PQR (mw) v STR

• Jurisdiction: 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)
• Published date: 19 September 2003
• Plaintiff Counsel: Ann Tan and Catherine Lim (Ann Tan & Associates)
• Date: 04 December 1992
• Docket Number: Originating Summons No 779 of 1989
• Court: High Court (Singapore)
• 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 detriment or significantly altered his or her position in reliance on the agreement in order to give rise to a constructive trust or proprietary estoppel. Cases which fall into this category would be Eves v Eves [1975] 3 All ER 768 and Grant v Edwards [1986] Ch 638[1986] 2 All ER 426

Category two: The second category consists of cases where there is no evidence to support a finding of an agreement or arrangement to share, however reasonable it might have been for the parties to reach such an arrangement if they had applied their minds to the question, and where the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention to share the property beneficially and as the conduct relied on to give rise to a constructive trust. In this situation direct legal contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary for the creation of a constructive trust. It is extremely doubtful whether anything less will do. Cases in this category would be Gissing v Gissing 3 and Pettitt v Pettitt .2

The plaintiff claims that she is beneficially entitled to the property by virtue of the following:

(a) the 1987 house was bought with the proceeds from the sale of the previous home (the 1972 house) of which the plaintiff was a joint owner. She received $55,500 out of the sale price of $406,000. She alleges that she is entitled to more. She alleges that the balance of the proceeds of sale were used to buy the 1987 house;

(b) the plaintiff used her salary to pay for the household expenses;

(c) the plaintiff used her salary to pay for the children`s expenses;

(d) the plaintiff took care of the children;

(e) the plaintiff took out a renovation loan for $14,000 from the co-operative society of which she was a member in 1986 to replace all the doors, kitchen cabinets, carpets and to buy a new sideboard for the children in the 1972 house, the former home;

(f) the family stayed at the 1987 house for about one year;

(g) on 5 August 1987, the parties entered into an agreement where they agreed to the following terms:

(i) that the title of the 1987 house would be held in joint names as tenants in common;

(ii) that the plaintiff would take a housing loan and the defendant would pay off the balance of the purchase price; and

(iii) the nett proceeds from the sale of the 1972 house would be given to the defendant.

The defendant on the other hand states:

(a) The 1972 house was purchased and the parties were registered as co-owners but the plaintiff only contributed $5,000 to renovation works. The 1987 house was purchased solely by the defendant in August 1987 using exclusively his money. This was because the plaintiff withdrew from the purchase as can be seen from a letter dated 5 October 1987 written by her to Lee & Partners, solicitors acting originally for both in connection with the property. She confirmed that the defendant will be the sole purchaser thereof, that the 10% deposit was paid solely by the defendant and that she did not wish to proceed with the withdrawal of her CPF savings or use loans granted from Credit POSB to finance the...