For Want of a Better Title

The Courts have come up with a formula (see AJR v AJS [2010] SGHC 199)
Taken from Singapore Law Watch

[Note: This is just a guide]

The High Court set out a methodology which it used as a rough check on its exercise of discretion in the division of matrimonial assets.

Parties to a marriage may make direct financial contributions to the marriage in different ways, some of which are totally unrelated to the acquisition or maintenance of any identifiable matrimonial asset, eg food, education etc (“direct unattributable financial contributions”) whilst others are traceable to matrimonial assets (“direct attributable financial contributions”). The methodology set out at [26] – [38] of the judgment consists of eight steps. It takes into account the parties’ direct attributable and unattributable financial contributions to the marriage as well as their indirect contributions to the marriage.

Step 1: The notional total net value of the matrimonial assets to be distributed will be ascertained (“S$A”). This consists of the total net value of the matrimonial assets to be distributed (“S$m”) plus the value of any matrimonial asset proved to have been unfairly or unjustly dissipated by a party as well as the value of any matrimonial asset expended by either party for a personal investment in which the other party cannot reasonably have expected to participate in. S$m is the total value, as at the date on which judgment is given on the share of the matrimonial assets to be awarded to each party, of all matrimonial assets which existed on the date of interim judgment, less any outstanding liabilities (eg tax liabilities) which were incurred by either or both parties before the date of interim judgment. If any asset has been sold or liquidated after the date of interim judgment, the net proceeds of sale or liquidation will be used to represent the value of that asset in the calculation of S$m.

Step 2: The total contributions of both parties to the marriage will be apportioned into the percentage total direct contributions of both parties to the marriage (B%) and the percentage total indirect contributions of both parties to the marriage (C%). B% and C% together add up to 100%, being the total direct and indirect contributions of both parties towards the marriage partnership. The ratio of B% to C% depends on the facts of the case and factors such as the length of marriage, number of children in the family, existence of a third party carer, extent of giving of assistance or support to the other party and total amount of time and effort that both parties had spent looking after the welfare of the family may affect the relative weightage or importance of the total direct contribution as against the total indirect contribution of both parties.

The direct contribution of each party to the marriage will be considered separately from the indirect contribution of each party to the marriage at Steps 3 and 4 respectively.

Step 3: The husband’s share of the total direct contribution to the marriage (D%) and the wife’s share of the total direct contribution to the marriage (E%) will be determined. In determining a party’s direct contribution, unless disputed, it will be assumed that the party has applied all matrimonial assets (as defined in s 112(10) of the Women’s Charter (Cap 353, 2009 Rev Ed)) that he or she has received in the course of the marriage to the welfare of the family. This includes that party’s earned salary, other monetary emoluments and other income from business (including stock options earned) and the amount he or she has accumulated in his or her CPF account. D% and E% together should be 100%, representing the total direct contribution of both parties towards the marriage partnership. D% and E% will be multiplied by B% separately to obtain DB% and EB% as the percentage of matrimonial assets which is to be awarded to the husband and wife respectively, arising from his or her direct contribution to the family.

Step 4: The husband’s share of the total indirect contribution to the marriage (F%) and the wife’s share of the total indirect contribution to the marriage (G%) will be determined on the facts of the case. F% and G% together should be 100%, representing the total indirect contribution of both parties towards the marriage partnership. F% and G% will be multiplied by C% respectively to obtain FC% and GC% as the percentage of matrimonial assets which is to be awarded to the husband and wife respectively, arising from his/her indirect contribution to the family.

Step 5: The notional total value of matrimonial assets to be distributed to the husband is the sum of the total percentage of matrimonial assets for distribution which is to be awarded to him arising from both his direct and indirect contributions to the family (DB% + FC%) multiplied by the notional total value of all the matrimonial assets available for distribution (S$A).

Step 6: The notional total value of matrimonial assets to be distributed to the wife is the sum of the total percentage of matrimonial assets for distribution which is to be awarded to her arising from both her direct and indirect contributions to the family (EB% + GC%) multiplied by the notional total value of all the matrimonial assets available for distribution (S$A).

Step 7: The total value of moneys or assets proved to have been unjustly dissipated from the pool of matrimonial assets by one party or expended by that party for the acquisition of personal investment(s) in circumstances in which both parties did not intend the other party to participate in such investment(s) will be deducted from the notional total value of matrimonial assets to be distributed to that party. Assuming the husband has removed S$H worth of assets from the pool of matrimonial assets, the actual value of matrimonial assets which will be distributed to him will thus be [S$A (DB% + FC%) – S$H]. If the wife has removed S$J worth of assets from the pool of matrimonial assets, the actual value of matrimonial assets which will be distributed to her will thus be [S$A (EB% + GC%) – S$J].

Step 8: The final ratio of the value of the matrimonial assets to be received by the husband and the value of matrimonial assets to be received by the wife can be calculated as [S$A (DB% + FC%) – S$H]: [S$A (EB% + GC%) – S$J]. This constant ratio may be applied to the total pool of matrimonial assets actually valued at the total net amount of S$m or to the net value of each and every matrimonial asset if the matrimonial assets are to be distributed individually.

Applying the methodology to the facts of this case, the High Court found that it supported a division of the matrimonial assets in the ratio 20%:80% in favour of the wife, which ratio the High Court had arrived at, independently of the methodology, in its application of a broad brush approach to determining what it felt would be a just and equitable distribution of the matrimonial assets in the present case. The High Court emphasised that the methodology is no more than a useful guide and is not a substitute for the judicial approach to the division of matrimonial assets as set out in NK v NL [2007] 3 SLR(R) 743.

The High Court also ordered that the husband pay the wife a sum of S$2,375 per month for the maintenance of the three young children of the marriage. Additionally, 50% of any lump sum expenditure incurred for the well-being of the children on enrichment classes, hospitalisation charges beyond that covered by medical insurance and visits to an orthodontist was to be paid by the husband to the wife on a reimbursement basis. Any expenditure on a driver, children’s toys, pets, enrichment books (excluding books required as part of the children’s school curriculum) and holidays would not be shared but would be borne by the party who chooses to incur such expenditure.

At AJR v AJS [2010] SGHC 199 at [22] – [38], [62]. To view the judgment, click <here>.

My Simple Example:

Step 1: You own a HDB flat worth $540,000. There are two joint accounts with combined sums of $120,000. There was also an investment (funds) worth about $55,000. This is S$m (total net value of matrimonial assets to be distributed). Let us assume that the husband has dissipated matrimonial asset unfairly or unjustly when he gambled it away at the IRs ($60,000) . So S$A (Notional net value) = $715,000 (S$m) – $60,000 = $655,000

Step 2: [Entirely dependent on Situation]

Let’s say Direct Contributions (B%) make up 60% and Indirect Contributions (C%) 40%

Step 3: [Direct Contributions] Husband’s Share of the Total Direct Contributions (D%): 65%, Wife’s Share of the Total Direct Contributions (E%): 35%

So, DB% = 39% and EB%= 21%

Step 4: [Indirect Contributions] Husband’s Share of the Total Indirect Contributions (F%): 20%, Wife’s Share of the Total Indirect Contributions (G%): 80%

So, FC% = 8% and GC% = 32%

Step 5: Husband’s Share of S$A: DB% + FC% = 47%

Step 6: Wife’s Share of S$A: EB% + GC% = 53%

Step 7: Husband’s dissipation that was unfair or unjust (S$H): $60,000, Wife’s dissipation that was unfair or unjust (S$J): $0

Husband’s Actual Value: (47% x $655,000) – $60,000 = $247,850

Wife’s Actual Value: (53% x $655,000) – 0 = $347,150

Step 8: Husband to Wife’s Ratio: 247,850: 347,150 = 1: 1.4

So the Husband should get $297,916.66, and the Wife $417,083.33. The $0.01 gets eaten by the Math Monster.

P.S.: This does not include maintenance or other costs that may be tacked on to either spouse.

Hope this helps someone.

Hi folks. Thought I’d comment on this seeing as how I have had several encounters with people who were scammed by timeshares. This guide can also work for those who bought packages from beauty or spa companies.

First, not all timeshares are scams, but there are a lot out there that are on the shadier side. I’ve been to a few just to get an idea.

Second, this is merely my opinion, and it may not be a perfect one.

The Law Covering You
Consumers are covered by the Consumer Protection (Fair Trading) Act Cap.52A (Singapore Statutes) [You can obtain a hardcopy at Jurong Regional , Tampines Regional or Lee Kong Chian Reference Libraries under the Reference section, especially if you want to see the regulations]

The Second Schedule of the Act lists out many practices that are deemed unfair, but there can be other practices beyond those listed.

Section 4 of the Act states:
It is an unfair practice for a supplier, in relation to a consumer transaction —

(a) to do or say anything, or omit to do or say anything, if as a result a consumer might reasonably be deceived or misled;

(b) to make a false claim;

(c) to take advantage of a consumer if the supplier knows or ought reasonably to know that the consumer —

(i) is not in a position to protect his own interests; or

(ii) is not reasonably able to understand the character, nature, language or effect of the transaction or any matter related to the transaction;

Under the Consumer Protection (Fair Trading) (Cancellation of Contracts) Regulations 2009 Reg. 4:
(1)   A regulated contract may not be enforced against the consumer at any time earlier than 5 days (excluding Saturdays, Sundays and public holidays) after —

(a)  the day on which the regulated contract is entered into; or

(b)  if the consumer information notice has not been brought to the attention of the consumer before or at the time when the regulated contract is entered into, the day on which the consumer information notice is subsequently brought to the attention of the consumer.

(6)   A consumer information notice shall inform the consumer of his right to cancel the contract under these Regulations and in particular shall contain the information specified in the First Schedule [ Ed: of the Regulation no the Act].

This means you have 5 days from receiving notice to cancel. If you cancel within those 5 days the contract is unenforceable.  I am not clear what it means to “bring to the attention of the consumer” the “consumer information notice.” Making you initial the notice without really explaining may or may not count as notice.

The Notice of Cancellation as laid out in the Regulation:

NOTICE OF CANCELLATION

UNDER THE CONSUMER PROTECTION (FAIR TRADING)
(CANCELLATION OF CONTRACTS) REGULATIONS

Supplier: (Insert name of supplier)
Reference: (Insert supplier’s reference number, code or other details to enable the transaction to be identified.)
I hereby give notice that I wish to cancel my contract referred to above under the Consumer Protection (Fair Trading) (Cancellation of Contracts) Regulations.
Signature:
Date:
Name:
Address:
Telephone No.(optional):
Fax (optional):
E-mail (optional):

Before Going to Court
You might want to consider going to the Consumer Association of Singapore (CASE) before going to the courts.

• I know CASE sometimes gets a bad rep, but remember CASE is not a government organisation even though it is in the news a lot. So be patient with them.

You can also consider going to a legal clinic for legal advice:

• Law Society has a clinic 4 times a week (M to Th); they are not a government department so be nice
• You can also ask your nearest CC. They sometimes have legal clinics as well, but usually once a month.

If you want to go to court make sure you have all your documents in order, especially the contract that you signed.

The Courts
Going to court costs money, so be prepared to pay

Small Claims Tribunal

• Best place to go if you don’t want to engage lawyers
• Court fees are lower
• However the max. amount you can claim is $10,000 (which should be sufficient in most cases), $20,000 where both parties agree to the dispute
• The filing process is the simplest and most rules of court are easy
• All the information you need can be found on the website.

Magistrates’ and District Court

• Magistrates’ Court Claims Limit is $60,000, District Court Claims Limit is $250,000
• It is far more complicated process, and even inexperienced lawyers can get it wrong
• Engaging a lawyer is not necessary, but is almost essential to getting it right
• You will have to file the various documents yourself, if you don’t have a lawyer, and there are no standard forms.

If the SCT or MC or DC judgment is appealed against, it will almost certainly mean going to the High Court. That will cost even more time and money, and a lawyer will become almost a necessity (unless you have a lot of time on your hands to learn court procedure).

If you don’t have money to get a lawyer you can try the Legal Aid Bureau (Tel: 1800-325-1424), but there are requirement:

• you have to be a Singapore Citizen or a Singapore Permanent Resident and is present in Singapore;
• you have to satisfy the “Means Test” [Ed: click the link to find a Means Test]. Your disposable income, that is, your income for the past 12 months before the date of application for legal aid and after deducting prescribed allowances, must not exceed $10,000/-, and your disposable capital must not exceed $10,000/-; and
• there must be merits in your case (the ”Merits Test”)

If you do not satisfy the Means Test but are facing hardship, the Director of Legal Aid may extend legal aid to you (subject to the requirements of the Merits Test) if:

1. You satisfy certain statutory provisions; and
2. It appears to him in his absolute discretion to be reasonable to do so to relieve hardship.

Some things to Note
Just say “No” to timeshare offers. While there are many legitimate timeshare companies who can provide us with discounted holidays, there are many more shady companies out there willing to exploit our greed for cheap holidays. Why go through all the headache to save a couple of bucks. These “investments” are not cheap at all, and even if they are legitimate, you may not use their services much in the end. Being tied to a long term contract that sounds good now, may not be so good 15 years down the road when your situation has changed (e.g. gotten richer, kids all grown up, too ill to travel, etc).

Also, law firms do not solicit for business. There have been so-called “law firm agencies” that claim to represent law firms. They are not representatives of any law firm. Approach them with caution. Find your own lawyers instead. If in doubt, call the Law Society to double check (Tel: 6538 2500).

I hope this guide has been useful. It’s just what I know and is not comprehensive. Hope it helps those who need it.

For those interested in the full judgment.

Regarding no Constitutional Challenge:

122    Finally, we would reiterate that, in the light of our constitutional history since Singapore became an independent sovereign republic on 9 August 1965, there is no room for the argument that MDP legislation is unconstitutional because it is not “law” for the purposes of Art 9(1). In our view, whether or not our existing MDP legislation should have been enacted and/or whether such legislation should be modified or repealed are policy issues that are for Parliament to determine in the exercise of its legislative powers under the Singapore Constitution. It is for Parliament, and not the courts, to decide on the appropriateness or suitability of the MDP as a form of punishment for serious criminal offences. In view of the decisive rejection of a constitutional prohibition against inhuman punishment in the evolution of the Singapore Constitution (see [61]–[72] above), any changes in CIL and any foreign constitutional or judicial developments in relation to the MDP as an inhuman punishment will have no effect on the scope of Art 9(1). If any change in relation to the MDP (or the death penalty generally) is to be effected, that has to be done by Parliament and not by the courts under the guise of constitutional interpretation.

I think the court meant that there should be no more challenges with regards to the MDP being unconstitutional due to it being inhumane.

Having read the judgment, I do think Mr Ravi made a good case, but knowing our judicial attitude to activist Constitutional rulings, it was not going to fly. Using the Mithu case (India) was good since the Indian Constitution is the grandparent of ours. Also many of the cases were older than the Nguyen case, so I did not think the court would take them into account [34]

I personally am no fan of the mandatory death penalty. I think there should be a death penalty, but the court should be allowed to decide if the person deserves the penalty or not.