TND v TNC and another appeal

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 27 April 2017
• Neutral Citation: [2017] SGCA 34
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeals Nos 23 and 30 of 2016
• Published date: 05 May 2017
• Year: 2017
• Hearing Date: 01 December 2016
• Plaintiff Counsel: Winston Quek Seng Soon and Gan Guo Bin (Winston Quek & Co),Koh Swee Yen, Ng Shu Ping and Lim Yang Yu (WongPartnership LLP)
• Subject Matter: Family Law,Matrimonial Assets,Division
• Citation: [2017] SGCA 34

Judith Prakash JA (delivering the judgment of the court): Introduction

We have before us two appeals against the decision of the Judge in TNC v TND [2016] SGHCF 9 (“the Judgment”) regarding the division of matrimonial assets and access orders. The appellant in Civil Appeal No 23 of 2016 (“CA 23”) (“the wife”) is the respondent in Civil Appeal No 30 of 2016 (“CA 30”). The appellant in CA 30 (“the husband”) is the respondent in CA 23.

The marriage in question was solemnised in September 2001 in Singapore. The wife initiated divorce proceedings in November 2013 and the interim judgment of divorce was granted in September 2014. The parties have one child, a son, who was four years old at the time of the hearing below (“the AM hearing”).

Background

The wife is a Singapore citizen who was 43 years old at the time of the AM hearing. She has been a homemaker since 2006. Prior to that, she worked at a credit card company. It was not disputed that the wife was the primary caregiver of the child as the husband left for the United States on a work assignment soon after the child’s birth in 2011.

The husband is a Singapore permanent resident who was 53 years old at the time of the AM hearing. He is currently engaged in his own property development business. His last employment was with a multinational 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 during this employment. Additionally, during the marriage, the parties ventured into the business of property development and, between 2002 and 2012, incorporated a number of companies to hold various properties.

During the AM hearing, the parties agreed that they should have joint custody of the child. They disputed the terms of care and control, with the wife seeking sole care and control of the child with reasonable access to the husband of one and a half hours per week to be carried out in a public area. The husband sought joint care and control of the child, including unsupervised weekly visits of two hours each, additional overnight access on weekends once a month and access on special occasions.

On the issue of maintenance, the wife sought a lump sum maintenance for herself, and maintenance arrears of $350,000 from September 2012 to July 2015. She also sought maintenance of $5,000 per month for the child, and maintenance arrears of $120,000 representing the sum of $5,000 per month from September 2012 to August 2014. The husband’s position was that he was willing to fund all reasonable expenses of the child and provide a reasonable lump sum maintenance.

The valuation and division of the matrimonial assets was hotly contested. The wife sought a 50:50 division of the assets and asserted significant direct and indirect contributions to the marriage. The husband took the position that the effective length of the marriage was short as he had spent substantial periods away from the family and that all the immovable properties were acquired by his sole efforts and financial contributions without any involvement on the part of the wife. Accordingly, he proposed a division in the ratio 89.52:10.48 in his favour.

The decision below and the arguments on appeal

We will now provide a broad overview of the Judge’s decision in the court below, as well as the parties’ arguments on appeal.

With respect to the division of matrimonial assets: The Judge used the date of the interim judgment of divorce (11 September 2014) (“the IJ date”) as the cut-off date for determining both the asset pool and the valuation of the matrimonial assets. The Judge adopted the “classification methodology” in relation to the division of the parties’ matrimonial assets, ie, the assets were divided into two asset pools, Group A and Group B, depending on whether they were regarded as “quintessential matrimonial assets” (Group A) or not (Group B). Group B contained only two immovable properties – the Bayshore property and the Jalan Pinang properties. For Group A, the Judge valued the pool of assets at $20,654,413.39. She attributed to the wife direct contributions of 15%, which represented an uplift from her finding that the wife had contributed $1,292,141.03 or 6.26% of the pool. As for indirect contributions, the Judge attributed 65% to the wife and 35% to the husband. The Judge gave equal weight to direct and indirect contributions. As a result, the averaged ratio for Group A was 40:60 with the husband getting 60% and the wife 40%. For Group B, the Judge valued the pool of assets at $12,554,638.51. The Judge decided that the direct contributions ratio should be 5:95 in favour of the husband. For indirect contributions, the same ratio as that for Group A (ie, 65:35 in the wife’s favour) was used. This yielded an averaged ratio of 35:65 in the husband’s favour. However, the Judge was of the view that the direct contributions should be assigned greater weight. The averaged ratio of Group B was therefore adjusted to 20:80 in the husband’s favour. The Judge ordered the husband to transfer moneys or assets equal to the value of $10,772,693.05, less the value of the assets in her sole name, to the wife. The wife thus obtained 32.4% of the overall value of the assets.

With respect to maintenance for the wife and child: The Judge declined to award maintenance to the wife in the light of the assets that were allocated to her from the division of the matrimonial assets. The Judge reasoned that the wife’s needs could be adequately met with the financial resources she currently had and would have in the future. The Judge ordered the husband to pay $3,500 as monthly maintenance for the child.

As for custody, care and control, the Judge gave the parties joint custody of the child. Care and control was given to the wife whereas the husband was allowed weekly access to the child for two hours each time. The Judge directed that the husband “shall also have reasonable access to [the child] at other times”, and in doing so, expected that “both parties shall be reasonable and flexible in respect of the access arrangements, including the timings, duration and the venue for access transfers”.

In both appeals, the Judge’s use of the classification methodology was not challenged. In CA 23, the wife sought to increase her overall share of all the matrimonial assets to 40% from the 32.4% awarded by the Judge by disputing the valuation of certain assets and the apportionment of direct and indirect contributions. Before the hearing of CA 23, the wife withdrew her appeal against the lack of backdating of the child’s maintenance. She also took the position that she would not appeal against the lack of a maintenance order for herself unless, in the appeals, the Court of Appeal reduced her overall share of the assets. In CA 30, the husband sought to reduce the overall share of assets given to the wife by disputing the inclusion of certain assets in the matrimonial asset pool, the valuation of certain assets and the apportionment of direct and indirect contributions. The husband also appealed against the Judge’s order on access to the child.

By the time they filed their skeletal submissions for the appeals, both parties took the position that the date of valuation of the matrimonial assets should be the date of the AM hearing instead of the IJ date that the Judge had used. The AM hearing took place over several sittings, starting in November 2015 and ending in February 2016. By the term “AM date”, we should be taken as referring to November 2015 when the hearings began.

Preliminary point on the access order

We deal briefly with the husband’s appeal regarding the access order. No orders were made by the Judge in relation to detailed implementation of the access arrangements because counsel for both the husband and the wife had indicated that the parties were agreeable to such a general arrangement. It appears from the parties’ positions on appeal that they had thereafter recognised the need for greater specificity regarding the access arrangements due to difficulties in implementation. The issue was not an error in the Judge’s access order but the need for greater specificity. Therefore, it was not the subject of an appeal and should not have been raised as such. The correct course would have been for parties to seek further access orders from the Judge. We therefore deal no further with this issue and make no order on this aspect of the husband’s appeal.

Issues on appeal

The following issues arise for determination before us: Whether the AM date should have been used as the operative date of valuation of assets; Whether certain items ought to have been included in the pool of matrimonial assets; Whether the Judge’s valuation of the total pool of matrimonial assets was accurate; Whether the overall division of the assets is just and equitable in the light of parties’ direct and indirect contributions; and Whether there should be specific apportionment of the assets. We will deal with these issues in turn.

Operative date of valuation of assets

The Judge found that it was just and equitable to use the IJ date as the cut-off date both for determining the asset pool and for valuing the matrimonial assets, citing this Court’s guidance in ARY v ARX and another appeal [2016] 2 SLR 686 (“ARY v ARX”) at [31] and [34]. Her decision to do so was based on her finding (at [10] of the Judgment) that “[t]he parties had mostly adopted this operative date in submitting their respective values of the assets”, and that this was the date “when the parties’ relationship and their intention to jointly accumulate matrimonial assets had practically ended”.

Parties’ cases on appeal

The husband’s position on appeal was that all matrimonial assets should have been valued as at the AM date, and that the Judge erred in finding that the parties had mostly adopted the IJ date in...