Lee Chi Lena v Chien Chuen Chi Jeffrey (Qian Jie, co-defendant)

Choo Han Teck J:

[1] This is an appeal by the plaintiff (“the wife”) against the decision of the District Judge (“the judge”). The judge refused to grant an injunction which the wife prayed for. Pending the wife’s divorce with the defendant (“the husband”) and the ancillary matters, she sought by way of a summons to restrain the husband from selling, transferring or in any manner disposing or dealing with a piece of real property in Shanghai (“the property”). The property is registered in the husband and the co-defendant’s names.

[2] The judge rightly acknowledged that the wife was entitled to apply for and the court to order injunctive relief in relation to the property if matrimonial proceedings are pending, pursuant to s 132 of the Women’s Charter (Cap 353, 1997 Rev Ed) (“the Charter”). She, however, dismissed the wife’s application on two grounds. First, she held that the wife merely had “an inchoate expectation in regards to the property”, and this was presumably an insufficient interest to be protected by way of an injunction. Secondly, even if the wife had a sufficient interest in the property, there was no proof of a “real risk of dissipation” [emphasis in original].

[3] With respect to the first ground, it is incorrect to hold that a wife has no sufficient interest in a particular matrimonial asset, prior to the hearing and decision of the ancillary matters, because she did not contribute directly or indirectly to the acquisition or enhancement of that particular asset. One must not confuse the existence and nature of an interest with its quantum or scope.

[4] In the typical case, after a just and equitable proportion of division of the matrimonial assets is arrived at by applying the “global approach” (see NK v NL [2007] 3 SLR(R) 743 at [30]-[33]), the court will allocate certain pieces of matrimonial assets amounting to that proportion’s value to the individual parties. Hence, while the particular assets from the pool of matrimonial assets which will be allocated to a wife may be uncertain, it is clear that as long as a wife is awarded a proportion of the assets which is greater than zero, then the possibility of her receiving a particular matrimonial asset exists. Even if the “classification approach” is applied the possibility of a wife receiving a share in a particular asset cannot be ruled out.

[5] Hence, although the nature of a wife’s interest in relation to that particular matrimonial asset prior to the division being performed may be sui generis and may be insufficient to support desired consequences in other legal contexts (eg, to register a caveat), it must be of a type which is sufficient to satisfy s 132(1) of the Charter which states:

The phrase “any rights in relation to that property” must be interpreted to include a wife’s interests in claiming a share of the matrimonial property. That interest is a basic and recognised legal right. Any other interpretation renders the provision nugatory.

[6] The judge held in her second ground that the wife failed to show that there is a real risk that the husband will dissipate the asset in question, ie, the property. This ground should be understood by reference to the effect of the dissipation instead. The focus should not be primarily on whether there is a “real risk of dissipation”.