TZQ v TZR

• Jurisdiction: Singapore
• Judge: Tan Puay Boon JC
• Judgment Date: 18 January 2019
• Neutral Citation: [2019] SGHCF 3
• Court: High Court (Singapore)
• Docket Number: District Court Appeal from the Family Courts No 164 of 2016
• Published date: 24 January 2019
• Year: 2019
• Hearing Date: 04 April 2018,11 May 2018
• Plaintiff Counsel: Yeow Tin Tin Margaret and Jeanna Loe Yuqing (Hoh Law Corporation)
• Defendant Counsel: Seenivasan Lalita and Tan Li Yi, Caleb (Virginia Quek Lalita & Partners),Abdul Wahab Bin Saul Hamid and Jovita Ann Dhanaraj (IRB Law LLP)
• Subject Matter: Family Law,Divorce,Ancillary Matters,Division of matrimonial assets,Maintenance of wife
• Citation: [2019] SGHCF 3

Tan Puay Boon JC: Introduction

This is an appeal (“the Appeal”) by the Plaintiff (husband) against the decision of the District Judge (“DJ”) in the Ancillary Matters hearing of the divorce proceedings between him and the Defendant (wife) (“parties”). The Interveners are the sons of the Plaintiff, and are the step-sons of the Defendant.

Parties were married on 10 July 2003. This was both parties’ second marriage. (Although the Defendant said this was the Plaintiff’s third marriage,¹ nothing turns on this). While they do not have any children from this marriage, besides the sons of the Plaintiff from his previous marriage, the Defendant has three daughters from her previous marriage. The Plaintiff filed for divorce against the Defendant on 10 November 2014 on the ground of four years’ separation. Interim Judgment was granted on the Defendant’s amended counterclaim on 31 March 2016. The ground was the unreasonable behaviour of the Plaintiff. The ancillary matters were heard by the DJ on 24 November 2016, and the orders were given on 29 November 2016.

The Interveners had earlier applied unsuccessfully to intervene to set aside the decision of the DJ who ruled that they did not have an interest in the Housing and Development Board (“HDB”) flat in [redacted address] (“the matrimonial flat”) that they and the parties were residing in (TZQ v TZR [2017] SGFC 40 (“GD”), at [6]). The decision was made as there was no documentary evidence to support their claim of having made financial contributions toward its acquisition when they were added as joint tenants with the Plaintiff in October 2012. After the Plaintiff filed the Appeal on 9 December 2016, he applied successfully to admit the documents showing the Interveners’ financial contributions to the matrimonial flat. Parties also consented to them intervening in the Appeal. Subsequently, before the hearing of the Appeal, the Interim Judgment was made final on 15 December 2016.

The Interveners have on 30 January 2018 commenced separate proceedings in HC/OS 146/2018 (“the Application”) to determine their respective shares in the matrimonial flat, and to ask for their shares in the net proceeds of sale to be distributed to them in the event it was sold. They were represented by the same counsel, and took the same position in both the Application and the Appeal.

I heard the Application immediately before hearing the Appeal. My decision in the Application was that the 1st Intervener and the 2nd Intervener have a 5.18% and 7.02% beneficial interest in the matrimonial flat, respectively. The reasons for my decision are set out in BUE and anor v TZQ and anor [2018] SGHC 276 (“BUE v TZQ”).

The Appeal

The Plaintiff’s Appeal is against the following orders of the DJ in the ancillary matters: The matrimonial flat shall be sold in the open market within six months from the date of Final Judgment. Parties shall have joint conduct of the sale and shall jointly value the matrimonial property. The sale proceeds after deducting the relevant expenses incurred in the sale of the property shall be divided 60% to the Plaintiff and 40% to the Defendant. Alternatively, within two weeks from the date of the Final Judgment, the Plaintiff may confirm in writing if he wishes to retain the matrimonial property. The Plaintiff shall pay the Defendant the sum of $200,000.00 from his CPF (“Central Provident Fund”) account or cash or a combination of both within 3 months from the date of Final Judgment as long as this is permitted under the CPF legislation and rules, failing which the flat is to be sold as stated above. The Defendant shall be entitled to a further sum of $51,549.00 from the Plaintiff’s CPF Ordinary account, $20,620.00 from Plaintiff’s CPF Medisave account and $30,929.00 from the Plaintiff’s CPF Retirement account. (Although the sum of $30,929.00 is different from the amount of $20,929.00 in Annex 1 of the GD, I will use the former amount as it is the one used in the order of court extracted.) The CPF Board shall, from the moneys standing to the credit of the Plaintiff in the following CPF Account of the Plaintiff, transfer the amount specified as follows to the Defendant’s CPF Account:

Plaintiff’s CPF Account to Transfer From	Amount to Transfer
Ordinary Account	$ 51,549.00
Medisave Account	$ 20,620.00
Retirement Account	$ 30,929.00

The Plaintiff shall pay a lump sum of $50,000.00 to the Defendant for the wife’s maintenance, which is to be paid in monthly maintenance of $850.00 for six months from December 2016 to May 2017 and the balance lump sum of $44,900.00 by 30 June 2017.

There is no appeal by the Defendant.

Issues in the Appeal

The issues in the Appeal are as follows:² Division of matrimonial assets: Whether the date of alleged cohabitation or the date of the marriage should have been used as the commencement date for length of marriage; Whether the Ancillary Matters date should have been used as the operative date of valuation of assets or should it be the date of separation; Whether the Appellant’s amount of CPF moneys acquired prior to marriage and the interest accrued thereon ought to have been included in the pool of matrimonial assets; Whether the Judge’s valuation of the pool of matrimonial assets was accurate; and Whether the overall division of the assets is just and equitable in the light of parties’ direct and indirect contributions. Division of the matrimonial flat: Whether the Appellant’s sons’ interest should have been excluded from the division of the said flat based on resulting trust principles; and Whether the Appellant’s direct financial contribution towards the matrimonial flat prior to marriage and the interest accrued thereon ought to have been included in the pool of matrimonial assets. Maintenance for the Respondent: The issue of quantum of maintenance for the Respondent; and Whether it should be a lump sum maintenance or monthly maintenance; and Whether an adverse inference should be drawn against the Appellant based on the recent documents filed and admitted; and if so, whether the percentage of 10% in the Respondent’s favour was fair or equitable.

Background Facts

The Plaintiff and the Interveners’ mother were married in 1983.³ They purchased the matrimonial flat on 1 October 1992.⁴ It was later transferred by gift to the Plaintiff in his sole name on 25 September 1996.⁵ The Plaintiff and the Interveners have lived in the matrimonial flat since its purchase. The marriage between the Plaintiff and their mother ended in 2003.⁶

The Defendant first came into the Plaintiff’s life in 1993 (GD, at [3]). At that time, the Interveners were aged eight and six, respectively (GD, at [4a]).

The earlier marriage of the Defendant ended in 1995.⁷ She and the Plaintiff were married on 10 July 2003 after his divorce earlier that year,⁸ and she and one of her daughters from her first marriage moved into the matrimonial flat. The Interveners were then aged 18 and 16, respectively (GD, at [4a]).

The Defendant was never given any legal title to the matrimonial flat. She and her second daughter left the matrimonial flat in May 2012 for a trip to India, and came back to Singapore in August that year. They did not return to the matrimonial flat, but went to live with the Defendant’s eldest daughter.⁹ The Defendant applied for maintenance from the Plaintiff in September 2012, and a consent maintenance order was made on 18 October 2012 for the Plaintiff to pay her $850.00 per month from 1 November 2012. She has not gone back to live at the matrimonial flat since she left.

On 2 October 2012, the Plaintiff executed a transfer of the matrimonial flat into the joint names of the Plaintiff and the Interveners (“the Transfer”). The Transfer was registered to be “By Gift”, and the consideration was stated as “natural love and affection”.¹⁰ On 10 October 2012, the Interveners withdrew from their respective CPF accounts a total of $26,073.85 comprising $25,905.05 to redeem the mortgage on the matrimonial flat and another $168.80 for conveyancing and registration fees.¹¹

The Plaintiff then filed for divorce against the Defendant on 10 November 2014 on the ground of four years’ separation.

Division of Matrimonial Assets (including the matrimonial flat)

In NK v NL [2007] 3 SLR(R) 743 (“NK v NL”) at [31], the Court of Appeal described the approach for dividing the matrimonial assets to involve the identification, assessment, division and the apportionment of these assets. I will deal with the issues raised in the Appeal by the Plaintiff at [8] above under the respective steps in that approach.

Division in long single-income marriages

To divide the matrimonial assets, the DJ had applied the structured approach referred to in ANJ v ANK [2015] 4 SLR 1043 (“ANJ v ANK”), ie to obtain the average contribution of parties after considering their direct and indirect contributions and assigning proper weightages to these contributions. She also applied the “broad brush” approach that decided cases preferred (GD, at [2]).

After the DJ’s decision was delivered on 29 November 2016, the Court of Appeal handed down on 3 March 2017 its decision in TNL v TNK [2017] 1 SLR 609 (“TNL v TNK”), a case which involved a 35-year marriage where the husband supported the family economically while the wife looked after the household. The court recognised that the ANJ v ANK approach in the context of Single-Income Marriages “tends to unduly favour the working spouse over the non-working spouse” (at [44]), and “should not be applied to Single-Income Marriages”. The court further expressed the view that it was in general agreement with the approach of tending towards equal distribution of matrimonial assets in “long Single-Income Marriages” (at [48] and [54]), and upheld the decision of the High Court to order a 50:50 division of the matrimonial assets in that case.

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