WOS v WOT

19 April 2024

WOS v WOT [2024] SGHC(A) 11

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1 The appellant-Husband and the respondent-Wife married in 1999, separated in 2008 or 2010 and obtained an interim judgment of divorce (the “IJ”) in 2019. They had lived apart from each other for about half the total duration of their marriage.

2 In the ancillary matters proceedings concerning the division of assets, the Husband made the following arguments with respect to the pool of matrimonial assets. First, the Husband had acquired shares in three companies after the parties had separated but before they obtained the IJ. Second, he had paid sums of money to a company registered in the name of his son from his previous marriage which should not be included in the pool. Third, he had also paid a sum of money to a friend shortly before divorce proceedings had commenced, allegedly in repayment of a loan had extended to him, and this should be excluded from the pool. Fourth, the Husband had been engaged in a lawsuit with third parties which began some time before divorce proceedings had commenced, and the some of these fees although paid after divorce proceedings had begun, which should still be excluded from the pool. Finally, the Husband claimed to have taken out a loan from his father to fund the purchase of a property and argued that this loan sum should have been excluded from the pool of matrimonial assets.

3 At first instance, the Judge of the Family Division of the High Court held that the operative date for identifying the pool of matrimonial assets was the date of the IJ, which is the default date established in case law. He disagreed with the Husband’s arguments in respect of the assets, finding that they were all matrimonial assets liable to division. With respect of those sums of money which the Husband had transferred to third parties, these were to be notionally added back into the pool and counted against the Husband’s share. As the pool of matrimonial assets was large and had been due in large part to the Husband’s efforts, the Judge divided the parties’ assets in a ratio of 60:40 in favour of the Husband.

4 The IJ date is the default operative date for the identification of the parties’ matrimonial assets, and any asset acquired before that date is an asset acquired during the marriage within the meaning of s 112(10) of the Women’s’ Charter 1961 (2020 Rev Ed): at [20]. This provides certainty to divorcing parties, allowing them to arrange their financial affairs and know when they will be taken as having moved on with their lives: at [21].

5 While the court retains the discretion to depart from this default operative date where there are cogent reasons to do so, the mere fact that parties have separated and are no longer living together is one of the “ordinary concomitants of a failed marriage”, and cannot, without more, justify departing from the IJ date: at [22].

6 The distinction between whether a party’s acts such as caregiving of the children are carried out as a parent only or as a spouse as well should not be used in examining whether the parties’ marriage has come to an end for the purposes of determining the operative date: at [35]. The distinction is relevant after the parties’ marriage has been terminated for the purposes of determining the parties’ contributions to the marriage - it explains why such caregiving rendered after the IJ date is not credited as the parties’ indirect contributions to the marriage as such contributions are rendered qua parent and not qua spouse: at [34].

7 The Husband had not discharged his burden of proving the existence of the loan from his friend, to whom he claimed to have transferred money in order to repay. This sum was therefore added back into the pool of matrimonial assets: at [43].

8 The Husband also had not proven that there was an outstanding loan which he had taken out from his father. There was no basis to exclude the allegedly loaned sum from the pool of matrimonial assets: at [46].

9 The sum paid by the Husband to the company registered in the name of his son from his previous marriage was also correctly added back into the pool of matrimonial assets, as it had been expended in the period when divorce was imminent and the Wife had not consented to the expenditure: at [49].

10 While the legal fees paid by the Husband had been paid in the period when divorce was imminent, they had been incurred in connection with different stages of a legal action which had been commenced long before divorce proceedings began. The Husband could not be faulted for seeing the lawsuit through to its conclusion and paying the fees incurred in doing so, and this sum was therefore not added back into the pool of matrimonial assets: at [54].

11 The extent of spouses’ indirect contributions to their marriage will generally be reduced where they are separated and no longer living together. This is relevant to determining the proportions of division; the court may an entire or larger share of an asset to the party who acquired it after separation, if it is just to do so in the circumstances: at [58] and [61]. In the present case, the parties’ long period of separation called for an adjustment of the ratio to 70:30 in favour of the Husband: at [63].