Case Update: TNL v TNK [2017] SGCA 15 – Division of Matrimonial Assets in Long Single Income Marriages

In TNL v TNK [2017] SGCA 15, the Court of Appeal held that the structured approach towards the division of matrimonial assets set out in ANJ v ANK [2015] 4 SLR 1043 (“the ANJ approach”) should not be applied to marriages where one spouse was the sole income earner and the other played the role of homemaker (“Single-Income Marriages”). 

The ANJ approach tended to unduly favour the working spouse over the non-working spouse. This was because financial contributions were given recognition under both the first and second steps of the ANJ approach. On the other side of the equation, this meant that the non-working spouse was, in this sense, doubly (and severely) disadvantaged. 
Generally, a 50:50 division of the matrimonial assets is applied to long Single-Income Marriages unless there are facts which warranted a different division. 

On the issue of costs of the appeal, the Court of Appeal made no order as to costs as this was a cross-appeal situation in which both parties had been partially successful. The Court of Appeal noted that in the context of matrimonial appeals, there was a clear interest in encouraging the parties to move on to face the future instead of re-fighting old battles. Therefore, generally, appeals would not be sympathetically received where the result was a potential adjustment of the sums awarded below that worked out to less than ten% thereof. Even where such appeals were allowed because the court had established that there was an error of principle, costs might be awarded against the successful party if the court was satisfied that the appeal was a disproportionate imposition on the unsuccessful party.

The Court of Appeal also observed that regardless of the approach our courts had taken in the past, unsuccessful appellants in matrimonial appeals in the future should expect to have costs awarded against them. This remained subject, of course, to the overall justice of the case. Additionally, costs might also be awarded on an issues basis against a nit-picking appellant who raised unmeritorious issues on appeal.

From Supreme Court Note: TNL v TNK [2017] SGCA 15 (division of matrimonial assets, costs in matrimonial appeals) (4 April 2017). 

Case Update: Haniszah bte Atan v Zainordin bin Mohd [2016] SGHCF 5 – financial relief-post divorce denied

Significance: Singapore High Court held that a person who has been divorced in a foreign court and was married under Muslim Law cannot, under the present wording of the Women’s Charter and the Supreme Court of Judicature Act, apply to either the civil courts or the syariah courts for financial relief post-divorce.

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Case Update: Mok Kah Hong v Zheng Zhuan Yao [2016] SGCA 8 – SGCA orders 8 months’ prison for husband who defied court orders in civil / divorce case

Mok Kah Hong v Zheng Zhuan Yao [2016] SGCA 8

Significance: Court of Appeal orders a party in a civil not criminal case (divorce proceedings: division of matrimonial assets) to 8 months’ imprisonment for defying court orders, being liable for civil contempt of court. The Court set out helpful legal principles and guidelines on committal proceedings for civil contempt of court.

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Article: Cross-border or international aspects in matrimonial and divorce law

Must two Singaporeans who marry in a foreign country register their marriage in Singapore? Can foreigners married in a foreign country divorce in Singapore? Can a foreigner apply for maintenance or child custody orders in Singapore post-divorce in a foreign court? Can divorce orders or related orders made by foreign courts be enforced in Singapore? As people become increasingly mobile, these are some issues which more frequently surface in matrimonial and divorce proceedings. This article examines some of these legal issues.

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Article: Variation of Maintenance Order and Order on Care and Control of, and Access to, Children

Variation of Maintenance Order

  1. The Court may make maintenance orders for both a spouse and children.
  2. Under s 118 of the Women’s Charter, the Singapore court may at any time vary any subsisting order for maintenance where there has been any misrepresentation or mistake of fact (in respect of the original maintenance order) or material change in the circumstances.
  3. The Singapore Court has jurisdiction to vary a maintenance order even if a foreign court also has jurisdiction to make a maintenance order. This did not mean that the original maintenance order must be rescinded.[1]
  4. S 72 of the Women’s Charter allows for variation of a maintenance order at any time prior to a divorce and would be on proof of a “change in the circumstances of that person, his wife or child, or for other good cause”. The Court may “take into consideration any change in the general cost of living which may have occurred between the date of the making of the order sought to be varied and the date of the hearing of the application”.
  5. In an application for variation of a consent order for child maintenance, the test is whether the court is satisfied that it is reasonable and for the welfare of the child to vary the court order. This would encompass a material change in the circumstances of the parents.[2]
  6. The court may vary parties’ agreements for maintenance where it is satisfied that there has been a material change in the circumstances. The circumstances in question must be those prevailing at the time the agreement for maintenance was entered into.[3]
  7. Factors in determining whether there was a material change in circumstances include:-
    1. Change in spouse’s employment or financial status (e.g. failed business;[4] change in level of earnings;[5] change from salaried employee to commission-based self-employed person[6]);
    2. Change in child’s education status or phase of life (e.g. a child enlisting for National Service, a child graduating from tertiary education);
    3. Change in child’s country of residency resulting in a change in the child’s needs;
    4. Spouse re-married and started a new family;[7]
    5. Long-term negative health or medical condition;
    6. Spouse obtained an unexpected windfall from sale of matrimonial property;[8]
    7. Whether the change in circumstances could have been anticipated at the time of making the original order sought to be varied;
    8. Whether the original order a consent order pursuant to parties’ agreement;
    9. Fundamental misunderstanding of the parties as to the practical workability of the original order.[9]

Custody, Care and Control of, and Access to, Children

  1. Under s 128 of the Women’s Charter, the Singapore court may at any time vary any subsisting order for custody, care and control, and access, where there has been any misrepresentation or mistake of fact (in respect of the original order) or material change in the circumstances. For instance, a mother recovering from post-natal depression and thus being able to care for the child.[10] The applicant applying for the variation has the burden to prove the material change in circumstances.[11]
  2. Care and control concerned the right to take care of a child and to make day-to-day, short-term decisions concerning the child’s upbringing and welfare. Custody without care and control (that is, custody in its narrow sense) concerned the right to make the more important, longer-term decisions concerning the upbringing and welfare of a child.[12]
  3. The welfare of the child is paramount in the court’s consideration of such variation applications.[13] This would include considerations of the child’s physical, moral, religious, relational and emotional well-being.[14] Other factors to be considered include:
    1. the need for both parents to have an involvement in the child’s life;
    2. which parent shows the greater concern for the child;
    3. the maternal bond: in respect of young infants, the courts are inclined to grant care and control of the infant to the mother;[15]
    4. the child’s wishes. The judge may interview the child privately to understand the child’s wishes and thoughts on the matter;[16]
    5. the desirability of keeping siblings together;[17]
    6. reports by an objective 3rd party may be helpful in establishing the facts regarding the familial and relational circumstances concerning the child and thus may be pivotal in affecting the Court’s decision.[18] Such reports include Social Welfare Report, Custody or Access Evaluation Report, Assisted Access Report or Assisted Transfer Report, Child Guidance Clinic Report, and a Project Contact Report. These reports may be respectively prepared by different agencies such as Family Service Centres or the Ministry of Culture, Community and Youth (MCCY). Such reports may be prepared pursuant to a Court order made e.g. by the deputy registrar at the ancillary pre-trial conference, court mediator or the judge hearing ancillary matters.[19]

4. Switching care and control is a remedy that can be adopted if a judge finds that the parent having care and control has been either deliberately or unconsciously interfering with the bond between the child and the other parent.[20]

[1] AUD v AUE [2015] SGHC 139 at [20].

[2] AYM v AYL [2014] SGCA 46 (CA) at [16].

[3] AYM v AYL [2014] SGCA 46 (CA) at [14].

[4] E.g. Chua Chwee Thiam v Lim Annie [1989] 1 SLR(R) 426 (HC).

[5] Koo Shirley v Mok Kong Chue Kenneth [1989] SLR 342 at [10].

[6] TCQ v TCR [2014] SGDC 427 at [22]-[24].

[7] E.g. Lim Sai Poh v Ting Leh Ming @ Tan Lay Ming [1994] SGHC 196; and THG v LGH [1996] 2 SLR 568.

[8] AYM v AYL [2014] SGCA 46 (CA) at [27]-[30].

[9] TDQ v TDR [2015] SGFC 72 at [26]-[27].

[10] Soon Peck Wah v. Woon Che Chye [1998] 1 SLR 234 (CA).

[11] APK v APL [2011] SGHC 255 at [19].

[12] CX v CU [2005] 3 SLR(R) 690 (CA) at [31]-[32].

[13] ATS v ATT [2013] SGHC 156 at [10]-[11].

[14] ABW v ABV [2014] SGHC 29 at [20]-[24].

[15] Kannan Menon @ M Kannan v Preetha Vadakkoott @ Mrs Kannan Preetha [2002] SGDC 281 at [17]; Soon Peck Wah v. Woon Che Chye [1998] 1 SLR 234 (CA).

[16] E.g. THG v LGH [1996] 1 SLR(R) 767 (HC) at [5].

[17] ABW v ABV [2014] SGHC 29 at [20]-[24].

[18] T v K [2003] SGDC 28.

[19] See Lim Hui Min, “Reports in Custody and Access Disputes – When, Why and What are They?” Singapore Law Gazette (April 2004): <http://www.lawgazette.com.sg/2004-4/April04-col.htm>.

[20] ABW v ABV [2014] SGHC 29 at [29].