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TOF v TOE [2021] SGCA 80

Outcome: Appeal dismissed

Facts

1 The Husband appealed against the High Court Judge’s decision on the division of assets, maintenance of the Wife and Child, and care and control of and access to the Child. Before the High Court, the Husband claimed that he had “no assets at all”, but was found to have failed to provide full and frank disclosure of the extent of his assets. The High Court Judge ultimately arrived at an average ratio of division of 36.5:63.5 in the Husband’s favour, but awarded the Wife $4 million as a reasonable figure, taking into account the sum of $5 million claimed by the Wife as her share of the division of assets.

Court’s Decision:

2 The Court of Appeal dismissed the Husband’s appeal and upheld the High Court’s decision to award the Wife $4 million as her share of the matrimonial assets, but for different reasons.

3 In dividing the matrimonial assets, the focus is on achieving a just and equitable division of the material gains of the marital partnership, by identifying and valuing the matrimonial assets. Normally, the court will draw ordinary inferences in its assessment of the evidence submitted by parties, upon evaluating its reliability: at [61] and [62].

4 In the identification and valuation of matrimonial assets, full and frank disclosure is critical, and it is not for parties to tailor their disclosure to suit their purposes. If full and frank disclosure is not made, adverse inference may be drawn as a response to the blameworthy conduct. However, not every gap in disclosure leads to the drawing of an adverse inference, as parties in functioning marriages may not always keep detailed records or be able to recall specific transactions: at [64] and [65].

5 Adverse inference is typically given effect either by the quantification or uplift approaches set out in UZN v UZM [2020] SGCA 109 at [28]. Values of certain assets may be included into the pool when a party expended substantial sums when divorce is imminent without the other party’s consent.  For the latter, the focus is on lack of consent by the other party for the use or diversion of funds, rather than concealment of assets through blameworthy conduct: at [66] to [69].

6 Upon identifying each undisclosed asset, an attempt should be made to assign their values based on whatever little available evidence to find a tentative aggregate amount, unless the evidence is so scarce that doing so would be useless. A specific percentage or amount should then be added to that tentative aggregate amount to account for the adverse inference drawn against the non-disclosing party: at [78].

The full text of the decision can be found here.

This summary is provided to assist the public to have a better understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

2022/07/22

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