Ng Ngah Len @ Datin Sandra Kuah v Kuah Tian Nam @ Dato Peter Kuah

[1] This matter came before me as an appeal against orders made by the District Judge in relation to the ancillary matters that arose when the petitioner wife was granted a decree nisi of divorce against the respondent husband. Both parties had appealed against the orders made but, at the start of the hearing, I was informed by counsel for the husband that he had no instructions from the husband in relation to the wife’s appeal or in relation to his own cross-appeal. Counsel then asked for leave to be excused from the hearing. I granted his request. Accordingly, only the wife’s appeal went on and the husband did not appear and was not represented at the hearing.

[2] The wife had appealed against the judge’s orders in respect of the division of the matrimonial property and lump sum maintenance. The judge had ordered that the husband was to pay the wife lump sum maintenance of $2 million and a further sum of $15 million as the wife’s share in the matrimonial assets. In the a notice of appeal filed by the wife she asked for the following relief:

[3] Having heard and considered the submissions of counsel for the wife, I allowed the appeal by:

Those were the sums that I deemed just and equitable having regard to all the circumstances of the case. The wife, however, is still dissatisfied.

[4] The judge’s decision was challenged on two bases. First, she had found that the matrimonial assets were worth at least $100 million. Counsel submitted that on the facts before the District Court, the judge should have found that the value of the matrimonial assets was at least $120 million though on the wife’s own calculation their value was in excess of $129,132,239.63 and RM 5,073,000. Secondly, in awarding the wife 15% of the matrimonial assets, the judge had failed to give adequate consideration to various factors enumerated in s 112(2) of the Women’s Charter (Cap 353) (‘the Act’).

[5] In coming to her conclusion that the matrimonial assets were worth at least $100 million, the judge took into account the following:

The judge had to rely on the aforesaid factors in coming to her conclusion as she did not have full details of the values of the matrimonial assets and was not satisfied with the disclosure that the husband had made. Although the wife had contended that the $120 million page showed that the husband had assets of at least $120 million, the judge rejected this inference as she considered that the figures in the document must have referred to some value or some of money but it was not clear whether they referred to amounts in Singapore currency or Malaysian currency or any other currency. She did not consider safe to conclude that the words ‘100 million’, ‘10 million’ and ‘10 million’ in the $120 million page referred to Singapore dollars 120 million.

[6] The judge was very careful in her analysis of the evidence on the value of the matrimonial assets. I could find no fault with her reasoning. The wife’s assertion that the matrimonial assets were worth much more than $100 million was not backed up by evidence.

[7] As regards the judge’s assessment of the wife’s contributions to the marriage and the acquisition of the matrimonial assets, it was submitted that she had failed to give sufficient regard to the extent of the wife’s financial contributions in property towards the maintaining of the matrimonial assets as required by ss 112(2)(a), (b) and (g) of the Act.

[8] The contributions which the wife relied on were as follows:

in order to raise funds to help his business and for personal expenses

[9] The wife was a housewife throughout the 21 years that the marriage lasted. Although she was a director of Sanpete Development (S) Pte Ltd, there was no assertion or evidence that she had been more than a nominal director or that she had contributed to the business of this company. The husband’s considerable financial empire was built up by his own efforts. The judge in deciding to award the wife 15% of the matrimonial assets took into consideration the length of the marriage; the wife’s contribution in providing a home for him in Singapore; her contribution in supporting him when he was building up his business empire and remaining with him through his business failures; and also that the wife had not caused him problems until 1997 despite his many years of infidelity. She considered that the wife’s claim to 40% of the matrimonial assets was excessive. I agreed with her on this. However, I also considered that the judge had not paid sufficient attention to the financial contribution made by the wife. Although such financial contribution was modest, it deserved recognition especially since it helped the husband during the period when his business was not doing well. Also, the wife had by granting mortgages over property which she owned solely or co-owned with the husband undertaken a personal liability which also had to be recognised as part of her contribution. It could not be forgotten, however, that the wife’s assets had ultimately come from the husband’s efforts as well. Weighing up all these factors I considered that the maximum share of the matrimonial assets that it would be equitable to award the wife would be 25% thereof. In these calculations, I also made allowance for the fact that the husband did not make complete disclosure of his assets and therefore about five per cent of the amount awarded to the wife was given to her as a share of the undisclosed assets.

[10] In the court below the wife had asked for a lump sum maintenance of $15.12 million based on the amount of $60,000 a month for 21 years. The husband had contended that his financial circumstances had changed drastically since the marriage broke up in 1998 and the wife should only get $600,000 based on $5,000 a month for ten years. The judge did not believe the husband’s allegation relating to his adverse financial circumstances in view of the way he had conducted his life since the divorce. At the same time, she did not accept the wife’s claim of $60,000 a month as it included the mortgage payment for the Lady Hill bungalow which had already been sold. It also included amounts to cover the salaries of a driver and security guard which the judge considered unnecessary. The judge noted that previously interim monthly maintenance of $12,000 had been awarded in addition to payments for the gardener and maids which the wife no longer had. The judge ordered $2 million as lump sum maintenance based on $12,000 a month for 14 years on the basis that the wife had a substantial sum from her share in the matrimonial assets which she could use to set up a new home. The judge considered the period of 14 years as a reasonable period bearing in mind the respective ages of the party (the wife was 46 years old and the husband 52 years old at the time of hearing) and the length of the marriage.

[11] The appeal against the maintenance awarded was mounted on two fronts. First, it was contended that the period of 14 years was not long enough. Secondly, it was contended that the sum of $12,000 a month was inadequate.

[12] On the period, counsel cited the case of Ong Cheng Leng v Tan Sau Poo [1993] 3 SLR 137 for the proposition that the straight line calculation would be preferred ie taking a compromise between the average life expectancy of a Singapore woman (70 years) and the usual retirement age (65 years) of a Singapore male worker less the wife’s present age. It was contended that the 14-year multiplier adopted by the judge showed that she expected the husband to retire at 67 years old. The husband, however, had had his fourth child at the age of 49 and one would not expect him to retire so soon. In fact he could not afford retire so soon. Accordingly, the multiplier of 14 years adopted by the judge was wrong. Further, the wife came from a family with a history of longevity, her grandmother died at 102 and her mother was still alive and healthy at 75. The wife was 46 at the time of hearing and had asked for a multiplier of 21 years on the basis of the Tan Sau Poo decision even though that would bring her age up to 67 and she could expect to live much longer than that. The District Judge, by taking a multiplier of 14 years, had capped the wife’s life expectancy at 60.

[13] I did not agree with counsel that the approach to the multiplier set out in Tan Sau Poo was a strict rule which had to be followed by all courts considering this question. In that case, Karthigesu J, delivering the judgment of the Court of Appeal, observed that the straight-line basis applied by the judge at first instance seemed proper ‘in the circumstances of this case’. I understood this to mean that the approach to be adopted when assessing the multiplier for lump sum maintenance would primarily be guided by the circumstances of the case before the court. In this case, as in most cases, one had to take account of three facts: first, that if the parties had remained married, the death of the husband would have ended the wife’s maintenance, secondly, there would have to be some allowance made for the fact that the wife would be obtaining her maintenance in a lump sum and up front, and thirdly, the amount of the wife’s own assets. In view of those factors, I thought only a slight adjustment needed to be made to the multiplier. I substituted a period of 16 years because I thought that it was reasonable to take the retirement age of the husband in this case as 68. Being self-employed, he did not have any compulsory retirement age but since he was also well heeled, there would be no financial need for him to work till he dropped. As far as the wife was concerned, 16 years would take her up to her early 60s and even if she lived for a considerable period beyond that, she would be reasonably comfortable if she was a sensible steward of the lump sum maintenance.

[15] I accepted that the wife was entitled to be maintained at a fairly high level since the husband could afford it. Even so, I considered that the wife’s expenses were extremely high. The sum of $50,954.80 was derived as follows:

_________

$50,954.80

========

The wife’s list of expenses showed an extravagant, not merely luxurious, lifestyle. Items 1 and 2 alone came to $21,032.80 and this expenditure apparently had nothing to do with her food, clothing, medical bills or her payments for utilities, entertainment, gifts and foreign travel. Whilst the sum of $12,000 a month seemed low in comparison with the wife’s lifestyle during the marriage, it appeared to me that she could not justify more than $50,000 a month in maintenance. On a consideration of the evidence, my judgment was that $20,250 a month would be more than sufficient to keep the wife well. I came to this sum on the following basis:

_________

$20,250.00

========