(2012) 13 SAL Ann Rev 299-327 (Family)

(2012) 13 SAL Ann Rev
Family Law
299
16. FAMILY LAW

Debbie ONG
LLB (Hons) (National University of Singapore), LLM (Cambridge);
Associate Professor, Faculty of Law, National University of Singapore.
Divorce: Matrimonial jurisdiction
Habitual residence
16.1
Section 93 of the Womens Charter (Cap 353, 2009 Rev Ed)
provides:
(1)
Subject to subsection (2), the court shall have jurisdiction to
hear proceedings for divorce, presumption of death and divorce,
judicial separation or nullity of marriage only if either of the parties to
the marriage is
(a)
domiciled in Singapore at the time of the
commencement of the proceedings; or
(b)
habitually resident in Singapore for a period of
3 years immediately preceding the commencement of the
proceedings.
16.2
Lee Mei-Chih v Chang Kuo-Yuan [2012] 4 SLR 1115 clarified the
definition of habitual residence. In this case, the parties were not
Singaporean citizens, nor were they domiciled in Singapore. The
defendant husband was never habitually resident in Singapore. In order
for the court to have jurisdiction over the matter, the plaintiff wife had
to prove that she was habitually resident in Singapore during the
preceding three years. The High Court referred to English law for
guidance and held that interpretations ascribed to ordinary residence
should equally apply to habitual residence. Ordinary or habitual
residence requires voluntary residence and a settled purpose. There
must also be a degree of continuity of habitual residence throughout the
relevant period, apart from temporary or occasional absences. On the
facts, while the plaintiff wife had voluntarily resided in Singapore with a
settled purpose, she failed to establish the requisite degree of continuity
in residence, having travelled out of Singapore for eight months to
Taiwan and four months to New Zealand. The court thus had no
jurisdiction over the matter.
16.3
The basis for such a requirement is to meet the interests of the
state and of those who genuinely belong here, without allowing access
to our courts to transients, forum-shoppers, and others with no real
connection with the country: at [4], citing the UK Law Commissions
2013 Contributor(s) and Singapore Academy of Law.
No part of this document may be reproduced without permission from the copyright holders.
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Report on Jurisdiction in Matrimonial Causes (Law Com No 48, 1972).

Prior to the 1996 Amendments to the Womens Charter, there was
an additional requirement in the equivalent of the current s 93: the
marriage had to be monogamous in character or deemed registered
under the Womens Charter before the Singapore court had
matrimonial jurisdiction over it. This requirement was dropped leaving
only the connection of either party to Singapore by way of domicile or
habitual residence. This remaining requirement is the gateway guardian
that ensures the state has a sufficient interest in the parties and their
marriage, and should not be interpreted too liberally.
Termination of marriage by decree nisi or death
16.4
The legal effect of a decree nisi of divorce or an interim
judgment of divorce was clarified in Hou Wa Yi v Yap Kiat Cheong
[2012] 2 SLR 995 (Hou Wa Yi). In this case, the husband died after a
decree nisi was granted. Probate was granted to the husbands executors,
who applied to intervene and sought an order to make the decree nisi
absolute. The High Court held, rightly, (at [5]) that:
The decree nisi is an inchoate order and, until it is made absolute, may
be overtaken by the event of death. The proper reading of s 7 of the
Womens Charter is that a marriage is dissolved on the occurrence of
any of the three events stipulated in ss 7(a)7(c). Death of a party to
the marriage and a court order are two such events. The court order
finally dissolving a marriage is the decree absolute and not the decree
nisi because the decree nisi will not dissolve the marriage if the court
has reasons not to grant the decree absolute, rare as that may be.
16.5
The often cited case on the legal consequences of a decree nisi
of divorce, Sivakolunthu Kumarasamy v Shanmugam Nagaiah [1987]
SLR(R) 702, had held that an order on division of assets made after a
decree nisi of divorce was made could be enforced even where one
party to the marriage had died before the decree was made absolute.
A misconceived interpretation of this holding may be that a marriage is
legally terminated by a decree nisi. It has been clarified in Hou Wa Yi
(at [7]) that:
The court [in Sivakolunthu] only held that the decree nisi practically
terminated the marriage. [T]he issue before the court there was
whether an order for the division of matrimonial assets made
under the Womens Charter was valid and enforceable when
made upon a decree nisi. Sivakolunthu had to not be read out of
context to stand for more than it actually did.
16.6
Thus, the marriage in Hou Wa Yi was terminated by the death of
one party and not by a divorce. A decree nisi of divorce, now called an
interim judgment of divorce, does not legally terminate a marriage.
An important consequence of this is that a party who has obtained an
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interim judgment of divorce but not a final judgment remains married

and has no capacity to marry until the judgment is made final. If a
Singapore domiciliary under such circumstances marries another before
a final judgment of divorce is obtained over the previous marriage, that
marriage is void for breach of s 5 of the Womens Charter.
Custody of children
Care and control
16.7
In AWN v AWO [2012] SGHC 228 (AWN v AWO), the husband
applied, under the Guardianship of Infants Act (Cap 122, 1985 Rev Ed),
for the sole custody, care and control of his three-year old son. The
District Judge had read a social welfare report by the Family Welfare
Service of the then Ministry of Community Development, Youth and
Sports and was of the view that in light of the tender years of the child
and the fact that he was attached to his mother, care and control should
be granted to the wife, with access to the husband. One of the many
contentions of the husband was that the courts are wrong in adopting a
default rule which invariably gives care and control of young children to
the mother. The High Court made it a point to correct this view (at [4]):
The husband is mistaken in taking the view that any such default rule
exists. In matters like the present, it is the welfare of the child that is of
paramount consideration. While the courts have recognised the
maternal bond as one factor to consider in deciding such matters, this
does not mean that there is an operating presumption in favour of the
mothers in such proceedings.
16.8
Whether there is such a presumption in favour of a mother of a
young child could be a tad controversial since the Court of Appeals
decision in Soon Peck Wah v Woon Che Chye [1997] 3 SLR(R) 430
(Soon Peck Wah) (at [45]), which famously extolled the mothers love
for her child, conspicuously leaving out a fathers love:
All other things being equal, a very important factor to bear in mind
was that we were dealing with an extremely young infant. We felt that
the maternal bond between the natural mother and the infant was a
pivotal consideration here. We have heard of the story of the
mother who fought a tiger with her bare hands to save her child from
the ferocious beast. Such is the love and sacrifice of the maternal
instinct. This court would be doing a disservice to justice and
humanity if it turned a blind eye to the most fundamental bond of
mankind between a mother and her child, by taking the child away
from the mother.
16.9
From this holding, it is not completely ludicrous to suggest that
Soon Peck Wah states a rebuttable starting position which favours the
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mother, where all other things are equal, as caregiver and custodian of
young children. This is despite the courts caution (at [45]) that:
We should not be mistaken as reviving the old presumption of
maternal custody of all young infants. It is only a natural conclusion
that, by reason of very tender, young age, the infant would be most
dependent on his mother for his physical and psychological needs.
16.10 Practically, the holding in Soon Peck Wah can effectively give rise
to a presumption in the limited circumstances where all other things are
equal between the parents. In fact, numerous cases citing Soon Peck Wah
have applied it when granting care to mothers.
16.11 The law should not hold on to any presumptions based solely
on gender. The welfare of a child requires the court to consider every
relevant factor. Parent and child relationships are different and even
complicated in families which have broken down. One approach that
will restrict the effect of favouring a parent based on gender is in finding
that things are not equal between the parents; even a minor factor could
tilt the balance. Another is to focus on the Court of Appeals caution
that it was not reviving the old presumption of maternal custody and
was merely highlighting one of many factors relevant to a childs welfare.
Soon Peck Wah was not cited in AWN v AWO.
Relocation: Taking the children out of the jurisdiction of Singapore
16.12 In last years review, a note was made on the issue of relocation.
Section 126(3) of the Womens Charter provides that where an order
for custody is in force, no person shall take the child who is the subject
of the custody order out of Singapore except with the written consent of
both parents or the leave of court. Section 126(4) of the Womens
Charter makes an exception in cases where the child is taken out of
Singapore for less than one month. The other parents consent is
required before the child may be relocated out of Singapore and where
there is none, the courts leave is required.
16.13 In AZB v AYZ [2012] 3 SLR 627 (AZB v AYZ), the husband
was a wealthy Malaysian businessman and the wife was an American
residing in Singapore. The wife was a homemaker and the primary
caregiver of the couples nine-year old daughter. The marriage became a
turbulent one marked by verbal abuse and bullying on the husbands
part which, coupled with the increasing sense of alienation and isolation
felt by the wife, eventually led to the breakdown of the marriage: AZB v
AYZ at [4]. The District Court had earlier made an order granting the
wife permission to permanently relocate with the daughter to the US.
The husband appealed against the relocation order and argued that the
best interests of the child are not always aligned with the wishes of the
primary caregiver and the court should give weight to other factors such
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as whether the reduced level of contact afforded to the non-applicant

parent would be compatible with the childs best interests.
16.14 The High Court adopted the principles stated by the Court of
Appeal in Re C (An Infant) [2003] 1 SLR(R) 502, and observed that the
English cases surveyed suggest that the welfare of the child is often so
inextricably intertwined with the general well-being and happiness of
the primary caregiver that the court is loath to interfere with important
life decisions of the primary caregiver, so long as they are reasonably
made and are not against the interests of the child: AZB v AYZ at [14].
However, it clarified that this does not mean that the reasonable wishes
of the primary caregiver is an insurmountable factor in favour of
allowing the application; in an appropriate case, the court may find it
necessary to deny an application to relocate. Still, it seems that in
practice, although the court will be sensitive to other factors in the
balancing exercise, since the long-term interests of the child are closely
aligned with the emotional and psychological well-being of the primary
caregiver in most cases where the desire of the primary caregiver to
relocate is reasonable and genuine, the court is likely to grant the
application: AZB v AYZ at [20]. The High Court found that the wife
played a primary and central role in the daughters life; she was the
constant in the childs life: AZB v AYZ at [35]. The learned judge
observed that although there was some degree of mutual love and
affection between the husband and the child, the husband had not been
a good influence on the child. The husband had also argued that since
the child is currently well-settled in school in Singapore, the relocation
would be detrimental to her well-being. To this, the court responded
that one should not under-estimate the adaptability and resilience of
young children generally and noted that the wife would provide the
stabilising influence for the child: AZB v AYZ at [52].
16.15 The position taken by the High Court in AZB v AYZ has
consistently been the one adopted in Singapore in relocation cases.
The same approach was used in AYD v AYE [2012] SGHC 42. In this
case, the District Judge granted the wife sole custody of the two sons and
allowed her to leave Singapore with the sons to the US to continue their
education and to make decisions in respect of their welfare. On appeal
by the husband, the High Court held (at [20]) that:
[I]t was not disputed that the Wife has an American fianc with a
business in America and she has a good reason to wish to settle down
in the USA. It was also undisputed that the Wife was the primary care
giver of the two sons. It would only be reasonable for her to want to
bring the two sons with her and for them to want to be with her. If the
move made it more difficult for the Husband to have access, that was a
separate matter. Any hindrance or further hindrance to his access must
weigh less than the childrens interest in being with their mother.
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16.16 In relocation cases, the courts in Singapore use guidance from

past cases (including English ones), common sense and experience to
determine what is in the childs welfare. It appears that the court is
inclined towards upholding the decisions of the custodial parent as long
as they seem reasonable and do not reveal a primary intention to deny
the other parent access to the child. One could say that while all factors
are relevant and should be given appropriate weight, the dominant
factor is the reasonable wishes and intentions of the primary caregiver
desiring to relocate with the child. This state of the law may cause
parents to view obtaining care and control of a child as an advantage
in relocation issues.
16.17 There have been, in recent years, an increasing number of
reported cases involving parents seeking shared care and control.
These cases hint at what may be the new trend of high conflict areas in
disputes over children. While the battle in the earlier years prior to the
landmark decision in CX v CY [2005] 3 SLR(R) 690 was mainly over
custody, the battlefield today is over care and control. Sole custody,
which used to be fairly commonly granted, is now confined to
exceptional cases. While joint custody is feasible and in fact encouraged
even where parents have different parenting styles, shared care and
control is more disruptive to children of parents who are unco-operative
or have very different and strong parenting styles. Shared care and
control is also more practically disruptive to the daily living routines of
the children, particularly older school-going children. However, if
shared care and control is what it takes to even out the advantage a
parent may obtain over the other in relocation cases, it may be too
significant for parents to pass up.
Maintenance
Forum non conveniens and s 69 of the Womens Charter
16.18 In BDA v BDB [2013] 1 SLR 607 (BDA v BDB), the husband
and the wife were citizens of India and permanent residents of
Singapore. The wife filed an application for maintenance in September
2011 and the husband filed for divorce in India around October or
November 2011. The court below ruled in favour of the husband who
sought a stay of the maintenance application on the ground of forum
non conveniens. The wife argued that an application, under s 69 of the
Womens Charter, is a criminal process, thus the doctrine of forum non
conveniens can have no application. The High Court discussed the issue
of whether a s 69 application is a civil or criminal process and then
addressed whether the application could be stayed on the ground of
forum non conveniens. It rightly held that a s 69 application is essentially
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civil in nature. On the second issue, the learned judge held (at [18])
that:
I have not been able to unearth any case authority from any
Commonwealth country where a stay was ordered on the ground of
forum non conveniens in relation to a maintenance application filed by
a wife against her husband. However, in England, the doctrine of
forum non conveniens was held to apply to divorce proceedings not
governed by intra-European Union legislation on mandatory
jurisdiction (see, eg, Dampierre v De Dampierre [1988] 1 AC 92 which
applied the test in Spiliada Maritime Corporation v Cansulex Ltd
[1987] 1 AC 460 (Spiliada)
It is undoubtedly true that maintenance of a former wife is ancillary

to, and is very much a part of divorce proceedings. However, I cannot
see any objection in principle or in logic why a freestanding
maintenance application simpliciter by a wife against her husband
should be treated any differently.
16.19 Applying the forum non conveniens principles in Spiliada

Maritime Corp v Cansulex Ltd [1987] AC 460 (Spiliada), the High
Court held that the husband had not discharged the burden of showing
that India is clearly or distinctly a more appropriate forum and so the
maintenance proceeding should not be stayed.
16.20 More than a decade ago, the Singapore court in Low Wing
Hong Alvin v Kelso Sharon Leigh [1999] 3 SLR(R) 993 had already
applied Spiliada principles governing commercial disputes to divorce
proceedings. BDA v BDB affirmed the position and went further in
adopting the same principles in a free-standing maintenance
application. Yet it is because a s 69 maintenance application is distinct
from divorce proceedings that it is not surprising that it is hard to find
such applications stayed on the ground of forum non conveniens. While
parties must be connected to Singapore by domicile or residence when
instituting divorce proceedings under s 94 of the Womens Charter, there
is no similar requirement of personal connection in s 69 applications.
Maintenance under s 69 is intended to provide immediate relief for
wives whose husbands have failed to adequately maintain them. In Sithy
Fatima Zafrullah v Hareed Mohamed Zafrullah MSS 1096 of 1983
(unreported), the husband argued that unless a more real and
substantial connection between the parties and Singapore was sought,
any dissatisfied wife from any part of the world may come to Singapore
and institute proceedings against her husband who happened to be in
Singapore. The District Court rightly rejected the argument as
enforcement of orders would prevent wives from doing this if the
husband did not have income or financial resources in Singapore.
On present facts, the husband was working and earning income in
Singapore. This is a legitimate reason for making a maintenance
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application in the forum. The enforcement of maintenance orders, such

as by way of attachment of earnings orders, will be effective where the
husband works in the forum. Section 69 applications are distinct from
divorce proceedings and in cases where the husband has financial
resources in the forum, the factor that divorce proceedings have been
filed elsewhere alone is unlikely to tip the case in favour of a stay.
Division of matrimonial assets
Matrimonial assets
Substantial improvement
16.21 The case of Chen Siew Hwee v Low Kee Guan [2006]
4 SLR(R) 605 was cited in Anusuya d/o Sangaranaidoo Parthasarathy v
Moderge Gamini Fernando [2012] SGHC 132, which explained the
purpose of the provision in s 112(10) of the Womens Charter excluding
gifts from the pool of matrimonial assets. One of the issues in the case
was whether the property at Jansen Road was a matrimonial asset.
The High Court found that this property was a gift made to the
husband by his father and was therefore not a matrimonial asset unless
it was a matrimonial home or substantially improved during the
marriage by the other party or by both parties to the marriage. The
High Court found that the wife had not in any case substantially
improved the property. Her alleged contributions were that she
used to go over to the property with the maid and the two children to
clean, feed the guard dogs and maintain the house. Assuming they were
true, such acts did not amount to a substantial improvement of the
property. Her actions were de minimis and amounted at most to
maintenance of the property whereas the proviso to s 112(10)
contemplates that the asset should be substantially improved. The
decision has been reversed on appeal. The Court of Appeals decision
that the property was a gift to the husband and his family will be
reviewed in next years SAL Ann Rev.
Inter-spousal gifts
16.22 Two issues in family law are pertinent when one spouse gives
the other a gift during their marriage. First, when these spouses divorce,
are such gifts matrimonial assets subject to the courts power of
division in s 112 of the Womens Charter? Second, if these gifts remain
matrimonial assets available for division, how should such gifted assets
be divided between the spouses?

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16.23 In the 1990s, the Court of Appeal in Yeo Gim Tong Michael v
Tianzon Lolita [1996] 1 SLR(R) 633 (Yeo Gim Tong Michael) established
(at [12]) that an inter-spousal gift:
was nonetheless acquired by the donor and not the recipient, and if
it was acquired during the marriage it would fall within the class of
assets covered [in s 112]. However, where the subject matter of the gift
is itself a gift from a third party, for instance from a parent of the
donor, then the gift is not property acquired by the donor by any
effort on his part Gifts emanating from third parties to a spouse
during his marriage have been held not to be assets acquired by him.
16.24 In 2011, the High Court held in Wan Lai Cheng v Quek Seow Kee
[2011] 2 SLR 814 that inter-spousal gifts are not matrimonial assets and
should be excluded from the pool of assets available for division.
However, the High Court in two subsequent cases in 2011, Tan Cheng
Guan v Tan Hwee Lee [2011] 4 SLR 1148 and Sigrid Else Roger Marthe
Wauters v Lieven Corneel Leo Raymond Van Den Brande [2011]
SGHC 237 held that inter-spousal gifts remained matrimonial assets
(see (2011) 12 SAL Ann Rev 298 at 308311, paras 15.2415.32). This
uncertain state of the law on inter-spousal gifts was clarified in two
Court of Appeal decisions in 2012.
16.25 In Wan Lai Cheng v Quek Seow Kee [2012] 4 SLR 405 (Wan Lai
Cheng), the husband came from a wealthy family and was
self-employed while the wife was a teacher until her retirement. The
husband had incorporated three companies, Hawick, Kelso and Skeve,
to hold various properties. Hawick and Kelso held properties which
originated as gifts to the husband from his late father. Skeve held an
apartment that the husband had purchased during the marriage. The
husband gifted 40% of the shares in Hawick and Kelso and 10% of the
shares in Skeve to the wife. The High Court had held that inter-spousal
gifts were gifts for the purposes of s 112(10) of the Womens Charter
and were thus not matrimonial assets unless there was evidence that the
gifts had been substantially improved during the marriage. It held that
the shares were the wifes property, which would be taken into
consideration in determining her share of the matrimonial assets.
The parties did not appeal on the 35:65 division with respect to the
matrimonial home in favour of the husband. The appeal centred on
whether the inter-spousal gifts were gifts for the purposes of s 112(10),
as well as the proportions of division and maintenance. All three Justices
of Appeal gave separate judgments with Andrew Phang Boon Leong JA
giving the leading one.
16.26 On the issue of whether inter-spousal gifts are gifts for the
purposes of s 112(10), Phang JA held (at [40]) that:
inter-spousal gifts were not intended by Parliament to fall within
the ambit of the word gift in s 112(10). An inter-spousal gift
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embodies, by its very nature, the initial effort expended by the donor
spouse in, as this court put it in Yeo Gim Tong Michael (at [12]), the
original acquisition of [the] gift. If, therefore, such a gift were excluded
from the pool of matrimonial assets, the initial effort expended by the
donor spouse in the acquisition of the gift would simultaneously be
denied recognition a result which prompted this court in Yeo Gim
Tong Michael to arrive at the decision that an inter-spousal gift ought
to remain as part of the pool of matrimonial assets. This decision is, in
my view, just and equitable inasmuch as the result is that whilst
ownership of an inter-spousal gift resides in the donee spouse as a
result of the transfer of that gift by the donor spouse, the initial effort
of the donor spouse in the acquisition of the gift is nevertheless
acknowledged and recognised thus achieving a balance.
16.27 His Honour emphasised that the holding applies only to pure
inter-spousal gifts, ie, inter-spousal gifts where the gifts are not
acquired by the donor spouse by way of a third-party gift or an
inheritance. It does not apply to inter-spousal gifts which take the
form of a re-gift of an asset acquired by the donor spouse by way of a
third-party gift or inheritance.
16.28 Section 112(10) provides that a matrimonial asset does not
include any asset, not being a matrimonial home, that has been acquired
by one party at any time by gift or inheritance and that has not been
substantially improved during the marriage by the other party or by
both parties to the marriage. This provision is referred to as the
Exclusion Clause in the judgment of Phang JA. There are thus two ways
that a gift or inheritance may be transformed into a matrimonial asset:
the use of it as a matrimonial home and the substantial improvement of
it by the other party or both parties. Phang JA held that the substantial
improvement exception is not applicable to inter-spousal re-gifts.
This is because where a third-party gift is made the subject of an
inter-spousal re-gift, the concept of the other spouse takes on an
entirely different complexion compared to situations where a thirdparty gift is not re-gifted. His Honour was of the view that inter-spousal
re-gifts were likely not envisaged at the time s 112(10) was enacted
and as such, the only approach open was to hold that the substantial
improvement exception is intended to apply only to third-party gifts
and inherited assets, and not to inter-spousal re-gifts. V K Rajah JA
agreed with Phang JA that re-gifts are not matrimonial assets and that
the substantial improvement exception does not apply to them. By this
reasoning, the Hawick and Kelso shares were not matrimonial assets
while the Skeve shares were.
16.29 Chan Sek Keong CJ, while agreeing with the final holding,
appeared not to have made the same distinction between a pure
inter-spousal gift and re-gift (at [106]):
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[A]s far as inter-spousal gifts are concerned, the scope of the current
s 112 is broader than that of the former s 106 in several respects.
Most notably (for present purposes), the current s 112 applies to all
inter-spousal gifts of pre-marriage assets and post-marriage assets
(including assets acquired by way of a third-party gift or inheritance).
Such gifts will become matrimonial assets if they are substantially
improved during the marriage by the other party or by both parties,
but not otherwise.
16.30 Prof Leong Wai Kum has given an analysis of the decision in
Wan Lai Cheng in Leong Wai Kum, Elements of Family Law in Singapore
(Singapore: LexisNexis, 2nd Ed, 2013) at pp 600603. There, she
refers to the ways that gifts may become matrimonial assets as
Transformation Arguments. In her notes for the National University of
Singapore Faculty of Law Continuing Legal Education seminar held on
28 February 2013 entitled Division of Matrimonial Assets: Court of
Appeal Decisions, Giving Back to Former Equal Marital Partners
and Inter-spousal Gifts (Notes of Seminar), Prof Leong argued
(at para 6.8):
The Judge of Appeal did not proceed to justify why property similarly
acquired as gift from a third party to one spouse or inheritance (but
no part of which was ever gifted to the other spouse) has the
advantage of 2 Transformation Arguments open to possibly transform
the property into [a matrimonial asset] while, if the owner-spouse
gifted a part of it to the other spouse during marriage, only has one
Transformation Argument open. It is submitted (i) that the difference
in treatment is unacceptable and everything that can be done should
be done to avoid reading the definition to so differently treat the
properties, and (ii) that the difference in treatment is oddly ironic.
On principle, as the husband was willing to gift 40% of the inherited
properties to his wife during marriage, this ought to argue more,
not less, for including the property as [a matrimonial asset] for just
and equitable division between them. The SGCAs decision would
leave 2 Transformation Arguments available if he never gifted the 40%
to his wife while, having so gifted 40%, only 1 Transformation
Argument is available.
16.31 Phang JA was aware of the difficulties in his analysis and had
explained (Wan Lai Cheng at [57]) as follows:
I recognise that one potential difficulty with my approach is that a
spouse who receives an inter-spousal re-gift (where the asset
concerned, being non-matrimonial in origin, would not form part of
the pool of matrimonial assets and would thus belong solely to the
donee spouse) may be in a better position than a spouse who receives
a pure inter-spousal gift (where the asset concerned, being
matrimonial in origin, would form part of the pool of matrimonial
assets). I am of the view that this difficulty can nevertheless be
addressed in the following practical way. In cases of an inter-spousal
re-gift, the court still has the power to do justice by taking the donee
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spouses non-matrimonial property into account pursuant to

s 112(2)(h) read with s 114(1) of the [Womens Charter].
16.32 Prof Leong questioned whether this was the best approach to
take (Notes of Seminar at para 6.10):
It must be queried whether such a complex view is absolutely
necessary at the stage of identification of property as [a matrimonial
asset] especially as it leads to further complication at the next stage
of deciding what is the just and equitable division of these
[matrimonial assets].
16.33 Looking beyond the technical wordings in s 112(10) and

analysing the holistic structure of the provision, it may be possible to
identify what Parliament was aiming to achieve in the definition of
matrimonial assets. Matrimonial assets are available for division
between spouses and hence must be assets that are internal to the
marriage, that is, assets that had connection with the marriage or the
parties efforts in the marriage. Assets which should not be included in
the pool of matrimonial assets are assets that are external to the
marriage, such as assets acquired before the marriage or were not
acquired by either partys efforts during the marriage.
16.34 Thus, gifts originating from third parties and inheritance are
external to the marriage as neither party expended effort in the
acquisition. For such assets to become matrimonial assets, they must be
transformed either by usage as a matrimonial home or substantial
improvement by the other spouse or both spouses (Prof Leong refers to
the ways that gifts may become matrimonial assets as Transformation
Arguments). These acts give the assets the necessary connection to
the marriage such that they are no longer external to the marriage and it
is fair to divide them between the marital partners. Present law takes the
position that when either of these transformation acts occurs, the entire
asset is available for division as a matrimonial asset. However, the court
may consider these circumstances and may, for example, award a smaller
proportion to the other spouse (see for example, the awards in Koh Kim
Lan Angela v Choong Kian Haw [1993] 3 SLR(R) 491).
16.35 A possible approach is to include as matrimonial assets only the
increase in value of the asset by the substantial improvement during the
marriage. If this is done, there is no need to use the classification
method to treat the transformed asset as requiring special consideration
due to these circumstances at the later stage of the division exercise: see
NK v NL [2007] 3 SLR(R) 743 (NK v NL) for an explanation of the
classification and global assessment methods. The court can use the
global assessment method quite comfortably if only the increased
value is pooled into the assets available for division. The difference
between the values of the original asset at the time of gifting and the
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substantially improved gift may be said to be an asset acquired during

the marriage. Using this perspective, one can even argue that the
difference in value is an asset acquired during marriage and so it matters
not which spouse expended efforts in its acquisition. Prof Leong has
argued (Leong Wai Kum, Elements of Family Law in Singapore
(Singapore: LexisNexis, 2nd Ed, 2013) at pp 569570) that:
requiring that the effort which substantially improved the property
comes from the other spouse (or else it must come from both spouses)
is discordant with the concept of deferred community of property. If
the power flows from the ideology of marriage as the spouses equal
co-operative partnership of different efforts for their mutual benefit, it
really ought not to matter which specific spouse expended the efforts.
16.36 The approach may involve some practical difficulty in the

ascertainment of this value, as the increased value may be due to factors
other than the efforts of the party or parties. However, the difficulty
should not be insurmountable if it is accepted that in general, we can be
more generous rather than less in attributing the value deemed to have
arisen from the substantial improvement, bearing in mind that in past
cases, the entire asset would have been subject to division.
16.37 Even if this approach is not taken, it has been suggested
earlier that a more purposive reading be taken of the substantial
improvement exception. It was argued in (2006) 7 SAL Ann Rev 257
at 264, para 14.21:
In a case where, if the husband has expended much of his working life
enhancing a company and his wife has made sufficient indirect
contribution (to his family life, his extended family, the home) it could
be argued that their joint efforts substantially improved the asset. By
providing the two alternatives of substantial improvement by the
other spouse or by both spouses, it could be argued that the provision
allows a joint effort situation where a spouses contribution frees up
the other spouse to pursue the substantial improvement in assets
(this point was discussed in greater detail in relation to Chow Hoo
Siong v Lee Dawn Audrey [2003] 4 SLR 481 in Debbie Ong & Valerie
Thean, Family Law in (2003) 4 SAL Ann Rev 243 at paras 13.4013.42).
Such a view is consistent with the learned judges wish to avoid a
windfall to the non-gifted party.
16.38 To recapitulate, the analysis of the majority of the Court of

Appeal in Wan Lai Cheng (above, para 16.25) is that when a gift
originating from a third party is re-gifted from the original donee
spouse to the other, the gift is not a matrimonial asset and the donee
spouse who first received the third-party gift can no longer have a share
in it. Further, the original donee spouse cannot rely on the substantial
improvement exception to transform the asset into a matrimonial asset.
However, where a third-party gift is not re-gifted, it is not a matrimonial
asset but the other spouse may rely on the substantial improvement
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exception to transform the gift into a matrimonial asset. It is submitted

that it would be principled to focus on the source of the gift instead. In
the former situation, the asset is external to the marriage, and is not a
matrimonial asset, being originally a gift from a third party. It is a gift
and can be transformed or made internal to the marriage by its use as
a matrimonial home or substantial improvement. Re-gifting does not
alter the character of the gift. In the latter situation, the result is exactly
the same as the Court of Appeals as the asset was external to the
marriage and was not acquired by the effort of either party to the
marriage. Only gifts between spouses which were originally acquired by
the efforts of either party to the marriage are matrimonial assets.
Prof Leong advocates an approach where the court generally ignore[s]
the conduct of gifting between spouses since this depletes the wealth
of the marital partnership. When the court ignores the conduct of
gifting between the spouses, whether the property is [a matrimonial
asset] under s 112(10) depends on how it was acquired: Notes of
Seminar at para 7.1.
16.39 Wan Lai Cheng has been affirmed in Tan Hwee Lee v Tan Cheng
Guan [2012] 4 SLR 785 (Tan Hwee Lee). In Tan Hwee Lee, the main
issue was whether an inter-spousal gift is a matrimonial asset for the
purposes of s 112(10) of the Womens Charter. Unlike Wan Lai Cheng,
the case concerned only a pure inter-spousal gift. The husband and
wife were married in 1982 and had two daughters, now grown-up.
The parties relationship deteriorated through the years and in 1999,
they entered into a deed of separation. However, the parties remained
under the same roof for the sake of the children but effectively lived
separate lives. Between late 2006 and early 2007, the husband agreed to
sever the joint tenancy in a property and gave 40% of it from his share
to the wife with the result that she held 90% of that property. The wife
alleged that the husband had given her the property after he had
committed adultery, in order to persuade her not to end the marriage
and as compensation. The husband, however, argued that he had not
made a gift of his share to her, but only to make her feel more secure as
she had continually harassed him when he told her that he wanted to set
up his own business.
16.40 The Court of Appeal noted that the recent decision of Wan Lai
Cheng had held that inter-spousal gifts of assets which do not originate
from a third-party gift or inheritance (ie, pure inter-spousal gifts) are
not gifts for the purposes of s 112(10) of the Womens Charter, and
therefore constitute matrimonial assets for division. This decision in
Wan Lai Cheng effectively disposed of the main bulk of the wifes
appeal on the matter, but for her submission that even if inter-spousal
gifts constitute matrimonial assets, it would be inequitable or
unconscionable for the property to be included for division. This raised
the question of whether there are exceptions to this general rule that
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inter-spousal gifts constitute matrimonial assets available for division.

The court held that inter-spousal gifts should always be included in
the pool of matrimonial assets subject to only one exception, which is
de minimis inter-spousal gifts. The court thought that this exception was
desirable and should be retained as it prevents the lower courts from
being overly burdened by petty arguments over gifts of this nature.
16.41 However, the question of whether it would be inequitable for
the property to be shared by the donor spouse remains relevant at the
second stage of the division exercise. After the court has determined
what the matrimonial assets are for division, it goes on to consider all
relevant circumstances in order to achieve a just and equitable division
of the assets. The Womens Charter provides a helpful list of matters that
the court should consider in this exercise but the list is not exhaustive.
Thus, in situations when it would be clearly inequitable for a donor
spouse to be awarded a substantial share in the asset constituting the
inter-spousal gift, the court can take such a situation into consideration
and award the donee spouse a greater percentage of the overall
matrimonial assets. On the facts, the court was of the view that the
intentions of the parties with regard to the purpose behind and the
circumstances surrounding the gift of the husbands share were
objectively unclear. The burden was on the wife to convince the court
that allowing the husband to benefit from the property would be clearly
inequitable. On the facts, the wife was not able to persuade the court
that it will be clearly inequitable for the husband to be given a share of
the property in the division of matrimonial assets.
16.42 The Court of Appeal noted (at [59][61]) the approach mooted
by this author to consider an inter-spousal gift as possibly constituting
an agreement made in contemplation of divorce under s 112(2)(e) of
the Womens Charter. It thought that this would involve an unusually
broad meaning being given to the phrase agreement between the
parties in the provision but left it open to be decided in a more
appropriate case when the issue arises squarely for decision. It also
noted that only agreements made in contemplation of a divorce
should be considered by the court in s 112(2)(e) and was inclined
to the view that s 112(2)(e) was more likely to have been drafted
with the scenario of both spouses entering into a formal, written
financial agreement.
16.43 These perceptive observations made by the Court of Appeal are
worthy of further consideration. Indeed, not all inter-spousal gifts can
be found to be agreements that fall within s 112(2)(e). Some may fall
short of constituting an agreement by the lack of mutual understanding
or agreement with respect to the gift arrangement. Others may
not be sufficiently clear that they were made in contemplation of
divorce. It is noted that the High Court in Lian Hwee Choo Phebe v Tan
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Seng Ong [2012] SGHC 255 (Lian Hwee Choo Phebe) (below,
paras 16.4516.50) found that although there was no signed agreement
between the parties setting out all the terms of the arrangements,
an agreement could still be implied from a course of conduct or
dealings between parties, from correspondence or from all relevant
circumstances. Suppose one spouse says to the other, I will give you this
property and in the event of a divorce, you must not cite or raise my
adultery as the reason for the divorce. The donee spouse agrees and
both clearly understand this arrangement. It is not far-fetched to
construe this as an agreement made in contemplation of divorce within
s 112(2)(e), even though they are not certain at that point in time if they
will eventually divorce. Prenuptial agreements are usually made under
happy circumstances, yet they are accepted to be agreements made in
contemplation of divorce and will fall within s 112(2)(e). It is not
necessary that there is a present intention to divorce at the time the
agreement is made but parties must understand that they are agreeing to
those terms should a divorce occur.
16.44 A construction of s 112(2)(e) that is too narrow may exclude
relevant arrangements made between parties that can assist the court in
reaching a just and equitable division of assets. Often, the parties
interactions, intentions and negotiations over financial matters give the
best indication of a just and equitable division of the assets. What the
Court of Appeal has held though, is that these circumstances need not
be taken into account as a factor in s 112(2)(e) and the court can still
have regard to them in considering whether it is inequitable, in the light
of these circumstances, to allow the donor spouse to have a share in
the asset in question. This is certainly important and necessary,
particularly if the provision is interpreted more restrictively than that
suggested by this author.
Marital agreements
16.45 Two High Court cases in 2012 involved marital agreements.
In Lian Hwee Choo Phebe, the High Court found that there existed an
agreement that fell within s 112(2)(e) of the Womens Charter.
Section 112(2)(e) provides:
(2)
It shall be the duty of the court in deciding whether to
exercise its powers under subsection (1) and, if so, in what manner, to
have regard to all the circumstances of the case, including
(e)
any agreement between the parties with respect to
the ownership and division of the matrimonial assets made
in contemplation of divorce

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16.46 The parties were married in 1974. In December 2010, the

plaintiff wife commenced divorce proceedings and an interim judgment
for divorce was granted in April 2011. The husband alleged that certain
arrangements had been made between the parties in 1985/86 or in
their course of dealings, whereby both agreed to a division of their
matrimonial assets with each party thereafter having sole ownership of
the divided assets and all such other assets each may acquire subsequently
and that each would have no claim or interest in the divided assets of
the other party or those subsequently acquired by the other party.
16.47 In 1984, the husband had an affair. Upon discovery of the affair,
the wife became angry and resentful; she left the matrimonial home
with the children in 1985. The parties then met in the presence of their
respective solicitors to discuss property and financial matters. Certain
agreements were made. The wife returned home but their relationship
further deteriorated thereafter, resulting in the wife leaving the
matrimonial home again with the children in 1986. Further negotiations
ensued with arrangements being made (Arrangements).
16.48 After the Arrangements were made, the husband faced financial
difficulties and begged the wife to buy a half-share in the matrimonial
home with the cash that she had. The court found that the wife had
made it very clear to the husband that since the assets had been divided,
she was content with her share and did not want her assets to be
connected with his in any way or to claim more assets. She also wanted
no further link between them and wanted a clean break so that if their
relationship ended, she could go her own way. However, despite the
Arrangements, the parties carried on with their respective obligations to
the home and their children, including having conjugal relations
resulting in the birth of their youngest child in 1991. There were no
signed agreements between the parties.
16.49 The wife alleged that despite making the Arrangements, there
was no intention on their part to divorce, to separate or to divide the
existing matrimonial assets. The High Court held that although there
was no signed agreement between the parties setting out all the terms of
the Arrangements, an agreement could still be implied from a course of
conduct or dealings between parties or from correspondence or from all
relevant circumstances. It found (at [50][51]) that:
The correspondence between the parties solicitors show that there
were negotiations relating to the division of matrimonial assets
triggered by the wife leaving the matrimonial home with the three
children. [S]he left in a fit of anger at discovering the husbands
infidelity rather than because of fear or concern over the tax issue.
The truth of the matter, as testified by the husband, was that she
wanted to punish him for his infidelity by causing him to be without
assets, without any credit line and without a family.
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Seen in that context, the negotiations that followed bore the hallmarks
of a couple contemplating the possibility of divorce in the future.
The Arrangements were not made in a spirit of reconciliation and
renewal of vows but were more akin to transforming the marital
relationship into a business-like one
16.50 Lian Hwee Choo Phebe supports the position that an

agreement in s 112(2)(e) need not be a formally signed agreement.
On the facts, the parties had lawyers advising them during negotiations
resulting in what looked like binding arrangements. The case also
suggests that the factor in s 112(2)(e) need not be read too narrowly:
The court found that the agreement was made in contemplation of
divorce, not from the parties expressed intentions but from the parties
course of conduct. This was despite the parties resuming conjugal
relations and having the youngest child after the Arrangements had been
made. This approach to the interpretation of s 112(2)(e) allows parties
serious negotiations and arrangements to be included as an important
factor when the court exercises its discretion in dividing matrimonial
assets. It does not necessarily follow that the agreement will be
incorporated into the division order, whether entirely or partially.
Where there is an alleged marital agreement, the court must first decide
if an agreement exists between the parties; if there is, the next step is to
decide how much weight is to be given to it: see TQ v TR [2009]
2 SLR(R) 961 (TQ v TR). It may well be that no weight is given to the
Arrangements since they were made long ago and other events had
intervened since then, but that is for the court to decide as the next step
in the exercise. In Cheung Kam Yi Betty v Liu Tsun Kie [2012] SGHC 213
(Cheung Kam Yi Betty), the High Court did not apply the terms
of a deed of financial arrangement as it was executed ten years before
the parties finally divorced and much changed in the intervening
period (at [53]).
16.51 A strict interpretation of s 112(2)(e) may unfortunately exclude
relevant arrangements made between parties that can assist the court in
reaching a just and equitable division of assets. Depending on the facts
of a case, parties negotiations and/or agreements may give the best
indication of what is a just and equitable division. They are particularly
valuable when there is a lack of full disclosure of the assets which makes
the task of division tremendously difficult for the court. The focus is to
reach what is fair rather than to apply the technical rules of contract law
to possible arrangements made by the parties. The courts concern is
whether the parties had entered into the agreement voluntarily, with the
knowledge and understanding of what they are agreeing to, without the
presence of duress, undue influence or unequal bargaining positions.
If they had, then the broad agreements reached, even if they were not
formally signed or even entirely technically valid, may reflect what is
closest to an acceptable, just and equitable resolution: see Debbie Ong,
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317
Marriage Produces a Husband and a Wife: The Law on Void and

Voidable Marriages and the Legal Regulation of the Husband and Wife
Relationship in SAL Conference 2011 Developments in Singapore Law
between 2006 and 2010: Trends and Perspectives (Yeo Tiong Min, Hans
Tjio & Tang Hang Wu gen eds) (Singapore: Academy Publishing, 2011)
at 288289, para 45.
16.52 In Wong Kien Keong v Khoo Hoon Eng [2012] SGHC 127 (Wong
Kien Keong), the parties signed a Deed of Separation in 2003 (the
Deed). The wife sought to have the Deed set aside, alleging that she was
coerced, abused and/or threatened into signing the Deed or that she
was suffering from depression at the material time such that she did
not fully understand the consequences and risks of signing the Deed
(at [18]). The High Court affirmed the principles in TQ v TR that
marital agreements must comply with the requirements of contract law.
The High Court found evidence from e-mails that the wife herself
stated that the intended separation agreement would be a binding
agreement if [the parties] eventually get divorced and was openly
bargaining for a larger share of the matrimonial assets a few days before
the Deed was signed: Wong Kien Keong at [33]. Further, she did not lack
legal advice. The court also noted that the wife was able to fully
function at work. [She] held important appointments in her field as
well as in other areas she was involved in. [She] was the Vice Dean of
her Faculty, worked on various projects and published numerous
papers during 2003, amongst other things: Wong Kien Keong at [49].
Her capacity for mentally challenging work in 2003 was a factor
militating against a finding of the vitiating factors raised. The Deed was
not set aside but cannot be enforced in or of itself; appropriate weight
will be given to it depending on the facts and circumstances when the
court determines an order of division.
Variation of division orders: Section 112(4) of the Womens Charter
16.53 The ambit of s 112(4) of the Womens Charter was clarified in
AYM v AYL [2013] 1 SLR 924 (AYM v AYL). The husband had sought
a variation of the consent order on the division of matrimonial assets
to a more favourable one in his favour, and for the lump sum
maintenance for the wife to be paid out of her share of the division
proceeds. The judge below refused the variation of the consent order
and ordered a lump sum maintenance of $750,000 to be paid to the wife
out of the husbands share of the sale proceeds. The Court of Appeal
dismissed the appeal with regard to the variation issue and allowed it
with regard to the maintenance issue. Section 112(4) provides:
The court may, at any time it thinks fit, extend, vary, revoke or
discharge any order made under this section, and may vary any term
or condition upon or subject to which any such order has been made.
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The Court of Appeal began with this observation (at [12]) that:
there must be some finality once the matrimonial assets have been
divided between the parties a division effected pursuant to s 112 is,
ex hypothesi, premised on the fact that the parties would each go their
own separate ways and want to have nothing more to do with each
other thereafter. Hence, to allow the court to re-open the distribution
already made is to undermine the very finality which is one of the
raisons dtre of s 112 itself.
16.55 It further noted that in her paper to the Select Committee,

Prof Leong Wai Kum was of the view that s 112(4) ought to be deleted
altogether for similar reasons: Report of the Select Committee on the
Womens Charter (Amendment) Bill (Bill No 5/96) (Parl 3 of 1996,
15 August 1996) at p B28).
16.56 The Court of Appeal held that the phrase at any time it thinks
fit has a time frame, and the court can vary an order for the division of
matrimonial assets only in so far as the order made has not yet been
implemented. Further, the circumstances justifying a variation are very
limited. It is necessary that the order be unworkable (at [27]):
Where there has been a change in circumstances invalidating the
very basis on which the court made a continuing order, we are of the
view that this amounts to a radical change in circumstances
amounting to unworkability, and the court will be empowered to
make the necessary variation (or indeed, extension, revocation or
discharge) under s 112(4) to deal with such a change.
16.57 The court clarified that in light of the analysis set out, the
learned judges view in Saseedaran Nair s/o Krishnan v Nalini
d/o K N Ramachandran [2012] 2 SLR 365 to the effect that a material
change in the circumstances (which is the statutory ground for the
variation of a maintenance order) would suffice to trigger a variation
pursuant to s 112(4) sets too low a threshold. Another situation which
might justify the court in varying an order for the division of
matrimonial assets is fraud. However, the standard of proof for fraud is
a very high one and not easy to satisfy.
16.58 The Court of Appeal has rightly given a strict and limited
interpretation to s 112(4). The discretion conferred on the court in
making a division has been exercised when it has considered all the
evidence and all the factors in s 112(2). The order is made on the
premise and aim that parties should have finality, a clean break and be
able to plan for and live their separate lives after the divorce. Any
broader interpretation of s 112(4) undermines the underlying premise.
Post-divorce financial arrangements are crucial to parties, especially
those with children, in enabling them to move ahead beyond the effects
of the divorce. This decision should discourage parties from trying to
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reopen or vary orders to obtain a more favourable result unless the

order is unworkable or obtained by fraud.
Proportions of division: Broad brush approach and the recognition of
homemaking efforts
16.59 The broad brush approach towards the division of matrimonial
assets continues to be affirmed and applied. The approach is referred to
by the Court of Appeal as the fundamental proposition in AYQ v AYR
[2013] 1 SLR 476 (AYQ v AYR) at [16].
16.60 In AYQ v AYR, the Court of Appeal dealt (at [16]) with these
two issues: first, whether the global assessment methodology or
the classification methodology ought to be applied and, secondly,
assuming that the latter methodology applied, whether or not
indirect contributions ought to be accorded the same weight in relation
to each class of assets. Dealing with the first issue, the court cited NK v
NL (above, para 16.35), which held that both methods are consistent
with the legislative framework provided by s 112 of the Womens
Charter. What was noteworthy was a further clarification in the use of
the classification method. The judge in the court below appeared to have
accorded different weights to the appellants indirect contributions with
regard to each class of assets. The Court of Appeal held that this was not
the correct approach and stressed (AYQ v AYR at [22][23]):
[W]e would emphasise the fact that indirect contributions must be
factored into and its weightage to remain constant in relation to
each class of assets.
Indeed, by their very nature, indirect contributions are part of the very
warp and woof of the entire marriage and must therefore be reflected
consistently throughout each class of assets. [I]ndirect
contributions can only be assessed and applied at the end of the
marriage and, by their very nature, relate back and impact the entire
marriage to date. The courts assessment of a spouses indirect
contribution should thus be performed with retrospective lenses,
looking back and fully appreciating the entire context and
circumstances of the marriage. It should not be done in a time-specific
manner, ie, assessing the extent of indirect contributions of a spouse as
at that specific point in time when a particular matrimonial asset was
acquired. This approach would accord with the view of the marital
enterprise being a partnership of efforts of both spouses and that,
during the course of marriage, the spouses contribute to the
betterment of it in ways that they can without consciously accounting
with mathematical precision as regards the quantum and type of their
respective contributions.
[emphasis in original omitted; emphasis added by author]

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16.61 This holding further supports the recent trend in our highest
courts giving greater recognition to homemaking efforts and other
indirect contributions than in the past. In NK v NL, the Court of Appeal
had lamented that their examination of the case law shows that the
courts might not have given sufficient recognition to the value of factors
like homemaking, parenting and husbandry when attributing to them a
financial value in the division of matrimonial assets: at [35], citing Lock
Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520 (Lock Yeng Fun).
16.62 A good number of cases in 2012 demonstrate the same
judicial efforts in giving due recognition to homemaking and other
non-financial contributions. In AAL v AAK [2012] SGHC 146, the High
Court found (at [8]) that the wifes indirect contributions in a 15-year
marriage were substantial. On the basis that the wifes direct financial
contributions were 20%, the court would have given her a total of 50%
of the assets. However, as adverse inferences could be drawn against the
husband for his failure to disclose assets, the High Court awarded the
wife 55% of the assets.
16.63 In ASM v ASN [2012] SGHC 23, the district judge awarded the
wife in a 15-year marriage 20% of the assets. The High Court held
(at [5]) that a 40% share for the wife more accurately reflects the
credit that should have been given to the wife for her non-financial
contributions and ordered the increase in her share accordingly.
16.64 In AWX v AWY [2012] SGHC 4, the High Court awarded the
wife in a 32-year marriage with two children 45% of the matrimonial
assets. The court held (at [19] and [24]):
The wife was, at times, working, but it was evident she assumed the
homemaking role.
To apply an observation by the Court of Appeal in Yeo Chong Lin to

the present case, the family here was relatively less well off in the early
years of the marriage, and the wifes role would have been harder then.
This was evident during the early years of this marriage, where the
wife had to juggle both work and household responsibilities including
that of looking after the children.
16.65 In Cheung Kam Yi Betty (above, para 16.50), the High Court
ordered equal division of assets, taking into account the length of the
marriage (more than 30 years) and the wifes efforts as mother
and caregiver. Equal division was also applied in Yong Shao Keat v
Foo Jock Khim [2012] SGHC 107 and Chan Yuen Boey v Sia Hee
Soon [2012] 3 SLR 402 where recognition was given to substantial
homemaking contributions. A share of 40% of the assets was awarded to
the wives in AXC v AXD [2012] SGHC 15; Woon Wee Lee v Koh Ai Hua
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[2012] SGHC 128 and Anusuya d/o Sangaranaidoo Parthasarathy v

Moderge Gamini Fernando [2012] SGHC 132.
16.66 In Chai Fei Choo v Leong Tak Wa [2012] SGHC 185, the High
Court upheld (at [6]) the lower courts award of 45% of the assets to the
wife whose homemaking efforts were substantial:
[T]he decision to award the respondent 45% from the matrimonial
assets [was] just and fair even though the direct financial
contributions made by her were very low. In a marriage that lasted
twenty years and involved bringing up three children, and where
there was a 5% to 15% direct financial contribution, a 45% to 50%
apportionment is fair and reasonable.
16.67 In short marriages, there can still be indirect contributions

which should be accorded weight in deciding the share of assets,
particularly where there is a child or children in the marriage. In AXW v
AXX [2012] 3 SLR 900, the parties were married in 2003 and a child was
born in 2005. Divorce proceedings commenced in 2010. The High
Court held that, despite the short length of the marriage, the 7.8%
awarded to the wife for her indirect contributions under these
circumstances were not so excessive that it would justify an interference
on appeal.
16.68 The decision in AQS v AQR [2012] SGCA 3 (AQS v AQR)
serves as a reminder that no amount of homemaking effort should be
overlooked; in particular, they should not be wiped out by findings
of misconduct or the fact that there was domestic help in the home.
In AQR v AQS [2011] SGHC 139, the court below had awarded the
wife no share of the matrimonial assets. The Court of Appeal noted
(at [38]) that:
the grant of 0% to the Wife could be justified only on the basis that
the wife had made no contributions to the marriage whatsoever.
In implicitly making this finding, the Judge relied on two grounds:
(i) the wifes character flaws and misconduct which made the
husbands marriage to her a misery; and (ii) that she had domestic
help and there one wonders how large a role she played as a
homemaker bearing in mind her other roles as wife and mother left
much to be desired
16.69 The Court of Appeal found that the facts did not give rise to the
exceptional situation where the wife made absolutely no contributions
(at [39]):
While her temperament might have made the husbands life miserable,
the fact remained that he was, during the marriage, holding a full-time
employment which sometimes required him to travel. It would have
been the wife, a full-time homemaker, who attended to the home and
the needs of the children while he was at work. These contributions
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must be worth something and should be given their due credit.

[T]he court should be conscious of the need to exercise caution when
confronted with allegations of this nature made by one spouse against
the other. To find a wife, a full-time home-maker, particularly where
there are children, to have made zero contributions to the family, the
facts must be extreme and also undisputed. Where parties were clearly
in a highly acrimonious relationship and they have alleged various
counts of misconduct against each other, the court should not too
readily sift through the facts and evidence in order to assign relative
blame for the purposes of dividing matrimonial assets.
16.70 The court also made clear that having domestic help does not
mean that a homemaker has made no contributions especially where
there are children in the household. The Court of Appeal awarded the
wife 20% share in the matrimonial flat and two Australian properties
which amounted to a total of $2.5m.
16.71 In using the broad-brush approach and giving credit to
homemaking, the courts have used proportions awarded in previous
cases as guides in reaching the final proportions of division. In fact, the
cases in 2012 showed an increase in the awareness and use of such
general trends as guides.
16.72 In Tan Hwee Lee (above, para 16.39), the Court of Appeal cited
with approval academic commentary on the trend of proportions of
division (at [82][83]):
In 2007, Prof Leong wrote about the established guide that a
homemaker wife can expect to receive no less than 35% of the surplus
wealth of the marital partnership as evidence of the courts coming
close to according non-financial contribution equal value as financial
contribution (see Leong at p 668). The learned author also observed
that homemaker wives who served their roles for 20 years or longer
have received 50% or even more (see Leong ([48] supra) at p 696).
In 2011, Ms Lim Hui Min was also led to observe that, for marriages
ten years or longer, even an ordinary homemaker [with children]
can receive up to 50% of the matrimonial assets without having
contributed financially to their acquisition (see Lim at p 227). She
therefore hypothesised that the current trend appears to be to award a
stay-at-home wife with children about 4050% of the matrimonial
asset pool, [even] if [the wife] did not have direct financial
contributions (see Lim at p 238).
[emphasis in original omitted]
16.73 The Court of Appeal in ATT v ATS [2012] 2 SLR 859 at [18][22]
also considered precedents as guides to its facts:

Family Law
323
The precedents in similar cases involving moderately lengthy

marriages reveal that save in exceptional cases the homemaker wife
usually receives between 3540% of the matrimonial assets.
In Koh Bee Choo v Choo Chai Huah [2007] SGCA 21 the Court of
Appeal upheld the High Courts award of 50% of the matrimonial
assets to the homemaker wife of a 20-year marriage, stressing that she
had sufficiently demonstrated that her contributions as a homemaker
warranted an equal division
In Lock Yeng Fun v Chua Hock Chye [2007] 3 SLR(R) 520 , the
Court of Appeal ordered an equal division in recognition of the
extraordinary contributions of the homemaker wife, who had also
amassed more matrimonial assets than the husband through her
investments.
In the recent decision of Yeo Chong Lin which involved a 49-year
marriage, where the wifes contributions were entirely in the domestic
sphere and where the pool of matrimonial assets was large, the High
Courts award of only 35% to the wife was upheld on appeal by
this court.
16.74
The court also remarked (at [14]) that:

A broad-brush is the appropriate approach However, such an
approach cannot be so heuristic as to become indeterminate, leaving
lawyers without any meaningful guidelines with which to advise
their clients.
16.75 Thus, precedents are useful and relevant in guiding the court.
There may be no norm of division (see Lock Yeng Fun (above,
para 16.61)) but the court can be guided by precedents, principles and
general trends in reaching a just and equitable division. In Tan Hwee
Lee, the Court of Appeal instructed (at [85]):
Although it has been stated by this court that equality in division is
not the starting point or the norm in the division of matrimonial
assets between spouses (see Lock Yeng Fun v Chua Hock Chye [2007]
3 SLR(R) 520 (Lock Yeng Fun) at [57]), it also remains true that the
courts would nevertheless not hesitate to award half (or even more
than half) of the matrimonial assets if such a decision is justified on
the facts (Lock Yeng Fun at [58]). This is especially so in long
marriages where the law acknowledges the equally important
contributions of the homemaker to the partnership of marriage
16.76 Precedents were also cited and used as guides in Chan Yuen
Boey v Sia Hee Soon [2012] 3 SLR 402 at [33]; AQS v AQR at [38] and
AXC v AXD [2012] SGHC 15 at [5].
16.77 The current broad-brush approach necessitates the abandonment
of one where the direct financial contributions of a spouse are first
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SAL Annual Review
calculated, before the value of non-financial contributions is added as a

form of uplift to the former figure: Tan Hwee Lee at [84].
Unfortunately the wrong approach is still evidently in use in the District
Courts in 2012. For example, in ARD v ARF [2012] SGDC 114, the
District Court held (at [13]) that the Plaintiff s direct financial
contribution to the acquisition of the matrimonial flat was 9%. As I had
determined that she should be awarded a further 25% as her indirect
financial contribution, the order on the division of the flat was made in
the proportion of 34% and 66% in the Defendants favour. In another
case, Ang Kah Ngoh v Ong Kim Kam [2012] SGDC 248, this erroneous
approach is shown to incentivise parties to argue over every dollar they
have contributed to the acquisition of assets (at [15]): The husband
submitted that his direct financial contribution to the purchase of the
flat is 62%, 0.75% more than what was submitted by the wife. Such a
manner of determining division is inconsistent with the broad-brush
approach which ensures sufficient recognition of the homemakers
efforts in a co-operative marital partnership. It undermines the
approach that the Court of Appeal has enunciated so clearly since 2007
in NK v NL (above, para 16.35) and Lock Yeng Fun.
16.78 In 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 Trends and
Perspectives (Yeo Tiong Min, Hans Tjio & Tang Hang Wu gen eds)
(Academy Publishing, 2011), the author argues that it is appropriate for
the court to consider each spouses exertion of effort rather than the
contributions to the acquisition of assets that result from the efforts. It
follows that there is no need to scrutinise how and whether each act
resulted in a particular contribution to the acquisition of the assets.
A good development in this area needs a clearer approach that does not
pore over every act and contribution of the parties to find their
respective direct and indirect contributions; instead, looking at trends
in past cases are helpful as guides to a just and equitable division.
Prof Leong and Lim Hui Min have categorised the recent cases in their
respective recent works such that it is quite possible for judges to
be guided by the trends and avoid the use of the fine-tooth brush to
dissect the parties behaviour and contributions over the many years of
their married lives.
Maintenance of former wife
Principles
16.79 In Foo Ah Yan v Chiam Heng Chow [2012] 2 SLR 506 (Foo Ah
Yan), the husband and wife had stopped working shortly after their
marriage. There were no children in their 13.5-year marriage. The wife
Family Law
325
did not claim a share of the matrimonial assets, and the only relevant
ancillary matter was that of the maintenance of the wife. The Court of
Appeal observed of the principle in s 114 of the Womens Charter
(at [13]):
The overarching principle embodied in s 114(2) of the Act is that of
financial preservation, which requires the wife to be maintained at a
standard which is, to a reasonable extent, commensurate with the
standard of living she had enjoyed during the marriage.
16.80
However, the court explained (at [16]):

The purposive approach to the s 114(2) directive recognises that
there could be an infinite number of reasons why the applicant should
not get all she asks for, and requires s 114(2) to be applied in a
commonsense holistic manner that takes into account the new realities
that flow from the breakdown of a marriage: see the Singapore High
Court decision of NI v NJ [2007] 1 SLR(R) 75 at [15][16].
16.81 On the facts, the court thought that it would be more

reasonable to provide the wife with rental of a Housing and
Development Board (HDB) flat, rather than that of a room in an
HDB flat, bearing in mind that the parties had resided in a doublestorey terrace house during the marriage. A rented room in an HDB flat
fell too far short of the standard of accommodation commensurate with
that of the matrimonial home enjoyed during the marriage.
16.82 Another issue that arose was whether a husband who has not
maintained his wife during the course of the marriage can raise this
fact in divorce ancillary proceedings in order to avoid providing
maintenance. In respect of this issue, the Court of Appeal rightly held
(at [23]) that while non-provision of maintenance during the course of
the marriage may point towards the wifes financial independence, it is
not a factor that should be given conclusive weight. This is supported
by the position adopted that the maintenance duty provided by ss 69(1)
and 113 of the Womens Charter are driven by separate forces. The
matters that the Womens Charter specifically directs the court to
consider under ss 69(4) and 114 are not identical. The court cited
(at [22]) Prof Leong (see Leong Wai Kum, Elements of Family Law in
Singapore (Singapore: LexisNexis, 2007) at p 476):
In the former situation [under s 69], the objective is to provide modest
maintenance, namely, to help her overcome her immediate financial
need which may well be the same objective when ordering
maintenance for a dependent child. In the latter situation [under
s 113], maintenance ordered for a former wife, however, serves the far
more ambitious objective of giving her a fair share of the surplus
wealth that had been acquired by the spouses during the subsistence
of the marriage.
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SAL Annual Review
16.83 Given the differing driving forces, it is possible that one who
does not maintain his wife during the course of their marriage may
nevertheless be obliged to do so after the marriage has ended.
16.84 The Court of Appeal has adopted these underlying bases of the
maintenance obligations under the two distinct provisions. It is noted
that although the aim in s 113 of the Womens Charter is said to be to
give the wife a fair share of the surplus wealth, in the practical exercise
of determining a s 113 order, the court used the principle of financial
preservation in exercising its discretion under s 114, which is based on
the wifes needs in transiting to post-divorce life: see Quek Lee Tiam v
Ho Kim Swee [1995] SGHC 23. These principles in Foo Ah Yan were
applied a few months later in Yong Shao Keat v Foo Jock Khim
[2012] SGHC 107.
Multiplier
16.85 In calculating the amount of lump sum maintenance payable to
a former wife, a multiplier and multiplicand are normally used. In Wan
Lai Cheng (above, para 16.25), the Court of Appeal accepted the method
of calculating the multiplier set out in Ong Chen Leng v Tan Sau Poo
[1993] 2 SLR(R) 545 (Ong Chen Leng). The method of reaching an
appropriate multiplier for a lump sum maintenance award was
demonstrated as follows in Ong Chen Leng (at [35]):
a period of 17 years as a compromise between the average life
expectancy of a woman (70 years) and the usual retirement age (65) of
a Singapore male worker less the wifes present age which was 50.
16.86 In Wan Lai Cheng, the multiplier was derived from applying this
same method (at [89]):
Applying this method to the present set of facts, if it is accepted
that the average life expectancy of women in Singapore is 85 years
the appropriate multiplier would be nine years (calculated by the
formula [(85 + 65) 2] 66).
16.87 In Cheung Kam Yi Betty (above, para 16.50), the wife sought
to rely on the method used in Wan Lai Cheng and submitted that
the appropriate multiplier would be 14 years on the basis of her present
age of 61 and the normal life expectancy of women of 85 years
(viz, [85 + 65] 2 61 = 14). This would result in a lump sum of
$672,000. The High Court, however, held that the circumstances
justified a lower multiplier. Taking into account the ability of the
husband to pay, the wifes health, and her own resources after she had
obtained her share of assets and a loan sum returned to her, and the fact
that the wife was originally content to ask for $384,000, the multiplier
was reduced to 10.
Family Law
327
16.88 The formula in Ong Chen Leng may be useful as a guide, but it
should not operate as a strict formula without adjustment for relevant
circumstances. In Ong Chen Leng itself, the formula was suggested by
the wife (at [35]):
[The wife] quantified the $400 on a straightline basis over a period
of 17 years as a compromise between the average life expectancy of a
woman (70 years) and the usual retirement age (65) of a Singapore
male worker less the wifes present age which was 50. In the
circumstances of this case this seems proper and we make no
comment on it.
16.89 It may have been an acceptable formula in the circumstances in

that case, but no elaboration was made on why that formula was
appropriate, nor was there a logical basis for such a formula. There are
many variables in considering the wifes needs in transiting to
post-divorce life: the husbands health and working prospects would
affect the retirement age of that husband; the wifes health would affect
the life span of the wife. These matters directly affect the variables in the
formula. The formula is at best a very rough guide to obtaining a
ball-park multiplier.


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