ANJ v ANK

Woo Bih Li J:

[1] This is another case dealing with ancillaries after judgment has been given in divorce proceedings between a husband (“the Husband”) and a wife (“the Wife”).

[2] Before the ancillaries were heard, the Wife filed Summons No 10876 of 2013 (“Summons 10876”) for an order for maintenance in the interim period pending the final outcome of the ancillaries. On 22 April 2014, I made an order in Summons 10876 that the Husband was to pay $1,200 per month in addition to what he was paying as interim maintenance for the two children of the marriage with effect from 1 May 2014.

[3] Subsequently, on 29 May 2014, I gave oral judgment on:

(a) the division of matrimonial assets between the Husband and the Wife;

(b) maintenance of the Wife and of the children by the Husband. A copy of the oral judgment is attached hereto as Annex A.

[4] The Husband then filed two notices of appeal to the Court of Appeal. The notice of appeal for Civil Appeal 102 of 2014 is in respect of my decision in Summons 10876 for interim maintenance given on 22 April 2014 and not on 29 May 2014 as erroneously stated in the notice of appeal. The notice of appeal for Civil Appeal 103 of 2014 is in respect of my main decision given on 29 May 2014. The Husband’s solicitors have clarified that the notice of appeal for Civil Appeal 102 of 2014 was filed as a precaution to avoid any technical objection from the Wife. The main appeal is Civil Appeal 103 of 2014. I state my reasons below.

[5] The issues on appeal to the Court of Appeal are as follows:

(a) whether the Husband’s retirement funds was correctly calculated as $85,728.51;

(b) whether the matrimonial assets should be divided 60:40 between the Wife and the Husband;

(c) whether the method of division such that the Wife received 82.79% of the matrimonial home but the Husband would retain the assets in his name was correct;

(d) whether the Husband should have been ordered to pay $1 nominal maintenance for the Wife;

(e) whether the Husband should have been ordered to pay 65% of the children’s expenses as maintenance;

(f) whether the children’s expenses amounted to $5,355 per month or a lower sum;

(g) whether the order to pay maintenance for the children should commence retrospectively from 1 July 2013; and

(h) whether the Husband should have been ordered to pay costs of $800 for Summons 10876 which was the Wife’s application for interim maintenance.

[6] The parties had resolved issues of custody, care and control of and access to the children. The outstanding issues before me were therefore the division of matrimonial assets and maintenance.

[7] My oral judgment sets out the value of the matrimonial assets. I also explained to counsel that I derived the value from information provided by the parties and summarised by counsel.

[8] When the Husband’s solicitors, Drew & Napier, clarified the areas of dispute in respect of the Husband’s appeal, they said that the Husband’s retirement funds, as at October 2013, should not be attributed a value of $85,728.51 but a lower figure as I will elaborate below. They explained that the $85,728.51 was a notional figure which represented 100% of the value of the Husband’s funds in an INVEST-Retirement Plan of the Civil Service. This 100% was applicable only if the Husband were to retire in October 2013 and if he had reached the retirement age of 55 years as at October 2013. Under the INVEST plan, he was eligible to receive 100% of the value only if he retired at the age of 55. However, he was only 40 years of age as at October 2013 as he was born on 27 August 1973. As such, the vesting percentage would only be 45% of $85,728.51. Therefore the value to be attributed to his retirement funds should have been 45% of $85,728.51 = $38,577.83.

[9] While there seems to be some logic in this explanation, the problem was that this explanation was not given at the time of the hearing before me. Parties had proceeded before me on the basis that his retirement funds amounted to $85,728.51. The Husband did not request leave to make further arguments. Also, even at this stage, I do not know whether there is documentary evidence to support the explanation. Furthermore, the Wife has not stated her position on this explanation.

[10] The second issue is whether the Wife should have been granted 60% of the matrimonial assets.

[11] As regards the direct financial contributions to acquire the matrimonial home, which was an HDB flat in Jurong, the Husband contended that the Husband’s contribution and the Wife’s were 62.14% and 37.86% respectively. The Wife contended that it was 56.7% and 43.3% for the Husband and the Wife respectively.

[12] Parties were largely agreeable on the quantum of each party’s direct financial contributions by way of deduction from their respective CPF accounts and the cash each had provided. The main area of contention was the Husband’s alleged contribution of about $25,000 towards payments for renovation, furniture, property tax, maintenance fee, etc.

[13] The value of assets which each held in his/her own name, ie, excluding the matrimonial home, was about 62.74% and 37.26% for the Husband and Wife respectively.

[14] As regards the earning capacity of each of the parties, the Husband appeared to be earning about 65% of the combined income.

[15] It was not possible for me to ascertain who was correct about the direct financial contributions. Bearing in mind that the parties’ figures were not far apart and taking into account their other assets and their earning capacities and looking at the direct financial contributions in the round, I was of the view that it would be fair to say that the Husband and Wife had contributed 60:40 respectively to acquire the matrimonial home.

[16] As for the parties’ indirect contributions, the Husband contended that as the Wife also worked fulltime and as he is a hands-on father and a husband who contributed to the household chores and upkeep, the Wife’s non-financial contributions would not be more than his. Therefore, the Husband contended that all the matrimonial assets should be divided 60:40 in his favour.

[17] On the other hand, the Wife asked for 90.7% for the matrimonial home and offered to pay $100,000 into the Husband’s CPF account to acquire his 9.3% share. The Husband would retain the rest of the matrimonial assets in his name.

[18] The Wife proceeded on the basis that she would be awarded 43.3% (and not 40%) of the matrimonial home for her direct financial contribution to acquire it. She then estimated $100,000 to be the amount to be paid into the Husband’s CPF account to reimburse him for the principal (and interest) which he used to pay for the matrimonial home. That $100,000 worked out to 9.3% of $1,075,620.75 (which was the initial figure which the Wife was using as the value of the matrimonial home). Hence she claimed 90.7%. As she started on the basis of 43.3%, the difference was another 47.4% which she was claiming for her indirect contributions.

[19] I was of the view that it did not follow that because the Wife also works fulltime and because the Husband has played a part in the raising of the children and to caring for the household that his indirect contributions were equal to hers. It was quite clear to me from the affidavits and submissions that the Wife was the primary care-giver and the one primarily responsible for the care of the household.

[20] The Wife also contended that the younger child was at risk of Attention Deficit Hyperactivity Disorder and/or Oppositional Defiant Disorder which was supported by a psychological report. She also alleged that the elder child had been subjected to emotional stress and developed psychosomatic symptoms because of the Husband’s interrogations to seek information to be used in the ancillaries. The elder child is seeing a psychiatrist and is undergoing counselling in school.

[21] The Husband contended that the marriage lasted about nine years and four months as the marriage broke down irretrievably by January 2012. The Wife contended that the marriage lasted about ten years and four months as she calculated the length of the marriage up to the date of the interim judgment (“IJ”) on 14 January 2013. I used ten years as the length of the marriage. Bearing in mind the length of the marriage and that the younger child is at risk of a disorder, I granted the Wife an additional 20% of all the matrimonial assets for her indirect contributions. Therefore, as regards the matrimonial home, the Wife’s notional share would increase from 40% to 60%.

[22] However, as the Husband held a higher value of the remaining matrimonial assets, I decided to grant the Wife a higher percentage of the matrimonial home so that he could keep the assets held in his name. This worked out arithmetically to another 22.79% for the Wife. Therefore, she would get:

Each party would then retain the other assets held in his/her own name.

[23] Aside from the questions of whether the Husband’s retirement funds should be a lower sum and whether the Wife should be given 20% for her indirect contributions, the Husband is also unhappy about the above adjustment.

[24] First, the Husband is of the view that as he has a higher amount, ie, about $332,294 in his CPF account compared with the Wife who has about $188,479 in her CPF account, he is at a disadvantage if the court makes the above adjustment and the Wife gets a larger share in the matrimonial home and he gets to keep the assets in his name. The Husband’s point which his counsel explained to me after I had given my decision was that he has more limited access to money in his CPF account. The suggestion was that the court should have applied the division down the line so that if the Wife was entitled to 60% of the matrimonial assets then she should have 60% of the matrimonial home, 60% of the money in the Husband’s CPF account and so on. This would mean that she has to pay him more cash to acquire his interest in the matrimonial home which would remain at 40%.

[25] Likewise, the Husband’s point was that he would not be able to get access to his retirement funds and therefore this should also be divided down the line. Again this explanation was given by his counsel after I had given my decision.

[26] It has been my practice to make arithmetical adjustments along the lines mentioned above so that as far as possible each party gets to keep the assets held in his or her own name. The adjustment is done by increasing or decreasing a party’s share in the matrimonial home. While it is true that the matrimonial home may increase in value, it may also decrease in value and parties take their chances after the adjustment is made. To take into account any increase or decrease, parties sometimes request for a joint valuation to be done within a certain period after the division is decided so that the value of the matrimonial home is as current as possible. On other occasions, parties agree on the value as at a certain date and take their chances thereafter so that no further communication or step is required to obtain a valuation which in turn may give rise to further disputes or delays especially when one party drags his/her feet on the valuation. So far I do not remember any counsel or litigant objecting about an adjustment being made to the shares in the matrimonial home so that each party gets to keep the assets held in his or her own name. Indeed, the point was not taken before I had given my decision and there was no request for further arguments about it. Furthermore, the Husband’s objection now is not so much about the potential increase in the value of the matrimonial home but that he has limited access to his CPF account.

[27] Upon hearing the subsequent clarification by the Husband’s counsel about his objection, the Wife’s counsel said she would speak to the Wife to see if she would agree to take a lower share of the matrimonial home and be given part of the money in the Husband’s CPF account. However, there has been no update from the Wife’s side.

[28] I was surprised at the Husband’s objection that he wanted every asset divided down the line. The money in his CPF account is still his and he can still use it for certain investments. Nevertheless, I would have been prepared to consider dividing the money in his CPF account in the way he wanted, subject to any argument by the Wife, if I had been made aware of his objection earlier.

[29] As for the Husband’s retirement funds, if he is right and the sum is reduced to about $38,577 (instead of about $85,728), the reduced sum would be relatively small. Also, if I were to divide that sum down the line, it would mean that the Wife has to wait till the Husband reaches 55 to get her share and there is no clean break in the division of matrimonial assets. Furthermore, if the Husband takes the retirement sum and does not give her her share, she will have to chase him for it. I am not certain if the court can impose a charge of some sort for her share. Even if this can be done, it will mean that a third party will have to do some monitoring so as not to breach the charge. Also, if the Husband were to consider it to his advantage to change jobs, it is not clear if his retirement funds will be lost. If so, it will be to the Wife’s disadvantage since she would have lost her entire share while he will have a new job with new benefits to compensate for his loss of his share of his retirement funds. Therefore, I might not have been inclined to divide his retirement funds down the line but, in any event, I did not have the benefit of arguments from both sides about such an approach.

[30] I was of the view that the Wife could maintain herself as she was earning about $6,810 per month. Nevertheless, in order not to prejudice any future application she might wish to make for her own maintenance if there were to be a change of circumstances, I granted her a nominal sum of $1 per month. In Tan Bee Giok v Loh Kum Yong [1996] 3 SLR(R) 605, the Court of Appeal decided (at [13]–[15]) that a nominal maintenance ought to be awarded for a wife without which she would be precluded from applying for maintenance in the future. Hence it has been the practice of our courts to grant $1 a month maintenance just to keep that option alive. While I accept that it is not logical to maintain a distinction between nil maintenance and $1 maintenance a month, the said Court of Appeal decision appears to be good law still.

[31] The Husband objects even to the nominal maintenance granted to the Wife. Presumably he does not even want the spectre of a future maintenance application by the Wife to be kept alive. I saw no reason why she should be deprived of that avenue. If she could still seek maintenance in the future where no maintenance is granted at present, then I would not have granted her the nominal maintenance at present.

[32] As for maintenance for the children, the Husband appeared to agree in principle to bear 60% of the children’s expenses in view of the parties’ monthly incomes. The Wife submitted that he should pay 70% of the children’s expense. I decided to order the Husband to pay 65% based on their income tax assessments as submitted by the Wife, the quantum of which he did not disagree with. The Wife had submitted that based on such assessments, the Husband’s monthly income was about $12,700 per month while her monthly income was about $6,810. This meant that the Husband and the Wife earned 65% and 35% respectively of the combined income. I understand that the Husband is even objecting to the 65% in his appeal.

[33] The main objection of the Husband on maintenance is with respect to the quantum of the children’s expenses. The Wife had claimed that the children’s total monthly expenses was $7,029.06 while the Husband said it was $3,532.13. I concluded that it was $5,355 per month. A broad breakdown of the $5,355 figure was set out at Attachment A to my Oral Judgment. In the light of the Husband’s appeal, I will go into more detail about the items comprising the children’s expenses. The Husband’s 65% share of $5,355 per month is $3,481 per month.

[34] The Wife’s counsel had provided a table comparing the items claimed by the Wife for the children’s expenses and the Husband’s response. This was in Annex D of the written submissions for the Wife dated 21 April 2014. The Wife had sought to revise the expenses upwards in Annex C but I used the expenses in Annex D as that had the comparison with the Husband’s response. In any event, the Wife’s counsel has indicated that the Wife is not appealing against my decision.

[35] As regards the items in Annex D, I had reduced some of the sums claimed by the Wife or omitted some of the items altogether after taking into account the Husband’s response. Since he is the one appealing against my decision, I will deal with the items which he did not agree with either in principle or the quantum thereof. There is no science in the consideration of each item which I looked at in the round. I also considered the overall expenses I allowed and the income of the parties.

[36] The Wife claimed various monthly and annual expenses for the younger child and the Husband’s objection was largely similar in principle and quantum for those claimed for the elder child. I shall not repeat the disputed items claimed for the younger child and my decisions and explanations above apply for the younger child as well.

[37] However, for item 75 on Educational Related Expenses, I ought to have reduced the quantum claimed for the younger child from $60 to $40 per month as I did for the elder child.

[38] For item 102 for Art Class Materials, I omitted to reduce the sum claimed by the Wife from $106 to $100 per month as I did for the elder child.

[39] I disallowed the Wife’s claim for mortgage insurance as she would have the entire benefit of the matrimonial home. I allowed all her other claims as follows and apportioned two thirds thereof as the children’s expenses.

[41] The Wife claimed $1,057 per month for maid expenses. I allowed $1,046 per month as I had thought that the Husband had agreed to this sum as per the chart in Annex D of the Wife’s submission. I omitted to make any apportionment for maid expenses. I would have apportioned two-thirds thereof as the children’s expenses even though most of the maid’s expenses are incurred because of the children. The Wife has had the “benefit” of my apportioning two-thirds of accommodation expenses to the children.

[42] I made an order for interim maintenance on 22 April 2014 pending my eventual decision on the ancillaries. In the order for interim maintenance, I ordered the Husband to pay $1,200 per month in addition to what he was providing with effect from 1 May 2014.

[43] When I eventually made my order on ancillaries on 29 May 2014, I made the order on maintenance to apply with effect from 1 July 2013. The Wife had filed her application for interim maintenance in July 2013 and asked for any eventual order on ancillaries to apply retrospectively from July 2013. She said she had initially refrained from filing an application for interim maintenance as she had hoped that the ancillaries would be resolved expeditiously. However, as the Husband had unilaterally reduced his financial contributions towards payment of family expenses from 70% to less than 30% as at July 2013, she had to apply for interim maintenance.

[44] The Husband resisted the application for interim maintenance. He argued that there was no need for such an application as the ancillaries were going to be heard soon enough. The ancillaries came up for hearing before me for the first time on 22 April 2014, about nine months after the Wife filed her application for interim maintenance in July 2013. However, by 22 April 2014, both the application for interim maintenance and the ancillaries were fixed for hearing together. Even so, I decided to make an order for interim maintenance on 22 April 2014 as it was uncertain then as to when the ancillaries hearing would be completed and when I would be able to render a decision on the ancillaries. As it turned out, I was able to render my decision on the ancillaries on 29 May 2014.

[45] The Husband also objected to my order for the children’s maintenance being applied retrospectively from 1 July 2013. This appears to be connected with his objections to my making the order for interim maintenance. It appears that he wanted any order for maintenance to start only from the time of my ancillaries order and not to apply retrospectively at all so that there would be no arrears of maintenance. I was of the view that this was an unjust approach. Once the court has determined the amount of maintenance, it is fair for the maintenance to apply retrospectively to an appropriate date if there has been a shortfall unless the maintenance is for a nominal sum only. In this case, I adopted July 2013 for the children’s maintenance for reasons given by the Wife. The Husband did not challenge the reasons but he wanted the advantage of having paid lower maintenance in the past than that which the court was prepared to grant. I add that when I applied the children’s maintenance retrospectively, credit was to be given for whatever sum the Husband had been paying since July 2013 as maintenance.

[1] I determine the matrimonial assets to be:

[2] I divide the assets between the husband and the wife in the proportion of 40:60 respectively. Therefore:

3.1 As the wife’s assets held in her sole name amount to $377,982.82, I grant the wife the balance of $853,114.35 from the value of the matrimonial home. This is 82.79% of that value. I therefore grant the wife 82.79% of the matrimonial home and the husband 17.21% of the matrimonial home.

3.2 The husband and the wife are to retain the assets in their respective sole names and the husband is entitled to the money in the joint account.

4.1 The wife has the option to acquire the husband’s 17.21% interest in the matrimonial home based on a 100% value of $1,030,434.25.

4.2 The option may be exercised by written notice to the husband’s solicitors to reach them by 5pm of 30 June 2014. If exercised, the completion of the acquisition is to be by 31 December 2014 and the husband is to use her payment to acquire his interest to reimburse his CPF account for monies previously used to acquire the matrimonial home and interest thereon. The wife is to pay 100% of the existing loan from 1 June 2014.

4.3 If the wife does not exercise the option, the matrimonial flat is to be sold by 31 December 2014 and completion of that sale may be after 31 December 2014. The husband and wife will be entitled to 17.21% and 82.79% respectively of the net sale proceeds and use his/her portion to reimburse his/her CPF account for monies previously used to acquire the matrimonial home and interest thereon. The husband and the wife are to pay the existing loan in the proportion of 17.21% and 82.79% respectively from 1 June 2014.

4.4 If the husband pays more than his share of the existing loan from 1 June 2014, the wife is to reimburse him for the excess he has paid for.

[5] I grant the husband 100% of the money in the joint account which is a UOB account since the wife’s interest in that account is subsumed in the 82.79% I have given her of the matrimonial home. If the wife wishes to use that account as it is the account used to pay the loan instalments, the husband is to withdraw his name from that account but he is still entitled to the money before withdrawing his name.

[6] The husband is to pay nominal maintenance for the wife’s maintenance at $1 per month from 1 June 2014. Her income is such that she can maintain herself.

[7] As for the children’s maintenance, the wife alleged that the husband’s gross income (including bonus) is about 65% of the combined gross income of the parties. The wife suggested that the husband bear 70% of the children’s expenses. The husband thought that the wife was asking him to bear 60% based on earlier claims by the wife and he appeared agreeable to bear 60%. I am of the view that the husband is to bear 65% of the children’s expenses.

[8] The main dispute is the quantum of the children’s expenses. I find such expenses to be $5,355 per month (see Attachment A). The husband is to pay 65% of the same, ie, $3,481 with effect from 1 July 2013 but credit is to be given for whatever he has been paying from 1 July 2013 as maintenance in the meantime. The husband is to pay any arrears of maintenance in three equal consecutive monthly instalments on the first day of each month from 1 July 2014.

[10] The husband is to pay 65% of hospitalization expenses and medical or dental expenses of any of the children which exceed $100 per visit, ie, 65% of the excess.

[11] The question of maintenance for the children’s further education is to be dealt with subsequently if not agreed.

[12] Liberty to apply.