UHG v UHH

• Jurisdiction: Singapore
• Judge: Kathryn Thong
• Judgment Date: 14 November 2017
• Neutral Citation: [2017] SGFC 116
• Court: Family Court (Singapore)
• Docket Number: D 5132 of 2015
• Published date: 24 November 2017
• Year: 2017
• Hearing Date: 28 March 2017,21 July 2017,17 April 2017
• Plaintiff Counsel: Ms Michelle Chen (KhattarWong LLP)
• Defendant Counsel: Mr Boo Moh Cheh (Kurup & Boo)
• Citation: [2017] SGFC 116

District Judge Kathryn Thong:

This was an 11½ -year marriage. Parties were married on 22 August 2004. On 13 November 2015, the Plaintiff filed for divorce and interim judgment was granted on 12 January 2016 based on the Defendant’s unreasonable behaviour. There are no children to the marriage.

The Plaintiff is a 46-year old senior administrative officer at a statutory board drawing a monthly take home salary of $2,850.67. As a Major at the Singapore Armed Forces (“SAF”), the 49-year-old Defendant draws a monthly take-home salary of $9,127.62. He is due to retire on 7 April 2018 and despite his persistent claims that he could only draw down from his retirement fund of around $530,000.00 upon retirement, the evidence proved otherwise.

I ordered that the pool of matrimonial assets be divided in the proportion of 57.5% to the Defendant and 42.5% to the Plaintiff. This included the net proceeds of sale of the matrimonial flat. Parties were to retain all assets in their own name (save for a transfer of $20,000.00 from the Defendant’s CPF Ordinary Account to the Plaintiff’s and where the implementation of the division necessitated otherwise).

I also ordered that the Defendant pay the Plaintiff monthly maintenance of $500.00 for 6 months after which no maintenance would be payable.

The Defendant has appealed against my decision. These grounds of decision set out my reasons for: (i) including the whole of the Defendant’s CPF monies in the asset pool; (ii) including part of the monies in the Defendant’s retirement fund in the asset pool; (iii) the proportion I arrived at for the division of assets and (iv) awarding limited maintenance to the Plaintiff.

The matrimonial pool

Apart from the matrimonial home which was a fully paid up Executive flat in Pasir Ris, parties had bank accounts, CPF accounts and insurance policies between themselves. There was also a second hand Honda Civic which the Defendant had bought under a hire-purchase agreement in December 2015. Parties initially had differing values for their assets; most were eventually resolved by agreement.

But the most vigorous contentions were made by counsel for the Defendant, Mr Boo Moh Cheh, who contended that: (i) parties’ pre-marital CPF were not to be included in the asset pool as parties had accumulated a sizeable amount of CPF monies before they got married; (ii) following from (i), his CPF investments and an AIA insurance policy which the Defendant acquired with his CPF monies, ought to be excluded from the asset pool, and (iii) the monies in the Defendant’s retirement fund – specifically termed the SAF Enhanced SAVER¹ Scheme (“SAF ESS”) – were not to be considered matrimonial assets as they were for the Defendant to transit into a new career. Besides, it was uncertain if he would actually receive these monies.

Plaintiff counsel, Ms Michelle Chen, countered that as parties’ CPF monies were used on the matrimonial home, they would be mixed with the CPF monies accrued during the marriage, and the CPF balances be wholly treated as a matrimonial asset. As for the SAF ESS monies, they were analogous to CPF monies and nothing precluded them from being considered a matrimonial asset.

Separately, the Plaintiff alleged the Defendant had dissipated monies amounting to $458,616.09 which Ms Chen, urged the Court to add back to the asset pool. I deal with these four areas of contention below seriatim.

Pre-marital CPF monies and the Defendant’s CPF investments

It was uncontroverted that the Defendant had joined the SAF as a regular serviceman in 1987 at the age of 19 years old. At the time he married the Plaintiff some 17 years later, he was 36 years old. As for the Plaintiff, there was no objective evidence for Mr Boo’s belief that she had started working in 1988 at the age of 17 years old and started accumulating CPF savings from thereon; he appeared to deduce this from the fact that she had secondary school qualifications. In any event, she was 33 years old when she married so if Mr Boo’s conjecture was correct, she would have worked some 16 years before settling down. He ventured –without supporting evidence- that both parties were then at “the prime of their careers” and hence, the bulk of the monies in parties’ CPF accounts would have been accumulated prior to the marriage. In the round, Mr Boo asked for 40% of the parties’ respective CPF balances to be included in the asset pool. No arithmetical basis was given for the proposed figure of 40%.

I saw no basis to exclude the pre-marital CPF monies particularly when both parties had used their CPF monies to purchase the matrimonial home. To do so would undermine the raison d’ȇtre of section 112(10)(a)(i) of the Women’s Charter (Cap. 353, 2009 Rev Ed). Indeed, in TNC v TND [2017] SGCA 34 (“TNC v TND”) at [35] the Court of Appeal observed:

As the purpose of s112(10)(a)(i) is to expand the pool of matrimonial assets to cover those which the parties have treated as part of their domestic lives together, irrespective of when the same were acquired, the approach taken by the Judge in TXW v TXX commends itself to us as being both principled and flexible. Whilst it would mean that, as the wife here contends, “once a matrimonial asset always a matrimonial asset”, that in itself would not mandate that such an asset has to be divided in exactly the same way as assets acquired during the marriage (what the Judge termed “quintessential matrimonial assets”) would be. A court confronted with assets that have become matrimonial assets because of the operation of s 112(10) would have the discretion to divide it in such manner as may be most equitable bearing in mind the nature of the asset, how it was paid for (ie, whether it was partly paid for during the course of the marriage) and the length of time during which the parties ordinarily used or enjoyed it during the marriage. [own emphasis]

While the Court of Appeal in TNC v TND was concerned with a piece of real property purchased before the marriage, the principles enunciated are in my view, equally applicable to other types of matrimonial assets such as CPF account balances. In essence, once pre-marital property becomes a matrimonial asset by virtue of section 112(10) (a) (i), the Court is still behoved to divide that asset rather than exclude it altogether. The Court in ordering its equitable division would take into account the nature of the asset amongst other things.

On this note, it is worth highlighting that in TNC v TND the Court of Appeal also rejected the appellant’s contention that his full CPF balance had been wrongly included instead of being pro-rated, to cater for the fact that he had been married 13 out of the 28 years he had been working.

First, the Court noted that the appellant had not earned his CPF monies “at an even rate” – his contributions were higher in the second half of his working life, which was during the marriage. Second, there was no detailed evidence of his CPF contributions for each year he was married. In my view, these objections apply with equal force to Mr Boo’s contention that the Defendant’s pre-marital CPF monies be excluded. Besides, even though Mr Boo had obtained the Defendant’s CPF statement of accounts from 2004 to 2016, he did not submit on the quantum to be excluded from the asset pool.

Even if I was wrong to rely on TNC v TND in this manner, the authority Mr Boo relied on did not support his proposition of excluding the pre-marital CPF monies. He had reproduced an extract from The Practitioner’s Library Family And Juvenile Court Practice (Lexis Nexis, 2008) which had in turn, referred to the case of Helena Neo v Long Melvin Anthony [2002] SGHC 162 (“Helena Neo”). The editors therein observed that “[o]n the facts [of Helena Neo], the pre-marital CPF monies in question were a matrimonial asset.” In fact, Helena Neo undermined Mr Boo’s case.

In Helena Neo, the learned Woo Bih Li JC (“Woo JC”) as he then was, had rejected a similar submission made by the husband’s counsel that the pre-marital CPF balance be excluded from the matrimonial pool. He first observed that the authorities relied on by counsel for this proposition was premised on section 106 of the Women’s Charter which had focused the analysis on whether an asset was acquired through the sole or joint effort of parties. However, its successor provision of section 112 had jettisoned this dichotomy.

Second, Woo JC took the view that section 112(10)(a)(i) applied where the parties’ CPF monies were used to purchase matrimonial home. As to counsel’s contention that not all the monies in the husband’s CPF account had been used to purchase the matrimonial home, Woo JC did not think this could be established on the evidence and even then, this argument “might have been effectively countered by the ‘first in, first out’ principle”, though he declined to say more thereon (see [52] and [53] of GD).

I found the approach in Helena Neo apropos to the present case. If one adopted the cut-off date for determining the pre-marital balance as end August 2004, it was clear from the figures in the Defendant’s CPF statement that the pre-marital monies had to be used in the deductions towards the matrimonial home because there were more monies outgoing from his CPF Ordinary Account (“OA”) after end August, than he had as of end August 2004.

Mr Boo also did not seek to establish – unlike the Defendant counsel in Helena Neo – that not all the pre-marital monies were used for the purchase of the matrimonial home. But even if he did, as Woo JC pointed out, this could be countered by the “first in first out” principle, which I understand to be the principle that monies that are first to come in are the first to come out.

Judicial authorities aside, I did not think that as a matter of general policy, pre-marital CPF balances be excluded as a matter of course, particularly when CPF monies have been used towards the purchase...