BCB v BCC

Andrew Phang Boon Leong JA (delivering the judgment of the court):

[1] This is an appeal by the Husband against the decision of the judge (“the Judge”) in BCB v BCC [2012] SGHC 144 (“the GD”) with regard to two issues, viz, the issue of care and control of the children and the division of matrimonial assets pursuant to s 112 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Act”), respectively.

[2] After considering the submissions of the parties, we were of the view that the Husband’s appeal with regard to the issue of care and control of the children was wholly without merit and dismissed the appeal for the reasons given by the Judge in the GD.

[3] However, we reserved judgment with regard to the issue relating to the division of matrimonial assets. Let us now turn to the background briefly before setting out our decision in relation to this particular issue.

[4] The matrimonial assets of the parties were as follows:

(a) The Braemar Home, with an estimated net value (deducting the loan) of $2.3 million;

(b) The HDB Flat, with an estimated net value (deducting the loan) of $273,000;

(c) Assets in the Husband’s name totalling $60,000; and

(d) Assets in the Wife’s name totalling $130,000.

[5] The Judge found it appropriate to exclude items (c) and (d) in the preceding paragraph from the equation, ordering that each party retain their respective assets. In so far as items (a) and (b) (“the Properties”) were concerned, the Judge found that the ratio of direct contributions by the Husband and Wife was 34.9:65.1. Insofar as the issue of indirect contributions was concerned, the Judge considered:

(a) the length of the marriage (15 years);

(b) the birth and upbringing of the three children;

(c) that the Husband had been as much involved in the upbringing of the children as the wife;

(d) the fact that the Husband travelled frequently and that, during these times, the Wife took care of the children on her own; and

(e) that the Wife’s income was principally relied on when the Husband was not doing so well in his business.

[6] Having regard to the circumstances, the Judge awarded the wife an additional 5% for indirect contributions.

[7] The general principles which ought to guide the courts with regard to the division of matrimonial assets pursuant to s 112 of the Act (“s 112”) are well-established and we therefore do not propose to rehearse them in detail here. We would only observe that, in the context of the present appeal, the very fundamental principle that the court concerned ought to utilise a broad-brush approach should be borne firmly in mind.

[8] It bears reiterating that this court, has, on previous occasions, stated its inability to agree with the traditional approach towards the division of matrimonial assets, which places undue emphasis (or even focus) on direct contributions. In NK v NL [2007] 3 SLR(R) 743 (“NK v NL”), for example, this court observed as follows (at [23]–[27]):

[9] With respect, it appears to us that the Judge applied, in substance, the traditional approach in the present case by placing more emphasis on the direct contributions of the parties (in particular, the wife). We are of the view that the broad-brush approach should have been utilised instead.

[10] The broad-brush approach is particularly apposite because, in the nature of things, an approach that is rooted in the forensic search for the actual financial contributions of the parties towards the acquisition of the assets will inevitably fail to adequately value the indirect contributions made towards the other expenses that are incurred in the course of raising a family and will also be a heavily fact-centric exercise. Moreover, these facts will typically not be borne out by contemporaneous records, as underscored by the court in Soh Chan Soon v Tan Choon Yock [1998] SGHC 204 at [6] (cited by this court in NK v NL, as quoted above at [8] of this judgment). The broad-based approach also avoids what this court has described as an otherwise fruitless “mechanistic accounting procedure reflected in the form of an arid and bloodless balance sheet” that “would be contrary to the letter and spirit of the legislative scheme” underlying s 112 (see NK v NL at [36], an observation which was most recently referred to by this court in AYQ v AYR [2012] SGCA 66 (“AYQ v AYR”) at [18]). Indeed, such a broad yet principled approach enables us to strike a balance between the search for a just and principled outcome in each case and the need to remain sensitive to the nuances of each fact situation we are confronted with. We pause to note – parenthetically – that this is why the Singapore courts have avoided extreme points of departure. For example, this court has held that there is no starting point, presumption or norm of an equal division of matrimonial assets, a holding that is wholly consistent with the legislative background which resulted in s 112 and its concomitant broad-brush approach (see, for example, the decision of this court in Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520 at [50]–[58]). Another example – to be considered in a moment – is the fact that the court will take into account both direct as well as indirect contributions by both parties to the marriage.

[11] The broad-brush approach is also buttressed by other complementary principles which tend not to be accorded their due weight under the traditional approach. One such principle is that indirect contributions of every stripe should be taken fully into account; in this regard, the following observations in NK v NL (at [34]), which were recently reiterated in AYQ v AYR [2012] SGCA 66 (“AYQ”) (at [24]), bear repeating:

[12] In our view, it is of the first importance to note that the observations quoted at the end of the preceding paragraph apply with equal force to both husband as well as wife alike. It is not simply one or the other spouse’s indirect contributions that must be given their full value; both spouses’ indirect contributions must be taken fully into account when the court concerned is exercising its discretion pursuant to s 112. The importance of this particular observation in the context of the present appeal will become clear in a moment.

[13] The trend in matrimonial division for marriages lasting ten years or longer, specifically marriages in which both parties were working and in which the couple had children, was discussed in a recent essay by Lim Hui Min, “Matrimonial Asset Division: The Art of Achieving a Just and Equitable Result” in SAL Conference 2011: Developments in Singapore Law Between 2006 and 2010 (Yeo Tiong Min, Hans Tjio and Tang Hang Wu gen eds) (Academy Publishing, 2011) at pp 191–271 (“Matrimonial Asset Division”). For the purposes of this appeal, a particularly apposite section of the essay reads as follows (at [101]):

[14] Several cases were listed following the above paragraph. For present purposes, a discussion of the Singapore High Court decision of AKF v AKG [2010] SGHC 225 (“AKF”) is particularly instructive.

[15] In AKF, the marriage lasted for 13 years. Both parties were employed during the subsistence of the marriage. The wife was an auditor and the husband in the advertising industry. Using the “global assessment methodology” (see NK v NL at [31]), the judge awarded the wife 40% and the husband 60% of the combined value of the total matrimonial assets. In that case, the judge observed as follows (at [25]):

[16] Whilst cases are decided on their individual facts, there are some similarities between the present case and the case of AKF. Both parties to the marriage were working. In the present case, it was a longer marriage but little turns on the additional two years of the marriage here. One party, here the wife (the husband in AKF), made a greater direct financial contribution to the matrimonial assets. The other party, here the husband (the wife in AKF), contributed towards the family’s welfare, both financially and non-financially. However, this is where the similarities end. In the present case, the husband was awarded 30% of the matrimonial assets, unlike the wife in AKF, who was awarded 40%.

[17] We now turn to other relevant decisions in order to obtain a general understanding of how cases on broadly similar facts have been decided. In the decision of this court in Pang Rosaline v Chan Kong Chin [2009] 4 SLR(R) 935, the parties were both working and had children. The marriage was also a lengthy one, lasting the better part of 32 years. The trial judge had divided one of the two properties concerned in the proportion 80:20 in favour of the husband. On appeal, this court varied the judge’s division on that property to 60:40 in favour of the husband. In doing so, this court held as follows (at [25]):

[18] In the recent decision of AYQ, the parties had been married for 23 years, and there were 2 children of the marriage. Both parties were working during the marriage, one as an aesthetics doctor and another as an eye surgeon. This court held that the division in that case should be 40.96% to the wife and 59.03% to the husband.

[19] In the Singapore High Court decision of Chow Hoo Siong v Lee Dawn Audrey [2003] 4 SLR(R) 481, the parties were married for 11 years and both were working during the marriage. However, there were no children from the marriage. Nevertheless, the court held (at [25]):

[20] In the Singapore High Court decision of Pan Yee Ching v Wee Aik Joo [2001] SGHC 351 (“Pan Yee Ching”), the marriage in that case lasted for approximately 17 years. There were two children of the marriage, and both parties were, for the most part, working during the marriage. The court held that it was just and equitable that the matrimonial asset in question (a flat) be sold and the proceeds be distributed to the parties equally. It is significant that the court “was not impressed by the evidence of either party”, observing that “both were totally nonchalant about the ancillary matters once the Decree Nisi was granted” (see Pan Yee Ching at [53]).

[21] In the Singapore High Court decision of Liew Chui Fong (mw) v Yew Kok Chin [2007] SGHC 225, the marriage lasted 28 years and the parties had two children. Both parties were working during the marriage. In that case, the court held (at [10]):

[22] In the Singapore High Court decision of YG v YH [2008] SGHC 166 (“YG v YH”), the husband and wife were married for eight years. There were two children of the marriage. Both parties were “full-time working adults” (see YG v YH at [55]). The wife in that case was held to have provided more direct financial contributions as well as some indirect non-financial contributions to the marriage, but the court ultimately held, using the broad-brush approach, that the appropriate division of the pool of matrimonial assets ought to be 55% for the wife and 45% for the husband. This was after it had found that the husband had provided more indirect financial contributions to the marriage (see YG v YH at [57]–[60]).

[23] In the decision of this court in Lim Choon Lai v Chew Kim Heng [2001] 2 SLR(R) 260, the parties were married for 30 years and both parties were working during the marriage. There were two children of the marriage. This court ordered a division of 60:40 of the matrimonial property in favour of the wife. In that case, the court had no doubt that during the 30 year marriage it was the wife who bore the main burden of supporting the family and providing for its welfare. The court also held that in terms of indirect contributions, the wife, who was a schoolteacher, probably had more time to spend with the family and children, unlike the husband, who worked as a clerk and who would not have been as likely to have had the time to spare in this regard.

[24] In the Singapore High Court decision of Wong Suit Kam v Tan Beng Wah Benny [2006] 2 SLR(R) 601, the parties were married for almost 33 years. Both parties were working throughout most of the marriage. As highlighted in Matrimonial Asset Division (at [101]), the wife’s direct financial contribution to the total matrimonial asset pool was slightly less than 20%. The court ordered that the distribution of the matrimonial assets between the husband and the wife should be in the ratio of 55:45, respectively.

[25] In the Singapore High Court decision of AHJ v AHK [2010] SGHC 148 (“AHJ”), the parties were married for seven years and there was one child of the marriage. Both parties were working. The court held that, besides two assets of the marriage, all other assets would remain the property of the respective parties. In relation to the two assets, the first being a St Martin’s apartment (which the husband acknowledged was within the pool of matrimonial properties for division (see AHJ at [19])), the judge held (at [26]) that “[a]lthough the wife’s indirect contributions were hardly significant and the property was bought years before the marriage (and most probably before the husband even knew the wife as she would still be a teenager in 1993), I decided, in viewing everything from a broad perspective, that she ought to receive 30% of its net value”. The second asset was the De Royale matrimonial home. In respect of this particular asset, the husband had claimed direct financial contributions amounting to 73% and asserted that the wife’s direct financial contributions were 27%. The husband asserted that he was the main breadwinner of the family and paid for most of the household expenses during the subsistence of the marriage, although the wife also claimed to have borne the bulk of these expenses (see AHJ at [18]). The judge held (at [27]) that with respect to “... the De Royale matrimonial home, ... 45% [of the net value of the sale proceeds] be given to the wife”.

[26] In the Singapore District Court decision of AEL v AEM [2009] SGDC 413, the husband and wife were married for only about 5 years, with a 5 year old son from the marriage. Both parties were working during the marriage. The asset in question was an HDB flat, where direct contributions were in the following proportions: 78% from the husband and 22% from the wife. The district judge held (at [7]):

[27] The purpose of highlighting the above decisions (which necessarily constitute but an indicative sample only) is to demonstrate a certain trend in cases that share broadly similar facts. This trend appears to be that, for marriages of moderate lengths of time (see, for example, AKF) or for marriages which have lasted for a very long time (see, for example, Rosaline Pang), and where there are children to the marriage and both parties are working and have made direct as well as indirect contributions to the marriage, the courts would recognise all these contributions despite arguments to the effect that one party had made more direct financial contributions.

[28] From a survey of previous decisions, it has, more often than not, been the husband who has been the one arguing that he has made greater direct financial contributions and should accordingly get no lower an amount than that which he had contributed in terms of his direct financial contributions. In the present case, it is the converse situation, as it was the wife who provided more direct financial contributions to the two assets and who argued before this court that the Judge was correct in taking that 65% direct contribution and adding a 5% premium for her indirect contributions. However, as we have already emphasised in the preceding paragraph, all contributions must be taken into account by the court in adopting a broad-brush approach.

[29] The converse situation where the wife has provided more direct financial contributions, whilst still very much more the exception rather than the rule (at least at the present time), has in fact been considered by our courts. In the Singapore High Court decision of Lim Ngeok Yuen v Lim Soon Heng Victor [2006] SGHC 83 (“Lim Ngeok Yuen”), for example, the marriage lasted for about 29 years and there was one child of the marriage. As the court in that case described it (at [6]):

[30] In point of fact, the husband only possessed a fraction of the wife’s assets and had contributed 24% in direct financial contributions towards the purchase of the matrimonial home. The court nevertheless awarded the husband 20% of the wife’s assets and 40% of the matrimonial home. However, the wife was allowed to retain all her interest in another property as “she had bought this property sometime after the parties had separated and after the husband had ceased to make contributions to the family, although technically it did form a matrimonial asset” (see Lim Ngeok Yuen at [45]).

[31] In arriving at its decision, the court observed as follows (at [40]):

[32] The court also observed thus (at [42]):

[33] Most importantly, perhaps, the court noted as follows (at [45]):

[34] Accordingly, whilst rare, our courts have dealt with situations where the wife has provided more direct financial contributions than the husband. Most importantly, for the purposes of the present appeal, the courts have applied the same principles as when they have had to divide assets where it was the husband who had provided more direct financial contributions, viz, that regardless of who had provided more direct financial contributions, the court is to consider all the direct as well as indirect contributions furnished by both parties to the marriage in a broad-brush fashion (see also above at [27]).

[35] Looked at in this light, we have, with respect, difficulty with the decision rendered in the court below in the present case. It would perhaps be easier to illustrate why we have this difficulty by considering a hypothetical fact situation which constitutes a variation on the facts of the present case. If, for argument’s sake, we reverse the genders of the parties in the present case, but leave all other facts as they are, these would be the facts: The wife – after 15 years of marriage in which she and her husband had both worked and contributed to the marriage, both directly and indirectly – receives 30% of the matrimonial assets, whilst the husband receives 70% of the said assets (as was the decision in this case). Such a division finds no precedent in the absence of exceptional factors. It is pertinent to observe that the court would, in all likelihood (and in accordance with the established precedents), have varied the division upwards in favour of the wife in this particular hypothetical fact situation. Accordingly, simply because the facts of the present case are slightly different in so far as it is the wife (instead of the husband) who has contributed more direct financial contributions to the assets does not mean that the same principles of division should not apply in the present case.

[36] We are of the view that the Judge, with respect, appeared to accord too much emphasis to the direct financial contributions of the parties. Whilst such contributions are not unimportant, they do not (as alluded to above) constitute the overriding factor. In order to explain why we arrived at this particular conclusion, it would be apposite to turn to the Judge’s treatment of the indirect contributions of the parties.

[37] Whilst taking into account the Husband’s indirect contributions in a more general sense (for example, his relationship with his children), the Judge did not, with respect, take sufficient account of the Husband’s indirect financial contributions. The Husband did contribute substantially to the family’s expenses, especially in the early years of the marriage before the Husband fell on hard times, and also post-2007. The Judge appeared to implicitly acknowledge this, when he stated in the GD (at [19]) that:

[38] When the Husband was doing well in his business, it was likely the case that the family had relied principally on his income. Indeed, it appears to us that whilst the Wife did contribute directly towards the mortgage repayments vis-á-vis the Properties, the Husband not only contributed towards these repayments (albeit less in quantum) but also to the family’s expenses.

[39] In this regard, there is – significantly, in our view – no evidence that the Husband had dissipated his salary (unlike, for example, the situation in NK v NL (see, especially, at [55]–[56])).

[40] In the circumstances, the appeal against the decision of the Judge in relation to the proportion of the sale proceeds of the Properties ought to be allowed. We are of the view that the net sale proceeds for the Properties should, taking into account all the relevant circumstances, be divided in the proportion of 40% to the Husband and 60% to the Wife instead.