PQR (mw) v STR

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Punch Coomaraswamy J
• Judgment Date: 04 December 1992
• Neutral Citation: [1992] SGHC 302
• Citation: [1992] SGHC 302
• Defendant Counsel: Chandra Mohan (Tan Rajah & Cheah)
• Plaintiff Counsel: Ann Tan and Catherine Lim (Ann Tan & Associates)
• Published date: 19 September 2003
• Docket Number: Originating Summons No 779 of 1989
• Date: 04 December 1992
• Subject Matter: Right to property,Matrimonial assets,s 61 Women's Charter,Custody,Joint orders,Maintenance,Whether wife estopped from asserting proprietary rights,Contributions to household expenses and children's expenses,Youngest child,Whether child bove 21 entitled to maintenance,Husband not contesting care and control,Appropriateness,s 56 Women's Charter,Matrimonial home,Memorandum between parties,Whether national service gainful employment,Wife's proprietary rights in house where family lived,Family Law,Child

Cur Adv Vult

The parties were married towards the end of 1967. After initially living elsewhere, they set up home in 1972 in a private housing estate. I will call this `the 1972 house`. They were joint owners of this house. They had three children, a daughter now more than 22, and two sons. The elder will soon be 20 and the younger is 9 years old. The plaintiff/wife is employed as a teacher at a school for the deaf. The defendant/husband is a teacher at a school run by expatriates.

In August 1987, a house, also in a private housing estate and which is a subject of dispute before me, was purchased. I will call it `the 1987 house`. The parties moved in sometime in December 1988. Mid-1989, the plaintiff left the 1987 house together with the three children to move to her own Housing Board flat. The plaintiff allowed the defendant access to the children. There were minor problems but none of a substantive nature.

The matters in issue between the parties have come before me a number of times and I made interim orders on custody, access and maintenance. I now consider the plaintiff`s claim to rights in the 1987 house, maintenance and whether custody of the younger son should be joint.

Nature of these proceedings

There have been no proceedings for divorce between the parties; nor are there any now. The property issue and the maintenance issue have been brought to court under, respectively ss 56 and 61 of the Women`s Charter (Cap 353). The custody issue is brought under the Guardianship of Infants Act (Cap 122). The 1987 house

The plaintiff`s application on her claimed rights in the 1987 house is as stated above taken out under s 56(1) of the Women`s Charter which reads:

In any question between husband and wife as to the title to or possession of property, either party may apply by summons or otherwise in a summary way to any Judge of the Supreme Court, and the Judge may make such order with respect to the property in dispute and as to the costs of and consequent on the application as he thinks fit, or may direct the application to stand over, and any inquiry touching the matters in question to be made in such manner as he thinks fit.

Section 56 is modelled on s 17 of the English Married Women`s Property Act 1882. Section 17 reads:

In any question between husband and wife as to the title to or possession of property, either party...may apply by summons or otherwise in a summary way to any Judge of

the High Court of Justice ... and the Judge...may make such order with respect to the property in dispute...as he thinks fit.

Lord Denning MR, in the case of Hine v Hine, 1 felt that s 17 gave a judge an `unfettered discretion`:

[Section 17] enacts that the judge before whom the application comes may make such orders as he thinks fit. The intention is that in the innumerable and infinitely various disputes as to property which may occur between husband and wife the judge should have a free hand to do what is just. That discretion is in no way fettered, though it must be exercised judicially.

The House of Lords, however, was not of the same view and in Pettitt v Pettitt 2 and in Gissing v Gissing, 3 Lord Denning`s dicta was expressly disapproved. Lord Diplock was of the opinion that s 17 was no more than a procedural section. Their Lordships held that the power conferred upon the judge `to make such order with respect to the property in dispute .. as he think fit,` gives him a wide discretion as to the enforcement of the proprietary or possessory rights of one spouse in any property against the other, but confers upon him no jurisdiction to transfer any proprietary interest in property from one spouse to the other or to create new proprietary rights in either spouse.

Their Lordships also disapproved of Lord Denning`s concept of `family assets` in Hine v Hine .1 They felt that the notion of `family assets` opens up a whole new field involving change in the law of property whereby community of ownership between husband and wife would be assumed unless otherwise excluded. That would be a matter of policy for Parliament and outside the field of judicial interpretation of property law.

Therefore, in determining a spouse`s proprietary right in the property if that spouse was not a legal owner, it would be necessary to apply the `cold principles of English property law` and especially that of the law of trusts. Lloyds Bank v Rosset 4 concerned a wife`s rights in a property in which she had no legal title and which her husband had mortgaged to the bank. The House of Lords approved the approach adopted in the cases of Gissing v Gissing 3 and Pettitt v Pettitt .2 Lord Bridge (with whom all the other Law Lords agreed) set out two categories of cases where a court may infer a beneficial interest on behalf of a spouse who is not the legal owner.

Category one: This category arises where, independent of any inference to be drawn from the conduct of the parties in the course of sharing the house as their home and managing their joint affairs, there has at any time prior to acquisition, or exceptionally at some later date, been any agreement, arrangement or understanding reached between them that the property is to be shared beneficially. The finding of an agreement or arrangement to share in this sense can only, I think be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been. Once a finding to this effect is made, it will only be necessary for the partner asserting a claim to a beneficial interest against the partner entitled to the legal estate to show that he or she has acted to his or her...