Tham Khai Meng v Nam Wen Jet Bernadette

• Judge: Karthigesu JA
• Judgment Date: 24 February 1997
• Neutral Citation: [1997] SGCA 9
• Subject Matter: Principles,Child,Civil Procedure,s 106 Women's Charter (Cap 353),Matrimonial assets,Divorce petition,Maintenance,Family Law,Whether costs in respect of ancillaries to follow that of petition,Costs,Factors to be considered,Wife,s 123 Women's Charter (Cap 353),Division of assets,s 108 Women's Charter (Cap 353)
• Court: Court of Three Judges (Singapore)
• Published date: 19 September 2003
• Defendant Counsel: Raj Singam and Cheryl Tan (Drew & Napier)
• Plaintiff Counsel: Richard Ang (Ang JW & Partners)

Cur Adv Vult

These two appeals arose from the matrimonial proceedings between the wife, who is the petitioner, and the husband, the respondent. The first appeal, CA 26/96 is by the husband and the second appeal, CA 27/96, is by the wife, and both the appeals are against the decision of the High Court concerning the division of matrimonial assets and maintenance of the wife and children.

The facts

The husband and wife were married on 11 January 1986. After the marriage they lived with the wife`s parents at No 4 Brighthill Crescent. They have two boys, namely, Tristan, now 10 years old, and Tyron, now 8 years old, and both the boys are studying in Anglo-Chinese Junior School.

The husband is a senior art director of an advertising company, Batey Ads Pte Ltd, but not a director of that company. The wife works in her family company, Marina Bay Golf And Resort Pte Ltd (Marina Bay) which formerly owned and controlled Marina Bay Golf And Country Club (Marina Golf Club). She is an executive director. Recently the company sold its assets including Marina Golf Club. Admittedly the wife came from a well-to-do family. Her father is a businessman and has interests in resort and housing development. Throughout the marriage the family enjoyed a very good standard of living.

Since the marriage the wife and the two boys have been residing and are still residing with the wife`s parents at No 4 Brighthill Crescent. The husband ceased to reside there from the second half of 1993 onwards, when he was asked by the wife to leave. He first moved to his sister`s house and then to his parents` house at 146 Thomson Ridge, Singapore. In the course of the divorce proceedings, he moved out from 146 Thomson Ridge, Singapore to live on his own at 137 Thomson Ridge paying a rent of $2,000 per month.

On 29 September 1993, the wife filed a petition for divorce based on the fact that the parties had lived apart continuously for a period of three years and that the husband had consented to the divorce. This did not proceed as the husband withdrew his consent and was ordered to pay costs thrown away amounting to $900. Quite apart from the withdrawal by the husband of his consent, this petition was clearly not maintainable as there was really no factual basis for saying that the parties had lived apart continuously for a period of three years.

On 25 April 1994, the wife filed a second petition for divorce on the ground that the marriage had irretrievably broken down in that the husband had behaved in such a way that the wife could not reasonably be expected to live with him. The husband contested the petition and subsequently applied to court to amend his answer to include a cross-petition based on the wife`s alleged unreasonable behaviour. On 20 February 1995, the wife filed a supplemental petition based on the husband`s adultery. The petition, cross-petition and supplemental petition were contested and came on for hearing on 8 March 1995. On the day of the hearing itself, the husband agreed not to contest the supplemental petition and withdrew his cross-petition. A decree nisi was accordingly granted on the supplemental petition based on the husband`s admitted adultery with costs awarded to the wife.

The husband and wife were granted joint custody of the two boys with the wife having care and control over them. The husband has access to them on Wednesday evenings and during the weekends with overnight stay on every alternate weekend. There are other provisions for access during the school holidays and public holidays. All these are not in issue.

On the issues relating to maintenance as well as division of matrimonial assets, the court below ordered as follows:

(1) that the property known as No 2 Brighthill Crescent be sold in the open market by way of private treaty or public auction or between the parties to the highest bidder, within the next six months or within such extended time as may be mutually agreed;

(2) that the net proceeds of sale, after deducting the amount secured by the mortgage, the auction fees, commission, legal fees, stamp duty, and other outstandings be divided between the parties equally;

(3) that the husband pay the wife $3,000 a month as maintenance for the wife and the children with effect from 1 January 1996;

(4) that, in addition, the husband pay the wife and the children a sum of $120,000 by way of lump sum maintenance, such sum to be paid upon completion of the sale of No 2 Brighthill Crescent;

(5) that the husband pay the wife the costs of the divorce petition to be taxed, if not agreed;

(6) that there be no order as to costs in respect of the ancillaries; and

(7) that the husband refund from his share of the proceeds of sale whatever CPF funds withdrawn together with full interest.

Against these orders both the husband and wife appealed.

The appeal

Division of matrimonial assets

We deal first with the division of matrimonial assets. The main asset on which the parties hotly contested is the property, No 2 Brighthill Crescent. As the learned judge below said, there was a vast divide between their respective claims. On the one hand, the husband claims that he contributed 82.62% in the acquisition of the property, whilst the wife contributed only 17.38%. The husband sought an order that the house be sold and the net proceeds of sale be divided in that proportion. The wife, on the other hand, claims that she contributed about 80%, whilst her husband contributed only 20%, in the acquisition. She asked for an order that the property be transferred to her upon her paying to the husband $1m and taking over all the liability secured thereon. In support of their respective claims both parties referred to and relied on the proceeds of sale of a property known as No 26 Highland Walk, which they had earlier acquired and sold, each claiming a contribution in the acquisition of that property. As evidence has been adduced relating to the acquisition of that property and considerable arguments thereon have been advanced on behalf of both sides, it is necessary to dwell on the circumstances in which that property was acquired and sold and to consider whether both or either of them made any contribution towards the acquisition of that property.

No 26 Highland Walk

It was not in dispute that No 26 Highland Walk is one of the houses called Highland Cottages developed by a company, Popular Land Pte Ltd, which is a company owned and controlled by the wife`s father. Owing to the father`s generosity the property was sold at a very much reduced price of $480,000, which was almost at cost. The sale and purchase agreement was made on 12 September 1990 and the husband and wife were there named as purchasers. The initial 20% amounting to $96,000 was paid in cash and the remaining progress payments amounting in aggregate to about $400,000 were paid by way of an overdraft facility granted by the Bank of East Asia Ltd on the security of the property. On completion, the property was transferred to the husband and wife as joint tenants; but it is unclear when the completion actually took place.

The husband and wife did not move and live in that property. Presumably they were very comfortably ensconced in the home of the wife`s parents and were not enthusiastic in making a move. Not surprisingly, the property was sold about seven months later. It was sold on 25 April 1991 for $845,000. Since the time the overdraft facility was granted, no payment was made by any party on the overdraft account and the interest accruing thereon was allowed to accumulate. The entire amount owing to the bank was paid only upon completion of the sale. After payment of the costs and expenses incurred in the sale and the amount owing to the bank, there was a credit balance of $431,021.48 in the account. Effectively that was the net proceeds of sale realized. This amount was taken over and dealt with by the wife as her own money.

According to the husband, the payment for this property came from the following sources:

(a) $48,000 from the wife`s father;

(b) $25,000 from the wife`s account; and

(c) $28,451.61 from him.

The husband said that the $28,451.61 consisted of (i) two sums of $23,000 and $1,527.61 from the joint account between him and his wife which were withdrawn in September 1989 and January 1991 respectively, and (ii) a sum of $3,924 in January 1991 which was withdrawn by him from his own account...