Case Summaries

BOR v BOS and another appeal [2018] SGCA 78

21 November 2018

Case summary

BOR v BOS and another appeal [2018] SGCA 78
Civil Appeal Nos 215 and 223 of 2018

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- Decision of the Court of Appeal (delivered by Steven Chong JA):

Outcome: CoA allows appeals against High Court’s decision as to the division of matrimonial assets, and grants order for lump sum maintenance for children of marriage.

The material facts

1 These were cross appeals against the orders of the High Court Judge (“the Judge”) regarding the division of matrimonial assets and maintenance. The parties were married for about 11 years and four months. The wife (“the Wife”) was a homemaker while the husband (“the Husband”) worked as a business consultant. There were two sons from the marriage, aged 14 and 12, respectively (collectively, “the Sons”), who lived with the Wife in Singapore. The Husband relocated to China for work sometime in 2008, and has permanently resided there since.

2 On 13 November 2017, the Judge made orders as to ancillary matters. On the premise of an equal distribution of the pool of matrimonial assets between the parties, she ordered the Husband to pay the Wife a balance sum of S$18,000 after taking into account the assets held by each party. She also ordered that the Husband pay no maintenance for the Wife and aggregate monthly maintenance of S$7,000 for the Sons.

3 In Civil Appeal No 215 of 2017 (“CA 215/2017”), the Wife appealed against the Judge’s orders relating to the division of matrimonial assets and the issue of maintenance. Amongst other things, the Wife argued that the Judge erred in her valuation of various assets, including certain bonds in the Wife’s name (“the Bonds”). The Wife claimed the Judge also erred in omitting to draw adverse inferences against the Husband. She further argued that she, as well as the Sons, should be awarded maintenance in a lump sum.

4 In Civil Appeal No 223 of 2017 (“CA 223/2017”), the Husband argued that the Judge understated the value the Bonds, and erred in awarding the Wife an equal share of the pool of matrimonial assets.

Decision on appeal

5 CA 215/2017 and CA 223/2017 were both allowed in part. The Husband was ordered to transfer assets worth S$5,671,797 to the Wife within six months of the judgment. The Husband was also ordered to pay a lump sum of S$769,000 in maintenance for the Sons. The parties were ordered to bear their own costs of the appeals.

Reasons for the judgment

6 The court would not readily interfere with orders made by a court below pertaining to the division of matrimonial assets (at [1]). In the present case, appellate intervention was necessitated by several computational errors and omissions by the Judge to consider issues which, though raised by the parties, were not actively pursued by counsel below during the oral hearings (at [2]). This case demonstrated that it was important for counsel to do their part to assist the court in achieving a just outcome in each case. Particularly in complicated matrimonial litigation where there are myriad issues pertaining to the accounting and valuation of assets, counsel have a crucial role to play in apprising the court of their clients’ positions and the supporting evidence on all key issues. Where multiple rounds of submissions and affidavits have been filed, and the parties’ positions may have evolved over the course of the proceedings, counsel should update the court of any changes in their clients’ positions (at [3]).

7 The court adjusted the Judge’s orders in relation to four broad issues: (a) the valuation of certain matrimonial assets; (b) the drawing of adverse inferences against the Husband; (c) the ratio of division of the matrimonial assets; and (d) maintenance.

Valuation of assets

8 There was no serious dispute between the parties that three errors of calculation were made in the judgment below (at [30]).

9 The Wife was entitled to argue on appeal that she did not receive S$11m worth of Bonds from the Husband, notwithstanding her former counsel’s concession to the contrary in the proceedings below. She was relying on evidence and information that was already before the court, and permitting her to raise this point on appeal would not cause any prejudice to the Husband (at [37]).

10 The values of two of the Bonds should not have been included by the Judge in the pool of matrimonial assets because they had matured or were liquidated, and the proceeds, or part thereof, had been used to purchase other Bonds which were included in the asset pool (at [50 ]). However, the Wife should also account for the interest which she would have earned from the Bonds (at [52]). On a conservative estimation, the amount of interest earned by the Wife was at least S$1.58m (at [55]). The total value of the Bonds and interest was about S$9.14m. Of this sum, the Wife had adequately accounted for S$4.16m as her expenditure between January 2008 and October 2017 (at [ 61]–[63]). She had also accounted for S$2.70m as the value of the Bonds which she had converted into her current portfolio of bond investments (at [68]). The balance unaccounted for was about $2.28m.

Adverse inferences

11 The court should not draw an adverse inference unless (a) there was a substratum of evidence which established a prima facie case against the person against whom the inference is to be drawn; and (b) that person had some particular access to the information he was said to be withholding (at [75]). Not every unexplained withdrawal or decrease in value in a bank account over time would be sufficient to raise a prima facie case of dissipation. Withdrawals of money which may legitimately be explained as personal or business expenditures should generally be disregarded. As to the quantitative threshold at which the court would find that a withdrawal of money called for an explanation, this was a fact-sensitive matter to be considered in the context of the parties’ habits, lifestyles, business activities, and the total value of the matrimonial assets in question (at [76]).

12 The court declined to draw any adverse inference with regard to several smaller withdrawals which the Wife claimed that the Husband had not satisfactorily accounted for (at [77]). On the whole, the timing and amounts of these withdrawals did not support the inference of an orchestrated design to remove funds (at [79]).

13 On the other hand, an adverse inference was warranted in respect of the Husband’s transfer of approximately S$1.28m from the parties’ joint account into his sole bank account. Information in relation to this transfer of such a large sum of money was within the Husband’s particular access (at [ 86]).

14 An adverse inference was also warranted in respect of the missing proceeds of two sales of the Husband’s shares, and a sale of the Wife’s creditor’s rights which the Husband had carried out on the Wife’s behalf. With regard to the latter, there was a sufficient substratum of evidence to disclose a prima facie case against the Husband because the documents relating to this transaction listed the Husband as the Wife’s authorised representative, and were also signed by him. If there was any information concerning the whereabouts of the proceeds, the Husband would have particular access to it (at [92]).

15 In total, the Husband had failed to satisfactorily account for about $10.34m worth of unexplained transfers and missing proceeds. This amount was to be added back to the matrimonial pool and attributed to the Husband (at [109]).

Ratio of division

16 The appropriate apportionment was for the Husband to receive 65% of the matrimonial assets, and the Wife to receive 35%. This was a single-income marriage. For single-income marriages in the 10–15-year range, the trend from previous cases was to award the non-income earning party about 25% to 35% of the matrimonial pool (at [113]). Although the marriage in this case was on the shorter end of the 10–15-year range, it was appropriate for the Wife to receive 35% of the assets given that she became solely responsible for caring for the family, including the Husband’s aged parents and daughters from a previous marriage, after the Husband left for China in 2008 (at [114]).

17 Out of the total value of the matrimonial assets (S$26.18m), the Wife was entitled to 35%, that is, S$9.16m. Thus, she ought to receive S$5.67m worth of assets from the Husband, in addition to retaining her current assets of S$3.49m (at [116]).

Maintenance

18 The court’s power to order maintenance was supplementary to its power to order a division of matrimonial assets. If, from the division of matrimonial assets, there was a sum which, if invested properly, would be sufficient to maintain the wife, then the award of maintenance should be no more than necessary to allow the wife to weather the transition of the divorce (at [118]). The court thus declined to award the Wife maintenance for herself. She had been awarded assets worth over S$9m. If she managed these assets properly, they should yield an income sufficient for her maintenance (at [119]).

19 The Judge’s decision that the Husband should pay S$3,500 in respect of maintenance for each Son was reasonable, having regard to their ages, lifestyles, and the Husband’s financial resources (at [120 ]). A lump sum payment was appropriate as there was ample reason to believe that the Husband would default on future payments. Thus, the Husband ought to pay a S$581,000 lump sum in addition to the arrears of S$188,000 (at [ 121]–[122]).

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

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