UKA v UKB

• Jurisdiction: Singapore
• Judge: Debbie Ong J
• Judgment Date: 28 December 2017
• Neutral Citation: [2018] SGHCF 7
• Plaintiff Counsel: Cheong Zhihui Ivan and Chew Wei En (Eversheds Harry Elias LLP)
• Docket Number: Divorce (Transferred) No 522 of 2014
• Date: 28 December 2017
• Hearing Date: 19 July 2017,28 December 2017
• Subject Matter: Division,Matrimonial assets,Family Law
• Year: 2017
• Defendant Counsel: Cavinder Bull SC, Lin Shumin and Madeline Chan (instructed counsel) (Drew & Napier LLC) and Ling Koon Hean David (Ling Das & Partners)
• Court: High Court (Singapore)
• Citation: [2018] SGHCF 7
• Published date: 08 June 2018

Debbie Ong J (delivering the oral judgment of the court):

The Plaintiff is referred to as the “Wife”, and the Defendant is referred to as the “Husband”. The parties were married in October 1986. The Interim Judgment of divorce was granted on 5 August 2014. The Husband moved out of the family home in mid-2012. Theirs was a long marriage of almost 28 years. They have four children, all above the age of majority. The Wife is not seeking maintenance for herself or for any of the children. The only issue concerns the division of the matrimonial assets.

Agreed assets and liabilities

The parties agree that the following assets held in the sole name of the Wife are matrimonial assets with a total value of $452,334:

Asset	Agreed Value ($)
NTUC Insurance Policy	19,004
SingTel Shares	5
CPF Account	433,325
Total	452,334

The parties agree that the following assets held in the sole name of the Husband are matrimonial assets with a total value of $779,617:

Asset	Agreed Value ($)
CPF Account	603,298
OCBC Accounts	32,545
POSB Account	18,031
Shares	8,776
Unit Trusts	104,427
Car	12,540
Total	779,617

Thus the parties agree that the total value of these assets in their names is $1,231,951.

Disputed assets and liabilities Assets and liabilities collectively owned by parties

The parties’ asset of highest value is [QZ] Engineering Pte Ltd (the “Company”), which manufactures and sells air-conditioning ventilation systems and ducts. The Company was incorporated by the parties in December 1986, shortly after their marriage in October 1986. They each hold a 50% share in the Company. The value of this family company submitted by each party is not far from the other; they are as follows:

Asset (Liability)	W’s Value ($)	H’s Value ($)
Company	24,400,000	25,400,000

At a case conference on 11 August 2016, the parties agreed to appoint a joint valuer to value the Company and to abide by the valuation produced by it. RSM Corporate Advisory Pte Ltd, subsequently appointed as the joint valuer, reported that the fair value of 100% of the share capital of the Company as at 30 September 2016 was $26,500,000. This figure of $26,500,000 was calculated on the basis that loans of $2,073,000 allegedly due from the Husband are recoverable by the Company. The joint valuer added that if any part of the $2,073,000 could not be recovered by the Company, the value of the Company (ie, $26,500,000) should be reduced to that extent.

The Wife submits that “any amounts owing by the Husband to the Company should not be taken into consideration when valuing the Company” because “the Company should be the party to decide if it would go after the Husband for the debt”.

The Husband admits owing the Company approximately $790,000. He adds that a further $155,000 is recoverable from the Wife. He submits that the value of the Company should thus be reduced by only $945,000 and not $2,073,000. He submits that the remainder is not recoverable because it had been used for household expenses.

The Company, built up and thus acquired during the marriage, is a matrimonial asset; it does not belong to either the Husband or the Wife exclusively but is liable to be divided upon divorce (see Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520). Just as a transfer of property between spouses does not take such property out of the pool of matrimonial assets, so too a transfer of property between groups of assets. The spouses ultimately own the aggregate of the matrimonial assets (and liabilities) collectively.

It is not disputed that the $2,073,000 has been disbursed by the Company. It is also not disputed that the $2,073,000 has not been returned to the Company. The value of the Company as it stands today in the pool of matrimonial assets should exclude this sum of $2,073,000. However, the proceeds of the $2,073,000 that remain in the hands of the parties will have to be accounted for – I shall address this aspect below when I consider the assets in the possession of the Wife and of the Husband.

I find that the Company has a value of $24,427,000, which is the difference between the joint valuation of $26,500,000 and the disbursement of $2,073,000.

Assets in sole name/possession of Wife

There are nine disputed categories of assets in the sole name of the Wife, including the proceeds of the loan from the Company received by her:

Asset (Liability)	W’s Value ($)	H’s Value ($)
Loan Proceeds from Company	-	155,000
Hillview Property	-	1,800,000
Thomson Property	-	650,000
Cars	-	131,992
OCBC Accounts	-	239,870
POSB Accounts	-	283,156
UOB Account	-	61,241
Citibank Account	-	27,224
Luxury Goods Collection	175,000	2,500,000

I deal first with the proceeds of the loans from the Company that were received by the Wife, and then with the assertion of the Wife that all eight of the remaining disputed assets in her sole name/possession (referred to as the “Ring-fenced Assets”) fall outside the pool of matrimonial assets.

Loan proceeds from Company

The Wife admits to receiving $155,000 from the Company around April 2012 by way of two payment vouchers for $77,500 each, drawn on the Directors’ Drawing Account of the Husband. The Wife submits that the $155,000 should not be included in the pool of matrimonial assets because it represented her “half-share (with interests) of the $300,000 that the [Husband] had caused the [C]ompany to lose” by investing in another company, [HH].

It is not disputed that the $155,000 was received by the Wife. She has not explained how the monies have since been applied. Even if the $155,000 had, as the Wife claims, been paid to her as compensation, it remains a matrimonial asset. I find that the $155,000 is a matrimonial asset that stands to the account of the Wife.

Ring-fenced Assets

The Wife points to a post-nuptial document dated 1 July 2011 (the “1/7/11 Document”) in support of her claim that those assets are excluded from the pool of matrimonial assets. I set out the contents of the 1/7/11 Document, which was signed before two independent witnesses.

Marriage Agreement

I, [Husband], acknowledge on 1st July 2011, that all of the following belongs to [Wife]. In the event of separation or divorce in the future, I shall not pursue any of them. 1. Real estate property · … Hillview [Property] · … Thomson [Property] 2. Car · C180 Mercedes-Benz … · Honda-[Jazz] … 3. Jewellery and branded handbags 4. Apart from the joint account between me and [Wife], I will not go after any other accounts.

I acknowledge and agree to sign this agreement under a clear and good state of mind.

The Wife adds that the Hillview Property and the Thomson Property were held on trust by her for the four children, which trusts (the “Trusts”) had been formed pursuant to the 1/7/11 Document. She argues further that she “had bought over the Husband’s share of the Hillview [P]roperty during the course of the marriage … via an arms-length transaction.”

The Husband submits that the 1/7/11 Document should be accorded little weight, and that the Ring-fenced Assets are subject to division because they had been purchased with funds from the Company. He submits that the 1/7/11 Document had been signed by him under duress. Its terms were also manifestly unfair.

The Husband adds that the Wife had created the Trusts “within weeks of [his] leaving the matrimonial flat”, and that her primary purpose for creating the Trusts was to “deprive [him] of his rights in relation to” the Hillview Property and the Thomson Property. He argues further that his transfer of his share of the Hillview Property to her in 2008 was a sham “to prevent the property from being obtained by [his] creditors.”

It is not disputed that all the Ring-fenced Assets were acquired during the marriage by either or both parties. This position is not changed by the submission of the Wife that some of the monies used to purchase the Ring-fenced Assets represented “income from her side business of buying and selling bags” and her winnings from “str[iking] lottery a number of times as well”. The Wife offers little explanation or documentary evidence to bear these claims out. More importantly, the Wife accepts that “ultimately [she] had bought the [Ring-fenced Assets] with her share of the monies received from the Company”.

Section 112(2)(e) of the Women’s Charter (Cap 353, 2009 Rev Ed) (“WC”) provides that the Court, in exercising its discretion to divide matrimonial assets, must have regard to “any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce”. The Court is not bound to enforce any such agreement, but will determine the weight to ascribe to the agreement considering all the circumstances of the case (TQ v TR and another appeal [2009] 2 SLR(R) 961). The Court will be cognisant of any pressure exerted by one spouse on the other - I quote some relevant considerations from Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur [2014] 3 SLR 1284 at [53], citing Ormrod LJ made in the context of a separation agreement in Edgar v Edgar [1980] 1 WLR 1410 at 1417:

… Under pressure by one side, exploitation of a dominant position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of circumstances, unforeseen or overlooked at the time of making the agreement, are all relevant to the question of justice between the parties …

In AQS v AQR [2012] SGCA 3, the husband (but not the wife) had signed a memorandum in the following terms:

I, [the husband], hereby certify that, in case of...