The matrimonial home occupies a very special place in the family. During the marriage, it is the cradle of the family. It is where the family starts its day, and where it ends its day. It is where the family breaks bread, and it is where bonds are made.
Accordingly, the matrimonial home also occupies a very special place in family law. When a couple file for divorce, the matrimonial home is almost invariably divided between them. After all, having spent the better part of the marriage living in this home, it would seem antithetical to argue that the matrimonial home was not a matrimonial asset. It is even in the name, matrimonial home.
The decision of the Appellate Division of the High Court (“AD”) in VOD v VOC, [2022] SGHC6, however, seriously challenges the conventional understanding of what a ‘matrimonial home’ is.
What is a ‘matrimonial home’?
From a layman’s perspective, the ‘matrimonial home’ is not something that really needs to be legally defined. It is simple enough – it is just the place in which the couple and the family they form, resides.
This is supported by the definition of the phrase in dictionaries. The Free Legal Dictionary by Farlex defines it as “the residence in which a husband and wife have lived together”. The Legal Choices dictionary defines it as “the house that a husband and wife live in as a married couple”. The term ‘matrimonial home’ is thus, conceptually, uncomplicated. The Legal Dictionary by law.com does not even provide a definition.
It is, however, perhaps a result of this triteness that no Court, and no statute, has attempted a definition of ‘matrimonial home’. The Women’s Charter defines ‘matrimonial asset’ in section 112(10), but the phrase ‘matrimonial home’ is not defined, and is referenced only as an exception to the exceptions of ‘gift’ and ‘inheritance’.
As a result, legal practitioners often assume the definition of a ‘matrimonial home’, with reported cases slowly shaping the boundaries of this assumed definition. For example:
1. TQU v TQT, [2020] SGCA 8, suggested at [54] that a property that is used by the parties as temporary accommodation whilst awaiting the construction of their permanent home would not qualify as a matrimonial home.
2. Ryan Neil John v Berger Rosaline, [2000] 3 SLR 647, held at [59] to [61] that if a property is lived in for only a short time relative to the length of the marriage, it would not qualify as a matrimonial home.
3. TNC v TND, [2016] 3 SLR 1172, held at [18] that residence in a property for 15 months was sufficient to constitute ‘ordinary use for shelter’ of a property. This decision was approved on appeal to the Court of Appeal (“CA”). We note that this was not, strictly, a decision on the definition of ‘matrimonial home’. It does, nevertheless, influence our understanding in that regard.
We, thus, do not have a comprehensive or conclusive definition of what a ‘matrimonial home’ is. Like an artist slowly chiselling a statue out of a block of marble, our understanding of what a ‘matrimonial home’ is has been shaped over time by authorities by telling us, in each specific case, what is or is not a ‘matrimonial home’.
The latest in this line of cases shaping our understanding of what a ‘matrimonial home’ is, is VOD v VOC.
The ‘matrimonial home’ in VOD v VOC
The property in question was purchased in January 2004. The husband’s father paid for (and as at the date of the decision was still paying for) the acquisition of the property. The property was however registered in the names of the husband, the husband’s brother, and the husband’s mother, as joint tenants. During the proceedings, the parties agreed that the husband had a one-third share in the property.
The wife moved in with the husband with effect from January 2015, immediately after they solemnised their marriage. The marriage broke down shortly after, and the wife moved out in September 2017, about 33 months later.
The question was whether the husband’s one-third share in the property was subject to division, notwithstanding that it was pre-marital and a gift, because the parties used the property as a matrimonial home.
The AD decided that the property was not the parties’ matrimonial home, for the following reasons:
1. The parties had lived at the property for a short time of about 33 months (at [37])
2. The husband’s father and mother were the master and mistress of the household. The property was their home, they made all financial decisions about the property, and they kept the household running. It was thus the husband’s parents’ matrimonial home (at [38] and [39]).
3. “A legal interest coupled with residence will not necessarily mean that the property in question constitutes a matrimonial home”, and that “mere residence alone is generally not enough” (at [42]).
A troubling decision
The decision in VOD v VOC, insofar as it dealt with the division of the abovementioned property, is troubling for various reasons.
At the outset, we would reiterate that the property was both pre-marital and a gift. Thus the wife would have had to satisfy the Court of the ‘exception to exception’ on both of these points.
The fact that the property was pre-marital should not have been an issue, because it was ‘ordinarily used for shelter’ by the parties. The parties lived in it for 33 months – almost 3 years. This was the entirety of the time that they lived together as husband and wife. The parties do not appear to have lived as husband and wife at any other property. In TNC v TND, the CA accepted that a pre-marital property that the parties lived in for 15 months had been converted into a matrimonial asset by virtue of such residence. If the CA’s decision in TNC v TND had been followed, the parties’ longer 33-month residence should have been sufficient to satisfy the test for ‘ordinary use for shelter’. The pre-marital nature of the property would no longer prevent the property from being divided as a matrimonial asset. The AD does not appear to have addressed this point.
That is, however, only half the equation. The property was also a_ gift_. A gifted property can be divided as a matrimonial asset if it is the matrimonial home.
As highlighted above, the lay understanding of a ‘matrimonial home’, is simply a property in which the parties have lived as a family. The fact that the parties in VOD v VOC lived there, together and with their son, for 33 months, would prima facie satisfy the lay understanding of what a ‘matrimonial home’ is.
However, the AD held at [42] that legal ownership coupled with residence is insufficient to convert a property into a matrimonial home. The AD however does not convey a reason why this should be so. As expressed above, the concept of a ‘matrimonial home’ is simply a property in which a couple lives together. The lay understanding of a ‘matrimonial home’ does not seem to import any additional requirement, and the AD has not explained why the legal definition ought to be different from the lay understanding. The AD cited, in its support, situations where parties stay at a rented property or a property which belongs legally to another family member. These are, however, situations where the couple does not have legal ownership. Neither of these examples explains why legal ownership with residence should be insufficient.
The AD’s decision suggested that the parties needed to be the ‘master and mistress’ of the home, in addition to having legal ownership and actual residence, in order for it to be converted into a matrimonial home. This requirement is troubling for various reasons.
Firstly, this requirement does not appear in any other cases or in any statute. The AD did not cite any authority for this requirement. This requirement came as a bolt from the blue, surprising observers and practitioners. Whilst the Court did highlight that TQU v TQT supported its decision, TQU v TQT, involved very different circumstances. In TQU v TQT, the parties disputed over whether a property located at Pender Court was a matrimonial asset. The CA noted that the parties lived in this property for a period of just over a year almost 30 years ago whilst they were waiting for the construction of their HDB flat, and that the husband’s mother and sisters were living in it as well. The ratio in TQU v TQT was thus that temporary accommodation in a property whilst waiting for a permanent home would not qualify the property as being a matrimonial home. This does not apply in VOD v VOC – the AD noted at [38] that there was insufficient evidence that the parties’ residence in the property was temporary.
Secondly, the plain meaning of the phrase ‘matrimonial home’ does not imply a requirement of ‘control’ of ‘dominion’ either. A matrimonial home is simply a place in which the family lives. The requirement of ‘control’ or ‘dominion’ is thus an addition over the plain meaning of the phrase.
Finally, the test of ‘control’ or ‘dominion’ is an artificial one that carries with it several practical consequences. For instance:
1. The AD’s decision implies that a property can only be the ‘matrimonial home’ of one couple, i.e., the couple that exercises dominion over the property. This means that a property can lose the characteristic of being a matrimonial home, if some other person or couple exercises dominion over the property (e.g. in a dynastic multi-generational home where the younger generation takes over management of the property). This contradicts the CA’s holding in TND v TNC, [2017] SGCA 34, at [35], that “once a matrimonial asset always a matrimonial asset”.
2. The AD’s decision seems to overlook that there could be multiple masters and mistresses at a single property, especially if the property is large. In reality, each couple living at a shared home could be the ‘master and mistress’ of their own part of the property. In VOD v VOC at [38], it was noted that the parties’ bedroom and their son’s nursery were renovated for them, and the wife had control over the renovations (even if the husband’s father paid for the renovations). It is clear that the wife had control over the parties’ bedroom and their son’s nursery. For all intents and purposes, the parties were indeed the ‘master and mistress’ of their part of the property, even if the husband’s parents ran the larger household and made the financial decisions over the property. The terms ‘household’ and ‘home’ are not the same, and saying that the master and mistress of the household are the only ones that can claim a property as their ‘home’ would disenfranchise all other persons who live in their own space at the property, and who exercise control over their own part of the property.
VOD v VOC is thus a troubling decision. Although there is no comprehensive or conclusive definition in law of what a ‘matrimonial home’, the decision in VOD v VOC seems to muddy what little we have, and imposes a new requirement without precedent or authority.
Implications for future cases
Troubling as it is, the decision in VOD v VOC is law until the CA says otherwise. The parties do not have a right of appeal against the decision in VOD v VOC, and our understanding is that the parties did not seek leave to appeal.
Until and unless VOD v VOC is overturned, it will have an impact on homes that were gifted by third parties. Unless the parties are able to establish ‘control’ or ‘dominion’ over the property, the property may not be regarded as a matrimonial home, and may thus be excluded from division. This would especially affect younger couples living with their parents or other elders in multi-generational or dynastic homes.
Parties in the above situations should bear the following in mind:
1. A party claiming that a pre-marital property is a matrimonial home must, at the hearing, argue that the home was ‘ordinarily used for shelter’, as opposed to simply arguing that the property was a matrimonial home. The test for ‘ordinary use’ now appears to be more relaxed than the test for whether a property is a ‘matrimonial home’. We would caveat, though, that this approach will not work for a gifted property, where the exception is specifically that the property was the ‘matrimonial home’.
2. A party claiming that a shared pre-marital and gifted property is a matrimonial home must give evidence as to dominion over the property, or at least a part of the property. Circumstances that would be relevant would include control over renovations, decoration and furnishings, managing and maintaining one’s own part of such a property, and perhaps managing and running a separate ‘sub-household’ in the property.
3. A party living in a gifted property and envisaging divorce must keep all evidence of efforts made towards the substantial improvement of the property, if applicable. Such evidence would include correspondence with contractors or interior designers if the property was renovated, and written correspondence with property agents etc. if steps were taken to make a property more marketable for sale. This is to enable reliance on the ‘substantial improvement’ exception, instead of the ‘matrimonial home’ exception.
Conclusion
Legal practitioners and laymen alike have operated all along on a general understanding of what a ‘matrimonial home’ is. Thus far, the Court’s decisions have remained consistent with this understanding. VOD v VOC, however, challenges this understanding to an uncomfortable degree and sets a disturbing precedent for exclusion of a legitimate interest that a property in which a spouse is a legal owner of and was clearly used as the home during the marriage would be divided in the event of a divorce unless the other spouse can show some element of ‘control’ over the property.
For further information, please contact:
Ivan Cheong, Partner, Withersworldwide
shaun.leong@witherskhattarwong.com
Shaun Ho, Withersworldwide
shaun.ho@witherskhattarwong.com
