WLE v WLF [2023] SGHCF 14

The plaintiff (“the Wife”) and the defendant (“the Husband”) were married on 13 March 1999. Their marriage subsisted 22 years. The Husband is 53 years old and is an ad hoc adjunct lecturer at various universities. Prior to his retirement in 2018, he was a managing director in a multinational accounting firm. The Wife is 52 years old and is a human resource practitioner in a statutory board. They have two children, a son aged 22 and a daughter aged 19 (“the Children”). The interim judgement of divorce was granted on 20 September 2021. The parties agreed to have joint custody of the daughter. They also agreed that the Husband have care and control over the Children, with reasonable access be given to the Wife. The remaining ancillary issues are the division of matrimonial assets and the maintenance for the Children.

On the issue of the division of matrimonial assets, the following assets are in dispute as to their valuation or inclusion in the matrimonial asset pool:

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The Matrimonial Home was purchased in about 2008 for $1,280,000.00. The Wife says that the current value should be $2,080,000.00, based on the valuation report she obtained from Knight Frank Pte Ltd dated 18 May 2022. The Husband, relying on a report from Allied Appraisal Consultants Pte Ltd dated 16 August 2021, says that its value should be $1,700,000.00 instead. I accept the Wife’s valuation of $2,080,000.00 as it is closer to the date of the ancillary hearing.

The second disputed asset is the withdrawal of $67,746.74 on 15 March 2019 from the Husband’s OCBC bank account, which Husband alleges was an investment in the IAP Network that had failed. The Wife asks for this investment sum to be added back into the matrimonial pool because the Husband’s explanation for the withdrawal is not credible. However, the Husband says that he had exhibited sufficient evidence to refute a prima facie case of dissipation, and, in any case, there should be no adverse inference drawn because divorce was not even contemplated when the monies were invested. I agree with the Wife that the Husband’s explanation is not credible. The only documentary evidence suggesting that the investment had failed was a letter from one William Vacher dated 22 February 2022 stating that the investment had failed. Who is Mr Vacher and what basis does he have to certify that the investment had failed?

The money was paid out without any formal documentation such as term sheets which are common in private equity investments, such as this alleged investment (based on what Mr Vacher says in his letter). No evidence of negotiations and correspondence between the Husband and the IAP Network was documented. How can it be that the first acknowledgement of receipt by the IAP Network of that money should come 3 years after the money was paid out from the Husband’s account, and that such acknowledgement comes in the form of a bare letter exhibited by the Husband with a signature which was unprofessionally pasted electronically? Furthermore, if the investment had failed, it is surprising that the Husband did not take any step to recover the money. Although divorce might not have been contemplated at the time of the alleged investment, the Wife is entitled to an explanation of significant drawdowns from the Husband’s bank account, which is a matrimonial asset, for the purposes of tracing funds into other assets which the Husband may have acquired. Where explanations are not credible, such as in this present case, it is appropriate to draw an adverse inference against the Husband. The sum of $67,746.74 must be added to the matrimonial pool.

The final category of disputed assets is the Wife’s watches and jewellery, which the Husband says are valued at $153,500.00. The Wife says that these watches should be excluded from the matrimonial pool as they are of low value, but if the court is minded to ascribe a value to them, they should be valued at $13,000.00. The Husband concedes that his valuation are mere estimates, and not supported by independent valuation. Conversely, the Wife had produced correspondence with pawn shops in support of her valuation. $13,000.00 is low in comparison to the value of a matrimonial asset pool that is more than $5,000,000.00 before accounting for disputed assets. Moreover, the parties have agreed in their submissions to exclude the watches owned by the Husband from the asset pool. Accordingly, I exclude the Wife’s watches and jewellery as they are of de minimis value.

Accordingly, the pool of matrimonial assets for division is as follows:

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Wife’s Name

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The difficulty in counsel’s submissions on both sides lay in their attempt to quantify the unquantifiable. The matrimonial home was purchased in 2012, but the mortgage was only fully paid in 2018. With the interest payable changing every year as the principal amount owing is progressively reduced, neither party was able to calculate the actual purchase price of the matrimonial home. The indeterminacy of parties’ contribution is further complicated by their claim that they applied profits from two property investments, which themselves were plagued with the same inaccuracy of approximation, towards the repayment of the mortgage for the matrimonial home. The Wife, in her written submissions, conceded that “[t]otal payments […] add up to $1,574,853.25, a reasonable estimate based on the sale price, the loan quantum […] and the number of years parties paid interest” (sic). The Husband says that the total payments add up to $1,636,653.25, but also admitted this was based on multiple approximations of the sale proceeds and contributions to the previous properties. In my opinion, the lawyers were carrying out an arithmetic exercise in futility. The more sensible way is to allow some slack by either side — the give and take, commonly referred to as the broad-brush approach for attaining a just and equitable division under s 112 of the Women’s Charter 1961 (2020 Rev Ed) (“the Charter”): see NK v NL [2007] 3 SLR(R) 743 at [27]-[29].

The same difficulty in calculating financial contributions to the matrimonial home applies to the joint bank account. Not only were the proceeds of sale of parties’ joint investments deposited into that account, it is also unclear how much the parties had deposited and withdrawn from that account over the years. For the above-mentioned reasons, I am of the view that a ratio of 41.5% (Wife): 58.5% (Husband) would be a reasonable middle ground.

As for indirect contributions, the Husband says that the ratio ought to be 80%: 20% in favour of the Husband. On the contrary, the Wife says that a ratio of 60%: 40% in her favour is appropriate. This was a long marriage of 22 years, with two children who have now grown up. The Husband primarily relies on the affidavits of the Children to justify his indirect financial contributions. It is obvious that these affidavits were prepared by counsel. The first four paragraphs of both children’s affidavit are almost identical. These were not limited to standard allocution (which the Children would obviously not be acquainted with), but also extended to personal views of the children. For example, the son’s affidavit reads:

The daughter’s affidavit reads:

The Children’s affidavits are one-sided. The Husband’s contributions are discussed with positive words and an admiring tone, but the Wife (their mother) is disparaged — even as to her character. I agree with the Wife’s counsel that these affidavits were probably embellished. Many statements are either overstated, contradicted by evidence, or concern matters that the Children could not possibly have personal knowledge of. For example, the assertion that the Husband was the primary caregiver of the children since their birth is surely hearsay. It is also undisputed that the Husband had to be out of the country for extended periods when the Children were growing up. The Wife had adduced documentary proof of her involvement in the Children’s life, including their education, getting meals for the family, and managing the domestic helpers. On the contrary, none of the Children’s affidavits mention the Wife’s contribution in this regard. More examples in the Children’s affidavit showing assertions of facts that could not have been within their personal knowledge, include: (the daughter stating) “I am much closer to my father than my mother as he has been more involved in my care since I was born”. The son also says that the pocket money which he received came from the Husband — that could only have been told to him by the Husband himself.

It may be a fact that the Children are not fond of their mother, or of her parenting style, but I am of the view that the Wife had discharged her duties as mother and homemaker. The evidence shows her involvement in the Children’s lives — their education, well-being and day to day needs. Numerous correspondence between the Wife and the Children’s school teachers and tuition teachers were adduced. They show a pattern of dedication over the years to the Children’s academic and emotional well-being. Just because the Wife’s care and love went unappreciated, or even rebuffed by her children and husband does not make them untrue or without value.

I accept that the indirect non-financial contributions were provided for predominantly by the Husband. This is not surprising as the Husband outstripped the Wife significantly in his earning capacity. Having regard to the evidence, I am of the view that a fair ratio for non-financial contribution would be 45% (Wife): 55% (Husband).

As this was a long marriage, I accord direct and indirect contributions equal weight. Each party is thus entitled to the following:

The next issue concerns the maintenance of the Children. The Husband asks that the Wife contribute half of the Children’s monthly expenses, which amounts to $3,711.66 for the daughter and, for the son, $2,240.40 from March 2021 to February 2023 and $2,646.43 from March 2023 onwards. Conversely, the Wife’s counsel submits that a payment of $400.00 per Child is sufficient to meet their reasonable expenses.

The Husband says that the household expenses of the matrimonial home where the Children presently reside amounted to $7,126.10. The itemised expenditure list and my decision is as follows:

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Maintenance for the child should not include items of expenditure that the parent with care and control would in any case have to incur even if that parent did not have care and control. For example, standard household expenses, such as MCST Fees, property taxes, Wi-Fi, property insurance and home phone bills, would be incurred regardless of whether the Children live with that parent. The mere fact that the Children have access and enjoy these household items does not mean that they are expenses of the Child. These items would have been paid for by the Husband even if he did not have care and control of the Children. The economic effect of including these as reasonable expenses of the Children is to order the Wife to subsidise the Husband’s living expenses. This is not the purpose of child maintenance, which focusses on the reasonable expenses of the Children. Conversely, items such as utilities and groceries can reasonably increase proportionately with the number of household members. It is in respect of those household items that the maintenance obligation is reasonably divided among the number of household members.

As for the daughter’s reasonable expenses, the Husband says that it ought to be $7,423.33 and the Wife says that it is $1,915.70. Maintenance is ordered, not to indulge the child with luxuries, but to provide for her reasonable financial needs. Furthermore, maintenance is also not a corporate reimbursement scheme where every item of expenditure is proved and claimed by the parent who has care and control of the children against the other parent. The following items were listed by the parties:

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Finally, the Crimson Logic Academic Guidance which I have disallowed was a claim by the Husband that he would spend a total of $26,782.00 for the daughter’s university admissions, which he has amortised over four years, thus arriving at $557.96 per month. He says that as of 22 September 2022, two payments amounting $10,618.80 and $7,079.00 have been made. The fact that an item of expenditure has been paid for does not necessarily mean that it is a reasonable expense for which maintenance must be ordered under the Charter: see WBU v WBT [2023] SGHCF 3 at [9]. Moreover, these payments were made post-divorce and the decision to incur this expenditure is, in my opinion, a unilateral decision of the Husband based on his parenting style. The law does not hold back the Husband from indulging the daughter, but it also cannot compel the Wife to contribute to such indulgence. In the unfortunate breakdown of a family, the question of maintenance is limited to a test of reasonableness. Accordingly, the court will only order divorcing parties to pay what is reasonable for the child, and no more. The reasonable expenses of the daughter, as calculated, is $1,941.67 but I will round it to $2,000.00.

Having determined the quantum of maintenance, the next issue is how it ought to be apportioned between the parties. The Wife asks for an order that she only contribute $400.00 a month to the maintenance of each Child. Counsel for the Husband relies on the case of TBC v TBD [2015] 4 SLR 59 at [27] for the proposition that the starting point should be that parents bear the financial burden of maintenance equally. In my view, the Wife’s position is too low, but I do not accept the Husband’s position. As Debbie Ong JAD held in WBU v WBT [2023] SGHCF 3 at [34]-[36]:

The Wife’s income based on her 2020 IRAS Notice of Assessment (“NOA”) is $104,042.00 (averaging $7,048.00 monthly). The Husband asserts that his earning capacity as $4,222.38 a month, based on his 2021 Income Tax Notice of Assessment where his assessable income was $75,477.00. On this basis, the Husband says that parties are of relatively equal earning capacity and are able to bear the maintenance burden equally.

However, what is relevant for the apportionment of the maintenance obligation is not one’s last earned income, but one’s earning capacity. Between the two, the Husband’s earning capacity outstrips the Wife significantly. For Year of Assessment (“YA”) 2017, the Husband’s assessable income was $472,380.00 (averaging $39,365.00 monthly). In YA 2018, the Husband’s assessable income was $561,661.00 (averaging $46,805.00 monthly). In YA 2019, the Husband’s assessable income was $508,960.00 (averaging $42,413.00 monthly). In YA 2020, the Husband’s assessable income was $285,287.00 (averaging $23,773.00 monthly). All this is before accounting for the Husband’s expansive investment portfolio. Although this is not captured by the income tax NOAs, investments are nevertheless an income stream that must be considered when ascertaining the Husband’s earning capacity.

I order that the Wife contribute $900.00 for the daughter’s living expenses. In the circumstances, this is fair and reasonable considering the disparity in parties’ earning capacity, which is consonant with the Husband’s own submission on the extent of his indirect non-financial contribution during the marriage. Although the asset pool that each party is entitled to is sizeable, a large portion of its value is locked into illiquid assets.

As the son is above the age of 21, no order of maintenance shall be made unless the court is satisfied that the order is necessary: see s 69(5) of the Charter. As for his daily expenses, the parties have agreed to provide maintenance for the son, but they dispute the amount to be provided. I am of the view that having come of age, it cannot be said that it is “necessary” within the meaning of s 69(5) of the Charter to make an order of maintenance for the son’s daily living expenses. He had been serving National Service for the past two years where a reasonable allowance was provided. From the son’s perspective, the parties’ offer to provide maintenance should be seen as a privilege, not a right. Since there is no longer a legal obligation to maintain a child after he becomes an adult, the contributions by the parents are to be regarded as purely voluntary, at their own discretion. Beyond such voluntary contributions, the son must learn to be financially independent and provide for himself. I thus make no order as to maintenance for the son’s daily living expenses and the parties are free to contribute as they deem appropriate.

In UYU v UYT [2021] 3 SLR 539, I was faced with a similar application, only that in that case, it was the child himself who took out the application for maintenance against his own father. I held in that case that: