Kate Galloway: James Cook University
In late June, the Court of Appeal in Singapore handed down the decision in Chan Yuen Lan v See Fong Mun. The case concerns a claim by the husband in a long-standing marriage, Mr See, for an interest in property held in the sole name of his wife, Madam Chan.
Mdm Chan had contributed her life savings of $250,000 to the purchase of property worth some millions of dollars at the date of trial. Mr See argued that her contribution was simply a loan and that Mdm Chan had wanted to be the owner, so that she could tell her friends that she held the title. As between themselves, he said, she should acknowledge Mr See as the true owner of the property. On Mr See’s evidence, this was done by way of power of attorney in his favour, that embodied this acknowledgement.
At the time of the purchase in 1983, Mr See had taken a lover. Mdm Chan argued that she needed the property as financial security because of Mr See’s infidelity, and not because of a desire to brag to her friends. She said that Mr See had agreed to her holding the title in her name to appease her over his affair and his infidelity.
This case again raises the issue of women’s status before the courts and the underlying assumptions about property across the common law world.
The Court of Appeal found that there was a presumption of resulting trust and so considered whether Mr See intended to benefit Mdm Chan by his contributions. The primary obstacle, the Court found, was the power of attorney.
Despite the Court finding that the power of attorney was simply an indication of control but not beneficial ownership, it found against Mdm Chan. The Court said that Mdm Chan’s submissions
still do not explain why, if the property was truly a gift to her, she willingly allowed Mr See to exercise control over the property…moreover the court must assume that the lawyer drafting the power of attorney would have explained its effect to Mdm Chan…
But here is the most interesting conclusion that the Court reached:
Mdm Chan’s story was unrealistic and incredible – there was no convincing reason why Mr See, a man nearing retirement who had just begun an affair, would make the biggest purchase of his life, only to gift it to someone who was his wife in name only.
On this basis, the Court found that Mr See had no intention to benefit Mdm Chan by his contributions to the purchase price to the property. There was therefore a resulting trust: and Mr See was awarded a significant share in the property.
This case illustrates just how hard it is for women to have their voices heard in property cases. Because a family law approach embodying a redistribution of the parties’ interests was not applicable here, the parties relied on their common law property rights. While there is nothing wrong per se with the application of the law of resulting trusts in this case, the Court’s analysis, with respect, fails to take into account the realities of intimate relationships.
Despite Mr See’s argument and the Court’s conclusion, in fact it is entirely likely that a ‘self-made man’ married in 1957 who bought a house for the purpose of housing his wife and their entire immediate family, would be inclined to invest it in her name. At the very least, it is no less likely that he would make this decision than to intend to retain it for himself. Parties who chose to continue their marriage – even if ‘in name only’ – and to house their family under one roof, were ostensibly demonstrating their commitment.
Across the common law world, the courts are uncertain about the implication of marriage – and this can benefit some women and harm others. In the case of Mdm Chan, the fact of Mr See’s affair was evidence as to the unlikelihood of his gift to her. In other cases in other jurisdictions, the fact of marriage indicates a commitment – distinct from a de facto relationship – that imports an equality of title (see eg Cummins v Cummins). While Cummins does not involve a mistress, it is noted that again in Australia, an arrangement to benefit a mistress was held to be void against public policy as sexually immoral and prejudicial to the state of marriage (see eg Ashton v Pratt). While admittedly drawing a long bow to compare across jurisdictions and field of law, it seems that on this comparison a wife is not entitled because of evidence of infidelity of the husband, but the mistress likewise cannot take because of immorality.
In this case the Court found that Mr See’s evidence was unreliable. Yet it accepted his argument as a question of logic. This causes the reader to wonder about the basis for the Court’s conclusion when Mdm Chan’s argument was equally as strong. Without arguing for a status-based property right, I simply wonder if a more comprehensive inquiry into the parties’ commitment and interdependence (along the lines proposed by Wong) may not have given some consideration to Mdm Chan’s case based on the parties’ ongoing operation as a family unit.