $300,000.00 (after submitting in a list of HDB resale transactions for 3-room flats in the same block 123 and nearby blocks³. The Defendant instead suggested a figure of $335,000.00 by using the median resale price by HDB for a 3-room flat in the fourth quarter of year 2012⁴. However, I estimated the open market value for the flat was about $324,000.00 based on the average of the 11 recent resale transactions of 3-room flats between 6 to 10 storey high for the period between February and September 2012⁵.

There was an outstanding mortgage loan of $24,733.43 as at May 2013. There were also loan arrears of $1,648, outstanding late payment charges of $2,800.45 for the matrimonial flat and repair costs under the Goodwill Repair Assistance (GRA) of $49.80. By deducting these sums from the estimated market price for the flat, it will give a total outstanding amount of $28,167.04. It was pertinent to note that a portion of the housing loan had been paid up using a sum of S$65,168.00 received pursuant to the Home Protection Insurance Scheme (also known as the Home Protection Insurance Scheme or “HPIS”) due to the Defendant’s incapacity where she lost her right leg due to her diabetic condition. With this HPIS payment made, the net value of the flat would now be about $294,768.00 ($324,000.00 less $24,733.43 less loan arrears of $1,648 and late payment charges of $2,800.45 and repair costs under the Goodwill Repair Assistance (GRA) of $49.80)⁶.

With regard to the HPIS payout, both parties agreed that the authorities have held that the HPIS payment was not a direct contribution by the wife towards the acquisition of the flat. This position is supported in the case of Saseedaran Nair s/o Krishnan (now known as K Saseedaran Nair) v Nalini d/o K N Ramachandran [2012] 2 SLR 365 (“Saseedaran” case), where the Court of Appeal at [7] held a pay-out under the HPIS was not for the sole benefit of the insured party (and therefore could be regarded as the sole property of the insured party) such that it should be deducted from the sale proceeds before determining the parties’ respective shares in the matrimonial property. This was because the purpose of the HPIS is to reduce the outstanding mortgage on the property and not to compensate the insured for his incapacity. (Saseedaran at [9]). The Court of Appeal’s ruling was followed in the High Court case of Ho Shin Hwee v Mark Kwik (reported in Singapore Law Watch on 5 September 2013). I was of the view that this ruling applied equally well to the facts of this case. Hence, the HPIS payout of S$65,168.00 in our instant case should be factored in to determine the net value of the property for division without it being attributed to either party. As stated in [7] above, the net value of the matrimonial flat for division would be about $294,768.32

The other assets held by the parties were not significant and were not in dispute. The husband had $13,060.40 in his CPF accounts while the wife only had $26.61 (excluding her savings which was negligible and was therefore disregarded for the purposes of the division). The combined pool of assets would be $307,855.33 ($294,768.00 + $13,060.40 + $26.61).

Parties’ Position on the division of assets

The parties’ positions on the division of the matrimonial flat can be summarised as follows. The wife submitted that the matrimonial flat should be transferred to her sole name, without any refund to the husband’s CPF account and no consideration whatsoever in lieu of maintenance. Alternatively, the matrimonial home could be sold on the open market and net sale proceeds after refunding to the parties’ CPF contributions was to be given to the wife absolutely. In addition, the husband should transfer half of his CPF monies to her and pay her maintenance of at least $500 per month⁷. The wife alleged that the husband was in prison from 1998 to 2001 and again from 24 June 2005 to 2 August 2011. In May 2010, whilst the husband was still in prison, she had her right leg below the knee amputated due to diabetes induced gangrene and could not work and relied on social organisation and her 4 children from an earlier marriage for support. She claimed that after August 2011, the husband forcefully evicted her and her 4 daughters from the matrimonial flat and they had to rent a room for themselves. She preferred to be paid a lump sum maintenance as she felt it was highly probable that the husband would not pay maintenance even if he was ordered to do so and she was not in a position to enforce maintenance due to her medical condition. The wife’s counsel submitted that the HPIS payout under the wife’s name should be considered as the wife’s indirect contribution to the marriage though arising from her misfortune.

As for the husband’s position, he was prepared to pay only a nominal amount of $10 per month as maintenance for the wife. The husband’s counsel submitted that the matrimonial flat...