1 Judgment:

2 Coram: The Honourable Justice GOH JOON SENG

3 GROUNDS OF DECISION

4 The Petitioner on the 1st December 1978 then a spinster married the Respondent then a divorcee at the Singapore Marriage Registry. At the time of the marriage the Respondent had two sons aged 14 and 13 respectively. It is alleged by the Respondent that their cohabitation ceased as from June 1980 except for one occasion in April 1989. On the 18th August 1989, the Petitioner filed these proceedings praying for her marriage to the Respondent to be dissolved by reason of his adultery with the woman named. She also prayed for ancillary reliefs.

5 The Petition was heard on the 6th December 1990 when a decree nisi was pronounced dissolving her said marriage to the Respondent but the ancillary matters were adjourned to be dealt with in Chambers.

6 When the ancillary matters came up for hearing the Petitioner claimed the following:

7 (1) (i) that the Respondent move out of No 7 Holland Grove Avenue, Singapore ('the Holland Grove property');

8 (ii) a one half (+) share in the Holland Grove property; and

9 (iii) maintenance in the sum of $3,000/- for household expenses and $1,000/- for her personal upkeep making a total of $4,000/- per month. But if she has to move out of the Holland Grove property, the maintenance should be $5,400/- per month.

10 (2) Alternatively a lump sum of $1,500,000/.

11 The Respondent's assets are:

12 (i) Savings in Asian Currency Unit (ACU) - $ 223,000.00

13 (ii) Credit balances with banks - $ 51,271,08

14 (iii) The Holland Grove property valued at - $1,200,000.00

15 (iv) CPF withdrawals upon reaching age of 55 - $ 623,367.75

16 (v) two cars valued at - $ 30,000.00

17 Total - $2,127,638.83

18 The Petitioner's assets are: (i) Balance in CPF - $63,000.00

19 (ii) Proceeds from the sale of a car - $12,500.00

20 (iii) amount released by her former employers Alliance Securities (Pte) with whom she served as remisier after setting off bad debts owed by her clients - $ 7,703.06

21 Total - $83,203.06

22 The Petitioner's claim for a one half (+) share in the Holland Grove property.

23 This is based on s.106 of the Women's Charter. For convenient reference s.106 is set out hereunder:

24 "(1). The court shall have power, when granting a decree of divorce, judicial separation or nullity of marriage, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or the sale of any such assets and the division between the parties of the proceeds of sale.

25 (2). In exercising the power conferred by subsection (1) the court shall have regard to -

26 (a) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets;

27 (b) any debts owing by either party which were contracted for their joint benefit; and

28 (c) the needs of the minor children (if any) of the marriage,

29 and, subject to those considerations, the court shall incline towards equality of division.

30 (3). The court shall have power, when granting a decree of divorce, judicial separation or nullity of marriage, to order the division between the parties of any assets acquired during the marriage by the sole effort of one party to the marriage or the sale of any such assets and the division between the parties of the proceeds of sale.

31 (4). In exercising the power conferred by subsection (3) the court shall have regard to -

32 (a) the extent of the contribution made by the other party who did not acquire the assets to the welfare of the family by looking after the home or by caring for the family; and

33 (b) the needs of the minor children, if any, of the marriage,

34 and, subject to those considerations, the court may divide the assets or the proceeds of sale in such proportions as the court thinks reasonable; but in any case the party by whose effort the assets were acquired shall receive a greater proportion.

35 (5). For the purposes of this section, references to assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts."

36 It is to be observed that this section applies to assets, acquired by the parties during the marriage by their joint efforts. But by s.106(5), assets acquired before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts are brought within the scope of section 106.

37 The option obtained by the Respondent for the purchase of the Holland Grove property at $175,000/- with vacant possession was dated the 6.7.78. He exercised the option within a week therefrom. The completion date stated in the option was the 15th November 1978. But due to delay caused by the vendor completion eventually took place on the 1.12.78 i.e. the date of the marriage between the parties. The property was purchased by and is registered in the name of the Respondent solely. Payment of part of the purchase price amounting to $75,000/- came from the Respondent's own savings and the balance of $100,000/- was financed by a Central Provident Fund (CPF) Board staff loan managed by Credit POSB Pte Ltd (Credit POSB). The Respondent was then the General Manager of the CPF Board. When the Respondent left the CPF Board in 1980, he obtained refinancing from Credit POSB to discharge his staff loan. Subsequently when he joined Singapore Land Ltd he obtained a staff loan to pay off the Credit POSB loan in 1981. The staff loan was paid off by monthly deductions from his salary. When he left Singapore Land Ltd in 1984 he repaid the balance of the staff loan in one lump sum from his own savings. He also engaged contractors C & C Builders to carry out repairs and renovations. He spent $53,898.20 on repairs and renovations. Therefore unless the Petitioner establishes that the

38 Respondent holds the property in trust for both of them jointly, the Petitioner could have no claim to any interest therein. See Bromley's Family Law 7th Edition pages 529-530:

39 "The House of Lords delivered a death blow to the practice of adjusting property rights to compensate the wife for her contribution to the welfare of the family in two cases decided within a year of each other, Pettitt v Pettitt and Gissing v Gissing. Two fundamental rules emerged. It is clear from Pettitt v Pettitt that English law has no doctrine of community of property or any separate rules of law applicable to family assets. Consequently if one spouse buys property intended for common use with the other - whether it is a house furniture or a car - this cannot per se give the latter any proprietary interest. From this follows the second principle, stated in Gissing v Gissing, that if either of them seeks to establish a beneficial interest in property, the legal title to which is vested in the other, he or she can do so only by establishing that the legal owner holds the property on trust for the claimant."

40 In the absence of an express trust in writing, the Petitioner has to rely on resulting implied and constructive trust. The Petitioner seeks to establish constructive trust on the basis of the following alleged contributions from her:

41 (i) Prior to the marriage, the Respondent obtained a loan from the Petitioner's mother to purchase a property being 11-A Jalan Serene ('the Jalan Serene property') where they lived and cohabited after the marriage. It was later sold at a profit which went into the Holland Grove property. The Petitioner's allegation is disputed by the Respondent who contended that he bought the Jalan Serene property from the Petitioner in 1975 for $80,000/- of which $75,000/- came from a loan he obtained from Credit POSB. He subsequently sold the Jalan Serene property in May 1979 for $85,000/-. So even if the profits were to be taken into account as the Petitioner's contribution for the acquisition of the Holland Grove property, it is only $5,000/-;

42 (ii) She paid $8,010/- to the said C & C Builders for renovation work. This must be in respect of the renovation work already undertaken by C & C Builders under their agreement with the Respondent. I accept the Respondent's contention that this amount was paid by the Petitioner when the Respondent was away and he reimbursed her on his return;

43 (iii) She paid a sum of $297.50 for the kitchen flooring when it needed to be repaired. The Respondent maintains that the Petitioner would require reimbursement for any money she spent on the house or household in the same way she required to be reimbursed of $130/- for the installation of a television antenna;

44 (iv) She bought a $4,000/- General Electric refrigerator for the use of the household. The Respondent denies that the Petitioner paid for it. Nonetheless it is not an item of expenditure referable to the acquisition of the house; (v) She paid the Public Utilities Board and telephone bills whenever the Respondent was away; (vi) She bought cushions, curtain covers, bed linens, lamp shade, bulbs and curtains and incurred such like recurrent expenditure for the home; (vii) She bought clothes and shoes for the Respondent's two sons by the previous marriage, looked after them and the Respondent's aged mother; (viii) She bought plants and shrubs for the garden.

45 It is to be noted that the Petitioner at all material times was a remisier with Alliance Securities (Pte) pursuing her own career until November 1989.

46 "In order to establish a constructive trust a party must show two things - (a) that the parties had a common intention that both should have a beneficial interest in the property acquired and (b) that the claimant has acted to his or her detriment on the basis of that common intention". Bromley's Family Law 7th Edn page 532.

47 In Gissing v Gissing (1971) A.C. 886, a house was bought in 1951 in the name of the husband as the matrimonial home in which the parties lived until 1961 when the husband left to live with another woman. The price paid for the house was 2,695 of which 2,150 was raised by the husband on mortgage and 500 was loaned him by his employers. The wife paid 220 out of her savings for furnishings and the laying of a lawn. The husband paid the instalments on the mortgage, gave the wife 8 to 10 a week for housekeeping, paid for holidays and general family expenses. The wife paid for her own clothes and those of their son and for some extras. According to the wife when her husband left in 1961 he told her the house was hers and he would continue to pay the instalments and outgoings, which he did. The House of Lords held that the wife had made no contribution to the acquisition of title to the matrimonial home from which it could be inferred that the parties intended her to have any beneficial interest in it. Per Viscount Dilhorne at page 900-901 :

48 "My Lords, in determining whether or not there was such a common intention, regard can of course be had to the conduct of the parties. If the wife provided part of the purchase price of the house, either initially or subsequently by paying or sharing in the mortgage payments, the inference may well arise that it was the common intention that she should have an interest in the house.

49 To establish this intention there must be some evidence which points to its existence. It would not, for instance, suffice if the wife just made a mortgage payment whilst the husband was abroad. Payment for a lawn and provision of some furniture and equipment for the house does not of itself point to the conclusion that there was such an intention.

50 ... ... But what is important is that it should be borne in mind that proof of expenditure for the benefit of the family by one spouse will not of itself suffice to show any such common intention as to the ownership of the matrimonial home."

51 In allowing the appeal by the husband, Lord

52 Diplock at page 909 said:

53 "Where the wife has made no initial contribution to the cash deposit and legal charges and no direct contribution to the mortgage instalments nor any adjustment to her contribution to other expenses of the household which it can be inferred was referable to the acquisition of the house, there is in the absence of evidence of an express agreement between the parties no material to justify the court in inferring that it was the common intention of the parties that she should have any beneficial interest in a matrimonial home conveyed into the sole name of the husband, merely because she continued to contribute out of her own earnings or private income to other expenses of the household. ... ... ..."

54 Therefore even it is accepted that from time to time the Petitioner had to supplement with her own earnings the housekeeping allowance given to her by the Respondent, this did not give rise to a constructive trust in her favour in respect of the Holland Grove property.

55 Accordingly I make no order under s.106 of the Women's Charter for the division of the Holland Grove property. But it has to be taken into account in the Petitioner's application for maintenance under s.108 of the Women's Charter. Savings in ACU of $223,000/-

56 This amount is accummulated over the whole working life of the Respondent spanning over 28 years commencing in October 1959 when he joined the CPF Board. In 1980 he resigned as General Manager of the CPF Board to join Singapore Land Ltd as Managing Director. In 1984 he left Singapore Land Ltd and joined Coopers & Lybrand as Managing Director until May 1987. The Respondent conceded that this item was matrimonial assets partly acquired by their joint efforts and suggested a sum of $67,000/-. This works out to 30% of the Respondent's funds in ACU. In my view this is very reasonable bearing in mind that this was his savings over his whole working life, as against the number of years during which the marriage subsisted. Accordingly I award her $67,000/- out of the sum of $223,000/- in the Respondent's ACU account.

57 Maintenance under s.108 of the Women's Charter

58 After deducting the said sum of $67,000/- the value of the Respondent's assets stand at $2,060,638.83. Against this the Petitioner has $63,000/- in her CPF account, $12,500/- from the proceeds of sale of the car, $7,703.06 being money released to her by her former employers Alliance Securities (Pte) and the $67,000/- awarded to her under s.106 of the Women's Charter, making a total of $150,203.06. She is a graduate aged 47. She had worked practically all her adult life until November 1989 when she chose to stop work. She should be able to return to work. On the other hand the Petitioner is aged 56. Jobs at his level are not easy to come by at his age. He will have to continue relying on directorships and consultancy work which sources of income are less than certain.

59 Bearing all these factors in mind a sum of $2,000/- per month will be fair. As the Petitioner prefers a lump sum, I award her $240,000/- based on 10 years support at $2,000/- a month. This sum plus the $67,000/- under s.106 paid in one lump sum and with her own assets amounting to $83,203.06 should see her comfortably through life in Australia.

60 I also award the Petitioner costs of these ancillary proceedings fixed at $11,000/- in lieu of taxation.