WBN v WBO

• Jurisdiction: Singapore
• Judge: Kevin Ho
• Judgment Date: 14 March 2022
• Neutral Citation: [2022] SGFC 27
• Court: Family Court (Singapore)
• Docket Number: Divorce No. 614 of 2020
• Year: 2022
• Published date: 18 March 2022
• Hearing Date: 01 December 2021,13 September 2021,25 August 2021,17 December 2021
• Plaintiff Counsel: Mr Tan Jin Song and Ms Annette Kong (Havelock Law Corporation)
• Defendant Counsel: Mr Augustine Thung (Yeo & Associates LLC)
• Subject Matter: Family law,Ancillary matters,Division of matrimonial assets
• Citation: [2022] SGFC 27

District Judge Kevin Ho: Introduction

These grounds of decision relate to the division of matrimonial assets arising from the divorce of the parties in FC/D 614/2020.

The present case involves a relatively long marriage. The Plaintiff-wife (“Wife”) and the Defendant-husband (“Husband”) married in January 1986 and by the time Interim Judgment was obtained in September 2020, the marriage was 34 years long. The parties have 3 children to the marriage, all of whom are now adults.

At the commencement of the first ancillary matters hearing on 13 September 2021 (“13 September Hearing”), both parties (who were represented by counsel at that time) confirmed to the court that the only matters in dispute are the financial issues, ie. : the division of the parties’ matrimonial assets, including their matrimonial home located at Ang Mo Kio (“G8 Property”), which was purchased in November 2005; and whether the Wife should be awarded maintenance, and if so, how much.

After hearing both counsel’s submission, I delivered my brief oral decision on the matter on 1 December 2021 (“1 December Hearing”). In summary, I ordered that : the Wife be entitled to a specific value of the parties’ pool of matrimonial assets as being her share of what, in my assessment, what would be a just and equitable division of the parties’ assets pursuant to s 112 of the Women’s Charter 1961 (“WC”). based on the aforesaid specified value, the G8 Property is to be sold in the open market with parties having joint conduct of the sale, and for the sale proceeds to be apportioned such that the Wife will receive a portion of the specified value. The remaining portion would be paid by the Husband within a specified period after the sale of the G8 Property.

At the 1 December Hearing, I also informed both parties that a summary of my orders (including the relevant arithmetic calculations as to how I had derived the specific value due to the Wife) would be provided to the parties after the hearing, and that both counsel were at liberty to seek further clarification should there be any errors or omissions in the relevant calculations.

The Husband’s counsel subsequently sought clarification on inter alia an error in the calculation of the Wife’s share of the matrimonial pool as well as to make further arguments on various other matters.

I next saw the Wife’s counsel and the Husband in person (as he had, by then, discharged counsel) on 17 December 2021 (“17 December Hearing”) on the Husband’s request for clarification. It was brought to my attention that there was an arithmetical or typographical error in the court’s calculation on the Wife’s direct financial contributions as well as the calculation of the overall value of the matrimonial pool.

Accordingly, I clarified my earlier orders to reflect the correct values and apportionment of the parties’ matrimonial assets. I will set out the specific clarifications given below.

The Wife has since filed an appeal against my orders (as clarified at the 17 December Hearing) but only in relation to the division of the parties’ matrimonial assets.¹ No appeal was filed against my orders on maintenance.

I set out below my grounds of decision in respect of the division of the parties’ matrimonial assets, which is the subject matter of the Wife’s appeal.

The Parties’ positions

I start by summarising the parties’ positions vis-à-vis the just and equitable division of their matrimonial assets.

In this regard, both parties generally agree that the assets liable for division consist of : the parties’ matrimonial home, ie. the G8 Property; the parties’ insurance policies; and the monies in their respective Central Provident Fund (“CPF”) accounts, their respective bank accounts, and their shares/investments. However, both parties dispute the value to be ascribed to matrimonial home and the Husband’s assets.

With regard to the G8 Property and the Husband’s insurance policies, the dispute arose from the parties’ disagreement on what they believe the said assets are worth (as at the time of the ancillary matters hearing). In this sense, this was a typical disagreement as to the valuation of an asset.

As regards the Husband’s other assets (such as his CPF monies and the monies in his bank accounts), the parties’ dispute as to the appropriate value to be ascribed was two-fold.

First, the Husband argued that part of the monies in his CPF account and/or bank account should be excluded from the matrimonial pool as those monies were either pre-marital assets or were part of an inheritance he had received, and thus were not “matrimonial assets” under s 112(10) of the WC.

Second, the Wife alleges that the Husband had withdrawn substantial sums of money from his bank accounts (amounting to approx. $103,000) without her consent in the period leading up to, and after the commencement of, the divorce proceedings. As such, she asks that the court to “add” these amounts back into the matrimonial pool.

As regards the Wife’s assets, the Husband submitted that the monetary contribution which the Wife had made towards the acquisition of her sister’s property, ie. an apartment located at Cantonment Road (“PD Property”) in 2015, should also be notionally “added” back to the matrimonial asset pool.

In the context of the present case, it is important to set out clearly what the parties’ respective positions were and the nature of dispute as that would have an impact as to which party should bear the burden of proof (at least, in the evidential sense) in respect of his or her assertion.

Finally, apart from the valuation of the matrimonial pool of assets, both parties also disagree on the extent of each party’s direct and indirect contributions to the marriage and what represents a just and equitable division of their matrimonial assets. I will discuss the parties’ respective position on this issue in greater detail below.

Issues to be decided

In summary, the issues which are before the court are as follows : whether the Husband’s assets consist of pre-marital assets or inheritance which should be excluded from the matrimonial pool, and if so, the amount to be so excluded; whether the monies allegedly withdrawn by the Husband prior to, and after, the commencement of divorce proceedings should be added to the matrimonial pool of assets; whether the value of Wife’s monetary contribution to acquisition of her sister’s PD Property should added to the matrimonial pool of assets for the purpose of division; what values should be ascribed to the parties’ assets; and finally, what would be a just and equitable division of the parties’ matrimonial assets.

My Decision Pool of Matrimonial Assets : Pre-Marital Assets and Inheritance

I first address the issue as to whether the Husband’s matrimonial assets included : (i) pre-marital savings or assets; and (ii) an inheritance from his deceased brother’s estate.

It is trite that the definition of a “matrimonial asset” in s 112(10) of the WC excludes assets which were acquired before marriage and assets acquired by gift or inheritance : see for eg., the Court of Appeal’s decision in USB v USA [2020] 2 SLR 588 (“USB v USA”).

That said, it remains important – for both practical and conceptual purposes – to understand the framework in dealing with such assets.

In CLB v CLC [2021] SGHCF 17, the High Court discussed these issues and summarised it as such : for assets acquired before marriage (or “pre-marital assets”), they become matrimonial assets subject to division where there was ordinary usage or enjoyment by both parties or one of more their children (per s 112(10)(a)(i) of the WC), or by substantial improvement by the other party or both parties; and for gifts or inheritance, they become matrimonial assets if there was substantial improvement by the other party (or both parties). Where a gift or inheritance was used to acquire another asset, the new asset may itself become a matrimonial asset if it can be shown that the donee of the gift or inheritance had a “real and unambiguous” intention to treat that asset as a matrimonial asset.

For completeness, I note that in CLB v CLC [2021] SGHC(A) 19 (“CLB (AD)”), the Appellate Division of the High Court (“ADHC”) allowed the appeal against the High Court’s decision (cited above). However, the ADHC’s decision on the legal principles applicable to pre-martial assets and inheritance was consistent with the summary I had set out above.

As regards the issue of the burden of proof, the Court of Appeal in USB v USA held (at [31] and [32]) that : 31 In our judgment, this evidentiary difficulty can be dealt with as a matter of the burden of proof. When a marriage is dissolved, in general all the parties’ assets will be treated as matrimonial assets unless a party is able to prove that any particular asset was either not acquired during the marriage or was acquired through gift or inheritance and is therefore not a matrimonial asset. The party who asserts that an asset is not a matrimonial asset or that only a part of its value should be included in the pool bears the burden of proving this on the balance of probabilities. This rule obviates many difficulties that may arise in the court’s fact-finding exercise and is consistent with the general approach to legal burdens in civil matters. 32 Conversely, we might add, where an asset is prima facie not a matrimonial asset, the burden would lie on the party asserting that it is a matrimonial asset to show how it was transformed. For example, in our recent decision in TQU v TQT [2020] SGCA 8, it was undisputed that a property at Pender Court was a gift from the husband’s father to the husband prior to the marriage (at [50]). The burden then fell on the wife to produce evidence that the property had been used as a matrimonial home and had therefore been transformed into a matrimonial asset, or that she had made...