VOW v VOV [2023] SGHCF 9

Introduction

Background

Interim Judgment (“IJ”) was granted on 3 September 2020. On 2 November 2020, the learned DJ ordered the Wife to pay interim maintenance for the two children. The divorce proceedings were contentious. On 14 January 2020, the Husband filed an application for a Personal Protection Order (“PPO”) against the Wife for his own benefit and on behalf of the two children, on the ground of family violence. On 12 October 2020, after a hearing where the Husband withdrew the application for a PPO for himself but continued with his PPO application for the two children, a PPO was granted against the Wife for the protection of the two children.

Decision of the learned DJ

The learned DJ also determined the amount of maintenance for the children, and ordered the parties to contribute in proportion to their earnings. The expense attributable to the children for the rental apartment that they shared with the Husband was included in the amount of maintenance payable by the Wife until such time that the matrimonial home was handed over to the Husband.

Issues on appeal

Errors in determining and valuing matrimonial assets

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.

Parties’ cases on appeal

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.

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”.

Analysis

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]):

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]).

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.

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”.

Concessions by the Parties

Disputed Assets

Analysis

(1) Item 6: Tokenize Exchange Account

(2) Item 7: Blockfi Account

(3) Item 8: Binance Account

The Joint Summary

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.

Ratio for division of the matrimonial assets

I turn to the issue of the division of the matrimonial assets.

Decision below

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:

Contribution

Amount from Husband

Amount from Wife

Matrimonial Home

$475,260

$267,334

BOC multi-currency account

$792.78

$339.77

Assets held in sole name

$419,569.60

$847,190.90

Total

$895,622.38 (45%)

$1,114,864.67 (55%)

As for the parties’ indirect contributions, the learned DJ found that the Husband paid for the majority of the family’s expenses for the larger part of the marriage before the parties separated. Also, after the separation and before the interim maintenance order was made, the Husband bore all the expenses for the children. As for the indirect non-financial contributions, the learned DJ found that the parties probably did share responsibility for the children before the separation, but after the separation, it was the Husband who had made the major indirect non-financial contributions. Taking the above into consideration, and considering the length of the marriage, the learned DJ determined the appropriate ratio for indirect contributions to be 60 : 40 in favour of the Husband.

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:

Husband

Wife

Direct Contributions

45%

55%

Indirect Contributions

60%

40%

Average Ratio

52.5

47.5

Adjustment

2.5%

-2.5%

Final Ratio

55

45

Parties’ cases on appeal

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.

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.

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.

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.

The Husband therefore argues that in the light of his contributions, relative to the Wife’s, and in the light of the factors under s 112(2) of the Women’s Charter 1961 (2020 Rev Ed), including the young ages of the children and the Wife’s long rent-free occupation of the matrimonial home, the final division ratio of 55 : 45 ordered by the learned DJ in his favour ought not to be disturbed.

Analysis

I have no reason to disturb the learned DJ’s finding that the Husband had made substantially more indirect financial contributions. The Wife did not show how the learned DJ erred in finding that it was the Husband who paid for the majority of the family’s expenses for a large part of their marriage before the parties separated. In particular, the Wife does not dispute the Husband’s assertion, and the learned DJ’s finding, that throughout the marriage until December 2017, the Husband had deposited his entire salary into the parties’ joint DBS account while the Wife made periodic transfers into that account, and that it was from that account that the bulk of the family’s expenses were paid. The Wife also does not dispute the Husband’s assertion that even when the Husband ceased depositing his entire salary in the DBS joint account after December 2017, it was the Husband who paid for the majority of the family’s expenses. The Husband’s assertion that the Wife had withdrawn more moneys than she had paid into the parties’ DBS joint account is also not challenged by the Wife. The learned DJ’s finding that the Husband had contributed the “lion’s share of the indirect financial contributions” and all the expenses of the children after the separation and before the interim maintenance order appears to be consistent with the financial position of the parties at the end of their marriage (see [59] below); the value of the assets that were held in the Wife’s sole name was substantially more than the value of the assets that were held in the Husband’s sole name although the Husband was the higher income earner throughout the marriage.

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.

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.

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.

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:

Contribution

Amount from Husband

Amount from Wife

Total

Matrimonial Home

$475,260

$267,334

$742,594.42

BOC multi-currency account

$792.78

$339.77

$1,132.55

Assets held in sole name

$419,569.60

$744,116.78

$1,163,686.38

Total

$895,622.38 (47%)

$1,011,790.55 (53%)

$1,907,412.93

Contributions

Husband

Wife

Direct Contributions

47%

53%

Indirect Contributions

60%

40%

Average ratio

53.5

46.5

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.

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.

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.

Based on the adjusted calculations at [59] above, if a 2.5% uplift in favour of the Husband is applied, the final ratio for division would be 56 : 44 in favour of the Husband. Taking a broad-brush approach, I am of the view that it is fair for the final (post-adjustment) ratio for division of matrimonial assets to remain at 55 : 45 in favour of the Husband. In any case, it is the Husband’s position that the final ratio ordered by the learned DJ ought not to be disturbed.

Retention of the matrimonial home by the Husband

I turn to the issue of the learned DJ’s order for the Husband to retain the matrimonial home.

Decision below

In effecting the division of the matrimonial assets in the ratio of 55 : 45 in favour of the Husband, the learned DJ ordered that the parties retain the assets held in their respective sole names. The moneys held in the parties’ joint account were to be transferred to the Husband. The Wife was ordered to transfer (other than by way of sale) her share and interest in the matrimonial home to the Husband within six months from the date of the certificate of Final Judgment, and the Husband was ordered to pay into the Wife’s CPF account a sum of $57,385. Finally, as the learned DJ found that the Husband’s parents had given him a loan of $31,259.77 for the purchase of the matrimonial home, she further ordered the Husband to repay the loan from his share.

Parties’ cases on appeal

The Wife argues that the learned DJ erred in the manner in which she ordered the matrimonial assets to be divided. The Wife submits that the parties should instead be left to work out the mechanics of the division of the matrimonial assets. In the alternative, the Wife seeks an order for a valuation report for the matrimonial home to be obtained, for the matrimonial home to be sold within six months from the date of the order at or above the valuation price, for the Husband to have the first option to purchase the property at the valuation price, for the parties to have joint conduct of the sale and for each party to be entitled to appoint his or her own property agent to market the property, and for any increase in the value of the matrimonial home to be divided in the same ratio as the division of assets.

The Wife argues that no basis was given by the learned DJ as to why the Husband should retain the matrimonial home. Moreover, the manner in which the learned DJ divided the pool of matrimonial assets has given rise to seemingly arbitrary results. This is because the Wife’s share of the matrimonial assets consisted mainly of the equity investments which were held in her sole name and which were “largely volatile with marked-to-market instantaneous valuations”. The Wife asserts that since the AM hearing, the value of the matrimonial home had increased by $305,000, and this increase would accrue solely to the Husband based on the learned DJ’s order. In contrast, the market value of shares and cryptocurrencies, which made up a significant portion of the investments that were held in the Wife’s sole name and which were ordered by the learned DJ to be retained by the Wife, had plummeted in value. The Wife adds that the parties had always contemplated a sale of the matrimonial home and division of the net proceeds, and the learned DJ’s decision took her by surprise such that she did not have an opportunity to prepare a valuation report.

The Husband in reply contends that it was within the court’s discretion to decide which party keeps which asset, and that it is sensible and logical to order the Wife to keep all the equities under her sole name and for the Husband to retain the matrimonial home upon payment of the shortfall to the Wife. Furthermore, it has always been the Husband’s stand that he wishes to move back to the matrimonial home with the children, and this had been communicated to the Wife and her former counsel from the start of the proceedings. In addition, the ordering of a sale of the matrimonial home would not be in the best interests of the children. As the Husband has no intention of selling the home but instead wishes to resume staying there with the children, whether the Husband would receive a windfall from the sale of the matrimonial home is purely theoretical. As for the valuation of the matrimonial home, the Husband contends that the Wife had agreed in her third and final Joint Summary and at the AM hearing on the valuation of the matrimonial home, and the valuation is supported by Urban Redevelopment Authority (“URA”) sale transactions data involving similar properties. That valuation should not be disturbed as there is an interest in the finality of court proceedings.

Analysis

As explained in Fong Wai Har v Seah Boon Chai and another [2016] SGHCF 4 at [4], under s 112 of the Women’s Charter, the court aims to reach a just and equitable division of the matrimonial assets in the light of all the circumstances of the case, particularly the factors enumerated in s 112(2) of the Women’s Charter and “the court decides on the most practical and fair way for each party to obtain the portion of assets determined to be their just and equitable share”. Section 112(2)(c) of the Women’s Charter expressly provides that it is the duty of the court to have regard to “the needs of the children … of the marriage” in exercising its powers of division. The courts have ordered the matrimonial home to be retained by the party having care and control of the children in past cases. In Tham Khai Meng v Nam Wen Jet Bernadette [1997] 1 SLR(R) 336 (“Tham Khai Meng”) at [38]–[39], the Court of Appeal reasoned that the needs of the young children, aged ten and eight, was an important consideration and found that the house should not be sold but be transferred to the wife so that she and the children would have a roof over their heads. Tham Khai Meng’s case was cited with approval by the Court of Appeal in ANJ v ANK at [48]. In Koo Shirley v Mok Kong Chua Kenneth [1989] 1 SLR(R) 244 (“Koo Shirley”) at [27], the High Court similarly ordered the husband to transfer all his interest in the matrimonial property, and the wife to forego all her claims on the other assets, so as to give the wife and children a permanent roof over their heads and afford them some security.

In this case, the learned DJ made the order with a view to the Husband and children moving back to the matrimonial home after the Wife transfers her share to the Husband. This is evident from her order that the expense attributable to the children for the rental apartment that they share with the Husband should be excluded from the amount of maintenance payable by the Wife at such time the matrimonial home was handed over by the Wife to the Husband, since the children would not incur such rental expenses after moving back to the matrimonial home. This manner of division is well within the learned DJ’s discretion.

As regards the Wife’s contentions about the relative volatility of her assets and the change in the value of the matrimonial home, it would not be principled for the court to re-assess the division as the values of the assets shift. Unless there are special circumstances or compelling reasons, the mere change in the value of an asset between the date of the ancillary orders and that of the hearing of the appeal per se should not be a ground to revisit the division made by the court below: ATT v ATS [2012] 2 SLR 859 at [25]. Here, no special circumstances or compelling reasons are provided to justify a review of the division ordered by the learned DJ on account of changes in the valuation of the matrimonial assets.

Further, in relation to the matrimonial home, the value was agreed at the AM hearing before the learned DJ, and stated in the third and final Joint Summary signed by both parties’ solicitors. The method of valuation agreed upon by both the Husband and the Wife was to use the average of transaction values from June to September 2021 (ie. agreed dates that were close to the date of the AM hearing) in relation to similar properties, in a manner that accorded with well-established principles (BPC v BPB and another appeal [2019] 1 SLR 608 at [49]). In addition, given that the Husband and children will be moving back to the matrimonial home, there is no reason for the court to order a re-valuation of the matrimonial home or to prefer any particular date over the AM hearing date to account for changes in the value of the property. It is a given that assets are susceptible to fluctuations in value over time. It cannot be the case that the valuations of the matrimonial properties have to be revisited on appeal just because one party asserts that the values of some of the properties have risen or fallen.

I also do not accept the Wife’s argument that the court should only order the division of the matrimonial assets according to a certain ratio but should not make pronouncements as to how the parties should divide the assets, or that the parties should be left to work out the mechanics of the division themselves. In a case such as this, where the parties have demonstrated that they have difficulties in coming to an agreement, such an arrangement will likely result in even more protracted litigation.

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:

(i) $1,907,412.93 x 55% = $1,049,077.11

(ii) $1,049,077.11 - $419,250.60 = $629,826.51

(b) Wife’s share of matrimonial home:

(i) $1,907,412.93 x 45% = $858,335.82

(ii) $858,335.82 - $744,116.78 = $114,219.04

Accordingly, the Wife is ordered to transfer 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. The Husband is ordered to pay into the Wife’s CPF account a sum of $114,219.04, being part of the CPF refund. As ordered by the learned DJ, the Husband is also to repay the loan taken from his parents to finance the purchase of the matrimonial home from his share of the matrimonial assets.

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.

Maintenance for the children

I turn finally to the issue of maintenance for the children.

Decision below

The learned DJ determined the monthly expenses of the elder child to be $4,450 (including rent) and $3,250 (excluding rent) and that of the younger child to be $4,290 (including rent) and $3,090 (excluding rent). The learned DJ determined that parties were to share the expenses in proportion to their earnings, which was 55 (Husband) : 45 (Wife). She thus ordered the Wife to pay to the Husband maintenance for the two children as follows: for the elder child, $2,000 prior to handover of the matrimonial home and $1,460 after handover; for the younger child, $1,930 prior to handover of the matrimonial home and $1,390 after handover.

Parties’ cases on appeal

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.

The Wife also argues that the learned DJ erred when considering certain expenses expected to be incurred by the children. Firstly, the Wife asserts that the learned DJ erred in determining the expenses for the children’s tuition and extracurricular activities (being $412 and $414 per month for the elder and younger child respectively). Instead, she seeks an order that the parties are to discuss and agree on the children’s enrolment in tuition and extracurricular activities, and the parties will bear the expenses in the ordered ratio for the children’s maintenance. Secondly, the Wife argues that the learned DJ erred in including expenses for medical and life insurance (being $277 and $215 per month for the elder and younger child respectively). She submits that there are no documents to prove that the children have any such insurance and the inclusion of “life insurance” suggested that the beneficiary of the policies is the Husband such that it would not be appropriate to make the Wife contribute to the policies.

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.

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.

Analysis

I first consider whether the amount of maintenance ordered by the learned DJ is reasonable. Going by what the Wife had asked for the maintenance of the children before the Husband was granted sole care and control, I do not find the learned DJ’s assessment of the maintenance required by the children to be unreasonable. In this regard, I note the following observations made by the learned DJ in her Grounds of Decision:

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.

In relation to how much each parent should contribute to the maintenance that has been assessed by the court, the law is clear that each parent is equally responsible for maintaining their child or children, and the court may order one parent to bear more of the maintenance in cases where both parents are unable to contribute equally. I refer to the oft-cited passage in TBC v TBD [2015] 4 SLR 59 (“TBC”) at [27], which provides useful guidance:

I turn to consider the ratio in which the learned DJ ordered the parties to bear the children’s expenses with these principles in mind.

I first note that the learned DJ did not order the parties to make equal contributions to the maintenance of the children even though both parties are high income earners. She ordered the parties to contribute in the proportion of their average annual income, which was 55 (Husband) : 45 (Wife). The Wife is still dissatisfied because the learned DJ arrived at the proportion of the parties’ earnings using their average annual income as opposed to their average annual basic income, which would yield a ratio of 66.5 (Husband) : 33.5 (Wife). It is clear from the evidence that a significant portion of the Wife’s income accrued from commissions and bonuses. As these commissions and bonuses constitute part of the Wife’s financial resources, they should be considered when determining her ability to contribute to the maintenance for the children. There is no principled reason why commissions and bonuses should not be treated as income.

In relation to the Husband’s property in France, I first note that the Husband has provided some evidence showing that the property is “neither marketable nor tenantable”. The Husband refers to his voluntary discovery and interrogatories affidavit dated 7 April 2021, where, the Husband submits, he had detailed the dire state of disrepair of the property. Secondly, and more importantly, having regard to the sum of maintenance ordered and the parties’ significant financial resources, I do not consider that any potential rent from the property in France would have a significant impact on the learned DJ’s decision as to how much of the children’s expenses each party should be expected to bear. Thirdly, the Wife has other assets which may be analogised to the Husband’s French property, and which had not been considered when calibrating the Wife’s ability to pay maintenance. For instance, there is some evidence that the Wife has assets in Malaysia that are not part of the matrimonial pool. The Wife’s personal assets have also increased now as a result of the revisions made earlier in this judgment to exclude some of the Wife’s assets from the matrimonial pool. As a matter of parity, if the Husband’s French property is considered in determining his maintenance contributions, then the Wife’s personal assets should also be factored in. Therefore, even if the Husband’s French property could be rented out, I am not satisfied that this would increase the financial resources of the Husband, relative to the Wife’s, to such an extent that the learned DJ’s decision on maintenance for the children should be disturbed.

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.

As regards the Wife’s argument on the tuition and extracurricular expenses, I find that she has not shown how the learned DJ has erred. I note that the Wife acknowledges that tuition and extracurricular activities serve the function of “educating and equipping the children to ensure that they are future-ready”. The expenses for the children’s tuition and extracurricular activities fixed by the learned DJ are not excessive in the circumstances of this case. As for the Wife’s contention that the parties should first agree on specific tuition activities and that she would then contribute 33.5% for the agreed activities, I am not persuaded that the arrangement is practical given the acrimony between the parties. There comes a point when a court-imposed requirement for consultation and agreement on smaller details in day-to-day life may lead to unnecessary friction or even deadlock. There is, in any event, nothing in the learned DJ’s order to stop the Husband and the Wife from discussing the types of tuition and extracurricular activities that the children might be enrolled in as their needs and interests evolve.

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.

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

Conclusion and orders made

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.

(c) The Husband is to retain the matrimonial home on the terms ordered by the learned DJ in relation to the division of matrimonial assets, save that –

(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.