Wong Kien Keong v Khoo Hoon Eng

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 20 December 2013
• Neutral Citation: [2013] SGHC 275
• Court: High Court (Singapore)
• Docket Number: Divorce Transferred No 1446 of 2006
• Published date: 02 January 2014
• Year: 2013
• Hearing Date: 02 October 2012,22 March 2013,25 February 2013,27 November 2012
• Plaintiff Counsel: Randolph Khoo and Veronica Joseph (Drew & Napier LLC)
• Defendant Counsel: Suchitra Ragupathy (Rodyk & Davidson LLP)
• Subject Matter: Family Law,Matrimonial assets,Division,Deed of separation
• Citation: [2013] SGHC 275

Belinda Ang Saw Ean J: Introduction

These are the ancillary proceedings in a long-running acrimonious dispute between the parties following the execution of a deed of separation dated 28 March 2003 (“the Deed”) and their subsequent divorce three years later. Of primary concern in these ancillary proceedings is the approach the court should take towards enforceable deeds of separation as well as the weight that should be accorded to a deed of separation under s 112(2) of the Women’s Charter (Cap 353, 1997 Rev Ed) (“the Charter”).

The parties, Mr Wong Kien Keong (“the Plaintiff”) and Mdm Khoo Hoon Eng (“the Defendant”), divorced after a marriage of more than 28 years. The Plaintiff is a lawyer, while the Defendant is an associate professor at the National University of Singapore (“NUS”). As of 2013, the Plaintiff is 61 years old while the Defendant is 62 years old. The children of the marriage, two sons, are now adults.

On 12 March 2003, the Defendant moved out of the matrimonial home to live in an apartment at Aspen Heights. Shortly thereafter, the parties signed the Deed.

After the Deed was executed, the Defendant commenced divorce proceedings on 29 June 2004, which were later discontinued on 20 March 2006. The Plaintiff then filed for divorce based on three years of separation. The decree nisi of 28 May 2006 was made absolute on 13 May 2011, before ancillary proceedings were completed.

In the meantime, the hearing of ancillary matters was delayed by the Defendant’s application vide Summons No 1553 of 2011 filed on 8 April 2011 to set aside the Deed. Her application was dismissed on 21 March 2012 (see Wong Kien Keong v Khoo Hoon Eng [2012] SGHC 127 (“the 2012 Judgment”)). The Defendant appealed against my decision in Civil Appeal No 32 of 2012 (“CA 32/2012”). The Court of Appeal ordered CA 32/2012 to be stayed until the ancillary proceedings were completed as it was envisaged that the prospect of an appeal against orders made in the ancillary proceedings was likely, and in the interest of expediency, all related appeals should to be heard at the same time.

The parties duly proceeded with the ancillary proceedings for the division of matrimonial assets, with the matter listed for hearing on 2 October 2012. By this time, some nine years had elapsed since the signing of the Deed, and six years from the decree nisi. The ancillary issue of division of matrimonial assets was the main area of contention between the parties. After four intermittent days of hearing, I reserved judgment.

The ancillary proceedings were made difficult by extensive discovery applications and interrogatories, numerous voluminous affidavits, and the various written submissions covering the different positions taken from time to time as the Defendant adjusted her case along the way.

The parties’ arguments on division of the matrimonial assets

The Plaintiff’s case was that the Deed should be given full weight in which case an order adopting the terms of the Deed should be granted. He maintained that the Deed was exceedingly fair and just when it was made. He relied on his expert’s report to show that the Defendant stood to receive 44% of the assets as at 12 March 2003.¹ The Plaintiff’s counsel, Mr Randolph Khoo (“Mr Khoo”), emphasised that this percentage division of 44% of the matrimonial assets comprised in the Deed for the Defendant was higher than the range of percentages between 35% and 40% derived from cases that broadly shared the same facts.²

In contrast, the Defendant’s position was that no weight should be given to the Deed. On its face, the Defendant was given only one out of the five immoveable properties in Singapore, and one out of seven immoveable properties in Malaysia. Counsel for the Defendant, Ms Suchitra Ragupathy (“Ms Ragupathy”) argued that a fair and equitable division would be to give the Defendant 60% of all the immovable matrimonial assets as compared to what she was given under the Deed which was allegedly a mere 18% of all the matrimonial assets. Ms Ragupathy also complained of the Plaintiff’s failure to make full and frank disclosure. For instance, she referred to the Plaintiff’s retirement benefits that were not included in the list of matrimonial assets under the Deed, and relied on the omission to support her contention that the agreed division under the Deed was unfair and inequitable to the Defendant. I will deal with this contention in due course.

A related issue is the appropriate date of valuation of the matrimonial assets. The Plaintiff contended that the appropriate date of valuation should be 12 March 2003 when the Defendant moved out of the matrimonial home to live on her own, since their divorce was granted on the basis of 3 years’ separation from that date. In contrast, the Defendant argued for a later date, 2 October 2012, being the start of the hearing of the ancillary matters. Mr Khoo disagreed with Ms Ragupathy’s choice of dates. His contention was that the unwarranted litigation had prolonged the dispute to the point of obscuring the reality that the marriage had long since ended.³ He accused the Defendant of skewing the facts by using 2012 valuations which were much higher (as compared to 2003) to give an inaccurate picture of the Deed made in 2003.

Overview of this judgment

In this judgment, I shall examine the court’s approach to post-nuptial agreements in Singapore. The Deed was upheld in the 2012 Judgment and as such, the existence of the Deed is one of the factors to be taken into account under s 112(2) of the Charter. As a first step to determining the weight to be accorded to the Deed, the court looks at the percentage division of the matrimonial assets under the Deed.

In addition, the Deed would be scrutinised in light of the other factors set out in s 112(2). If a consideration of the other relevant factors and circumstances show that the division prescribed under the Deed is unfair, the division under the Deed is unlikely to be accorded any weight whatsoever and it will be disregarded from the court’s assessment of a fair and equitable award for the parties. However, this is not the only approach that the court can take. A mixture of fact and the exercise of discretion may justify a different approach, as was the case in AFS v AFU [2011] 3 SLR 275. I will be discussing this case later in the judgment.

As a related observation, where parties have failed to point towards any form of inequity in the s 112(2)(e) agreement, the court is not likely to substitute its own discretion or judgment for that of the parties, and will instead seek to uphold the agreement. Where parties have agreed to comprehensively and conclusively organise their financial arrangements after or in contemplation of their separation, there would be no good reason why such an agreement should not be given full weight. This approach was first observed in Wong Kam Fong Anne v Ang Ann Liang [1992] 3 SLR(R) 902 where Michael Hwang JC considered the court’s exercise of its powers under s 106(1) of the Women's Charter (Cap 353, 1985 Rev Ed) (now s 112(1) of the Charter) in relation to an agreement made by the parties prior to their divorce concerning the disposal of their matrimonial assets. While s 106(2) did not contain a provision similar to s 112(2)(e) of the Charter, Hwang JC’s observations are useful in highlighting the importance of exercising caution when interfering with a s 112(2)(e) agreement. At [36]:

The deed was therefore intended as a comprehensive financial and property settlement between the parties. The deed was made at a time when the parties had already been separated, and divorce was viewed as a real possibility, although not necessarily in the immediate future. Under these circumstances, I considered that the onus was on the husband, who was seeking to disclaim the effectiveness of the deed, to justify why the court should proceed to exercise its powers under s 106 in disregard of the express intentions of the parties made in contemplation of precisely the situation which had now arisen. [emphasis added]

Returning to the present case, a central factual question for me to decide is what percentage share in the division of the assets was ascribed to the Defendant by the Deed. For the further reasons explained in this judgment, the Defendant’s percentage share is 34% based on a computation of the March 2003 values of the assets that was determined to be S$8,307,351.

The court’s task is to make a fair and equitable award having regard to the assets that are determined to be matrimonial assets subject to division and the applicable valuation date or dates that are used to arrive at the total monetary value of the matrimonial assets. In so doing, I will give consideration to the Deed and all the other relevant factors in this case. On the facts and evidence, I find that the Plaintiff’s retirement benefits is a matrimonial asset that should be up for division and that a fair and equitable division for the Defendant is 40% of this adjusted pool of assets based largely on 2003 values. In this respect, the ancillary orders that I make in this case do not discard but give effect to some of the terms in the Deed, and will also deal with how this 6% increase is to be provided for by the Plaintiff.

In this judgment, maintenance is discussed after the division of assets. The Defendant asked for maintenance if she was not successful in securing a division of 60% of the immovable matrimonial assets. It is not disputed that the Deed did not deal with maintenance. For the reasons below, there is justification for awarding the Defendant lump sum maintenance.

The approach towards post-nuptial agreements

In the division of the matrimonial assets, s 112(2) of the Charter requires the court to have regard to “all the circumstances of the case” including a non-exhaustive list of factors, of which s 112(2)(e) is of particular significance in this case....