Division of Property PDF

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TUTORIAL 12

DIVISION OF PROPERTY 1.

Ah Kang and Ah Ling were married in 2000 and their son Ah Kow was born in 2001. Three years later they moved into the matrimonial house which was brought for RM25,000/- Each contributed RM2,000 from their own savings and the remainder was raised on a mortgage. Title to the house and the mortgage were in Ah Kang’s name alone. Ah Kang subsequently met Jean and in 2013, he moved out of the matrimonial home. Ah Ling now seeks your advice about obtaining financial provisions for herself and Ah Kaw. The house is now valued at RM60,000. Ah Kang is now living with Jean and their daughter Mary, who was born three months ago. They are living in Jean’s house which she inherited from her father. Ah Kang earns RM1,200 an month and Ah Ling RM500 from her part-time job as a nurse. Jean does not have a salaried employment. Ah Kang would like to have the matrimonial home sold so that the proceeds could be converted in a business he is establishing. Ah Ling is entitled to receive legal aid. Ah Kang and Jean intend to marry in the near future. Advise Ah Ling.

Issue Whether Ah Ling is entitled to the share of the matrimonial home?

Law - What is assets? S.76(5): For the purposes of this section, references to assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. Case: Ching Seng Woah v Lim Chook Lin  Shankar JCA: “Assets refers to the matrimonial home and everything which is put in to it by either spouse with the intention that their home and chattels should be continuing resource for the spouses and their children to be used jointly and severally for the benefit of the family as a whole. It matters not in this context whether the asset is required solely by the one party or the other or by their joint efforts. Whilst the marriage subsists, these assets are matrimonial assets. Such assets could be capital assets. The earning power of each spouse is also an asset.”

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Jurisdiction of court Case: Manokaran Subramaniam v Ranjit Kaur Nata Singh  Whether the court can give order regarding division of property after the divorce decree becomes absolute?  Held: (a) Cannot because of the wordings in S.76(1) & (3)

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(b) Singapore position in s.112 of the Women’s Charter. Two situations: 1. Property acquired during the marriage by both the husband and wife 2. Property acquired before the marriage and improved during the marriage S.76 LRA: Property acquired by joint efforts of both parties (1) The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or the sale of any such assets and the division between the parties of the proceeds of sale. (2) In exercising the power conferred by subsection (1) the court shall have regard to— (a) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets; (b) any debts owing by either party which were contracted for their joint benefit; (c) the needs of the minor children, if any, of the marriage, and subject to those considerations, the court shall incline towards equality of division. Case: Yap Kim Swee v Leong Hung Yin  The parties had acquired a matrimonial home and it was not disputed that it was paid for from funds standing in their joint current account.  The house was registered in their respective names with each party holding a half share each.  The wife claimed for a share in the husband’s half registered share in the home.  The learned judge considered the fact that the house was purchased from the joint current account of the parties, the fact that the applicant had deposited her monthly salary into that account, the fact that the parties had lived together for 17 years prior to their separation and her contribution during that period would have included her role as wife and mother and looking after the welfare of the family and home.  It was held that the applicant was entitled to one-third share of the proceeds of sale of the respondent’s half registered share of the property. Case: B Ravindran v Maliga  The matrimonial home was jointly registered under the names of both the petitioner husband and the respondent wife.  The respondent had applied, inter alia, for the matrimonial home to be transferred to her as registered proprietor free of all encumbrances.  The learned judge found that the respondent had contributed towards the initial payment of the home.  In addition, she had surrendered her whole pay packet to the petitioner during the period she was working.  Be that as it may, the learned judge preferred to let the status quo remain.  Haidar Mohd Noor J:

“No doubt the petitioner contributed substantially towards the purchase of the matrimonial home and even now continues to pay the monthly instalments but taking into consideration the contribution of the respondent and the needs of the children, I am inclined to the view that it would not be appropriate to transfer the whole of the matrimonial hone to the respondent as prayed by her.”

Case: Usha Rani v Sivanes Rajaratnam  The petitioner wife sought a share inter alia in the clinic which was opened during the subsistence of her marriage with the respondent husband.  She had contributed to the opening of the clinic, arranged for banking facilities and even stood as guarantor.  About RM10,000 of their savings was used to open the clinic.  The respondent had stopped contributing towards the household expenses during the initial years when the clinic was newly opened.  The HC found that the petitioner had contributed financially and physically in the setting up of the clinic, thereby enabling the respondent to devote his energy to the running of the clinic.  A lump sum of about one-third of the total earnings, less the amount of taxes to be paid, was awarded.

Application [pandai2 goreng please, im stupid] - The matrimonial house of Ah Kang and Ah Ling were acquired by their own savings of RM2,000 each thus s.76(1) & (2) applies. - Both parties had contributed RM2,000 each. However, the remainder that was raised on a mortgage were in Ah Kang’s name alone. - They have a minor son, Ah Kow (12 years old).

2.

Param and Ruth have been married for 16 years. Param is a doctor at a private hospital and Ruth bakes cakes and cookies for her friends’ parties. Parma has taken a loan from a local bank and has bought a house, which is registered in his name only. The two cars and several thousand shares that they have, the loans for the house and cars are in his name. She has used the money that her parents send her from time to time, to decorate and furnish the house. (This money is hers). They have no children because Param is sterile. Ruth however has a daughter, Sarah, whom she had given birth to before her marriage to Param. Sarah has lived with Ruth and Param all her life and regards Param as her father. There is also a son David, whom the couple adopted 10 years ago. Ruth has just heard that Param is having an affair with a nurse at the hospital. She is afraid that he may divorce her and leave her destitute. She has also heard that Param went to a lawyer’s office to make a will. Ruth wishes to know. (i)

What rights does she, Sarah and David have in the property that is registered in Param’s name?

(ii)

How can she enforce these rights for herself and the children?

Issue Whether Ruth, Sarah and David have rights in the property that is registered in Param’s name? Law - Property acquired by the sole effort of one party (3) The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired during the marriage by the sole effort of one party to the marriage or the sale of any such assets and the division between the parties of the proceeds of sale. (4) In exercising the power conferred by subsection (3) the court shall have regard to— (a) the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring the family; (b) the needs of the minor children, if any, of the marriage; and subject to those considerations, the court may divide the assets or the proceeds of sale in such proportions as the court thinks reasonable; but in any case the party by whose effort the assets were acquired shall receive a greater proportion. Case: Re Heng Peng Hoo & Anor  The judge decided to order a lump sum payment to the applicant wife instead of dividing the assets or proceeds of sale of the asset.

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His lordship found as a fact that the house in question was purchased by the sole effort of the respondent husband, because, inter alia , the applicant had not shown that she actually contributed to the subsequent costs of maintenance and renovation of the house The respondent had been repaying the bank loan for the house, and he had paid the down payment too. The wife’s application under s.76(1) failed. Under ss (3) and (4), the learned judge found that the app. did render her domestic services to the husband and towards the welfare of the family. As a mother, she had looked after the children and brought them up. Her contributions in these forms were acknowledged; however, the learned judge chose not to order division of the house or the sale of the house and division of the proceeds thereof, ‘for to do so will be inequitable and cause grave hardship to the resp.’. After viewing the facts including the fact that the house was the only property the resp. could afford, that he continued to pay instalments, that the custody of the children was given to him and the children were still living with him in the house, that the applicant had a house of her own and was financially well off, the learned judge ordered a lump sum payment of RM10,000 be made by the resp. to the applicant.

Case: Chin Yook Woy v Loke Suat Choo  The issue was whether or not the house acquired during the marriage by the sole effort of the petitioner husband was matrimonial asset within the meaning of s.76(3) read together with s.76(4).  The learned judge found that the house did not belong to the resp., although it was transferred to her name, but was held by her as a matrimonial asset.  The transfer was a devise to enable her to utilize her government housing loan of RM32,000.  The resp. had sold the house for RM150,000 and the petitioner claimed a half share of the proceeds of sale of that house.  The learned judge thought that this was fair and reasonable and allowed the application. Case: Lim Kuen Kuen v Hiew Kim Fook & Anor  The issue was whether Employees Provident Fund (EPF) contributions and the gratuity were matrimonial assets.  The learned judge rules that the EPF and gratuity payments are matrimonial assets, that is, assets acquired during the marriage by the sole effort of one party to the marriage. Case: N v C  The house which the petitioner wife and respondent husband lived in from 1983 was purchased in 1979 and registered in the names of the resp. and his mother.  The learned judge held that the undivided half share of the house derived from the deceased mother was not subject to division as it was a gift by his mother to her son.

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Regarding the other undivided half share, his Lordship observed that since the resp. had to repay the loan taken to pay for the house, this repayment would have deprived the petitioner of certain benefits and forced her to make sacrifices, culminating in her physical contributions towards the running of the home. His lordship then went on to discuss the monetary expenditure for household expenses and concluded that the petitioner being an income earner would have contributed to the household maintenance. The learned judge ordered that the petitioner be given half of the undivided half share of the house. It would appear from this case that ‘joint efforts’ are not confined to monetary contributions only. They may include, like in this case, one party’s sacrifices and deprivation of benefits which enable the other to acquire the property.

Case: Lim Beng Cheng v Christopher Lee Joo Peng  The court ruled that if the property in question was acquired through sole efforts of the resp. it is mandatory that it should give a greater proportion of it to him.  S76(4) mentions that ‘in any case the party by whose efforts assets were acquired shall receive a greater proportion’.  The petitioner attempted to persuade the court to grant a greater proportion of the property to her by asserting, inter alia, the financial standing of the petitioner; the fact that she had no other asset; the fact that she had not sought substantial maintenance for herself; and the fact that the resp. had committed adultery.  The court, however, ruled that it could not take into consideration all these factors as s.76(4) is exhaustive when it says ‘the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring the family’ are the factors the court should consider.  After considering the petitioner’s contribution to the home and family, the court felt that a one-third share of the proceeds of sale of the matrimonial home would be a fair and equitable apportionment.  Since the resp. was prepared to give a half share of the proceeds of the sale, the court order accordingly.

Application (sendiri goreng juseyo hahaha)...