Tan Bee Giok v Loh Kum Yong

Judgment Date08 November 1996
Date08 November 1996
Docket NumberCivil Appeal No 31 of 1996
CourtCourt of Appeal (Singapore)
Tan Bee Giok
Plaintiff
and
Loh Kum Yong
Defendant

[1996] SGCA 69

Yong Pung How CJ

,

M Karthigesu JA

and

L P Thean JA

Civil Appeal No 31 of 1996

Court of Appeal

Family Law–Maintenance–Wife failed to make full and frank disclosure of capacity to maintain herself–Whether wife entitled to any maintenance and amount thereof–Sections 107, 108 and 112 Women's Charter (Cap 353, 1985 Rev Ed)–Family Law–Matrimonial assets–Division–Sale of previous property which was conveyed to husband and wife as joint tenants–Part of net proceeds went to renovation of property owned husband's mother–Whether property an asset within s 106 of the Women's Charter–Appropriate division of asset–Section 106 Women's Charter (Cap 353, 1985 Rev Ed)–Family Law–Matrimonial assets–Division–Commercial property and interests in companies–Appropriate division of assets between husband and wife–Section 106 (3) Women's Charter (Cap 353, 1985 Rev Ed)

This appeal concerned the questions of maintenance of the petitioner wife and division of matrimonial assets between her and the respondent husband consequent upon their divorce. Throughout the marriage the wife was a housewife and was not engaged in any gainful employment. At the time of the decree nisi, the husband had substantial interests in various companies. In 1974, the parties moved to 44 Princess of Wales Road (“44 Princess of Wales”) which was purchased in their joint names for about $220,000 from funds provided solely by the husband. This property was sold in late 1986 for about $695,000 and the family moved to 19 Trevose Crescent which was then owned by the husband's mother. Out of the net proceeds realised, a sum of $135,544.05 was refunded to the husband's account with the Central Provident Fund Board and a sum of $146,664.10 was spent on repair and renovation of 19 Trevose Crescent. The balance sum was used for reducing his overdraft account with the bank. In 1988, the mother died and by her will the property was devised to the husband absolutely. In 1989, the parties and one Peng Akaw purchased a commercial property at Enggor Street (“the Enggor property”) for $542,250 as tenants-in-common with the husband holding a share of 60%, the wife 15%, and Peng Akaw 25%.

At the hearing, as the wife had not made a full and frank disclosure of her means, he judge drew the inference that she had the means to support herself and refused to make an award of maintenance. As for division of the matrimonial assets, the judge held that 19 Trevose Crescent was a gift from the mother to the husband and fell outside the scope of s 106 of the Women's Charter (Cap 353). But since part of the proceeds from the sale of 44 Princess of Wales in which the wife had a half share had been used to improve 19 Trevose Crescent, this value was reflected in assessing the value of the general assets. As regards the commercial property, he held that the wife's share should not exceed 15% as her indirect contribution was too remote. He awarded her a total sum of $500,000. The wife appealed.

Held, allowing the appeal:

(1) On the evidence the reasonable inference was that the wife had an association or relationship with a third party or other friends who had generously funded her living and other expenses. This was a factor relevant to any sensible assessment of her maintenance but it did not necessarily disentitle her from maintenance. Taking into account all the relevant circumstances, the husband should pay the wife monthly maintenance of $1,000. In determining the amount it was also necessary to take into account an award in the division of matrimonial assets under s 106: at [22], [26] to [28].

(2) 44 Princess of Wales was held by the husband and wife as joint tenants. If the presumption of advancement applied, she would be entitled to half share of the proceeds. If the presumption did not apply, this property being acquired during the marriage by the sole effort of the husband, she would still be entitled to a substantial share thereof by virtue of her undoubtedly considerable contribution in looking after the home and caring for the family. It followed that the substantial improvement to 19 Trevose Crescent and the reduction of the overdraft account secured on it were contributed jointly by the husband and wife. In that sense and to that extent, the property was “acquired” by the joint efforts of the husband and wife and it fell within the scope of s 106 (1) for division: at [36] and [39].

(3) Although 19 Trevose Crescent had yet to be given to the husband at the time the improvement was carried out on the property, he acted on the basis that the property was his or that it would certainly be given to him. In these circumstances, the situation was no different from that where the improvement to the property was carried out after the property was given. Moreover, the husband and wife, in having acted in the manner as they did with the concurrence or agreement of the mother, had “acquired” an equity in the property: at [40] to [41].

(4) It was necessary to relate the extent of the husband and wife's contributions to the overall value of 19 Trevose Crescent at that time. Taking a broad approach and having regard to the contributions, both financial and non-financial, made by the wife, a sum of $600,000 was awarded to her as her share of the property: at [43] to [44].

(5) The entire 75% share in the Enggor property must be treated as having been jointly acquired by the parties during their marriage. Considering that the husband made a much greater financial contribution and taking into account the non-financial contribution made by the wife, she was awarded a 20% share in the property: at [46] and [47].

(6) The husband had other assets acquired by his sole efforts available for division under s 106 (3). These included his shares in his private companies which were going concerns and must be worth something although the overall accounts presented before the court reflected a negative value. Taking into account the non-financial contribution made by the wife, a sum of $150,000 was awarded to her as her share of the general assets: at [49] to [53].

[Observation: If an application for maintenance was dismissed, there was no subsisting order for maintenance for the court to vary and s 112 of the Women's Charter, which provided for variation of maintenance orders, had no application. A pre-condition to the operation of s 112 was the existence of a maintenance order. To retain the wife's right to maintenance in the future, a nominal order should have been made so that an application may be made subsequently to invoke the jurisdiction of the court to vary the maintenance order: at [15].]

Atkinson v Atkinson [1988] 2 FLR 353 (refd)

Basham (deceased), In re [1986] 1 WLR 1498; [1987] 1 All ER 405 (folld)

Greasley v Cooke [1980] 1 WLR 1306; [1980] 3 All ER 710 (folld)

Hepburn v Hepburn [1989] 1 FLR 373 (refd)

Hoong Khai Soon v Cheng Kwee Eng [1993] 1 SLR (R) 823; [1993] 3 SLR 34 (folld)

Inwards v Baker [1965] 2 QB 29; [1965] 1 All ER 446 (folld)

Koh Kim Lan Angela v Choong Kian Haw [1993] 3 SLR (R) 491; [1994] 1 SLR 22 (folld)

Koo Shirley v Mok Kong Chua Kenneth [1989] 1 SLR (R) 244; [1989] SLR 342 (folld)

Mills v Mills [1940] P 124; [1940] 2 All ER 254 (folld)

Ng Hwee Keng v Chia Soon Hin William [1995] 1 SLR (R) 819; [1995] 2 SLR 231 (refd)

Pascoe v Turner [1979] 1 WLR 431; [1979] 2 All ER 945 (folld)

S v S [1986] Fam 189 (refd)

Stephen v Stephen [1931] P 197 (folld)

Wang Shi Huah Karen v Wong King Cheung Kevin [1992] 2 SLR (R) 172; [1992] 2 SLR 1025 (folld)

Women's Charter (Cap 353,1985Rev Ed)ss 106, 107,108, 112 (consd)

Cheong Yuen Hee (Y H Cheong) and Pradeep Kumar (Godwin & Co) for the appellant

Loh Boon Huat and Benjamin Yap (Hilborne & Co) for the respondent.

Judgment reserved.

L P Thean JA

(delivering the judgment of the court):

1 This appeal arose from the matrimonial proceedings between the wife who is the petitioner, and the husband, the respondent, and concerns the questions of maintenance of the wife and division of matrimonial assets between them consequent upon their divorce. The court below on the issue of maintenance refused to award any sum to the wife, and on the division of matrimonial assets declared that she is entitled only to the undivided 15% share in the property 15, Enggor Street, #09-04, Realty Centre presently held by her and the rental income therefrom and awarded to her a sum of $500,000 “by way of property adjustment”. The wife appeals against the whole of this decision.

The facts

2 The husband and wife were married on 29 March 1969. That was the husband's second marriage. The wife is now 49 years old, and the husband 58 years old. They have a son and a daughter aged 26 and 25 respectively. The son is presently in the last year of his tertiary studies overseas, and the daughter has completed her tertiary education and is now working. Differences arose between the wife and the husband, and the wife left the matrimonial home on 30 September 1991. On 8 May 1992, the wife filed a petition for divorce on the ground that the marriage had broken down irretrievably in that the husband had behaved in such a way that the wife could not reasonably be expected to live with him. The husband initially contested the petition and he filed a cross-petition as well alleging unreasonable behaviour and adultery on the part of the wife and cited a party (“the party cited”) in these proceedings. At the hearing of the petition the husband agreed not to contest the petition and he withdrew the cross-petition. The decree nisi was granted on 7 June 1994, and two ancillary matters, namely, maintenance of the wife and division of matrimonial assets were adjourned for further hearing.

3 At the time of the marriage the wife was working in her father's company whose business was repairing electrical fittings in ships. According to the...

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