UVZ v UWA

• Jurisdiction: Singapore
• Judge: Jinny Tan
• Judgment Date: 29 April 2019
• Neutral Citation: [2019] SGFC 51
• Court: Family Court (Singapore)
• Docket Number: Divorce No. 1193 of 2018
• Published date: 04 May 2019
• Year: 2019
• Hearing Date: 08 March 2019,01 April 2019
• Plaintiff Counsel: Plaintiff Counsel: Thian Wen Yi [Eversheds Harry Elias LLP] -
• Defendant Counsel: Defendant Counsel: Jispal Singh [Jispal Law Chambers] -
• Subject Matter: Family law,Matrimonial assets,Division,Maintenance of children
• Citation: [2019] SGFC 51

District Judge Jinny Tan: Introduction

The Plaintiff (Husband) and the Defendant (Wife) in these proceedings were married on xxx 2003. They have two children, who are 13 and 11 years old. The Husband is 41+ years old and the Wife is 40+ years old.

On 16 March 2018, the Husband commenced these proceedings on the basis that parties have lived apart for a continuous period of at least 4 years preceding the filing of the Writ. Based on the Statement of Particulars filed, the parties started living apart since 2009 when the Wife moved out of the matrimonial property and went back to Indonesia. The Husband remained in Singapore. The Wife did not contest the divorce proceedings and Interim Judgment was obtained on 21 May 2018.

On 14 June 2018, the parties were able to come to an agreement in relation to the children’s issues and recorded a consent order. They agreed that parties shall have joint custody of the children, with sole care and control to be granted to the Husband. Singapore was agreed to be the principal place of residence of the children. In the consent order, parties also came to an agreement on the specific access arrangements.

The other ancillary matters, relating to the division of assets and maintenance for the wife and children were adjourned for hearing before this Court.

At the hearing, the Wife’s counsel informed the Court that she was not pursuing the claim for maintenance for herself.

Orders made

After hearing the parties’ submissions, and after considering all the evidence before me, I made the following orders: The Wife to transfer her share interest and title of the matrimonial property to the Husband, with the Husband paying her the sum equivalent to 12% of the net value of the matrimonial home. The transfer was to take place within 4 months from today. Parties were to obtain a joint valuation of the property. Costs of the valuation to be borne equally. In the meantime, from now until the transfer, the Husband was to be responsible for all the property related expenses, including the mortgage. The Husband was also to be responsible to pay for the costs and expenses of the transfer. The Wife’s 12% share would be calculated based on the valuation less $262,370 (which was the outstanding loan as at 13 July 2018). If the Husband did not wish to proceed with the transfer for whatever reason, the Husband must inform the Wife of his intention within 1 month. Then, the property was to be sold within 9 months. The sale proceeds, after payment of outstanding loan and expenses relating to the sale, was to be divided in the proportion 88% to the Husband and 12% to the Wife, and parties shall be responsible for their own CPF refunds. In the meantime, from now until the sale, the Husband was to be responsible for all the property related expenses, including the mortgage. Apart from the above, each to keep own assets. By consent, no maintenance is payable by the Husband to the Wife. The Wife shall pay the sum of S$1,450/month for the maintenance of the two children from 15 April 2019 and thereafter the 15th day of each month. This sum was to be deposited into the Husband’s designated bank account. Each party to bear own costs. Liberty to apply.

Appeal

Both parties have now appealed against part of my decision. The Wife’s appeal relates to the orders on the division of assets and the maintenance payable by her for the children. The Husband’s appeal relates to the orders made on the division of assets.

I now give my reasons for the decision I made.

The parties

The Husband is 41+ years old, and he works as a consultant in a software company. He earns a monthly gross income of $8,772.83¹.

The Wife is 40+ years old and she is a Manager, assisting her father in running a garment business in Indonesia. Her average monthly income is about S$6,500².

They have two children, one born in 2005 and another 2007.

The marriage and the proceedings thus far

The parties were married on xxx 2003.

It is not disputed that since 2009, the Wife moved out of the matrimonial home and back to her parents’ home in Indonesia. She has been residing there ever since.

The children initially stayed with the Wife in Indonesia when she went back. However, sometime in 2010/2011, the children returned to Singapore. Since then, the children had been in the care of the Husband, and during school holidays, the children would go to Indonesia to spend time with the Wife.

On 16 March 2018, the Husband commenced these proceedings on the basis that parties have lived apart for a continuous period of at least 4 years preceding the filing of the Writ, since 2009. Interim Judgment was obtained on 21 May 2018.

Division of assets Just and equitable division of matrimonial assets

The Court of Appeal in ANJ v ANK³ set out a structured approach (at [17]–[30]) to determine a just and equitable division of matrimonial assets. This approach may be summarised as follows (see ANJ v ANK at [22]–[26], [28]; Twiss, Christopher James Hans v Twiss, Yvonne Prendergast⁴ at [17]): express as a ratio the parties’ direct contributions relative to each other, having regard to the amount of financial contribution each party made towards the acquisition or improvement of the matrimonial assets; express as a second ratio the parties’ indirect contributions relative to each other, having regard to both financial and non-financial contributions; and derive the parties’ overall contributions relative to each other by taking an average of the two ratios above (the derived ratio shall hereinafter be referred to as the “average ratio”), keeping in mind that, depending on the circumstances of each case, the direct and indirect contributions may not be accorded equal weight, and one of the two ratios may be accorded more significance than the other. Adjustments may also be made taking into consideration other relevant factors under ss 112 or 114(1) of the Women’s Charter (Cap 353, 2009 Rev Ed) (“WC”).

Pool of matrimonial assets

There is generally no dispute on the pool of matrimonial assets, save for two issues:- Whether the Husband’s liabilities should be taken into account in the pool of matrimonial assets; and What is the operative date for determining the pool of matrimonial assets?

Should the Husband’s liabilities be taken into account in the pool of matrimonial assets?

In his Affidavit of Assets and Means, the Husband declared his liabilities⁵ (apart from the housing loan):-

OCBC Cash Line	$6,609.91
UOB Line of Credit	$27,200
DBS Credit cards	$44,881.09

In relation to the OCBC Cash Line, he exhibited a document showing the balance as at 3 August 2018 being $6,609.91⁶. In relation to his UOB Line of Credit, he only exhibited the agreement with UOB⁷. He exhibited his DBS credit card statements for February to July 2018⁸.

In his Affidavit of Assets and Means, he gave the following explanation as to how these were incurred⁹:- OCBC Cashline – his income was not sufficient to support the family needs. UOB Line of Credit – he had accrued a lot of debts as his income is not sufficient to support the family needs, and this line of credit was a consolidation of his previous debts with UOB. DBS Credit cards – his income was not sufficient to pay for the household and children’s expenses, as the Wife had not paid any maintenance. He therefore borrowed on his credit card statements to sustain his family’s expenses. There were recent transactions from Australia, Indonesia, China from his business trips but those were claimable. The debt mainly accrued from 2017 as the children had tuition and he bought tickets for them to go back to Indonesia.

The Wife’s response in her 2nd Affidavit, was simply a bare denial, and she added that if the Husband disregarded financial prudence and continue to live beyond his means, she should not be made to pay the price¹⁰.

The Wife had the benefit of perusing the documents exhibited by the Husband in his Affidavit of Assets and Means, but did not raise any questions in relation to the transactions in his credit card statements or the use of his credit facilities.

In fact, the Wife took out an application for discovery on 11 October 2018 and none of the items asked for related to the transactions that the Husband had charged to his credit card, or the use of the credit facilities.

Even in the Submissions, the Wife’s case is that if the Husband had incurred debts as a result of financial imprudence or mismanagement or living beyond his means, she should not be made to bear the burden¹¹.

At the ancillary matter hearing, the Wife’s counsel picked on certain items in the Husband’s DBS credit card statements, and pointed out that there were transactions for hotels, gym, travel, jewellery, clothes and alleged that these were not for the children. These were never raised by the Wife before, and in fact, to raise it only at the hearing, it is not fair to the Husband who has not been given an opportunity to answer to these allegations.

The Wife’s counsel submitted that the Husband has the burden to show that the transactions were necessary and were indeed for the children. While it may be so, the fact is that the Wife should in the first place, raise an issue about these transactions so that the Husband would know that this is an issue that he has to meet.

The Husband exhibited his credit card statements, and in those statements, there are many transactions. If the Wife’s counsel’s submission is correct, this would have meant that every Affidavit of Assets filed by every party in divorce proceedings would run into hundreds or even thousands of pages because the party filing the affidavit would have to show each and every transaction was for the family. This is not the intent of the courts for parties to file thick voluminous affidavits. It would not only take a lot of effort and time to...