TES v TET

• Court: Family Court (Singapore)
• Judge: Masayu Norashikin
• Judgment Date: 07 September 2015
• Neutral Citation: [2015] SGFC 116
• Citation: [2015] SGFC 116
• Docket Number: Divorce No. 5457 of 2013
• Hearing Date: 28 May 2015,12 May 2015
• Published date: 24 September 2015
• Plaintiff Counsel: Mr Isaac Tito Shane (Tito Isaac & Co)
• Defendant Counsel: Mr Ivan Cheong (Harry Elias Partnership)
• Subject Matter: Catchwords: Family law lump sum maintenance agreed and paid before ancillary matter hearing whether pool of matrimonial assets should exclude lump sum maintenance paid division of matrimonial assets

District Judge Masayu Norashikin:

Background

Parties were married in Australia on 10 April 1999. There are two children of the marriage aged 8 and 10 years old. Both parties and their children are Australians and lived in Australia until April 2010 when the family moved to Singapore with the husband’s acceptance of the position of Senior Investment Counsellor at xxx.

The Plaintiff wife (“the Wife”) filed for divorce in Singapore on 4 November 2013. On 16 January 2014, the Husband obtained an Order of Court ordering the Wife to return a sum of AUD$620,000 withdrawn by her from the parties’ joint account, and restraining her from dealing with the same.

Interim Judgment was granted on 12 May 2014 on the basis that the Defendant husband (“the Husband”) had behaved in such a way that the Plaintiff could not reasonably be expected to live with him. The Interim Judgment also recorded orders, by consent, that the parties are to have joint custody of the 2 children of the marriage, with care and control to the Wife.

Parties also reached agreement on the Husband’s access to the children, which is recorded in an Order of Court dated 11 June 2014.

In a further Order of Court dated 3 September 2014, the Husband agreed to pay the following: $210,000 as lump sum maintenance to the Wife in 2 equal tranches on 10 September 2014 and 1 December 2014; $3,200 as monthly maintenance for the 2 children; All fees payable for the children’s schooling; All fees payable for the children’s external extra-curricular activities or external enrichment classes provided the Wife gets the Husband’s consent, which should not be unreasonably withheld; 2/3 of the monthly rent payable, provided the monthly rent does not exceed the sum of $6,000; and The children’s tuition fees directly and to reimburse the Wife directly for all expenses incurred under paragraphs (c) to (e) above.

After the Interim Judgment, the Wife and children relocated back to Perth Australia on or about 18 December 2014. The Husband said that this was without his consent.

The Wife has received the total lump sum maintenance payment of $210,000.

The outstanding ancillary matter which came for hearing before me on 12 May 2015 was the division of matrimonial assets.

On 28 May 2015, after taking some time to consider the matter, I gave the following orders: The Defendant shall pay the Plaintiff a sum of $300,517.43, being 30% of the nett value of the matrimonial assets less the value of assets in the Plaintiff’s name or possession. Such payment to be made within one month of the date of this order. Parties shall retain assets in their respective names and possession. The Defendant shall close all bank accounts in parties’ joint names and shall retain the outstanding balances. Liberty to apply. The Plaintiff shall pay costs fixed at $6,000 to the Defendant.

The Wife appealed against the whole of my decision, the reasons for which I now set out below.

Issues

The main issues I had to decide were: Whether the lump sum maintenance of $210,000 should be included in the value of the pool of matrimonial assets available for division; The value of the pool of matrimonial assets; and The proportion and manner of distribution of the matrimonial assets.

Whether the $210,000 should be included in the value of the pool of matrimonial assets

Husband’s submissions

The Husband asserted that the sum, currently held by the Wife, should be regarded as part of the pool of matrimonial assets to be divided. He relied on the case of BG v. BF [2007] SGCA 32 at [75] for the principle that the power to order maintenance for a former spouse is supplementary to the Court’s power to divide the matrimonial assets. The Court of Appeal in that case stated:

“75. Additionally, the courts have exercised the power to order maintenance for the former wife in a manner that is supplementary to the power to divide matrimonial assets. As the High Court observed in Wang Shi Huah Karen v. Wong King Cheung Kevin [1992] 2 SLR(R) 172, the court has to take account of each party’s share of the matrimonial assets. The order for maintenance of the former wife thus plays a complementary role to the order for division of matrimonial assets. In Tan Sue-Ann Melissa v. Lim Siang Bok Dennis [2004] 3 SLR(R) 376, this court held that the rationale behind the law imposing a duty on a former husband to maintain his former wife is to even out any financial inequalities between the spouses, taking into account any economic prejudice suffered by the wife during marriage.” (emphasis added)

He submitted that the Court thus has to take into consideration a former wife’s share of the matrimonial assets when deciding on the issue of maintenance. Where, as in the present case, the Wife has already received lump sum maintenance of $210,000 that was part of the pool of existing matrimonial assets to be divided, this sum must be considered as part of the Wife’s share of the matrimonial assets to be awarded to her. He argued that this was a commonsensical approach in line with the principle enunciated in BG v. BF. He submitted that it is irrelevant that the quantum of lump sum maintenance was reached by consent. In other words, the total of the Wife’s share of the division of matrimonial assets would comprise the quantum of lump sum maintenance and any other additional sum or percentage of the nett matrimonial assets awarded by the court.

Wife’s submissions

The Wife’s position was that maintenance is not a matrimonial asset, and the assets held in her name should therefore exclude the lump sum maintenance she had already received. Counsel also submitted that section 112 of the Women’s Charter did not require the Court to look at the wife’s maintenance when exercising its power to order division of matrimonial assets. The issue of maintenance is not meant to dilute the power to divide matrimonial assets.

Decision on $210,000

I agree with the Husband’s submissions on two points. Firstly, that the sum of $210,000 should be included in the pool of assets to be divided. Thus I will be taking the values of the matrimonial assets as the position before any payment of the lump sum maintenance was made ie. restore parties’ financial positions to that before payments were made. Secondly, that the lump sum maintenance should be factored in for the division of matrimonial assets. However, I disagree with the Husband that the lump sum maintenance must then be considered as part of the Wife’s share of matrimonial assets awarded to her. In this regard, I agree with the Wife’s submission that the assets in her name should exclude the lump sum maintenance already received. Instead, the fact that the Wife is receiving (or has received in this case) $210,000 as lump sum maintenance would be one of the matters the court has to take into consideration under section 112(2) of the Women’s Charter in ordering the division of matrimonial assets.

Division of matrimonial assets and maintenance are two separate concepts and the powers to order the same are distinct. This distinction is all the clearer in the present case where the quantum of lump sum maintenance has been agreed to by parties and has been carved out. But at the same time, the powers to order the two are inter-related, with the power to order maintenance being said to be supplementary to the power to divide matrimonial assets, and meant to even out any financial inequalities between the spouses. With these in mind, I would think that a court deciding ancillary matters must, generally, first look at the issue of division of matrimonial assets before looking at the issue of an ex-wife’s maintenance.

In a usual case where both issues are up for determination, the court would have before it evidence on parties’ means and assets, with which the court will then consider not only how to divide the matrimonial assets, but also whether lump sum maintenance can be afforded to be paid to the wife and should be paid. In other words, the entirety of the circumstances will be considered by the court in exercising both powers. In a situation where parties have agreed on quantum of lump sum maintenance, I am of the view that any quantum agreed (whether paid or not) should thus be included in the pool of matrimonial assets available for division, so that the court will still have the entire set of circumstances before it, in exercising the power to order division of matrimonial assets.

The difference...