Panneer Selam s/o Palaniandy v Shanti Lakshmi d/o Seetharaman

• Jurisdiction: Singapore
• Judge: Suzanne Chin
• Judgment Date: 20 April 2015
• Neutral Citation: [2015] SGFC 37
• Court: Family Court (Singapore)
• Docket Number: Divorce Petition No.5193 of 2010
• Published date: 17 July 2015
• Year: 2015
• Hearing Date: 12 February 2015,06 November 2014,08 January 2015
• Plaintiff Counsel: Mr Palmer Stuart Andrew (Straits Law Practice LLC)
• Defendant Counsel: Ms Kamala Devi d/o Poologanathan (Centro Legal)
• Subject Matter: Catch Words: Divorce 4 years separation Ancillary Matters Division of Matrimonial Assets Maintenance Short childless marriage
• Citation: [2015] SGFC 37

District Judge Suzanne Chin: Introduction

This judgement deals with the parties’ claims in respect of the division of matrimonial property and maintenance for the defendant wife (“the Wife”). The Wife has appealed against ancillary orders made on 12 February 2015 with respect to these issues.

Background

The parties were married on 11 July 2004 and there are no children to the marriage. The parties are now in their late 30s. The plaintiff husband (“the Husband”) is a tax accountant while the Wife was a teacher but has been unemployed for a number of years as a result of a medical condition. The parties separated shortly after the marriage but the exact date of separation was disputed.

The Husband had commenced divorce proceedings under D 4983/2008 on 8 October 2008 on the grounds of four (4) years separation from 12 July 2004. The Wife contested the proceedings disputing that the parties had been separated for a continuous period of 4 years immediately preceding the filing of the writ and on 1 June 2010, the Husband filed a notice of discontinuance for D4983/2008.

Subsequently, the Husband commenced divorce proceedings under D5193/2010 on 19 October 2010 on the grounds of four (4) years separation. The Wife again contested the proceedings, disputing the fact that the parties had been separated for a continuous period of 4 years immediately preceding the filing of the writ. The divorce was eventually set down for trial and after a contested divorce hearing, Interim Judgement was granted on 26 March 2013 on the grounds of 4 years separation and the ancillary matters were adjourned to be heard in chambers.

On 30 September 2013, the Wife’s brother was by virtue of an Order of Court dated 30 September 2013,[Note1] appointed as a deputy for the Wife to make decisions concerning her property and affairs in relation to her divorce proceedings as it was determined that she was unable to make these decisions herself.

Contested Ancillary Matters

The ancillary matters that were adjourned to be heard in chambers were as follows: Division of matrimonial property Maintenance for Wife.

The Ancillary Matters came up for hearing before me on 6 November 2014 and 8 January 2014 and after hearing the parties, I made the following orders on 12 February 2015: In full and final settlement of all issues relating to the division of property and maintenance, the matrimonial flat at 25 Ang Mo Kio Avenue 9, #01-18, Nuovo, Singapore 569788 shall be sold on the open market within six (6) months of the date of Final Judgement and the net sale proceeds, after repayment of the outstanding mortgage and interest, costs and expenses relating to the sale including agent’s commission, shall be divided in the proportion of 46% to the Defendant and 54% to the Plaintiff. From their shares of the sale proceeds, both parties shall refund to their respective CPF accounts all the monies utilized for the purchase of the flat together with accrued interest. There shall be joint conduct of sale of the matrimonial flat. The Plaintiff and Defendant shall bear the cost and expenses of the sale equally. The Registrar or Deputy Registrar of the Family Justice Courts under section 31 of the Family Justice Act (Act 27 of 2014) is empowered to execute, sign or endorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven (7) days of written request being made to the party. That each party shall retain his or her own other assets that are in their respective sole names. Costs of $6,000 up to Interim Judgement to be paid to the Plaintiff by the Defendant. Costs of $2,500 for ancillary matters to be paid to the Plaintiff by the Defendant. Liberty to apply.

Notice of Appeal

The Wife filed an appeal on 23 February 2015 against all of my orders and I now set forth the reasons for my decision.

Date of separation

As the date of separation was in dispute, the first issue I had to determine was the applicable date of separation. The Husband contended that the parties in effect only lived together for 6 months while the Wife took the position that the parties had lived together as husband and wife from the date of the customary marriage until sometime in 2008, a period of between 3 to 4 years.

The parties met when they both attended Ngee Ann Polytechnic in 1993. At the time of marriage in July 2004, the Wife was a teacher while the Husband was an accountant. The parties registered their marriage at the Registry of Marriages on 11 July 2004 and the customary marriage was held in November 2004 at the Sri Mariamman Temple.

It was only after the customary marriage in November 2004 that the parties started residing together as husband and wife.[Note 2]They stayed at the Wife’s aunt’s residence in Admiralty until the renovations on their new home (the Matrimonial Flat”) were completed in February 2005. Thereafter they moved into the Matrimonial Flat although the Husband’s position was that the Wife shuttled between the Matrimonial Flat and her aunt’s residence.

The Wife suffered a nervous breakdown in April/May 2005 and was hospitalized. When she was discharged from hospital, she effectively moved out of the matrimonial home to stay at her aunt’s residence. It was the Wife’s position that after her condition improved, she returned to the matrimonial home and the parties resumed their marital relationship.[Note 3] Thereafter, each time the parties had a quarrel, the Wife’s condition would worsen and she leave for her aunt’s residence to recuperate but each time her condition improved, she would return to the Matrimonial Flat. This was disputed by the Husband who maintained that the Wife never returned home after her nervous breakdown which according to him took place in May 2005.

At the contested divorce hearing, the Wife was found not to have filed her affidavit in support of her defence and accordingly her defence was struck off by the learned District Judge who heard the matter. On the day of the contested divorce hearing on 26 March 2013, the Wife failed to attend the hearing. The Wife’s counsel was however present at the hearing but provided no explanation for the Wife’s absence and tendered no medical report in support of her absence. In addition, the Wife’s counsel declined to cross-examine the Husband or any of his witnesses at the trial. After the hearing, the Court granted the Interim Judgement on the basis of four (4) years separation from May 2005.[Note 4]

As the divorce had been granted on the basis that the parties had been separated from May 2005, this is an established fact in these proceedings which continues to be applicable to this current hearing of ancillary matters. In the case of Ong Pang Siew v Public Prosecutor [2011] s SLR 606, the Court of Appeal stated at [81] that it is:

“There is an established rule of evidence that if what a witness says is not challenged, the evidence is deemed to have been admitted: the rule in Browne v Dunne (1989) 6 R 67. The purpose of the rule is to secure procedural fairness in litigation (see Yeo Kwan Wee Kenneth v PP [2004] 2 SLR(R) 45 (at [3]). The rule requires that matters that are challenged be put to the witness during cross-examination to give the witness an opportunity to respond. Unchallenged testimony may be considered by the court to be undisputed by the opposing party and therefore accepted.

A party cannot be allowed at one stage of the proceedings to decline the opportunity to challenge evidence but at a later stage of proceedings decide to change tack and put forward a different position. This would be highly prejudicial to the other party and would lead to concluded issues being re-litigated.

In view of the above, I took the position that the parties separated in May 2005. While technically, this was an 8 year marriage, the parties only lived together from the time of the ceremonial marriage in November 2004 till May 2005 ie a period of six (6) months.

Division of Matrimonial Assets The matrimonial assets

The parties did not agree to the list of assets that fell into the matrimonial pool.

The Matrimonial Flat was in the joint name of the parties and was clearly a matrimonial asset. Apart from the Matrimonial Flat, the Husband was also a joint owner of 97 Jalan Sendudok (“the Jalan Sendudok property”), a property which he had purchased jointly with his mother and sisters in Jan 2011. The Wife took the position that this was a matrimonial asset. She also claimed that the Husband’s other assets which included monies in bank accounts, CPF monies, the Husband’s motor vehicle as well as his insurance policies also fell into the pool of matrimonial assets.

While the Husband did not dispute that bank accounts, CPF monies, insurance policy and his motor vehicle held solely in his name fell within the matrimonial pool, he took the view that the Jalan Sendudok property should be excluded from the pool of matrimonial assets as he and his family had purchased this property in January 2011 after the divorce proceedings commenced in October 2010.

The assets that were held solely in the Wife’s name comprised of CPF monies, an insurance policy as well as a small amount of cash in a bank account.

In view of the position taken by the parties, it was necessary for me to consider the issue of the appropriate operative date for determining the pool of matrimonial assets in this case (“the Operative Date”).

In the recent case of Oh Choon v Lee Siew Lin [2014]1 SLR 629, the Court of Appeal in considering the operative date for determining the pool of matrimonial assets remarked as follows:

…[A]s the relevant case law makes clear, there is no hard and fast cut-off date for the determination of the pool of matrimonial assets and everything would in the final analysis, depend on the precise facts of the case itself (see, for example,...