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236 Singapore Academy of Law Journal (2003) sale proceeds should be paid to the wife. No judgment was written by the High Court in the matter.) 37 Another example is the case of Ng Kim Seng v Kok Mew Leng. 40 In this case, the High Court had ordered that the matrimonial home be divided between the wife and the husband in the proportion fourth-fifths to one-fifth, and that the wife would have the sole discretion either to sell the matrimonial home to a third party and make payment of one-fifth share of the net sale proceeds to the husband, or to retain the matrimonial home for herself and pay him the sum of $144,000. On appeal, the Court of Appeal upheld these orders. However, it further ordered the wife to repay her father the sum of $52,423.44 advanced by him to the husband and wife for the redemption of the mortgage on the matrimonial home. (iv) Order one or both parties to repay the loan in full to the 3 rd party from the sale proceeds of the matrimonial asset 38 See, for example, the case of Lee Sew Iam Richard@ Lee Siew Wian v Yeo Siew Keng Lilian (m.w.) and Another, 41 where the husband’s mother had made a loan of $350,041.61 to the couple to purchase a flat. At the ancillary matters stage, the parties disagreed as to whether the husband’s mother should be repaid her loan with interest and if so, at what rate. The High Court ordered that the said flat be sold and that the husband’s mother’s loan be repaid to her together with interest at 6% per annum, commencing from the date of completion of the purchase of the flat up to the date of completion of the sale, from the sale proceeds of the flat. (b) Whether loan from 3 rd party must be for the benefit of the family 39 In the case of Ong Tong Liang v Lim Siew Cheng Jeanette, supra, the debts incurred by the husband were held by the court to be gambling debts or for the husband’s personal business ventures. The husband in this case had made little indirect financial contributions to the family. The court held that these debts, being of a personal and business nature, were not undertaken for the joint benefit of the parties, or for the child of the marriage. In the circumstances, they were not debts coming within the definition of section 112(2)(b) and hence were not taken into account when determining the value of the pool of matrimonial assets. 42 40 41 42 [1992] 2 SLR 872 unreported, Divorce No. 193 of 1995 The orders made in respect of the division of matrimonial assets were varied on appeal, but no judgment was written by the High Court.
15 SAcLJ Matrimonial Assets and the 3 rd Party 237 40 In contrast, in the case of Yuan Hsiang Ping, supra, the court was of the view that the husband had not recklessly speculated in shares or accumulated debts. The size of the parties’ liabilities had its cause in the untimely crash of the stock market and property market in 1998. The wife knew that her husband invested heavily in the stock and the property markets to generate income and enable her to maintain a fairly high standard of living, and all loans taken by the husband in this regard were taken with the wife’s knowledge. The liabilities were therefore taken into account in deciding the division of the matrimonial assets. 43 41 These two cases seem to indicate that the court will only take into account those debts incurred for the benefit of the family when making an order under Section 112, and hence when making any of the orders set out in Section 2.4.2.1(a)(i)-(iv) above. In addition, the definition of what constitutes a debt for the benefit of the family has also appeared to have been confined, in the said cases, to those debts which are undertaken with the intention or purpose of acquiring assets or generating income for the benefit of the family. 42 It is submitted, however, that the better view is that: (i) The scope of what qualifies as a debt incurred for the benefit of the family should be widened, to include those debts which were not incurred with the intention or purpose of acquiring assets or generating income for the benefit of the family, but which could have resulted in this. For example: If a husband buys a $5,000 watch for himself after the date of the marriage (which has appreciated in value to $8,000 by the time of the ancillary matters hearing), and takes a $5,000 loan to do so, the watch will be considered a matrimonial asset for division, notwithstanding that it was not bought with the intention of benefiting the family. It seems only fair, in that case, that the $5,000 debt which was taken to purchase the watch should be taken into account in assessing the value of the watch for the purposes of the division. Otherwise, the party who did not acquire the asset would have the benefit of claiming a share in it, 43 On appeal, the Family Court’s order that the wife’s share of the Malaysian property be transferred to the husband was varied, in that the High Court ordered that the said property was to be sold and that the wife was to be paid half the sale proceeds. All the other orders made by the Family Court were not varied. No judgment was written by the High Court in this matter, however.
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