Wong Kien Keong v Khoo Hoon Eng

JurisdictionSingapore
Judgment Date20 December 2013
Date20 December 2013
Docket NumberDivorce Transferred No 1446 of 2006
CourtHigh Court (Singapore)
Wong Kien Keong
Plaintiff
and
Khoo Hoon Eng
Defendant

Belinda Ang Saw Ean J

Divorce Transferred No 1446 of 2006

High Court

Family Law—Matrimonial assets—Deed of separation—Whether weight should be accorded to deed of separation in division of matrimonial assets—Whether deed of separation was fair and equitable—Section 112 (2) Women's Charter (Cap 353, 1997 Rev Ed)

Family Law—Matrimonial assets—Division

The plaintiff husband (‘the Plaintiff’) was a lawyer while the defendant wife (‘the Defendant’) was an associate professor. Parties divorced after a marriage of more than 28 years. On 12 March 2003, the Defendant moved out of the matrimonial home (‘the Leonie Hill property’) to another property. Shortly thereafter on 28 March 2003, parties signed a deed of separation (‘the Deed’), and divorced three years later. The decree nisi of 28 May 2006 was made absolute on 13 May 2011, before ancillary proceedings were completed.

The Deed provided for the distribution of some matrimonial assets to the Plaintiff and the Defendant. It also provided for the transfer of the Leonie Hill property to the Plaintiff, a fixed term deposit and an annual payment of a sum of money by the Plaintiff to the Defendant. All assets and bank accounts held and all liabilities borne solely in the name of each party were to be owned or borne legally and beneficially by each party. The Defendant applied to have the Deed set aside but this was dismissed in an earlier judgment.

At the ancillaries hearing, the Plaintiff argued that the Deed should be given full weight when dividing the assets such that the terms of the Deed should be adopted in the court orders. According to the Plaintiff's expert, the Defendant would be receiving 44% under the Deed which would be a fair and equitable division under the Women's Charter (Cap 353, 1997 Rev Ed) (‘the Charter’). On the other hand, the Defendant argued that a fair and equitable division would be 60% of all immovable matrimonial assets and that she only received 18% of all the matrimonial assets under the Deed. The disparity in the calculations was due to the size of the pool of assets and the valuation dates of the assets alleged by parties.

Both parties produced reports to particularise the pool and value of the assets subject to division under the Deed. There were four main components that constituted the entire portfolio of assets under the Deed: first, the immovable properties under the Deed (‘the Properties’); second, an alleged S$3.4 m in some of the bank accounts and investments portfolios that were not disputed to be matrimonial assets (‘the Contested Accounts’); third, the fixed term deposit which parties did not contest and fourth, the remaining accounts that included shares and unit trusts in Singapore and overseas, as well as the rest of the matrimonial assets which parties did not contest either (‘the Uncontested Assets’).

The Defendant complained that some assets were excluded from the Deed and sought to add them into the pool of matrimonial assets. She also alleged that before the Deed was signed, the moneys in the Contested Accounts were withdrawn by the Plaintiff. Both the Plaintiff and Defendant tabulated a list of the amounts they alleged were in the Contested Accounts. The Plaintiff denied any dissipation.

As for maintenance, the Defendant argued that if she could not attain 60% of the immoveable properties, she wanted maintenance at S$2,500 a month.

Held:

(1) The court had the overriding power to scrutinise the terms of both pre-nuptial and post-nuptial agreements (including deeds of separation) and would do so in accordance with the principles of justice, fairness and equity to both parties. The Deed was one of the factors to be considered by the court, and the legislative intent of s 112 (2) (e) of the Charter was to give regard to a marital agreement that was fair and equitable. How much weight the court accorded to a marital agreement depended on the division under the agreement as well as the facts of the case, which meant that not only the terms but also the parties' conduct surrounding the making and the execution of the agreement would be scrutinised: at [18] , [19] , [26] and [31] .

(2) In the earlier judgment concerning the application to set aside the Deed, the standard vitiating factors that would negate the effect of the Deed were considered and rejected. There was no unworthy conduct giving cause to reduce or eliminate the weight to be attached to the Deed and the court was not going to dwell on the circumstances surrounding the making of the Deed at the ancillaries: at [32] .

(3) There was no presumption in favour of giving full weight to a valid marital agreement. This would be inconsistent with the approach articulated by the courts in Singapore and would contradict s 112 of the Charter: at [24] .

(4) A change of circumstances was not the only criterion justifying a departure from the division under the Deed. Otherwise, the court would effectively be giving an overriding effect to the Deed. A change in circumstances, whether unforeseen or overlooked at the time of entering into the marital agreement, might be relevant in considering how much weight should be accorded to the agreement: at [25] .

(5) To determine the size of the asset pool and its monetary value as at the date of the Deed, the values provided by the Plaintiff's expert were used as the Deed was signed on 28 March 2003: at [44] and [45] .

(6) The total value of the matrimonial assets as at the date of the Deed was S$8,307,351, of which under the terms of the Deed, the Wife would receive S$2,799,737, or 34% of the matrimonial pool of assets. As at the date of the Deed, the Properties were valued at S$3,091,795; the Contested Accounts at S$2,335,430; the fixed term deposit at S$348,240 and the Uncontested Assets at S$2,531,886: at [48] , [49] , [57] , [58] , [60] and [61] .

(7) Of the Defendant's complaints on excluded assets from the Deed, the claims to include a Malaysian property and rental income from various properties were untenable. On the other hand, the Plaintiff's retirement benefits were matrimonial assets and should be divided even though they were prospective in nature: at [64] to [66] and [76] .

(8) For the Defendant's allegation of the dissipation of assets to succeed and for the moneys to be added back into the pool of assets, the Defendant had to prove that the balances the court found in the Contested Accounts had decreased, and that the Plaintiff had used the amounts in them for his own means even though they belonged in the pool of matrimonial assets. However, the Defendant's allegation failed as there was evidence that the moneys were applied to legitimate expenses: at [70] and [71] .

(9) In the determination of a just and equitable division under s 112 (2) of the Charter, it should eschew an examination of exact contributions of husband and wife. A ‘broad brush’ approach to a division of matrimonial assets was of particular relevance given (a) the significant number of assets, (b) that the exact financial contribution of each party to the acquisition of the assets was not fully documented by either party, and (c) the conflicting accounts of the extent of their contributions offered by both parties: at [79] to [81] .

(10) With respect to the Plaintiff's contributions to the marriage, the Plaintiff had made substantial financial contributions towards the acquisition of the immovable matrimonial assets. The Plaintiff had also made many indirect financial contributions to the household. By 2012, most of the properties that were encumbered had been largely repaid by the Plaintiff, thereby keeping the bulk of the matrimonial assets intact without the assistance of the Defendant after 2003: at [83] , [85] and [86] .

(11) The Defendant's contributions to the marriage in the early years were essential to the Plaintiff attaining his law degree. The Plaintiff's opportunity to be a high-income earner was the result of the parties' earlier joint efforts. However, there would come a point in time when the Plaintiff's own ability to excel in his career allowed him to reap the benefits of a successful professional career and this continued after the separation and divorce. To claim that the Defendant ‘made’ the Plaintiff who he was today was to downplay the Plaintiff's own ability and drive: at [87] , [88] , [90] and [91] .

(12) As for the parties' contributions to the welfare of their children, it was found that both contributed what they could in terms of time and effort within the spheres of their own work and non-work related activities: at [92] .

(13) A just and equitable division in this case would be a 40% division to the Defendant and would thus warrant a departure from the 34% division under the Deed. In addition, the 40% division would include a division of the Plaintiff's retirement benefits: at [97] and [98] .

(14) To determine the value of the 40% division, the determination of the pool of assets and its value was necessary. The operative date of determining what was a matrimonial asset in this case was the date of separation. That was the date the Deed was signed as parties formally recorded their decision to go their own separate ways: at [100] and [101] .

(15) The date of the ancillary hearing being the date for the valuation of the pool of assets was not immutable. Case law seemed to indicate that the court would have the discretion to choose a more appropriate date of valuation. The appropriate date to value the pool in this case would be March 2003. On its face, the Deed was clearly meant to sever all relationships between the parties and there would be no re-opening of the distribution of assets: at [102] to [108] .

(16) Therefore, the Defendant would receive 6% more of the total assets comprised under the Deed, ie, S$498,441. The Defendant would also receive 40% of the Plaintiff's retirement...

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10 cases
  • TNC v TND
    • Singapore
    • High Court (Singapore)
    • 17 May 2016
    ...its value should be assessed at the date of the hearing of ancillary matters. The High Court in Wong Kien Keong v Khoo Hoon Eng [2014] 1 SLR 1342 (at [103]) noted that “some cases seem to support the position that there is judicial discretion to choose another date which might be more just”......
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    ...in Anthony Patrick Nathan was cited with approval by the Court of Appeal in ARX v ARY at [36]. In Wong Kien Keong v Khoo Hoon Eng [2014] 1 SLR 1342 (“Wong Kien Keong”), the High Court, after citing Yeo Chong Lin, held that “case law seems to indicate that the court will have a discretion to......
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    ...Wan Lai Cheng v Quek Seow Kee and another appeal and another matter [2012] 4 SLR 405 (at [71]); and Wong Kien Keong v Khoo Hoon Eng [2014] 1 SLR 1342 (at [106]). Having made the above determinations, the court will then consider all the circumstances of the case, including but not limited t......
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    ...2017) when the Wife moved out of the matrimonial home. The Husband referred to Wong Kien Keong v Khoo Hoon Eng [2013] SGHC 275; [2014] 1 SLR 1342 (“Wong Kien Keong”) at [100] where the High Court reiterated that there were multiple dates that the Court could adopt as the operative date. In ......
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