TQU v TQT

• Jurisdiction: Singapore
• Judge: Judith Prakash JA
• Judgment Date: 25 February 2020
• Neutral Citation: [2020] SGCA 8
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 228 of 2018 (Summons Nos 67 and 78 of 2019)
• Year: 2020
• Published date: 28 February 2020
• Hearing Date: 03 January 2020,25 September 2019
• Plaintiff Counsel: The appellant in person
• Defendant Counsel: the respondent in person
• Subject Matter: Family Law,Matrimonial assets,Division
• Citation: [2020] SGCA 8

Woo Bih Li J (delivering the judgment of the court): Introduction

The sole issue on appeal appears straightforward: how should the court achieve a just and equitable division of matrimonial assets? Courts have long strived to reach a fair outcome on the facts of each case, and the factual matrix of the marriage before us has complicated the matter and made our task more challenging.

This is the appeal of the appellant husband (“the Husband”) against the decision of the High Court judge (“the Judge”) to award 75% of the matrimonial assets to the respondent wife (“the Wife”). Having heard the submissions of the parties, we reserved judgment. We now furnish our decision and the accompanying reasons.

Background

The Husband and the Wife were married on 6 March 1990.¹ Interim judgment of divorce (“IJ”) was granted on 24 March 2016.² They have three children, a daughter and two sons, who were born in 1993, 1996 and 1998 respectively.³

Legally speaking, this was a marriage of 26 years. In reality, it is not disputed that the marriage broke down sometime in 2001, 11 years after the parties were married. In fact, the grant of IJ in 2016 was pursuant to the Wife’s third application for divorce; her first application in December 2001 and second application in December 2010 had both been dismissed. That the marriage broke down sometime in 2001 is also evident from the numerous legal proceedings the parties have been embroiled in, including a criminal trial.

We raise this to highlight that although this was a long marriage, the facts relating to the breakdown of the marriage were highly unusual. First, as mentioned, the marriage broke down in 2001 even though IJ was granted only in 2016. Second, there was a negative value in the Wife’s indirect contributions (see [130] to [132]). Third, the Wife herself acknowledged the absence of indirect contribution from her to the family from March 2010. We discuss the implications of the Wife’s conduct below (at [128] to [134]).

The Husband is a medical doctor. He began his career with the Ministry of Health in 1989, until he paid off his bond and set up a clinic as a sole proprietorship (“the Clinic”) in April 1991, where he worked as the resident doctor until it closed down in 2003. The Wife, who was then working as an accountant, quit her job to work in the Clinic from the time it was set up until 2001. In 2001, the parties also set up a bubble tea shop within the same premises as the Clinic to generate income on the side, although this closed down within a year.

In 1989, prior to the marriage, the Husband’s father passed away. It is not disputed that he was generous with the Husband and gave assets to the Husband during his lifetime and by his will. These included 500,000 shares and 35,000 shares in two family companies, “TQA” and “TQB”, respectively. In 1993, during the marriage, the Husband incorporated a company named “TQCDE” and transferred 499,909 of his 500,000 TQA shares and all 35,000 of his TQB shares to TQCDE.⁴ The Husband held approximately 90% of the 100,000 shares in TQCDE, while the Wife held approximately 10%. The Husband’s mother held one of the 100,000 shares. The Husband’s mother passed away in 2000 and, according to the Husband, he inherited even more assets upon her death. TQCDE was eventually liquidated in 2014. By then, the Husband’s two sisters had become shareholders of TQCDE. When TQCDE was liquidated, its shares in TQA and TQB were distributed to its shareholders according to their shareholding at that time. Both the Husband and the Wife thereafter held shares in TQA and TQB directly.

The Wife left the matrimonial home on 1 September 2001. She filed her first divorce action on 14 December 2001 and, two weeks later, took the two sons to live with her. The first divorce application was dismissed in 2005, whereupon the Wife moved back into the family home with the two sons. Less than a year later, she moved out again and never moved back to live with the family. The two sons were shuttled between the two homes until March 2010, when they moved back in with the Husband, and there they have stayed. The Wife’s second divorce action was filed on 27 December 2010 and dismissed in February 2015. The third divorce action, filed less than two weeks later, led to the grant of IJ and the ancillary matters proceeding below.

The parties’ submissions and the decision below

During the marriage, the parties acquired properties in Singapore, China and Malaysia. The source of funds for these acquisitions is heavily disputed. According to the Husband, the properties were acquired with money given to him by, or inherited from, his parents.⁵ The properties could not have been acquired with income from the Clinic as the Clinic was barely profitable while it was in operation.⁶ Most of the properties therefore do not qualify as matrimonial assets and should be excluded from division. The Husband submitted that the Wife should only be awarded 3% of the properties he alleged were matrimonial assets.⁷

On the other hand, the Wife alleged that the properties were acquired with income earned from the Clinic.⁸ As this was a long marriage of 26 years, she submitted that the starting point should be equal division of the matrimonial assets.⁹ She submitted that an adverse inference should be drawn against the Husband for his conduct and failure to disclose assets, and she should be awarded 67% of the matrimonial assets.¹⁰

The parties appeared before the Judge on 24 September 2018. In his decision in TQT v TQU [2018] SGHCF 17 (“GD”) on 15 November 2018, the Judge concluded that all the assets currently owned by the parties came from the Clinic, which was a “joint matrimonial venture”: GD at [11]. He therefore concluded that each party should be entitled to 50% of the matrimonial assets: GD at [11]. The Judge also drew an adverse inference against the Husband for failing to shed light on the identity and value of the assets and gave effect to that adverse inference by adjusting the ratio of division by 25% in favour of the Wife, to reach a final ratio of 75:25 in favour of the Wife: GD at [11]. As the Judge could not identify the total value of the matrimonial assets, he ordered all ascertainable assets to be sold and divided in the ratio of 75% to the Wife and 25% to the Husband: GD at [11].

The parties returned before the Judge on 21 January 2019 because they could not agree on a draft order. On 28 January 2019, the parties signed a draft order (“the Draft Order”) listing the assets to be sold,¹¹ which were identified as: Bukit Batok Housing Development Board (“HDB”) shophouse; Eng Kong Place property; Lorong Pisang Raja property; Petir Road HDB flat; Liang Feng Mansion, Shanghai; Bukit OUG, Kuala Lumpur; Sun Island Club units, Shanghai; Wadihana, Johor Bahru; The Regalia, Shanghai; Hai Hong Plaza, Shanghai; the Wife’s car; the Wife’s Great Eastern Life policies; the Wife’s shares in various listed companies; the Wife’s shares in TQA and TQB; the Wife’s three DBS accounts; the Wife’s Central Provident Fund (“CPF”) account; the Husband’s NTUC Income policy; the Husband’s shares in various listed companies; the Husband’s DBS account; and the Husband’s CPF account.

These were the assets the Judge found to make up the matrimonial assets. This list did not include a property that the Husband used to own at Pender Court (“the Pender Court property”) even though the Judge found that it was a matrimonial asset, as it had been sold in a collective sale in November 2010: GD at [9].

The parties’ cases on appeal

The Husband raises several issues in this appeal: The Judge failed to determine the operative dates for determining and valuing the matrimonial assets. The operative date for determination should be 28 June 2010, the date from which both parties agreed the marriage had broken down, while the operative date for valuation should be March 2006, December 2001 or December 2010.¹² The Judge erred by including properties that were gifts from his parents or were no longer in existence as matrimonial assets. The Pender Court property in Singapore and the Liang Feng Mansion and the Regalia properties, both in Shanghai, China, were gifts from the Husband’s mother, while the Hai Hong Plaza and Sun Island International Club properties were no longer in existence as of the operative date of determination of the matrimonial assets.¹³ The Judge erred in his finding on the parties’ direct contributions. The main source of the funds used to acquire the properties was the Husband’s gifts or inheritance from his parents, which are solely attributable to the Husband, and not the income from the Clinic. Even if the funds had been from the Clinic, the Husband was the sole owner and resident doctor, and the income should be attributed solely to him.¹⁴ The Judge erred in his finding on the parties’ indirect contributions. The Wife was largely absent from the family after 2001, and prior to that she had the assistance of helpers and the Husband’s mother. The Husband was largely responsible for care of the children, and the ratio of indirect contributions should be 90:10 in his favour.¹⁵ The Judge failed to take into consideration the Wife’s misconduct as she caused harm to the children and constantly embroiled the family in vexatious legal proceedings.¹⁶ The Judge erred in his finding that equal division was appropriate prior to any adjustment as this was not a long single-income marriage, and the Husband’s contributions far outweighed the Wife’s contributions.¹⁷ The Judge erred in drawing an adverse inference against the Husband and awarding the Wife an additional 25% of the matrimonial assets. The Wife also failed to make full disclosure.¹⁸

The Husband submits that the Judge should have used the classification methodology. He submits that the value of the foreign properties and the Singapore...