USA v USB

• Jurisdiction: Singapore
• Judge: Tan Puay Boon JC
• Judgment Date: 29 January 2019
• Neutral Citation: [2019] SGHCF 5
• Plaintiff Counsel: Yap Teong Liang and Tan Hui Qing (M/s T L Yap Law Chambers LLC)
• Docket Number: Divorce (Transferred) No 3278 of 2016
• Date: 29 January 2019
• Hearing Date: 30 May 2018,26 July 2018,21 August 2018
• Subject Matter: Division,Matrimonial assets,Maintenance,Family Law
• Year: 2019
• Defendant Counsel: Josephine Chong and Esther Yeo (M/s Josephine Chong LLC)
• Court: High Court (Singapore)
• Citation: [2019] SGHCF 5
• Published date: 05 February 2019

Tan Puay Boon JC: Background

This judgment relates to ancillary matters arising from the breakdown of a marriage between the plaintiff (“the Wife”) and the defendant (“the Husband”). The Wife, who was born in 1967, and the Husband, who was born in 1952, were married in February 2011. Prior to their marriage, the parties cohabited for a period of about 12 years beginning in 1999. The Wife commenced divorce proceedings in July 2016 and obtained interim judgment on 16 August 2016. Thus, the formal length of the marriage was about five and a half years.

The Husband is presently 66 years old and is employed as a lawyer. The Wife is 52 years old and is a real estate salesperson who has attained a senior position within a major real estate agency. There are no children of the marriage. However, during the relationship, the parties lived with the Wife’s two children from a previous marriage: a son, [P], who was born in 1991; and a daughter, [Q], who was born in 1994. [P] and [Q] were eight and five years old respectively at the time the parties began cohabiting, and 20 and 17 years old respectively at the time of the marriage.

The issues in dispute between the parties broadly relate to the division of matrimonial assets and maintenance. With regard to the latter, in this case, it is the Husband who seeks maintenance on the basis that he is an “incapacitated husband” within the meaning of s 113(1) of the Women’s Charter (Cap 353, 2009 Rev Ed).

Matrimonial assets

The parties have taken sharply diverging positions over (a) the identity of the assets within the matrimonial pool, (b) the value of those assets and (c) the appropriate ratio for division.

Before I turn to these issues, I address the preliminary matter of which of two possible approaches I shall apply in dividing the matrimonial assets – the global assessment methodology or the classification methodology. The former methodology, which is more commonly used (see TNC v TND [2016] 3 SLR 1172 (“TNC v TND”) at [39]), consists of four phases: First, the court identifies and pools all the matrimonial assets; secondly, the court assesses the net value of the pool of assets; thirdly, the court determines a just and equitable division of the assets; and fourthly, the court decides on the most convenient way to achieve these proportions of division (see NK v NL [2007] 3 SLR(R) 743 (“NK v NL”) at [31]). As for the latter classification methodology, the court divides the matrimonial assets into various classes and then separately considers the parties’ contributions in relation to each class of assets (NK v NL at [32]).

As noted by the Court of Appeal in NK v NL at [33] and [35], both approaches are consistent with the legislative framework under s 112 of the Women’s Charter, and in most cases, both approaches will lead to the same result. However, the classification approach is generally appropriate where there are multiple classes of assets which “lend themselves to classification” (see AYQ v AYR [2013] 1 SLR 476 at [19]) and where parties have made different contributions in relation to each class (NK v NL at [35]). The classification methodology may also be appropriate where certain assets are “not wholly the gains of the co-operative partnership of efforts that the marriage represents” (see TNC v TND at [40]).

In the present case, I consider that it is appropriate to adopt the global assessment methodology rather than the classification methodology for the following reasons: First, the assets do not lend themselves readily to the classification approach as there is no clearly distinguishable asset or group of assets in which the proportion of the parties’ respective contributions is different from the other assets. It will be seen that across the various matrimonial assets, the Wife has generally made greater direct contributions. Secondly, the parties have made their submissions on the basis that the global assessment methodology would be employed. Thirdly, while it might be said that some of the assets which were purchased prior to the marriage are “not wholly the gains of the co-operative partnership of efforts that the marriage represents” (see [15]–[20] below), this will be addressed by excluding from the pool of assets a pro rata value corresponding to the amount which was paid for prior to the marriage (see [70]–[80] below).

I shall discuss the identity and value of the matrimonial assets, and the appropriate ratio for division in turn.

Identifying the matrimonial assets

The Wife owns a total of 17 residential and non-residential properties, some of which are held through companies of which the Wife is a sole shareholder. As a preliminary matter, it should be noted that for the purpose of these proceedings, the parties have agreed that there is no need to value the holding companies and the value to be ascribed to these companies shall be taken as the value of the properties owned by each respective company, if any.

Of the 17 real properties owned by the Wife, it is common ground between the parties that the following seven properties which were purchased during the marriage should be included in the pool of matrimonial assets: A property at Telok Kurau Road (“the Telok Kurau Property”); A condominium unit on Fraser Street (“the Fraser Street Property”); Two units at Bukit Batok West Avenue 8 (“Bukit Batok Property A” and “Bukit Batok Property B” respectively); Two units at Alexandra Road (“Alexandra Property A and Alexandra Property B” respectively); and A condominium unit at Changi Road (“the Changi Road Property”).

In addition, the parties also agree that a property at Sunrise Close (“the Sunrise Close Property”) should be included in the pool of matrimonial assets because, while it was purchased by the Wife before the marriage, it was used by the parties as their matrimonial home.

Assets purchased before the marriage

The main point in dispute relates to whether the following nine properties, which were purchased by the Wife before the marriage (“the Pre-Marriage Properties”), should be included in the pool of matrimonial assets: A unit at Bedok North Street 3 (“the Bedok North Property”); Two units at Telok Blangah Drive (“Telok Blangah Property A” and “Telok Blangah Property B” respectively); A unit at Compassvale Bow (“the Compassvale Property”); A unit at Marina Boulevard in which the Wife has a one-third share (“the Marina Boulevard Property”); Two units at Robertson Quay (“Robertson Quay Property A” and “Robertson Quay Property B” respectively); A property at Woodleigh Close (“the Woodleigh Property”); and A property at Leedon Heights (“the Leedon Property”). By way of interjection, I note that the Husband has suggested that Robertson Quay Property B, the Leedon Property and the Woodleigh Property were purchased or acquired after the marriage because the transfer of title for these properties was only registered after the marriage.¹ The fact, however, is that the sale and purchase agreements in respect of these properties were entered into before the marriage, and partial payments (such as option fees and deposits) were also made prior to the marriage.² Counsel for the Husband have recognised this in stating, in their written submissions, that:³

[I]n respect of [the Leedon Property and the Woodleigh Property], [the Husband] had used the date of registration of the instrument of transfer. We however acknowledge that the sale and purchase agreements were signed before the registration of the marriage and they thus fall under the rubric of the disputed assets. [emphasis in original]

The same reasoning applies to Robertson Quay Property B. I have thus treated these properties as assets purchased prior to the marriage, and reject the Husband’s suggested approach of taking the date of registration of the transfer as the reference point. That approach would have been inconsistent with the Husband’s own position that “acquisition” of these assets was taking place as long as payments on these properties were being made (see [14]–[15] below).

The Wife takes the position that the Pre-Marriage Properties are not matrimonial assets within the meaning of s 112(10) of the Women’s Charter.⁴ She submits that these were assets acquired before the marriage and, pursuant to s 112(10)(a), such assets only constitute matrimonial assets if they were ordinarily used or enjoyed by the parties while residing together within the meaning of s 112(10)(a)(i), or if they were substantially improved during the marriage by the Husband or by both parties within the meaning of s 112(10)(a)(ii) of the Women’s Charter. The Wife contends that neither s 112(10)(a)(i) nor s 112(10)(a)(ii) are applicable to the Pre-Marriage Properties, and that they should thus be excluded from division. The Wife further stresses that the Husband did not contribute financially towards the acquisition of these Pre-Marriage Properties, and that she had assumed sole responsibility for the debt which she incurred to finance the purchase of these properties. She also submits that the Husband has “all along distanced himself from [her] property investments”.⁵

The Husband argues that although these Pre-Marriage Properties were purchased before the marriage, they were acquired during the marriage within the meaning of s 112(10)(b) of the Women’s Charter. This is because the Wife had continued to pay mortgage instalments for these properties during the marriage. In this regard, the Husband cites BHN v BHO [2013] SGHC 91 (“BHN v BHO”) and THL v THM [2015] SGHCF 11 (“THL v THM”) as authorities for the proposition that a property purchased prior to the marriage may constitute an asset “acquired during the marriage” where instalments continue to be paid during the marriage. In addition, the Husband argues that Robertson Quay Properties A and B, as well as the Compassvale Property, are matrimonial assets because they...