TNC v TND

• Jurisdiction: Singapore
• Judge: Debbie Ong JC
• Judgment Date: 17 May 2016
• Neutral Citation: [2016] SGHCF 9
• Date: 17 May 2016
• Docket Number: Divorce Transfer No 5443 of 2013
• Published date: 16 May 2017
• Plaintiff Counsel: Quek Seng Soon Winston (Winston Quek & Company)
• Hearing Date: 21 January 2016,02 November 2015,27 January 2016,25 January 2016,12 February 2016,21 December 2015,06 November 2015
• Defendant Counsel: Choh Thian Chee Irving and Looi Min Yi Stephanie (Optimus Chambers LLC)
• Court: High Court (Singapore)
• Subject Matter: Custody,Family Law -Matrimonial assets -Division,Maintenance,Access,Family Law

Debbie Ong JC:

This case concerns the ancillary reliefs in respect of child custody, maintenance, and the division of matrimonial assets under Part X of the Women’s Charter (Cap 353, 2009 Rev Ed). It involves the use of the less commonly employed approach to the division of matrimonial assets – the classification methodology. Using this methodology, the court divides classes of matrimonial assets separately, rather than by way of a global assessment. Both the classification methodology and the global assessment methodology are consistent with the legislative framework provided by s 112 of the Women’s Charter on the division of matrimonial assets and neither approach is superior to the other (NK v NL [2007] 3 SLR(R) 743 at [33]; see [38] below).

Background facts

The parties were married on 22 September 2001 in Singapore. A son was born to them on 18 May 2011 and was four years old at the time of the hearings. The Defendant (“the Husband”) is retired. His last employment was with a multinational energy corporation at which he had spent more than 15 years and held various senior executive positions. He was posted on a number of overseas assignments while employed by the company. The Plaintiff (“the Wife”) had been a homemaker since 2006 and was the primary caregiver of their child. Prior to that, she worked at a credit card company. During the marriage, the parties ventured into the business of property development and, from 2002 to 2012, incorporated a number of companies to hold various properties.

The interim judgment of divorce was granted on 11 September 2014. I gave my decision on the ancillary matters on 12 February 2016. Both parties have appealed against my decision and I now give my grounds.

Custody, care and control, access of child

I ordered that the Husband and Wife shall both have joint custody of their son. Both parents have parental responsibility over him and must make joint decisions in the major aspects of his life, in his welfare. The Wife shall have care and control of the son. The Husband shall have weekly access to him for two hours each time. He shall also have reasonable access to him at other times in a manner that can be arranged by the parties. Both parties shall be reasonable and flexible in respect of the access arrangements, including the timings, duration and the venue for access transfers. By the time of the hearing, both counsel for the Husband and the Wife indicated that the parties were quite agreeable to such an access arrangement.

The court expects both parents to cooperate in this matter and each must make reasonable arrangements for the son to spend as much time as possible with both parents under the circumstances. Since the Wife has care and control of the son, she should support greater access in order that their child will grow up being closely bonded to both parents.

Division of assets Identifying the matrimonial assets and reaching their net value

The Court of Appeal in Yeo Chong Lin v Tay Ang Choo Nancy and another appeal [2011] 2 SLR 1157 (“Yeo Chong Lin”) was of the view (at [39]) that Parliament did not intend to prescribe a definite cut-off date for identifying the pool of matrimonial assets, but once an asset is regarded as a matrimonial asset to be divided, its value should be assessed at the date of the hearing of ancillary matters.

The High Court in Wong Kien Keong v Khoo Hoon Eng [2014] 1 SLR 1342 (at [103]) noted that “some cases seem to support the position that there is judicial discretion to choose another date which might be more just” and quoted its observation in Anthony Patrick Nathan v Chan Siew Chin [2011] 4 SLR 1121 (at [29]) that “[u]ltimately, the date on which matrimonial assets should be valued is up to the court’s discretion ….What is critical is to arrive at a ‘just and equitable division’… in all the circumstances in each particular case.”

The position has since been settled by the Court of Appeal’s recent decision in ARY v ARX and another appeal [2016] 2 SLR 686. The Court of Appeal first held that the date of the interim judgment of divorce ought to be taken as a starting point, but not a fixed operative date, for identifying the pool of matrimonial assets (at [34]):

We think the right balance between certainty and flexibility is struck if the date of the interim judgment is set as a starting point (as the operative date for determining the pool of matrimonial assets), with the court possessing the discretion to depart from it in deserving cases.

The Court of Appeal then confirmed that “the court has not only the discretion to select the operative date to determine the pool of matrimonial assets, it also has the discretion to determine the date at which those assets should be valued” (at [36]) (emphasis in original).

In this case, I found that it was just and equitable to use the date of the interim judgment of divorce in September 2014 as the cut-off date for both determining the asset pool and valuing the matrimonial assets. The parties had mostly adopted this operative date in submitting their respective values of the assets. I note that there was agreement between the parties on the values of the immovable properties which formed the bulk of the matrimonial assets. Reaching agreed values for the bulk of the assets is a very commendable step in these proceedings and, consistent with this stance that the parties had taken, the values of other assets and liabilities were also assessed as at this date. Further, this date was when the parties’ relationship and their intention to jointly accumulate matrimonial assets had practically ended; each dealt with the assets as solo ventures thereafter, with both appearing to accept that movements in the asset values were due to their respective efforts.

Assets

(1) The Singapore Properties with agreed values

After the hearing on 6 November 2015, the parties reached agreement on the valuation of the following properties in Singapore as follows:

Property	Agreed gross value	Net value
1st Haji Lane property	S$2,825,000	S$1,169,161.48
2nd Haji Lane property	S$3,875,000	S$1,725,790
North Bridge Road	S$3,550,000	S$1,457,677.01
Chander Road	S$2,000,000	S$1,040,595.34
Two Jalan Pinang properties	S$18,500,000	S$11,681,263.51
Lorong Marzuki	S$1,035,000	S$316,820
Roberts Lane	S$2,750,000	S$1,476,814
Maude Road properties	S$15,000,000 (“as is”)	S$8,983,768.63
S$17,800,000 (“with planning approval”)	S$11,783,768.63
S$35,000,000 (“fully developed”)	S$21,560,000

The values of the Singapore properties were not in dispute. However, the parties had agreed to three different values of the Maude Road properties based on the configurations shown above. The planning permission to develop these Maude Road properties into hotels had been issued on 30 July 2013 and was supposed to have lapsed on 30 July 2014. They have not yet been developed as such. The Husband submitted that the “as is” value ought to be used for the purpose of valuing the assets for division, while the Wife submitted that the “fully developed” value should be used. I accepted the “as is” value of S$15,000,000 as the more accurate and appropriate value of the Maude Road properties.

The Husband submitted to the court by way of a letter dated 25 January 2016 that the loan of S$3,924,359.30 was omitted from the calculation of the net value of the Maude Road properties. I noted that the loan was taken out at a late stage, in June 2015. Given that I have accepted September 2014 as the operative date to value the matrimonial assets, it was consistent that the same approach be taken in respect of the Maude Road properties. In any event, the loan appeared to be intended for the further development of the Maude Road properties. Given that I had not taken into account the increase in value in the Maude Road properties based on the proposed further development, it was fair in my view that the loan should also not be taken into account.

(2) The Singapore Properties with no agreed values

The parties have not specifically agreed to the values of the following two Singapore properties:

Property	Wife’s alleged net value
Geylang property	S$40,119.63
Bayshore property	S$873,375

I accepted S$40,119.63 as the value of the Geylang property, there being no other value submitted by the Husband.

There was no agreement on whether the Bayshore property was a matrimonial asset. The Bayshore property was acquired prior to the marriage. The Wife submitted that this was a matrimonial home which ought to be divided under s 112 of the Women’s Charter as the parties had stayed in the property from 2001 to 2003. The Husband disputed that it was a matrimonial home and submitted that they lived there for only a period of 15 months.

Section 112(10) of the Women’s Charter provides:

(10) In this section, “matrimonial asset” means —

(a) any asset acquired before the marriage by one party or both parties to the marriage — (i) ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter or transportation or for household, education, recreational, social or aesthetic purposes; or (ii) which has been substantially improved during the marriage by the other party or by both parties to the marriage; and

(b) any other asset of any nature acquired during the marriage by one party or both parties to the marriage,

but does not include any asset (not being a matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage.

I found that the Bayshore property was ordinarily used by both parties for shelter and therefore a...