Uyp v Uyq

• Jurisdiction: Singapore
• Judge: Debbie Ong J
• Judgment Date: 15 July 2019
• Court: High Court (Singapore)
• Docket Number: Divorce Transferred No 45 of 2017
• Date: 15 July 2019

UYP

and

UYQ

[2019] SGHCF 16

Debbie Ong J

Divorce Transferred No 45 of 2017

High Court (Family Division)

Family Law — Matrimonial assets — Division — Long dual-income marriages — Application of structured approach in ANJ v ANK[2015] 4 SLR 1043 — Section 112 Women's Charter (Cap 353, 2009 Rev Ed)

Held:

(1) The total value of the pool of matrimonial assets was $14,894,190.68: at [36].

(2) The court's power to divide assets was founded on the prevailing ideology of marriage as an equal co-operative partnership of efforts. The court should exercise its discretion in broad strokes, and the division exercise required the fullest recognition of the married partners' different roles and efforts put into the marriage. The broad brush approach, which was the established approach to asset division, did not require nor encourage the meticulous particularisation of each party's respective contributions: at [44] and [45].

(3) In TNL v TNK[2017] 1 SLR 609 (“TNL v TNK”), the Court of Appeal held that the structured approach set out in ANJ v ANK was not applicable to long single-income marriages and observed that the trend of precedents was equality of division. The structured approach continued to apply to dual-income marriages but there was little reason not to incline towards equality in long dual-income marriages in light of the philosophy of marriage as an equal partnership as well as trends in past cases. The length of the marriage was a highly relevant factor. Applying the structured approach in a rigid manner to long dual-income marriages could lead to unfairness as it would seem more advantageous for a spouse who had taken on a heavy homemaking burden not to make any direct financial contribution towards the assets than to earn a smaller income than the other spouse. A wife in a long marriage who juggled her career and homemaking but earned less than her husband would have obtained a lower share of assets than a homemaker wife who would receive an equal share: at [47] to [49] and [53].

(4) In Lock Yeng Fun v Chua Hock Chye[2007] 3 SLR(R) 520, the Court of Appeal held that equality of division was neither a norm nor a starting point because the statutory provision required the court to achieve a just and equitable division. Inclining towards equality was not the same as a presumption of equal division, a norm of equal division, or a strict regime that each party should be entitled to half the assets. It allowed the court to use its discretion to deviate from an exactly equal split, yet upheld the character of marriage and provided guidance to the court. A division beyond the ratio of 60:40 would not be inclining towards equality: at [51] and [52].

(5) Inclining towards equality would be less acceptable if all assets, including pre-marriage assets and gifts received by the parties, were liable to be divided. This was not the position in Singapore, as only the material gains of the marriage were divisible: at [54].

(6) The structured approach was never intended to apply in a rigid manner. It was a useful guide that was aimed at according sufficient recognition to each party's contributions towards the marriage, and avoiding overvaluing or undervaluing indirect contributions. Contributions were not the only factors that determined the proportions of division: at [57], [58] and [59].

(7) When applying the structured approach, the court had to bear in mind that findings on parties' contributions were necessarily impressionistic as it could only have sight of a portion of all that occurred during the marriage, and would not be able to reach with mathematical specificity each party's contributions for the entire marriage. This was especially true for long marriages. Allowing parties to be calculative over every sum contributed throughout their marriage did not sit well with the philosophy of marriage nor with divorce proceedings that endeavoured to support parties towards an amicable resolution: at [62] and [64].

(8) The division exercise dealt only with assets, but there were immeasurable “gains” in a marriage that the court could not divide. The gains included the relationship the parties shared, the life they built together, and their children: at [66].

(9) The evidence both parties tendered on direct contributions was scattered and incomplete, as was only to be expected in a long marriage. Tracing sources of funds through numerous properties bought and sold would have grated against the broad brush approach. The determination of parties' direct contributions was only relevant to the first step in the structured approach. The Wife's direct contributions were more substantial relative to the Husband's as the Wife was responsible for the injection of funds and substantial amount of effort to grow the investments. Using a broad brush approach, the direct contribution ratio was 65:35 in favour of the Wife: at [93], [94] and [96].

(10) Neither party made extensive submissions on indirect contributions. The Wife bore the greater share of managing the home and raising the children, but the Husband could not be said to have been wholly absent in the marriage and had provided for the family. Taking a broad brush approach, the indirect contribution ratio was 70:30 in favour of the Wife: at [100] and [102].

(11) Applying the structured approach, the average ratio would be 67.5:32.5 in favour of the Wife, prior to any adjustments. Considering the facts and circumstances, it was just and equitable to adjust the initial average ratio and divide the assets in the proportion of 60:40 in favour of the Wife. This proportion awarded the Wife 10% more than an equal share given her very substantial efforts in nurturing the children and managing the parties' financial resources for many years. It recognised the contributions of both parties and was also more consistent with the philosophy of marriage as an equal co-operative partnership of efforts. The ratio was just and equitable on the facts of the case, and was at the furthest range of what was probably acceptable as a proportion that inclined towards equality: at [106].

[Observation: The power to “divide” assets lay within the family law regime, and its exercise had to be made in the context of family law principles. A civil trial was markedly different from ancillary matters proceedings. In civil proceedings, where there were gaps in the evidence, a party might not have discharged his or her burden of proof. In contrast, in ancillary matters proceedings, the court was presented with only a fraction of each party's “contribution” to the marriage yet parties sought the court's determination on what was a just division based on parties' contributions in the entire marriage. Had a similar approach as that used in civil matters been taken, the Family Court presented with a 30-year marriage would have had to examine the entire contributions and conduct of each spouse over 30 years for that would be the only way to fully assess what contributions each had made to the marriage. This was an impossible exercise. Neither did such an exercise accord with the aspirations of the family justice system to enable the harmonious resolution of family disputes and for parties to continue family life after divorce in the most dignified manner possible: at [61].]

Case(s) referred to

ANJ v ANK [2015] 4 SLR 1043 (folld)

AZZ v BAA [2016] SGHC 44 (folld)

BUX v BUY [2019] SGHCF 4 (refd)

Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520; [2007] 3 SLR 520 (folld)

Loh Swee Peng v Chan Kui Kok [2015] 3 SLR 1 (folld)

NK v NL [2007] 3 SLR(R) 743; [2007] 3 SLR 743 (folld)

TNC v TND [2016] 3 SLR 1172 (refd)

TNL v TNK [2017] 1 SLR 609 (folld)

TXW v TXX [2017] 4 SLR 799 (refd)

UBM v UBN [2017] 4 SLR 921 (folld)

UJF v UJG [2019] 3 SLR 178 (refd)

UKA v UKB [2018] 4 SLR 779 (refd)

UMU v UMT [2019] 3 SLR 504 (folld)

UNE v UNF [2018] SGHCF 12 (folld)

Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157 (folld)

Facts

The plaintiff (“the Husband”) and the defendant (“the Wife”) were married in 1982 and the interim judgment of divorce was granted in 2017. The parties have two sons born in 1988 and 1992 in this long marriage of nearly 35 years. Both parties worked during the marriage. For the first ten years of the marriage until 1992, the Husband worked as a marine engineer and was away at sea for long periods. Thereafter he was present in Singapore in the children's growing-up years. At the hearing for the ancillary matters, the only issue before the court was the division of matrimonial assets.

Both parties submitted that the structured approach set out in ANJ v ANK[2015] 4 SLR 1043 (“ANJ v ANK”) was applicable in the court's exercise of its power to divide matrimonial assets under s 112 of the Women's Charter (Cap 353, 2009 Rev Ed). The Husband submitted that the court should take a broad brush approach and find an equal direct contribution ratio between the parties because, although the Wife's direct financial contributions outweighed his at face value, her contributions could be traced to rental income and sale proceeds of the jointly-owned properties. On the other hand, the Wife submitted that the court should calculate each parties' direct contributions to each property. As for indirect contributions, the Husband submitted that the court should find an equal indirect contribution ratio while the Wife submitted that the ratio should be 90:10 in her favour.

Legislation referred to

Family Justice Rules 2014 (S 813/2014) rr 42, 81(2), 590

Women's Charter (Cap 353, 1985 Rev Ed) s 106

Women's Charter (Cap 353, 2009 Rev Ed)ss 112, 112(1), 112(2), s 112(10) (consd); s 114(1)

Women's Charter (Amendment) Act 1996 (Act 30 of 1996)

Chettiar Kamalarajan Malaiyandi and Cyril Ting (Rajan Chettiar LLC) for the plaintiff;

Anamah Tan and Rebecca Vathanasin (Ann Tan...