Judgement from the Appellate Division of the High Court was granted in favour of our client on 18 November 2024. On appeal, the Appellate Court found in our client’s favour, and increased our client’s (Husband) share of the assets from 55% (at the original High Court first instance level) to 65% (at the appeal level). Of this increase, 5% was due to us managing to convince the Appellate Division to revisit the prevailing legal position regarding co-mingled pre-marital assets, which is especially significant.
Part of the pool of matrimonial assets consisted of our client’s pre-marital assets. However, while our client was able to show that he owned significant pre-marital assets, he was not able to produce evidence showing exactly what had become of his pre-marital assets over the course of the entire marriage. Ordinarily in such cases those pre-marital assets would be considered co-mingled into the pool, and divided normally – a bad outcome for wealthy persons entering a marriage. This was exactly what happened in the original High Court hearing; the Judge held that our client was unable to show at an evidentiary level what had become of his pre-marital assets, and so declined to give any special consideration to our client’s pre-marital assets.
However, we managed to successfully convince the Appellate Division to revisit the prevailing legal position. The Appellate Division cited policy considerations in support of its decision, reasoning that the state of affairs prior to this decision was unsatisfactory as it encouraged married couples to be calculative and keep meticulous records – which is not what marriage should be. Hence the Court gave our client an additional 5% of the pool in recognition of his pre-marital assets notwithstanding that it had been co-mingled with the marital assets proper.
61 Had the Husband kept records of transactions and transfers throughout the marriage or kept his pre-marriage moneys separate from marital funds, he might have been in a better position to prove which assets were pre-marriage assets. But such behaviour is not what should be encouraged in marriage. Sad is the day when married couples keep records or organise their affairs in ways that will put them in a better financial position in the event that the marriage ends in divorce.
62 The Husband’s conduct in this respect is consistent with the ideals of mutual cooperation to safeguard the interests of the union and to care and provide for the children as required by s 46 of the Charter. It seems ironic in the context of s 46 and s 112 of the Charter that a party who provides for the family in ways that are not calculative and consequently does not keep records of movements of his assets during marriage may be worse off financially in the event of a divorce than a party who ringfences assets from the matrimonial estate.
63 We are of the view that in determining the proportions of division, the court should have regard to the circumstances of the Husband commingling his substantial pre-marriage assets with the marital assets, which impacts the very subject matter of division in s 112 of the Charter.
Partner Clement Yap was the lead counsel. He was assisted by Associate Charis Sim.