UOC v UOD

• Jurisdiction: Singapore
• Judge: Lim Keng Yeow
• Judgment Date: 28 August 2018
• Neutral Citation: [2018] SGFC 73
• Court: Family Court (Singapore)
• Docket Number: Divorce No. 76 of 2017
• Year: 2018
• Published date: 04 September 2018
• Hearing Date: 02 May 2018,16 May 2018
• Plaintiff Counsel: Ms Winnifred Gomez (M/S Gomez & Vasu LLC)
• Defendant Counsel: Mr A Tamilselvam (Subra TT Law LLC)
• Subject Matter: Ancillary Matters,Division of Assets,Maintenance for ex-wife
• Citation: [2018] SGFC 73

District Judge Lim Keng Yeow: INTRODUCTION

This is an appeal by the Defendant Wife against all of the ancillary orders which I made in respect of the divorce between the parties.

The parties got married in June 1999, some 18 years prior to the Interim Judgment. They were then in their late forties and it was the second marriage for both of them. The parties had no children together, although the Plaintiff Husband’s three children from a previous marriage lived with the parties for some time after their marriage.

Given their circumstances, the orders that were sought related only to two areas: (i) the division of matrimonial assets, and (ii) maintenance for the Defendant. I will address the division of matrimonial assets first.

B. DIVISION OF MATRIMONIAL ASSETS

The first issue to be determined is what is to be included as part of the assets pool.

The pool of matrimonial assets

The parties owned a HDB flat jointly and each had other assets in their sole ownership. The main issue of contention as to what belonged within the pool related to Central Provident Fund (“CPF”) monies amounting to $250,000 withdrawn by the Plaintiff Husband (“the Husband”) between 2008 to 2014 in the course of their marriage. The Defendant contended that this amount should not have been taken out of the asset pool and must now be added back to it.

The Plaintiff asserted that the amounts were withdrawn over the period of time substantially for the purpose of acquiring other assets, being assets that are now treated as being part of the pool. Hence, to add $250,000 would amount to double-counting of the sum of money.

In addition, the Plaintiff contended that, in any event, inclusion of these amounts should not be required on account of what was enunciated in TNL v TNK [2017] SGCA 15 (“TNL”), at [24]. Essentially, the Court of Appeal held that where substantial sums are expended by one spouse during the period where divorce proceedings were imminent or after interim judgment but before the ancillaries were concluded, such sums should be accounted for and returned to the asset pool if the other spouse is considered to have at least a putative interest in it and had not consented to the expenditure. The Plaintiff argued that the $250,000 was not withdrawn when proceedings were imminent and hence full accounting is not necessary.

The Defendant objected to this, contending that what was articulated in TNL was inapplicable on our facts as the Court of Appeal was addressing the issue of monies in a joint account held by both husband and wife.

In my view, the objection was not tenable. Nothing really turned on whether we are dealing with jointly or individually-held monies. In any marriage, even in short ones, it will always be impossible to require the accounting of all sums expended or withdrawn by either party. Against that reality, the chief concern of the Court of Appeal was that it was where a party carries out pre-emptive dissipation or interring of substantial sums in contemplation of divorce proceedings that the party must account for them (where these are monies which the other party has at least a putative interest in). It was clear to me that the principle was unassailable and it ought to apply.

On the facts of the case before me, the withdrawals were spread out over many years and started as far back as 2008. Most of them obviously occurred a considerable length of time before divorce proceedings were commenced. Even the last withdrawal took place more than two years prior to the filing of divorce papers. The withdrawals could not be regarded as being carried out when divorce proceedings were “imminent”. Beyond the length of time per se, there was also nothing to indicate that any of these withdrawals were made in contemplation of divorce.

In the circumstances, I saw no reason to require the inclusion of these sums in the pool of assets. In this regard, I noted also the case of UBM v UBN [2017] 4 SLR 921 at [15], where even a withdrawal by the Husband of $350,000 that could not be accounted for did not result in its inclusion in the pool of assets, as there was no indication that the Husband had sought wilfully to conceal his assets.

For completeness, I mention that I did find possible indications that some of the withdrawn sums were used to acquire assets which have now been included in the asset pool (as contended for by the Plaintiff). However, this was not necessarily established in respect of all the withdrawals. In any event, this was immaterial given my decision not to include the withdrawn sums to the pool in light of my other findings above.

Having concluded that the withdrawals amounting to $250,000 need not be added to the pool of assets, the only remaining issue in dispute was the valuation of the matrimonial home. The parties both submitted valuations that differed by $28,000. I decided to take the midpoint of both parties’ valuations to be the value of the matrimonial home. There was no real dispute over other items.

The matrimonial assets are therefore as shown in the Table below:

ASSETS	VALUE ($)
Joint Assets
1	Matrimonial home	454,000.00
Subtotal	454,000.00
Plaintiff’s assets
1	Bank or investment accounts	235,517.66
2	Shares	48,197.96
3	Insurance policy	37,119.00
4	CPF accounts	95,748.80
5	Car	12,000.00
Subtotal	428,583.42
Defendant’s assets
1	CPF accounts	18,790.48
Subtotal	18,790.48
Grand total	901,373.90

The approach to be taken

The issue arose as to whether the structured approach as set out in ANJ v ANK [2015] SGCA 1043 (“ANJ”) is applicable in this case. The Plaintiff contended that the approach (the “ANJ approach”) remains applicable in spite of certain pertinent remarks in TNL. The Defendant argued otherwise, submitting that the division ought to be decided purely on the basis of precedent cases.

The Court of Appeal in TNL indicated that the approach is not to be applied for single income marriages. This arose from the concern that if financial contributions were considered at both stages of the approach, that would prejudice the non-working party.

A single income marriage?

I first address the question as to whether the case before me involved a single income marriage. The Defendant argued that it was so, and the Plaintiff contended otherwise.

There was nothing to indicate that the Defendant earned significant amounts of money, whether before or at any point during the marriage. But it was also not disputed that she did work in the course of the marriage. Beyond that, I found that what she did earn could not be regarded as negligible in comparison with the Plaintiff’s basic monthly income of $3,388.04. I drew that inference from facts which either appeared in the Defendant’s own affidavits or which she did not dispute.

Firstly, in her second affidavit filed ahead of the ancillaries hearing (para 20), the Defendant herself contended that from 1999 and throughout the marriage, she did not receive any allowance from the Plaintiff for her own expenses. After the children got married, she supported herself fully even in respect of her own groceries. Even if there were indeed times where she had to borrow money (as she claimed), this could not have been on an ongoing basis as that would have been unsustainable. Her assertions were obviously that she could not rely on handouts from the Plaintiff but managed largely through her own means. If she was able to do so over the years, she could hardly contend that this was a single income marriage.

Secondly, it was not disputed that the Defendant was able to earn a salary of $1,100 per month from Aug 2014 to April 2015 as a supervisor at a landscaping company. While this may not be a very large sum, it did amount to one-third of the Plaintiff’s gross monthly income and did indicate her earning capacity.

Thirdly, the Defendant also received Workfare Income Supplement (“WIS”) payments right up to February 2017. This indicated that she was in active employment at least until then, at the age of 64.

The Defendant’s disclosure as to what she did do and her sources of income over the years was hardly generous, with the result that we have few details of her employment. Nonetheless, on the basis of the above, I did not find that this was a single income marriage, and hence nothing prevented the application of the ANJ approach.

Adopting the principles and spirit of the ANJ approach

Even if I were wrong in relation to the findings concerning the Defendant’s income, it must be noted why it was expressed in TNL was that the ANJ approach should not be applied in single income marriages. The Court of Appeal was concerned that if financial contributions were considered at both stages of the approach, this would prejudice the non-working party. However, might the basic framework and structure of the approach remain useful? Could the principles of the approach be applied in a manner that does not prejudice single income households?

There is case authority to suggest that even for what may appear to be single income households, the spirit and structure of the ANJ approach may remain useful: UBM, at [68]-[69]. Care has to be taken, however, not to place excessive weight on financial contributions to the prejudice of the party that was able to contribute less, and the court has to fully accord the non-financial contributions their proper weight.

Conclusion

For the above two reasons, I saw no need to completely disregard the ANJ approach. Although I found this not to be a single income marriage, I exercised care in how I applied the approach, ensuring that financial contributions are not considered at both stages to the...