Ong Boon Huat Samuel v Chan Mei Lan Kristine

• Judge: Chan Sek Keong CJ
• Judgment Date: 20 March 2007
• Neutral Citation: [2007] SGCA 19
• Citation: [2007] SGCA 19
• Defendant Counsel: Nicole Loh (Harry Elias Partnership)
• Published date: 23 March 2007
• Plaintiff Counsel: The appellant in person
• Date: 20 March 2007
• Docket Number: Civil Appeal No 38 of 2006,Civil Appeal No 38 of 2006 (Summons No 1754 of 2006)
• Court: Court of Appeal (Singapore)
• Subject Matter: Section 112 Women's Charter (Cap 353, 1997 Rev Ed),Manner in which matrimonial home to be divided between parties upon divorce,Division,Matrimonial home purchased jointly by husband and wife,Property purchased during marriage in husband's sole name after wife pulling out of purchase,Husband and wife paying lump-sum down payment but wife solely responsible for monthly loan payments,Family Law,Matrimonial assets,Whether such property wife wanting to have no part in amounting to matrimonial asset to be divided between parties upon divorce,Matrimonial home

20 March 2007 Judgment reserved.

Judith Prakash J (delivering the judgment of the court):

1 This case concerns the division of matrimonial assets upon the end of a brief and childless marriage. The appellant husband (“the Husband”) and respondent wife (“the Wife”) were married on 1 July 2000. Slightly over two years later, on 29 November 2002, the Wife applied for leave under s 94 of the Women’s Charter (Cap 353, 1997 Rev Ed) (“the Act”) to commence divorce proceedings before the expiration of three years from the date of marriage. Her application was dismissed. Nevertheless, the parties did not reconcile and the Wife filed a second divorce petition on 17 July 2003. The decree nisi was granted on 19 September 2003. The district judge in the Family Court found that, effectively, the marriage lasted for only 19 months.

2 This appeal concerns the division of two matrimonial assets, namely, the apartment known as 259 Onan Road (“the matrimonial home”) and the apartment situated at 373 Onan Road #01-10 Malvern Springs (“Malvern Springs”). It is necessary to elaborate on the manner in which these two properties were acquired.

3 The matrimonial home was jointly purchased by the parties in July 2000. The Husband and the Wife made lump sum payments of $74,740.46 and $39,659.54 respectively from their accounts with the Central Provident Fund Board (“CPF”). The Husband made an additional cash down payment of $137,600. The remainder of the purchase price was financed by a bank loan.

4 The parties agreed that the Wife would be responsible for the monthly loan instalments and would pay these from her CPF account. Thus, from August 2000 to August 2003, the Wife alone paid the monthly instalments of $1,837.90. From September 2003 onwards, however, when the instalments were increased, the Husband started to contribute to them. In February 2004, the Wife’s CPF contributions decreased to $1,000.00 a month and the Husband thereafter correspondingly bore the remainder of each instalment.

5 In February 2002, the parties entered into a sale and purchase agreement to purchase Malvern Springs in their joint names. The parties’ intention at that point in time was for Malvern Springs to replace their matrimonial home, which was by then in a state of disrepair. Given that the Wife’s funds were being used to finance the loan for the matrimonial home, the parties agreed that the Husband would be solely responsible for financing Malvern Springs. As the Husband was unable to obtain financing in his sole name, the parties also agreed that the mortgage loan for Malvern Springs was to be applied for in their joint names. The Husband made the initial 10% down payment for Malvern Springs.

6 Shortly afterwards, the parties’ relationship broke down and when the time came to sign the mortgage documents, the Wife refused to sign them unless the Husband agreed to enter into a deed of financial settlement (“the Deed”) with her to formally record an agreement with regard to Malvern Springs. Under the Deed, the Husband was to undertake to be solely responsible for all monthly instalments, the second 10% of the purchase price, interest, stamp duty, penalty, outgoings, costs, bank charges and fees and legal costs incurred in relation to Malvern Springs. The Husband did not consent to the Deed and as a result the Wife pulled out of the purchase in April 2003. Abortive costs of $10,684.04 were thus incurred.

7 The Husband then proceeded to purchase Malvern Springs in his sole name in May 2003. The Wife had no knowledge of this until it was revealed in the Husband’s fourth affidavit filed for the purposes of the ancillary matters in the divorce proceedings.

8 At this juncture, it is important to note that the values of both properties have moved in opposite directions. While the matrimonial home has drastically decreased in value, Malvern Springs has appreciated in value. The matrimonial home was purchased for $688,000 but a valuation obtained by the Wife in June 2005 showed its then value to be only approximately $550,000. A shortfall will thus be incurred if the matrimonial home is to be sold now. On the other hand, Malvern Springs was purchased for $804,155 and, according to the Wife’s estimate based on the sale price attained for a smaller unit at that time, was worth more than $1m in February 2005. The Husband disputed that estimate, but only as to the degree of capital appreciation, and not to the fact that no capital loss had been suffered in respect of Malvern Springs.

Proceedings in the courts below

9 When the issue of division of matrimonial assets was first heard in the Family Court, the position of Malvern Springs was a hotly contested issue. The district judge considered that Malvern Springs should be included in the pool of matrimonial assets to be divided because the parties had intended it to replace their matrimonial home. The district judge made the following ancillary orders on 18 April 2005 (see Chan Mei Lan Kristine v Ong Boon Huat Samuel [2005] SGDC 187 at [3]):

(a) The [Wife] was entitled to 18.56% of the net total value [ie, net profit of Malvern Springs – shortfall in the sale price of the matrimonial home – the Husband’s cash loss – abortive costs of Malvern Springs] of both properties at 259, Onan Road (the matrimonial home) and 373, Onan Road, #01-10 Malvern Springs (Malvern Springs property) which, using the [Husband’s] amended calculations, amounted to $22,596.64.

(b) The [Husband] was given the option either to sell the Malvern Springs property or he could retain it upon paying the [Wife] the said $22,596.64.

(c) The matrimonial flat was to be sold within 6 months.

(d) No order on other claims of both parties.

(e) [The Husband] to pay $1 per month as maintenance to [the Wife].

(f) Costs of Divorce Petition to [the Wife] fixed at $1,500 and costs of $2,000 for the ancillary proceedings.

10 The Husband was dissatisfied and appealed against the orders made by the district judge. On appeal, the High Court judge reduced the Wife’s share of the net total value of the two properties from 18.56% to 15% after taking into account the unsatisfactory state of the Husband’s financial affairs. The High Court judge left the district judge’s orders otherwise untouched.

The parties’ arguments and the findings of the lower courts

11 It was not disputed that the matrimonial home was to be divided. The brunt of contention instead arose from the Wife’s claim to a share in Malvern Springs.

12 The Husband’s main argument in this court and the courts below was that Malvern Springs should not be included in the pool of matrimonial assets to be divided, ie, the Wife should not be entitled to any share in Malvern Springs. The main reason he gave was that the Wife had, from the very beginning, maintained that she was not interested in the purchase of Malvern Springs and that she should not be responsible for any liability that might arise from the same. That being so, she should not now be allowed to take advantage of the Husband’s astute investment decision in purchasing Malvern Springs.

13 The Wife argued that Malvern Springs should be included in the pool of matrimonial assets because it was purchased during the marriage and was originally intended to replace the matrimonial home. Further, the parties’ agreement was that the Wife would continue to service the monthly loan instalments in respect of the matrimonial home while the Husband financed the purchase of Malvern Springs. The Wife argued that it would be unjust and inequitable to now deny her a share of Malvern Springs because the arrangement resulted in her financing a negative asset (being the matrimonial home) while the Husband financed a profitable asset (being Malvern Springs).

14 The district judge and the High Court judge both agreed with the Wife. They found that Malvern Springs should be included in the pool of matrimonial assets to be divided because it was acquired during the marriage and was intended to constitute the parties’ new matrimonial home. Further, the High Court judge found that the Husband could only afford to purchase Malvern Springs because the Wife was helping to finance the matrimonial home. She was, to that extent, financially strapped and unable to help finance Malvern Springs. The Wife had thus contributed to the purchase of Malvern Springs by relieving the Husband from the financial burden he would otherwise have borne with respect to the matrimonial home. The High Court judge concluded that she was therefore entitled to a share in Malvern Springs: see Chan Mei Lan Kristine v Ong Boon Huat Samuel [2006] SGHC 108 (“the GD”) at [16].

Our decision

Should Malvern Springs be included in the matrimonial asset pool?

15 Having heard the submissions on appeal and having reconsidered the evidence, we have come to a different conclusion from the courts below. With respect, it is our determination that Malvern Springs should not be included in the matrimonial asset pool for division and consequently that the Wife should not get a share of Malvern Springs. This determination is, in our judgment, the only one that is consistent with the Wife’s position from the beginning that she was to have no part in the purchase of Malvern Springs and all liabilities associated therewith would be borne by the Husband.

16 The Wife’s position vis-à-vis Malvern Springs was clearly enunciated in her affidavits. At para 11 of her first affidavit filed on 10 November 2003, the Wife said:

The [Husband] was the one who wanted to buy this property. I was already unable to afford buying another property as all my monies were already being used to finance our matrimonial home’s outstanding loan. Therefore, it was agreed that the [Husband] would be the one fully financing the purchase of Malvern Springs. However, for the [Husband] to obtain a mortgage loan from the bank for such a purchase, the mortgage loan had to be applied for by both him and [me]. Therefore, the [Husband] asked...