WNA v WNB

• Jurisdiction: Singapore
• Judge: Kevin Ho
• Judgment Date: 09 June 2023
• Neutral Citation: [2023] SGFC 14
• Court: Family Court (Singapore)
• Docket Number: Divorce No. 4941 of 2021
• Hearing Date: 29 March 2023,12 May 2023
• Citation: [2023] SGFC 14
• Year: 2023
• Plaintiff Counsel: Mr Foo Ho Chew (M/s HC Law Practice)
• Defendant Counsel: Mr Poh Jun Zhe, Malcus (M/s Chung Ting Fai & Co.)
• Subject Matter: Family law,Ancillary matters,Division of matrimonial assets,Maintenance for wife,Maintenance for Child
• Published date: 17 June 2023

District Judge Kevin Ho: Introduction

These grounds of decision relate to the ancillary matters (“AM”) proceedings in respect of FC/D 4941/2021.

I first heard the parties in March 2023 and delivered my decision, via Registrar’s Notice, in May 2023 (with brief reasons). The Defendant has since filed an appeal, vide. HCF/DCA 49/2023, against my decision. These are my full grounds of decision.

For ease of reference, I will refer to the Plaintiff as the “Husband”, and the Defendant as the “Wife”.

The present case involved an approximately 16-year marriage. The parties married on 2 August 2006 and interim judgment for divorce (“IJ”) was granted on 28 July 2022.¹

The parties have 2 children to the marriage, [N] and [V], who are aged 17 years old and 12 years old, respectively (collectively, the “Children”).

Both parties had reached an agreement for them to share joint custody of the Children with the Wife having care and control. Access arrangements were also agreed between the parties with the specific terms of their agreement recorded in the IJ.

Thus, at the commencement of the AM hearing in March 2023, both counsel confirmed that the AM issues in dispute were as follows: the division of matrimonial assets pursuant to s 112(1) of the Women’s Charter 1961;² and whether maintenance should be paid by the Husband for the Wife and Children, and for how much.

AM Issue 1 : Division of Matrimonial Assets

I now set out below my decision on the aforesaid issues, starting with the division of the parties’ matrimonial assets.

Matrimonial Pool

At the outset, it is important to emphasise that a determination of the appropriate ratio of division of the parties’ assets cannot be carried out without first determining what the parties’ pool of matrimonial assets (“Matrimonial Pool”) consists of.

This issue was particularly important in the present case as the Husband was an undischarged bankrupt and remained one at the time of the AM hearing.³

The impact of the Husband’s bankrupt status

In her written submissions,⁴the Wife submitted that all of the Husband’s sole named assets – including his Housing and Development Board (“HDB”) property in the west of Singapore (“Matrimonial Flat”), the monies in his Central Provident Fund (“CPF”) accounts and his bank accounts – should be included when calculating the total value of the Matrimonial Pool.

The interplay between a divorcing spouse’s bankruptcy and the Family Court’s power to divide matrimonial assets pursuant to s 112 of the Women’s Charter 1961 (“WC”) was discussed by the High Court in AVM v AWH [2015] 4 SLR 1274 (“AVM”), where Coomaraswamy J held as follows (at [109] – [116]):-

The effect of bankruptcy

…

109 Two consequences followed upon the husband being adjudged bankrupt. First, under s 76(1)(c) of the Bankruptcy Act, a statutory moratorium came into force preventing all of the husband’s creditors from pursuing any remedy, action or proceedings against him in respect of any debt provable in his bankruptcy. Second, under s 76(1)(a) of the Bankruptcy Act (Cap 20, 2009 Rev Ed) (“Bankruptcy Act”), the husband’s property vested in the Official Assignee immediately and became divisible amongst his creditors, subject only to the exceptions set out in s 78(2) of the Bankruptcy Act. The only assets of the husband which fall within s 78(2) are the credit balances in his CPF account.

[…]

112 Where a spouse is adjudged bankrupt before the matrimonial assets can be divided under s 112 of the Women’s Charter, the bankruptcy creates a fundamental difficulty. The vesting of the bankrupt spouse’s assets in the Official Assignee under s 76(1)(c) of the Bankruptcy Act prevents a court which is exercising matrimonial jurisdiction from making any order under s 112 which affects the vested assets. That is the case for two reasons. 113 First, s 112 is predicated on title to the matrimonial assets which are to be divided being vested in the spouses. That is no longer the case when a spouse has been adjudicated bankrupt. Subject only to the provisions of s 78(2) of the Bankruptcy Act, the simple position is that the bankrupt spouse no longer owns any matrimonial assets: his interest in those assets is vested in the Official Assignee. That includes the bankrupt spouse’s title to jointly-held matrimonial assets. There is nothing in s 112 which allows the court in its matrimonial jurisdiction to disregard this statutory divesting of the bankrupt spouse’s assets or to engineer a re-vesting of those assets in the bankrupt spouse so that they become available for division under s 112. The general power to set aside a disposition by a husband under s 132 of the Women’s Charter applies only to a disposition by the husband which is voluntary, and not to the disposition which take place by operation of law upon a bankruptcy order being made, even if the husband commenced the bankruptcy proceedings himself: see Woodley v Woodley (No. 2) [1993] 2 FLR 477. 114 The second reason that a bankruptcy order prevents the court from dividing matrimonial assets under s 112 of the Women’s Charter is that the court’s power under that section permits the court to divide matrimonial assets and order the transfer of matrimonial assets only as between the parties to the marriage. The Official Assignee, quite obviously, is not a party to the marriage. The court therefore has no power, under s 112, to affect the Official Assignee’s title to the assets vested in him by operation of law under s 76(1)(a) of the Bankruptcy Act or to order the Official Assignee to transfer or sell any of those assets: In Re Holliday [1981] 1 Ch 405 at 421D per Goff LJ. 115 The court’s powers under s 112 of the Women’s Charter can be exercised against a bankruptcy spouse only in respect of those of his assets which have not vested in the Official Assignee because they are excluded from the vesting under s 76(1)(a) by s 78(2) of the Bankruptcy Act. These assets include those specifically enumerated in s 78(2) of the Bankruptcy Act as well as those protected by other written law. Most notable in the latter category is HDB property, which is protected by s 51(5) of the Housing and Development Act (Cap 129, 2004 Rev Ed), and CPF money, which is protected by s 24(2)(c) of the Central Provident Fund Act (Cap 36, 2013 Rev Ed). 116 With respect to assets which have vested in the Official Assignee, the most that a court can do under s 112 of the Women’s Charter is to take the value of those divested assets into account by notionally adding them back to the pool of matrimonial assets and dividing the enlarged pool in accordance with s 112, but without encroaching on the assets vested in the Official Assignee. That, of course, is no solution where the non-bankrupt spouse lays claim to some or all of the matrimonial assets now vested in the OA or where the bankrupt spouse claims that some of the debts provable in his bankruptcy are matrimonial debts.

[Emphasis added in italics]

In summary, the High Court held that s 76(1)(c) of the now repealed Bankruptcy Act (Cap. 20) automatically vested all of the bankrupt spouse’s assets with the Official Assignee (“OA”) which would then constitute the bankrupt’s estate.⁵ Assets which are generally “protected” include a bankrupt’s HDB property and his CPF monies,⁶ all of which would be exempted from the abovementioned automatic vesting.

As s 112 of the WC gives the Family Court the power to divide matrimonial assets belonging to the parties, assets which have been vested in the OA by the time of the divorce would not form part of the parties’ pool of matrimonial assets liable for division.

In the context of the present case, that meant that only the Matrimonial Flat, the Husband’s CPF account monies and the monies in his bank account with United Overseas Bank fell within the Matrimonial Pool. The monies in this bank account fell within the Matrimonial Pool because the remainder of a bankrupt’s post-bankruptcy monthly income (after deducting the monthly contribution he has to pay to his creditors) would ordinarily not be included in the bankrupt’s estate.⁷

For the reasons set out at [32] below, I was not persuaded that there was an alleged sum of $25,000 which should be deemed to be in an account with DBS bank allegedly held by the Husband, and I therefore did not include this alleged asset. The transaction which the Wife relied on occurred in 2019 after the Husband’s bankruptcy⁸ which meant that any such money would have been part of the bankrupt’s estate and not the Matrimonial Pool.

For completeness, I had determined what assets fell within the Matrimonial Pool by reference to the operative date being the IJ date as neither party sought to argue for a different operative date to be applied.⁹

Valuation of the Matrimonial Pool

I next address the total value of the Matrimonial Pool.

Based on the documents submitted by both parties, the main matrimonial asset was the Matrimonial Flat (which was and remains held in the Husband’s name). The challenge in the present case relates to determining the appropriate value to be ascribed to this asset.

The Husband’s counsel, in his written submissions, used the figure of $680,000.¹⁰ This figure was based on an assertion made in the Husband’s affidavit of assets and means where he claimed that the value of the Matrimonial Flat was $680,000, “as at 2nd July 2022”.¹¹ No clear supporting document was provided to substantiate this figure.

On the other hand, the Wife’s counsel used the figure of $770,000 as the value of the Matrimonial Flat.¹² This figure was based on a value stated in the Wife’s AM Fact and Position Sheet (“DFPS”) filed on 28 March 2022,¹³ months after the parties’ initial AM affidavits had been filed.

It was also not entirely clear whether there remained any outstanding mortgage in respect of the property even though counsel for...