AXU v AXV [2012] SGDC 24

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AXU v AXV [2012] SGDC 24

Suit No :Divorce Suit No 3994 of 2010

Decision Date :1 February 2012

Court :District Court

Coram :Colin Tan

Counsel :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 separate

since 2000. In 2010, the Plaintiff filed a Writ for Divorce and an Interim Judgment dissolving the marriage wa

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

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, afte

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 Defendanwife.

(2) The Plaintiff husband shall pay to the Defendant wife maintenance of $500 per month for each of th

parties’ two children (i.e. total of $1000 per month).

(3) The Plaintiff husband is to deposit the said maintenance directly into the Defendant wife’s designate

bank account.

(4) The Defendant wife is to furnish the Plaintiff husband with her bank account details within one week.

(5) 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 sal

proceeds, after payment of the costs and expenses of the said sale, are to be divided between th

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 interes

to his or her own CPF account.

(c) The Defendant wife shall have the first option to purchase the Plaintiff’s interest in the sai

matrimonial flat at a price based on the open market value of the said flat. If the Defendant wif

wishes to exercise the option she must do so within six months of the date of the Certificate of making

awNet – Legal Research http://www.lawnet.com.sg/lrweb/tools.do?subaction=lrLp2To

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(a) gross monthly income: $2,409.15

(b) take-home monthly income: $1,911.15

Interim Judgement Final.

(d) Save as aforesaid, the parties shall each be entitled to retain the assets held in their ow

names.

(6) The parties shall be at liberty to apply.

4 According to her Notice of Appeal, the Defendant wife has appealed against my decision on the followin

issues:

(a) maintenance for the Defendant wife;

(b) maintenance for the parties’ children; and

(c) division of the matrimonial flat.

5 I now set out herein the grounds for my decision on the above issues.

Documents filed

6 The parties filed the following documents:

(a) Plaintiff’s 1st affidavit;

(b) Defendant’s 1st affidavit;

(c) Plaintiff’s 2nd affidavit;

(d) Defendant’s 2nd affidavit;

(e) Plaintiff’s Fact and Position Sheet;

(f) Defendant’s Fact and Position Sheet; and

(g) Plaintiff’s Written Submissions.

7 The Defendant’s Counsel did not file Written Submissions and argued her client’s case by making ora

submissions during the hearing.

Maintenance for the Defendant wife

8 Section 113 of the Women’s Charter provides that the court may order a man to pay maintenance to his wif

or former wife, and section 114 of the Women’s Charter provides that the court must have regard to all the

circumstances of the case including various matters set out in the said section.

Defendant’s position

9 In the Defendant’s 1st Affidavit (at paragraphs 3 and 13) she stated that her income and expenses were a

follows:


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(c) total monthly expenses: $1,531.85

(a) gross monthly salary: $2,200.00

(b) net pay: $1,760.00

(c) additional income from driving a taxi: $1,000.00

10 Despite the fact that her monthly income exceeded her monthly expenses by almost $400 each month, th

Defendant wanted the Plaintiff to pay her $500 each month as maintenance.

11 The Defendant’s position that she expected the Plaintiff to pay her $500 each month as maintenance wa

consistently maintained by her throughout the proceedings as seen from her 1st

affidavit (at paragraph 25), her 2n

affidavit (at paragraph 9) and her Fact and Position Sheet (at section B).

12 However, it appeared from the Defendant’s Notice of Appeal that her position had, after the hearing, change

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 th

maximum of her pay scale and that it was unlikely that she would receive any further pay increments (a

paragraph 25 of the Defendant’s 1st affidavit).

14 I noted that the Defendant had not disclosed that she was taking a university course but had listed universit

fees in her list of expenses. The Defendant’s counsel, on being asked about these fees during the hearing

explained that the Defendant was taking a course.

15 In the light of the Defendant’s forthcoming university qualification, there would be a reasonable likelihood o

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.

Plaintiff’s position

16 The Plaintiff stated (at paragraph 3 of his 1st affidavit) that his income was as follows:

17 His position was that he was not prepared to pay the Defendant maintenance because she was gainfull

employed (at section B of his Fact and Position Sheet).

18 I was, however, of the view that the Plaintiff’s argument lacked merit as the mere fact that a Defendant i

gainfully employed is not in itself a sufficient reason to deny her maintenance.

Decision

19 Based on the Defendant’s own figures (net income of $1,911.15 and expenses of $1,531.85), she had

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 o

$100 each month for clothes and shoes, her claim of $150 each month for grooming, and her claim of $100 eac

month for vitamins and supplements), it was entirely possible that the Defendant’s monthly surplus might we

exceed $400.


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21 If we were to add this surplus of almost $400 to the $500 in maintenance that the Defendant was demandin

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 eac

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 o

the Defendant’s own figures. As the Plaintiff had voluntarily offered to pay to the Defendant $1,000 each month a

maintenance for the children, the Defendant would only have to pay $90 each month towards the children’expenses each month.

24 After considering the parties’ respective financial situations in the light of the above, I was of the view tha

the Plaintiff ought to pay the Defendant only nominal maintenance at this point in time and I therefore ordered tha

the Plaintiff pay to the Defendant maintenance of $1 per month.

Maintenance for the children

25 Section 127(1) of the Women’s Charter provides that the court may order a parent to pay maintenance fo

his child.

26 Section 127(2) of the Women’s Charter states that the provisions of Part VIII of the Women’s Charter woulapply to applications for maintenance, and section 69(4) of the Women’s Charter (under Part VIII) states that i

ordering maintenance the court shall have regard to all the circumstances of the case including various matters se

out in the said section.


27 In the Defendant’s 1st affidavit, she listed the children’s expenses as $615 per month for the older child an

$475 per month for the younger child, i.e. a total of $1,090 for both children.

28 In the Defendant’s 2nd affidavit, she stated (in paragraph 9) that she needed “at least $800 a month for eac

daughter”. During the hearing, the Defendant’s counsel stated that the amount of maintenance being sought wa$800 per month.

29 However, based on the Defendant’s Notice of Appeal, it appeared that her position had changed after th

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.


30 The Plaintiff’s position was that he was prepared to pay $500 per month for each child, i.e. a total of $1,00

each month.

Decision

31 After considering the figures put forward by both parties, I noted that based on the Defendant’s own figures

the Plaintiff’s offer to pay $1,000 each month meant that he would be bearing almost 92% of the children’s monthl

expenses. This clearly meant that he would be paying for the bulk of what the children required while th

Defendant’s 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 Defendant’s claim for maintenance for the children far exceeded the

expenses, I was of the view that once again the Defendant was trying to accumulate a monthly surplus at the

Plaintiff’s expense.


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33 Given that the Plaintiff’s offer was to pay for almost 92% of the children’s monthly expenses, I was of th

view that his offer to pay $1,000 each month as maintenance for the 2 children was more than adequate and

therefore ordered that he pay this sum as maintenance for the said children.

Division of the matrimonial assets

34 Section 112(1) of the Women’s Charter states that the court shall have the power to order division o

matrimonial assets. Section 112(2) of the Women’s Charter provides that the court must have regard to all th

circumstances including various matters listed in the said section.


35 The Defendant’s position was that the matrimonial flat ought to be transferred to her upon her making

partial refund of $120,000 to the Plaintiff’s Central Provident Fund account.

36 During the hearing, the Plaintiff’s counsel submitted that the matrimonial flat was worth about $480,000 an

the Defendant’s counsel accepted that figure. Based on a value of $480,000, the Defendant’s position effectivel

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 Defendant’s Notice of Appeal, her position after the hearing had changed. I

appeared that she was no longer asking for a specific percentage but was instead asking that there be a “equitable division”.


38 The Plaintiff’s position, as set out in the Plaintiff’s counsel’s written submissions (at paragraph 34), was tha

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 th

Plaintiff’s counsel’s written submissions (at page 6). The position accepted by the parties was as follows:

(a) that the Plaintiff’s financial contributions towards the matrimonial flat were $123,127.51 from his CP

account and payment of $40,000.00 towards renovations, making a total of $163,127.51; and

(b) that the Defendant’s financial contributions towards the matrimonial flat were $42,580.20 from he

CPF account and payment of $2,080.00 towards renovations, making a total of $44,660.20.

40 Based on the above figures:

(a) the Plaintiff’s contribution of $163,127.51 amounted to 78.5% of the total financial contribution; and

(b) the Defendant’s 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, th

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 expense

during the marriage, and, in his 2nd affidavit (at paragraph 8), he listed several specific items which he stated he

had paid for.


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(a) Plaintiff’s CPF account $111,651.48

(b) Plaintiff’s bank account $10,122.86

(c) Plaintiff’s insurance policies $16,003.64

(d) Plaintiff’s shares $4,839.00

(e) Defendant’s CPF account $84,528.81

(f) Defendant’s bank account $3,200.73

(g) Defendant’s insurance policies $182,407.76

(h) Defendant’s shares $5,312.29

(a) Plaintiff $142,616.98 (34.1%)

(b) Defendant $275,449.59 (65.9%)

43 Based on the parties’ affidavits, it appeared that both parties had made indirect contributions to th

marriage. However, in the light of the detailed information provided by the Defendant and the fact that parts of th

Defendant’s position were not challenged by the Plaintiff, I was of the view that the Defendant’s indirec

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 afte

discussion and the position taken at the hearing was that the value of the parties’ other assets were as follows:

45 The initial dispute over the assets concerned the Defendant’s CPF investment account and her insuranc

policies. The Plaintiff’s initial position was that the Defendant had $160,798.94 in her CPF investment account an

insurance policies worth $182,407.76 but the Defendant’s position was that these were one and the same as themonies 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 Plaintiff’s counsel accepted this explanation and th

Defendant’s 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 t

themselves and each other were as follows:

47 The position taken by both parties, as put forward by their counsel during the hearing, was that they wishe

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 take

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 i


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correct. In determining a “just and equitable” division of matrimonial assets under s 112(1) of the Women'

Charter, the court must, as directed by s 112(2), have regard to all the relevant circumstances of the case a

hand, and in particular the matters enumerated in that subsection, in so far as they are applicable, and o

that basis determine what a “just and equitable”, division should be. The matters enumerated ther

comprise both financial and non-financial contributions made by the parties. Where financial contribution

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 th

court should engage in a meticulous investigation and take an account of every minute sum each party ha

paid or incurred in the acquisition of the matrimonial assets and/or discharge of any obligation for the benefof any member of the family, and then make exact calculations of each party's contributions. The court mus

necessarily take a broader view than that. As for the non-financial contributions, they also play an importan

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 an

equitable” division.

It is true that a division of matrimonial assets under s 112(1) of the Women's Charter is not an exac

science, and that each judge would have his own view in a particular case as to what is a just and equitabl

division. It all depends on the facts of the case before him. That is what is directed by that section. Bearin

in mind what the section directs, the judge in any particular case is doing the best he can in making 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 an

the wife’s financial contributions towards the matrimonial flat amounted to just under 20%. After taking int

account the wife’s non-financial contributions, the Court of Appeal held that she was entitled to 40% of th

matrimonial flat.

50 In SP v SQ [2007] SGDC 52, the parties had been married for 13 years and, in respect of the matrimonia

flat, the wife’s direct financial contributions amounted to 36%. District Judge Hoo Sheau Peng awarded the wif

20% for her non-financial contribution.

51 In FV v FW [2004] SGDC 276, District Judge Tan Peck Cheng found that the wife’s direct financial contributiontowards 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 Women’

Charter (Cap 353), I was of the view that a just and equitable division of the matrimonial flat would be in th

proportion of 65% to the wife and 35% to the husband.”

52 In FV v FW , the learned District Judge also found that the wife’s direct financial contributions to anothe

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% o

the rest of the matrimonial assets to the wife. As such, the award to the wife ranged from an additional 10% t

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 Michell

Woodworth Cordeiro stated:

“When I considered the wife’s contribution to the family over the years and the factors in Section 112(2) o

the Women’s Charter, I came to the assessment that a percentage of 10% over and above the wife’s direc

financial contributions should be awarded to her. I assessed this to be fair considering the length of th

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.”


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54 In the current case, although the parties had been married for about 18 years, according to the Statement o

Particulars they had been separated for the past 11 years and the interim judgment had been granted on the basi

that they had been separated since the year 2000.

55 I also noted that the Plaintiff’s direct financial contributions (78.5%) to the matrimonial flat were far greate

than those of the Defendant (21.5%), while the Defendant had, over the years, accumulated more assets in he

own name than the Plaintiff.

56 In the light of the above and, after considering the parties’ positions and the reasoning and awards in thabove cases and the considerations set out in section 112 of the Women’s Charter, I was of the view that, based o

a broad brush approach, an award in the region of 31.5% (the Plaintiff’s 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 o

these 2 children would have to be taken into account and also that, based on the parties’ affidavits, it appeare

that the Defendant’s indirect contributions were greater than those of the Plaintiff, I was of the view that the awar

to the Defendant ought to be at the higher end of the stated range. As such, I was of the view that an award o

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 th

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 CP

should be discharged from each party’s share of the sale proceeds. As such, I ordered that each party b

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 t

purchase the Plaintiff’s 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 fo

the reasons as laid out herein


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