TYA v TYB

• Jurisdiction: Singapore
• Judge: Valerie Thean J
• Judgment Date: 18 December 2017
• Neutral Citation: [2017] SGHCF 29
• Plaintiff Counsel: Andrew Hanam (Andrew LLC)
• Docket Number: District Court Appeal No 156 of 2016
• Date: 18 December 2017
• Hearing Date: 16 October 2017
• Subject Matter: Variation of order for maintenance,Family law,Ancillary powers of court,Division of matrimonial assets
• Year: 2017
• Defendant Counsel: Ng Tee Tze, Allen (Rajah & Tann Singapore LLP) as Young Amicus Curiae.,Cherissa Tan (Dorothy Chai and Mary Ong Law Practice)
• Court: High Court (Singapore)
• Citation: [2017] SGHCF 29
• Published date: 22 December 2017

Valerie Thean J:

This appeal arises out of a district judge’s decision on applications by the appellant wife and the respondent husband to vary two ancillary orders made by consent under an interim judgment for their divorce, in the light of new circumstances that have arisen in their lives.

The first order is an order for the parties’ matrimonial property to be sold upon their youngest child’s turning 21 in 2021 and the sale proceeds divided equally between them after each party is refunded their respective CPF contributions to the purchase price. Both appellant and respondent sought to vary this order. The key question that arises is whether, on the facts of this case, the order has become unworkable according to the principles set out in the Court of Appeal’s decision in AYM v AYL [2013] 1 SLR 924 (“AYM”) and thus eligible to be varied under s 112(4) of the Women’s Charter (Cap 353, 2009 Rev Ed). The second is an order for the maintenance of the appellant and their children. The respondent sought to reduce the amount he is liable to pay towards their maintenance on the ground of a material change in his circumstances within the meaning of s 118 of the Charter.

The district judge dismissed both the appellant’s and respondent’s applications regarding the first order but varied the order to allow the sale of the property on condition of the parties’ consent if they were minded to do so subsequently. She varied the second order by reducing the monthly maintenance sum, and with retrospective effect. For the reasons detailed below, I allow the appellant’s appeal on the first order and dismiss that part of her appeal which relates to the second.

Background

The appellant and the respondent married in January 1988 and have three children.¹ Their elder son is 29, their daughter is 28 and their younger son is 17. Their matrimonial home is a Housing Development Board flat.² It was in June 2016 valued at approximately $335,000.³ The flat is held in the joint names of the parties.⁴ The purchase of the flat was financed by a mortgage loan from the Oversea-Chinese Banking Corporation Limited (“OCBC”), on which repayment continues today to be due in the sum of $618 every month.⁵

The parties’ marriage of 24 years came to an end on 14 November 2011, when they were granted Interim Judgment.⁶ Under that judgment, two orders were made by consent which are now the focus in this appeal. They are cll 3(a) and 3(b), and they read as follows:⁷ a) Delayed sale of matrimonial flat located at [xxx] until the youngest child turns 21 years old. Upon sale, the proceeds of sale shall be used to repay any outstanding mortgage thereafter to repay to the parties respective CPF accounts the sum used towards the purchase of the flat including accrued interest and the balance sum after paying for the cost of the sale shall be divided equally between the parties.

…

b) Maintenance of $2,700 per month to the Plaintiff for the maintenance of the Plaintiff and children to be paid into their [daughter’s] POSB Bank Account number [xxx] on the seventh day of each month.

It is the respondent’s evidence that at the time of the divorce, he was earning a net income of about $3,500 to $4,000 a month.⁸ Around early 2012, after the grant of Final Judgment, he became unable to hold down a full-time job, and his earnings were reduced to a net average of $2,000 a month.⁹ In late 2014, he met his current wife.¹⁰ Around April 2015, he secured a full-time job with a monthly gross salary of about $3,500.¹¹ He remarried in October 2015 and has been renting premises with his current wife.¹²

It is not disputed that the respondent was solely responsible for repaying the mortgage loan throughout the marriage. After Interim Judgment was granted, the respondent continued to make the mortgage repayments every month and in full, out of moneys in his Ordinary Account with the Central Provident Fund (“CPF”), until October 2012, when his contribution to the repayments began to decrease in amount and consistency. As a result, the parties on 12 October 2012 agreed in writing to share in repaying the mortgage loan. The agreement reads:¹³

AGREEMENT

I, [the respondent] agree with [the appellant] to both share the payment of HDB housing loan in cash (to be deposited into HDB-OCBC housing loan account), starting from November 2012.

PAYMENT AS BELOW

[Respondent]: $300/-

[Appellant]: $318/-

NOTE

If any of the party do not pay (or late payment) for the month of housing loan, the party will bear the penalty charged by the HDB-OCBC housing loan.

This letter will be served as a proof and will be used for evidence for any court matter.

The respondent did not abide by this agreement.¹⁴ As a result, in addition to contributing $318 a month, the appellant from June 2013 to June 2016 contributed a total sum of $12,396.76 to repay the mortgage loan because the respondent could not, or could not fully, contribute his share of $300 each month.¹⁵ Eventually, she came to pay the full sum of $618 each month, and she continues to do so today. Of that sum, she pays $200 out of her CPF moneys and the remaining $418 in cash.¹⁶ As at June 2016, $66,044.64 remained owing to OCBC on the loan.¹⁷

The respondent was also inconsistent in making payment towards the maintenance of the appellant and their three children. In this regard, he is, according to the appellant, in arrears of $89,100.¹⁸ In this connection, however, it should be noted that by June 2013 the parties’ elder son had graduated from university and had by July that year started work.¹⁹ By June 2014, their daughter had graduated too. Their younger son sat for his “O” Level papers last year and is understood to be currently pursuing a polytechnic diploma.²⁰

In July and September 2016, the parties took out applications to vary cll 3(a) and 3(b) of the Interim Judgment.²¹ The appellant sought to vary cl 3(a) under s 112(4) of the Charter. She asked the court to transfer to her the respondent’s share in the flat without any refund to the respondent’s CPF account. This was on the basis that the liabilities he owed her exceeded the value of his share in the flat. Those liabilities were said to comprise (i) personal loans she had extended to him; (ii) his maintenance arrears; and (iii) his share of the monthly mortgage repayments which he had failed consistently to contribute since June 2013.

The respondent disputed the legal basis for such a variation, and yet also sought to vary cl 3(a), to enable the sale of the flat within four months. He wanted his share of the sale proceeds so that he could move on with his life. He also asked the court to vary cl 3(b) under s 118 of the Charter to reduce the amount he needed to pay towards his wife’s and their children’s maintenance, contending that his wife had found work and that their two older children had become financially independent.

The district judge found no legal basis on which to transfer the respondent’s interest in the flat to the appellant. Such a transfer, she held, was not the appropriate way by which the appellant was to recover any alleged personal debt owing to her by the respondent. The appropriate mode of recourse was civil action and, where maintenance arrears were concerned, enforcement proceedings under s 71 of the Charter.²² The judge also did not think cl 3(a) was unworkable in the sense that it could not be implemented.²³ The district judge took the view, nevertheless, that the parties might reasonably decide together to sell the flat before 2021, and so she varied cl 3(a) to provide for that event.²⁴ She also allowed the respondent’s application and varied cl 3(b). Having regard to when the parties’ two older children started work, she revised that clause to the effect that the respondent would be liable to pay the appellant $2,100 per month with effect from 1 June 2013, and $900 per month with effect from 1 June 2014.²⁵

The appellant now appeals against the whole of that decision.

Parties’ cases on appeal

The appellant’s original position on appeal was that cl 3(a) should be varied to provide that the amounts she is likely to have paid in cash on the housing loan by the time the property is sold in 2021, to be calculated by applying the doctrine of equitable accounting, be refunded to her.²⁶ At the oral hearing, however, her counsel, Mr Hanam, clarified that she was agreeable to an immediate sale of her property, provided that her cash contributions to the mortgage repayments be refunded to her. The common factor between both positions, however, is her contention that cl 3(a) is eligible for variation because it has been rendered unworkable by the respondent’s failure to contribute to the mortgage repayments. This failure, she contends, represents a material departure from the parties’ common understanding, at the time they agreed on cl 3(a), that the respondent would be solely responsible for making the mortgage repayments.²⁷

In addition, the appellant argues that cl 3(a) should be varied to take into account the maintenance arrears owed to her by the respondent. That may be done, she says, by ordering a charge over the respondent’s CPF moneys.²⁸ Finally, she argues that the district judge erred in backdating the varied cl 3(b),²⁹ and that the maintenance amount should not have been reduced on the basis that the two older children had moved out.³⁰

As the respondent’s position in these proceedings has always been to seek an immediate sale of the flat,³¹ it is noteworthy that the appellant and the respondent now converge on appeal on this point. They differ, however, on the basis upon which cl 3(a) should be treated as unworkable and consequently varied. They also differ on how the appellant’s cash contributions should be refunded to her under a varied cl 3(a). For example, in the appellant’s view, this may be done by adjusting the proportions in which the sale proceeds are divided, but...