Uap v Uaq

• Jurisdiction: Singapore
• Judge: Valerie Thean JC
• Judgment Date: 27 April 2017
• Court: High Court (Singapore)
• Docket Number: Divorce Transfer No 5 of 2011
• Date: 27 April 2017

UAP

and

UAQ

[2017] SGHCF 11

Valerie Thean JC

Divorce Transfer No 5 of 2011

High Court Family

Family Law — Maintenance — Wife — Husband applied to rescind or vary interim maintenance order based on change in circumstances — Application delayed to be dealt with during ancillary hearing — Whether interim maintenance order should be varied during ancillary hearing — Whether prejudice to wife if interim maintenance order belatedly varied — Section 118 Women's Charter (Cap 353, 2009 Rev Ed)

Family Law — Maintenance — Wife — Intervening bankruptcy of husband — History of interaction and litigation between parties — Wife sufficiently provided for by orders as to division of matrimonial assets — Whether lump sum maintenance order or no maintenance order appropriate — Section 113(1)(b) Women's Charter (Cap 353, 2009 Rev Ed)

Family Law — Matrimonial assets — Division — Bankruptcy orders made against husband after petition for divorce — Official Assignee used proceeds from sale of matrimonial home to repay debts — Whether sum original taken by or sum remaining with Official Assignee should be added to matrimonial pool — Section 112 Women's Charter (Cap 353, 2009 Rev Ed)

Family Law — Matrimonial assets — Division — Wife claimed withdrawals necessitated by husband's failure to pay maintenance — Whether maintenance arrears should be taken into consideration in delineating matrimonial pool

Family Law — Matrimonial assets — Division — Wife obtained injunction against husband — Injunctions allegedly caused husband wrongful loss — Whether cross-undertaking as to damages could be taken into consideration in assessing just and equitable division of matrimonial assets

Held:

Division of matrimonial assets

(1) The operative date for delineating the matrimonial pool was the IJ Date, except in relation to the sum that remained in the hands of the OA. The Wife did not adduce any evidence to show that the debts incurred were dissipations by the Husband or could be attributed solely to him. Given that these sums had been paid out by the OA, whose proper conduct of the matter was not in question, there was no reason to hold that the underlying debts paid off were falsely or wrongly incurred. Further, it was the annulment of the bankruptcy order that paved the way for the parties' ancillary matters to be dealt with under s 112 of the Women's Charter (Cap 353, 2009 Rev Ed) (“WC”). Accordingly, only the sum of $111,618.54 which remained in the hands of the OA was added to the matrimonial pool: at [19].

(2) Two requirements had to be established by the party seeking to draw an adverse inference against the other. These requirements were made out in relation to [P] Pte Ltd. The Husband's transfers of [A]'s shareholding in end-2010 to mid-2011 must have been in order to prevent the Wife from laying claim to her rightful share of the matrimonial assets: at [28] and [29].

(3) The means by which an adverse inference might be given effect to was fact-specific. On the facts, it would be most appropriate to deal with the Husband's conduct in relation to his shares in [P] Pte Ltd by way of an uplift to the Wife's share of the matrimonial pool: at [30] and [31].

(4) The Husband's gift of the Fine Wine Collection to his mother was not genuine, but rather, an attempt to keep assets out of reach of the Wife: at [33].

(5) The date and quantum of the gambling expenses did not tally with the evidence. In any event, gambling was not reasonable expenditure on the family. The sum of $130,000 was therefore added back to the pool: at [35].

(6) The Husband did not satisfactorily account for the sum of $220,000 that was said to have been given to [B] to fund a gold mining operation in Indonesia: at [36].

(7) The evidence suggested that the Husband's transfer of $175,000 to [B] was to put it out of the Wife's reach. Whether it was returned to him or not was not dispositive. The sum of $175,000 was thus added back to the matrimonial pool for division: at [39].

(8) The Wife's claim that the Husband had dissipated a total of $315,582 from the DBS Savings Plus account held in the parties' joint names was not borne out by the evidence. The Wife was not able to show evidence of unexplained dissipations even though she had the opportunity to access information as to the transfers and withdrawals in the joint account: at [41].

(9) On the balance of evidence, the Wife did not make out her case that the Husband had dissipated a total of $912,182.99 from the DBS Autosave account. The Wife focused exclusively on the withdrawals, but she omitted to mention that the Husband had made significant deposits: at [44].

(10) The Wife's submissions on dissipation in respect of the SCB accounts, the Husband's insurance policy, and the two diamond rings, were not made out by the evidence: at [47] to [49].

(11) As for the Wife's explanation that her withdrawals had been necessitated by the Husband's failure to pay maintenance, the maintenance arrears were incurred largely post-IJ. Thus, their resolution should be conceptually distinguished with the analysis on division of matrimonial assets, which pool was delineated and valued around the IJ Date: at [52].

(12) The Wife's claim that $100,000 had been a gift by the Husband to her after his confession that he had been having an affair did not preclude that sum from being part of the matrimonial pool. It was established law that pure inter-spousal gifts should be included in the pool: at [60].

(13) The Wife's claim that certain transfers were not dissipations but rather, because she was afraid that the Husband would force her to hand over her life savings and she wanted to financially provide for her son, was irrelevant to the sums' qualification as matrimonial assets: at [60].

(14) To the extent that the Wife was suggesting that certain sums were gifts to her sister, or repayments of debts owed to her sister, there was no evidence to support the gifts and the Wife appeared to be overstating the debts: at [60].

(15) Legal fees, within reasonable bounds and properly documented, were legitimate expenditure. The Husband's legal fees had been assessed and disbursed by the OA. The quantum claimed by the Wife as legal fees was reasonable. The exclusion of both parties' relevant legal fees was thus appropriate in the circumstance: at [64].

(16) Neither party showed persuasive proof of their purported debts to other parties: at [67].

(17) The court had a discretion as to whether or not to enforce the cross-undertaking as to damages. In the present case, any damages in respect of the cross-undertaking should not be taken into consideration as part of the division process. The court's power of division under s 112 of the WC was different in nature, and involved different factual considerations. Thus, the issue of damages should be kept distinct, save for one exception relating to the Husband's employee share options which could not be exercised because of the Wife's unreasonable conduct: at [72].

(18) The indirect contribution ratio was fixed at 80:20 in favour of the Wife. The Wife had made serious sacrifices to support the Husband in his overseas attachments and night classes to obtain his post-graduate degree, and to take care of the son. The Husband's focus had been on his career. The Husband's submission that the ratio should be adjusted to account for the Wife's unreasonable conduct in obtaining the injunctions was not accepted. The Wife could have conducted herself in a more cooperative and constructive manner, but the Husband hardly displayed exemplary conduct himself. The 80:20 ratio was thus made with reference to both their misconduct: at [80] and [82].

(19) Assuming equal weightage between the direct and indirect contribution ratios, the final distribution ratio would be 57.5:42.5 in favour of the Husband. It was appropriate to adjust the final distribution ratio to 50:50 for equal division. The 7.5% uplift to the Wife was less than the total paper value used in the sham transactions by the Husband: at [84] and [85].

Maintenance for the Wife

(20) Until AXM, the Husband had thought that any interim maintenance order entered into by consent could be superseded by the final maintenance order that would eventually be made. Post-AXM, he hoped to achieve the same objective by the Rescission Application. While, on a literal reading, AXM did not expressly preclude the Husband from pursuing this line of argument, the Husband had used it to forestall conclusive enforcement of the interim maintenance order for over 50 months. This was clearly not the intention of AXMENR. Section 118 of the WC provided a mechanism for the variation or rescission of the maintenance order on narrowly defined conditions; it was not a bookmark that parties may place on any interim maintenance order so that they may later revisit it. As such, applications under s 118 should generally be heard without undue delay. If there had been a change of circumstances, the applicant ought to prove its extent: at [93] and [94].

(21) The Husband's deferral of the Rescission Application left the Wife and the son in an undesirable state of limbo. In these circumstances, it would be too prejudicial to the Wife and the son to rescind or vary the interim maintenance order. The better approach would be to take into consideration the intervening bankruptcy when making a decision as to the final maintenance order going forward under s 113(1)(b) of the WC: at [94].

(22) A no maintenance order was appropriate. First, rather than rescind or vary the interim maintenance sum, the better approach in this particular case was to take the intervening circumstances into consideration in deciding the final maintenance order. Second, the history of the parties' interaction and litigation, and the Husband's current employment and financial status, suggested that it would be best if they were able to have a clean break. Third, this order, coupled with the orders as to division of...