FLP 5 - Division of Assets PDF

Takeaways The court has the power to order the division of matrimonial assets in a just and equitable manner. The division of assets takes into account both financial and non-financial contributions of the parties. Full and frank disclosure is crucial in matrimonial ancillary matters proceedings....

Takeaways The court has the power to order the division of matrimonial assets in a just and equitable manner. The division of assets takes into account both financial and non-financial contributions of the parties. Full and frank disclosure is crucial in matrimonial ancillary matters proceedings. Matrimonial assets include assets acquired during the marriage by either party\'s efforts. Pre-marital assets, gifts, and inheritance can be converted into matrimonial assets under certain conditions. A just and equitable division of assets considers the parties\' contributions and other relevant factors. The division of matrimonial assets in divorce proceedings is guided by the principle of a just and equitable division. The ANJ structured approach, which considers both direct and indirect contributions, is commonly used to determine the division proportion. Factors such as the length of the marriage, size of the asset pool, and third-party rights can affect the division. Full and frank disclosure of assets is essential, and failure to disclose can result in adverse inferences and consequences. Marital agreements and consent orders can have weight in the division process, but they are not enforceable in and of themselves. Practical considerations, such as affordability and regulatory restrictions, should be taken into account when determining the division. Other ancillary matters, such as children\'s issues and spousal maintenance, can be addressed alongside the division of matrimonial assets. Andrew Yip (00:00.984) Welcome to Private Client Practice, Family Law. Today, we\'ll be looking at the Division of Matrimonial Assets. Andrew Yip (00:15.086) For this division of matrimonial assets module, we have some core objectives that we would like you to know of. Candidates should be able to firstly identify and apply the relevant principles in relation to the identification of and division of matrimonial assets. Second, candidate should be able to identify the relevant factors that the court will take into consideration when dividing matrimonial assets. Third, candidates should be able to identify relevant case law authorities, setting up guiding principles when dividing matrimonial assets. And lastly, identify relevant case law authorities on the power that the court has against the party who has failed to make full and frank disclosure in the ancillary matters proceedings. The first place to begin would be Section 112 of the Women\'s Charter. Section 112 is located within Part 10 of the Women\'s Charter, which contains the law on divorce proceedings. You had earlier seen how divorce is broken into two stages. The divorce stage that deals with the irretrievable breakdown of marriage and the ancillary matters stage. As part of the ancillary matters, the parties would have to resolve the division of matrimonial assets, maintenance, and also the children\'s issues. Section 112, subsection 1 of the Women\'s Charter provides that the court shall have power to order the division between the parties of any matrimonial asset in such proportions as the court thinks just and equitable. Andrew Yip (02:10.688) A division regime can provide for more specific directives or more open directives. With regards to more specific directives, there are many common law jurisdictions that start from equal division, such as UK, Hong Kong, and New Zealand, et If we take a closer look at the origins of the ancillary power to divide matrimonial assets upon divorce in the Women\'s Charter, such law was statutorily created in 1980 when the Legislative inserted the former Section 106 into the Women\'s Charter. The previous Section 106 of the Women\'s Charter provided that for assets acquired during the marriage by the parties\' joint efforts, the court was to incline towards equality of division. However, for assets acquired during the marriage by the sole effort of one party, the court was to award a greater proportion of the asset to the party whose financial efforts led to the acquiring of the asset. There were also certain prescribed factors in Section 106. that the court had to take into account when arriving at reasonable division pursuant to the specific directives. In 1996, Section 106 was reformed and the current Section 112 was enacted. Given that the law of division of matrimonial assets is statutorily made law, no other jurisdiction has provisions that are in pari materia with Section 106 or Section 112 of the Women\'s Andrew Yip (04:09.774) There were certain key differences between the two provisions. The first is that the Section 112 has a much broader directive that asks the court to divide the matrimonial assets in just and equitable proportions, taking into account all relevant factors of the case. The second key difference is a move away from the emphasis on financial contributions to the asset with Section 112 allowing the court to consider the non -economic spouse\'s contributions more holistically. Section 112 was also more effective at conveying the long -standing ideology that marriage is an equal cooperative partnership of different efforts as per Section 46A of the Women\'s Charter, which places the legal demand of the spouses to cooperate with each other to safeguard the interests of the marital union. This ideology as applied to the division of matrimonial assets context means valuing both types of contributions, financial and non -financial, towards making the marriage flourish. The Court of Appeal in NK and NL held that the division of matrimonial assets under the Act is founded on the prevailing ideology of marriage as an equal cooperative partnership of efforts. The contributions of both spouses are equally recognised whether he or she concentrates on the economics or homemaking role, as both roles must be performed equally well if the marriage is to flourish. When the marriage breaks up, these contributions are translated into economic assets in the distribution according to section 112, subsection 2 of the Andrew Yip (06:11.98) The idea is that both parties\' efforts led to the amassing of the material assets that the parties now have to split upon the end of the partnership. In other words, the division of matrimonial assets is really the exercise of translating the spouses\' and non -financial contributions into the distribution of economic assets in a just and equitable manner. In order to achieve just an equitable division between the spouses, it is important for the courts to apply a broad brush approach in arriving at the ratio of division. The broad brush approach provides that the court will exercise its discretion to divide matrimonial assets in broad strokes, given that it is impossible to particularize or prove evidentially every single contribution each party has made in all their years of marriage. The broad brush approach was first introduced in NK and NL and most lately affirmed by the Court of Appeal in ANJ and ANK as well as UYP and As mentioned earlier, the division of matrimonial assets is an ancillary power, meaning there is a power to be exercised ancillary to the divorce. As such, the courts will only proceed to divide assets after the first stage of divorce has been completed and the courts have determined that the marriage has irretrievably broken down, pursuant to sections 95, and 95A of the Women\'s Charter. Andrew Yip (08:08.366) In the past, it was only upon a local divorce being granted would the local courts then have the jurisdiction to make orders on the financial and non -financial ancillary matters issues. However, with the enactment of Chapter 4A in 2011, Singapore courts can now make financial ancillary orders upon the grant of a foreign divorce. Chapter 4a has the purpose of allowing persons who are sufficiently connected to Singapore as a jurisdiction to seek financial relief where the foreign court which granted the divorce did not adequately provide the same. The Court of Appeal in UFN and UFM mentioned that Chapter 4a would help the groups of people who are made vulnerable by foreign divorces and who have a relevant connection to Singapore seek relief. Do note that the application for financial relief pursuant to a foreign divorce under Chapter 4A is a two -stage process with the first stage requiring the applicant to obtain leave of After leave is granted, the applicant can then move on to the second stage and make a substantive application for the relevant financial relief. As mentioned earlier, the prevailing ideology of marriage pursuant to Section 46A of the Women\'s Charter is that marriage is a partnership of different efforts for mutual benefit. Applied to the division of matrimonial assets context, this calls for the recognition of both the economic and non -economic roles played by the spouses. For instance, Andrew Yip (10:12.064) If one spouse was not at home taking care of the household and the children, the other spouse would not be able to concentrate on his or her job and would not be able to amass the marital assets that he or she did. Therefore, the matrimonial assets were accumulated by the party\'s joint efforts towards the marriage and should be split in a manner that reflects their contributions, financial, or otherwise. It is important to note that the duty of full and frank disclosure is particularly relevant in matrimonial ancillary matters proceedings. Why is this A key aspect of family proceedings is that the proceedings mostly take place in chambers where the evidence presented to the court is usually in the form of affidavits and not tested by cross -examination. As mentioned by the Court of Appeal in USB and USA, cross -examination tends to prolong and exacerbate the bitterness between the parties. which should be avoided as much as possible in the matrimonial proceedings context. Andrew Yip (11:34.966) In the absence of cross -examination, it is difficult to determine many of the matters evidencing a party\'s contributions to the marriage. There will be much greater reliance on affidavit evidence and the party\'s written submission. In light of these procedural adaptations inherent in ancillary matters proceedings, each party\'s duty of full and frank disclosure takes on greater significance. A failure to disclose may result in adverse inferences being drawn against the non -disclosing party. For instance, let\'s say there is a discovery order ordering the husband to disclose the assets held in his Swiss bank accounts, yet he refuses to do so and refuses to provide any justification for why he\'s not complying with the discovery order. In the appropriate circumstances, the law allows the court to draw an adverse inference against the husband and infer that he indeed has undisclosed assets sitting in those Swiss bank accounts that may form part of the matrimonial asset pool. The latest seminal case on the drawing of adverse inferences, pursuant to a party\'s failure to comply with the duty of full and frank disclosure, is the case of UZM and UZM, which we\'ll touch on in further detail later in the seminar. Andrew Yip (13:17.665) The division of matrimonial assets exercise is broken into two steps. The first step is the identification of matrimonial assets. And the second is to effect just an equitable distribution of the identified pool of matrimonial assets. At the first stage, it is important for us to determine what is a matrimonial asset. that is liable to be divided by the court\'s power. The aim is to identify the assets most closely connected to the marital partnership and the parties\' efforts during the marriage that led to them being These are the assets that would be the most just to divide between the parties at the end of the partnership to reflect their efforts throughout the course of the marriage. The starting point would be section 112, subsection 10 of the Women\'s Charter, which provides a definition of matrimonial Andrew Yip (14:34.093) Zooming in on Section 11210 of the Women\'s Charter, you will see that there are several parts contained in this provision. First, there is part section 112.10 subsection A, which covers pre -marital assets and how they may be converted to matrimonial assets. Section 112, 10 subsection A, provides two ways in which premarital assets acquired before the marriage may be converted into matrimonial assets through ordinary use by the family or substantial improvement by the other party or both the parties to the marriage. Section 112, 10 subsection B, covers quintessential matrimonial assets. What do we mean by quintessential? There is no doubt that anyone would have a problem including these assets into the matrimonial pool, for they are so closely connected to the marriage. They were acquired by either or both parties\' efforts. during the marriage. Andrew Yip (16:02.583) So how do we determine the timeframe for what constitutes during the marriage that will allow us to determine what are quintessential matrimonial assets? This is otherwise known as the cut -off date or the operative date for identifying the matrimonial asset. Andrew Yip (16:26.977) The Court of Appeal, in the case of BPC and BPB, affirmed the Court of Appeals holding in ARY and ARX that the default operative date for matrimonial assets to be identified is at the date of interim judgment of divorce. This is the court document granted at the completion of the first stage of divorce. on the irretrievable breakdown of marriage. The Court of Appeal also held in those cases that the matrimonial assets are to be valued as at the date the which are to be taken as at the interim judgment date as the matrimonial assets are the monies in the accounts rather than the accounts themselves. There are four possible dates for identification of the pool of matrimonial assets, meaning that there are four possible operative cut -off dates. These four dates would be the date that the parties separated, the date the writ of divorce was filed, the date the interim judgment of divorce was granted, which as mentioned earlier is the default position, and lastly, the date Andrew Yip (18:04.447) of the ancillary matters hearing. The starting point or default position for identification of matrimonial assets is the date of interim judgment unless the particular circumstances of the case justify a departure from the default position. Now let\'s look at the bottom part of Section 112, subsection 10 that covers gifts. That somewhat hanging section provides that matrimonial assets do not include any asset, not being a matrimonial home that has been acquired by one party at any time by gift or inheritance. and that has not been substantially improved by the other party or both parties to the marriage. This means that gifts and inheritances are generally not considered to be matrimonial assets, as neither spouse exerted efforts during the marriage to obtain the gifted or inherited asset. However, there are two ways to transform gifts and inheritance into matrimonial assets. First, if they were used as the matrimonial home whenever and however acquired, and second, if they were substantially improved by the other party or both parties to the marriage. Andrew Yip (19:49.217) The case of VOD and VOC touches on what constitutes a matrimonial home, whereas CLC and CLB expounds on the legal principles regarding the conversion of gifts and inheritance into matrimonial assets. The cases of Chen Xiaohui and Wanlai Cheng are important decisions in this area of law. And both of these cases were addressed by the Court of Appeal in CLC and Andrew Yip (20:28.577) This slide covers some of the practical advice that you may wish to provide to your client on what constitutes matrimonial assets. Lay persons generally have the misconception that as long as the asset acquired during marriage is in their sole need and solely paid for by them, it should not be considered a matrimonial asset liable for division. This is wrong. It does not matter whose name the asset is in or who paid for it. As long as the asset was acquired during the marriage by either of the spouses\' efforts, it is a quintessential matrimonial asset liable to be divided under Section 112, 10, Subsection B of the Women\'s Charter. Further, when it comes to the practicalities of division, it is the value of the matrimonial assets that belong to the husband and the wife that are most important. What do we mean by this? For example, if there is a net amount of a million dollars in matrimonial assets comprising of a HDB flat, 600k, a car, 300k, and cash and bank accounts, 100k, and it has been determined by the court that a 50 -50 split is just an equitable Andrew Yip (22:21.281) The court will not cut each asset into The eventual division will look at the value of the matrimonial assets that both parties have been awarded, that is 500k each, and division will be affected whereby each party walks away with 500k worth of assets in value. If party A has been awarded the HDB flat worth 600k, party A will then have to pay \$100 ,000 to Party B for his share in the HDB flat and Party B may then get to keep the car worth \$300 ,000 and all the cash in the bank accounts worth \$100 ,000 will be kept or transferred to Party B to make up the \$500 ,000 worth of matrimonial assets that Party B has been awarded under the Just and Equitable Split. determined by the courts. The prevailing law on identifying matrimonial assets may be found in two recent Court of Appeal cases, USB and USA, and CLC and Let\'s first look at USB and USA. The Court of Appeal adopted a purposive approach and identified four categories of matrimonial assets pursuant to Section 112, subsection 10 of the Women\'s Charter. The first category is for quintessential matrimonial assets under Section Andrew Yip (24:14.251) Subsection B and the matrimonial home whenever and however acquired. The entire value of quintessential matrimonial assets goes into the matrimonial assets pool for division. The second category is for transformed premarital assets, which are premarital assets that meet either of the two limbs. in Section 11210, Subsection A on ordinary use or substantial improvement. For these transformed pre -marital assets, the entire values go into the matrimonial pool. The third category is for pre -marital assets that do not fulfil either of the two limbs in section 112, 10 subsection A and thus remain untransformed. For these assets, only the portion paid for during the marriage goes into the matrimonial assets pool. This category is most relevant for pre -marital assets like property, where the down payment and purchase occurred before the marriage, but the payment of the money mortgage fees occurred during the marriage. The portion of the monthly mortgage repayments that were made during the marriage are actually matrimonial funds that go into the matrimonial assets pool for division. Andrew Yip (26:03.245) The fourth category is for gifts or inheritance. If transformed by fulfilling either of the two limbs in the hanging portion of section 112, subsection 10, by being used as a matrimonial home or substantial improvement, the entire value of the transformed gift or inheritance goes into the matrimonial assets pool for division. It may also be possible to discount the portion of the matrimonial asset that is not as closely connected to the marriage. For example, the premarital value of the asset or even the gifted portion of the asset. An example of discounting may be found in the case of TNC and TND. Discounting would allow us to identify the material gains most closely connected with the marriage and that can justly and equitably be considered matrimonial assets liable for division between the parties upon the breakdown of their marital partnership. Next, we have the seminal case of CLC and This is an essential Court of Appeal decision on the legal principles regarding the conversion of gifts and inheritance into matrimonial assets. In particular, whether to give effect to a Doni spouse\'s intention. Andrew Yip (27:54.603) What do we mean by Adoni Spouser\'s intention? There could be situations where a gift or inheritance from a third party to a recipient spouse is then gifted by that recipient spouse to the other spouse. In such situations, the spouse who received the gift or inheritance from the third party is referred to as the Doni spouse. In CLC and CLP, the Court of Appeal gave effect to Adoni\'s spouse\'s intention as an additional way to convert these assets into matrimonial assets. It noted that ownership of assets falling outside of Section 112, subsection 10 of the Women\'s Charter may be determined with reference to general property law principles involving intention. The court can give effect to a Doni spouse\'s intention to give the third party gift or inheritance to the other spouse, thereby making it a regift to be excluded from the matrimonial pool. The court can also give effect to a Doni spouse\'s intention to bring the third party gift into the family estate. Andrew Yip (29:33.727) and thus incorporated into the matrimonial assets pool for division. So end of this portion on identification of matrimonial assets, let\'s go through what are some common matrimonial assets that may fall into the matrimonial assets pool. For immovable property, this could include homes, business premises, commercial properties, or any other residential or investment properties. For businesses, this could include equity or shares in companies and partnerships. Jewelry would also form part of the matrimonial assets pool and examples of jewelry would include a watch collection or even luxury bags. Anything not of de minimis value could also be considered matrimonial assets and included in the matrimonial assets pool. This would include insurance policies, shares, unit trusts, cars, savings, fixed deposits, and CPF balances. For the avoidance of doubt, matrimonial assets Andrew Yip (31:05.343) overseas assets as well or assets that are held on trust by another We have gone through the first stage of the exercise on identification of matrimonial assets. Let\'s now move on to examine what just and equitable division comprises under Section 112, Subsection 2 of the Women\'s Charter. This provision is understandably very broad and allows the court to take into account all the circumstances of the case, including the matters listed in the provision. The list in section 112, subsection 2 is not exhaustive. And reading the relevant case law will allow you to have a sense of which factors are more essential in arriving at a just and equitable division of the matrimonial assets. The starting point for the courts would be to look at the parties\' and non -financial contributions to the marriage. You would recall that the previous Section 106 of the Women\'s Charter placed an emphasis on financial contributions. Andrew Yip (32:35.373) This was replaced with the more holistic sections 112, subsection 1 and 2 in 1996 that broadened the analysis to other non -financial factors as well. The cases on the slide emphasise the importance of the party\'s contributions in determining just an equitable division. They also make clear that there is no default starting point of equal division in our jurisdiction. In the case of NK and NL, the Court of Appeal held that in attributing contributions in the division of matrimonial assets exercise, there are two distinct methodologies which are still adopted today. The first would be the global assessment methodology, which requires a calculation of the net value of all matrimonial assets, followed by a just and equitable division ratio in light of all the circumstances of the case. The second methodology is the classification methodology. This requires a separation of the matrimonial assets into classes with individual apportionments for each class. Do note that the indirect contributions to be applied across all classes of assets remains constant. Section 112 of the Women\'s Charter directs the court to divide the assets in a just and equitable manner. While this is a very broad directive, the trends in recent decisions provide us with guidance on the likely proportions of division in similar Andrew Yip (34:44.353) The seminal case on the division of matrimonial assets in just and equitable proportions is ANJ and ANK, which sets out a three -stage structured approach that takes into account the party\'s direct financial contributions as well as indirect contributions, which could be financial or non -financial. Direct contributions refers to financial contributions directly made towards the acquisition of the matrimonial asset, whereas indirect contributions refer to non -financial efforts such as homemaking and caregiving, and also include indirect financial contributions such as the payment of household expenses and children expenses, et cetera. Beginning with the first step, lawyers are to express as a ratio the party\'s direct contributions relative to each other, having regard to the amount of financial contribution each party made towards the acquisition or improvement of the matrimonial assets. Thereafter, at the second step, lawyers are to express as a second ratio the party\'s indirect contributions to the marriage relative to each other, having regard to both financial and non -financial contributions. And lastly, lawyers will then derive the party\'s overall contributions relative to each other by taking an average of the two ratios above, keeping in mind that depending on the circumstances of each case. the direct and indirect contributions may not be accorded equal weight. And one of the two ratios may be accorded more significance than the other. The ANJ structured approach, as it is now known, allows the courts to place equal emphasis on the financial and non -financial contributions of the parties to arrive at a just and equitable Andrew Yip (37:11.691) division proportion. Other relevant considerations which may be taken into account at the third step of the ANJ structured approach include the fact that indirect contributions tend to feature more prominently in long marriages, the fact that direct contributions would command greater weight where the pool of matrimonial assets was extraordinarily large. And all of the matrimonial assets were accrued by one party\'s exceptional efforts. And lastly, courts tend to lean in favor of homemakers who have painstakingly raised children to adulthood at the expense of their careers, as opposed to the engagement of a domestic helper who would lessen the responsibilities of homemaking. Let\'s now look at some of the developments post the Seminole ANJ and ANK case. Andrew Yip (38:20.159) In the case of UIQ and UIP, we see the Court of Appeal applying the ANJ structured approach in long marriages. In the case of ATE and ATD, the Court of Appeal applies the ANJ approach in short marriages. Andrew Yip (38:44.885) A very important case would be TNL and TNK, where the ANJ approach was not applied in long single income marriages, where the courts are found to generally incline towards equal division to recognise the Homemaker Party\'s longstanding effort. Lastly, the case of DBA and DBB by the appellate division of the High Court provides guidance on how to differentiate between single and dual income marriages. There are also some useful trends that guide us on the general proportions of just an equitable division. The first resource would be an article by Lim Hui Min, which actually analyzes trends in the division of matrimonial assets split. Secondly, court of appeal decisions in respect of long marriages tend to hover at equal division. or at most a 10 % deviation from equality. For example, equal division in Lok Yang Fung, even though there is no such equal division norm. Lastly, there is also the more recent Court of Appeal case of BOR and BOS, where the Court of Appeal engages in a detailed analysis on division trends. In terms of trends, indirect contributions would usually be greater in longer marriages, and the courts have tended to incline towards equal division, that is, with a 40 % 50 % split for homemakers in such cases. Andrew Yip (40:47.383) To the contrary, in short marriages with no children, the court usually places more focus on direct financial contributions, and the awarded split is usually quite close to the direct contributions ratio. The court, in the recent case of WGE and WGF, conducted a comprehensive analysis of the case law on indirect contributions that was then applied in the case of WQR and Andrew Yip (41:26.017) Both these cases provide candidates with a very good sense of the case precedence on the direct contributions ratio. One key feature that affects the division proportion is where there is a massive matrimonial asset pool acquired by one party\'s very exceptional contributions. The case of Yeo Chong Lin represents an exceptional situation because we know that the courts usually tend towards equal division in long single income marriages. The marriage in Yeochong -lin lasted 49 years with a matrimonial asset pool amounting to \$69 million. The courts noted that the husband in Yeochong -lin had unusual drive and energy and made extraordinary contributions to the family fortunes. In light of this, the courts awarded the husband a 65 % split despite this being a long single income marriage. The You Chong Lin situation is still relevant today when the courts are dealing with exceptionally large matrimonial polls that are acquired by one party\'s sole efforts. Andrew Yip (43:01.741) This slide presents a summary of common features that affect the division proportions. The most prominent feature would be the length of marriage, as that will affect the party\'s contributions towards the marriage. As we have seen, in long marriages, the courts tend to incline towards equal division within a 40 to 60 % range. In short marriages, the courts tend to focus on direct financial contributions. We have also seen how the size of the matrimonial asset pool can lead to a greater emphasis on a party\'s direct financial contributions. Where there is a total failure by one spouse in carrying out his or her role and also gross misconduct, such as the poisoning of the other spouse, These factors can affect division as Andrew Yip (44:07.141) You will find that the notion of just and equitable requires the adjudicating judge to exercise a significant degree of discretion. It is often the case in matrimonial matters that there is no absolutely clear right or wrong answer. When the appeals court looks at what has been decided by the first instance court, the Intervention threshold is high. There could be many ways to skin a cat. And as long as that particular decision takes into account the relevant factors and the judge below is not exercising his discretion in a plainly erroneous or legally wrong manner, the appeals court is unlikely to intervene. In fact, the case of TNL and TNK provides that there is clear interest in encouraging the parties to move on to face the future instead of re -fighting old battles. Appeals will not be sympathetically received where the result is a potential adjustment of the sums awarded below that works out less than 10 % Andrew Yip (45:35.693) Where the potential adjustment is less than 10%, this could result in cost consequences for the appealing party. Andrew Yip (45:48.531) As mentioned earlier in this seminar, both parties are under a duty to make full and frank disclosure of their means and assets. The court is not powerless against a party who has failed to make full and frank disclosure of his or her means and assets. We had earlier seen why the duty of full and frank disclosure is so essential in matrimonial proceedings where the veracity of the evidence is not tested against cross -examination. The court is empowered to draw an adverse inference against a party who fails his duty of full and frank disclosure. Candidates need to be aware of how the courts will put into effect and apply the adverse inference being drawn. Andrew Yip (46:53.825) The two recent cases of BPC and BPB, as well as UZN and UZM, are instructive. There are two ways in which an adverse inference will be applied. The first is where the courts adopt a quantification approach. This is where the court could make a finding on the value of the undisclosed assets based on the available evidence and include that value in the matrimonial poll. The second approach is the uplift approach, where the court may order a higher proportion of the known assets to be given to the other party. The Court of Appeal in UZN held that an adverse inference may be drawn where a. There is a substratum of evidence that establishes a prima facie case against a person whom the inference is to be drawn and b. That person must have had some particular access to the information he or she is said to be hiding. There was an acknowledgement that parties in a functioning marriage may not always keep fastidious records, and it is understandable that they may genuinely be unable to recount past transactions during the course of the AM proceedings. Andrew Yip (48:31.233) The Court of Appeal in UZN found that, for a closer look at the husband\'s cash flow. As mentioned earlier, there are generally two ways in which the court can give effect to an adverse inference drawn against a non -disclosing party. There is the quantification approach, where the court tries to quantify the undisclosed assets based on the available evidence, and the uplift approach, where a higher percentage of the known assets is given to the other So then, how do the courts decide which approach is more appropriate to apply in a specific case? Andrew Yip (49:46.305) The Court of Appeal in UZN held that the court should adopt the method it considers most appropriate in achieving a just and equitable result. The preferred approach should enable the court to most appropriately reach a just and equitable division of the true material gains of the party\'s marriage. This is the objective of the Division of Matrimonial Assets exercise, as we saw in the case of NK and NL, as well as BPC and Andrew Yip (50:26.975) It is also important to take note of third -party rights to certain matrimonial assets. The case of UDA and UDB provides clarification on the jurisdiction of the Family Justice Courts with respect to third -party rights in alleged matrimonial assets. Section 112 of the Women\'s Charter, which gives the Family Justice Court\'s jurisdiction to divide matrimonial assets in divorce proceedings, only permitted the Family Justice to determine the division of matrimonial assets as between the divorcing spouses. Section 112 did not confer on the Family Justice Court the jurisdiction to determine the rights of third parties in alleged matrimonial assets or to affect a third party\'s interests in such assets by ordering them to be sold or transferred. If a third party wishes to actively assert his or her rights to the property, he or she should commence independent proceedings against either or both the spouses and apply to intervene in any ongoing Section 112 proceedings so as to request the stay of the Section 112 proceedings pending determination of the independent proceedings. If the third party is not actively asserting his or her property rights, the appropriate approach depends on whether the disputed property was legally owned by a third party, but one or both of the spouses claimed it was held on trust for them. This would be situation A. Or the disputed property was in the name of one of the spouses. Andrew Yip (52:34.039) but such spouse claimed the asset was held on trust for a third party, the shadowy figure in the wings, and hence could not be a matrimonial asset. This is classified as situation Andrew Yip (52:50.809) The Court of Appeal in UDA and UDB held that there were four possible options depending on the acts of the third party when dealing with situation A. Firstly, the spouse claiming the property as a matrimonial asset may obtain confirmation from the third party legal owner that the property was indeed a matrimonial asset and extract an undertaking from the owner. to abide by any court order relating to his or her interests in the property. If the third party does not agree to do so, either spouse may commence separate proceedings against the third party, in which case Section 112 proceedings would have to be stayed until the third party\'s property rights are determined separately. The spouse claiming the property is a matrimonial asset may also consider dropping his or her claim. Andrew Yip (53:59.829) Lastly, the spouse may ask the Family Justice Court to determine whether the property was a matrimonial asset but without involving the third party or making an order directly affecting the property. In situation B, the situation where the third party is a shadowy figure in the wings, the parties could also use the last option and ask the Family Justice Courts to determine whether the property is a matrimonial asset. But the same concerns applied because the third party is not bound by the Family Justice Court\'s decision in the Section 112 proceedings on the ownership of the property. Andrew Yip (54:49.517) You may recall from earlier in this seminar that it is the duty of the court to have regard to all the circumstances of the case in arriving at a just and equitable division, including the following matters listed in section 112, subsection 2 of the Women\'s Charter. One of the factors in section 112, subsection 2 that the court should consider is any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce. This provision covers all forms of marital agreements between the parties relating to the division of matrimonial assets in contemplation of divorce. For example, prenuptial agreements, postnuptial agreements, separation deeds, or settlement Andrew Yip (55:58.807) The seminal case of TQ and TR tells us that pre -nuptial agreements are not void and, in fact, can have critical weight depending on the circumstances of the case. Agreements, both pre and post -nuptial, on how assets to be divided are a relevant factor in the division exercise pursuant to subsection of Section 112.2. Such marital agreements may be given effect too by incorporation into a consent order or court order, but are not enforceable in and of itself. What do we mean by not enforceable in and of Andrew Yip (56:55.425) This means that the court will consider the terms of the marital agreement. If the court finds that the terms are just and equitable, it can give significant weight to the terms by making an order largely reflecting the terms of the marital agreement. In fact, this has been done in a case in the next slide, the Surinder Singh case. There is also a body of law on consent orders made in the financial ancillary matters setting. The cases on this slide expound on this. First of all, what are consent orders? Consent orders are agreed terms that the parties consent to and are thereafter formally recorded in court in the form of a consent Andrew Yip (57:56.535) Consent orders are court orders that are legally binding, and court enforcement mechanisms may be used to secure enforcement. For example, applying for a writ of seizure and sale, or garnishing proceedings, et Andrew Yip (58:16.833) You may wish to read these cases to get a sense of the legal issues relating to the variation and setting aside of consent orders in respect of the division of matrimonial assets. The legal threshold to do so is generally quite high, as there is the interest of finality of proceedings to uphold. Andrew Yip (58:45.069) To sum up what we have learned in this seminar, this is a summary of the practical steps involved in identifying matrimonial assets. To answer the question of what are matrimonial assets, you need to study the client\'s list of assets and identify the relevant matrimonial assets based on section 112, subsection 10 of the Women\'s Charter. and the categories in USB and USA. Next, will need to value the matrimonial assets with reference to supporting documentation provided by the client. Lastly, will need to calculate the net value of matrimonial assets to determine the value of the matrimonial assets pool. To do this, you would have to take the total value of all matrimonial assets minus any debts and liabilities the parties may Andrew Yip (59:54.423) This next slide is a summary of the practical steps involved in dividing matrimonial assets in a just and equitable proportion. you would have to first classify the marriage. Is this a single or dual income marriage? If it is a single income marriage, you will have to look at case precedents and analyze case trends to arrive at a just and equitable division proportion. These case precedents usually emphasize the length of the marriage as the key factor. In particular, the court usually inclines towards equal division in long single income marriages. Andrew Yip (01:00:45.961) If the marriage is a dual income one, you would have to apply the ANJ structured approach consisting of three steps. The first step will be to calculate the ratio of the party\'s direct financial contributions to the matrimonial assets relative to each other. The second step would be to calculate the party\'s indirect contributions to the marriage relative to each other. And lastly, you would have to consider at the third step whether to make any adjustments to the average ratio. Some practice tips include considering practical ways to achieve division, discussing possible outcomes and practical issues with the client, for example, whether the client can afford the mortgage if he or she retains the matrimonial property, and lastly, checking if desired options are feasible with HDB and CPF in accordance with their regulations. and restrictions. Andrew Yip (01:02:05.973) In this seminar, we have covered the ancillary matters issue of the division of matrimonial assets. There are two other ancillary matters issues, the children\'s issues and maintenance of child and ex -wife or incapacitated husband. These issues are usually addressed along with the division of matrimonial assets at the final ancillary matters hearing. To round off your understanding, there are also certain applications for legal relief that can be taken out independently of divorce. In other words, these court powers are not ancillary to a divorce and can be exercised without divorce proceedings being Andrew Yip (01:02:57.997) First, there is an application for spousal maintenance that can be taken out either by a wife or incapacitated husband in an existing marriage under Section 69 of the Women\'s Charter. Second, a spouse also has the option of applying for protection orders to protect themselves against family violence. under section 65 of the Women\'s Third, an application for child maintenance can be taken out by either parent in an existing marriage under Section 69 of the Women\'s Charter. Fourth, an application to determine child custody, care and control, or access can be filed under the Guardianship of Infants Andrew Yip (01:03:58.925) And lastly, spouses can also apply under Section 59 of the Women\'s Charter to decide on property disputes that arise during the marriage in which property law principles will be applied. \#separator:tab \#html:false {{c1::A wife}} or {{c1::an incapacitated husband}} in an existing marriage is eligible to apply for {{c2::Spousal Maintenance under Section 69}} of the Women\'s Charter in Singapore. Ancillary matters in Singapore family law include maintenance for {{c1::children}}, {{c1::ex-spouse}}, and {{c1::incapacitated husband}}. {{c1::Either parent}} in an existing marriage can apply for {{c2::Child Maintenance}} under {{c2::Section 69 of the Women\'s Charter.}} Factors are considered under {{c1::section 112, subsection 2}} of the Women\'s Charter. (a) the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets; (b) any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage; (c) the needs of the children (if any) of the marriage; (d) the extent of the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party; (e) any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce; (f) any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party; (g) the giving of assistance or support by one party to the other party (whether or not of a material kind), including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business; and (h) the matters referred to in section 114(1) so far as they are relevant. The Court of Appeal criteria for drawing adverse inferences require establishing a {{c1::prima facie}} case with evidence and demonstrating {{c2::specific access}} to the hidden information. Multiple approaches are valid in {{c1::asset division}} as long as {{c1::relevant factors}} are considered. Uplift approach and Quantification Approach in considering the s112 factors (a) the extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets; (b) any debt owing or obligation incurred or undertaken by either party for their joint benefit or for the benefit of any child of the marriage; (c) the needs of the children (if any) of the marriage; (d) the extent of the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party; (e) any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce; (f) any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party; (g) the giving of assistance or support by one party to the other party (whether or not of a material kind), including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business; and (h) the matters referred to in section 114(1) so far as they are relevant.