AXU V AXV (2012) SGDC 24

LawNet Legal Research
http://www.lawnet.com.sg/lrweb/tools.do?subaction=lrLp2ToolsShowPr...
AXU v AXV [2012] SGDC 24

Suit No Decision Date Court Coram Counsel :Divorce Suit No 3994 of 2010 :1 February 2012 :District Court :Colin Tan :Ms. Kasturibai Manickam (East Asia Law Corporation) for the Plaintiff / Respondent; Ms. Lucy Netto (Netto & Magin LCC) for the Defendant /Respondent
[EDITORIAL NOTE: The details of this judgment have been changed to comply with the Children and Young Persons Act and/or the Women's Charter] 1 February 2012 Judgment Reserved District Judge Colin Tan: Introduction 1 The parties were married in 1993 but, according to the Statement of Particulars, they had been separated
since 2000. In 2010, the Plaintiff filed a Writ for Divorce and an Interim Judgment dissolving the marriage was granted on the basis of the parties separation, and the ancillary matters were adjourned to be heard in Chambers. 2 The parties reached an agreement on the issues of custody, care and control and access in respect of their 2 children and orders on these matters were made by consent. 3 The parties, however, were unable to reach an agreement on the rest of the ancillary matters and, after hearing counsel for both parties, I made the following orders on the matters in dispute: (1) The Plaintiff husband shall pay to the Defendant wife maintenance of $1 per month for the Defendant wife. (2) The Plaintiff husband shall pay to the Defendant wife maintenance of $500 per month for each of the parties two children (i.e. total of $1000 per month). (3) The Plaintiff husband is to deposit the said maintenance directly into the Defendant wifes designated bank account. (4) (5) The Defendant wife is to furnish the Plaintiff husband with her bank account details within one week. In respect of the division of matrimonial assets: (a) The parties matrimonial flat at xxx is to be sold on the open market and the net sale proceeds, after payment of the costs and expenses of the said sale, are to be divided between the parties in the proportion of 40% to the Defendant wife and 60% to the Plaintiff husband. (b) Each party shall be responsible for making the requisite refund of principal and accrued interest
to his or her own CPF account. (c) The Defendant wife shall have the first option to purchase the Plaintiffs interest in the said
matrimonial flat at a price based on the open market value of the said flat. If the Defendant wife wishes to exercise the option she must do so within six months of the date of the Certificate of making
1 of 8
3/7/2012 11:06 AM
Interim Judgement Final. (d) names. (6) The parties shall be at liberty to apply. Save as aforesaid, the parties shall each be entitled to retain the assets held in their own
4 According to her Notice of Appeal, the Defendant wife has appealed against my decision on the following issues: (a) (b) (c) 5 maintenance for the Defendant wife; maintenance for the parties children; and division of the matrimonial flat.
I now set out herein the grounds for my decision on the above issues.
Documents filed 6 The parties filed the following documents: (a) (b) (c) (d) (e) (f) (g) 7 Plaintiffs 1st affidavit; Defendants 1st affidavit; Plaintiffs 2nd affidavit; Defendants 2nd affidavit; Plaintiffs Fact and Position Sheet; Defendants Fact and Position Sheet; and Plaintiffs Written Submissions.
The Defendants Counsel did not file Written Submissions and argued her clients case by making oral
submissions during the hearing. Maintenance for the Defendant wife 8 Section 113 of the Womens Charter provides that the court may order a man to pay maintenance to his wife or former wife, and section 114 of the Womens Charter provides that the court must have regard to all the circumstances of the case including various matters set out in the said section. Defendants position 9 In the Defendants 1st Affidavit (at paragraphs 3 and 13) she stated that her income and expenses were as follows:
(a) (b)
gross monthly income: take-home monthly income:
$2,409.15 $1,911.15
2 of 8
3/7/2012 11:06 AM
(c)
total monthly expenses:
$1,531.85
10 Despite the fact that her monthly income exceeded her monthly expenses by almost $400 each month, the Defendant wanted the Plaintiff to pay her $500 each month as maintenance. 11 The Defendants position that she expected the Plaintiff to pay her $500 each month as maintenance was
consistently maintained by her throughout the proceedings as seen from her 1st affidavit (at paragraph 25), her 2nd affidavit (at paragraph 9) and her Fact and Position Sheet (at section B). 12 However, it appeared from the Defendants Notice of Appeal that her position had, after the hearing, changed from seeking maintenance of $500 per month for herself to seeking reasonable maintenance. 13 The Defendant stated, in support of her claim for $500 per month as maintenance, that she had reached the maximum of her pay scale and that it was unlikely that she would receive any further pay increments (at paragraph 25 of the Defendants 1st affidavit). 14 I noted that the Defendant had not disclosed that she was taking a university course but had listed university fees in her list of expenses. The Defendants counsel, on being asked about these fees during the hearing, explained that the Defendant was taking a course. 15 In the light of the Defendants forthcoming university qualification, there would be a reasonable likelihood of
her getting a promotion or a higher-paying job in the foreseeable future. As such, I was of the view that reaching the top of her current pay scale was not as major an issue as she had made it out to be. Plaintiffs position 16 The Plaintiff stated (at paragraph 3 of his 1st affidavit) that his income was as follows:
(a) (b) (c)
gross monthly salary: net pay: additional income from driving a taxi:
$2,200.00 $1,760.00 $1,000.00
17 His position was that he was not prepared to pay the Defendant maintenance because she was gainfully employed (at section B of his Fact and Position Sheet). 18 I was, however, of the view that the Plaintiffs argument lacked merit as the mere fact that a Defendant is gainfully employed is not in itself a sufficient reason to deny her maintenance. Decision 19 Based on the Defendants own figures (net income of $1,911.15 and expenses of $1,531.85), she had a
surplus of almost $400 each month. 20 Also, given that some of her expenses had the potential to be trimmed slightly (for example, her claim of
$100 each month for clothes and shoes, her claim of $150 each month for grooming, and her claim of $100 each month for vitamins and supplements), it was entirely possible that the Defendants monthly surplus might well exceed $400.
3 of 8
3/7/2012 11:06 AM
21 If we were to add this surplus of almost $400 to the $500 in maintenance that the Defendant was demanding from the Plaintiff, she would have a surplus of almost $900 each month. 22 I was of the view that it would be unreasonable to order the Plaintiff to pay to the Defendant $500 each month just so that the Defendant can accumulate a surplus of $900 each month. 23 I also noted that the expenses incurred by the parties 2 children amounted to $1,090 each month based on the Defendants own figures. As the Plaintiff had voluntarily offered to pay to the Defendant $1,000 each month as maintenance for the children, the Defendant would only have to pay $90 each month towards the childrens expenses each month. 24 After considering the parties respective financial situations in the light of the above, I was of the view that the Plaintiff ought to pay the Defendant only nominal maintenance at this point in time and I therefore ordered that the Plaintiff pay to the Defendant maintenance of $1 per month. Maintenance for the children 25 Section 127(1) of the Womens Charter provides that the court may order a parent to pay maintenance for his child. 26 Section 127(2) of the Womens Charter states that the provisions of Part VIII of the Womens Charter would apply to applications for maintenance, and section 69(4) of the Womens Charter (under Part VIII) states that in ordering maintenance the court shall have regard to all the circumstances of the case including various matters set out in the said section. Defendants position 27 In the Defendants 1st affidavit, she listed the childrens expenses as $615 per month for the older child and $475 per month for the younger child, i.e. a total of $1,090 for both children. 28 In the Defendants 2nd affidavit, she stated (in paragraph 9) that she needed at least $800 a month for each
daughter. During the hearing, the Defendants counsel stated that the amount of maintenance being sought was $800 per month. 29 However, based on the Defendants Notice of Appeal, it appeared that her position had changed after the hearing. At the hearing, her position was that she expected $800 per child but in her Notice of Appeal she stated that she was seeking $600 per child. Plaintiffs position 30 The Plaintiffs position was that he was prepared to pay $500 per month for each child, i.e. a total of $1,000 each month. Decision 31 After considering the figures put forward by both parties, I noted that based on the Defendants own figures,
the Plaintiffs offer to pay $1,000 each month meant that he would be bearing almost 92% of the childrens monthly expenses. This clearly meant that he would be paying for the bulk of what the children required while the Defendants contribution each month (based on her own figures) would be the far more modest sum of $90. 32 In the light of the fact that the Defendants claim for maintenance for the children far exceeded their
expenses, I was of the view that once again the Defendant was trying to accumulate a monthly surplus at the Plaintiffs expense.
4 of 8
3/7/2012 11:06 AM
33 Given that the Plaintiffs offer was to pay for almost 92% of the childrens monthly expenses, I was of the view that his offer to pay $1,000 each month as maintenance for the 2 children was more than adequate and I therefore ordered that he pay this sum as maintenance for the said children. Division of the matrimonial assets 34 Section 112(1) of the Womens Charter states that the court shall have the power to order division of matrimonial assets. Section 112(2) of the Womens Charter provides that the court must have regard to all the circumstances including various matters listed in the said section. Defendants position 35 The Defendants position was that the matrimonial flat ought to be transferred to her upon her making a partial refund of $120,000 to the Plaintiffs Central Provident Fund account. 36 During the hearing, the Plaintiffs counsel submitted that the matrimonial flat was worth about $480,000 and the Defendants counsel accepted that figure. Based on a value of $480,000, the Defendants position effectively amounted to stating that she ought to be entitled to 75% of the value of the matrimonial flat. 37 I noted that, based on the Defendants Notice of Appeal, her position after the hearing had changed. It
appeared that she was no longer asking for a specific percentage but was instead asking that there be an equitable division. Plaintiffs position 38 The Plaintiffs position, as set out in the Plaintiffs counsels written submissions (at paragraph 34), was that
the Defendant should be given a premium of 10% for her indirect contributions when dividing the matrimonial flat, making a total of 31.5%. Parties direct financial contributions towards the matrimonial flat 39 During the hearing, both counsel stated that there was no dispute about the figures laid out in Table 1 of the
Plaintiffs counsels written submissions (at page 6). The position accepted by the parties was as follows: (a) that the Plaintiffs financial contributions towards the matrimonial flat were $123,127.51 from his CPF
account and payment of $40,000.00 towards renovations, making a total of $163,127.51; and (b) that the Defendants financial contributions towards the matrimonial flat were $42,580.20 from her
CPF account and payment of $2,080.00 towards renovations, making a total of $44,660.20. 40 Based on the above figures: (a) (b) the Plaintiffs contribution of $163,127.51 amounted to 78.5% of the total financial contribution; and the Defendants contribution of $44,660.20 amounted to 21.5% of the total financial contribution.
Indirect contributions 41 The Defendant listed her indirect contributions in paragraph 19 of her 1st affidavit. In this paragraph, the Defendant provided a listing of what she said she had spent on the family and what she had done for the family. 42 The Plaintiff, in his 1st affidavit (at paragraph 15), stated that he had been paying for household expenses
during the marriage, and, in his 2nd affidavit (at paragraph 8), he listed several specific items which he stated he had paid for.
5 of 8
3/7/2012 11:06 AM
43 Based on the parties affidavits, it appeared that both parties had made indirect contributions to the marriage. However, in the light of the detailed information provided by the Defendant and the fact that parts of the Defendants position were not challenged by the Plaintiff, I was of the view that the Defendants indirect contributions to the marriage were likely to have been greater than those of the Plaintiff. Other assets 44 There was initially some dispute over the parties other assets but both counsel were able to resolve this after
discussion and the position taken at the hearing was that the value of the parties other assets were as follows:
(a) (b) (c) (d) (e) (f) (g) (h)
Plaintiffs CPF account Plaintiffs bank account Plaintiffs insurance policies Plaintiffs shares Defendants CPF account Defendants bank account Defendants insurance policies Defendants shares
$111,651.48 $10,122.86 $16,003.64 $4,839.00 $84,528.81 $3,200.73 $182,407.76 $5,312.29
45 The initial dispute over the assets concerned the Defendants CPF investment account and her insurance policies. The Plaintiffs initial position was that the Defendant had $160,798.94 in her CPF investment account and insurance policies worth $182,407.76 but the Defendants position was that these were one and the same as the monies in the CPF investment account had been used to purchase the insurance policies (which had subsequently risen in value to the figure of $182,407.76 listed above). The Plaintiffs counsel accepted this explanation and the Defendants CPF account and insurance policy figures were therefore adjusted to the figures above. 46 Based on the parties figures reflected above, the total value of assets which the parties attributed to themselves and each other were as follows:
(a) (b)
Plaintiff Defendant
$142,616.98 (34.1%) $275,449.59 (65.9%)
47
The position taken by both parties, as put forward by their counsel during the hearing, was that they wished
all their assets to be considered by the court but that only the matrimonial flat be divided. Decision 48 In Lim Choon Lai v Chew Kim Heng [2001] SGCA 48, the Court of Appeal laid out the approach to be taken and LP Thean JA (delivering the grounds of judgment of the Court of Appeal) stated: In our respectful view, the approach adopted by Judith Prakash J in Yow Mee Lan v Chen Kai Buan is
6 of 8
3/7/2012 11:06 AM
correct. In determining a just and equitable division of matrimonial assets under s 112(1) of the Women's Charter, the court must, as directed by s 112(2), have regard to all the relevant circumstances of the case at hand, and in particular the matters enumerated in that subsection, in so far as they are applicable, and on that basis determine what a just and equitable, division should be. The matters enumerated there comprise both financial and non-financial contributions made by the parties. Where financial contributions are concerned, the court must, of course, take into account the sums contributed by each party; these are the matters specifically mentioned in paras (a) and (b) of s 112(2). However, this does not mean that the court should engage in a meticulous investigation and take an account of every minute sum each party has paid or incurred in the acquisition of the matrimonial assets and/or discharge of any obligation for the benefit of any member of the family, and then make exact calculations of each party's contributions. The court must necessarily take a broader view than that. As for the non-financial contributions, they also play an important role, and depending on the circumstances of the case, they can be just as important. At the end of the day, taking into account both the financial and non-financial contributions, the court would adopt a broad-brush approach to the issue and make a determination on the basis of what the court considers as a just and equitable division. It is true that a division of matrimonial assets under s 112(1) of the Women's Charter is not an exact science, and that each judge would have his own view in a particular case as to what is a just and equitable division. It all depends on the facts of the case before him. That is what is directed by that section. Bearing in mind what the section directs, the judge in any particular case is doing the best he can in making a division of the assets between the husband and wife. 49 In Ng Hwee Keng v Chia Soon Hin William [1995] SGCA 26, the parties had been married for 19 years and the wifes financial contributions towards the matrimonial flat amounted to just under 20%. After taking into account the wifes non-financial contributions, the Court of Appeal held that she was entitled to 40% of the matrimonial flat. 50 In SP v SQ [2007] SGDC 52, the parties had been married for 13 years and, in respect of the matrimonial flat, the wifes direct financial contributions amounted to 36%. District Judge Hoo Sheau Peng awarded the wife 20% for her non-financial contribution. 51 In FV v FW [2004] SGDC 276, District Judge Tan Peck Cheng found that the wifes direct financial contributions
towards the parties matrimonial flat amounted to 55% and she stated: I found on the evidence before me that the wife had made greater indirect contribution than the husband in looking after the home and caring for the children during the 16 years marriage. Having regard to the parties direct and indirect contributions and all the other relevant circumstances under s112 of the Womens Charter (Cap 353), I was of the view that a just and equitable division of the matrimonial flat would be in the proportion of 65% to the wife and 35% to the husband. 52 In FV v FW, the learned District Judge also found that the wifes direct financial contributions to another property amounted to 44% and that, in percentage terms, she held 37% of the rest of the matrimonial assets, and, after hearing counsel for both parties, the learned District Judge awarded 55% of this other property and 50% of the rest of the matrimonial assets to the wife. As such, the award to the wife ranged from an additional 10% to 13% above and beyond her financial contributions to the various matrimonial assets. 53 In AUN v AUO [2011] SGDC 332, the parties had been married for 17 years and District Judge Michelle
Woodworth Cordeiro stated: When I considered the wifes contribution to the family over the years and the factors in Section 112(2) of the Womens Charter, I came to the assessment that a percentage of 10% over and above the wifes direct financial contributions should be awarded to her. I assessed this to be fair considering the length of the marriage, the contributions made by the wife to the family as a working mother with 3 children, and the assets which the parties would retain.
7 of 8
3/7/2012 11:06 AM
54 In the current case, although the parties had been married for about 18 years, according to the Statement of Particulars they had been separated for the past 11 years and the interim judgment had been granted on the basis that they had been separated since the year 2000. 55 I also noted that the Plaintiffs direct financial contributions (78.5%) to the matrimonial flat were far greater
than those of the Defendant (21.5%), while the Defendant had, over the years, accumulated more assets in her own name than the Plaintiff. 56 In the light of the above and, after considering the parties positions and the reasoning and awards in the above cases and the considerations set out in section 112 of the Womens Charter, I was of the view that, based on a broad brush approach, an award in the region of 31.5% (the Plaintiffs proposal) to 40% to the Defendant would be appropriate in this case. 57 Further, given that the Defendant would have care and control of the parties 2 children and that the needs of these 2 children would have to be taken into account and also that, based on the parties affidavits, it appeared that the Defendants indirect contributions were greater than those of the Plaintiff, I was of the view that the award to the Defendant ought to be at the higher end of the stated range. As such, I was of the view that an award of 40% of the matrimonial flat to the Defendant would be just and equitable in the circumstances. 58 I therefore ordered that the matrimonial flat be sold and that the sale proceeds be divided between the
parties in the proportion of 40% to the Defendant and 60% to the Plaintiff. 59 In Tay Sin Tor v Tan Chay Eng [1999] SGHC 128, Kan Ting Chiu J held that the liability to repay the CPF
should be discharged from each partys share of the sale proceeds. As such, I ordered that each party be responsible for making the requisite refunds to his or her CPF account. 60 As it appeared that the Defendant wished to retain the flat, I ordered that she be granted an option to purchase the Plaintiffs share of the said flat if she so wished. Conclusion 61 I therefore made the relevant orders on maintenance and division of matrimonial assets as set out above for
the reasons as laid out herein
8 of 8
3/7/2012 11:06 AM

AXU V AXV (2012) SGDC 24

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

AXU V AXV (2012) SGDC 24

Uploaded by

Copyright:

Available Formats

LawNet Legal Research