TBM v TBN

• Jurisdiction: Singapore
• Judge: Yarni Loi
• Judgment Date: 10 April 2015
• Neutral Citation: [2015] SGFC 34
• Court: Family Court (Singapore)
• Docket Number: Divorce No. 1941 of 2013L, HCF/DCA 9/2015
• Published date: 24 June 2015
• Year: 2015
• Hearing Date: 13 January 2015,23 January 2015
• Plaintiff Counsel: Mr Roy Yeo (Sterling Law Corporation)
• Defendant Counsel: Mr Chiok Beng Piow/Mr Kevin Ho (Michael Khoo & Partners)
• Subject Matter: Catch words: Family Law - Ancillaries,Division of assets,Maintenance,Access
• Citation: [2015] SGFC 34

District Judge Yarni Loi: Introduction

This judgment deals with ancillary matters flowing from divorce proceedings between the Plaintiff-wife and Defendant-husband who married on 9 September 2000. Interim Judgment for divorce was granted on 17 December 2013 on the basis of the Defendant’s unreasonable behaviour. By that time, parties had been married for about 13 years. They are both 40 years of age and have a 13 year old son (“the Child”).

At the hearing of ancillaries, parties consented to having joint custody of the Child with care and control to the Plaintiff. On the remaining ancillary issues, a brief summary of the orders I made is as follows: In full and final settlement of the division for assets and Plaintiff’s claim for maintenance, the matrimonial flat situated at xxx (“the Matrimonial Flat”) shall be sold in the open market within 6 months of the date of the Final Judgment. Upon sale of the matrimonial flat, the net sale proceeds, after repayment of the outstanding loan, as well as the costs and expenses of the sale and agent’s commission, shall be divided equally between the Plaintiff and the Defendant. Parties shall otherwise retain the assets in their respective sole names. After the sale of the Matrimonial Flat, the Defendant shall pay the Plaintiff a monthly sum of $1,500 for the maintenance of the Child. In addition, he shall bear all the Child’s medical and tertiary education expenses. He shall also give a half-yearly account of the joint savings bank account he holds with the Child. Pending the sale, the current Maintenance Order remains binding and the Defendant shall continue to pay $3,300 to the Plaintiff for the maintenance of the Plaintiff and the Child. The Defendant shall have access to the Child, including overnight access and overseas access, on terms as ordered. (collectively, the “AM Orders”).

The Plaintiff has appealed against my decision and I now set out my full reasons.

Brief background facts

During the marriage, the Plaintiff worked in the child-care sector until sometime in or around 2010 when she resigned for about 3 to 4 months to help the Child adjust to school. Thereafter, she worked in a relative’s wine business for about 1 to 2 years until April 2013 when she resumed her career in the child-care sector as xxx. Initially, she claimed she was working only part-time but subsequently said she was working full-time and earns a gross monthly income of $1900 and take-home pay of $1,519.50.

The Defendant works in his family business and is a xxx of 2 family companies, XXX where his average monthly income is $5,833.33 and XXX where his average monthly income is $5,000. His combined average monthly income is $10,833.33 (gross) and $8,831.33 (take-home).

After marriage, parties initially lived in the Matrimonial Flat but for the most part of the marriage, the Matrimonial Flat was rented out. This was possible because in or around May 2002, the Defendant managed to persuade his parents to allow them to live with the Defendant’s parents rent free. Subsequently, in 2005, the Defendant persuaded his family to allow the Plaintiff, Defendant and Child to live in an apartment that belonged to XXX, also rent free. In June 2013, the Plaintiff moved out to live in the Matrimonial Flat, together with the Child. For some years prior to that, parties were already living in separate rooms.

Division of assets – the legal principles

Under section 112(1) of the Women’s Charter, the Court has the power to order a division or sale of matrimonial assets as the court thinks just and equitable. Section 112(2) further provides that it is the duty of the court to have regard to all the circumstances of the case including the extent of the contributions made by the parties towards acquiring, improving or maintaining the asset; any debt owed or obligation incurred by either party for the joint benefit or for the benefit of any child of the marriage; the needs of the children; the extent of contributions made by each party to the welfare of the family; any agreement between the parties with respect to the ownership and division of the matrimonial assets; any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party; and the giving of assistance or support by one party to the other party which aids the other party in the carrying on of his occupation or business.

In exercising its powers, the court is to adopt a broad-brush approach and “it is essential that courts resist the temptation to lapse into a minute scrutiny of the conduct and efforts of both spouses” (NK v NL [2007] 3 SLR (R) 743). In ZO v ZP [2011] 3 SLR 647, the Court of Appeal further emphasized that direct and indirect contributions are to be given due weight and no single factor is determinative of the outcome. The court is also not expected to make an exact calculation of each spouse’s contribution, whether financial or non-financial; and the exercise is to be done “based on feel and the court’s sense of justice in arriving at a just and equitable division.” (Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157). See also Loh Swee Peng v Chan Kui Kok [2015] SGHC 64 where the High Court summarised the principles for division as restated by the Court of Appeal in BCB v BCC [2013] 2 SLR 324.

Matrimonial Pool

When the ancillaries came on for hearing before me, the total pool of matrimonial assets had a combined net value of approximately $1,308,671, with the following breakdown:

No.	Description	Value (S$)
	Matrimonial Flat
1	Net value of Matrimonial Flat	950,000 (Agreed value) -166,663 (outstanding loan) =783,337
	Assets in Plaintiff’s name
2	CPF	74,290.36
3	Bank accounts	3,256.94
4	Shares	1000
5	Motor Vehicle SGS4421J	10,000
6	Insurance policies	34,520.22
7	Singapore Swimming Club membership	7,440 (after deducting transfer fee)
	Sub-total	130,507.52
	Assets in Defendant’s name
8	CPF	211,533
9	Bank accounts	59,111
10	Shares	33,470
11	Insurance policies	90,713
	Sub-total	394,827
	Total	1,308,671.52

There are two issues relating to the pool of assets. The first issue concerns rental proceeds of the Matrimonial Flat. The Plaintiff argued that she is entitled to an amount equivalent to half of the total rental collected over 11 years, estimated at approximately $422,420 based on a monthly average of $3,200 per month. The Defendant however explained (and I accept his explanation) that from January 2000 to April 2006, the average monthly rental income was $1,500 per month, and from 2006 to 2013, the average monthly rental was $2,800 per month, although there were periods when the property was vacant. Further, that since 2013, the Plaintiff has lived in the property rent free. In any case, the rental income received each month was used to pay taxes, maintenance, agent’s fees and monthly mortgage payments, leaving little in savings. Savings (if any) were used to (a) pay for holidays (b) offset against losses arising from the sale of a childcare business (a centre they set up after they were married) and (c) purchase the shares at item [10] in the table above.

The second issue concerns the Defendant’s family-owned business, XXX. The Defendant owns 20% of the shares in XXX. They were acquired by him during the marriage, although the business was started by his grandfather many years earlier. No steps were taken by either party to obtain a valuation of the company. Instead, the Plaintiff relied on an out-dated search of the company which showed that as at 2009, revenue exceeded $1 million; and a 2012 newspaper write-up on the size and revenue of the company. Apart from the fact that the information is out-dated, the size of the company and its revenue are not reflective of the share value of the company.

Nonetheless, the shares, which were acquired during the marriage, would qualify as matrimonial assets. Initially, in one of her affidavits, the Plaintiff stated that she was seeking half of the Defendant’s share-holding in XXX. However, at the hearing, Plaintiff’s counsel clarified that the Plaintiff was not claiming any shares in XXX.¹ Instead, Plaintiff’s counsel explained that the Defendant’s share-holding was only relevant to show the Defendant’s worth and what he would be able to afford. Given the Plaintiff’s position as clarified and confirmed by her counsel, I will award any shares in XXX to the Plaintiff. In any case, it is not disputed that she did not contribute directly to the acquisition of the shares; did not participate in the management of the business; and was not employed by the company. Nonetheless, I accept that the Defendant’s share-holding is indicative of his financial resources; and the Plaintiff’s indirect contributions to the marriage and efforts in looking after the Child (which I will elaborate in greater detail below) allowed the Defendant to focus on his business. These are matters which are relevant in determining a just and equitable division of the remaining pool of assets which are available for division.

Direct contributions

Towards the Matrimonial Flat, I assess the Plaintiff’s contribution to be about 11% by the Plaintiff compared to the Defendant’s contribution of 89%. The calculation is as follows:

Description	Plaintiff	Defendant
CPF	59,831.32	325,970.57
Initial cash payment		131,000
Conveyancing stamp duty		18,059.57
Fixtures and fittings		10,000
Improvements to the house		8,000
Total	59,831.32 (10.8%)	493,030 (89.2%)

Towards the entire total pool, the...