TUV v TUW

[1] The parties were married in September 1996 and had four children (“the Children”). At the time of the hearing before me, the plaintiff husband (“the Husband”) was 48 years old, the defendant wife (“the Wife”) was 49 years old and the Children were 18, 17, 14 and 13 years of age. The two older children are boys (“the Sons”) while the two younger children are girls (“the Daughters”). One of the Daughters, Q, was diagnosed with cancer in December 2006. This was undoubtedly a difficult time for the family. Fortunately, Q has recovered.

[2] The Husband left the matrimonial home in September 2007 and filed for divorce shortly thereafter. Interim judgment for divorce was granted in August 2009. I heard the ancillary matters relating to custody, care and control of the Children, division of matrimonial assets, and maintenance for the Wife and the Children on 3 June and 22 August 2016. On 14 September 2016, I delivered my oral judgment with brief reasons. The parties have appealed against my orders and I now give fuller grounds of my decision.

[3] Although the Wife initially submitted that she should have sole custody, this was not a matter that was pursued during the hearings. The parties were content to have joint custody and the Husband was agreeable that care and control should remain with the Wife. The Wife also informed the court that she was supportive of the Husband having access to the Children. The aspects on which the parties wished the court to make specific orders related to access arrangements. The parties informed the court that there were no problems with access generally, but were of the view that specific access arrangements particularly in respect of the younger children and holidays would benefit the family.

(a) The Husband shall have reasonable liberal access to the Sons. Access to the Sons shall be mutually arranged, with the participation of the Sons, as the case may be.

(b) The Husband shall have access to the Daughters in the following terms:

(i) Alternate weekend access with (A) alternating with (B):

(A) overnight weekend access from Saturday 2.00 pm to Sunday 5.00 pm; and

(B) weekend access during the day on Sunday from 12.00 pm to 6.00 pm.

(ii) The third and fourth weeks of the June school holidays.

(iii) The third, fourth and fifth weeks of the December school holidays.

(iv) Alternate public holidays from 10.00 am to 5.00 pm. He shall have access on the first day of the Chinese New Year in one year and the second day of the Chinese New Year in the following year.

(c) The Husband may take the Children out of Singapore during his access time. He shall give the Wife 48 hours’ notice of his intention to take the Children overseas and the Wife shall provide the Children’s passports for the purpose of the overseas access.

[7] In ANJ, the Court of Appeal set out a structured framework consistent with the broad brush approach for the division of matrimonial assets that would sufficiently accord recognition to each party’s direct and indirect contributions to the marriage. The structured approach involves the following steps (at [22]):

[8] The Court of Appeal in ANJ cautioned that the application of the structured approach is not a return to an arithmetical exercise, which has been consistently eschewed by the court. For instance, the court observed that the parties’ direct financial contributions towards the acquisition of the matrimonial assets would often be far from clear. The broad brush approach is applied even in respect of ascribing a ratio which represents each party’s direct contributions: where the evidence falls short of establishing the direct financial contributions of the parties, the court must make a “rough and ready approximation” of the figures, approaching the issue with sound judgment, having regard to the “inherent veracity of each party’s version of events reflected in their affidavits or testimony as well as the documentary evidence” (see ANJ at [23]). This is an important point in the present case, and is a point that I will return to later.

[9] The parties’ most substantial matrimonial asset is their matrimonial home located at Alnwick Road (“the Alnwick Property”) which they own in joint names. Besides the Alnwick Property, the Husband also owns 48.41% of the shares in a real estate services company (“the Company”), where he is the Chief Executive Officer. The matrimonial assets also include bank accounts, insurance policies and motor vehicles. The pool of matrimonial assets were not disputed by parties, but the valuation of certain assets were disputed.

[10] At the first ancillary matters hearing on 3 June 2016, I directed parties to submit the most updated agreed summary of their matrimonial assets and their values (indicating the agreed values and the disputed values), in the form of a table. The parties subsequently submitted other information that I had directed be filed, but did not submit this tabular summary of matrimonial assets. At the subsequent hearing on 22 August 2016, without this direction being complied with, the court gave both parties copies of a table of figures reflecting the parties’ matrimonial assets and liabilities (“the Table”), which was prepared by the court from perusing the papers in these proceedings. Both counsel examined the Table and accepted the figures therein as accurate. The figures in the Table are presented below at [18]–[20].

[11] The operative date for the purposes of determining the value of the matrimonial assets I adopted in the present case is the date of the ancillary matters hearing. The Court of Appeal in Yeo Chong Lin v Tay Ang Choo Nancy and another appeal [2011] 2 SLR 1157 (“Yeo Chong Lin”) was of the view (at [39]) that Parliament did not intend to prescribe a definite cut-off date for identifying the pool of matrimonial assets, but stated that once an asset was regarded as a matrimonial asset to be divided, its value should be assessed at the date of the hearing of ancillary matters. This should be understood in the light of ARY v ARX and another appeal [2016] 2 SLR 686, where the Court of Appeal held that the date of the interim judgment of divorce ought to be taken as a starting point, but not a fixed operative date, for identifying the pool of matrimonial assets and further, that “the court has not only the discretion to select the operative date to determine the pool of matrimonial assets, it also has the discretion to determine the date at which those assets should be valued” (at [36]) [emphasis in original]. In my view, the date of the ancillary matters hearing ought to be used as a starting point as the operative date for valuing the assets. As it was impractical to have parties constantly updating every value each time the matter was fixed for hearing, the values which I adopted were the values which the parties adduced that were as close to the date of the ancillary matters hearing as possible.

[12] While the parties had agreed to most of the values stated in the Table, the value of the Alnwick Property and the shares in the Company were disputed. The parties initially took different positions on the value of the Alnwick Property. It was then agreed during the hearing on 3 June 2016 that the parties would appoint a valuer to conduct a valuation of the Alnwick Property. The Alnwick Property was inspected on 19 July 2016 by a valuer from Savills Valuation and Professional Services (S) Pte Ltd and valued at $4,100,000 as at 28 July 2016. This was the value I adopted for the purposes of the division exercise.

[16] The parties did not dispute the values of the other assets and were content to accept the values on the face of the documents. As stated above at [10], both counsel accepted the figures in the Table at the hearing on 22 August 2016.

[17] Based on both counsel’s confirmation, the following tables set out the assets and liabilities of the parties. These tables of assets only include assets which have a value of more than $1,000. The Husband’s joint bank accounts with the Children were not included in the pool of matrimonial assets as the amounts therein are small. Further, I treated them as intended for and belonging to the Children. One of the Husband’s bank accounts (OCBC Account No 5XX-X-XXX748) was also excluded as it was also held in the Husband’s mother’s name and had a relatively small balance of slightly more than $1,000 (as at 30 November 2015).

[18] The following shows the assets and liabilities in the Husband’s name:

The net asset value of the assets in the Husband’s name is $411,393.35 (which I rounded to $411,400 for ease of calculation).

[19] The following shows the assets in the Wife’s name (there are no liabilities in her name):

The net value of the assets in the Wife’s name is $328,388.28 (which I rounded to $328,400 for ease of calculation).

[20] The following shows the assets and liabilities in the parties’ joint names:

The net value of the assets in the parties’ joint names is $4,000,106.24 (which I rounded to $4,000,000).

[21] Based on these tables, the total net value of the matrimonial assets is $4,739,800.

[23] It was not disputed that $210,201.89 from the Husband’s CPF account and $264,911.19 from the Wife’s CPF account were used to purchase the Alnwick Property. It was also not disputed that the parties each contributed $73,784.70 for payment of stamp duties and legal fees. However, the parties advanced vastly different positions on their contributions with respect to other payments (eg, towards discharging the mortgage).

[24] The Wife’s position was that the funds for the acquisition came from the sale proceeds of the parties’ second property (“the Ripley Property”). The Ripley Property was purchased for $930,000 in 1999 and sold for $1,050,000 in 2002. According to the Wife, she had used the entire sale proceeds of $208,000 from the sale of a condominium unit which she owned solely (“the Tanglin Property”) to pay for the cash portion of the Ripley Property. When the Ripley Property was sold in 2002, the sale proceeds of $325,000 were used to purchase the Alnwick Property. Whilst the Husband agreed that the Wife had put in about $200,000 for the purchase of the Ripley Property, he also stated that he had put in more than $130,000 in cash, paid for the stamp duty and legal fees and funded the renovations for the Ripley Property such that his financial contribution to the Ripley Property exceeded the Wife’s financial contribution.

[25] Besides the issue of contribution to the Ripley Property, the Wife also argued that she contributed to the acquisition of the Alnwick Property through her director’s fees amounting to $473,000. It was not disputed that the Wife was a director of the Company during the subsistence of the marriage. The Wife’s position was that she assisted the Husband in the business, handled the accounts of the Company and received director’s fees which were used to discharge the mortgage over the Alnwick Property.

[27] Putting the assertions of the parties aside, the documentary evidence showed that the mortgage loan for the Alnwick Property was progressively repaid from 2002 to 2013. The Wife also exhibited income tax information for the years 2001 to 2011 which showed that she had been paid director’s fees. These income tax information were forms submitted by the Husband (as employer) to the Inland Revenue Authority of Singapore over those years as a declaration that these sums were paid by the Company to the Wife. However, there was little else by way of objective evidence. For example, there was no documentary evidence clearly showing the proportion of the parties’ direct financial contributions to the Ripley Property. Neither was there evidence indicating that the sale proceeds from the Ripley Property were used entirely to fund the purchase of the Alnwick Property, nor evidence which proved that the Wife’s director’s fees had been fully channeled towards the mortgage repayments.

[28] Many of the arguments proffered by the parties were not substantiated with documentary evidence. This was not surprising. It is only to be expected that when parties are still in a functioning marriage, neither may keep records of transactions with a view to producing them in the event of a divorce. As the Court of Appeal had noted in ANJ (at [23]):

The broad brush approach is thus also applicable to the process of reaching the parties’ direct financial contributions.

[29] Having regard to the totality of the evidence, I accepted that the truth was somewhere in between both parties’ assertions. In my view, the Wife’s director’s fees might have been used, in part, to repay the mortgage loan. I also accepted that both the Husband and the Wife had contributed to the purchase of the Ripley Property, and that the sale proceeds of the Ripley Property might have been used, in part, to fund the purchase of the Alnwick Property. At the same time, it was clear from the evidence that the Husband was the main breadwinner, who worked hard as a businessman and generated most of the parties’ wealth during the marriage. Although the Wife had contributed to the Company, her contributions were not as substantial as the Husband’s. Given the evidentiary difficulties, it was not possible to arrive at a precise mathematical conclusion, apart from these broad factual observations.

[30] It was therefore necessary to apply a broad brush approach and approximate the parties’ respective direct financial contributions to the acquisition of the Alnwick Property, having regard to the broad factual premises which I have observed above. To reiterate, it was likely that the funds for the acquisition of the Alnwick Property came from both the sale proceeds of the Ripley Property, the Husband’s own funds derived from the real estate business, and the Wife’s director’s fees that had been declared by the Company. In this regard, the sale proceeds of the Ripley Property were attributable to the efforts of both the Husband and the Wife. With this in mind and taking a broad brush approach, it was, in my view, fair to attribute the payments towards the acquisition of the property (after accounting for the amount contributed from each party’s CPF funds over which there was no dispute) in the proportion of 70% to the Husband and 30% to the Wife. The following table sets out the relevant calculations:

[31] The parties’ undisputed contribution of $73,784.70 each for payment of the stamp duty and legal fees may also be attributed to each of them as their direct financial contributions to the purchase of the Alnwick Property.

[33] As there was no evidence of the parties’ historical contributions towards the acquisition of the assets held in the parties’ own names, I applied a broad brush approach and used the value of the assets in the parties’ respective names (see [18] and [19] above) as reflecting their respective direct financial contributions.

[34] The ratio of the parties’ direct financial contributions to the matrimonial assets was thus computed as follows:

[35] The Wife submitted that she had taken on the role of homemaker even when she was working during the early years of the marriage. Between 1994 and 2000, the Wife was employed as a regional marketing manager in an American company. This job required her to travel a fair bit. Thus, in the early years of the marriage when the Sons were very young, she was working and caring for the family with the assistance of domestic helpers.

[36] In 2000, the Wife left her job with the American company. Between 2000 and 2004, she helped out in the Husband’s real estate business and studied for a bachelor’s degree in real estate valuation at the National University of Singapore in the years before 2004. During this period, the Daughters were born. It appeared from the evidence that, compared to the earlier years of the marriage, the Wife spent more time with the Children during this period.

[37] As mentioned earlier, Q was diagnosed with cancer in December 2006. This was a stressful time for both the Husband and the Wife. In her first affidavit of asset and means, the Wife detailed her efforts in taking care of Q. It was around this time that cracks began to appear in the parties’ relationship. The Children lived with the Wife after the Husband left the matrimonial home sometime in 2007.

[38] The Husband submitted that during the early years of the marriage, he was involved in looking after the Sons when the Wife was travelling for business. Not only did he provide for the welfare of the family then, he also took on responsibilities in the school advisory committee of Deyi Secondary School from 2004 to 2010. He was also involved in taking care of Q during the period of her illness and juggled between his home and business duties during this period.

[39] It was clear from the evidence that the Wife’s contributions to the welfare of the family were substantial. The parties had raised four children in this marriage. She was the main caregiver of the Children during the marriage and had taken care of the Children for many years after the parties were separated. Although she appeared to have spent some amount of time away from the family during the early years of the marriage, she played a much more active role in the family during the later years of the marriage, when she managed the Children’s daily needs, assisted them with their homework, and sent the Children for their various extra-curricular activities. During the period of Q’s illness, the Wife was heavily involved in caring for Q. In a report, Dr Chan Mei Yoke, Q’s doctor, noted that the Wife was the one who accompanied Q to her hospitalisation and outpatient appointments. The Wife stated that when Q was settled in the hospital ward, she would be home in the afternoon to check on the other children before heading back to the hospital later in the day.

[40] The Husband had also contributed to the family’s welfare in no small amount. It was important to note that the Wife was employed in the early years of the marriage, and that the parenting effort (especially of the Sons) would have come from both parents (though not necessarily to an equal extent). When Q was ill and the Wife was focused on caring for her, the Husband played a role in taking care of the home and the other children. Besides his care of the Children, the Husband also contributed substantially to the family’s welfare financially. As I have stated above, I had taken the amounts that the Husband paid towards the upkeep of the Alnwick Property (ie, the matrimonial home) as his indirect contributions to the marriage. This amount of approximately $800,000 is substantial and if it had been included in the calculation of the ratio of direct contributions, would have raised the Husband’s ratio by a fair amount. In my assessment of the facts, the Husband’s contribution to the upkeep of the matrimonial home was just one instance of his overall provision for the family. It was therefore important to give sufficient weight to this when this was being accounted for as indirect contributions. While this was not a precise mathematical exercise, due weight had to be given to the Husband’s efforts in providing a comfortable life for the family.

[41] In the circumstances, I found it fair to attribute the indirect contributions to the marriage in the proportions of 60% to the Wife and 40% to the Husband.

[42] Applying the structured framework in ANJ, the average ratio was derived as follows:

[43] This was a 13-year marriage where four children have been raised. Both the parties participated, to different degrees, in homemaking, parenting and the generation of wealth. Taking a broad brush approach, I found it just and equitable for each party to receive an equal share of the total pool of matrimonial assets valued at $4,739,800. This worked out to each receiving the value of $2,369,900 in the assets.

[45] The Wife submitted that an adverse inference ought to be drawn against the Husband for his failure to disclose his assets such as his ownership in a sole proprietorship known as RX, his safe deposit box, as well as some apartment units in Singapore and in Beijing. The Husband, on the other hand, alleged that the Wife had failed to provide the money trail of the Tanglin Property sale proceeds.

[46] I did not think that there was a sufficiently solid substratum of evidence upon which it was appropriate to draw an adverse inference against the Husband or the Wife. The Husband’s assertion against the Wife concerning the proceeds of the Tanglin Property was a bare one, not sufficiently supported by any prima facie evidence. Indeed, the evidence was that the Wife had purchased the Tanglin Property in 1995 and sold it in 1998 and unless the Wife was so unusually fastidious with record-keeping, it was only to be expected, given the passage of time, that she would not be able to provide coherent records of the money trail.

[47] I accepted that the Husband’s initial failure to disclose his interest in RX was a result of inadvertence and that the sole proprietorship was not of substantial value. The Husband also explained that he had closed up his safe deposit box in September 2008, and supported this with a letter confirming the closure of the safe deposit box.

[48] The Wife raised the issue of the Husband’s alleged apartment units in Singapore. Some of these units were located in a condominium development known as the Icon (“the Icon units”), while another unit was located in another condominium development known as the Riviera (“the Riviera unit”). In respect of the Icon units, it appeared that the Husband co-owned one unit with two other family members. There was evidence that other Icon units were purchased by the Husband’s family members or companies. During the hearing of 22 August 2016, the Wife’s counsel confirmed that the Wife was not asserting that the Icon and Riviera units were specific matrimonial assets to be included in the matrimonial asset pool but was only asking the court to make adverse inferences against the Husband. The Wife asserted that the Husband’s family members and companies were holding these properties for him. I was unable to find a prima facie case that the Husband was hiding assets in the name of his family members or the companies with respect to the Icon units. In respect of the unit in which he co-owned, there was little information provided about the source of funds for that purchase, when this unit was purchased or when it was sold. In an affidavit dated 22 May 2012, the Husband stated that the Icon units were purchased after the parties had separated and had already been sold, with the profits divided according to each person’s contribution. In my view, the Husband could have provided more information on the units he owned, but I find that his failure to do so was due to a lack of diligence and I was not satisfied that it was appropriate to make an adverse inference against him under the circumstances.

[49] As for the Riviera unit, this was owned by the Husband’s sister and appeared to have been sold sometime in 2009 or 2010 after the parties had separated. The Wife relied on a court judgment regarding the sale of this property involving the Husband’s sister, but the judgment only demonstrated that the Husband acted as his sister’s agent in the sale, and not that he had beneficial ownership of the property. This could explain why the Husband did not furnish further information on this property.

[50] The Wife also alleged that the Husband was concealing a property in Beijing, and relied on a transcribed conversation as evidence of this. The conversation apparently recorded the Husband speaking to a friend about money and a Beijing apartment. The transcript recorded a man speaking, but it was not clear from the transcript itself whether the man was the Husband, when the conversation took place, and with whom the conversation took place. Without more information, such as the primary recording or the evidence of how the recording took place, there was little weight, if any, that I could place on this evidence.

[51] Finally, although this was not a matter raised by the Wife as an issue before me, I note that, in relation to disclosures of the shares in companies held by the Husband, there was insufficient basis for me to draw an adverse inference against the Husband, even if he could have been fuller in the disclosures. The Husband had disclosed his shareholding in these companies from his first affidavit of asset and means and there was no evidence that he had an intention to actively conceal this information. When discovery was sought of the financial statements for 2009 and 2010, the Husband produced them. The Wife did not argue that the Husband’s interest in these companies ought to fall within the pool of matrimonial assets, and the only contest concerning the Husband’s shareholding in the various companies before me was in relation to the valuation of the Company, which I have dealt with at [13]–[15] above.

[52] The Wife is presently employed and earning an income. She submitted that she earned $2,800 per month. Although her income tax statements reflected a higher amount, it was explained that these were because her statements reflected the interim maintenance of $1,200 per month which she had been receiving from the Husband. I accepted this explanation which was substantiated by supporting documentation.

[54] The Husband submitted that the maintenance for the Children be fixed at $5,000 per month. On the other hand, the Wife submitted that the expenses of the Children amounted to about $9,500 per month. It is noted that the Children had been receiving $5,100 per month as interim maintenance.

[55] In my view, the list of expenses which the Wife exhibited were rather generous. For example, the list included an expenditure of $1,000 per month on holidays, and $460 per month on dining out, movies and concerts. Some of the sums, such as home maintenance of $400 per month were also questionable and, in my view, there was also some double-counting within the list of expenses. Also, the expenses of various items would fluctuate each month depending on the Children’s activities. A holistic approach ought to be taken, instead of one which microscopically analyses each item of anticipated expense.

[56] Expenses and needs are not the only factors to be considered. I note that the Husband was a man of some means. He earned an annual income of $227,204 in the past year (ie, year of assessment (“YA”) 2016), which amounts to an income of about $18,750 per month. I also note that the Husband earned the following annual income: (a) $152,932 in YA 2015; (b) $302,552 in YA 2010; and (c) $300,452 in YA 2009. The Husband has therefore been able to earn between $12,000 and $25,000 per month, though I noted that the Husband’s income in YA 2015 appeared to be somewhat of an anomaly relative to his income in other years.

[58] For the above reasons, I made the following orders:

(a) The parties shall have joint custody of the Children, with care and control to the Wife and access to the Husband on the specified terms.

(b) The Husband and Wife shall each receive 50% of the total pool of assets valued at $4,739,800.

(c) There shall be no maintenance for the Wife.

(d) The Husband shall pay $7,500 as monthly maintenance for the Children.

(e) The parties shall bear their own costs.