VYJ v VYK

• Jurisdiction: Singapore
• Judge: Edmund Chew
• Judgment Date: 07 December 2021
• Neutral Citation: [2021] SGFC 125
• Court: Family Court (Singapore)
• Docket Number: Divorce No 5258 of 2018
• Published date: 10 December 2021
• Year: 2021
• Hearing Date: 11 August 2021,25 August 2021
• Plaintiff Counsel: Mr Low Jin Liang (PKWA Law Practice LLC)
• Subject Matter: Family Law,Ancillary matters,Division of matrimonial assets,Prenuptial Agreement,Wife Maintenance
• Citation: [2021] SGFC 125

District Judge Edmund Chew:

This case concerned the ancillary matters following the dissolution of the marriage between the Plaintiff Wife and the Defendant Husband.

Introduction

The parties were married on 8 May 1992 in Sweden. The Wife commenced divorce proceedings on 15 November 2018 and Interim Judgment dissolving the marriage was granted on 24 March 2020. This was a long marriage of about 28 years.

The Wife is 71 years old and is unemployed. Prior to the marriage, the Wife was working full-time as a Warrant Officer in the XXX. Sometime in 1989, she resigned and relocated to Sweden with the Husband. She was a full-time homemaker throughout the marriage, save for a brief period from 2013 to 2018 when she worked as a part-time restaurant assistant.

The Husband is 71 years old and is a retiree. Prior to this, the Husband worked as a Freelance Tour Guide.

Parties have two children born to the marriage, Child A and Child B, who have both attained the age of majority. Child A was born in March 1991 and is now 30 years old, while Child B was born in October 1992 and is now 29 years old. The Husband also has two other children from his previous relationship, Child C and Child D, who were also above 21 years old. Accordingly, the ancillary matters to be determined were the division of matrimonial assets and wife maintenance.

Parties filed the following affidavits:

Wife’s Documents	Husband’s Documents
Affidavit of Assets and Means filed on 8 October 2020 (“W1”)	Affidavit of Assets and Means filed on 16 December 2020 (“H1”)
	Voluntary Affidavit filed on 17 March 2021 (“H2”)
2nd AM Affidavit filed on 29 May 2021 (“W2”)	2nd AM Affidavit filed on 28 May 2021 (“H3”)

At the conclusion of the ancillary matters hearing on 11 August 2021 (the “AM Hearing”), I reserved judgment and subsequently made the following orders on 25 August 2021: The Defendant’s right, title and interest in the matrimonial home at XXX (the “Matrimonial Flat”) shall be transferred to the Plaintiff within 3 months from the date of Final Judgment, with no CPF refunds to be made to the Defendant's CPF account and without cash consideration. The sum of $300,000 withdrawn from POSB Account No. XXX-987 on 15 August 2019 shall be given to the Plaintiff. The Plaintiff shall obtain these sums directly from the children. The Defendant shall pay to the Plaintiff a sum of $324,100 within 3 months from the date of Final Judgment, as the Plaintiff’s share of the matrimonial assets. The Registrar and/or Assistant Registrar of the Family Justice Courts under section 31 of the Family Justice Act (No. 27 of 2014) is empowered to execute, sign, or indorse all necessary documents relating to the Matrimonial Flat on behalf of either Party should either Party fail to do so within seven (7) days of written request being made to the other Party. Parties shall retain all other assets in their sole names. There shall be no wife maintenance for the Plaintiff. Liberty to Apply.

The Husband has appealed against the whole of my decision. I now provide the grounds for my decision on these issues.

Pool of Undisputed Assets

In respect of the division of matrimonial assets, it was undisputed that the following assets in parties’ respective names were to be divided and the values were also undisputed:

Asset	Wife	Husband
CPF Ordinary Account	$2,238.14	$0.00
CPF Medisave Account	$30,413.81	$0.03
CPF Special Account	$511.66	$0.00
CPF Retirement Account	$96,883.11	$0.00
POSB XXX-987 (Joint account with Child A)		$2,874.96
UOB XXX-879		$18.00
POSB XXX-978	$8,576.35
OCBC XXX-781	$52,652.26
Maybank XXX-741	$3,289.29
TOTAL	$194,564.62	$2,892.99

It was also undisputed that the Matrimonial Flat was to be divided. The estimated value of the Matrimonial Flat was $720,000 and there was no outstanding mortgage loan.

There were other assets which were held in the Husband’s name which the Wife argued should be added to the pool of matrimonial assets to be divided. These were: A property in London (the “London Property); A property in the Philippines (the “Philippines Property); Sale proceeds from the Bayshore Condominium sold in April 2019 during the course of these divorce proceedings; and Withdrawals from POSB Account XXX-987.

The Wife also urged me to draw an adverse inference against the Husband for the non-disclosure of the following assets: A cocoa plantation in Philippines (the “Cocoa Plantation”); Two vehicles in Philippines (the “Philippines Vehicles”); A Barclays bank account which was used to receive the rental proceeds from the London Property (the “Barclays Bank Account”); and A Swedish bank account which was used to receive the monthly pension in Sweden (the “Swedish Bank Account”).

The Husband took the position that these assets were not part of the matrimonial pool pursuant to the prenuptial agreement which parties entered into. I therefore first consider the prenuptial agreement.

Prenuptial Agreement

Parties executed the prenuptial agreement on 8 May 1992 in Sweden. This was the same date as the date of marriage. The agreement is in the Swedish language and is a very short one-page document. It states:¹

We, the undersigned, VYJ and VYK, who intend to join in marriage with each other, hereby enter into a prenuptial agreement.

All property we, through heritage, will, gift, own labour, or otherwise acquire, shall remain the property of the spouse who acquires the values, whereas the other spouse does not own any part of that property.

The property, belonging to each of us separately today shall likewise remain separated properties.

Returns on each separate property shall, however, be property, over which the spouse has no right.

In our marriage shall therefore no right to matrimonial assets exist.

According to the Husband, the prenuptial agreement was kept in the Swedish Government Archive and is a public document. The Husband also opined that “the European Countries gives extra importance to these documents especially under the marriage institution”.² However, no expert opinion was tendered to support this contention.

In reliance of this prenuptial agreement, the Husband contends that “any properties acquired by the Defendant in a foreign jurisdiction especially in Europe (in particular the London property) are subject to the terms stated in the Pre-Nuptial Agreement”.³ If the Husband was indeed seeking to rely on the prenuptial agreement, I did not understand why he was taking a different position as that stated in the prenuptial agreement. One cannot say that he was relying on the prenuptial agreement to govern the division of the matrimonial assets, but at the same time choose to interpret the prenuptial agreement in a manner which was inconsistent with the plain language of the agreement.

The Wife’s position was that she did not understand the nature of the document which she signed. She further averred that she “did not even have a basic knowledge” of the Swedish language, and signed the document thinking that it was a document needed for the registration of their marriage in Sweden.⁴ Further to this, the Wife also argued that it was not fair and equitable to strictly uphold the terms of the prenuptial agreement for the following key reasons.⁵ There was no evidence of the validity of the prenuptial agreement. The agreement was signed 26 years ago and parties’ circumstances have changed vastly since then. The terms of the agreement were unconscionable and/or not made at arms’ length, with the terms heavily in favour of the Husband. The agreement was not negotiated between parties with the benefit of legal representation. Parties’ conduct during the course of the marriage was inconsistent with the terms in the agreement.

Unfortunately, neither party was able to shed much light on the circumstances surrounding this prenuptial agreement, the reason why this was entered into and the applicable Swedish law governing this agreement. In fact, neither counsel appeared to have seriously considered what the relevant Swedish law was until I raised it at the AM Hearing.

The Husband simply asserts that the prenuptial was kept with the Swedish Government archive and is a public document, and that European Countries gave extra importance to these documents. However, the Husband was not an expert in Swedish law and I therefore did not consider his statements as speaking to the legal significance of this prenuptial agreement. Insofar as the Husband’s factual evidence goes, the Husband also did not provide much explanation as to how this agreement was drawn up, whether any negotiations were made at arms’ length, and who witnessed the parties signing this document.

From the affidavits, all I can gather is that the Wife moved to Sweden and prior to the marriage, the Husband’s lawyer suggested to parties to sign a prenuptial agreement.

As for the Wife, she asserts that she does not understand Swedish and had no idea what she was signing. Again, there was no further explanation or supporting evidence.

The Law

In the division of matrimonial assets, the court has to order the division between the parties in such proportions as the court thinks just and equitable: section 112(1) of the Women’s Charter. In so doing, the court considers all the circumstances of the case, of which any agreement between the parties made in contemplation of divorce is but one of the relevant factors: section 112(2)(e) of the Women’s Charter. The mere existence of a prenuptial agreement does not in and of itself mean that the court must therefore give effect to the terms of the prenuptial agreement.

In TQ v TR and another appeal [2009] 2 SLR(R) 961 (“TQ v TR...