TPY v TPZ and another appeal

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 18 January 2017
• Neutral Citation: [2017] SGHCF 2
• Court: High Court (Singapore)
• Docket Number: District Court Appeal Nos 63 and 65 of 2016
• Published date: 20 January 2017
• Year: 2017
• Hearing Date: 24 October 2016
• Plaintiff Counsel: Adriene Cheong and Shaun Ho (Harry Elias Partnership LLP)
• Defendant Counsel: Gulab Sobhraj and Michael Low (Crossbows LLP)
• Subject Matter: Family law,Matrimonial assets,Division
• Citation: [2017] SGHCF 2

Choo Han Teck J: Introduction

This judgment concerns two appeals relating to the division of matrimonial assets. District Court Appeal No 63 of 2016 (“DCA 63/2016”) is an appeal brought by the Husband, and District Court Appeal No 65 of 2016 (“DCA 65/2016”) is an appeal brought by the Wife. The Husband is presently 45 years old and works as a Sales Relationship Manager at a multinational company. The Wife is presently 43 years old and is a Manager at a bank.

The parties married on 18 June 1998 in the United Kingdom. On 23 November 2011, the Husband filed for divorce on the basis of the Wife’s adultery. The divorce was initially contested but the parties eventually agreed for the divorce to proceed on the basis of the Husband’s claim, amended to the fact of unreasonable behaviour instead of adultery. Interim Judgment was granted on 4 December 2012. The marriage lasted 13 years. There is one child to the marriage (“the Child”). The Child was born on 27 June 2001 and is now 15 years old. The parties jointly own three properties but the Wife presently lives with the Child in a rented apartment. The three properties are: a HDB flat at xxx, which was the matrimonial home (“the matrimonial home”); a four-bedroom condominium unit at xxx (“the xxx property”); and a property in the United Kingdom (“the UK Property”).

The ancillary matters were heard before the learned District Judge (“the DJ”) in 2015. The DJ gave her decision on the ancillary matters on 15 February 2016. The DJ’s Grounds of Decision can be found at TPY v TPZ [2016] SGFC 79 (“the GD”). After the DJ rendered her decision, the Husband applied to present further arguments. After hearing the further arguments, the DJ adjusted her orders on 26 April 2016. The adjusted orders are included within the GD. Dissatisfied with the DJ’s decision, the Husband filed DCA 63/2016 appealing the DJ’s orders in relation to the division of matrimonial assets. The two issues raised by the Husband on appeal are: Whether the DJ erred in law and in fact in attributing a ratio of 70:30 for indirect contributions (in favour of the Wife) (“the indirect contribution issue”); and Whether the DJ erred in failing to consider the Husband’s submissions that an adverse inference ought to be drawn against the Wife (“the adverse inference issue”).

The Wife then filed DCA 65/2016 also appealing the DJ’s orders in relation to the division of matrimonial assets. The issues raised by the Wife are: Whether the DJ erred in not attributing to the Wife a higher share ratio in respect of her indirect contributions; and Whether the DJ erred in not attributing to the Wife a higher share ratio in the division of the parties’ pool of matrimonial assets.

As pointed out by Ms Adriene Cheong (“Ms Cheong”), the Husband’s counsel, the issues raised by the Wife in DCA 65/2016 are linked to the indirect contribution issue raised by the Husband in DCA 63/2016. I therefore deal with the Wife’s case in DCA 65/2016 together with the Husband’s indirect contribution issue.

The decision below

After the trial below, the DJ ordered the division of matrimonial assets in the ratio of 34.5:65.5 in favour of the Wife. This ratio was based on the DJ’s finding that the Husband made direct contributions of 41% while the Wife contributed 59% towards the value of the pool of matrimonial assets. As for the parties’ indirect contributions, the DJ found that the Husband contributed 30% while the Wife contributed 70%. The DJ’s conclusions are summarised in the table below:

	Husband	Wife
Direct contributions (50% weightage)	41%	59%
Indirect contributions (50% weightage)	30%	70%
Average percentage contributions	35.5%	64.5%

In arriving at her decision on the indirect contributions of the parties, the DJ found the parties’ indirect financial contributions to be equal. This is stated at [44] of the GD: 44. Both parties contributed towards paying for the family’s and [the Child]’s expenses before the breakdown of the marriage. The bank statements exhibited by the Wife were inconclusive as to whether parties contributed equally into the joint accounts or not, or whether this was the practice throughout the years of marriage. The Wife said she bore more of [the Child]’s expenses after she and [the Child] moved out of the Matrimonial Home in 2012. It is undisputed that the Husband earned more than the Wife in the first ten years of the marriage and that the situation was reversed for the following five years. My analysis below on the contributions towards the assets show that the Husband paid more for the properties purchased in those earlier years as well and that in subsequent years, the Wife’s payments towards the properties overtook the Husband’s. The Wife has also accumulated substantially more assets in her own name than the Husband. I would conclude on the totality of the evidence that parties’ contributions towards the expenses would have evened out over the years, and would attribute such contributions equally to both parties.

[emphasis added]

In arriving at her decision on the parties’ indirect non-financial contributions, the DJ took the following issues into consideration at [71] – [72] of the GD: 71. I accept that the Wife had made the following indirect non-financial contributions: a. She had nurtured and taken care of [the Child], and invested time and effort to promote his development and well-being, particularly when he was very young. Her efforts are especially recognised as it is undisputed that the Husband is out of Singapore for half of the week. She also continued this role after she and [the Child] moved out. b. I accept that as a working mother, she had to have domestic help to assist in [the Child]’s care while she is working. However, I do not think this substantially reduces her role as [the Child]’s mother. In Tay Yong Kwang J’s words, “Having a maid in the household, or a number of maids for that matter, does not mean abdication of parental responsibility” Lee Chung Meng Joseph v. Krysgman Juliet Angela [2000] 3 SLR(R) 965 at [41]. She would thus also have had to train and supervise the maid for the childcare arrangements and household chores. c. She had made sacrifices in her career in the first years of the marriage, in order to take better care of [the Child]. This is obvious from the way her salary stagnated in those years, then quickly rose when [the Child] was older and the Wife could [better balance work and her other responsibilities] (Note: bracketed words added on 26 April 2016). d. She had used her employee rates at xxx Bank for the mortgage of various properties owned by the parties throughout the marriage. e. She was involved in the renovations for some of the properties, and had also played a part in deciding on investing in the Malaysian property. 72. I accept that the Husband had made the following indirect non-financial contributions: a. He had spent time and engaged in activities with the child during the marriage. b. It was largely his idea to take the risk of investing in real estate. c. He had arranged for and managed various of the properties, particularly the UK property.

The indirect contributions issue

On appeal, the Husband claims that the DJ erred in attributing a ratio of 70:30 for indirect contributions in favour of the Wife. The Husband claims that a fair ratio to accurately reflect the circumstances of the marriage is 55:45 in favour of the Wife. The Husband is not seeking to disturb the DJ’s finding that the parties made equal indirect financial contributions and his appeal only relates to the indirect non-financial contributions of the parties.

First, Ms Cheong argues that the DJ erred in finding that the fact that the parties had a domestic helper was immaterial because the Wife would have had to train and supervise the domestic helper in performing household chores. Ms Cheong submits that both Husband and Wife would have had to manage the helper on a daily basis and cites ANJ v ANK [2015] SGCA 32 (“ANJ v ANK”) at [27(c)]) for the proposition that the assistance of a domestic helper would reduce the indirect contributions made by the homemaker.

Secondly, Ms Cheong argues that the DJ erred in finding that the Wife had made sacrifices in her career to care for the child. Ms Cheong submits that the Wife’s salary stagnated and rose without any correlation to the Child’s age or the supposed effort put in by the Wife. The Husband also claims that the Wife was ambitious and focused on her career throughout the marriage. In particular, he claims that the Wife would work whenever she could and despite her indications that she would stop working to care for the Child, she did not do so.

Thirdly, Ms Cheong submits that the DJ erred in considering the Wife’s special employee rates for the mortgages on the parties’ properties as an indirect non-financial contribution on the Wife’s part. The Husband submits that the special employee rates should be considered as indirect financial contribution.

Finally, Ms Cheong submits that the DJ failed to take into consideration the Husband’s indirect non-financial contributions. The Husband claims that the DJ did not take into account the following: The Husband had assisted the Wife in finding employment and was supportive towards her in her times of need. The Husband was the one who helped the Wife secure her first job in London after the parties got married; The parties were put up in a hotel paid for by the Husband’s employer for the first month after they relocated from the United Kingdom to Singapore (including related expenses); and The Husband had opened various savings accounts for the Child.

In the light of the above, the Husband submits that there is no reason for the ratio of indirect contributions that the DJ awarded and that the ratio of 55:45 in favour of the Wife...