TIT v TIU and another appeal

• Jurisdiction: Singapore
• Judge: Valerie Thean JC
• Judgment Date: 13 May 2016
• Neutral Citation: [2016] SGHCF 8
• Plaintiff Counsel: Koh Tien Hua and Chew Wei En (Harry Elias Partnership LLP)
• Docket Number: District Court Appeal Nos 140 and 142 of 2015
• Date: 13 May 2016
• Hearing Date: 25 April 2016,13 April 2016
• Subject Matter: Maintenance,Division,Child,Family law,Matrimonial assets,Wife
• Year: 2016
• Citation: [2016] SGHCF 8
• Defendant Counsel: Campos Godwin Gilbert (Godwin Campos LLC)
• Court: High Court (Singapore)
• Published date: 02 June 2016

Valerie Thean JC: Introduction

District Court Appeal No 140 of 2015 (“DCA 140/2015”) is an appeal brought by the Husband, and District Court Appeal No 142 of 2015 (“DCA 142/2015”) is an appeal brought by the Wife. DCA 140/2015 and DCA 142/2015 shall hereinafter be collectively referred to as “the Appeals”.

The Husband is a citizen of the United Kingdom (“UK”) and the Wife is a citizen of Thailand. The parties were married in the UK on 30 May 1998. The Wife was 24 years old at the time of marriage and the Husband, 32. Now aged 42 and 50 years old respectively, the Wife and the Husband have four children presently aged 16, 14, 12 and 9 years old. Throughout the marriage, the Wife was a home-maker while the Husband worked was an engineer at a global energy company based in the UK (“the Company”). In the course of the parties’ marriage, they relocated seven times to diverse places such as Beijing, southern China, Spain and Malaysia. Such were the demands of the Husband’s job, which kept him very busy throughout the marriage. The four children were born during these relocations in a period of seven years. In 2008, parties relocated to Singapore.

The Husband commenced divorce proceedings on 27 November 2012 alleging that the Wife had behaved in such a way that he could not reasonably be expected to live with her. On her part, the Wife counterclaimed on a similar basis. The Wife left the matrimonial home on 1 November 2013 and has since late November 2013 shuttled between Singapore and Thailand. Interim Judgment (“IJ”) was granted on 24 February 2014 on both the Claim and Counterclaim.

The District Judge (“DJ”) made orders in relation to the ancillary matters on 14 August 2015. The DJ’s decision can be found at TIT v TIU [2015] SGFC 162 (“DJ’s GD”). On 25 August 2015, a Certificate of Final Judgment (“FJ”) was obtained.¹

At the hearing of the Appeals, the Husband sought to adduce evidence that after the hearing of the ancillary matters, he had suffered a relapse of Bell’s Palsy, a medical condition which he had experienced before and been retrenched because of the global downturn in the oil and gas industry. The Wife, on her part, sought to adduce evidence of the Husband’s remarriage on 26 September 2015, after the hearing of the ancillary matters. Both applications were granted in view of the relevance of the evidence to maintenance and the division of assets, respectively.

The DJ’s decision

The DJ found the value of the pool of matrimonial assets to be S$542,216.39 (DJ’s GD at [52]). Applying the structured approach in ANJ v ANK [2015] 4 SLR 1043 (“ANJ v ANK”), she awarded the Wife 25% of the assets. This amounted to S$135,554.10. As the Wife had obtained the benefit of the sale proceeds of a matrimonial property the parties owned in Thailand (“the Thai Property”), the DJ ordered her to retain the same and her own assets, leaving a balance of about S$50,000, which the Husband was ordered to pay her, while he retained all the other matrimonial assets. Using a multiplier of ten years and a multiplicand of S$1,262 as a monthly figure, the DJ awarded the Wife lump sum maintenance of S$145,000 (rounded down from S$151,440). The Husband was ordered to maintain the children solely. The parties were to have joint custody of the four children of the marriage, with care and control to the Husband and reasonable access to the Wife.

Issues on appeal

Both Husband and Wife appealed against the asset division and spousal maintenance. In addition, the Husband appealed against the DJ’s order that he solely maintain the children. I deal with these issues in turn.

Division of assets The asset pool

As mentioned, the DJ set the asset pool as S$542,216.39. Two issues arose in the Appeals.

The Husband’s Pension

The Husband previously disclosed that the pension he was to receive from the Company had a guaranteed transfer value of S$265,506 (£132,753 at a currency conversion rate agreed by counsel of £1=S$2) (“the Pension”) in an affidavit that was filed pursuant to the Wife’s request for discovery and interrogatories.² The ancillary matters fact and position sheet of the Husband also listed the Pension as an asset. This was omitted from the pool of assets divided at the Family Court.

Counsel for the Wife, Mr Godwin Campos (“Mr Campos”), argued that the Pension of S$265,506 must be included in the matrimonial pool. While Mr Koh contended that the details of the Pension were not clear, it did not seem equitable for the Husband to have the benefit of any lack of clarity which he ought to have provided as part of his duty of disclosure. A statement of entitlement provided by the Husband furnished the broad details of the Pension.³ In this regard, while the Husband joined the pension scheme one year before parties married, this asset was acquired throughout the duration of the marriage and “‘acquisition’ continues until the asset is fully acquired” (see BHN v BHO [2013] SGHC 91 at [36], citing Chee Kok Choon v Sern Kuang Eng [2005] 4 MLJ 461 at [9]).

The query which followed from the inclusion of the asset was its valuation for the purposes of inclusion. Here, the acquisition of the Pension started on 1 May 1997, one year prior to the marriage. The date furnished for the guaranteed price was 16 June 2014, about four months after the date of the IJ. The document also showed that the Husband had left the fund by the time of the IJ, as the fund was part of his expatriate package based on UK terms and benefits and he started employment on local terms with the Singapore subsidiary in May 2013. With his retrenchment in 2016 from the local subsidiary, at the minimum, it appeared open to him to exit the scheme or to transfer the minimum guaranteed sum into another scheme. In view of the uncertainties attached to its value, I find it equitable to use a conservative approach. Applying the ratio of 15:16; that is, the ratio of the length of marriage relative to the period over which the guaranteed sum of the Pension was accumulated, I derive a figure of S$248,912. The sum within the matrimonial pool of assets and available for division is therefore S$791,128.39 (S$542,216.39 + S$248,912).

Issue of an adverse inference against the Wife

At the hearing below, the DJ rejected the Husband’s contention that an adverse inference should be drawn against the Wife regarding her alleged retention of amounts disbursed by the Husband for the purchase of and subsequent proceeds of sale of the Thai Property (“the Thai Property Transactions”). The DJ was of the view that “[t]he explanations and tables provided by the Husband were mere assertions and self-serving, with no supporting documents to show the alleged purposes for which the monies were used” (DJ’s GD at [50]). A second contention of the Husband in respect of, inter alia, accounts held by the Wife in the UK (“the UK Accounts”) was similarly rejected.

The Husband repeated the above arguments on appeal.

The law on the drawing of adverse inferences was succinctly summarised by the Court of Appeal in Koh Bee Choo v Choo Chai Huah [2007] SGCA 21 (“Koh Bee Choo v Choo Chai Huah”) (at [28]) and Chan Tin Sun v Fong Quay Sim [2015] 2 SLR 195 (at [62]). Two requirements must be established by the party seeking to draw an adverse inference against the other: a substratum of evidence that establishes a prima facie case against the person against whom the inference is to be drawn; and that person must have had some particular access to the information he is said to be hiding.

The Thai Property Transactions

The Husband transferred monies to the Wife between August 2011 and September 2011, when the parties were still on good terms for the purchase of the Thai Property. To this end, the Husband alleges that THB 4,979,433 had been transferred to the Wife during this period. He provided some bank statements that suggest that at least THB 3,500,000 was transferred to the Wife.⁴ It was undisputed that the purchase price of the Thai Property was THB 1,300,000. The Husband’s first allegation is that the Wife had siphoned THB 3,679,433. He arrives at this figure by deducting the amounts transferred to the Wife from the purchase price of the Thai Property. He also adduces the Wife’s bank statement/book that shows withdrawals of THB 2,610,000 on 18 September 2011 and THB 100,000 at or about that time.

The Wife states that the monies in excess of the purchase price of the Thai Property were spent on holidays and other expenses in relation the Thai Property. The Husband’s retort to this is that the Wife has not adduced evidence to show that this is the case. He also argues that any expenditure by the family while on holiday in Thailand would be minimal.

In my judgment, this allegation of siphoning is completely at odds with the factual matrix at the relevant time. The transfers to the Wife and the withdrawals by the Wife should be, in all likelihood, matters wholly known to the Husband, as all these events occurred when the parties were still on good terms, and, perhaps, even more importantly, the Husband managed the money in the family. The Husband must therefore have known how these monies were expended at the relevant time.

The second allegation of siphoning is in relation to the sale proceeds of the Thai Property. The Wife sold the Thai Property in December 2013. According to the receipt by the Department of Lands, Thailand, the sale price was THB 2,000,000.⁵ The Husband argues that the declared sale price of the Thai Property at THB 2,000,000 by the Wife was far below the market value of the Thai Property, which should be between THB 5,000,000–7,000,000 (based on unidentified printouts that show that a neighbouring property was valued at THB 7,000,000).⁶ The Husband argues that the Wife had to put back into the matrimonial pool THB 3,000,000 (S$120,000), based on his “conservative” use of THB 5,000,000 as the likely sale price of the Thai Property.

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