Case Summaries

Toh Ah Poh v Tao Li [2020] SGCA 18


20 March 2020

Case summary

Toh Ah Poh v Tao Li [2020] SGCA 18
Civil Appeal No 158 of 2019


Decision of the Court of Appeal (delivered by Tay Yong Kwang JA):

Outcome: Court of Appeal dismisses ex-wife’s appeal against judge’s decision that an interim judgment in divorce proceedings severed the joint tenancy over property previously held in joint names with the ex-husband.

Pertinent and significant points of the judgment

  • Court of Appeal analyses the terms of the interim judgment to find that this did not confer upon the ex-husband an “option to elect” to take over ownership of the apartment: at [25] and [26].
  • Court of Appeal affirms that where parties’ agreement is embodied in a consent order, the contractual basis is eliminated and the binding effect on parties’ rights and obligations stems from the order of court: at [27].


1 The deceased (“the Deceased”) was the husband of the appellant (“Toh”). In 2009, parties obtained an interim judgment dissolving the marriage. The Deceased and Toh agreed on all ancillary matters and the consent orders relating to these were set out in the interim judgment. In particular, the Deceased and Toh agreed, by clause 3(a) of the interim judgment to have their matrimonial flat transferred to Toh, and by clause 3(b) to have their investment private property (“the apartment”) transferred to the Deceased upon payment of $60,000 in cash to Toh. The interim judgment was made absolute in September 2009.

2 The Deceased then married the respondent (“Tao”) in May 2010 and they made the apartment their matrimonial home. The Deceased passed away intestate in June 2018, leaving Tao and two children from his first marriage with Toh (“TYT” and “TYX”) as his administrators. At the time of his death, the Deceased had not paid Toh the $60,000 under clause 3(b) and the apartment remained in their joint names.

3 Tao, TYT and TYX disagreed about the legal status of the apartment. Tao’s position was that clause 3(b) severed the joint tenancy and the Deceased had become the sole owner of the apartment. This meant that the Flat was to be distributed according to the law of intestate succession upon his death (ie, 50% to Tao as the Deceased’s wife and 25% each to TYT and TYX as his children from his first marriage). TYT’s and TYX’s position, which was also Toh’s position on appeal, was that clause 3(b) did not sever the joint tenancy and it followed that Toh became the sole owner of the apartment under the right of survivorship. Tao took out Originating Summons No 431 of 2019 against Toh, TYT and TYX. She sought a declaration that clause 3(b) had the effect of severing the joint tenancy in the apartment between Toh and the Deceased and also asked that all three defendants pay damages to be assessed.

The decision below

4 The High Court judge (“the Judge”) decided in favour of Tao. When a judgment had been made absolute and the joint tenancy severed, the property could no longer be held by the parties concerned as joint tenants.

5 Toh appealed against the Judge’s decision. She accepted that the Court of Appeal decision of Sivakolunthu Kumarasamy v Shanmugam Nagaiah and another [1987] SLR(R) 702 (“Sivakolunthu”) was relevant but sought to distinguish the case on four grounds. First, unlike in Sivakolunthu where there was finality in the division of the property and nothing further to be done by the deceased, clause 3(b) required the Deceased to elect to take ownership of the apartment by paying Toh $60,000 in cash. He did not do so and this could no longer be done upon his demise. Second, the interim judgment did not sever the joint tenancy as there was no mutual agreement between the former spouses to sever. Third, unlike in Sivakolunthu, the interim judgment made no finding on the parties’ respective shares in the property. Fourth, the four unities (of time, title, interest and possession) which are the hallmarks of a joint tenancy remained.

The Court of Appeal’s decision

6 The Court of Appeal held that clause 3(b) severed the joint tenancy over the apartment and made the Deceased its sole owner and also gave Toh the entitlement to the payment of $60,000. Toh’s attempts to distinguish Sivakolunthu had no merit: at [24].

7 Clause 3(b) did not confer on the Deceased an “option to elect” to take over ownership of the apartment. It was part of an order of court couched in mandatory terms, even though it embodied the former spouses’ consent instead of coming into existence by way of contention through the adversarial system. Toh’s submissions also ignored the context of the entire clause 3 in the interim judgment, in particular clause 3(a) which provided for the transfer of the matrimonial property to Toh. Clearly, the interim judgment contemplated that each party would have one property after the divorce: at [25] and [26].

8 Toh’s argument that the interim judgment did not sever the joint tenancy because the parties’ mutual agreement “superseded” the court order and the parties had no mutual intention to sever, was inconsistent with the authorities. It was settled law that the contractual basis of a consent order of court relating to financial arrangements agreed between the parties was eliminated: at [27].

9 There was no requirement that the court hearing ancillary matters in a divorce had to make a finding on the former spouses’ respective shares in the matrimonial assets, whether in percentage terms or in fractions. By agreeing that the matrimonial flat referred to in clause 3(a) be transferred to Toh without the need for her to make any refund to the Deceased’s CPF account, that the apartment be transferred to the Deceased upon payment of $60,000 to Toh and that all other assets would remain in their respective sole names, the parties had agreed on their respective shares in the matrimonial assets, not by percentage but by specie. There was nothing in law against taking such a course of action: at [28].

10 The four unities of a joint tenancy did not remain because the interim judgment stood and its effect of severing the joint tenancy stood, even if the said effect was not expressly stated in the interim judgment: at [29].

11 The appeal was therefore dismissed, and costs of $25,000 inclusive of disbursements were awarded to Tao: at [31].

This summary is provided to assist in the understanding of the Court’s grounds of decision. 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 ground of decision.