NI v NJ

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judgment Date: 27 October 2006
• Date: 27 October 2006
• Docket Number: Divorce Petition No 2955 of 2004

[2006] SGHC 198

High Court

V K Rajah J

Divorce Petition No 2955 of 2004

NI

Plaintiff

and

NJ

Defendant

Koh Geok Jen (Jen Koh & Partners) for the petitioner

Jeyabalen (Jeyabalen & Partners) for the respondent.

Lim Keng Hwa v Tan Han Chuah [1996] 3 SLR (R) 536; [1996] 3 SLR 593 (folld)

Quek Lee Tiam v Ho Kim Swee [1995] SGHC 23 (folld)

Tham Khai Meng v Nam Wen Jet Bernadette [1997] 1 SLR (R) 336; [1997] 2 SLR 27 (folld)

Wong Amy v Chua Seng Chuan [1992] 2 SLR (R) 143; [1992] 2 SLR 360 (folld)

Women's Charter (Cap 353, 1997 Rev Ed) ss 114 (2), 132 (consd);ss 112, 114 (1) (a)

Women's Charter (Matrimonial Proceedings) Rules (Cap 353, R 4, 2006 Rev Ed) r 52 (consd)

Family Law–Maintenance–Wife–Respondent-husband past retirement age and security of employment uncertain–Applicable principles when determining appropriate amount of maintenance to award wife–Family Law–Matrimonial assets–Division–Family trust created by respondent-husband for sole benefit of children–Whether trust created with primary object of reducing means to pay maintenance or to deprive petitioner-wife of any rights to trust assets–Applicable principles for determining equitable distribution of assets–Section 132 Women's Charter (Cap 353, 1997 Rev Ed), r 52 Women's Charter (Matrimonial Proceedings) Rules (Cap 353, R 4, 2006 Rev Ed)–Family Law–Matrimonial proceedings–Appropriate order as to costs of ancillary hearing where party awarded costs at hearing of petition behaving unreasonably or inappropriately–Family Law–Women's Charter–Court considering ancillary matters to uncontested divorce–Petitioner-wife insisting on continuing to enjoy expatriate lifestyle without seeking employment–Whether petitioner-wife should have to seek employment to contribute to preserve pre-breakdown lifestyle–Appropriate approach when considering requirement under s 114 (2) Women's Charter regarding placing parties to divorce so far as practical in financial position in which they would have been if marriage had not broken down–Section 114 (2) Women's Charter (Cap 353, 1997 Rev Ed)

The parties were married for seven years and had two young children from the marriage (“the Children”). After marrying the respondent (“husband”), the petitioner (“wife”) stopped working. The wife was granted a decree nisi on the grounds of the husband's unreasonable behaviour. At the time of the hearing of ancillary matters to the divorce, the security of the husband's tenure at his job was uncertain. The husband was past the mandatory retirement age of 60 years at the company he was employed by and his employment could be terminated if and when a suitable replacement was found. The court had to consider the appropriate orders to make as regards maintenance for the wife and the Children, the division of matrimonial assets and costs of proceedings.

Held:

(1) In assessing the maintenance of the wife, regard had to be given to her current earning capacity, assets and all other financial resources. While every case would have to be assessed in its proper context, there was persuasive force in the observations of Lai Kew Chai J in Quek Lee Tiam v Ho Kim Swee [1995] SGHC 23 that the wife had to exert herself, secure a gainful employment, and earn as much as reasonably possible. She should, if able, contribute to preserve her pre-breakdown lifestyle and standard of living and her reasonable contribution would reduce pro tanto the obligations of the husband. It was noteworthy that the wife had made no attempt to seek employment and was entirely dismissive of the notion: at [11].

(2) The wife's insistence that she should continue to enjoy an “expatriate” lifestyle, which incorporated a generous allowance without any effort on her part to seek employment, was plainly unreasonable in the circumstances. One had to take into account the husband's age and the uncertainty of his future employment and income prospects. It bore mentioning that the husband himself had adopted a fairly frugal lifestyle. In fairness to the husband, he should be allowed to put aside some money for his impending retirement: at [14].

(3) Section 114 (2) of the Women's Charter (Cap 353, 1997 Rev Ed) (“the Act”) enjoined the court to endeavour to place the parties, so far as it was practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other. Section 114 (2) had to be applied in a commonsense holistic manner that accorded with and took into account the new realities that followed a failed marriage. The general principles to be applied by the courts in the exercise of its wide discretion and extensive powers to rearrange the finances of the family after termination of the marriage were: (a) adequate provision had to be made to ensure the support and accommodation of the children of the marriage; and (b) provision had to be made to meet the needs of each spouse. At the end of the day, it was the court's “sense of justice” which demanded and obtained a just solution: at [15] and [16].

(4) The division of matrimonial assets was a subject to be approached with a certain latitude; it called for the application of sound discretion rather than a purely rigid or mathematical formulae. All relevant circumstances had to be assessed objectively and holistically. Generally speaking, however, when a marriage ended, a wife was entitled to an equitable share of the assets she had helped to acquire directly or indirectly: at [18].

(5) The family trust created by the husband for the sole benefit of the Children was not created with the primary object of reducing the husband's means to pay maintenance or to deprive the wife of any rights in relation to the trust assets in breach of s 132 of the Act. In any event, the wife did not make a separate application to set aside the disposition in accordance with r 52 of the Women's Charter (Matrimonial Proceedings) Rules (Cap 353, R 4, 2006 Rev Ed) and accordingly, it was not open to her to seek to avoid such a disposition: at [24].

(6) While, generally speaking, the party awarded costs at the hearing of a petition was also entitled to the costs of the ancillary...