District Judge Lee Li Choon:
Introduction
This is an appeal filed by the Plaintiff-husband against part of my decision given on 15 April 2015 on ancillary matters subsequent to a divorce. The Plaintiff-husband and the Defendant-wife were married in Vietnam on 27 July 1995. The husband, originally from Malaysia, is now a Singapore citizen and the wife, a citizen of Vietnam, is a permanent resident of Singapore. They have two children, a son who is 18 years old and a daughter who is 15 years old. The son is currently waiting for enlistment for national service and he intends to enrol in the NUS for his undergraduate studies after his national service. The daughter is presently pursuing the International Baccalaureate program at the xxx in Australia.
The orders I made on ancillary matters which is the subject of the appeal are as follows: The Plaintiff (husband) shall pay to the Defendant (wife) a monthly sum of S$3,500.00 as maintenance for the Defendant and household expenses for the children. For the daughter, the Plaintiff shall pay to the Defendant the monthly sum of S$1,500 as maintenance until the daughter completes her International Baccalaureate course which is estimated to be in three years’ time. The Defendant shall be at liberty to apply for maintenance for the daughter thereafter. For the son, the Plaintiff shall pay to the son directly the monthly sum of S$300 as maintenance until the son completes his national service. In the event that the son enters university, the Plaintiff shall solely bear the tertiary school fees of the son subject to prior consultation between the son and the Plaintiff. In such an event, the Plaintiff shall pay to the son directly the monthly sum of $700 as his maintenance until he completes his first degree university education. Payments shall be deposited into the Defendant’s or the son’s designated accounts respectively. Payments for maintenance shall be made on the 1st day of every month with effect from 1 May 2015. (The orders in italics are not the subject of the appeal but are set out to give the context of the order under appeal). The matrimonial asset in Vietnam known as “Ciputra” located at apartment Tower E01, #05-05 Khu do thi Nam Thang Long, Tu Lien, Hanoi, Vietnam shall be retained in the sole name of the Defendant. Parties shall retain all other assets in their respective sole names.
Background
The husband is 49 years old and is employed as a Senior Research Analyst earning a monthly basic salary of $8,322.13. The wife is currently 45 years old and is presently unemployed.
The family moved from Singapore to Australia sometime in 2000 and stayed there until 2007 when the family moved back to Singapore. From 2000 to 2012, the wife was not working and not drawing an income except during the period 2005 to 2007 when she ran a business while the family was living in Brisbane. From 2012, when the family was back here in Singapore, the wife started to work again on a part-time basis as an office administrator and she drew a gross monthly income of about $1500. Since January this year, the wife has not been working.
Presently, parties have no property in Singapore and they are living in rented premises at Cavenagh Road. They, however, have one property in Vietnam (“Ciputra Apartment”). The husband contends that there is another property in Vietnam (“Manor Apartment”) but the wife says that this property is no longer in their possession as it has been returned to the developer due to the fact that they could not keep up with the progressive payments.
One material fact in this case is that the parties had entered into a Deed of Agreement on 15 July 2009 that set out the terms of the ancillary issues in the event of a divorce.
On Just and Equitable Division of Matrimonial Assets
Section 112(1) of the Women’s Charter (Chapter 353) provides that the court shall have power, subsequent to the grant of a judgment of divorce to order the division between the parties of any matrimonial asset or sale of any such asset and the division between the parties of the proceeds of the sale of any such asset in such proportion as the court thinks just and equitable. Paragraph (2) of section 112 provides a list of matters which the court should have regard to in exercising its power under paragraph 1. In particular, sub-paragraph (e) of paragraph 2 provides that the court shall have regard to, “any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce”.
The Deed
I will now look at the Deed of Agreement (“Deed”) that the parties entered into on 15 July 2009. The recitals of the Deed provided for the circumstances under which the Deed was made. At Clause 1.2, it was stated that, “Differences have arisen between the parties.”. Then, at Clause 1.3, it was stated that, “The Wife has commenced proceedings in the Family Court of Singapore for Maintenance for herself and the child in MSS No. 178 of 2009 and for a Personal Protection Order for her against the Husband in SS78 of 2009.” At Clause 1.6, it was stated, “The Husband and the Wife have resolved their differences and agreed on terms and conditions for a settlement of maintenance, and division of matrimonial assets, custody care and control of the children and MSS 178 of 2009 and SS 78 of 2009 for current purposes as well as in the event of a Divorce in the future.”.
The Court of Appeal in Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur [2014] SGCA 37 (“Surindar”) said that to determine whether an agreement of the type specified in s 112(2)(e) exists, two elements must be met. First, there must have been an agreement with respect to the ownership and division of matrimonial assets; and second, the aforesaid agreement must have been “made in contemplation of divorce”. In Surindar, the Court of Appeal has made it clear that it does not matter whether the agreement is made before or after the divorce proceedings. The Court of Appeal said at [42], “the ordinary meaning of the words “agreement … made in contemplation of divorce” in s 112(2)(e) does not restrict the time the agreement is made to a time before divorce proceedings have commenced. The words “made in contemplation of divorce” simply clarify that the parties must have intended for the agreement to govern the allocation of matrimonial assets upon the contingency of divorce, whenever that might actually happen, in contradistinction to a time when the parties are still married (see also Lian Hwee Choo Phebe v Tan Seng Ong [2013] 3 SLR 1162 at [20]).
In this case, the facts show that parties commenced negotiations on the Deed subsequent to the wife finding out about the husband’s extra-marital affair in 2008. The Deed expressly states in Clause 1.6 that parties have agreed on terms and conditions for a settlement of ancillary issues “in the event of a Divorce in the future”. The circumstances and the content of the Deed clearly show that the Deed was entered into in contemplation of a divorce and therefore, section 112(2)(e) of the Women’s Charter applies and the Deed is a relevant matter for the court’s consideration.
The relevant terms as regards division of matrimonial assets and maintenance as set out in the Deed are as follows: 2 Residence 2.1 The domicile of the family shall be Singapore and the Husband will forthwith procure Singapore Permanent Residency status for himself, the Wife and the children. 2.2 Both parties shall purchase a property in Singapore not less than S$550,000.00 in value to be held in joint names of the Wife and Husband. In the event the marriage is dissolved regardless of the facts relied upon for the irretrievable breakdown of the marriage, the share in this matrimonial home or any future matrimonial home shall be divided equally between the Husband, the Wife and the two (2) children i.e. each to have a quarter share of such matrimonial home after paying the Wife S$100,000. 4. Maintenance 4.4 The Husband’s maintenance contribution for the Wife and the children shall be fixed at 70% of the Husband’s monthly gross income in the event the marriage is dissolved regardless of the fact or facts relied upon for the irretrievable breakdown of the marriage. 5 Division of Matrimonial Assets (beside Matrimonial Property) 5.1 The Wife shall return, out of the money withdrawn from the OCBC Account No. xxx, a sum of $10,000 being the balance after expenses incurred for legal fees and other expenses. 5.2 The properties in Vietnam known as “Manor and Ciputra” shall be jointly owned by the Husband and the Wife. The Husband’s share in the said properties in the event the marriage is dissolved regardless of the fact or facts relied upon for the irretrievable breakdown of the marriage shall be transferred to the Wife and the Wife shall retain the said properties for the sole and absolute benefit of the Wife. 5.3 The Husband’s rights and interests in his superannuation savings in Australia, CPF in Singapore and other mandatory schemes wherever located in the event the marriage is dissolved regardless of the fact or facts relied upon for the irretrievable breakdown of the marriage shall be divided equally between the Husband, the Wife and the two children i.e. each shall have one quarter share. 5.4 All future assets acquired by both parties from the date hereof in the event the marriage is dissolved regardless of the fact or facts relied upon for the irretrievable breakdown of the marriage shall be divided equally between the Husband, the Wife and the two children i.e. each shall have one quarter share.
On division of the “properties” in Vietnam
On the Deed, the Court of Appeal in Surindar has provided guidance on the general principles concerning how much weight the court should put on such agreements. At paragraph 56, the Court of Appeal stated the general principle as follows:
“We are of the view that...
