Ryan v Berger

• Jurisdiction: Singapore
• Judge: Judith Prakash J
• Judgment Date: 17 November 2000
• Neutral Citation: [2000] SGHC 236
• Docket Number: Divorce Petition No 2854 of 1997
• Date: 17 November 2000
• Published date: 19 September 2003
• Year: 2000
• Plaintiff Counsel: Luna Yap (Luna Yap & Co)
• Citation: [2000] SGHC 236
• Defendant Counsel: Ann Tan and Lim Choi Ming (Ann Tan & Associates)
• Court: High Court (Singapore)
• Subject Matter: Division,Security for return of child from outside of jurisdiction,Maintenance,Award of lump sum maintenance,Family Law,Matrimonial assets,Whether wife entitled to maintenance,Whether equal division just and equitable,Whether certain assets belonged to pool of matrimonial assets to be divided,Just and equitable division,Custody

: This appeal covered the whole range of the ancillary orders made by the district judge in the Family Court. In this judgment, I deal only with the appeals against the orders on the division of the matrimonial assets and maintenance. In this regard, the petitioner-husband lodged an appeal against almost all the orders made by the judge whilst the respondent-wife lodged a cross-appeal in respect of two of the findings below.

Orders below

The judge found that the pool of matrimonial assets comprised the following:

1	4 Keng Chin Road [num ]07-01 Centuryville	$2,450,000
2	Centrepoint [num ]05-61	$600,000
3	Tanglin Park [num ]06-04	$2,100,000 (subject to mortgage of $882,000, net value is $1,120,200)
4	410 South Barrington Ave [num ]205 Brentwood LA California (in respondent`s sole name)	$510,000 (US$300,000)
5	Maserati car (in respondent`s name)	$55,000
6	Exploration PNG (S) Pte Ltd	500,000 shares (value not ascertained)
7	Exploration PNG Pty Ltd	Value unknown
8	Pratt Ryan Oilfields	Value unknown
9	Heli-Hovell Pte	Value unknown
10	Petitioner`s CPF moneys	$38,000
11	OCBC Joint Bank account	$1,287.85

Description Value The judge awarded each of the parties 50% of the value of each of the above assets. She further ordered that the wife would be entitled to reside in the Centuryville flat with the child subject to her paying all its outgoings and that she would be given the first option to purchase the husband`s 50% share in this asset on the basis of its then current valuation of $2,450,000 subject to her paying the husband his 50% share and bearing the cost of the transfer. This option was to be exercised within three months and if it lapsed the husband would have a similar option for a similar period.

In regard to the other two immovable properties located in Singapore, the parties were to agree on the sale or disposal of their respective equal interests in the properties either to one another or to third parties failing which there would be liberty to apply for consequential orders.

The wife was to pay the husband the sum of US$150,000 being his share in the property at Brentwood, California and a further sum of $27,500 being his half share in the Maserati car.

The husband had to pay the wife US$32,000 being her half share of certain damages recovered in legal proceedings and further a sum of $8,504 being his contribution towards the renovation of Centuryville for the child`s benefit. He had also to pay her the sum of $19,000 being half the amount outstanding in his CPF ordinary account.

As maintenance, the husband was to pay the wife the sum of $120,000 as lump sum maintenance calculated on the basis of $2,000 per month for five years.

The appeals

The husband was dissatisfied with the division of the assets on an equal basis between himself and the wife. He also contested the first option given to her to purchase his title and interest in the Centuryville apartment, the former matrimonial home. Further, he was not happy with the lump sum maintenance award nor with the holding that the matrimonial assets excluded the shareholders` loans made by himself and the wife to the family company, Exploration PNG (S) Pte Ltd (`the company`), and the Hawaiian property purchased by the wife in October 1999.

There was one other order he appealed against that did not relate directly to division of assets but that must be dealt with here. When awarding custody to the wife, the judge had given liberty to both parties to take the child out of the jurisdiction of the court during the school holidays subject to compliance with certain security conditions. This was a consent order. The husband was unhappy that the court had ordered the matrimonial assets to be sold as such sale would impinge upon the security provisions that would ensure the child`s return to Singapore. He therefore appealed against the order for sale of the assets.

The wife`s appeal is in respect of the judge`s finding that the property at Brentwood, California, which is held by the wife in her sole name, forms part of the matrimonial assets and is available for division and also in respect of the further finding, that a property known as 14/165 Avenue Road, Mossman, Sydney, Australia, which is held in the sole name of the husband, does not form part of the matrimonial assets.

Background

The parties met in the early 1980s in Papua New Guinea. The husband, an Australian national, had been working there from 1969 as a KIAP (a New Guinea patrol officer) and a magistrate. The wife, on the other hand, went to Papua New Guinea from the United States as an Ethnographic researcher. After the parties` marriage, which took place in Los Angeles, California, in May 1984, they set up home in Papua New Guinea. The next year, the wife joined the husband in the company, Exploration PNG Pty Ltd (`PNG Pty`), which the parties had set up in 1983 together with one Mr Konefabu. At that stage, the parties held 50% of the shares in PNG Pty and Mr Konefabu owned the other 50%. From 1985, both parties were involved in PNG Pty. The husband ran the operations while the wife was the office/administration manager. It was a successful business that laid the foundation of the parties` present wealth.

In about 1990, the parties decided to move their home to Singapore due to the deteriorating law and order situation in Papua New Guinea. In 1991, they set up the company here with joint funds and became the sole and equal shareholders of the company. In 1993 or 1994, the company became the holding company for the parties` shares in PNG Pty and another corporate entity called Pratt Ryan Oilfield Services Pte Ltd. There are three directors in the company, namely, the parties and a Singaporean individual appointed for the purpose of complying with statutory requirements. The main activity of the company is to provide support facilities and consulting services to oil companies and other types of resource development companies in Papua New Guinea and South East Asia.

The parties` only child was born at the end of 1990. From about 1991 onwards, the wife ceased to work in PNG Pty though the husband continued to manage that company. The wife remained in Singapore with their son whilst the husband travelled regularly on the company`s business and spent a great deal of time in Papua New Guinea. From 1996, the wife was employed in the company as a human relations and cross-cultural consultant. As managing director, the husband was paid $4,800 a month while the wife received a salary of $4,000 per month.

In November 1991, the wife and a friend set up a company called Designer Properties Pte Ltd. The wife also pursued a training programme on real property law in 1993. This company purchased and sold one or two properties before it was wound up, voluntarily, in 1996.

The parties acquired several immovable properties in Singapore over the years. Some were purchased in joint names and others in the name of the company. They also sold properties often at a profit.

These proceedings were triggered when the wife discovered in 1997 that the husband was having an affair with the maid. He left the matrimonial home and shortly thereafter, in September 1997, filed a petition for divorce based on the unreasonable behaviour of the wife. The wife filed an answer and cross-petition based on the husband`s adultery and the husband subsequently withdrew his divorce petition. The divorce proceeded on the wife`s amended cross-petition. The decree nisi was granted in August 1998 on the basis of the husband`s adultery.

Issues : (1) Was it correct to divide the assets on a 50-50 basis?

(i) The judge`s reasoning

In her grounds, the judge noted that it was common ground that the parties were not just marriage partners but were partners in business as well. Their partnership in PNG Pty had generated considerable wealth for both of them such that when they decided to set up business in Singapore, they were able to contribute jointly a sum of $3.6m to the company. The judge noted also that the husband`s counsel had conceded that the wife was significantly involved in the business of PNG Pty up to 1990 but had argued that her contribution thereafter was minimal whereas it was the husband`s continued involvement in the PNG Pty business that generated the revenue for the purchase of the properties in Singapore. The judge also noted the submission by counsel for the wife that she had actively participated in the buying and selling of properties in Singapore and had taken a course to improve her knowledge of real estate in Singapore. She had made lucrative property investments, the company`s real estate acquisitions being largely due to her efforts though she had consulted the husband. The wife had also had the care of the child and all domestic matters while the husband was away from Singapore for long periods of time.

In coming to her conclusion, the judge cited the dictum of the Court of Appeal of Ng Hwee Keng v Chia Soon Hin William [1995] 2 SLR 231 that the Court had to adopt a broad brush approach after giving serious consideration to the factors laid down in s 106(4) of the Women`s Charter (Cap 353) (`the Charter`) and consider what would be a just and equitable division between the parties. She then observed that this dictum was equally applicable to the present s 112 of the Charter and paraphrased the judgment of Warren Khoo J in Soh Chan Soon v Tan Choon Yock (Unreported) to the effect that in dividing matrimonial assets, it is not particularly helpful to try and ascertain the exact amount of money each party contributed but would be closer to reality to use as a starting point the assumption that both parties have contributed jointly and equally throughout the marriage to the acquisition and growth in the family home.

The judge concluded as follows:

Taking into account the length of the marriage which

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