THF v THG

• Court: Family Court (Singapore)
• Judge: Yarni Loi
• Judgment Date: 30 October 2015
• Neutral Citation: [2015] SGFC 127
• Citation: [2015] SGFC 127
• Docket Number: Divorce No. 612 of 2012
• Published date: 12 November 2015
• Hearing Date: 14 July 2015,14 August 2015,25 August 2015
• Plaintiff Counsel: Mr Gulab Sobhra, and Mr Michael Low (Crossbows LLP)
• Defendant Counsel: Mr Koh Tien Hua and Ms Ho Chee Jia (Harry Elias Partnership LLP)
• Subject Matter: Family Law - Ancillaries - Division of assets - Maintenance - Access

District Judge Yarni Loi: Introduction

This is my judgment in respect of ancillary orders made in these divorce proceedings between the Plaintiff-Wife and Defendant-Husband who registered their marriage on 9 June 2000. Interim Judgment for divorce was granted on 14 January 2013 (on the basis of both parties’ unreasonable behaviour) after about 13 years of marriage. The Plaintiff is about 40 years old and the Defendant is 41. They have a daughter aged 11 and a son aged 7 who suffers from autism and has special needs (“the Children”). Parties own two properties, namely, xxx (“Marine Parade Property”) and xxx (“Simei Flat”). Currently, the Plaintiff and the Children live in the Marine Parade Property, whilst Simei Flat has been rented out. The Defendant rents a studio apartment.

A brief summary of the orders I made in the AM proceedings on 25 August 2015 is as follows: Within 6 months of the date of the Order, the Marine Parade Property shall be transferred (otherwise than by way of sale) to the Plaintiff without cash consideration and CPF refunds for the Defendant. The Plaintiff shall bear the costs and expenses of the transfer. The Plaintiff shall take over the outstanding housing loan. Within 6 months of the date of the Order, the Simei Flat shall be transferred (otherwise than by way of sale) to the Defendant without cash consideration and CPF refunds for the Plaintiff. The Defendant shall bear the costs and expenses of such transfer. The Defendant shall take over the outstanding housing loan. Parties shall otherwise retain the assets in their respective sole names. The Defendant shall pay the Plaintiff $1 per month as nominal maintenance. The Plaintiff shall pay the Plaintiff $3500 per month towards the maintenance of their two Children. By Consent, parties shall have joint custody of the children with care and control to the Plaintiff. Defendant shall have access on terms largely similar to an earlier access order. In addition, the Plaintiff, Defendant and the Children shall attend the Children-in-between program by the Ministry of Social and Family Development (“MSF”). They shall also attend counselling by the Divorce Support Specialist Agency, MSF. (collectively, the “AM Orders”).

The Defendant has appealed against certain parts of my decision. I now set out the full reasons behind the AM Orders.

I should mention that after I made the AM Orders, Defendant’s counsel wrote in to inform the court that the order relating to the Simei Flat was unworkable. HDB had informed the Defendant that he could not retain the flat because he was not a Singapore citizen and did not have a family nucleus. Parties therefore attended before me on 29 October 2015 where I substituted the original transfer order relating to the Simei Flat to a sale order, as follows:

“Within 6 months of 29 October 2015, the matrimonial flat situated at xxx (“Simei Flat”) shall be sold in the open market and the net sale proceeds after deducting the outstanding housing loan shall be paid entirely to the Defendant. There shall be no CPF refunds to the Plaintiff. Defendant shall have sole conduct of the sale.”

Brief background facts

The Plaintiff is a xxx earning a gross monthly salary of $9750 and take-home salary of $8749. She also used to receive rental from the Simei Flat of about $2600 per month. According to the Defendant, the Plaintiff kept all the rental income from the Simei Flat. At the hearing before me, Plaintiff’s counsel informed me that the Plaintiff was in between jobs, but he did not have any details of her new employment.

The Defendant is an Indonesian citizen and Singaporean Permanent Resident. He runs his own business, xxx (“Megapac”) of which he is 50% shareholder. He is also the xxx of Megapac. He earns a monthly income of $12,541.67 (being the monthly average over the last 3 years). Excluding bonuses and commissions, he claims that his basic gross monthly income is about $6,500.12, and his take-home pay is about $5,499.

In the initial years of their marriage, they lived in the Simei Flat. Sometime in or around 2003, the Defendant left the Simei Flat but parties reconciled and he returned shortly after their first child was born in 2004. In 2008, their second child was born. For a period of time from around September 2007 to around 2010, the Plaintiff stopped work to look after the Children.

In 2008, after their second child was born, parties purchased a private apartment, namely, the Marine Parade Property. This was their matrimonial home from about December 2008/2009 onwards.

However, their relationship was marked by strife, with the Plaintiff accusing the Defendant of infidelity and violence; and the Defendant accusing the Plaintiff of being abusive and emotionally unstable.

In 2011, the Plaintiff commenced MSS 6320/2011 to claim maintenance for herself and the Children. At that time, they were all still living under the same roof but the Defendant claims he found the situation unbearable because of the Plaintiff’s hostility towards him. Eventually, on or about 26 Jan 2012, parties entered into a Consent Order under which the Defendant agreed to pay the Plaintiff a total of $3,500 (being $2000 in cash and $1500 from the rental proceeds of the Simei Flat) (“Consent MO”).

Sometime in 2012, the Defendant moved out of the Marine Parade Property and rented his own studio apartment. He kept his residential address confidential. He did not want the Plaintiff to know his address as he was worried she may make a scene at his place and confront him over allegations of adultery. As such, access sessions for the children took place outside his residence.

On 10 February 2012, the Plaintiff commenced divorce proceedings. She also obtained an interim injunction by way of Order of Court dated 20 February 2012 against the Defendant to prevent him from disposing of his interest in both matrimonial properties pending the hearing of the ancillary matters.

Both parties also filed several Court applications regarding access, resulting in Consent Order of Court dated 30 November 2012 specifying access terms, as varied and superseded by Order of Court dated 30 July 2014 pursuant to which the Defendant was given access to the children every Sunday from 9am to 2pm and daily telephone access (“Access ORC”).

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 having regard to all the circumstances of the case. 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). A structured approach however is not inconsistent with the broad-brush approach and the High Court in ARL v ARM [2015] SGHC 61 at [12] usefully summarised the steps that a court should take when ordering a division as follows: first, delineate what exactly constitutes the pool of matrimonial assets; second, assess the value of the pool so that the court’s deliberation can be made with reference to a working quantum; third, consider all the circumstances of the case, including but not limited to the factors listed in s 112(2) of the WC, particularly the direct financial contributions as well as the indirect financial contributions of each party, and thereby determine what is the just and equitable proportion; and finally, ascertain the most expedient means of executing the division in that proportion.

In respect of the third step (namely, the all-important task of determining a just and equitable division), the Court of Appeal has held that the court is not expected to make an exact calculation of each spouse’s contribution, whether financial or non-financial (ZO v ZP [2011] 3 SLR 647) and the entire 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.) In the recent landmark case of ANJ v ANK [2015] SGCA 34, the Court of Appeal repeated that the ultimate objective is to accord due and sufficient recognition to each party’s contribution towards the marriage. The CA laid down the following principles to guide the courts in arriving at its ultimate object of reaching a just and equitable division: First, ascribe a ratio that represents each party’s direct contributions relative to that of the other party, having regard to the financial contribution made by each party towards the acquisition or improvement of the assets. Second, ascribe a ratio to represent each party’s indirect contributions (both indirect financial and non-financial) to the well-being of the family relative to that of the other. What values to give to the indirect contributions of the parties (which by their very nature are incapable of being reduced into monetary terms) is necessarily a matter of impression and judgment of the court. Derive the parties’ overall contributions relative to each other by taking an average of the two ratios, keeping in mind that the “average ratio” is a non-binding figure; it is only meant to serve as an indicative guide to assist courts in deciding what would be a just and equitable apportionment having regard to the factual nuances of each case. Further adjustments (to take into account, inter alia, the other factors enumerated in s 112(2) of the WC) may need to be made to the parties’ average percentage contributions. For example, (i) indirect contributions tend to feature more prominently in long marriages, (ii) direct contributions would command greater weight where the pool of assets was extraordinarily large and all of the assets were accrued by one party’s exceptional efforts, and (iii) courts tend to lean in favour of homemakers who have painstakingly raised...