UEP v UEQ

• Jurisdiction: Singapore
• Judge: Tan Shin Yi
• Judgment Date: 03 August 2017
• Neutral Citation: [2017] SGFC 93
• Court: Family Court (Singapore)
• Docket Number: Divorce Suit No. FC/D 5084/2015
• Published date: 31 August 2017
• Year: 2017
• Hearing Date: 15 November 2016,21 March 2017,18 January 2017
• Plaintiff Counsel: Ms Ellen Lee and Ms Devi Haridas [Ramdas & Wong]
• Defendant Counsel: Mr Lim Chee San [Tan Lim & Partners]
• Subject Matter: Ancillary matters - Division of assets - Third-party gift - Substantial improvement - Maintenance for wife and children - Costs
• Citation: [2017] SGFC 93

District Judge Tan Shin Yi: Background facts

The Plaintiff wife (“the wife”) and the Defendant husband (“the husband”) in these proceedings were married on 6 May 2003. The marriage lasted about 12.5 years, and the parties have three children, aged around 4, 5 and 11 years as at the time of hearing. The husband is 40 years old and works in his family’s company, a supermarket chain known as “YS”, where he is one of four directors and shareholders. The husband also has a role in other companies related to the family’s business. The wife is 38 years old and is currently a homemaker, although she also used to work for YS until a few years ago.

The wife filed for divorce on 12 November 2015, based on the husband’s unreasonable behaviour. The husband initially contested the divorce, and filed a counterclaim based on the wife’s unreasonable behaviour. The divorce subsequently became uncontested as the husband withdrew his counterclaim. Interim judgment was granted on 27 January 2016, on the wife’s claim based on the husband’s unreasonable behaviour.

Orders Made Consent Order

At the hearing before me on 15 November 2016, both counsel informed me that the parties had reached an agreement on the issues of custody, care and control, and access in general. The agreed terms were incorporated as follows, in a consent order dated 15 November 2016:

By Consent, (a) The parties shall have joint custody of the three children of the marriage, with care and control to the wife. (b) The husband shall have access to the three children as follows: (i) During the school term, access to the two older children on Monday and Tuesday from after school to 7 pm. The husband to fetch both children from school and return them to the wife when he is exercising such access, and he is to notify the wife in advance if he is not exercising this access. (ii) The 3rd and 4th week of the May/June school holidays from Sunday of the 3rd week at 10 am to the Saturday of the 4th week at 7 pm for the eldest child; and for the second child the husband shall have access during the 3rd week of the May/June school holidays from 10 am to 7 pm daily. (iii) The 1st and 2nd week of the November/December school holidays from Sunday of the 1st week at 10 am to the Saturday of the 2nd week at 7 pm for the eldest child; and for the second child he shall be returned to the wife at 7 pm daily. (iv) Alternate public holidays from 10 am to 7 pm, commencing with Christmas Day 2016. (v) If the husband wishes to take the eldest child overseas during his access period, he shall inform the wife at least 2 weeks in advance and provide the wife with a full itinerary with particulars of the persons travelling with the child and the relevant contact details. (vi) For the eldest child, alternate Eve of Chinese New Year from 5 pm to the 1st day of Chinese New Year, 8 pm, commencing 2017; and commencing 2018, alternate 1st day of Chinese New Year from 8 pm to 8 pm on the 2nd day of Chinese New Year. (vii) For the second child, alternate Eve of Chinese New Year from 5 – 8 pm, commencing 2017; and commencing 2018, alternate 1st day of Chinese New Year from 10 am to 8 pm. (viii) Overnight and overseas access for the two younger children shall be discussed between the parties when each child is 7 years old respectively. (ix) Supervised access to the youngest child on Sunday from 10 am to 12 noon. (x) Alternate years on each child’s birthday from 7 – 9 pm, commencing 2017. (xi) If the husband is unable to make it for access with any of the children, he is to notify the wife at least 2 days in advance and the parties may mutually agree to reschedule the access. (c) Liberty to apply.

Disputed Issues and subsequent Orders

It was not disputed that the main issues left for determination were the division of the matrimonial assets and maintenance for the wife and the three children. With regard to the matrimonial assets, counsel for the husband submitted that the shares in YS owned by the husband should be excluded from the asset pool for division. His reasons were that these shares were given to the husband by his parents and that there was no substantial improvement made to the shares by the wife. There were also allegations by both parties regarding dissipation of assets by the other party, and both parties requested these “dissipated assets” to be returned to the asset pool.

The specific issues before me for determination therefore were: (i) whether the husband’s shares in YS should be excluded from the asset pool for division; (ii) whether certain assets should be returned to the asset pool; (iii) whether any adverse inferences should be drawn against either party for lack of full and frank disclosure; (iv) division of the asset pool between the parties; and (v) the amount of maintenance for the wife and the three children. I reserved judgment on these issues after the hearing on 15 November 2016.

On 30 December 2016, the wife filed a Summons application for leave to admit further evidence which had arisen after the last hearing (“the new evidence”). The new evidence sought to be admitted was a report in a Mandarin newspaper, published on 19 December 2016, where the husband was interviewed in his capacity as “owner” of YS, and he had confirmed that the company had recently been successful in securing 2 store leases and intended to “operate them together”¹. The wife’s position was that the husband had, throughout the proceedings, maintained that he had been “removed from authority in the management”² of YS and that the company was not doing well, but that this was all contradicted by the husband’s statements in the newspaper report. I heard the wife’s application on 18 January 2017 and allowed the admission of the new evidence as it was relevant for the determination of the ancillary matters. The husband had also filed an affidavit in reply to the new evidence.

On 21 March 2017, I made the following orders: The matrimonial home at HH is to be sold in the open market within 6 months of the date of Certificate of making Interim Judgment Final, and the sale proceeds to be applied as follows: To pay the costs and expenses of sale; To discharge the outstanding mortgage loan; The sum of $853,644 to be paid to the wife; and The balance net sale proceeds to be paid to the husband. Each party is to refund the monies utilised from their CPF accounts for the purchase of the said matrimonial home with accrued interest from their respective shares of the sale proceeds. Both parties are to have joint conduct of sale. The Registrar or Deputy Registrar of the Family Justice Courts under section 31 of the Family Justice Act is empowered to execute, sign, or indorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven days of written request being made to that party. The joint CIMB account number XX is to be closed within 4 weeks of the date of this Order and the account balance to be retained by the husband. Each party is to retain all other assets in their respective names. The husband shall pay the wife maintenance for herself in the sum of $3,000 per month, commencing 21 March 2017 and ending 21 December 2017. Thereafter, there shall be no maintenance for the wife. The husband is to continue paying the premiums for the children’s insurance policies until maturity. The husband is to pay the wife maintenance for the three children in the sum of $5,150 per month, commencing 21 March 2017 and ending 21 December 2017. Thereafter, commencing 21 January 2018, the husband is to pay the wife maintenance for the three children in the sum of $4,600 per month ($1,870 for the eldest child, $1,470 for the second child and $1,260 for the youngest child). The husband is to pay costs forthwith to the wife fixed at $7,000 ($1,500 for the uncontested divorce proceedings and $5,500 for the ancillary matters).

Appeal by the Defendant husband

On 3 April 2017, the husband, being dissatisfied with some of the orders made, filed a Notice of Appeal against part of my decision, namely the orders set out in paragraphs 7(i), (vii) and (viii) above.

I now set out the reasons for my decision.

Reasons for decision Division of matrimonial assets The shares gifted to the husband

One of the main issues was whether the YS shares which had been given to the husband should be excluded from the asset pool for division. The husband owned a total of 80,000 shares in YS, which had been given to him by his parents. 20,000 shares were given to the husband in 1999, before the marriage, and the remaining 60,000 were given to him in 2012. YS has a paid up share capital of $1,000,000 and the husband is one of only four directors and shareholders. The value of the shares was not disputed, estimated at $3.34 per share, totalling $267,200 for the 80,000 shares³.

Initially, the husband’s case appeared to be that all 80,000 shares in YS were not matrimonial assets and should be excluded from the asset pool. However, the husband’s counsel subsequently confirmed at the hearing on 15 November 2016 that he sought to exclude only the 60,000 shares which had been given to the husband in 2012⁴. His reason was that the value of these shares had not “actually been substantially improved”⁵ between 2012 and 2014, based on the “latest available audited financial statements” of the company.

Pursuant to section 112(10) of the Women’s Charter (Cap. 353) (“the Charter”), “matrimonial asset” is defined as “not includ[ing] any asset (not being a matrimonial home) that has been acquired by one party at any time by gift or inheritance and that has not been substantially improved during the marriage by the other party or by both parties to the marriage”. The Court of Appeal held in Wan Lai Cheng v. Quek Seow Kee and another appeal and another...