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    02:52 AM Chen Siyuan (Assistant Professor, Singapore Management University)

    Misconduct and the Division of Matrimonial Assets: Clarification from the Court of Appeal Chan Tin Sun v Fong Quay Sim [2015] SGCA 2

        

    Should the fact that a wife had previously poisoned her husband with arsenic result in any reduction in her share for the division of matrimonial assets when the marriage ends in divorce? Following the appeal lodged by the husband in Chan Ting Sun v Fong Quay Sim [2014] 3 SLR 945, the Court of Appeal has now clarified in Chan Ting Sun v Fong Quay Sim [2015] SGCA 2 that extreme spousal misconduct can and should lead to a reduction in that spouse’s share of matrimonial assets. This appears to be the first local Court of Appeal judgment that has made such an express pronouncement on this issue.

    Shortly after the High Court judgment was rendered, it was observed here that the broadness of s 112(2) of the Women’s Charter (Cap 353, 2009 Rev Ed) means that it is “possible to include misconduct – or more specifically for present purposes, extreme misconduct – as a factor for consideration”: Chen Siyuan, “Misconduct and the Division of Matrimonial Assets: Chan Ting Sun v Fong Quay Sim [2014] SGHC 97” (4 August 2014) . The Court of Appeal noted this possibility as well in its judgment. However, whereas the High Court was of the view that some nexus must exist between the misconduct and the contributions of either spouse before any share of matrimonial assets can be reduced, the Court of Appeal concluded that such a nexus is only relevant to the question of establishing the respective direct and indirect contributions; if there is extreme misconduct that fundamentally undermines the co-operative partnership and harms the welfare of the other spouse, a second step needs to be taken in that a negative value ought to be ascribed to the share of matrimonial assets of the misconducting spouse so as to achieve a just and equitable division. Two important observations were made in support of this conclusion:

    1.  Pursuant to ss 24 and 25 of Matrimonial Causes Act 1973 (c 18) (UK), English courts are given the power to adjust property holding between spouses by having regard to spousal misconduct if the misconduct is such that it would be inequitable for the court to ignore it. Although s 112 of the Women’s Charter is worded differently, the overriding consideration in both jurisdictions is that of achieving equitability. Therefore, on the level of generality and first principles, the English position can provide guidance on this issue.
    2. Although the English approach to the division of matrimonial assets has for the larger part of history not been that of community of property as it is in Singapore, more recent jurisprudence do bear the hallmarks of a regime based on the conferred community of property approach. In any event, under English case law (for instance, Bateman v Bateman [1979] Fam 25 and Evans v Evans [1989] 1 FLR 351), it is clear that a negative value will be ascribed to the contribution of the spouse guilty of misconduct if such misconduct is extreme. Some of those cases also contained analogous facts (one spouse physically attacking the other in some form). Therefore, on the level of specificity, the English position can also provide guidance on this issue.    

    Accordingly, while the wife’s misconduct did not warrant an award of no share of the matrimonial assets, the Court of Appeal deemed it appropriate in the circumstances of the case to apply a 7% reduction to High Court’s award so as to ascribe a negative value to the wife’s conduct. 

    As a preliminary observation, local cases involving spousal misconduct as extreme as this are rare, and this probably explains why the Court of Appeal sought recourse to the English statutes and case law on family law. And as much as it was not really necessary to do so (given the broad language in s 112(2) of the Women’s Charter and the statutory mandate given to the courts to achieve equitability on the facts of each case), Singapore now has an unequivocal precedent from its apex court that extreme misconduct of a spouse can result in a reduction of the share of matrimonial assets. However, although the Court of Appeal took the view that it differed from the High Court as to the effect extreme misconduct should have on the share of matrimonial assets, a closer reading of the High Court judgment may reveal otherwise. 

    First, it is suggested (see [21] of the High Court judgment) that the High Court Judge was aware that misconduct could, in certain circumstances (but without stating what they were save to imply the threshold was not met on the facts), lead to a reduction in the share of matrimonial assets. It is further suggested (see [22] of the High Court judgment) that it is possible for contributions to be reduced to some extent as a result of misconduct (though the actual word used was “negate”). It is also noteworthy that the High Court Judge had, in effect, ascribed some negative value by reducing the sum of maintenance that the wife would otherwise have received. Indeed, it is not uncommon for maintenance sums to be adjusted due to uncertainties in the division of matrimonial assets and vice versa, but this aspect of the High Court judgment was not discussed along the same lines in the judgment by the Court of Appeal. 

    Nonetheless, in so far as the High Court Judge had justified the reduction principally on the basis that s 114(2) of the Women’s Charter (which is about the maintenance of wives and former wives) expressly permitted him to for maintenance cases (while s 112(2) did not, at least expressly), the Court of Appeal was right in clarifying that extreme misconduct of similar or greater scale can and should result in a deduction of the share of matrimonial assets in future cases, even if s 112(2) is largely silent as to whether misconduct can be a factor. Of course, it is likely to be rare for such cases to emerge again, given that (as noted by both the High Court and Court Appeal) the court’s default position remains that of avoiding the assigning of blame and the minute scrutiny of the parties’ conduct.

    * This blog entry may be cited as Chen Siyuan, "Misconduct and the Division of Matrimonial Assets: Clarification from the Court of Appeal Chan Tin Sun v Fong Quay Sim [2015] SGCA 2", Singapore Law Blog (26 January 2015) (http://www.singaporelawblog.sg/blog/article/80)

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

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