Wos v Wot

• Jurisdiction: Singapore
• Judge: Debbie Ong Siew Ling JAD,See Kee Oon JAD,Audrey Lim J
• Judgment Date: 19 April 2024
• Docket Number: Civil Appeal No 86 of 2023
• Court: High Court (Singapore)

WOS

and

WOT

[2024] SGHC(A) 11

Debbie Ong Siew Ling JAD, See Kee Oon JAD and Audrey Lim J

Civil Appeal No 86 of 2023

Appellate Division of the High Court

Family Law — Matrimonial assets — Division — Husband had paid legal fees in period when divorce was imminent in connection with legal proceedings commenced long before — Whether fees paid should be added back into pool of matrimonial assets

Family Law — Matrimonial assets — Division — Parties had separated approximately ten years before grant of interim judgment of divorce — How parties' separated circumstances should be reflected in division of matrimonial assets — Section 112(2) Women's Charter 1961 (2020 Rev Ed)

Family Law — Matrimonial assets — Division — Parties had separated approximately ten years before grant of interim judgment of divorce — Whether date of separation or date of interim judgment was appropriate operative date for determining parties' matrimonial assets — Section 112(10) Women's Charter 1961 (2020 Rev Ed)

Held, partially allowing the appeal:

(1) The date of interim judgment of divorce was by default the appropriate operative date for the identification of the parties' matrimonial assets. While the court retained the discretion to depart from this default position, it would only do so where there were cogent reasons. The ordinary factual concomitants of a failed marriage could not justify such a departure. This would strike the right balance between certainty and flexibility, enabling parties to arrange their financial affairs with the comfort of knowing when they would be taken as having moved into a different phase of their lives, and avoid the difficulties and unnecessary complications which would come from a forensic examination of the parties' marital relationship: at [20] to [22] and [26].

(2) The three “indicia” of there no longer being any matrimonial home, no consortium vitae and no right on either side to conjugal rights, explain why the grant of interim judgment signified the end of a marriage for all practical purposes. They were not a general test to determine the operative date for the identification of the parties' matrimonial assets. To adopt them as such would severely dilute the date of interim judgment as the default starting point, as they would almost always be satisfied in the many cases where divorce was granted on the basis of parties having lived apart for more than three years: at [23].

(3) The distinction between care rendered to children qua parent and qua spouse explained why any caregiving after the date of interim judgment would not be taken into account as indirect contributions to the marriage, and could not in itself justify adopting a later date for the identification of the parties' matrimonial assets. It was not, without more, relevant to the anterior question of when the parties' marriage had come to an end: at [31], [34] and [35].

(4) The appropriate operative date for the identification of the parties' matrimonial assets in the present case remained the date of the interim judgment. Having been acquired after that date, the shares were matrimonial assets liable to division. There was also no basis to disturb the valuation of the shares adopted by the Judge, or his decision to include the value of loans to a different company on the basis that the loaned funds likely would have formed part of the parties' matrimonial pool: at [39] and [40].

(5) Substantial sums expended during the period where divorce proceedings were imminent, or after they had begun, had to be returned to the pool of matrimonial assets if the other spouse had at least a putative interest in them and had not consented to the expenditure. As there was no objective evidence to support the Husband's claim that Alan had lent him money, the sum paid to Alan was correctly added back into the matrimonial pool, as were the sums paid to the company held in the name of the Husband's son from his prior marriage: at [43] and [49].

(6) The burden of proving that an asset acquired during marriage was not a matrimonial asset lied on the party making that assertion. The evidence did not support the Husband's claim that there remained any outstanding loan of $600,000 owed to his father. There was no basis to exclude this sum from the pool of matrimonial assets: at [45] and [46].

(7) While the legal fees had been paid in the period when divorce was imminent, the work in respect of which they were paid had been done in connection with different stages of a legal action commenced long before divorce proceedings began. Having committed himself to the lawsuit then, the Husband could not be faulted for seeing it through completion and paying the fees incurred in doing so. These fees should not have been added back into the pool of matrimonial assets: at [53].

(8) The significant period of the parties' separation in the present case would inevitably have reduced the indirect contributions which the Wife could have made, compared to a homemaker maintaining a shared home and caring for the family in the sort of long single-income marriage envisaged in TNL v TNK[2017] 1 SLR 609. While this, without more, would not warrant departing from the date of interim judgment as the operative date for the identification of matrimonial assets, it was relevant to determining the proportions in which those matrimonial assets were divided. Taking this and other relevant factors into account, a ratio of 70:30 in the Husband's favour was just and equitable: at [58] and [61] to [63].

Case(s) referred to

AJR v AJS[2010] 4 SLR 617 (folld)

ANJ v ANK[2015] 4 SLR 1043 (refd)

ARY v ARX[2016] 2 SLR 686 (folld)

AUA v ATZ[2016] 4 SLR 674 (refd)

BPC v BPB[2019] 1 SLR 608 (refd)

Oh Choon v Lee Siew Lin[2014] 1 SLR 629 (folld)

Sivakolunthu Kumarasamy v Shanmugam Nagaiah[1987] SLR(R) 702; [1987] SLR 182 (refd)

TNL v TNK[2017] 1 SLR 609 (folld)

USB v USA[2020] 2 SLR 588 (folld)

UYQ v UYP[2020] 1 SLR 551 (folld)

UZN v UZM[2021] 1 SLR 426 (folld)

WAS v WAT[2022] SGHCF 7 (folld)

Facts

The appellant (the “Husband”) was a 67-year-old businessman, and the respondent (the “Wife”) was a 61-year-old homemaker. They married in 1999, began living separately sometime between 2008 and 2010, commenced divorce proceedings on 4 October 2018, and obtained an interim judgment of divorce on 12 March 2019. Their marriage lasted approximately 20 years, with the parties living apart for around half that period.

The Husband had acquired shares in various companies in the period when the parties had been living separately. He had also transferred sums of money to a friend named “Alan” allegedly in repayment of a loan by Alan to him and to a company registered in the name of his son from his previous marriage, and made payments of legal fees in connection with a lawsuit which had been ongoing for some years before the divorce. He also claimed to have borrowed $600,000 from his father to purchase a private property. The Husband argued that the shares should be excluded from the pool of matrimonial assets liable to division as they had been acquired after the parties had separated, and that the $600,000 should be also excluded as it remained an outstanding liability. The Wife argued that both the shares and the $600,000 should be considered matrimonial assets, and that all the sums which the Husband had expended ought to be added back into the matrimonial pool.

The judge below (the “Judge”) held that the shares were matrimonial assets liable to division. He also declined to exclude the $600,000 from the matrimonial pool, and returned to the matrimonial pool the sums which the Husband transferred to Alan, to the company registered in the name of his son and the legal fees which the Husband had paid shortly before the commencement of divorce proceedings. Finally, the Judge divided the parties' matrimonial assets in the ratio of 60:40 in favour of the Husband. The Husband appealed against these aspects of the Judge's decision.

Legislation referred to

Central Provident Fund Act 1953 (2020 Rev Ed)

Women's Charter 1961 (2020 Rev Ed) ss 46, 95(3), 112(10)

N Sreenivasan SC, Liyana Sinwan, Kamini Devadass (K&L Gates Straits Law LLC) (instructed), Andrew Lee WeimingandLing Wei Hong (PDLegal LLC) for the appellant;

Tan Xuan Qi Dorothy and Nah Xiang Ling Charlene (PKWA Law Practice LLC) for the respondent.

19 April 2024

Debbie Ong Siew Ling JAD(delivering the grounds of decision of the court):

1 The present appeal involves the issue of whether and how the fact and circumstances of the spouses' separation may be relevant in the division of matrimonial assets upon divorce.

2 The grant of a divorce is quite often preceded by a period of separation between the parties. In 2022, 45.2% of divorces filed under the Women's Charter 1961 (2020 Rev Ed) (the “Women's Charter”) relied on the reason that the parties have separated or lived apart for more than three years (“Statistics on Marriages and Divorces, Reference Year 2022” (Singapore Department of Statistics, 2022) at p 17). In addition to this group of cases, divorces filed which cite other reasons evidencing the breakdown of marriage (for example, unreasonable behaviour) may also contain a period of separation, like the one in the present case.

Background

3 The appellant (the “Husband”) is a 67-year-old businessman in the construction and maintenance industry. The respondent (the “Wife”) is a 61-year-old homemaker. The parties married on 3 June 1999. They began living separately approximately a decade later; the Husband claimed that they separated on 13 July 2008 while the Wife's account was that they separated in end-2010. The Judge of the Family Division of the High Court (the “Judge”), whose decision was the subject matter of this appeal, accepted the...