AUD v AUE

Woo Bih Li J:

[1] The dispute in this case on ancillaries is in respect of the division of assets between the couple and maintenance for the children and the wife.

[2] The couple were married in May 1990 in Turkey. In the first half of 2011, the husband was 46 years of age and the wife was 49 years of age.

[3] The husband filed his Writ for Divorce on 13 April 2009 based on the wife’s unreasonable behaviour. The wife filed a counterclaim on 22 June 2009 based on the husband’s unreasonable behaviour. After some mediation, the parties agreed to proceed on the counterclaim of the wife only. However, before me, the husband said he stood by his Statement of Particulars but agreed not to proceed with that in order to minimise acrimony and have an uncontested hearing for the divorce itself.

[4] Interim judgment was granted on 2 March 2010.

[5] There are two daughters of the marriage. They were 15 and 12 years of age in the first half of 2011.

[6] The husband is apparently successful. At one time he was earning $25,000 per month in his job from which he was terminated in November 2009. The wife alleged that from 12 August 2010 to 11 February 2011, he had a take home salary from another job of about $26,000 per month. On the other hand, the husband said his monthly income from his job as at the time of the hearing of the ancillaries was about $19,000 a month.

[7] The husband was the sole breadwinner. He paid for the expenses of the family.

[8] The wife said she was a homemaker most of the time. She said that she worked for a total of about seven years and two months during the marriage. On the other hand, the husband said that she worked for ten years and three months and studied for a masters degree in business administration for one year and seven months. He said that she was a fulltime homemaker for six years and two months only.

[9] The wife said that she moved with the husband each time his job took him to another country. She was the primary caregiver of the daughters and was in charge of the home whether or not she had a job or was studying. The family moved to Singapore in 2006.

[10] The husband moved out of the rented matrimonial home in April 2008. Apparently, a female friend of his lived with him thereafter before any divorce action was initiated.

[11] The wife obtained a job in 2006 after the family moved to Singapore in 2006. In August 2008, she obtained another job. Her monthly salary then was $10,560 per month. At the time of the hearing of the ancillaries before me, she was earning about $13,000 per month from another new job.

[12] She and the two daughters moved out of the rented matrimonial house when the tenancy expired and into a rented apartment.

[13] The parties agreed to joint custody of the two daughters and that the wife is to have care and control of them with reasonable access to the husband.

[14] The parties agreed to some extent on the assets held by the husband and by the wife. The details of the agreed assets and disputed assets for each party are found in Schedule A and Schedule B of my oral judgment which is attached hereto. The schedules excluded three assets which were to be dealt with separately from the pool of assets. These three assets were:

(a) An apartment at SW1H 9NE United Kingdom registered in the name of the husband.

(b) The husband’s membership in One Marina Club in Singapore.

(c) Paintings, drawings and prints.

The same schedules contain my conclusion on the disputed assets.

[15] I set out below my reasons for my conclusion. I will first deal with the wife’s allegations in respect of assets of the husband.

[16] The wife alleged that the husband had sold these units in or about June 2010. The Singapore dollar equivalent of the sale proceeds was $37,796.18 and had been deposited into the husband’s Citibank account. The wife alleged that the husband did not account for this sum. I should mention that the balance in this account on 1 June 2010 was $342.04 before the inclusion of the sum of $37,796.18. After the inclusion of the latter sum on 1 June 2010, the balance was $38,138.22. The balance as at 31 August 2010 was $9,754.26. The wife was not claiming the $9,754.26 (which was supposed to have been accounted for elsewhere as part of his Citibank account) but claiming the $37,796.18 mentioned above.

[17] The husband alleged that the $37,796.18 had been spent on living expenses between June 2010 to September 2010. He had received income from a job in September 2010 after obtaining a job in August 2010. He produced the bank statements for the three months of June to September 2010 which eventually showed a balance of $9,754.26 as at 31 August 2010 as mentioned above. In these three months, there were deposits of sums which were negligible except for one sum of $2,945.21. In any event, the $9,754.26 balance as at 31 August 2010 shows that he did not spend the entire $37,796.18 in the three months of June to August 2010.

[18] The wife alleged that some of the expenses as shown in the bank statements were for more than one person.

[19] Nevertheless, in my view, that was irrelevant. Generally speaking, if the husband had spent money on normal living expenses for himself and/or for his female friend, he need not account for the money as part of his assets. The money has been spent. There is no suggestion that he was lending money to the female friend.

[20] On the other hand, I noted that two of the withdrawals in the three months were not for normal living expenses. One was a withdrawal of $6,947.05 on 17 June 2010 apparently to pay his solicitors. Another was a withdrawal of $3,900 on 24 June 2010 apparently to pay one Thia Lee Sa Liza. No specific explanation was given for the purpose of this withdrawal.

[21] The total of these two withdrawals was $10,847.05. I was of the view that this sum should be included as part of his assets for present purposes.

[22] The wife alleged that the husband had bought a cartier diamond ring in or about February 2009 in London for his female friend for £45,000. She wanted the Singapore dollar equivalent of that sum to be included as part of his assets for present purposes.

[23] The husband did not dispute the purchase or the quantum spent but said it was a gift to his female friend and that the value should be excluded.

[24] This is not a normal living expense and it is still an existing item. I was of the view that the husband may give what he wants to his female friend but not at the wife’s expense. The value should be included as part of his assets for present purposes.

[25] The wife wanted to use an exchange rate at about the time when the ring was purchased. This would have converted £45,000 to S$93,287.70. I was of the view that a more current exchange rate should be used. Using the exchange rates published in the Straits Times issue of 2 August 2011, the average exchange rate was £1 = S$1.9765. Therefore, the S$ equivalent of £45,000 was S$88,942.50.

[26] Paras 22 to 24 of the wife’s affidavit of 13 July 2010 alleged that the husband had received income of about $1,836,259.98 out of which a balance sum of $1,129,401.33 remained unaccounted for.

[27] However, para 39 of the husband’s affidavit of 8 October 2010 refuted this. He also provided copies of his statements of account of various bank accounts to show that the income had been reflected in them as well as his use of the same. Thereafter, the wife did not challenge his explanation.

[28] I accept the husband’s explanation and I reject the wife’s allegation in respect of this item.

[29] Para 26 of the wife’s affidavit of 13 July 2010 alleged that the husband had an account with Haris Direct, a personal wealth management firm. She had seen statements of account from Haris Direct before the husband left the matrimonial home in April 2008 and took the statements with him.

[30] Para 38 of the husband’s affidavit of 8 October 2010 alleged that the Haris Direct account had in fact been closed prior to their move to Singapore in 2006. Also, the company (or firm) ceased to exist in 2007 or 2008.

[31] The wife could have made inquiries as to whether Haris Direct was still in existence in order to refute the husband’s allegation. She did not. I accepted the husband’s explanation in respect of this item. Since the account had been closed even before the couple moved to Singapore, I did not include it as part of the pool of matrimonial assets.

[32] The wife also questioned why the value of items 15 and 16 of the husband’s assets (as disclosed in Schedule A) had declined when compared to earlier disclosures by the husband. The simple explanation was that the values of such assets changed from time to time and he had updated their values then. His counsel had also offered to provide further updates, for example, as at 8 August 2011 but I declined such updates for two reasons. First, the exercise of updating must be cut-off at some point in time especially for assets of that category otherwise different figures would be given to the court from time to time. Second, 8 August 2011 was a particularly volatile time for financial markets and the values then would not necessarily reflect the fair value of those assets. As counsel for the wife did not dispute that the husband had used figures updated since his earlier disclosure, I accepted the husband’s figures without the further updating offered by his counsel.

[33] I now move on to the husband’s allegations in respect of the wife’s assets.

[34] The husband alleged that although the wife had said that she did not own any pension plan, the documents she had disclosed did refer to such a plan. This was a letter from The Standard Life Assurance Company issued on 6 December 2004 to her in respect of a pension plan number [xxx].

[35] Para 30 of the wife’s affidavit of 8 February 2011 alleged that she would be entitled to £500 per year only after 2007 in respect of her Standard Life pension plan. However, a document at pp 31 to 32 of her affidavit was a yearly statement from Standard Life Assurance Limited for the year ending 22 November 2010 in respect of a Group Personal Pension Plan also with the number [xxx] and it stated that the current value of her plan on 22 November 2010 was £9,060.41.

[36] Therefore, I was of the view that there is a value in this asset. Based on the £9,060.41 figure and using the exchange rate above at [25], the value was $17,907.90.

[37] The wife had an account with Lloyds TSB in London being account number [xyz]. In para 12 of her affidavit of 8 February 2011, she said that the account was closed two years ago. She produced a copy of an undated withdrawal request to withdraw £11,842.70 from the account. She alleged that she lent some of the moneys to her brother (unnamed) who had been trying to start his own company after losing his job and the remaining balance to take her children on a holiday.

[38] The husband did not accept her explanation on the use of the funds in the absence of elaboration and documentary evidence.

[39] Neither did I. I included this sum as part of the wife’s assets. The Singapore dollar equivalent was $23,407.10 using the same exchange rate mentioned above at [25].

[40] A sum of $65,000 was withdrawn on 27 May 2008 from a joint DBS account of the couple.

[41] The wife was taking the position that it was not clear who had withdrawn the money.

[42] Consequently, the husband obtained a copy of two Counter Card-Operated Transaction record slips both dated 27 May 2008 for two sums totalling $65,000. One of them had handwritten comments which indicated that the staff who handled the transaction had examined the identity card of the wife and had written her identity card number on that record slip. Although this evidence was obtained late, it was evidence the husband did not have before. The wife’s counsel, quite sensibly, did not object to its admission. I allowed it to be admitted.

[43] However, the wife later adduced evidence to show that the $65,000 cash was deposited into her UOB account at the material time. The current balance in her UOB account is disclosed as item 2 of her undisputed assets. Therefore, I concluded that the $65,000 was not an undisclosed asset of the wife.

[44] Para 46 of the husband’s affidavit of 8 October 2010 alleged that the wife did not disclose her shares in Standard Life plc.

[45] The wife disclosed documents in respect of her Standard Life pension plan but did not respond to the husband’s allegation about her shares in Standard Life plc.

[46] The documentary evidence which the husband had relied on was a letter issued in April 2007 from Standard Life plc to the wife as a shareholder. In view of this evidence and the absence of explanation by the wife, I was of the view that she did have shares in Standard Life plc which she did not disclose.

[47] The husband alleged that the wife had participated in a Turkish pension plan.

[48] Para 29 of the wife’s affidavit of 8 February 2011 said that the Turkish pension scheme allowed Turkish nationals to maintain their contribution to the scheme by making contributions for 5000 working days, ie, 20 years. As she had worked in Turkey for five years only, her parents wanted to maintain her participation by contributing to the scheme for the remaining 15 years. Her father was the one who contributed solely to the scheme after she stopped but he died in 2002. Her mother tried to continue the contributions but gradually stopped doing so.

[49] The wife stopped short of saying that all the contributions made by her and her father were worth nothing. I doubted very much that she would allow such a development. Moreover, she did not produce any document from the relevant Turkish authority to confirm that her account in the scheme had ceased. I concluded that she still had an asset in this scheme which she failed to disclose.

[50] If I were to take the time when the husband left the matrimonial home in April 2008 as the appropriate cut-off date, which I was inclined to do although the interim judgment was granted on 2 March 2010, the marriage effectively lasted about 18 years. Even if the marriage was said to have lasted for about 20 years, that would not have been a material difference for present purposes.

[51] The wife initially sought 70% of the pool of matrimonial assets for herself. She said that if she obtained 70%, she would not claim maintenance for herself or for the children but the husband was still to pay for the children’s present and future education.

[52] However, the written submission for the wife said that, based on precedents, the wife would obtain between 40% to 45% of the pool. She sought 45% and also claimed lump sum maintenance for the children and for herself.

[53] Counsel for the husband submitted that based on precedents, the wife would be given 30% to 40% of the pool. He submitted that she should be given 30% in the circumstances and bearing in mind that she had failed to disclose all her assets.

[54] Counsel for the wife submitted that the husband himself had failed to disclose all his assets but I make no such finding. I have already indicated above that I did not accept the allegations about his having failed to disclose certain specific assets.

[55] Counsel for the wife also submitted that the husband failed to disclose the credit card statement in which the purchase of the Cartier ring would be found. However, the purchase of that ring was not disputed by the husband.

[56] As mentioned above, I found that the wife had not fully disclosed her assets.

[57] As for the number of years that the wife had not been a full-time homemaker, I was of the view that the different allegations were not material for present purposes and I need not make a finding thereon. For all the allegations, it was not disputed that the husband was considered as the sole breadwinner and the wife was the primary caregiver of the children and had taken care of the home wherever they resided. The submission for the wife was that her share of the pool of matrimonial assets should be between 40% to 45% and the submission for the husband was that it should be between 30% to 40%. Naturally the wife wanted 45% and the husband countered with 30%.

[58] After considering the factors set out in s 112 of the Women’s Charter (Cap 353, 2009 Rev Ed), I might have granted the wife 40%. However, in view of her non-disclosure of some assets, I granted the wife 37% of the pool of matrimonial assets and the husband 63% of the same pool. The same division applied to the first two of the separate assets mentioned in [14(a) and (b)] above. Accordingly, the pool of assets as well as the first two of the separate assets were to be apportioned along this division. My oral judgment reflected this division and the mechanics of implementation.

[59] As for the third of the three separate assets [14(c)], the husband held one painting. The wife held 17 paintings, drawings and prints. The value of every one of these items was not established. The husband proposed the following:

(a) Each party to keep the item(s) in his/her possession; or

(b) the husband and the wife are to exchange the item(s) held by each of them; or

(c) all the items be sold and the net sale proceeds be divided between them as decided by the court.

[60] The wife did not agree to any of the sensible options proposed by the husband. Neither did she disagree.

[61] I allowed each party to keep the item(s) in his/her possession.

[62] Each party went into some detail about the children’s expenses but as they were very close in their assessment of the overall quantum of such expenses it is unnecessary for me to reiterate such details.

[63] The wife had initially claimed in her initial written submission that general maintenance of the children amounted to $4,823 per month and the school and educational expenses of the children amounted to $5,575 per month. This made a total of $10,398. She wanted the husband to pay 66.66% thereof amounting to $6,932 per month.

[64] However, in her revised written submission, she increased the amount for general maintenance of the children to $5,503. The difference of $680 was derived as follows. Firstly, in her initial written submission, she claimed $20 per month for pocket money for them but she said that this was a typographical error and should have been $200 per month. She was now increasing her claim to $300 per month. The difference between $300 and $20 is $280. Secondly, in her initial written submission, she did not claim anything for holiday expenses for the children but in her revised written submission, she claimed $400 per month.

[65] As for the school and educational expenses of the children, the wife kept to her initial claim of $5,575 per month for that item.

[66] So, based on her revised written submission, the total of her claim for the monthly expenses of the children was $11,078 (ie, $5,503 + $5,575). She was claiming that the husband should pay two-thirds thereof amounting to $7,385.33 per month.

[67] In the husband’s written submission, he was prepared to pay $6,500 per month as his share of maintenance for the children. In oral submissions, his counsel said he was prepared to increase this to $6,900 per month. This was very close to the $6,932 per month which the wife was seeking based on her initial written submission which she then increased to $7,385.33 per month as stated above.

[68] I accepted that the wife should be allowed to claim $200 per month (but not $300) for pocket money for the children and $400 per month for their holiday expenses. This meant a reduction of $100 per month from her total of $11,078 amounting to $10,978. 66.66% of that sum is $7,318. I therefore ordered the husband to pay $7,318 per month for maintenance of the children. In the revised written submission for the wife, she claimed arrears of maintenance for the children (and for herself) from January 2009 but in oral submission, her counsel asked for it to commence from April 2009. The reason was that the husband had stopped paying maintenance for the children although he did pay for their school fees. The claim for arrears of maintenance for the children was not vigorously contested by the husband. Therefore, I ordered their maintenance to commence from April 2009. However, I allowed the husband to set off any sum he had paid in the meantime from April 2009 for the children’s expenses, including but not limited to school fees, travel or handphones, against the $7,318 per month.

[69] The wife also mentioned that there would be an increase in school fees and the rent for their accommodation. I ordered the husband to pay 66.66% of any increase in school fees in or after June 2011 and 66.66% of the children’s share (ie, also 66.66%) of any increase in rent from June 2011 upon production of satisfactory evidence by the wife of any such increase. As details are found in my oral judgment, I will not repeat them here.

[70] The wife said her expenses were $5,980 per month and claimed maintenance from the husband amounting to 66.66% thereof, ie, $3,986 per month since she was no longer claiming 70% of the pool of matrimonial assets. She wanted maintenance to be provided in a lump sum using a multiplier of 15 years.

[71] The husband accepted the wife’s expenses of $5,980 per month but queried whether he should be responsible for $250 thereof which was for the wife’s parents. He also took the position that in view of her earning capacity, he would offer only $100 per month for her maintenance. He was also prepared to pay lump sum maintenance. When I asked the husband’s counsel whether he was still prepared to pay lump sum maintenance even if the calculation for her maintenance was based on a much higher figure than the $100 per month which the husband had offered, his counsel assured me that he still preferred to pay in one lump sum. The husband also agreed to a multiplier of 15 years for the lump sum calculation.

[72] I therefore had to determine the multiplicand. As mentioned above, the husband accepted the wife’s expenses at $5,980 per month subject to the $250 which was for the wife’s parents. I did not see why he should assist her in whatever she wanted to provide for her parents. The reduced sum is therefore $5,980 - $250 = $5,730 per month.

[73] The wife sought 66.66% of her expenses. Based on $5,730 per month, this amounts to $3,820, as the multiplicand. While the 66.66% proportion appeared consistent with the 66.66% that the husband would be paying for the children’s expenses, the wife was not in turn paying for 33.33% of the husband’s expenses. He was paying entirely for his own expenses which he claimed to be $25,756.13 per month in his affidavit of assets and means. If I were to deduct his expenses for mortgage for the property in Singapore (which has been sold), the mortgage of the property in the United Kingdom (“UK”), details of which are found in my oral judgment and management fee for the UK property because it will be sold, his expenses would be reduced to around $8,241 per month. The payment of $1,162 which the husband said he was to pay an agent in respect of the Singapore property would cease after a while. If that expense was omitted from his regular monthly expenses, such expenses would be reduced to about $7,079 per month.

[74] While there is yet no legal obligation for a wife to maintain a husband, that does not mean that a court should ignore the fact that a husband is paying for his own expenses entirely while a wife is claiming maintenance from him. Of course the wife might have also said that the husband’s actual expenses were less than $7,079 per month.

[75] As for the respective earning capacities, I was of the view that the husband could earn $25,000 per month and the wife could earn $13,000 per month.

[76] All things considered, I was of the view that a fair multiplicand would be $1,900 per month which is about 33.33% of her monthly expenses of $5,730 per month (see [73] above). Using a multiplier of 180 months (for 15 years), the lump sum maintenance for the wife would be $342,000.

[77] While the wife mentioned a rent increase from June 2011, I did not think I should take that into account for her maintenance because she would have the benefit of accelerated payment from the lump sum.

[78] Also, since the multiplicand was agreed at 180 months, there was no question of back-dating her maintenance to grant her any arrears of maintenance.