IS THE GROUND FOR DIVORE A FACTOR IN DIVISION OF MATRIMONIAL ASSETS?

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PKWA DIVORCE LAWYERS

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In what situations will the court use the grounds for divorce as a factor for division of matrimonial assets?

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In Singapore, divorce proceedings are split into 2 distinct stages.

The first stage of the proceedings is the divorce which involves the legal termination of the marriage between parties. During this first stage, parties’ respective conduct (or misconduct) may be brought up to substantiate 1 of the 5 facts being relied on to prove that the marriage has irretrievably broken down, which is the sole ground of divorce in Singapore.

The second stage of the proceedings concerns ancillary matters, which include the division of matrimonial assets. This is meant to be a separate stage from the first stage. However, unhappiness about each other’s misconduct (alleged or otherwise) can sometimes spill over into the ancillary matters stage where one party may try to invoke the other party’s misconduct to justify a greater share of the matrimonial assets. In response, the courts have maintained a no-fault divorce approach where the reasons for the breakdown of the marriage generally do not factor into the determination for division of matrimonial assets.

That being said, there have been exceptional cases where one party’s misconduct has been so egregious that the courts are compelled to take the misconduct into account when deciding on the division of matrimonial assets. In this article, we explain when the courts may have regard to misconduct by either party during the marriage and how the courts may give regard to such misconduct.

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When will the courts have regard to misconduct by either party during the marriage?

As a starting point, the courts must ensure that the outcome reached in terms of the division of matrimonial assets is “just and equitable”. Simply put, the courts seek to achieve a division that is fair to both parties.

In the case of Chan Tin Sun v Fong Quay Sim [2015] SGCA 2, the Court of Appeal established that the courts may consider a party’s misconduct during the marriage in reaching the just and equitable division of matrimonial assets when the said party’s conduct is both extreme (i.e., manifestly serious) and undisputed, such that the spouse not only fails to contribute to the marital partnership but also fundamentally undermines the co-operative partnership and harms the welfare of the other spouse. In keeping with this high threshold, the Court of Appeal emphasised that the courts did not wish to engage in sifting fact from fiction in respect of allegations by parties against each other to assign blame for the division of matrimonial assets. On the facts of Chan Tin Sun, the Court of Appeal found that the wife’s misconduct of systematically poisoning the husband (for which she was sentenced to 1 year’s imprisonment) had indeed met the requisite threshold. In doing so, the court noted that the husband’s increased financial needs in the form of medical bills stemmed from the poisoning. To further illustrate that the threshold to be met is a high one, the Court of Appeal discussed a few cases that involved a spouse committing serious criminal offences against the other spouse such as assault and even attempted murder.

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How will the courts have regard to misconduct by either party during the marriage?

The court is unlikely to attribute zero indirect contributions to one party even if that party’s misconduct has crossed the requisite threshold. In the abovementioned Chan Tin Sun case where the wife poisoned the husband, the court was reluctant to find that the wife, a homemaker, had made no contributions to the welfare of the family during the marriage.

Instead, the court may ascribe a “negative value” to the party’s misconduct when considering indirect contributions made by each party during the course of the marriage, reflecting that the effect of the misconduct was to undermine the marital partnership. The court has emphasised that the purpose of ascribing a negative value to the party’s conduct is not a punitive one.

This “negative value” is likely to be demonstrated in the form of a discount that is applied to the share of matrimonial assets that the party guilty of misconduct would otherwise receive. For example, the wife in Chan Tin Sun was originally entitled to 35% of the matrimonial assets. However, in light of her misconduct, a discount of 7% was applied, bringing her final share to 28% of the matrimonial assets. The specific discount to be applied depends on the facts of the case and the courts seek to ensure that the discount produces a “just and equitable” outcome for both parties.

Do note that the courts remain guided by the “just and equitable” principle throughout this exercise and the courts are careful not to let any one factor, including one party’s misconduct, be determinative in the division of matrimonial assets.

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Case studies

The following 4 case studies are taken from real-life cases. These case studies demonstrate that even after the Chan Tin Sun case, the courts are generally slow to have regard for misconduct by either party during the course of the marriage and may be minded to do so only in exceptional cases involving extreme and undisputed misconduct.

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Case Study 1

The parties were engaged in a mutually destructive exercise of flinging accusations against each other. The husband accused the wife of engaging in disruptive and undesirable behaviour which caused the husband to lose his job. However, the court noted that the husband’s behaviour was far from perfect as he refused to pay the utilities bill and cut off the landline and wife’s mobile phone line. The court emphasised the no-fault basis of divorce in Singapore and did not ascribe any negative value to either party’s conduct. Instead, the courts made a broad-brush determination of the parties’ indirect contributions with reference to both parties’ misconduct.

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Case Study 2

The wife alleged that the husband had been involved in several extramarital affairs and argued that a negative value should be ascribed to such conduct. However, the court found that such conduct as alleged did not warrant a negative value to be ascribed and stressed the no-fault basis of divorce under Singapore law.

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Case Study 3

There was a high level of acrimony between parties over many years and the wife made many unfounded complaints to the authorities, one of which resulted in the husband being charged and put through a criminal trial. Astonishingly, the court found that it was the wife who had been carrying out the acts in her complaints about the husband. The court found that the effect of the wife’s actions over the years was to undermine the cooperative partnership of the marriage. This finding was one factor in the court’s decision that the husband’s indirect contributions were greater than the wife’s indirect contributions.

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Case Study 4

Parties accused each other of abuse on multiple occasions and argued that the court should ascribe a negative value to the other party’s conduct respectively. However, the court found that none of the allegations were particularly relevant or helpful to the division of matrimonial assets. As such, the court did not ascribe a negative value to any alleged misconduct by either party.

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In conclusion, the reasons for divorce are unlikely to affect the court’s considerations in the division of assets save for in exceptional circumstances of extreme and undisputed misconduct by one party.

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