TJB v TJC

• Jurisdiction: Singapore
• Judge: Kimberly Scully
• Judgment Date: 14 December 2015
• Neutral Citation: [2015] SGFC 158
• Court: Family Court (Singapore)
• Docket Number: OSF 35 of 2015
• Year: 2015
• Published date: 16 January 2016
• Hearing Date: 27 July 2015,07 September 2015
• Plaintiff Counsel: Mr Michael Leong (M/s HOH Law Corporation)
• Defendant Counsel: Ms Daljit Kaur D/O Harbans Singh (M/s N S Kang)
• Subject Matter: Family Law,Chapter 4A in Part X of the Women's Charter - Division of Matrimonial Assets
• Citation: [2015] SGFC 158

District Judge Kimberly Scully: Introduction

The Plaintiff Wife made an application under Section 121B of the Women’s Charter (Cap. 353) for the division of the matrimonial flat in Singapore.

The parties solemnised their marriage on 22 February 2006 in Malaysia. It is my understanding that parties had a longstanding relationship and lived together in rented premises and shared living expenses, prior to the solemnisation. The parties jointly purchased a matrimonial flat in Singapore on 1 December 2005. There was some dispute as to the exact time when the parties separated. In their joint petition for divorce in Malaysia, it is stated as 2007. The Plaintiff Counsel submits that the Plaintiff left the matrimonial home in February 2009. The parties obtained the decree nisi of divorce on 16 July 2009 and the decree nisi absolute on 15 October 2009 in Malaysia. There were no children to the marriage, and the decree nisi did not deal with the matrimonial flat in Singapore.

There is a long history of court applications for division of this asset which preceded the one before me. I can do no better than reproduce the chronology provided by the Defendant Counsel in her written submissions¹:

“As the division of the matrimonial flat was not dealt with in the Malaysian courts, on 13 March 2013, the Plaintiff filed OSF106 of 2013 under the same provisions as in these proceedings [Chapter 4A of Part X of the Women’s Charter]. However, the Learned District Judge Carol Yeo (Ms) was of the view that the application ought to be made under s 59 of the Women’s Charter.

On 17 April 2013, OSF172 of 2013, the Plaintiff filed proceedings under s 59 of the Women’s Charter. This time, the Learned District Judge Jen Koh (Ms) was of the view that s 59 did not apply as more than 3 years had elapsed since the divorce and that proceedings ought to be filed in the High Court.

On 13 November 2013, OS1192/2013, was filed by the Plaintiff in the High Court under s18(2) of the Supreme Court of Judicature Act. At the hearing, Tan Siong Thye J was of the view that he did not have the jurisdiction to make any order and was of the view that the matter should go back to the Family Justice Courts.

Accordingly, on 18 November 2014, the Plaintiff re-commenced proceedings in OSF 516/2014 for leave to make an application for an order for financial relief under s121B of the Women’s Charter. By the Order of Court dated 25 February 2015, leave was granted, after parties agreed not to contest the court’s jurisdiction. Hence, this application.”

Under Chapter 4A, parties must first satisfy the court that leave should be granted for parties to make an application for financial relief at the Family Justice Courts. Having satisfied the learned district judge in OSF526/2014 and obtained leave of court, the Plaintiff Wife filed this application for division of the matrimonial flat on 7 April 2015, which was fixed before me for hearing on 27 July 2015.

I had not heard the leave application and relied upon only counsel’s submissions and parties’ affidavits in this OSF35/2015. After hearing the matter, and considering the above, I made the following orders on 7 September 2015: The Plaintiff is to transfer her rights, title and interest (other than by way of sale) in the matrimonial property to the Defendant within 3 months of the date of this Order and upon the Defendant paying her 30% of the Net Value of the property and the sum of $28,400, which amounts to $173,600. The Plaintiff is to refund the monies she utilised from the CPF account(s) for the purchase of the property (including accrued interest). The Defendant shall pay the costs of the transfer, if any. The Net Value was determined as follows: Sale Price of $795,000 – (outstanding housing loan amount of $281,305 + return of loan of $30,000 to the Defendant’s parents). If transfer is not performed for any reason within 3 months of the date of this Order, the said property shall be sold in the open market within 6 months of the date of this Order, and after deducting the outstanding housing loan, return of the loan of $30,000 to the Defendant’s parents, and paying all costs and expenses of the sale, the remainder sale proceeds to be divided in the proportion of 70% to the Defendant, and 30% to the Plaintiff. The Defendant from his share of the remainder sale proceeds, is to pay the Plaintiff the sum of $28,400. Each party shall refund their respective CPF accounts in respect of the monies they have utilised for the purchase of the property (including accrued interest). The Registrar or Assistant Registrar of the Family Justice Courts be empowered pursuant to Section 31 of the Family Justice Act (Act No. 27 of 2014) to execute, sign or indorse all necessary documents relating to a sale and/or transfer of the matrimonial property on behalf of either party should the other party fail to do so within seven (7) days’ written notice being given to that party. No orders as to costs in FC/OSF35/2015.

The Defendant being dissatisfied with the above order, appealed my decision. I elaborate below on the reasons for my decision.

The Plaintiff Wife’s case

The Plaintiff Counsel submitted that the matrimonial flat be disposed in the following manner: that it be sold in the open market within 6 months of the court’s order and the net proceeds of sale after payment of the costs and expenses of sale shall be divided in the portion of 54.5% to the Plaintiff and 45.5 % to the Defendant. Each party shall refund their respective CPF accounts from their respective share of the net proceeds of sale².

The Plaintiff Counsel estimates the net value of the flat to be $481,438.46.³ The Plaintiff claimed that her contributions comprised a principal sum of $22, 758.66 of her CPF monies, and improvements and other payment, as can be seen from the table at paragraph 16 below.

There are a few points of contention between the parties as to their respective contributions to the acquisition of this matrimonial asset. One aspect was the opening of a joint bank account. The Plaintiff submitted it was opened for purposes of deducting the monthly mortgage repayments for the matrimonial flat. As seen from her tabulation above, the Plaintiff claims to have deposited S$15,700 of her monies into this joint account for this purpose. She also claimed to have deposited monies into the Defendant’s personal bank account and/or this aforesaid joint account for the other expenses of the flat.

Following from the bank account, another issue in contention was purported loans from the parties’ parents. The Plaintiff Counsel submitted that the court should disregard the loan of S$30,000 from the Defendant’s parents to him because it was not for the purposes of purchasing the matrimonial flat. Instead, she claimed her father had provided a loan of RM50,000 (equivalent to S$20,000) to her, which she deposited in the joint bank account. This was her “initial lump sum payment in cash” for the flat.

The Plaintiff Counsel also submitted that the “law relating to the operative date for division of assets” is that only financial contributions up to the date of the decree nisi should be considered for purposes of matrimonial asset division. As such, the Defendant’s continued financial contributions from October 2009 up to the time of this application should be disregarded for purposes of determining each party’s contribution to the acquisition of this matrimonial flat. He relied upon the Court of Appeal decision in Yeo Chong Lin v Tay Ang Choo Nancy [2011] SGCA 8 for this proposition⁴.

Therefore, the Plaintiff’s position on the parties’ respective direct contributions is summarised in this table in her counsel’s submissions⁵:

Items	Plaintiff (Wife)	Defendant (Husband)
1. CPF (without interest)	$22,758.66 as at July 2009	$58,092.49 as at October 2009
2. Option fee & deposit	-	$5,000.00
3. Shortfall (paid in cash until Plaintiff left)	$914.40	$2,316.67
4. Total cash into OCBC Account No: xxx	$15,700.00	-
5. Initial lump sum payment in cash	$20,000.00	-
6. Renovations	$23,570.00	$14,737.00
7. Furniture & Fittings	$11,767.41	-
8. Property tax	$1,407.32	-
9. Conservancy	-	$3,330.00
Total ($179,596.95)	$96,117.79	$83,479.16
Percentage	53.5%	46.5%

Lastly, Plaintiff Counsel submitted that after the Plaintiff moved out, the Defendant had rent-free occupation of the matrimonial flat to the exclusion of the Plaintiff, and this should be taken into consideration by the court in the division of the matrimonial asset.

The Defendant Husband’s case

The Defendant Counsel submitted that the matrimonial flat be disposed of in the following manner: That the Plaintiff transfer her rights title and interest in the matrimonial flat to the Defendant upon the latter paying her a sum equivalent to her 18% share less the outstanding mortgage loan and the Defendant’s parents’ loan of $30,000.00. The transfer is to be effected within 4 months from the date of the order and the Defendant will bear the costs and expenses of the transfer. If the transfer is not so effected, the flat is to be sold in the open market and the sale proceeds, after deducting the outstanding mortgage loan, return of the sum of $30,000.00 to the Defendant’s parents, and costs and expenses of sale, be divided 82:18 in the Defendant’s favour. Parties are to refund their respective CPF contributions utilised for the purchase (including accrued interest) from their respective shares.

Defendant Counsel estimated the net value of the flat to be $513,694.98⁶. The Defendant’s position on the parties’ respective direct contributions is summarised in this table in his counsel’s submissions⁷:

Items Defendant (Husband) Plaintiff (Wife)

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