VOW v VOV

[10] The learned DJ used the IJ date as the operative date for determining the assets that fell within the pool of matrimonial assets, and the closest possible date to the AM hearing as the operative date for valuing the assets, except for CPF and bank account moneys, which were valued on the date of the IJ. This approach accords with the authorities (ARY v ARX and another appeal [2016] 2 SLR 686 at [31]; TND v TNC and another appeal [2017] SGCA 34 at [19]; and UBD v UBE [2017] SGHCF 14 at [12]–[14]) and is not disputed on appeal. In summary, the learned DJ found that the matrimonial pool comprised:

(a) in joint names: a matrimonial home and a joint bank account;

(b) in the Husband’s sole name: Bank accounts, CPF savings, an investment account and insurance policies; and

(c) in the Wife’s sole name: Bank accounts, CPF savings, insurance policies and investments in equities and cryptocurrencies.

[13] Therefore, the Wife seeks to exclude Items 1 and 4 to 8 from the pool of matrimonial assets, and to attribute lower values to Items 9 and 10. After re-calculation, the Wife contends that the actual value of the assets in her sole name, which constitute part of the pool of matrimonial assets, should be $650,277.63.

[14] The Wife relies on Rule 828(4)(b) of the Family Justice Rules 2014 (“FJR 2014”) to support her contention that as long as any new argument sought to be raised on appeal is mentioned clearly in the appellant’s case, the appellate court can grant leave for the new point to be argued. She also relies on the cases of BOR v BOS and another appeal [2018] SGCA 78 (“BOR v BOS”) and Grace Electrical Engineering Pte Ltd v Te Deum Engineering Pte Ltd [2018] 1 SLR 76 (“Grace Electrical”) which, the Wife submits, support the proposition that “counsel are always allowed to refine and present new arguments on appeal, as long as these are substantiated by existing facts”. The Wife does not seek to tender any fresh evidence on appeal. Insofar as the position that the Wife takes departs from that which she had taken in the third and final Joint Summary of Relevant Information (“Joint Summary”), which was signed by the Wife’s former solicitors on 2 November 2021 and the Husband’s solicitors on 26 November 2021 and submitted to the court for the AM hearing, the Wife argues that the Joint Summary is simply a procedural tool designed to assist the court, and that the parties should not be “held too strictly to what is argued or not argued in the Joint Summary”.

[17] On the issue of whether an appellant should be allowed to raise new points on appeal which differ from the position the appellant took in the court below, the Court of Appeal held that there is no legal impediment as such, even if those points contradict the appellant’s pleaded case. Rather, the court would carefully consider whether to grant leave to the appellant to introduce new and even contradictory points on appeal, having regard to the following factors (BOR v BOS at [36], citing Grace Electrical at [36] and [38]):

[18] The Court of Appeal held in another case that there is a requirement that “leave to introduce a new point be sought and obtained, and that the relevant party must clearly state in its case that it is applying for such leave” (SGB Starkstrom Pte Ltd v Commissioner for Labour [2016] 3 SLR 598 (“SGB Starkstrom”) at [34]). In that case, the appellant sought to submit on the doctrine of substantive legitimate expectations before the Court of Appeal, when this doctrine was not raised in the court below. The Court of Appeal noted that the appellant did not comply with the requirement to state in its case that it is applying for leave to introduce the new point, but nonetheless held that it was clear that the parties had notice of the new issues, and the appellant was therefore allowed to attempt to raise the new point (SGB Starkstrom at [34]).

[19] The holdings of the Court of Appeal in Grace Electrical and SGB Starkstrom were made in the context of considering O 57 r 9A(4) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) as in force immediately before 1 April 2022 (“ROC 2014”). As O 57 r 9A(4)(b) of the ROC 2014 is in pari materia with Rule 828(4)(b) of the FJR 2014, the holdings with respect to O 57 r 9A(4) of the ROC 2014 apply with equal force here.

[24] From the foregoing, it can be seen that in relation to Items 1 and 2, the parties agreed that Item 1 should be given a value of $0 as the funds in Item 1 were transferred into Item 2. It is unclear why the learned DJ did not factor it into her decision. But other than for Item 1, the learned DJ was not provided with clear submissions or evidence as to why any of the other items should not be included in the pool of matrimonial assets. The learned DJ had also attributed to the said assets values with the parties’ inputs. This ought to be made clear as it is not obvious from the Appellant’s Case that any of the “errors” arose because the Wife is taking a different position on appeal relative to the position that she took in the proceedings below. The Wife did, however, state in the Appellant’s Case that the issues were “not really flagged to the Learned DJ”.

[43] In this case, the Wife did not adequately explain why she is taking a different position from that taken in the third and final Joint Summary for Items 6, 7 and 8 in Table 1. My decision to affirm the learned DJ’s decision with respect to those disputed items is therefore further fortified as the Wife did not offer any cogent reason to persuade the court that she should not be held to the binding position signed by her former solicitors.

[45] I turn to the issue of the division of the matrimonial assets.

[46] At the AM hearing, the parties agreed to using the structured approach for division of matrimonial assets as outlined in the case of ANJ v ANK. The learned DJ determined the parties’ direct contributions to the matrimonial assets in the following manner, with the values as reproduced below:

$475,260

$267,334

$792.78

$339.77

$419,569.60

$847,190.90

$895,622.38 (45%)

$1,114,864.67 (55%)

[48] The learned DJ thereafter adjusted the average ratio of the direct and indirect contributions by adding 2.5% in the Husband’s favour, to 55 (Husband) : 45 (Wife) in consideration of the needs of the children of the marriage, as well as the fact that the Wife has had rent-free occupation of the matrimonial home, as follows:

-2.5%

[49] The Wife argues that the learned DJ erred in her determination of the ratio for division of the matrimonial pool by placing excessive weight on (a) the Husband’s indirect financial contributions; and (b) the Husband taking over the role as primary caregiver from January 2020 onwards.

[50] In terms of indirect financial contributions, the Wife contends that although the family’s expenses, such as “fixed expenses” like tuition and school fees, were paid from a DBS joint account that was mainly contributed to by the Husband, she paid for “variable expenses” such as dining, outings and transport when the children were out with her. Further, she bore expenses such as the domestic helper’s salary, groceries, family holiday expenses and expenses related to the children’s needs. The Wife also contends that she made greater indirect non-financial contributions for almost 14 years from the time the parties were married in June 2006. According to the Wife, the children were primarily under her care prior to January 2020, and she took on the bulk of the household chores from the time that the parties were married until the time that the first child was born. In summary, the Wife argues that at least 60% of indirect contributions should be attributed to her.

[51] Additionally, the Wife argues that the adjustment of 2.5% made by the learned DJ was “wholly unnecessary” because the pool of matrimonial assets was large enough to cater to the children without the adjustment, and the Husband had voluntarily left the matrimonial home as opposed to being forced out. As the Wife had continued to contribute towards mortgage payments up till July 2022, she argues that the rent-free period should not be taken into account. The Wife submits that, in totality, the final ratio for the division of the matrimonial assets should be 55.5 : 45.5 in favour of her.

[53] In respect of the indirect non-financial contributions, the Husband disputes the Wife’s assertion that she was the primary carer of the children until separation. According to the Husband, the Wife had worked long hours as a successful insurance broker. The family had engaged a domestic helper when the first child was born in September 2012, and the family has had a domestic helper to-date. The Husband also points out that he had adopted a hands-on approach to taking care of the family, including looking after the children and doing things with the children that piqued and nurtured their interests in science.

[56] As for the indirect non-financial contributions, I also find no basis to interfere with the learned DJ’s finding that the parties had shared responsibility for the children during their marriage before their separation. Both parties contributed to the welfare of the family. For example, the Husband points out that he helped with changing diapers, was very hands-on with the children when he was at home instead of delegating their care to the domestic helper, and arranged for their extracurricular activities. As for the Wife, she highlights that she gave up her job as an air stewardess shortly after the marriage to accompany the Husband to Australia for his work. She also bore the burden of household chores, especially before the employment of the domestic helper, breastfed both children, and took care of the schedules, activities and homework of the children. Towards the later part of the marriage, even though both parties were in continuous full time employment, it appears that they both remained involved in caring for the children with the assistance of their domestic helper.

[57] The learned DJ took into account the Husband’s role as sole caregiver after the children left the matrimonial home together with the Husband. In this regard, the Wife contends on appeal that the learned DJ had placed excessive weight on the role of the Husband as the sole caregiver after the parties’ separation in January 2020. It appears that the Wife is not satisfied that due credit had been given to the many years that she had spent caring for the children and the family before the parties separated in January 2020. The Wife highlights that the Husband was the primary caregiver “for only a short period of 9 months” until the IJ. I am unable to agree that the learned DJ had placed excessive weight on the role of the Husband as the sole caregiver after the parties’ separation. The learned DJ had in fact considered that the parties shared responsibility for the children, and specifically mentioned that she had the length of the marriage in mind, when she determined the appropriate ratio to be applied for the indirect contributions.

[58] Given the Husband’s substantially greater indirect financial contributions to the family before the separation and his greater indirect non-financial contributions after the parties’ separation, together with his consistent partnership with the Wife in making indirect non-financial contributions throughout the marriage, I decline to interfere with the learned DJ’s determination of the appropriate ratio for indirect contributions at 60 : 40 in favour of the Husband.

[59] As I have varied the pool of matrimonial assets by excluding some of the Wife’s assets, the average ratio for division of the matrimonial assets will have to be re-calculated. Referring to the values arrived at by the learned DJ as reproduced at [46] above, the revised calculation, with the changes relative to the learned DJ’s calculation marked out in italicised font, is as follows:

$475,260

$267,334

$742,594.42

$792.78

$339.77

$1,132.55

$419,569.60

$744,116.78

$1,163,686.38

$895,622.38 (47%)

$1,011,790.55 (53%)

$1,907,412.93

[60] I now consider whether appellate intervention is warranted in respect of the 2.5% adjustment that the learned DJ made in favour of the Husband.

[61] As noted at [22] of ANJ v ANK, the court has to consider whether adjustments need to be made to the parties’ average percentage contributions to take into account, amongst other factors, the factors enumerated in s 112(2) of the Women’s Charter. The two factors cited by the learned DJ, namely the needs of the children of the marriage and the rent-free occupation of the matrimonial home by one spouse, are listed in ss 112(2)(c) and (f) of the Women’s Charter.

[62] In my judgment, the learned DJ had acted within the bounds of her discretion. The learned DJ did not err in law or fact in considering the needs of the two young children of the marriage. In relation to the Wife’s rent-free occupation of the matrimonial home, the fact that “one party occupies [the matrimonial home] to the exclusion of any benefit to the other” has been considered as relevant under s 112(2)(f) of the Women’s Charter even where there is no indication that the other spouse had been ejected and barred from returning (see, for example TRS v TRT [2017] SGHCF 3 at [15]). As for the Wife’s argument that she had continued to pay for the mortgage of the matrimonial home even after the Husband and children have moved out, and therefore the adjustment to account for her rent-free occupation ought not be made, I note that the learned DJ had given credit to the Wife for the mortgage payments she made throughout the marriage until 11 February 2022, which was the date of the AM hearing when submissions on mortgage payments were heard, in computing the direct contributions of the parties towards the acquisition of the matrimonial home.

[74] To summarise, I find no basis to disturb the learned DJ’s orders in respect of the manner of division. I will, however, have to make revisions to the sum the Husband must refund into the Wife’s CPF account when the matrimonial home is transferred to him, in the light of the variation in the pool of matrimonial assets. The revised calculation, with the revisions relative to the learned DJ’s calculations marked out in italicised font, is as follows:

(a) Husband’s share of matrimonial home:

(b) Wife’s share of matrimonial home:

[76] An issue that has not been raised as a matter for appeal, concerning which party ought to bear the recurrent payments such as the mortgage and other outgoings of the matrimonial home after the orders for ancillary matters were made by the learned DJ, arose after the hearing of the appeal. The parties should address the court and make full submissions with reference to the relevant authorities and the facts of this case if they are still unable to resolve the issue when they settle the accounts after the delivery of this judgment. I give the parties liberty to apply.

[77] I turn finally to the issue of maintenance for the children.

[79] The Wife argues that she should pay maintenance of only $858.61 and $824.44 for the older and younger child respectively, with a total of $1,683.05 for the maintenance of the two children. She contends that the learned DJ erred in using the parties’ average annual income from 2019 to 2021 in determining maintenance. Instead, she argues that the parties’ basic salaries should be used. Based on the basic salaries of the parties, the ratio for sharing the children’s expenses should be 33.5 : 66.5, with the Husband to bear the larger share. Moreover, the Husband has a property in France that could be rented out, and that should be factored in to determine the Husband’s ability to provide for the children.

[81] The Husband in reply contends that the children’s previous standard of living, prior to the breakdown of the marriage, is relevant in determining maintenance, and such a standard of living would necessitate higher maintenance payments. The expenses to be incurred for the children’s activities, such as tuition and extra-curricular activities, are reasonable and will continue to be incurred for the foreseeable future. The Husband adds that the Wife had submitted higher figures in relation to the children’s expenses in earlier proceedings when she was still asking for care and control of the children but lower figures after she conceded that the Husband should get care and control of the children.

[82] In relation to the parties’ financial resources, the Husband asserts that he had disclosed ample information about the poor state of his French property, which demonstrated that the Husband was unable to get rental income from the property. Moreover, the Wife has failed to consider her significant financial resources and income when considering her own ability to contribute in terms of maintenance payments for the children. The Husband contends that even if the Wife’s bonuses and commissions fluctuate, such income should be taken into account when considering maintenance, and any changes in the Wife’s personal circumstances can be dealt with in an application for variation of maintenance.

[84] The Wife contends that her previous claims for maintenance for the children must be understood in the context of her seeking maintenance from the Husband who was consistently earning more than $18,000 per month. Someone in her shoes earning less “would naturally request for a higher figure” and that “just because care and control was awarded to the Husband does not mean that the same figure should be applied the other way around”. I am unable to agree with the Wife. In determining the maintenance that a child requires, the court will consider the needs of the child and the child’s standard of living. This will be objectively assessed and should not vary simply based on who is paying for the maintenance. I find no reason to disturb the learned DJ’s assessment of the maintenance required by the children.

[89] I will next deal with the specific items disputed by the Wife, namely, the expenses related to the tuition and extracurricular classes, and the insurance coverage.

[91] Finally, in respect of the Wife’s argument on the children’s medical and life insurance policies, I find the insurance coverage for the children to be a reasonable expense and the amounts are also reasonable. The expenses for the children’s insurance coverage as fixed by the learned DJ is also commensurate with the Wife’s own estimates in the affidavits that she filed for the Originating Summons (Guardianship of infant) hearing. The learned DJ is therefore not wrong to have allowed them. I note that the Husband has since provided details of the children’s medical and life insurance policies to the Wife.

[92] For the above reasons, I decline to disturb the learned DJ’s orders on maintenance for the children.

[93] I summarise my orders as follows:

(a) The learned DJ’s decision in respect of Items 1 to 10 in Table 1 remains undisturbed, save that Items 1, 4 and 5 are to be excluded from the pool of matrimonial assets.

(b) The final ratio for division of the pool of matrimonial assets remains as 55 : 45 in favour of the Husband.

(i) the Wife is to transfer (other than by way of sale) her share and interest in the matrimonial home, free from encumbrances, and deliver vacant possession of the matrimonial home, to the Husband within three months of this judgment;

(ii) The Husband is to pay into the Wife’s CPF account a sum of $114,219.04, being part of the CPF refund.

(d) The orders of the learned DJ for the maintenance of the children are to stand.