66 Ascertaining assets for division was clearly not the intention of either

66 ascertaining assets for division was clearly not

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66 Ascertaining assets for division was clearly not the intention of either party in the correspondence. The question the Appellant asked was whether the Deceased could provide for the children out of his own assets . The Deceased responded that he could. It was more likely than not that the Deceased was already operating from the mindset that the moneys were his assets and not assets which would be available for division. Given the fact that most of the moneys had been paid out after the Deceased and the Appellant had separated, it is not unlikely that the Deceased would have been labouring under the impression that the moneys were not matrimonial assets and therefore not available for division. The argument that the moneys were not matrimonial assets was, in fact, an argument successfully run by the First Respondent in the trial below (although we disagree with the Judge’s analysis for the reasons given at [76]–[78] below), and would have been a reasonable supposition for the Deceased to have made. This would explain the general tone of the correspondence and the underlying assumption that the Deceased had assets of his own to deal with in the support and care of Joshua and Azura. It is immediately apparent that the Deceased could not have intended to mislead the Appellant if he did not even realise that the moneys were matrimonial assets to begin with. It bears reiterating that it is the Appellant who has to prove, in accordance with a high standard of proof (see above at [30] and [59]), that the Deceased had the requisite fraudulent intent. Where the evidence suggests that there may be a reasonable belief that the moneys were not matrimonial assets and so would not have been available for division, it is for the Appellant to prove that matters were otherwise. 67 Against this backdrop, the Deceased’s statement that he was “in no financial position” to provide RM3,750 per child in monthly maintenance is not sufficient, in and of itself, to constitute a misrepresentation that the Deceased was impecunious. This was a one-off statement which was not repeated subsequently and was out of sync with the rest of the correspondence. Unsurprisingly, the Appellant wrote back on 22 October 1999 arguing (at para 6) that the Deceased’s living arrangements indicated that he was able “to maintain a lifestyle and [was] not … someone who is ‘in no financial position’ to maintain his two children”. It is crucial to note that at no point in time did the Deceased renege on his commitment to pay for the children’s educational and medical expenses, nor did he ever express any doubt that he could maintain Joshua and Azura to their accustomed
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826 SINGAPORE LAW REPORTS [2013] 3 SLR standard of living whenever they stayed with him. The statement was limited only to the question of monthly maintenance and could equally have meant that the Deceased did not have a regular income. Given that the moneys constituted almost all of the Deceased’s wealth at the material time,
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  • Law, Common Law, 1998, Constructive Trust, SLR 0801.fm Page, Wee Chiaw Sek Anna

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