When does a property acquired before marriage become a 'matrimonial asset'?
Many clients ask us this question - "I bought a property with my own money before marriage. Is my spouse entitled to a share of it?"
Under s 112(10)(a)(i) of the Women's Charter, an asset that one or both of the parties acquired before the marriage will still fall within the term “matrimonial asset” if it was:
... ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter or transportation or for household, education, recreational, social or aesthetic purposes.
In the recent Court of Appeal decision of TND v TNC  SGCA 3, the Singapore court was asked to decide whether an asset acquired before marriage that is “ordinarily used or enjoyed” during the marriage for one of the domestic purposes listed at the end of s 112(10) but for only a short while, will still be considered a “matrimonial asset” when the marriage ends many years later.
The wife had argued that nothing in s 112(10)(a)(i) of the Charter allows for an asset which has acquired the status of a matrimonial asset because of the application of that provision to somehow lose that status subsequently.
The husband, however, contended that the Bayshore property was not a matrimonial asset because the family had lived there for a period of only 15 months.
The Judge rejected the husband’s argument.
Whilst holding that the requirement of ordinary use would not be satisfied if the use was “occasional or casual”, the Judge found that a residence of 15 months’ was sufficient to constitute ordinary use for shelter and thus, that the Bayshore property was a matrimonial asset. To her, examples of casual use were staying in a property for only 21 days out of 14 years of marriage or on only two occasions throughout the marriage.
The issue that confronted the Court of Appeal is whether “ordinarily used or enjoyed by both parties or ... their children while the parties are residing together” necessarily imports the requirement of such usage or enjoyment right up to the start of divorce proceedings as may be implied by the words “are residing together”.
The Singapore Court of Appeal took the view that the Judge was correct to include the Bayshore property in the pool of matrimonial assets. The Judge had already taken into account the fact the property was used as a matrimonial home for only 15 months by classifying it in Group B and assigning a much higher weight to direct contributions vis-à-vis indirect contributions. There is no basis to disturb the Judge’s decision on the character of the Bayshore property since as the Judge noted, the parties occupation of it was a settled domestic occupation for a substantial period.
What this case means for litigants is that any property that is acquired before marriage, but was used or enjoyed for a short period of time by both parties or their children:
a. is likely be classified as a matrimonial property if parties had used it as a matrimonial home or, as in this case, used it for 15 months as their residence.
b. is unlikely to be classified as a matrimonial property if it was used or enjoyed occasionally such as only 21 days out of 14 years of marriage or on only 2 occasions throughout the marraige.
It is not necessary that parties must have continued to use or enjoy that asset all the way right up to the start of the divorce proceedings. However, the court may give the party that did not contribute directly towards this property a lower weightage.
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