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Division of matrimonial assets: all about feel and the Court’s sense of justice

In what the Singapore Court of Appeal termed as the longest marriage to come before the courts in recent years, it clarified two important issues in the division of matrimonial assets, namely, the “cut-off date” for determining matrimonial assets and the approach to be taken in the division of matrimonial assets.

The marriage at issue in the case of Yeo Chong Lin v Tay Ang Choo Nancy and another appeal [2011] SGCA 8 lasted for 49 years and accumulated a huge amount of matrimonial assets, estimated to worth about S$116,560,000. The Husband was the breadwinner and the Wife was a full-time homemaker throughout the entire marriage. In April 2005, the Wife commenced divorce proceeding (the “Proceeding”) against the Husband on the ground of adultery. The interim judgment was granted in July 2005 (the “IJ”). It was not disputed that the accumulation of this large amount of wealth was due largely to the efforts, business sense and acumen of the Husband, who came from a rather poor background.

The cross appeal arose from the High Court’s decision granting 35% of the matrimonial assets to the Wife and 65% to the Husband (the “Division”). The Husband contended that the Wife should not get more than 20% while the Wife maintained that the matrimonial assets should be divided equally.

After the Wife commenced the Proceeding, the Husband acquired additional assets which he argued should not be regarded as part of the matrimonial assets to be divided because the marriage had effectively come to an end – the Wife had left the matrimonial home and commenced the Proceeding. He contended that the “cut-off date” for determining matrimonial assets should be the date when the parties separated or, at the latest, when the Proceeding was filed. On the other hand, the Wife submitted that all assets, whether acquired during the course of marriage or after the breakdown of the marriage, fall within the pool of matrimonial assets, in other words, until the final judgment is made, the “marriage” still exists in law and any assets acquired by any party until then should be regarded as matrimonial assets.

Having considered various positions in some other common law jurisdictions on the “cut-off date”, the Court of Appeal held that “prescribed timeline may not necessarily be conducive towards attaining a just and equitable outcome”. The Court further held that:-“[E]ven in a case where a court is inclined to adopt a particular point in time as the cut-off date for dividing the matrimonial assets…There is nothing to preclude the court from applying different cut-off dates to different categories of assets if the circumstances so warrant. The argument that it is wholly unreal to treat assets acquired after the [IJ] as “matrimonial assets”, when the marriage contract has for all practical purposes come to an end and there is no longer any marriage, is not without merit, subject always to the proviso that the spouse who made the purchase should restore to the common pool whatever money he had taken to fund the purchase. Once an asset is regarded as a matrimonial asset to be divided, then for the purposes of determining its value, it must be assessed at the date of the hearing.”

As for the Division, the Court of Appeal had to consider whether it was “just and equitable”. In doing so, the Court of Appeal opined that “when the court makes… a determination it is not undertaking an exercise based on arithmetic but a judgmental exercise based, in part at least, on feel”. The Court of Appeal also took the opportunity to clarify that the “8-step approach” advanced by the High Court in the case of AJR v AJS [2010] 4 SLR 617 was much too detailed and sought “to make it appear as if the court’s determination of the division of matrimonial assets is an exercise which is capable of being reduced to mathematical procession when in fact it is not so” and concluded that:- “At the end of the day, [the Court of Appeal] wish to underscore the point that the broad brush approach… is all about feel and the court’s sense of justice.” [Emphasis added]

This decision confirms that the Court has very wide discretion in the division of matrimonial assets. As such, it would appear that it is difficult for an appeal to succeed based solely on the circumstances of the case unless there is a precedent with striking similar facts where the Court has ordered a proportion otherwise.

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