WUA v WUB [2024] SGHCF 10

The parties were married for 21 years, and interim judgment was delivered on 30 September 2020. The plaintiff husband (“the Husband”) is the CEO and majority shareholder of his company. The defendant wife (“the Wife”) is the director of business management in another company. They have two children, aged 21 and 18, respectively. The parties are before me for the division of matrimonial assets and their children’s maintenance. They agree that the date of ascertaining the pool of matrimonial assets is the date of interim judgment (“IJ date”) and the date of determining the value of the matrimonial assets is the date of the ancillary matters hearing (“AM hearing date”) — save for bank account balances and CPF account balances.

I first deal with the valuation of the undisputed matrimonial assets, and those with minor differences:

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The Matrimonial Home is the only joint asset of the parties. The difference of their valuations is not large. As both parties obtained their valuation on and around the same date, I take the average of the two values, which is $1,297,500. The Wife says that there are preparations being made for the collective sale of the Matrimonial Home which may affect the valuation but has not adduced any supporting evidence. I reject her claim accordingly.

Turning to the Husband’s assets, the parties before me agree to the exchange rate of 1 USD to 1.40 SGD. Applying this exchange rate to the Husband’s deVere policy, I accept the Husband’s valuation of $12,108.47. As for the St. James Place account, I accept the Wife’s valuation of $8,804.96 given that the early withdrawal charge ought to be 5% of the initial sum invested, $8,000, instead of 6%, as the Husband says.

In relation to the Wife’s jewellery collection, I agree with the Wife that the engagement ring is a pre-marital asset and should not be included in the pool of matrimonial assets. I accept the Wife’s valuation of $14,800 accordingly.

My decision regarding the rest of the matrimonial assets are as follows:

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Regarding the valuation of the shares in the Husband’s company, parties appointed a joint valuer, and they rely on the same valuation report. Yet, parties do not agree on the valuation. Without more evidence, I incline to the average of the two values, which is $522,083.49. As for the Husband’s Colonial Superannuation account, the dispute is over the exchange rate from AUD to SGD. I accept the Husband’s valuation taken in September 2023 as the more recent of the two, whereas the Wife applies the exchange rate as of December 2020. The Husband’s valuation date is closest to the AM hearing date.

The Wife says that the legal fees incurred by the Husband from the divorce proceedings should be added back to the pool of matrimonial assets because legal fees are not to be paid for using matrimonial assets. In principle, a party who incurs legal fees on the divorce and ancillary proceedings ought to use his or her own assets to pay for them first, rather than matrimonial assets. However, this principle does not lend itself to the Wife in the present case. I agree with the Husband that the legal fees were paid for by the Husband using his director’s fees earned in the year 2021, after the IJ date. This is reflected by the Husband’s Notice of Assessment issued by the Inland Revenue Authority of Singapore for year of assessment 2022 (which the Wife similarly relies on to show dissipation of assets). Thus, I am of the view that the Husband did not dissipate matrimonial assets in paying his legal fees.

I turn to deal with the Wife’s assets, beginning with the Wife’s Fidelity account. The valuation of her Fidelity Account turns on the valuation of the Microsoft stocks she holds in the account. Parties agree on the number of shares in the account to be 1135.831, and on the applicable exchange rate. What they do not agree is the price of each share. However, the evidence does not provide any indication on what the share price ought to be. The Wife’s evidence shows the share price to be USD 252.46, but from that same piece of evidence, the number of shares reflected (796.147) does not tally with the number parties agreed before me (1135.831). Furthermore, the Wife, in her written submissions, appears to rely on this number as the total value of shares (USD 254,460) instead of the individual share price (USD 252.460). I incline to the average of the two values proposed by parties, which is $310,038.24.

As for the Wife’s iGP account (account no. ending 05), the parties do not dispute its value at $3,193,594.20. However, the Wife says that the account is not a matrimonial asset as it was set up solely for the children’s benefit and she had named the account, “X and Y Trust”, after their two children (X and Y). She estimates the children’s overseas education fees and relevant expenses to be about $2 million, which is why she hopes that that sum of money in the account should be set aside solely for the children. However, there is insufficient evidence that she has applied these funds towards the children’s expenses since opening the account in 2014. There is also no evidence that the account is a trust established for the benefit of the children. The Wife is not the one managing the investments in the account and the requisite certainty of intention to create a trust is not established. I am thus of the view that the account ought to be regarded as a matrimonial asset.

In relation to the unvested stock options the Wife holds, the parties agree that there are a total of 932 unvested stock options as at IJ date. These unvested stock options vest over a period of five years from the award date, and with each passing year, 20% of the stock will vest until all the stock options are fully vested. It is also undisputed that a portion of these unvested stock options can be treated as matrimonial assets. Where parties disagree is the exact proportion.

The number of unvested shares, being 932, was calculated as of November 2021. However, the date of ascertaining the pool of matrimonial assets is 30 September 2020, on the date of IJ. In other words, the number of unvested shares as of 30 September 2020 would have, in fact, been higher than 932. The correct number of unvested shares ought to have been 1,348 (932 + 135 + 128 + 73 + 80). Although parties have agreed on 932 unvested shares, I shall proceed with the number obtained as of IJ date, 1,348, in accordance with established law.

The table below shows how the 1,348 unvested shares are vested over the 5 years beginning from the IJ date, accounting for the different dates of award.

Unvested stock options have been treated as the contractual right to receive options to purchase shares upon the fulfilment of certain condition(s). While their exact value may be hard to determine, the courts have differentiated the existence of an asset from the difficulties of evaluating that asset. Difficulties in valuation or division does not render a contractual right any less an asset.

Nonetheless, there are difficulties in valuation and division of such assets because stock options may not have been exercised nor even vest in the Wife. To resolve these difficulties, I grant a division in kind on an “if as and when” basis, applying to the unvested stock options only. Effectively, the unvested stock options will not only be split by their number instead of by their value, but the division will also be postponed until the stock options are exercised.

In summary, the total value of the matrimonial assets is as follows:

The direct contributions of parties to the matrimonial assets are thus as follows:

As for the parties’ indirect contributions, the Husband says that it should be 60:40 in his favour while the Wife says that it should be 70:30 in her favour. I am satisfied that, over the course of the 21-year long marriage, both parties have contributed financially and non-financially in spite of their different financial capacities and corresponding occupational needs. The parties agree that the Wife contributed about $100,000 towards the Husband’s company. Further, I am of the view that the Wife contributed substantially more towards the children’s education, tuition fees, personal endeavours, and other expenses. In the circumstances, I apportion the ratio 65:35 in the Wife’s favour.

Given that the direct contributions ratio is 76:24 and the indirect contributions ratio is 65:35, the final ratio is thus 70:30 in favour of the Wife. This ratio is to be applied to both the division of the unvested share options (944 to the Wife, 404 to the Husband) and the rest of the matrimonial assets.

As to the children’s maintenance, the Wife wants $3,937.38 per month for the children, while the Husband is willing to pay up to $977 per month. Both children are currently studying overseas. The older child is in her final year at Maastricht University in the Netherlands and the younger brother just began his studies in Langley School in the United Kingdom. The children’s expenses claimed by the Wife are as follows:

Older child’s expenses

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Total

$23,019.51

$4,721.93

$6,441.60

The Husband says that the bulk of the younger son’s expenses arising from his overseas education should not be borne by him because the Wife has previously undertaken, in FC/SUM 3438/2021, to pay for all his overseas expenses. The Wife herself confirms this in her submissions, and I shall not disturb the parties’ agreement.

I am of the view that the reasonable monthly expenses of both children are about $6,441.60. I do not consider enrichment classes, summer camps, fitness classes and pet care as reasonable expenses in the circumstances of this case. Although the Wife earns substantially more than the Husband, it would be fair for the Husband to bear about 30% of the children’s maintenance ($1,932 per month), and the Wife, who has a higher income, should bear the remaining 70% ($4,510 per month). The Wife earns $30,000 a month and the Husband earns $5,000 a month. The proportionate difference is 85:15, but the Husband to pay for just a few more years and there is also the iGP account moneys that is meant for the children. If that matrimonial asset was intended to be used for the children’s sole benefit, then the parties will no doubt put that sum of money to its intended use.