TXW v TXX

• Jurisdiction: Singapore
• Judge: Debbie Ong JC
• Judgment Date: 24 February 2017
• Neutral Citation: [2017] SGHCF 4
• Plaintiff Counsel: Gregory Vijayendran and Jason Gabriel Chiang (Rajah & Tann Singapore LLP)
• Docket Number: Divorce (Transferred) No 191 of 2012/C
• Date: 24 February 2017
• Hearing Date: 22 November 2016,20 May 2016,09 November 2016,29 August 2016,15 November 2016
• Subject Matter: Matrimonial assets,Wife,Maintenance,Division,Family law
• Year: 2017
• Defendant Counsel: Lok Vi Ming, S.C., Melissa Thng and Vanessa Tok (Dentons Rodyk & Davidson LLP)
• Court: High Court (Singapore)
• Citation: [2017] SGHCF 4
• Published date: 03 March 2017

Debbie Ong JC: Background facts

The plaintiff husband (“the Husband”) and the defendant wife (“the Wife”) were married on 1 June 1992. The Husband commenced divorce proceedings on 15 January 2012 and the Wife filed for divorce on 17 January 2012. These divorce suits were consolidated on 17 May 2012. The interim judgment of divorce (“interim judgment”) was granted on 6 May 2014.

The Wife is 52 years old while the Husband is 71 years of age. The Husband was a lawyer and had retired from legal practice in 2005. The Wife was a homemaker throughout the marriage. Prior to that, she worked in the banking industry. They do not have any children.

On 15 November 2016, I delivered my oral decision on the ancillary matters relating to the division of matrimonial assets and maintenance for the Wife. The issue of costs was heard on 22 November 2016. Both parties have appealed against my decision and I now give the grounds of my decision.

Division of matrimonial assets Fundamental legal principles underlying s 112 of the Women’s Charter

Section 112 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“WC”) confers upon the court the power to order the division of the parties’ matrimonial assets. The power to divide matrimonial assets is to be exercised in broad strokes, with the court determining what is just and equitable in the circumstances of each case: ANJ v ANK [2015] 4 SLR 1043 (“ANJ v ANK”) at [17]. The Court of Appeal held in Yeo Chong Lin v Tay Ang Choo Nancy and another appeal [2011] 2 SLR 1157 (“Yeo Chong Lin”) (at [81]) that:

At the end of the day, we wish to underscore the point that the broad brush approach … is all about feel and the court’s sense of justice.

The division of assets is founded on the ideology of marriage as an “equal co-operative partnership of efforts”, an ideology which accords equal recognition to spousal contributions whether in the economic or homemaking spheres: NK v NL [2007] 3 SLR(R) 743 at [20]. The Court of Appeal emphasized in ANJ v ANK that (at [17]):

The philosophy underlying what is known as the “broad-brush approach” is that mutual respect must be accorded for spousal contributions, whether in the economic or homemaking spheres, as both roles are equally fundamental to the well-being of a marital partnership …

[emphasis in original]

To accord due and adequate recognition to each party’s contributions towards the marriage, the Court of Appeal has laid down a structured approach for the exercise of the power to divide matrimonial assets. In applying the structured approach, the court will first ascribe a ratio that represents each party’s direct financial contributions towards the acquisition of the matrimonial assets, relative to that of the other party. Next, the court will ascribe a second ratio to represent each party’s indirect contribution to the well-being of the family, relative to that of the other party. The court then derives each party’s average percentage contribution to the marriage, which then forms the basis upon which to divide the matrimonial assets. Further adjustments to this average ratio that take into account the other factors enumerated in s 112(2) of the WC and all relevant circumstances, may be made to achieve a just and equitable division of the matrimonial assets (see ANJ v ANK at [22]).

Operative dates for identification and valuation of the matrimonial assets

The Court of Appeal in Yeo Chong Lin ([4] supra) 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. This should be understood in the light of ARY v ARX and another appeal [2016] 2 SLR 686, where the Court of Appeal 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 and further, 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 the present case, I adopt the date of the ancillary matters hearing as the operative date for the purposes of determining the value of the matrimonial assets. I accept the last values adduced by both parties just before the date of the ancillary hearing, which in this case was 29 August 2016.

Identifying the matrimonial assets and their values

Pursuant to my directions, the parties submitted a “Table of Parties’ Assets” containing their submitted values of the assets. The assets were categorised into three groups—Group A consists of immovable properties disputed to be matrimonial assets, Group B consists of other assets agreed by parties to be matrimonial assets (with agreed values) and Group C consists of other assets disputed to be matrimonial assets or have values which are disputed. As for outstanding liabilities, the parties confirmed that the only sums not accounted for in the tables below were two loans amounting to $1,126,009.03.

Group A—Immovable properties disputed to be matrimonial assets

The parties submitted the following table of assets, with alleged values in “Group A”. The assets in this group are disputed by the Husband to be matrimonial assets.

Property	Held by	H’s Value	W’s Value
Gross	Net	Gross	Net
1C Mayfield Avenue	H	$11,500,000.00	$10,000,598.97	$14,500,000.00	$13,000,598.97
20 Chapel Road	H	$3,300,000.00	$3,099,864.48	$3,300,000.00	$3,099,864.48
Taman Midah	W – 50%	$284,812.71	-	$167,536.89	-
Sale proceeds of 3 Mayfield Avenue and Country Heights	H	NIL	-	$4,171,498.74	-

The respective net values of 1C Mayfield Avenue (“1C Mayfield”) are the values obtained by deducting the outstanding liability in UOB Housing Loan No. XXX-XXX-219-4 from the respective gross values submitted by the parties. The net value of 20 Chapel Road (“Chapel Road”) is obtained by deducting the outstanding liability in Standard Chartered Bank Housing Loan No. XXXXX663 from the agreed gross value. The Husband has stated the value of the sale proceeds of 3 Mayfield Avenue and Country Heights as “NIL” because he submits that they have been spent and were accounted for in his explanations.

1C Mayfield

1C Mayfield was acquired in or around 1989 before the parties’ marriage in 1992. The Husband submitted that he never intended to treat 1C Mayfield as a matrimonial home and asserted that the parties’ matrimonial home was the Casuarina Cove Apartment (“Casuarina Cove”). In contrast, the Wife submitted that 1C Mayfield was the parties’ matrimonial home and that they lived in Casuarina Cove only on a temporary basis while 1C Mayfield was undergoing renovations. Between their residence in 1C Mayfield and Casuarina Cove, they lived in 3 Mayfield Avenue. The Wife’s position is that they had initially intended to combine 1C with 3 Mayfield Avenue into one big house, but later abandoned the idea. The Wife further submitted that in any event, as the mortgage repayments for 1C Mayfield were made during the marriage, the property was acquired during the marriage and is thus a matrimonial asset.

The objective circumstances of the present case point towards 1C Mayfield being used as the parties’ matrimonial home for the greater part of their married lives—they lived in that property for 12 years between 1992 and 2004. The Husband did not adduce any evidence that showed the contrary; his argument was that it was not intended to be their matrimonial home. It should be noted that a party’s unilateral subjective intentions alone do not determine whether an asset is a matrimonial asset within the definition of s 112(10) of the WC. As the parties resided in 1C Mayfield for about 12 years during their marriage, this property would fall within s 112(10)(a)(i) of the WC as an asset acquired before marriage which was ordinarily used or enjoyed by the parties residing together for shelter. Section 112(10)(a)(i) of the WC reads:

… “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

Thus, even if I accept the Husband’s submission that 1C Mayfield was not substantially improved by the Wife or by their joint efforts, this asset which was bought before the marriage would be transformed into a matrimonial asset by virtue of s 112(10)(a)(i) of the WC. I did not find that the asset was substantially improved during the marriage and hence did not find s 112(2)(a)(ii) of the WC applicable to the present facts. Amongst other things, there was insufficient proof of substantial improvement arising from their joint efforts or that of the Wife.

The Husband submitted that even if 1C Mayfield was a matrimonial asset at some point, it did not retain its character as a matrimonial asset for the purposes of s 112 of the WC as the parties moved out of 1C Mayfield in 2004. He submitted that they lived in Casuarina Cove as their matrimonial home, and highlighted that Casuarina Cove was their intended matrimonial home. The Husband relied on BGT v BGU [2013] SGHC 50 (“BGT v BGU”), which (at [28]) offered a negative answer to the question of whether a property transformed into a matrimonial asset under s 112(10)(a)(i) “retained that character” after the family moved out and used the...