Oh Choon v Lee Siew Lin

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 08 November 2013
• Neutral Citation: [2013] SGCA 60
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 162 of 2012
• Published date: 13 December 2013
• Year: 2013
• Hearing Date: 04 September 2013
• Plaintiff Counsel: Aye Cheng Shone (A C Shone & Co)
• Defendant Counsel: Teh Yoke Meng Christopher (Teh Yip Wong & Tan)
• Subject Matter: Family Law,matrimonial assets,division,maintenance,wife
• Citation: [2013] SGCA 60

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

This was an appeal by the husband against the decision of the High Court judge (“the Judge”) in Divorce Transferred No 5661 of 2010. The Judge’s grounds of decision may be found at Lee Siew Lin v Oh Choon [2013] SGHC 25 (“the GD”).

On 4 September 2013, having considered the written submissions filed by the parties as well as the oral submissions of counsel, we allowed the appeal with regard to the division of matrimonial assets and consequently also varied the maintenance order made by the Judge. We now give the detailed grounds for our decision.

Facts

The appellant–husband Oh Choon (“the Appellant”) and the respondent–wife Lee Siew Lin (“the Respondent”) were married on 2 August 1993. The marriage did not produce any children.

The matrimonial home at 15A Kalidasa Avenue (“the Matrimonial Home”) was purchased in 1989 in both parties’ names as joint tenants. In June 1999, the Appellant moved out of the Matrimonial Home and on 10 May 2006, he severed the joint tenancy. However, the Appellant continued to hold a set of keys to the Matrimonial Home. The Matrimonial Home was valued at $640,000 with no outstanding liabilities charged against it.

It was largely undisputed between the parties that they lived in a state of separation after the Appellant moved out of the Matrimonial Home in June 1999. This was so save for the monthly instances until October 2010 when the Appellant would return to the Matrimonial Home. The purpose of these monthly visits was in dispute: the Appellant said that he returned only to give the Respondent a monthly maintenance of $1,200, while the Respondent said that on top of doing so, his monthly visits were also for the purpose of having sexual intercourse with her. In November 2010, when divorce proceedings were commenced by the Appellant, he stopped the monthly visits. Until April 2011, he paid the Respondent’s monthly maintenance via mailed cheques. Interim judgment of divorce was granted on 20 October 2011 on the factual basis that the parties had been living separately for 4 years.

Between the Appellant moving out of the Matrimonial Home in 1999 and the filing of divorce proceedings, several developments relevant to the present appeal transpired. First, he started a new life with a mistress. Second, in April 2010, he purchased a property, 63 Thong Soon Green (“the Property”), in the joint names of himself and his mistress. The Property was valued at $2,480,000 and was subject to an outstanding mortgage loan of $673,650.10. Additionally, he acquired a Mercedes E250 (“the Car”), valued at $179,000, in January 2010. However, it was his contention that when he moved out of the Matrimonial Home in 1999, he was facing financial difficulties and his lot only improved subsequently, such that the Property and the Car were purchased using funds acquired after 1999.

The decision of the court below

The proceeding below was the Respondent’s application for ancillary relief, viz, an order for the division of the matrimonial assets and an order for maintenance pursuant to ss 112 and 113 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Act”), respectively. The Respondent’s case was that the Property and the Car fell into the pool of matrimonial assets to be divided. The Appellant disputed this, and argued that the operative date to determine the pool of matrimonial assets was the date of separation, ie, 1999. Accordingly, because the Property and the Car were purchased after the date of separation, they did not fall within the pool to be divided.

The Judge used the date of interim judgment (being 20 October 2011) as the operative date for determining the pool of matrimonial assets (see the GD at [13]). The Judge reasoned that since the parties were content with leaving the state of affairs as they were and neither took steps to end the marriage by commencing divorce proceedings, there was no clear indication or agreement that the pool would crystallise at the date of separation. In the absence of such an agreement or common understanding between the parties, the date of separation was not an appropriate date to employ. The Judge considered the parties to have continued to accumulate assets on the basis that the marriage was still subsisting even though they were separated. It was therefore not unjust to adopt the date of interim judgment as the point at which to determine the pool of matrimonial assets. Accordingly, the Property and the Car were included as matrimonial assets liable to be divided.

The Judge considered (see the GD at [22]–[24]) that the Appellant had paid for the purchase, renovation, furnishing and maintenance of the Matrimonial Home, while the Respondent had paid for some household and grocery expenses. The Judge then considered that the Respondent had contributed by assisting the Appellant in the kitchen of his commercial catering business (though this must have been only before the parties separated). She also carried out household chores and looked after the Matrimonial Home. The Judge concluded, on a broad brush approach, that the Respondent was entitled to a 26.29% share of the matrimonial assets. To effect this division, the Judge ordered the Appellant to transfer his share of the Matrimonial Home to the Respondent. The parties were to keep all other assets in their respective names.

Finally, the Judge ordered the Appellant to pay to the Respondent lump sum maintenance of $5,000.

The issues before us

On the division of the matrimonial assets, the arguments before us were framed by counsel for the Appellant, Mrs Aye Cheng Shone (“Mrs Shone”), as engaging two issues. The first issue pertained to the operative date for determining the matrimonial assets to be divided. In this regard, Mrs Shone argued that assets acquired after the Appellant moved out of the Matrimonial Home ought to be excluded from the pool to be divided. The second issue was the question of the share of the assets the Respondent should be awarded by reference to her indirect contributions.

Division of matrimonial assets Determining the pool of matrimonial assets Using the date of separation as the cut-off date

As already noted, Mrs Shone sought to argue that the marriage was, in substance, a short one of some six years’ duration (until the Appellant moved out of the Matrimonial Home in June 1999) and that, in the circumstances, the Property and the Car (which were acquired after the Appellant had moved out of the Matrimonial Home) ought to be excluded altogether from the pool of matrimonial assets to be divided between the parties. This was a de facto argument which we could not, with respect, accept – not least because there continued to be contact (albeit only at monthly intervals) between the Appellant and the Respondent after the former had moved out. Indeed, it was an undisputed fact that the Appellant continued to provide $1,200 in monthly maintenance to the Respondent during these monthly visits to the Matrimonial Home. This itself demonstrated that there was a continuous (albeit clearly attenuated) relationship between the parties throughout. By contrast, a marriage might itself...