VIW v VIX and VIY

• Jurisdiction: Singapore
• Judge: Jen Koh
• Judgment Date: 08 June 2020
• Neutral Citation: [2020] SGFC 52
• Court: Family Court (Singapore)
• Hearing Date: 28 February 2020,11 February 2020,16 March 2020
• Docket Number: Divorce No. 4325 of 2018
• Plaintiff Counsel: Ms Tan Siew Kim (Kalco Law LLC)
• Defendant Counsel: Ms Beverly Lim and Ms Cheryl Cheong (Gloria James-Civetta & Co)
• Subject Matter: Division of matrimonial assets; spousal maintenance; costs
• Published date: 17 June 2020

District Judge Jen Koh: Background facts

The parties were married in 4 December 2009. They do not have children. The wife is 37 years old and works as an administrative officer. The husband is 36 years old and works as an actuary.

The divorce proceedings were commenced in September 2018. The parties resolved the divorce proceedings to proceed on an uncontested basis and an Interim Judgment was granted in February 2019 on the fact of the husband’s adultery.

The parties could not agree on the length of the marriage.

The husband said that the parties resided separately since June 2018 and he asserted that this was a marriage that subsisted less than 9 years. The wife said it was a marriage that lasted 9 years and 9 months. From the date of marriage to the grant of the Interim Judgment, the marriage subsisted 9 years 2 months. I determine the length of the marriage from the date of the marriage to the date of the separation as that would be the date/period that consortium ended. The marriage therefore lasted about 8 years 6 months.

The ancillary matters were contested and the issues to be determined included: Division of the former matrimonial home, a flat at Ang Mo Kio (“the flat”) Division of matrimonial assets excluding the flat Spousal maintenance Costs of the proceedings.

The parties filed their ancillary matters affidavits, Fact and Position Sheet and Written Submissions. After hearing parties, I made the ancillary matters orders on 16 March 2020. It is against these orders that parties have appealed and I now set out the reasons for my decision.

Operative date to determine the pool of the matrimonial assets

Both parties agreed that the operative date for the determination of the matrimonial pool of assets would be the date of the Interim Judgment: ARY v ARX and another appeal [2016] 2 SLR 686 at [31]; BPC and BPB and another appeal [2019] SGCA 3 at [26].

Operative date to determine the value of the matrimonial assets

The wife said that the value of the matrimonial assets should be the date of the Interim Judgment referring to Yeo Chong Lin v Tay Ang Choo Nancy and another appeal [2011] 2 SLR 1157 at [36]. In the case, the Court of Appeal held that it does not follow there can be only one operative date and that multiple dates are distinctly possible depending on the nature of the assets and the circumstances surrounding the acquisition. The Court of Appeal also held that the adoption of an operative date or dates may not be that critical as compared to arriving at a just and equitable division. The wife did not elaborate her reasons for using the date of the Interim Judgment.

The husband submitted that the operative date for the determination of the values to be the date of the ancillary matters hearing: USA v USB [2019] SGHCF 5 at [33]. However, for the values of bank accounts and CPF accounts, he referred to [35] of the case and submitted that these are unique assets in that their value is tied to the quantum of funds therein and as such these should be valued as the date of the Interim Judgment. For non-monetary assets eg the flat, this should be valued as at the date of the ancillary matters hearing.

The values provided by the parties of their bank accounts and other investment accounts were either February 2019 (date of the Interim Judgment) or in April 2019 the later date being the most current values before they filed their respective affidavit of assets and means. I accepted their values as provided and the parties did not raise an issue of this.

As for the value of the flat, both parties submitted the value to be $320,000 as at April 2019 (the parties’ Fact and Position Sheet). In submissions, the wife said that the valuation as at October 2019 was $270,000. The husband said the flat was valued at $320,000 as at February 2020. Both parties did not conduct a proper valuation of the flat. I will deal with the value of the flat further in these grounds.

On the division of matrimonial assets Pool of assets other than the flat

The wife’s assets were undisputed. The wife submitted that the value of her assets amounted to $363,572.47. The husband agreed with this value.

The parties could not agree on the value of husband’s assets. The wife said that the husband’s assets were at least $395,405.35 plus undisclosed amounts in margin accounts. The husband disagreed as the wife had included 3 disputed sums as set out in s/no 19 of her written submission (PWS) at page 11: Saizen shares amounting to $33,703.30, Ascott shares amounting to $37,507.57 and iREIT amounting to $27,662.34.

Wife’s submission on the husband’s margin accounts, trading accounts, shareholdings etc

In view of their dispute, I examined the evidence and the submissions presented by the parties.

The wife said that the husband had not make full disclosure of his margin accounts. She said that they had similar shareholdings in stocks and REIT (real estate investment trust) because whilst they maintained their finances separate from each other, they discussed their investments. She therefore submitted that his shareholding would be in the region of $138,455.64 (similar to hers of $135,867.67) and not the amount he declared of $34,963 in his CDP account.

In particular, she said that he sold his iREIT shares in October 2017 and dissipated $27,662.34 without informing her. He sold his Ascott shares in September 2018 and dissipated $37,507.57 and after the delisting of Saizen, he received and dissipated $33,703.30. The total dissipated sums amounted to $98,873.21.

The wife submitted that the husband deliberately made unusual repayments of his credit card bills after the divorce papers were served on him in September 2018.

The wife therefore asked for an adverse inference to be drawn against the husband and submitted that minimally, the sum of $98,873.21 (paragraph 16 above) be added back into the pool.

The husband’s reply to the wife’s allegations

The husband said that the wife had been unreasonable during the course of proceedings. As an example, he had furbished his bank statements with the OCBC bank but the wife challenged the format notwithstanding that the bank had changed the format and it was not something within the husband’s control. He also provided statements that he obtained through e-banking services which the wife likewise refused to accept thereby causing him to incur unnecessary expenses to produce the statements in the format that she wanted. He said that he had made disclosures in accordance with her requests and denied that he had not made full and frank disclosures.

He submitted that the wife did not have evidence to substantiate the allegations she made including allegedly huge withdrawals from his bank statements or making unusually large repayments of his credit card bills. He said there were no overpayment and any excess would be carried over to the next billing cycle.

As for the sale of shares, he explained with supporting documents as follows: The iREIT shares were purchased with a $18,000 loan from Citibank in April 2017 to be repaid within 6 months. The total cost of the shares inclusive administrative fees amounted to $27,000 plus $56.17. In October 2017, he sold the shares and the net proceeds of $27,662.34 were deposited into his OCBC account. He repaid the Citibank loan with interest amounting to $18,259.20. The figures as stated showed that he did not make a profit. The documents evidencing the above were exhibited in his affidavit of assets and means at pages 649 to 661 read with pages 60 and 69. The Ascott shares is a margins account and when sold in September 2018, the husband used the sale proceeds of $37,507.57 to repay the margin account of $12,960.09. He then transferred a sum of $24,492.80 into his OCBC account. From this sum, he paid rental arrears of $7,200, purchased Etiqua savings plan of $6,000 in November 2018, paid the wife legal costs of $6,500 in January 2019 and his legal fees of $2,190. The supporting documents were exhibited at pages 579, 582 to 584, 628, 663, 664 of his second ancillary matters affidavit. The Saizen shares bought a first block of these shares for $13,077.16 in February 2015 and a second block for $13,001.97 in July 2015. In March 2016, the shares were delisted and finalized in March/April 2017. The husband received 2 payments of $32,823.65 and $879.65 into his OCBC account and used a sum of $23,748.18 to purchase Starhill Global REIT. The supporting documents were produced at pages 675 and 676 of his second ancillary matters affidavit.

The husband submitted that he had therefore conclusively explained and traced the sale of the shares and the wife’s allegation of a dissipated sum of $98,873.21 was without merit.

Court’s findings of the value of the husband’s shares

Having considered the evidence: I did not accept the value of the iREIT shares to be $27,662.34 as alleged by the wife nor add this amount into the pool of matrimonial assets. The breakdown of the marriage was in June 2018 and there was no other evidence that the husband was dissipating assets and/or hiding his monies from October 2017. The husband’s sale of the iREIT share could not be said to have been contrived as this was an isolated sale. The wife did not point out other alleged dissipation during the period. There was no reason to disbelieve or discredit the husband’s account of the sale and the resultant value as set out in paragraph 21(a) above. There was therefore no value to be attributed to these shares. I also did not accept the value of the Saizen shares at $33,703.30 as alleged by the wife nor add this amount into the pool of matrimonial assets. The husband received the monies in March 2016 and April 2017 from the delistment and the monies less purchase of the Starhill Reit remained in his bank account. The bank balance was included as part of the matrimonial pool. There is no prejudice to the...