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Grounds publishedDecided 18 Dec 2013
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High Court

Sim Kim Heng Andrew v Wee Siew Gee

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[2013] SGHC 271Case no. Divorce No 2639 of 2012 (Registrar's Appeal from Subordinate Courts No 83 of 2013)

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Grounds of decision

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  1. George Wei JC:

  2. [1] This is an appeal from the decision of learned District Judge Sowaran Singh in Sim Kim Heng Andrew v Wee Siew Gee [2013] SGDC 200 delivered on 10 July 2013 (“the GD”) in respect of ancillary matters in Divorce No 2639 of 2012.

  3. [2] The plaintiff (husband) is the appellant and the defendant (wife) is the respondent. The parties were married in February 1974. They have one daughter now aged 37. The appellant left the matrimonial home sometime in February 1993. On 31 May 2012, the husband filed for divorce based on their having lived apart for more than four years. Interim judgment of divorce was granted on 24 July 2012.

  4. [4] The appellant being dissatisfied with the decision in respect of the matrimonial home has appealed. He seeks an order that the matrimonial home be sold in the open market within 6 months of the final judgment of divorce and that the net sales proceeds (after paying the sales expenses and after refund of both parties CPF monies used for the purchase plus accrued interest) be divided equally.

  5. Background facts

  6. [6] The basic facts are set out in some detail in the GD. Whilst the marriage was of long duration (almost 39 years in total), it is not in dispute that the parties lived apart for a considerable period of some 19 years before divorce proceedings were actually commenced. While there was some dispute over the precise circumstances in which the appellant decided to leave the matrimonial home in 1993, there was no doubt that the decision lay at the door of the appellant alone. At the time the appellant left the matrimonial home, the daughter was already some 18 years old. The court notes that whilst there is some uncertainty as to whether the daughter had already started employment and whether the appellant assisted the daughter in finding a job in 1993, the daughter was already “grown up” and would soon have entered the job market (if she had not already in fact done so).

  7. [7] The respondent retired from her job as a telephonist with Singtel in 2001. The matrimonial home has been tenanted out since March 2010 and the respondent who is now 62 years of age is currently living with her daughter’s family. There is no dispute that the rental income over the past 3 years has been retained by the respondent.

  8. [8] The appellant who is aged 63 is still working as a taxi driver, and suffers from a number of health conditions (high blood pressure and diabetes). As a result, the appellant asserts that he is unable to work full-time. Since leaving the matrimonial home in 1993, it appears that the appellant has been staying at the home of a friend, [XY]. The appellant asserts that [XY] is a friend and that he pays a monthly rent for his room. There is evidence that [XY] has worked as a “relief taxi driver” on occasions for the appellant. The evidence as to the relationship between [XY] and the appellant is “thin” and it is unclear as to how often [XY] has worked as a relief driver for the appellant.

  9. The issues before this court

  10. [9] The main issue before this court is whether the matrimonial asset should be divided in the manner as suggested by the appellant (see above at [4]). Applying the broad brush approach, it is necessary to consider the other forms of contributions of the parties throughout the whole marriage in deciding how best to deal with the matrimonial asset. As to be expected in cases where the marriage is long and where the parties have separated for a considerable time, there are many areas of dispute over the facts relevant to the court’s assessment of the relationship between the husband and wife, especially as regards the matrimonial assets, household maintenance and expenses. The learned District Judge has set out in some detail the main facts and areas of dispute as gleaned from the affidavits that were filed in the proceedings and argued upon in the submissions. This includes a helpful survey comparing the different positions taken by the parties on the key points in dispute.

  11. [10] Given the need to consider the contributions of parties throughout the marriage, my decision is broadly structured in the following manner. What follows first is this court’s assessment of the facts relevant to division of the matrimonial home and maintenance based on the learned District Judge’s written grounds and the affidavits and submissions. This will be followed by a discussion of the legal principles and finally, the application of these legal principles to the facts.

  12. Facts relevant to the division of the matrimonial home and maintenance

  13. The matrimonial relationship

  14. Between 1974 and 1993

  15. [11] According to the appellant’s Affidavit of Assets and Means dated 3 September 2012 (“the appellant’s AAM”), after the marriage in December 1974, the couple first stayed with the wife’s father for a few years. Thereafter, the couple moved to rented accommodation in Toa Payoh before moving in with the appellant’s father for a few months. The parties then stayed in other rental accommodation until the purchase of the matrimonial flat in 1983. The appellant stayed in the matrimonial home until he decided to leave in 1993.

  16. [12] The daughter of the union, Eleanor, was born in 1975. The affidavits of the appellant and respondent set out in some detail the history of the matrimonial relationship. In coming to the decision on division of assets and maintenance, it is worth bearing in mind that it is usually not helpful to embark on a detailed examination of the events leading up to the breakdown of the matrimonial relationship and that in any case, where the marriage is long with events occurring long ago, there is bound to be some uncertainty and conflict over the details. That said, an overview of the relationship (subject to the caveat mentioned above) may be of some help in providing the context for the court’s decision on ancillary matters and property division and maintenance.

  17. [13] According to the appellant’s AAM (at para 23), marital difficulties began early with quarrels over “financial matters, household matters and issues relating to Eleanor, our respective parents and siblings.” The appellant’s AAM goes on to assert that even though he provided the respondent with a “sizable portion” of his salary for the family and household expenses, the respondent was not satisfied and complained frequently. The appellant describes an incident which he says occurred on 15 February 1994 when the respondent (allegedly) made a false police report against him for physical abuse occurring during an argument. The court notes that there is some inconsistency as to whether the incident took place in 1993 or 1994. That said, there is no doubt that the incident did take place around that time and resulted in the appellant leaving the matrimonial home. In all likelihood, the incident took place in 1993 (not 1994) although nothing turns on this. After spending a night in the police station, the appellant states (at para 27) that he “left the matrimonial flat for good” and that he “never went back thereafter.” The appellant also explains that he did not want to return to the matrimonial flat because he “realised that [he] could no longer live with the [respondent]” and that he was not charged because the police knew that “it was merely a family dispute.” According to the appellant’s AAM, the appellant first stayed at his mother’s home. It is not immediately clear as to when he moved in and/or started to rent a room from [XY] although it has been for a very long time and that is where he is presently staying.

  18. [14] According to the appellant’s AAM, during the first 20 years of marriage (until his leaving of the matrimonial home in February 1993) the appellant took care of the family and paid for all the major family and household expenses. He asserts that he gave the respondent about S$300–400 a month (in cash) and that overall he would spend about S$600 a month on the family. The appellant mentions at para 17(a) of the appellant’s AAM that even after he was made a bankrupt in 1984, he continued to provide for the family by doing odd jobs. That said, it is to be noted that the bankruptcy lasted a long time since he was only discharged from bankruptcy on 6 September 1999. During the period of marital cohabitation, the appellant also claims that he took his wife and daughter on holiday trips overseas once a year from 1979 to 1981 (to Penang, Kuala Lumpur and Batam) together with her father and sister-in-law. The appellant also asserts at paras 17(b)–(e) of the appellant’s AAM that he gave the respondent S$1,000 every Chinese New Year as well as sums of monies when he struck lottery. The response of the respondent to these assertions is that whilst the appellant did occasionally contribute towards Chinese New Year expenses, he never shared his lottery winnings and that the three trips (holidays) were the only three during the 19 years that they lived as husband and wife.

  19. [15] The respondent in her Affidavit of Assets and Means dated 18 September 2012 (“the respondent’s RAAM”) explains at para 20(b) that during the early years of the marriage, she worked full-time at Singtel earning about S$1,300 per month. Throughout her time at Singtel, the respondent worked shifts and looked after the daughter. The respondent at para 20(c) adds that the appellant had a job at Royal Sporting House during the early years of marriage and that he rarely contributed to household expenses. The respondent confirms that arguments over financial contributions occurred – sometimes escalating into violent arguments during which she would be abused. The respondent asserts that the appellant was an absentee father who led his own active social life and that he did not help out with looking after their baby daughter.

  20. [16] Shortly after the purchase of the matrimonial home in 1983, the respondent states that the appellant served a six-month term of imprisonment (for misappropriation of company finances). A newspaper article entitled “Ex-manager jailed” which appeared in the Straits Times newspaper on 27 March 1982 and which the appellant appended to his third affidavit dated 3 April 2013 revealed that he was convicted for criminal breach of trust relating to monies misappropriated by him to pay off gambling debts. During his imprisonment, the respondent stayed with the appellant’s father and continued to look after the daughter (who was then nine). She asserts that together with the appellant’s father, she helped to discharge some debts he owed to a car rental company as well as some other debts that he was liable for in respect of which loan sharks had made an appearance. The respondent asserts that she took out a renovation loan from her employer (deductible from her monthly salary) to pay for renovations and furnishings. Some invoices bearing her name were annexed to the respondent’s RAAM relating to these expenses. The respondent makes the point that after the appellant’s release from prison, the appellant changed his jobs frequently and only made intermittent financial contribution to the household expenses. The arguments over financial support continued up to his leaving the matrimonial home.

  21. [17] In January 1991, the respondent’s father passed away. According to the respondent’s second ancillary affidavit dated 2 November 2012 (at para 28), his 3-room flat was rented out at S$1,000 and the income shared between the respondent and her two siblings. She also discloses that it was with this money and her share of her father’s savings that she managed to conduct a second renovation of the matrimonial home in 1994. The father’s flat was sold in 2001/2002 and the sale proceeds shared amongst the siblings. Each received the sum of S$52,000.

  22. [18] The appellant in his second ancillary affidavit dated 23 October 2012 (“the appellant’s 2nd ancillary affidavit”), on the other hand, estimates that the three beneficiaries would have received about S$110,000 to S$128,000 each. This, however, is based on the estimated value of the 3-room flat in August 2012 and is of doubtful relevance.

  23. [19] The respondent explains that in 1993 she embarked on further renovations to the matrimonial home (toilets, kitchen wall and flooring, painting, window grills) which she paid for. The respondent was only able to locate one invoice (for an air-conditioner) for this second round of renovation. Sometime in March 1993, an altercation took place at the matrimonial home as a result of which the police were called. The respondent confirms that no charges were brought since she decided not to press charges. It was at this time that the appellant left the matrimonial home, never to return.

  24. From 1993 to 2012

  25. [22] However, the appellant strongly disputes the amounts spent by the respondent on renovations in the appellant’s 2nd ancillary affidavit. The appellant asserts that in any case, for the third renovation, substantial amounts were contributed by the daughter and that based on the invoices provided and which were in her sole or joint name, she likely paid only some S$17,331.76.

  26. [23] Since leaving the matrimonial home in 1993, the respondent asserts that she single-handedly brought up the daughter. The respondent retired in 2001 and is currently staying at the daughter’s home. The matrimonial home has been rented out in the past three years (since March 2010) for a monthly rent of S$2,500. This is not in dispute. Nor is there any dispute that the rental income has been retained by the respondent. Indeed the respondent asserts that the rental income is her only source of income. This the appellant has denied. In the appellant’s 2nd ancillary affidavit at para 5, it is claimed that the respondent receives a monthly salary from helping out at a cooking school set up and owned by the daughter. The daughter is said to be working as a senior marketing manager with a bank and the daughter and her husband are also providing her with a monthly allowance. In response, the respondent has denied being a shareholder or a salaried employee of the daughter’s cooking school and she points out that the school only ran for 2 months between June and July 2009.

  27. [24] According to the appellant’s AAM, the appellant is now unable to work full-time as a taxi driver because of his problem with fatigue arising from high blood pressure and diabetes. It is noted that a short medical memorandum from the Bedok Polyclinic dated 30 November 2012 confirms his medical problems but it also states that his conditions are mostly well controlled. He states that he can only drive a taxi for about four to five hours a day and that his average monthly income is about S$1000–S$1,200. In addition, he receives S$297 per month from his CPF retirement account. The respondent in her 2nd ancillary affidavit dated 2 November 2012 disputes his monthly income and states that the appellant and “his mistress [XY] are the co-lessees of the same cab and there is a possibility that he has not disclosed his full earnings.” She also notes that there is no documentary evidence that he has paid any rent to [XY]. In reply, the appellant in his 3rd ancillary affidavit dated 3April 2013 asserts that he is the sole lessee of his taxi and that [XY] is his friend, landlord and the “registered relief driver” for his taxi, but that she has at most driven the taxi “once or twice for the past three years.” The appellant also points to his inability to work full-time since 2004 or 2005 and his low CPF contributions in 2006. He asserts that he pays a token rent of S$400 per month to [XY] (out of goodwill) and a further S$100 for utilities expenses.

  28. [25] The point can be made that in a long marriage a detailed examination of the minutiae of a matrimonial relationship even when limited to each spouse’s contribution towards the matrimonial assets, household maintenance and expenses is seldom straightforward or helpful. Many times a broad brush approach is to be preferred. Independent evidence of indirect contributions (financial or non-financial) will often be thin and contradictory positions may often be taken due to failing memory, the passage of time and indeed because of the intense emotional anguish that may colour episodes (or memories of episodes) of the relationship. That said, in the present case it is to be noted that the daughter of the union, Eleanor Sim, swore two affidavits in support of the respondent in connection with the ancillary proceedings. Without dwelling on the details, her affidavits are strongly supportive of the respondent’s position in terms of parenting, contributions to household expenses and maintenance of the matrimonial home. It also supports the respondent’s assertion that she was not an employee or shareholder of the daughter’s cooking school: which school in any case closed down after only 2 months in July 2009. The daughter also explained that after her marriage in 2008, she asked the respondent to stay with her as she was elderly and did not want her to be alone. The matrimonial home was left vacant for two years until 2010 when it was rented out so as to help the respondent with her expenses. On this, the appellant has complained that since he is a joint owner, HDB rules require the consent of both parties to rent out the flat and that the respondent has ignored this rule by making the on-line application without first informing him.

  29. [26] The daughter in her first affidavit dated 2 November 2012 also states that whilst she has recently set up a children’s activity centre in Paragon and that the respondent helps out when there is a staff shortage, she does not receive any salary except for a token by way of pocket money of about S$220 per month as appreciation for her help.

  30. An overview of the matrimonial assets and relevant financial contributions

  31. [27] Given the broad overview of the marriage as described above, I now discuss an overview of the various contributions made by parties to the marriage. In all, there were three broad categories of contributions I took into consideration: (1) contributions towards the matrimonial home; (2) contributions towards household expenses including maintenance of the daughter; and (3) other financial assets the parties had accumulated throughout the marriage.

  32. Contributions towards the matrimonial home

  33. (1) Direct contributions towards purchase of the matrimonial home

  34. [28] According to the respondent’s Ancillary Fact and Position Sheet filed on 24 April 2013, the matrimonial home, which is fully paid-up, is valued at S$400,000 as at July 2012. The direct financial contributions by the parties towards the purchase price were as follows:

  35. (a) Appellant’s total CPF contributions: Principal – S$36,400, Interest – S$62,420.28.

  36. (b) Respondent’s total CPF contributions: Principal – S$4,384, Interest – S$6,873.74.

  37. (c) Appellant’s total cash contribution toward purchase: S$100.

  38. (d) Respondent’s total cash contribution toward purchase: S$0.

  39. [29] It is noted that the appellant’s Ancillary Fact and Position Sheet filed on 22 April 2013 does not state the amount that he paid towards the matrimonial home. That said, the respondent’s figures for the appellant’s contributions were taken from his supporting affidavit and it does not appear that there is any dispute as to the amount of the contributions from CPF towards the purchase.

  40. (2) Contributions towards renovation of the matrimonial home

  41. [30] As noted above, there is considerable dispute over the contributions made by the parties to the three renovations that were carried out to the matrimonial home. According to the respondent, she paid some S$83,000 or so for the renovations. The appellant disputes the amount contributed by the respondent. He also claims to have contributed about S$5,000 towards the initial (first round) of renovations and a similar sum towards the second round of renovations. So far as the third round of renovations was concerned, the appellant had by that time moved out of the matrimonial home and asserts that part of the third renovation was paid for by the daughter.

  42. (3) Appellant’s assessment of direct contributions: purchase price and renovations

  43. [31] In the appellant’s 2nd ancillary affidavit, the appellant at para 55 sets out the table below representing the parties’ contributions to the purchase of the matrimonial home and renovations:

  44. (4) Respondent’s assessment of direct contributions: purchase price and renovations

  45. [32] Whilst the respondent did not set out a comparative table as such in the respondent’s RAAM, it is apparent that her figures in respect of renovations are much higher. She also disputes the appellant’s assertions as to his contributions towards renovations. Putting the respondent’s case at its highest would produce the following result:

  46. Contributions towards household expenses including maintenance of the daughter

  47. [33] The appellant’s evidence (which has been described generally above) was that during the first twenty years of marriage (up till his departure from the matrimonial home in 1993), he met all the major family and household expenses. In the appellant’s AAM, he claims that the respondent was reluctant to contribute and that he provided her with cash of about S$300 to S$400 per month. He claims that overall, he spent about S$600 per month on the family and that this was so even during the period of his bankruptcy which lasted from 1984 till September 1999.

  48. Other financial assets of the parties

  49. [35] Aside from his declared monthly income as a taxi driver (S$1,000 – S$1,200), the appellant receives S$297 per month from his CPF retirement account. He does not own any motor vehicle, insurance policy or shares, bonds, stock options and/or unit trusts. His disclosed bank accounts (August 2012) show sums of S$60.61 and S$39.92. As at 14 August 2012, his CPF account was as follows:

  50. (a) Ordinary account: S$0;

  51. (b) Medisave account: S$37,710;

  52. (c) Special account: S$0;

  53. (d) Retirement account: S$30,914.71.

  54. [36] The appellant declares his monthly expenses as coming to S$1,250 per month and a debt of S$22,000 said to be owed to his sister in respect of legal fees in connection with the divorce proceedings.

  55. [37] The respondent in the respondent’s RAAM declares an insurance policy (Living Assurance Policy) with Great Eastern Life for S$30,000. The named beneficiary is the daughter and there is no surrender value. The respondent also declares ownership of 3,710 Singtel shares with an estimated value of S$12,243 as at 30 June 2012. Three bank accounts are listed showing credit amounts of S$50,481.07, S$28,869.06, and S$70,000 (as of July or August 2012). The respondent also has S$23,340.61 in her Medisave account (as of September 2012). She also has S$115,739.60 in her retirement account. The respondent is also currently receiving S$2,500 per month as rental income from the matrimonial flat. Her declared expenses are as follows: household expenses: S$1,096.67; maid’s expenses: S$732.51, and personal expenses of S$537. The respondent also states that her sister (aged 61) is dependent on her and that she sets aside S$1,000 per month for her needs. As to this, the appellant asserts that the respondent’s sister is staying with the respondent in the daughter’s home where much of the household expenses are met by the daughter and her husband.

  56. The parties’ submissions in brief

  57. [41] The difference between the appellant and respondent’s assessment of the value of their respective direct contributions comes down to two points: (a) the assessment of the actual payments towards the three rounds of renovation; and (b) whether the accrued interest should be taken into account.

  58. [43] On appeal, the respondent argues that the learned District Judge rightly decided to exclude the interest element from the computation of the parties respective direct financial contributions since its inclusion would unfairly skew the proportions in favour of the appellant by mere reason of long lapse of time and not because of any actual contributions on his part. If the accrued interest was excluded and renovations assessed based on the actual receipts that the respondent could find (rather than her estimate), the table was said to show that her direct contributions came to 58.1% with 41.9% for the appellant. This indeed was very close to the learned District Judge’s assessment of 42% to the appellant and 58% to the respondent.

  59. [44] The law pertaining to the division of matrimonial assets is relatively straightforward. I first set out the general legal principles that apply. Section 112(1) of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the WC”) provides that the court shall have power, when granting or subsequent to the grant of a judgment of divorce, to order the division between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset in such proportions as the court thinks just and equitable.

  60. [45] In exercising the power to order division, s 112(2) of the WC directs the court to have regard to all the circumstances of the case including the following matters:

  61. (a) the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets;

  62. (b) any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage;

  63. (c) the needs of the children (if any) of the marriage;

  64. (d) the extent of the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party;

  65. (e) any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce;

  66. (f) any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party;

  67. (g) the giving of assistance or support by one party to the other party (whether or not of a material kind), including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business; and

  68. (h) the matters referred to in s 114(1) so far as they are relevant.

  69. [46] Section 114 sets out the court’s power to award maintenance. Section 114(1) provides that in determining the amount of any maintenance to be paid by a man to his wife or former wife, the court shall have regard to all the circumstances of the case including the following matters:

  70. (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;

  71. (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;

  72. (c) the standard of living enjoyed by the family before the breakdown of the marriage;

  73. (d) the age of each party to the marriage and the duration of the marriage;

  74. (e) any physical or mental disability of either of the parties to the marriage;

  75. (f) the contributions made by each of the parties to the marriage to the welfare of the family, including any contribution made by looking after the home or caring for the family; and

  76. (g) in the case of proceedings for divorce or nullity of marriage, the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage that party will lose the chance of acquiring.

  77. [47] Section 114(2) goes on to state that:

  78. [48] Professor Leong Wai Kum (“Prof Leong”) in Leong Wai Kum, Elements of Family Law in Singapore (Lexis Nexis, 2nd ed, 2013) (“Elements of Family Law”) at p 500 comments that:

  79. This comment provides a useful starting point when approaching the question of division of matrimonial assets in any particular case.

  80. [49] Indeed, a similar point was made by Andrew Phang Boon Leong JA in NK v NL [2007] 3 SLR(R) 743 (“NK v NL”) at [41] where it is said that:

  81. [50] To this end, it has been said that three defining principles define the power to divide matrimonial assets: (a) any asset acquired during the marriage (rather than just the matrimonial home) is liable to division; (b) the power is to be exercised in broad strokes (rather than by misguided attempt at mathematical precision); and (c) the aim of the court is to reach a fair and reasonable division of the assets between the spouses: see Elements of Family Law at p 505 citing L P Thean J’s decision in Koo Shirley v Mok Kong Chua Kenneth [1989] 1 SLR(R) 244.

  82. [51] Prof Leong points to three decisions of the Singapore Court of Appeal, which in particular represent the approach taken in Singapore towards division of matrimonial assets under s 112. These are Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520 (“Lock Yeng Fun”); NK v NL and Yeo Chong Lin v Tay Ang Choo Nancy [2011] 2 SLR 1157 (“Yeo Chong Lin”). These cases are said to acknowledge a “community of property” approach towards division of matrimonial assets or what Prof Leong has termed at p 497, “deferred community of property”. Under this approach, the courts recognise and require that proper credit be given to non-financial efforts as a contribution towards acquisition of property. Even though the courts recognise that non-financial contributions (such as homemaking and parenting) may be difficult to measure or to quantify, this does not mean that only lip service is to be paid to such contributions. Justice and equity requires that the courts award a share of the matrimonial assets that is commensurate with his or her contributions as a whole. Consistent with this approach, the courts in Singapore prefer a broad brush multi-factorial approach towards assessment of contributions and division. As has often been said, it is better to be roughly right than to be precisely wrong, or as Chao Hick Tin JA put it in Yeo Chong Lin at [81] – the broad brush approach “is all about feel and the court’s sense of justice.”

  83. [52] Adopting a broad brush approach does not mean however that a structured approach cannot be taken towards assessment and the exercise of discretion. Indeed in ATT v ATS [2012] 2 SLR(R) 859, a structured approach was endorsed by the Court of Appeal. The first step would be to delineate the pool of matrimonial assets to be divided. The second step is to assess the value of the pool so that the court’s deliberations can be made with reference to a working quantum. The third step is to consider all the circumstances of the case including but not limited to the specific factors identified in s 112(2), paying particular attention to the direct financial contributions as well as the indirect non-financial contributions of each party. This is the multi-factorial approach to be applied with broad brush strokes that leads to the final step of deciding what is the just and equitable proportion. Thereafter, the court may need to decide what is the most effective way of achieving the desired division in the proportion that has been assessed. At this stage, the desirability of a clean break order (if possible) will often be considered.

  84. Is there any presumption in favour of any particular starting point when approaching division?

  85. [53] The argument has been raised from time to time that the yard stick of “equality of division” has merits especially in cases where the marriage has lasted a reasonable length of time and a child has been raised – see generally Elements of Family Law at pp 616–618. On occasion, it has also been suggested that the law might choose as a starting point the proportion as reflected in the proven direct financial contributions towards the matrimonial assets. Both approaches have been rejected. Consider, for example, Lock Yeng Fun, considered in Elements of Family Law at p 621. The marriage lasted some 30 years. There were 2 children. The wife was largely the homemaker, although she was a better investor of the parties’ spare monies. The High Court ordered that the wife receive 40% of the net matrimonial assets and S$60,000 by way of lump sum maintenance. On appeal, her share of the net matrimonial assets was increased to 50%. The order for maintenance was rescinded.

  86. [54] The point that Prof Leong makes is that even though the Court of Appeal came down in favour of equality of division of the matrimonial assets, Phang JA made it clear that the conclusion of equality was “the end point of [the court’s] deliberations” and not the starting point. The starting point is always the admonition to reach a just and equitable division of the matrimonial assets. Equality of division was not the norm (as such). If such an order was made in any given case, it would be as a result of applying the multi-factorial approach – which was described by Chao JA in Yeo Chong Lin at [81], is rooted in “feel and the court’s sense of justice.”

  87. [55] The emphasis on a multi-factorial broad brush approach guided by the court’s feel and sense of justice whilst regularly applied and referred to in case law has not gone without some criticism. Prof Leong at p 626 cites the concern of one commentator that the approach lends itself to uncertainty: “what exactly does this mean, and how does the court actually go about doing this?” The same commentator argues that the practice of taking account of every relevant factor might result in applications for division of matrimonial assets becoming more cantankerous than it needs to be: see Lim Hui Min, “Matrimonial Asset Division: The Art of Achieving a Just and Equitable Result” in SAL Conference 2011: Developments in Singapore Law Between 2006 and 2010 (Yeo Tiong Min, Hans Tjio & Tang Hang Wu gen eds) (Academy Publishing, 2011). Lim suggests that the law should place greater emphasis on effort as opposed to ability and endeavours as opposed to results with the possible result of greater readiness to assume equal efforts between the parties, whether in breadwinning or homemaking or a mixture of the two, for long marriages over ten years and even short marriages of under 10 years, if there are children to the marriage. Prof Leong agrees and writes at p 628 that “[m]arital partnerships, from the perspective of the spouses’ exertion of their efforts, are more similar than they are different” and that such a re-focusing may lead to the conclusion that in many cases, equal division is just and equitable division.

  88. [56] Prof Leong further explains that after Lock Yeng Fun some courts began upon a different approach using the proportion of each party’s direct financial contributions to the matrimonial assets as the starting point and adjusting this proportion to take account the parties’ indirect contributions and any other relevant factor. The danger with this approach is that it may lead to insufficient weight being placed on indirect contributions. On this, Prof Leong comment at p 622 that the objective of the statutory amendments in 1996 was to equalise non-financial contributions with financial contributions. It, therefore, comes as no surprise that this approach was rejected by the Court of Appeal in NK v NL. Section 112 requires the court to pay regard to all types of spousal contributions whether in the economic or homemaking sphere. Both are equally important to the well-being of the marital partnership. It follows that an approach which places too much stress on a mathematical accounting or a balance sheet of figures is inappropriate.

  89. [57] The above summary reveals a number of important principles which this court has found helpful in coming to its decision in this appeal. Before turning to the indirect contributions, this court notes again the “debate” over whether the starting point should generally be equality of division – especially in long marriages. Just because the Singapore courts have not found favour with this approach does not mean that there is any bias against equality of division. Indeed, it could well be that in many cases where the marriage is long and with children involved, that the court will come to the conclusion that equal or near equal division is the just and equitable division.

  90. Whether the interest element should be excluded from the computation of direct contributions

  91. [58] A secondary point of law which arises is whether the interest element of CPF monies should be excluded when calculating the direct contributions of parties to the matrimonial home. The respondent states that the marriage was a lengthy one and the property purchased decades ago. That being so, it was argued that the interest which accrued on the parties’ CPF contributions towards the purchase of the property ended up exceeding the principal amount. The interest that accrued on the appellant’s initial payment of S$36,400 was S$62,420.28. The interest that accrued on the respondent’s initial payment of S$4,384 was S$6,873.

  92. [59] In support of her case, the respondent cited the decision of Judith Prakash J in Cheung Kam Yi Betty v Liu Tsun Kie [2012] SGHC 213. The marriage in this case lasted 36 years and, at the time of divorce, the parties were both 61 years old. The matrimonial home (a semi-detached house) was purchased for about S$1.98m in 1995. The learned judge in that case held at [46] that the proven direct financial contributions to the acquisition of the property amounted to S$486,823.46 (excluding interest) from the wife’s CPF account and S$685,040.37 (excluding interest) from the husband’s CPF account. Whilst interest was excluded in this case, there was no discussion as to whether exclusion of interest element was as a matter of principle always the preferred approach to be taken.

  93. [60] The appellant, on the other hand, submitted that there have been many cases where the Singapore courts have taken accrued interest into account in assessing direct contributions. These include:

  94. (a) AVT v AVU [2011] SGDC 379, which involved a 7-year marriage and with 2 children to the marriage. The matrimonial home was an HDB flat with both parties making direct contributions in the form of CPF monies. The CPF interest in this case was taken into account by the District Judge in assessing the percentage of contribution of the parties. The District Judge also held that the liability to repay the CPF sums withdrawn for the purchase of the flat was a personal obligation of each party to be discharged out of his or her own share of the sale proceeds.

  95. (b) AZJ v AZK [2012] SGDC 137, which involved a 12-year marriage and with 2 children to the marriage. The matrimonial home was an HDB flat. In assessing the value of direct contributions, the District Court took account of the payment out from the parties’ CPF accounts as well as the accrued interest. The District Court in this case also held that using the broad brush approach, the wife was to refund the husband’s CPF account with a sum of S$50,000 in return for the flat (by way of partial refund of monies used to purchase the flat plus accrued interest).

  96. (c) Tang Ah Moey v Bock Thye Boon [2012] SGDC 130, which involved a 34-year marriage. Matrimonial home paid for by the wife with the assessment of her direct contribution taking account of both the CPF principal and CPF interest. The court in this case held that the wife was entitled to 75% of the net value of the property and the husband entitled to 25%. The wife (who paid for the flat) was ordered to refund her CPF account including accrued interest from her share of the sale proceeds.

  97. (d) Woon Wee Lee v Koh Ai Hua [2012] SGHC 128, which involved a relatively long marriage. The parties were married in September 1975, and interim divorce was granted in July 2011. Accrued interest was taken into account in assessing direct contributions from the parties’ CPF accounts to the purchase of the flat.

  98. (e) BCF v BCG [2012] SGDC 280, which involved a 30-year marriage. The matrimonial home was a 5-room HDB flat purchased in the parties’ joint names. Both parties utilised CPF monies to pay for the flat. No cash payments were made for the loan instalments. The husband was found to have paid the lion’s share of some 96%. This took account of his CPF principal of S$116,492 and CPF interest of S$43,821. The District Court order was that the matrimonial flat be sold and the net proceeds of sale to be divided in the proportion of 40% to the wife and 60% to the husband. Each party was also responsible for their respective refunds to their own CPF accounts of the monies used to purchase the flat including accrued interest.

  99. (f) BCW v BCX [2012] SGDC 335, which involved a 19-year marriage. Assessment of direct contribution again was based on CPF monies withdrawn together with accrued interest.

  100. (g) Lau Poh Leng v Ong Ah Seng & Ronald Ong Ying Howe [2013] SGDC 16, which involved a 28-year marriage. The wife paid from her CPF a sum of S$14,075 and the accrued interest was S$3,342. The husband paid from his CPF account the sum of S$66,239 with an accrued interest of S$14,586. The co-defendant paid from his CPF a sum of S$39,737 and the accrued interest was S$1,757. The court ordered that the matrimonial home was to be sold in the open market and the net proceeds after repayment of the outstanding mortgage loan, refund of all three parties CPF monies used for the purchase plus the accrued interest and all sales expenses be given entirely to the wife.

  101. [61] On the question of taking account of accrued interest in respect of CPF payments made towards the purchase price, it is not immediately apparent as to why one method is to be preferred over the other. What is surely important is that the same method is used to assess the direct contributions of both parties. If both parties have contributed sums from CPF, then whether or not accrued interest is factored in, the proportion of the contributions of the husband and wife will surely remain the same. Although this may not be the case where the contributions have been by way of CPF contributions and other funds.

  102. [62] Where the court decides that the matrimonial home is to be held in unequal shares (for example 80:20), what may be important is whether the obligation (if any) to repay CPF and any interest is to be taken into account in assessing the net proceeds to which the percentage shares are to be applied. In Tay Sin Tor v Tan Chay Eng [1999] 2 SLR(R) 385 Kan Ting Chiu J, in an oft-cited statement, held at [11] that:

  103. [63] Even though there is much sense in Kan J’s decision, I note that the point being made in that decision does not matter in cases where the decision is to award the matrimonial home entirely to one party (such as where one party is ordered to transfer his/her share to the other party). In any case, as a matter of law, I find that whether or not the accrued interest on payments from CPF is to be taken into account in determining the percentage contribution that a spouse has made towards purchase is a matter of discretion for the trial judge dependent highly on the circumstances of the case. What is important as a matter of fairness and mathematical logic is that the percentage contributions of both parties must be assessed on the same basis. In any case, the main relevance of accrued interest relates to the legal requirement that refunded monies are to be paid back into the parties’ CPF account with such interest.

  104. Application of the Law

  105. [64] There were numerous points raised by parties in arguing their case, and while they may not have been particularly significant to the main issue of the division of the matrimonial assets, for completeness, I will address what I will call these “ancillary points”. Broadly, these include:

  106. (a) the calculation of accrued interest;

  107. (b) the significance of the rent-free occupation the respondent enjoyed; and

  108. (c) the inheritance the respondent received.

  109. [65] Before addressing these ancillary points, I first set out my general views on the credibility of parties vis-à-vis their affidavit evidence. After discussing my views on the ancillary points, I then discuss my findings pertaining the main issue at hand – the division of the matrimonial home.

  110. The credibility of parties

  111. [66] In the present case, the matrimonial asset which division is in issue is the matrimonial home which was purchased in 1983 in the joint names of the parties. This is a case where the direct financial contributions toward the purchase price (through CPF monies) are not in dispute. What is in dispute is the amount spent by the parties on renovations as well as the indirect contributions (financial or otherwise) made by the parties during the marriage. The documentary evidence in support of each party’s case on renovations is thin: especially so in the case of the appellant. The positions taken in the affidavits filed on the level of financial support which the appellant provided during the first 19 years of marriage were in sharp conflict. The learned District Judge took the view that whilst both parties had not been upfront in disclosing some monies that they were in receipt of, the drawing of an adverse inference was not necessary – even though this meant that there were still gaps in the evidence. For example, whilst the respondent in the respondent’s RAAM claimed expenses for a maid, in her supplemental affidavit in response to request for discovery and interrogatories dated 22 January 2013, it is revealed that the maid was employed by her son-in-law, although a large part of her duties involved caring for the respondent and her sister. She also omitted her CPF retirement account in the respondent’s RAAM.

  112. [67] Even so, like the District Court, I am of the view that, on the whole, the respondent’s affidavit evidence was more credible. It is undisputed that the appellant was an undischarged bankrupt from 1984 up to September 1999. Whilst the appellant did work during that period it is also clear that he changed jobs many times and that in respect of a two-year period, he simply discloses that he held “odd jobs”. The appellant does not provide any documentary evidence of his contributions to renovations and household expenses and there is no independent evidence at all as to whether he is paying rent for his present accommodation now or at any stage after leaving the matrimonial home. Even though the appellant has alleged that frequent quarrels occurred over financial contributions and other matters, there is no doubt that he left the matrimonial home as a matter of his own choice in 1993 and that after this, he did not provide the respondent with any financial support. While the court notes that the respondent may have enjoyed rent-free occupation of the matrimonial home, as I will elaborate further later at [71]–[73], I found this of little significance in the entire scheme of things.

  113. [68] Further, even though there is some uncertainty as to how much monies the respondent spent on renovation, it is reasonably clear that she provided substantial funds for each renovation and was responsible for the household bills, especially after the appellant left the matrimonial home. On the other hand, it is far from clear as to what, if anything, the appellant contributed by way of renovation expenses. This is not to say that the court finds that the appellant did not contribute anything to household expenses. Indeed, the respondent herself accepts that at the very least, he did occasionally contribute towards some household expenses. However, the evidence, without getting mired into detailed accounting, strongly suggests that the respondent’s indirect contributions and contributions to household expenses were far higher and much more consistent than those of the appellant.

  114. [69] In deciding an appeal from the District Court, even though the evidence is largely by way of affidavits, the court should not readily depart from the views that the District Court has formed on the evidence. In any case, the view that I have formed on the affidavits is similar to that of the learned District Judge. It is far more probable that the respondent contributed more significantly than the appellant to the household. The wife held a regular job until her retirement in 2001. The District Judge rightly points out that even the husband recognised that the respondent was a simple lady leading a frugal lifestyle. Even without the affidavit filed by the daughter, this court would have little difficulty in coming to the view that that the respondent’s contributions towards, renovations, household expenses, parenting, and homemaking were far more significant than those of the appellant.

  115. Ancillary points

  116. Accrued interest

  117. [70] I deal quickly with the issue of accrued interest which parties had raised. As discussed above, there is no one preferred way. In the present case, the appellant contributed S$36,400 from his CPF. The respondent contributed S$4,384. In percentage terms this works out to 89.25% to 10.749%. If the accrued interest is factored in the total sums come to S$98,820.28 for the appellant and S$11,257 for the respondent. In terms of percentages, the values of the contributions differ by a small value of 0.52%, and remain largely the same. There was, therefore, no significant difference whether or not the accrued interest would be accounted for in considering the contributions of the parties to the matrimonial home.

  118. The significance of the respondent’s rent free occupation of the matrimonial home

  119. [71] Under s 112(2)(f), the court is required to take account of any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party. The appellant, in this case, asserts that the learned District Judge failed to give sufficient weight to the fact that the wife enjoyed 19 years of exclusive possession while the “husband had to rent a room outside [sic].” Indeed, in the appellant’s written submissions, it is argued that “the period of 19 years for which they had exclusive possession of the matrimonial home and the rental income of S$83,800 (as of June 2013) must certainly be considered as his indirect contribution as well towards the welfare of the family.”

  120. [72] The fact that the court is required to pay regard to any period of rent-free and exclusive use of the matrimonial home is part and parcel of the multi-factorial approach that the court takes towards making a just and equitable determination. It cannot be approached on a mathematical basis nor can it be considered in abstract and in isolation. In some cases, it may be a significant factor. In other cases, the significance may be small. In the present case, the District Court rightly points out that it was the husband who chose to leave and it was he who “effectively abandoned the family.” The husband has made much of his claim that he has paid rent for the room at his female friend [XY]’s flat: there is, however, no independent evidence supporting his claim. Indeed, the point was made in BDH v BDI [2012] SGDC 333 (“BDH”) that if the wife had to leave the matrimonial home, her needs for financial support and maintenance would have been higher. In any case, the District Court in BDH at [41] observed that:

  121. [73] In the present case, the appellant has denied that [XY] is his mistress and asserts she is just a good friend. That may be so. It does not change the fact that it was he who decided to leave the matrimonial home. Given that he has not, in any case, paid any maintenance to the respondent over the past 19 years or so, and that it was the respondent who bore the expenses of the matrimonial home, this court agrees that very little weight is to be placed on the respondent’s rent-free occupation.

  122. Inheritance of the respondent

  123. [74] The appellant has made much of the fact that the respondent inherited a sum of money from her father’s estate. A number of points arise. First, the inheritance is not a matrimonial asset that is subject to division under s 112 of the WC. Under the WC, a matrimonial asset does not include any asset (not being a matrimonial home) that has been acquired by one party by inheritance which has not been substantially improved during marriage by the other party

  124. [75] Second, the court is required by s 112(2)(h) to take account of the matters referred to in s 114(1) insofar as they are relevant to division of matrimonial assets.

  125. [76] Third, under s 114(1) the court is directed, inter alia, to take account of the financial resources which each party has or is likely to have in the foreseeable future. Her financial resources (even if strictly not a matrimonial asset) may be relevant in determining her entitlement to maintenance (and possibly her share in other matrimonial assets on a just and equitable basis).

  126. [77] The respondent did not mention the inheritance in the respondent’s RAAM but did set out the details in her second ancillary affidavit in response to the appellant’s AAM. The respondent’s father passed away in 1991. He left behind a flat that was to be shared between the respondent and her 2 siblings. Her evidence is that she saved her share of the rental proceeds from the flat (S$330) together with her share of her father’s savings. It was from these savings that she was able to embark on the second renovation of the matrimonial home in 1994. The father’s flat was sold in 2001 or 2002 and the respondent’s share came to S$52,000. This court notes the claim by the appellant that the respondent’s one-third share was much higher, but finds that the claim is unacceptable as it is based on the value of the flat in August 2012. There is little reason to doubt the respondent’s assertion that her share of the sale proceeds (the total proceeds being shared amongst her siblings) was S$52,000. Based on the affidavit evidence, this court prefers and finds more credible the respondent’s statement as to how much she received from the sale of her deceased father’s flat and how this enabled her to pay for the second round of renovations.

  127. [78] That said, this court also finds itself in broad agreement with the view of the District Judge stated at [33] of the GD that:

  128. The main issue – findings relating to the division of the matrimonial home

  129. A holistic approach in considering division and indirect contributions

  130. [79] I now move on to consider the main issue before this court, which is the division of the matrimonial home. As observed above, there is some dispute as to the direct contributions to the matrimonial home (including the renovations). I will return to those issues after considering the parties’ indirect contributions with a bit more detail.

  131. [80] Before embarking on an analysis of indirect contributions, it is to be noted that s 112(2) does not actually use the terms “direct” and “indirect” contributions in respect of the factors to be taken account of in determining a just and equitable division on the facts. What it does is it sets out a non-exhaustive list of factors in eight sub-paragraphs. Some of these factors can be directly assessed in terms of a monetary value such as the monetary contribution towards the acquisition of the matrimonial asset as well as monies spent on improving or maintaining the asset. Debts incurred for the benefit of the children of the marriage are also directly quantifiable in monetary terms.

  132. [81] There are also many factors which cannot be easily assessed in monetary terms, such as, for example, contributions towards caring for the family. Indeed the factor identified in s 112(2)(c), viz, “the needs of the children”, does not necessarily refer only to financial needs such as education fees, etc. The need for stability in terms of a familiar place of residence can be an important factor. The emotional needs are also important. How can a monetary value ever be placed on such factors?

  133. [83] Classifying contributions as direct financial contributions, indirect financial contributions, and indirect non-financial contributions is convenient and may be helpful in taking a structured approach. But, at the end of the day, the classifications must not rule the decision. What rules the decision is the court’s assessment of all the contributions made by each spouse which are relevant so as to achieve a just and equitable division. It cannot be assumed that any particular factor will always be given more weight. Whether it does or does not must depend on the court’s assessment of the factors as a whole. A holistic approach is what the legislation requires.

  134. Indirect Contributions

  135. [84] The appellant in his written submissions referred to several cases in support of his general claim that even in long marriages, the Singapore courts tend to limit their awards for indirect contribution to 5%–17.2%. These include the following:

  136. (a) Lim Choon Lai v Chew Kim Heng [2001] 2 SLR(R) 260 (“Lim Choon Lai”), which involved a 30-year marriage and two children to the marriage. There the wife bore the brunt of supporting the family and providing for its welfare. The wife’s contribution to the matrimonial home was fixed at 45%. To this she was awarded a further 15% for her indirect contributions.

  137. (b) Tai Neok Lian (m.w.) v Tan Hai Thiam [2009] SGDC 6 (“Tai Neok Lian”), which involved a 29-year marriage and two children to the marriage. The wife’s direct financial contribution was fixed at 53.3%. A further 17.2% was awarded for her indirect contributions.

  138. (c) BCB v BCC [2012] SGHC 144 (“BCB”), which involved a 15-year marriage and three children to the marriage. 5% was awarded for indirect contribution with direct contribution assessed at the ratio of 34.9:65.1 in favour of the wife.

  139. (d) Soo Lian Kiag v Chew Lee Shee [2012] SGDC 26 (“Soo Lian Kiag”), which involved a 22 -year marriage and two children to the marriage. Direct contribution was assessed at 28% for the husband and 72% for the wife. The wife was given another 13% for indirect contribution. The court in this case declined to divide the matrimonial home in a manner that would leave the husband incapable of surviving.

  140. [85] Of the above cases, particular stress was placed on the decision of the District Court in Soo Lian Kiag. In that case, the two children were adults at the time of the divorce proceedings. The husband was a retiree aged 63. The wife was unemployed aged 60. During the marriage, the parties had run a joint business selling garlic to restaurants, hawker stores and suppliers. The matrimonial flat was a five-room HDB purchased in the parties’ joint names. Both parties had used their CPF to pay for the flat. After examining the documents, the District Court found that the percentage of direct contribution (CPF principal, CPF interest, cash instalments, renovation expenses, conservancy and property tax) was 28% to the husband and 72% for the wife. Turning to indirect contributions, the District Court found that the wife had made considerable indirect contributions to the family business and the family. The wife was found to have borne the bulk of the responsibilities in terms of care of the family (although it was also accepted that the husband did make some contributions to the family). In coming to the decision on indirect contributions, the District Judge noted that there was no doubt that the proceeds from the garlic business had been the source of the wife’s ability to pay for household expenses and family expenses through her careful allocation of the net business takings.

  141. [86] This was the context in which District Judge Lim Choi Ming stated at [45] that in coming to his decision on the percentage to be allocated to the matrimonial home, it was necessary to consider that:

  142. [87] The wife in that case was awarded 85% of the valuation price of the Flat: 72% for her direct contribution and a further 13% for her indirect contributions.

  143. [88] Even on a broad brush stroke basis, the present case is rather different in terms of the factual matrix. The appellant and respondent did not run or operate a joint business or work together in any form so as to generate income. Instead, it is clear that the respondent ability to work as a telephonist and to earn an income to support the family and household was independent from the work and income of the appellant. The appellant held numerous jobs during the first 19 years or so of the marriage before becoming a taxi driver. Indeed, this court is reminded that for many years the appellant was an undischarged bankrupt. This is not a case where husband and wife worked together in a family business for the benefit of the family as a whole. This was a case where whatever each spouse contributed (in terms of monies) was attributable to that spouse’s efforts and labour. Of course, this scenario is not in itself uncommon. Many households today comprise two income earners (husband and wife) wherein the income earners have quite separate and independent careers. The important point is whether each spouse has made substantial contributions (by way of effort and results) to the running and maintenance of the household. Did each spouse make a real effort to contribute to the best of his or her ability? If so, the fact that one spouse may have contributed more in absolute terms (eg, because of a better paying job) should not mask the fact that the other spouse put in the same or similar effort although he or she may have contributed less (at least in absolute terms) in terms of dollars and cents to household expenses. In Soo Lian Kiag, the husband and wife had for many years ran a joint business. Even though the wife had made the lion’s share of the contributions, the court rightly points out that the husband did make some contributions and that it was from the proceeds of the business that they ran that the wife was able to make her indirect contributions. In these circumstances, the District Judge rightly stated at [45] that “it would be unfair to divide the sale proceeds of the matrimonial home in a manner which could render the Husband incapable of surviving.”

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