By Susan Tay, Director of OTP Law Corporation
This is my article on the case of UZN v UZM. You can read the one from the perspective of a forensic accountant, Wan Yew Fai of Strix Strategies Pte Ltd, here.
Both Wan Yew Fai and I are part of PracticeForte Advisory, a multi-disciplinary grouping of professionals. We often work as a team in matrimonial cases especially when the matrimonial estate comprises of more complex portfolios like shares, equities in companies, real estates in different countries and intricate family businesses.
This is thus a joint effort to give 2 perspectives on the recent Court of Appeal case of UZN v UZM. One from the accounting expert and one from a family lawyer. I also split my article into 2 parts.
In this article, I will share my perspective as a lawyer.
Before I start on the case proper, I think some background on the rationale of dividing matrimonial assets may be useful.
Why Should I Split My Assets with The One I Am Going to Divorce?
I often hear this from clients, whether husband or wife: it is not fair, this is my money, earned solely by me OR these are assets bought solely with my hard-earned money, why should I share this with that fella (by the time of divorce, these clients can’t even speak the other spouse’s name), especially when that fella is the unfaithful spouse, the irresponsible one who gambles/squanders away all our hard-earned money not contributing anything to the marriage.
Sometimes, although not often, and quite ironically, this same party feels a sense of entitlement when it comes to the other spouse’s assets. It’s a case of your money is my money but my money is my money.
Having said that, I think we will all appreciate how negative we can feel about a person when relationship breaks down, even between friends, relatives, colleagues. And how at that point of time, it is easy to forget all the good and remember only the nasty. And if we are asked then to share even just a piece of cake, not to mention what we think we have acquired over many years, with this same person, the kind of vitriol and resentment is possibly similar.
So Why Must We be Made to Split Our Assets?
Well, because when we calm down from the fits of anger and despair, and think back at the good things, those great moments, yes, I mean specifically the contributions by our spouses to our marriages, most of us will accept that that there are indeed contributions.
It is precisely these contributions that the family laws in Singapore will acknowledge when it comes to division of matrimonial assets.
How Can We Be Assured That It Will be a Fair Split?
The overriding principle of a matrimonial assets split is a just and equitable division. When 2 people marry, it is often with the starting point that both will contribute to the marriage and family. In some families, one spouse is the homemaker and the other the breadwinner. More common these days, both will work and share their part in homemaking either with the help of parents or a helper or a day care for the children.
When the court decides on what is fair and equitable, it looks at contributions by the parties. These contributions can be financially or from efforts. E.g. the homemaker may not have the money but he /she will have made contributions by the effort in taking care of the family/household/children. The homemaker should not be disadvantaged because the couple’s decision was that he/she would not work. A non-financial contribution is just as real as the financial contribution.
In the unfortunate event that the marriage breaks down and the couple heads for a divorce, the court will then have to ascertain the total matrimonial pool of assets acquired by the parties and then give a percentage to each party’s contributions.
The court will consider, through examining a series of factors whether a party truly contributes to the marriage. A diehard gambler or an irresponsible parent, or an alcoholic, or a violent spouse will have factors weighed against them and the percentage ascribed to this spouse can be reduced.
Of course, a judge can only do its duties effectively if the full set of facts are presented before the court. This is the full disclosure duty of the parties when it comes to divorce proceedings. Honesty is expected not only when you want to speak of the ills of the other party but also of the gains.
These gains will be viewed as assets acquired during the marriage due to the efforts of both spouses. It is therefore only right that at the point when the marriage is over and the assets are no longer to be enjoyed by both parties as if they are still married to each other, that these assets be split.
In Part 2 of the article, I will share a case on what the High Court and subsequently the Court of Appeal did when it was found that one party has failed to disclose his assets.