postimage

    11:26 PM Tan Zhi Xiang (Justices’ Law Clerk)

    Cohabitation before marriage – do those years count?

        

    Introduction

    The courts have a broad discretion to divide matrimonial assets in divorce proceedings. They must consider “all the circumstances of the case”, including a list of factors set out in s 112(2) of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Charter”). Such circumstances include parties’ direct contributions (e.g. moneys paid to acquire assets such as the matrimonial home) and indirect contributions (e.g. household bills, efforts in caring for the children) during the marriage. However, where parties have cohabited for a significant period of time before marriage, should contributions made during that period of time be considered? This question has proven to be controversial and there are now conflicting decisions on this issue.

    The cases

    The parties in TZQ v TZR [2019] SGHCF 3 were married on 10 July 2003. However, they cohabited in 1993. The High Court (Family Division) affirmed the decision of the Family Court to take 1995 as the start of the period of the wife’s indirect contributions to the family. The court reasoned that the factors in s 112(2) of the Charter are “non-exhaustive”, and “more importantly, there is no requirement to consider the duration of the marriage”: TZQ at [83]. The judge supplemented his reasons on the same point in USA v USB [2019] SGHCF 5 (“USA”), a case in which parties cohabited for 11 years before marriage. The judge pointed out that “matrimonial asset” is defined in s 112(10) with reference to clear time boundaries under s 112(10)(a) and (b), which refer to assets in terms of whether they were acquired before or during the marriage. The judge highlighted that in contrast, the factors to be taken into account in determining the appropriate apportionment of the assets (enumerated in s 112(2)) are not limited to the period of marriage: USA at [92].

    Similar reasoning was adopted in JAF v JAE [2016] 3 SLR 717 (“JAF”), where the court held that the list of factors in s 112(2) is “not exhaustive in so far as the court is to have regard to ‘all the circumstances of the case’”. It was also noted that s 112(2)(g) of the Charter “requires without any restriction as to time period, the court to take into account “the giving of assistance or support by one party to the other party” as one of the relevant factors in determining a just and equitable division of the matrimonial assets”: at [20].

    However, a different conclusion was reached in UJF v UJG [2018] SGHCF 1, where parties were in a relationship for a decade before they were married. The court held that the long pre-marital relationship was not a relevant factor “given the scope of the legislative provision which is concerned only with factors relating to the period of marriage”. The court “could not see anything in s 112 or the scheme of Part X of the Women’s Charter that justifies an expansive approach which allows [the court] to take into account pre-marriage circumstances”: at [54].

    Analysis

    Since the court’s power to divide assets is derived from s 112 of the Charter, that provision must be the starting point. It is true, as the cases suggest, that s 112(2) is drafted widely: the court is directed to have regard to “all the circumstances of the case”. However, the literal interpretation is only one of the few possible interpretations. The court is enjoined to adopt an interpretation which promotes the purpose of the legislative provision at hand, and in determining that purpose, “primacy should be accorded to the text of the provision and its statutory context”: s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed); Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 at [43].

    The statutory context is clear – the preamble of the Charter states that it is “an Act to provide for monogamous marriages and for the solemnization and registration of such marriages; to amend and consolidate the law relating to divorce, the rights and duties of married persons, the protection of family, the maintenance of wives, incapacitated husbands and children and the punishment of offences against women and girls; and to provide for matters incidental thereto”. Leaving aside the provisions on criminal offences, the Charter regulates the formation (Parts II, III, IV) and dissolution (Part X) of marriages, as well as obligations which arise during the subsistence of a marriage (Parts VI and to some extent, Parts VI and VII). There are also provisions relating to family violence (Part VII) and obligations which arise from parenthood (Part VIII), but they are not relevant here. What is relevant is that the Charter does not cover parties’ rights and obligations before marriage. 

    The definition of a “matrimonial asset” in s 112(10) is also pertinent. Sub-section (a) states that any asset acquired before marriage will be “transformed” to a matrimonial asset only if that asset is “ordinarily used or enjoyed by both parties or one or more of their children” or “has been substantially improved during the marriage by the other party or by both parties to the marriage”. It is worth emphasising that under the latter limb, only contributions during the marriage are sufficient to “transform” a pre-marital asset into a matrimonial asset. Thus, an asset acquired before the marriage is not a matrimonial asset unless it has some substantial connection to the marriage. Again, this suggests that the Charter is not meant to govern the rights and obligations of parties before marriage.

    In USA, the learned judge reasoned that the references to clear time boundaries in s 112(10), and the absence of the same in s 112(2), is reason to conclude that the period of pre-marital cohabitation can be considered in determining the appropriate apportionment (see above). However, it follows from the judge’s reasoning that different time frames may be adopted for determining and apportioning the pool of assets. It is respectfully suggested that this would lead to an odd outcome. Under such an approach, parties’ contributions during the period of cohabitation before marriage (relevant to the apportioning of the pool of assets) would be recognised. However, no matrimonial asset would be acquired during that period. The link between parties’ contributions and the acquisition of matrimonial assets would thus be severed.

    Of further relevance is the observation of the Court of Appeal in NK v NL [2007] 3 SLR(R) 743 at [20] that “[t]he division of matrimonial assets under the Act is founded on the prevailing ideology of marriage as an equal co-operative partnership of efforts”.  The court then emphasised at [41] “[t]he social policy underscored by the division of matrimonial assets, the joint product of a martial partnership, is just as important as the final award. The language of a power to ‘divide’ says to the whole society that the law acknowledges the equally important contributions of the homemaker to the partnership of marriage and its acquisition of wealth… The entire process must involve a mutual respect for spousal contributions, whether in the economic or homemaking spheres, as both roles are equally fundamental to the well-being of the marital partnership”. In my view, the repeated references to marriage (as opposed to a mere “relationship”) as a partnership of equals being a key premise underlying the court’s power to divide assets suggest that only contributions made during the marriage should be considered.

    It is also not entirely correct to state that the factors in s 112(2) of the Charter do not require the court to consider the duration of the marriage: see TZQ at [83]. Section 112(2)(h) states that the matters referred to s 114(1) may be relevant, and s 114(1)(d) refers to the “duration of the marriage”. The length of the marriage has been recognised as a relevant factor in the division of assets: eg, TNL v TNK and another appeal and another matter [2017] 1 SLR 609 (long marriages); Ong Boon Huat Samuel v Chan Mei Lan Kristine [2007] 2 SLR(R) 729 (short marriages).

    Thus, the statutory context and the authorities suggest that “all the circumstances of the case” in s 112(2) of the Charter should not be interpreted to include contributions made before marriage.

    An argument may be made that it would be artificial and even unjust to ignore parties’ contributions during periods of cohabitation before marriage. Indeed, a cohabiting couple may organise their lives much like a married couple, the only difference being that the formalities of marriage have not been observed. In such circumstances, why should parties’ contributions over the length of their entire relationship not be considered in the division of assets? Why not take a holistic view of the relationship?

    While there is force in this argument, the question that follows is: why stop at cohabitation if the aim is to take a holistic view of the relationship? Consider the following hypothetical. A couple, A and B, were dating before they were married. During that time, they did not live together. However, A was involved in a car accident and B visits A everyday to provide comfort and care before they were married. In such a case, it may be argued that A’s efforts in caring for B should be considered in the division of assets, even though A and B did not cohabit before marriage. I note that in JAF, the court appeared to have accepted that pre-marital contributions can be considered even where parties have not cohabited – it held that “pre-marital contributions that enhance a consequent marriage” are encompassed by s 112(2)(g). It is respectfully suggested that this test is too wide – any contribution can be argued to have enhanced a consequent marriage. Should contributions be counted only if the marriage is substantially enhanced? Further, it is not clear why, as a matter of principle, pre-marital contributions not made in contemplation of marriage should be considered.

    In my view, issues like these would create substantial uncertainty in the law on division of assets. As Debbie Ong J observed in UNE v UNF [2018] SGCHF 12, the law on division of assets already “incentivises parties to focus on the failures of the other party in order to lower that party’s indirect contributions to the marriage”. Allowing parties to delve into each other’s conduct before the marriage would only encourage more acrimony which would limit the room for amicable resolution.

    * This blog entry may be cited as Tan Zhi Xiang, “Cohabitation before marriage – do those years count?”  (10 February 2019) (http://www.singaporelawblog.sg/blog/article/229); A PDF version of this entry may be downloaded here

    ** I would like to thank my colleague, Daniel Ho (Justices’ Law Clerk), for his comments on an earlier draft.

    *** The opinions contained in this commentary reflect the author’s own views and are not to be understood as reflecting the views of the author’s employer.

Comment Section