07:54 AM Chen Siyuan (Assistant Professor of Law, Singapore Management University)

    Misconduct and the Division of Matrimonial Assets: Chan Ting Sun v Fong Quay Sim [2014] SGHC 97


    Should the fact that the wife had previously poisoned the husband with arsenic result in any reduction in her share for the division of matrimonial assets when the marriage ends in divorce? Presented with this unprecedented factual scenario, the High Court answered in the negative. This case comment suggests two ways in which the reasoning of the decision could have been fortified.

    The parties were married for 34 years and divorced in 2011. The husband was the sole breadwinner who made virtually all of the financial contributions while the wife made the majority of indirect contributions as primary caregiver, including the taking care of their son. Between 2004 and 2005, the wife started to poison the husband by adding arsenic into his food, eventually causing him to be hospitalised for months. She did this as she had been suffering spousal emotional and verbal abuse throughout much of the marriage. The wife was subsequently sentenced to one year’s imprisonment for causing hurt under s 328 of the Penal Code (Cap 224, 2008 Rev Ed).

    In coming to his decision to award the wife 42% of the pool of matrimonial assets (worth $2.1 million), the judge made the following preliminary observations: first, s 112 of the Women’s Charter (Cap 353, 2009 Rev Ed) prescribes the just and equitable principle in the division of matrimonial assets; secondly, the court adopts a broad-brush approach in the division of matrimonial assets; thirdly, indirect contributions are quantified with the full benefit of hindsight and in a broad manner; and fourthly, case precedents suggest that for marriages up to 35 years with children, the proportion awarded to homemaker wives range between 35–50% of the pool of matrimonial assets. 

    With specific regard to the arsenic poisoning, the judge noted that the Women’s Charter is silent as to whether such misconduct is relevant in the division of matrimonial assets. The judge then referred to Ong Chen Leng v Tan Sau Poo [1993] 2 SLR(R) 545 (where the court did not place much weight on the husband having had an affair for half of the marriage) and NK v NL [2007] 3 SLR(R) 743 (where it said there must be a nexus between the misconduct and the contributions of either spouse for the misconduct to be considered) and concluded that the act of poisoning did not negate all of the wife’s indirect contributions such that she should not have any share in the matrimonial assets. 

    Beyond that, however, the judge also stated that the act of poisoning should, by default, have no bearing on the division of matrimonial assets as the court’s power to make such a division was never intended to serve a punitive function – but the judge did take into account the fact that after poisoning the husband, it could not be said that the wife’s indirect contributions were the same before and after the poisoning, but at the same time, it could not also be said that she had no more indirect contributions after that as she still kept the household in order. The judge also noted that the husband’s present poor health could be directly attributed to the poisoning, and he would need costly medical care in the future. Finally, by ruling that the husband had not made full and frank disclosure of all his matrimonial assets (some $700,000 was unaccounted for), the judge drew an adverse inference against him and added 7% to the wife’s share, increasing her share from 35 to 42%.

    As the wife also claimed maintenance, the judge noted that s 114 of the Women’s Charter, unlike s 112, specifically considers conduct as a factor when determining maintenance. While the judge pointed out that (citing Watchtel v Wachtel [1973] Fam 72 and Harnett v Harnett [1973] Fam 156) where both parties have been substantially responsible for the breakdown of the marriage, it would be unnecessary to review the conduct of the parties, he held that the arsenic poisoning was a malicious and disproportionate response to the abuse and the sum of maintenance should be lowered. The wife’s request for a lump sum of $200,000 was accordingly reduced to $18,000, after her needs had been factored in.

    Was the judge correct in focusing the division inquiry on the parties’ contributions, to the extent of precluding the arsenic poisoning as a negative factor? In other words, can misconduct really never result in a reduction of the share of the pool of matrimonial assets unless it has a nexus with contribution? Would the conclusion still be the same if the misconduct in question was even more extreme, such as the murder of the husband? There is certainly weight of authority that supports the notion that the goal of the division of matrimonial assets is to reach a fair and reasonable division in the ostensibly narrow sense of giving due recognition to the spouses’ efforts and contributions even when they have played different roles in the marriage (see Leong Wai Kum, Elements of Family Law in Singapore, 2nd ed (LexisNexis: 2013) at pp 504–517). It is also clear that the divorce regime in Singapore is now generally a no-fault regime. But perhaps the following passage by the Court of Appeal in AQS v AQR [2012] SGCA 3 at [39] could have shed more light on this issue: 

    [W]hile we note that divorce is no longer based on fault, conduct of the parties in relation to the family is nevertheless a relevant consideration in the division of matrimonial assets … Where parties were clearly in a highly acrimonious relationship and they have alleged various counts of misconduct against each other, the court should not too readily sift through the facts and evidence in order to assign relative blame for the purposes of dividing matrimonial assets … Ultimately, where the evidence shows a marital relationship as acrimonious and dysfunctional as the parties’ here, it is inappropriate for a court to make findings as to how good or bad a wife and mother a party was … or how good or bad a husband or father a party was. In our opinion, in the circumstances here, we did not think that the Judge should have found that the wife contributed nothing at all to the family purely on the basis that she made the husband’s life a “a misery”.   

    While one may make the technical distinctions that first, AQS v AQR did not involve misconduct as egregious as prolonged arsenic poisoning (the allegation there was that the wife had a violent disposition) and secondly, unlike usual marital disputes there was no evidential quagmire here since the misconduct did take place for the wife was prosecuted and jailed, such distinctions will probably not sway the Court of Appeal to decide in favour of the husband should an appeal be lodged. In AQS v AQR itself, the court said clearly at [27]: 

    Ancillary proceedings should hardly encourage parties, and should not be used by the parties, to engage in mudslinging and dwelling on each other’s misconduct. However, the Judge did make many findings of fact on the conduct of the parties … Insofar as these findings of fact formed the basis of the Judge’s order for the division of matrimonial assets, we will elaborate below as to why we thought this was wrong in law.

    There is potentially still, however, the question of how broadly the phrase “just and equitable” found in s 112 of the Women’s Charter can and should be construed. Based on the words of the provision and its contiguous provisions alone, it does seem that it is possible to include misconduct – or more specifically for present purposes, extreme misconduct – as a factor for consideration. Nor do the relevant words require that such misconduct must necessarily have a bearing to contribution and efforts. One, then, has to look to the purpose of s 112, as mandated in no uncertain terms by s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed). In this regard, when the predecessor section to s 112 was amended, foremost at the minds of the legislators who debated the provision in Parliament was to ensure that homemaking efforts should be given due recognition. There is nothing in those parliamentary debates or in subsequent ones that indicate that misconduct, no matter the severity, can or should be a factor for the court to consider when dividing matrimonial assets. 

    In such circumstances, one either concludes that such a possibility was not raised because it seemed obvious that any reliance on misconduct would be inconsistent with the no-fault divorce regime in Singapore, or that the door remains open for the non-exhaustive list of factors in s 112 to be expanded in more than one particular direction. But while the former interpretation is likely to be preferred, the conduct of spouses should never be mistakenly excluded in the most important ancillary application post-divorce: the guardianship of children (see Chen Siyuan, “The Fundamental Question when Applying the Welfare Principle: “Who will be the Better Parent or Guardian?”” (2011) SelectedWorks ). However, a proper discourse for that question ought to be reserved for a suitable occasion in the future. 

    * This blog entry may be cited as: Chen Siyuan, "Misconduct and the Division of Matrimonial Assets: Chan Ting Sun v Fong Quay Sim [2014] SGHC 97" (4 August 2014) 

    ** A PDF version of this entry may be downloaded here

Comment Section