TEG v TEH and another matter

• Jurisdiction: Singapore
• Judge: Valerie Thean JC
• Judgment Date: 09 September 2015
• Neutral Citation: [2015] SGHCF 8
• Court: High Court (Singapore)
• Docket Number: District Court Appeals from the Family Courts Nos [X] and [Y]
• Published date: 16 September 2015
• Year: 2015
• Hearing Date: 24 August 2015,03 August 2015
• Plaintiff Counsel: Dora S L Chua (M/s Dora Boon & Company)
• Defendant Counsel: Tan Siew Tiong (M/s Lawhub LLC)
• Subject Matter: Family Law
• Citation: [2015] SGHCF 8

Valerie Thean JC: Introduction

This is an appeal from ancillary orders consequential upon the divorce between TEH (“the Wife”) and TEG (“the Husband”). Parties were married on 18 September 1982 in Singapore. They were living separately since 18 July 2005 and the Wife filed for divorce on 7 March 2013. Interim judgment was granted on 19 August 2013. The marriage spanned about 22 years prior to parties living separately and 31 years up to the time of the interim judgment.

Background

The Husband is 60 years old and the Wife is 54 years old. There are three children of the marriage. The eldest daughter, aged 28, was diagnosed with severe cerebral palsy shortly after birth. The middle child is a son aged 22 and the youngest, another son aged 21.

The Husband’s gross monthly salary as Vice-President (Design) at an architectural and engineering firm is about $13,400. The Wife, who had worked in a family business run by her side of the family, used to earn a gross monthly salary of about $3,800. She is presently unemployed following a restructuring of the family business.

The Wife left the matrimonial home in 2005. All three children continued living with the Husband. In 2013, upon the commencement of divorce proceedings, the two sons moved in with the Wife.

Decision below

The District Judge (“the Judge”) made the following orders on 26 February 2015: Both parties shall have joint custody of the youngest son, with care and control to the Wife and reasonable access to the Husband. The eldest daughter shall remain in the care of the Husband and the Husband shall solely provide the maintenance for her. The Husband shall pay for all future university educational expenses for the two sons subject to prior consultation between him and the two sons. The matrimonial home is to be sold in the open market and the proceeds are to be divided 44% to the Wife and 56% to the Husband. The Husband shall have the first option to buy over the Wife’s share of the matrimonial home. If he wishes to exercise this option, he shall notify the Wife within three months from the date of this order. Further, the Registrar or Assistant Registrar of the Family Justice Courts is empowered to execute, sign or indorse all necessary documents relating to matters contained in this order on behalf of either party (in the event of that party’s failure to adhere to the order within seven days of a written request being made to that party). The Husband shall pay a monthly maintenance of $3,000 to the Wife for 12 months with effect from 31 March 2015. The sum of $3,000 is for maintenance of the Wife and the youngest son until June 2015 and thereafter this sum of $3,000 is for maintenance of the Wife until end-March 2016. Thereafter, the Husband shall pay to the Wife a nominal sum of $1 per month. Parties shall retain all other assets in their sole names.

Issues

In the present appeal, the issues before the court are as follows: orders relating to the children; division of the assets; and maintenance for the Wife.

Orders relating to the children Custody

The Judge’s order in relation to the youngest son has not been appealed against.

The Judge’s order in relation to the eldest daughter, however, is in dispute. The eldest daughter, who suffers from severe cerebral palsy, continued living with the Husband when the Wife moved out of the matrimonial home in 2005. She had been looked after by the Husband with the assistance of a domestic helper. The Wife argued that she should be awarded care of the eldest daughter. She intended to place her in the Day Activity Centre run by the Spastics Association of Singapore, but the Husband objected to this proposal on the ground that the expense (at $600 to $800 per month) was too high. The Judge ordered that the eldest daughter was to continue in the care of the Husband. The Wife appealed to this court against the Judge’s finding.

Matters relating to custody consequential upon divorce, such as in the present case, are governed by Part X Chapter 5 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Charter”). The Chapter commences with s 122 which defines “child” as follows:

Meaning of “child”

122. In this Chapter, wherever the context so requires, “child” means a child of the marriage as defined in section 92 but who is below the age of 21 years. [emphasis added]

For completeness, s 92 of the Charter defines “child of the marriage” as:

any child of the husband and wife, and includes any adopted child and any other child (whether or not a child of the husband or of the wife) who was a member of the family of the husband and wife at the time when they ceased to live together or at the time immediately preceding the institution of the proceedings, whichever first occurred; and for the purposes of this definition, the parties to a purported marriage that is void shall be deemed to be husband and wife …

The eldest daughter is 28 years of age. Counsel for both parties agreed that an order ought not to be made in these ancillary matters. I therefore set aside the order in relation to the eldest daughter. It would be desirable to make an order for her long term care, however, with the appropriate medical evidence before the court. I will hear parties on the directions to be made for an application under the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“Mental Capacity Act”).

Maintenance for the sons

In this case, the Judge made an order that the Husband pay for all future university educational expenses for the two sons, subject to prior consultation between him and the two sons.

The order ought not to have been made for the middle son, as s 122 of the Charter restricts the power under Chapter 5 to children under the age of 21 (as noted above). The middle son has to apply for himself under s 69 of the Charter. Children who are serving full-time national service or are, or plan to be, receiving instruction at an educational establishment may apply for maintenance under s 69(5) of the Charter.

The youngest son was under 21 at the time of the hearing of the ancillary matters and the court did have the power to order a sum for his university education. However, it appears that the need had yet to crystallise at the time of the order. At the appeal, although counsel stated that the youngest son wished to go overseas to study, there was no evidence before me – for instance, in relation to the university fees he would incur – upon which to make the order. I therefore set aside the order relating to the youngest son’s university educational expenses. The youngest son has since turned 21 and may apply under s 69 of the Charter if the need arises under subsection (5).

Division of the assets Applicable law

In determining how assets are to be divided, the “broad-brush” approach is preferred. The courts should “resist the temptation to lapse into minute scrutiny of the conduct and efforts of both spouses, which may be objectionable in disadvantaging the spouse whose efforts are difficult to evaluate in financial terms” (NK v NL [2007] 3 SLR(R) 743 (“NK v NL”) at [28]). The philosophy behind this approach, as most recently reiterated by the Court of Appeal, is that “mutual respect must be accorded for spousal contributions, whether in the economic or homemaking spheres, as both roles are equally fundamental to the well-being of a marital partnership” [emphasis in original] (ANJ v ANK [2015] SGCA 34 (“ANJ”) at [17], citing NK v NL at [41]).

In ANJ, the Court of Appeal also cautioned against over-emphasising direct financial contributions and, often correspondingly, undervaluing indirect contributions (at [19]). This typically happens when courts attempt to divide assets using either party’s direct financial contribution as a starting point. This approach leaves stay-at-home housewives at a disadvantage, given that their direct financial contributions would typically be minimal (see ANJ at [18], citing Tan Hwee Lee v Tan Cheng Guan and another appeal and another matter [2012] 4 SLR 785). The court therefore preferred a “structured approach” to division (see ANJ at [22]).

Taking guidance from ANJ, it could be useful to deal with cases such as the present with the following approach: First, to delineate the matrimonial pool, making clear the date or dates to be used for such assessment. Then, to ascribe a ratio that represents each party’s direct financial contributions relative to the other party. Third, to decide a ratio that represents each party’s indirect contributions. Using these two ratios, to derive each party’s average percentage contributions. Lastly, because the “average ratio” is only an “indicative guide”, the court may make any further adjustment as may be necessary, either to the weightage of the direct and indirect components, or to shift the average ratio. I now apply these steps to the case at hand.

Matrimonial pool

In determining the assets that constitute the matrimonial pool, an operative date would first have to be determined. The broad discretion of the court in selecting an operative date for determining the pool of matrimonial assets for division was reaffirmed by the Court of Appeal in Yeo Chong Lin v Tay Ang Choo Nancy and another appeal [2011] 2 SLR 1157 (“Yeo Chong Lin”). In that case, the Court of Appeal noted (at [32]) that Parliament had not fixed a date for determining the pool of matrimonial assets as such a rigid position might not secure a just result in every case. Having analysed the authorities in various jurisdictions and appreciated the legislative intention behind not mandating a fixed operative date, the court opined (at [39]) as follows:

Speaking broadly … there are possibly four timelines which a court could conceivably adopt. The first is the date of separation. The second is the date on which the petition of divorce is filed. The third is the date on which a decree nisi is granted....