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Published online by Cambridge University Press: 05 April 2021
This paper examines why Singapore law has not followed English law in the area of beneficial ownership of family property. It points out that the landmark cases in the two jurisdictions are underpinned by different family paradigms.The English landmark cases are based on the unmarried cohabitants paradigm and the legal rules that have emerged from these cases are aimed at, whether successfully or not, ensuring a fair division of the family home upon the breakdown of these relationships. In contrast, the Singapore seminal judgments are underlaid by contests between children over their parents’ property which raised questions as to the parties’ true intentions and the legal techniques to determine that. In the main, this paper argues that the legal rules that emerge in a society are shaped by the conditions of that society: these rules are purpose-built to resolve the specific types of disputes that come through the judicial system, which are in turn moulded by the distinctive conditions of that society. The discussion also shows that whilst the courts in the two jurisdictions differ in the legal techniques which they apply to determine these disputes, they do not appear to differ greatly in their understanding of human interactions and complex family relationships.
An earlier version of this paper was presented at a research seminar jointly organised by the Institute of European and Comparative Law, University of Oxford and Oxford Property Law Discussion Group. The author thanks all participants for their comments and discussion. The author is also grateful for the insightful comments from the anonymous reviewers, and from TM Yeo, Chee Ho Tham, Goh Yihan, Alvin See and Kenny Chng. All views and error remain the author's own.
1 [2007] UKHL 17, [2007] 2 AC 432 at [69].
2 Sociology of law literature establishes that law should be understood against the social environment. See for example Wedderburn, KW ‘Law as a social science’ (1967) 9 Journal of the Society of Public Teachers of Law 335Google Scholar. In the area of family law, family justice and family homes, see for example Maclean, M ‘Semantics or sustainability: socio-legal research in family law, or sociology of law and family justice’ (2017) 44 Journal of Law and Society S61CrossRefGoogle Scholar; Douglas, G et al. ‘Cohabitants, property and the law: a study of injustice’ (2009) 72 MLR 24CrossRefGoogle Scholar.
3 That rules are shaped by the conditions of the society to resolve disputes does not mean that these rules necessarily (or successfully) address the underlying social issues.
4 For comments on their interplay see Thorner v Major [2009] UKHL 18, [2009] 1 WLR 776 at 785 (Lord Scott).
5 Stack, above n 1, at [65].
6 See Midland Bank plc v Cooke (1995) 27 HLR 733; Oxley v Hiscock [2005] Fam 211.
7 Lloyds Bank plc v Rosset [1991] 1 AC 107 at 133. Where a party's indirect contributions have enabled direct contributions to be made, a common intention to share the property may be inferred: Le Foe v Le Foe [2001] 2 FLR 920.
8 [2014] SGCA 36, [2014] 3 SLR 1048 at [152].
9 See Lau Siew Kim v Yeo Guan Chye Terence [2007] SGCA 54, [2008] 2 SLR(R) 108.
10 Ibid, at [98].
11 Ibid.
12 [2011] UKSC 53, [2012] 1 AC 776.
13 She contributed approximately 65% of the purchase price.
14 Stack, above n 1, at [68] (Lady Hale).
15 Ibid, at [69].
16 Ibid, at [92].
17 [2008] 1 WLR 2695.
18 Ibid, at [16].
19 Ibid, at [15] and [17].
20 Ibid, at [18]–[19].
21 See Jones v Kernott, above n 12, at [47].
22 See for example Stack, above n 1, at [60] (Lady Hale) and [26] (Lord Walker); Singh v Singh [2014] EWHC 1060 (Ch) at [116].
23 See Mills, M ‘Single name family home constructive trusts: is Lloyds Bank v Rosset still good law?’ (2018) Conveyancer and Property Lawyer 350Google Scholar; cf Sloan, B ‘Keeping up with the Jones case: establishing constructive trusts in “sole legal owner” scenarios’ [2015] 35 LS 226Google Scholar.
24 Marr v Collie [2017] UKPC 17, [2018] AC 631.
25 Ibid, at [40].
26 Ibid, at [54].
27 Yip, M ‘Modern equity – at the edge of formal reasoning?’ in Robertson, A and Goudkamp, J (eds) Form and Substance in Private Law (Oxford: Hart Publishing, 2019) ch 12Google Scholar.
28 It is currently unclear whether the approach in Marr v Collie will replace the Stack approach in English law. In Thomas v Bulathwela [2019] EWHC 3511 (Ch) at [25]–[26], counsel invited the court to make a ruling on whether the Marr v Collie approach was to be preferred but the court took the view that the parties had come to an agreement on the correct approach to take in the case, and a definitive ruling was thus avoided.
29 Chan Yuen Lan, above n 8, at [152].
30 Ibid, at [127] (emphasis added).
31 Ibid, at [129]–[132].
32 The Chan Yuen Lan framework has been applied in subsequent Singapore cases.
33 Chan Yuen Lan, above n 8, at [160].
34 Ibid, at [152].
35 Ibid, at [157].
36 Ibid, at [51].
37 [2018] SGHC 162 at [46]–[47].
38 [2018] SGHC 276, [2019] 3 SLR 1022 at [57].
39 Land Titles Act (Cap 157, Rev Ed 2004), s 53(1).
40 [2019] SGCA 15, [2019] 1 SLR 908 at [80]–[81].
41 Ng So Hang, above n 37, at [56]–[57]. However, the court accepted (at [106]) that a common intention can be inferred from indirect financial contributions which enabled direct contributions to be made to the purchase price.
42 Geok Hong Co, above n 40, at [82]–[83].
43 For a detailed discussion, see HW Tang and K Low (eds) Tan Sook Yee's Principles of Land Law (Singapore: LexisNexis, 4th edn, 2019) paras 7.84–7.88.
44 Chan Yuen Lan, above n 8, at [160].
45 See Swadling, W ‘The common intention constructive trust in the House of Lords: an opportunity missed’ (2007) 123 Law Quarterly Review 511Google Scholar; Mee, J ‘Jones v Kernott: inferring and imputing in Essex’ (2012) Conveyancer and Property Lawyer 167Google Scholar.
46 Cf Chen-Wishart, M ‘Legal transplant and undue influence: lost in translation or a working misunderstanding?’ (2013) 62 ICLQ 1CrossRefGoogle Scholar.
47 Favor Easy Ltd v Wu [2011] EWHC 2017 (Ch) at [6].
48 Lau Siew Kim, above n 9, at [61].
49 Mo Ying v Brillex Development Ltd [2015] HKEC 583 at [7.12] (obiter).
50 Lower, M ‘Marriage and acquisition of a beneficial interest in the family home in Hong Kong’ (2016) Conveyancer and Property Lawyer 453Google Scholar.
51 See further ‘Hong Kong bar pleads with foreign judges to keep serving’ (Financial Times, 6 October 2020).
52 A Brown What is the Family of Law?: The Influence of the Nuclear Family (Oxford: Hart Publishing, 2019) p 193.
53 Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 at 41 (Lord Nicholls).
54 See Doing Better For Families (OECD, 2011); The Future of Families to 2030 (OECD, 2011).
55 See C Vogler ‘Managing money in intimate relationships: similarities and differences between cohabiting and married couples’ in J Miles and R Probert Sharing Lives, Dividing Assets: An Inter-Disciplinary Study (Oxford: Hart Publishing, 2009) ch 4.
56 See for example Fowler v Barron [2008] EWCA Civ 377; Aspden v Elvy [2012] EWHC 1387 (Ch); Barnes v Philipps [2016] 2 FLR 1292; Graham-York v York [2015] EWCA Civ 72, [2016] 1 FLR 407.
57 ‘Cohabiting couples fastest-growing family type, says ONS’ (The Guardian, 7 August 2019), available at https://www.theguardian.com/uk-news/2019/aug/07/cohabiting-couples-fastest-growing-family-type-ons (last accessed 11 March 2021).
58 ‘Unmarried couples in the UK pay the price of an outdated system’ (Financial Times, 10 October 2019).
59 A Berrington and J Stone ‘Cohabitation trends and patterns in the UK’ ESRC Centre for Population change Report (February 2015), available at https://eprints.soton.ac.uk/374132/1/Cohabitation%2520trends%2520and%2520patterns%2520in%2520the%2520UK.pdf (last accessed 11 March 2021).
60 Matrimonial Causes Act 1973, Pt II. For civil partners who parted ways, see Civil Partnership Act 2004, Sch 5.
61 CG Joslin ‘Autonomy in the family’ (2019) 66 UCLA Law Review 912. See further CG Joslin ‘Family choices’ (2020) 21 Arizona State Law Journal 1285 at 1288–1289.
62 Joslin (2019), above n 61, at 966. Joslin's empirical research points to the opposite in many cases.
63 Law Commission ‘Cohabitation: the financial consequences of relationship breakdown’ (Law Com No 307) paras 2.54–2.58.
64 B Hale ‘Fifty years of the Law Commissions: the dynamics of law reform now, then and next’ in M Dyson et al (eds) Fifty Years of the Law Commissions: The Dynamics of Law Reform (London: Hart Publishing, 2016) p 24.
65 R Walker ‘The changing face of trust law’ (2017) 31 Trust Law International 19 at 29.
66 A Barlow ‘Solidarity, autonomy and equality: mixed messages for the family?’ (2015) 27 Child and Family Law Quarterly 223 at 230–233.
67 Even in same-sex cohabiting relationships, most of these factors remain relevant, save that any wage gap is not attributed to gender.
68 They are, however, not to be placed on the same footing as marriages, see Stack, above n 1, at [69] (Baroness Hale); Jones v Kernott, above n 12, at [19] (Lord Walker and Lady Hale).
69 A Hayward ‘“Family property” and the process of “familialisation” of property law’ (2012) 24 Child and Family Law Quarterly 284.
70 M Dixon ‘Editor's notebook: the still not ended, never-ending story’ (2012) Conveyancer and Property Lawyer 83 at 86.
71 S Gardner and KM Davidson ‘The future of Stack v Dowden’ (2011) 127 Law Quarterly Review 13. See also S Gardner ‘Family property today’ (2008)124 Law Quarterly Review 422.
72 Chan Yuen Lan, above n 8, at [51].
73 Chan Yuen Lan, above n 8, at [98].
74 Geok Hong Co, above n 40, at [71]. Tang pointedly described this case as one involving ‘elderly persons who are used by their warring children to conduct litigation by proxy in order to obtain a more favourable inheritance’: see Tang Hang Wu ‘A dispute in Chancery Lane: reconsidering the resulting and common intention constructive trust: Chan Yuen Lan v See Fong Mun [2014] 3 SLR 1048’ (2015) Conveyancer and Property Lawyer 169 at 174–175.
75 Ibid.
76 The Court of Appeal in Geok Hong Co did not revisit the question as to whether Singapore law should follow the Stack approach.
77 The company did not rely on Mr Tan's lack of authority to resist the common intention constructive trust claim in the lower court, though the argument was raised before the Court of Appeal. See Geok Hong Co, above n 40, at [41].
78 The relationships in these two cases attracted the operation of the presumption of advancement.
79 As the parties did not argue on the basis of common intention constructive trust and did not appear to submit on the applicability of the Stack approach under Singapore law, the Singapore Court of Appeal's ‘rejection’ of the Stack approach in Chan Yuen Lan constituted obiter observation. Nevertheless, the Court of Appeal had dedicated 51 paragraphs in its judgment to discussing the merits of the Stack approach ([101]–[142]) and explicitly discussed whether Singapore law should adopt the same approach ([151]–[159]). The Chan Yuen Lan framework of analysis was clearly propounded on the basis of the in-depth discussion and on the perceived merits of the minority judgment delivered by Lord Neuberger in Stack. The obiter ‘rejection’ of the Stack approach in Chan Yuen Lan was thus authoritative and, notably, property disputes brought before the Singapore courts after Chan Yuen Lan applied the Chan Yuen Lan framework of analysis.
80 Jones v Kernott, above n 12, at [19] (Lord Walker and Lady Hale).
81 Cf Tan Poh Soon v Phua Sin Yin [1995] 2 SLR(R) 583.
82 Gibson v Revenue and Customs Prosecution Office [2009] 2 WLR 471 at [27].
83 As the alleged oral representation was not proved, the alternative claim on proprietary estoppel also failed (Geok Hong Co, above n 40, at [95]). Moreover, the court did not think that detrimental reliance was established on the facts of the case.
84 Geok Hong Co, above n 40, at [88].
85 See Tahir v Faiz [2019] EWHC 1627 (QB). The English High Court applied the resulting trust analysis, instead of the common intention constructive trust analysis.
86 See Smith v Bottomley [2013] EWCA Civ 953. There are issues as to whether the representor has authority to make the oral representations on behalf of the company and whether the corporate veil could be pierced. Where the representor has contributed to the purchase price of the property, a resulting trust analysis may be applied to determine the representor's interest in the property without having to pierce the corporate veil: see Prest v Petrodel [2013] 2 AC 415. In Geok Hong Co, however, it was not clear if the 10% deposit was paid for by the patriarch (Mr Tan) or the company. The trial court found that the remaining 90% of the purchase price was paid for by Mr Tan but it was unclear if he did so in his personal capacity or on behalf of the company. In any event, neither party to the dispute contended that the property was held on a resulting trust for Mr Tan. See Geok Hong Co, above n 40, at [21].
87 See also comments at n 79 above.
88 Tan Thiam Loke v Christina Woon [1991] 2 SLR(R) 595; Chia Kum Fatt Rolfston v Lim Lay Choo [1993] 2 SLR(R) 793.
89 Tan Thiam Loke, above n 88; Chia Kum Fatt Rolfston, above n 88; Ng So Hang, above n 37.
90 [2019] SGHC 219.
91 The plaintiff was certified to be mentally disordered by the time of trial and he was thus unavailable to provide testimony.
92 Ng Kong Yeam, above n 90, at [46].
93 Ibid, at [49].
94 K Mehta ‘Intergenerational exchanges: qualitative evidence from Singapore’ (1999) 27 Southeast Asian Journal of Social Science 111 at 113.
95 Göransson, K ‘Ethnographic family research: predicaments and possibilities of doing fieldwork on intergenerational relations in Singapore’ (2011) 42 Journal of Comparative Family Studies 903CrossRefGoogle Scholar at 909–910.
96 Mehta, above n 94.
97 See for example Neo Hui Ling v Ang Ah Sew [2012] 2 SLR 831; Moh Tai Siang v Moh Tai Tong [2018] SGHC 280; UJT v UJR [2018] 4 SLR 931.
98 See https://data.gov.sg/dataset/estimated-resident-population-living-in-hdb-flats?resource_id=a7d9516f-b193-4f9b-8bbf-9c85a4c9b61b (last accessed 11 March 2021).
99 Y Heo ‘The development of housing policy in Singapore and the sources of path dependence’ (2014) 31 Housing, Theory and Society 429 at 439.
100 See priority schemes: https://www.hdb.gov.sg/residential/buying-a-flat/new/eligibility/priority-schemes.
101 See housing grant schemes: https://www.hdb.gov.sg/residential/buying-a-flat/new/schemes-and-grants/cpf-housing-grants-for-dbss-flats.
102 See priority schemes, above n 100. Notably, housing priority is also accorded to divorced or widowed parents (whose child is a natural offspring from the lawful marriage or legally adopted).
103 See housing grant schemes, above n 101.
104 Strijbosch, K ‘Single and the city: state influences on intimate relationships of young, single, well-educated women in Singapore’ (2015) 77 Journal of Marriage and Family 1108CrossRefGoogle Scholar at 1113.
105 They must be children that were born within a legal marriage.
106 HDB flat owners are permitted to sell their flats for market value and therefore at profit, which puts them in a position to acquire properties (private or government housing) further down the line.
107 Report: IPS Perception of Policies in Singapore (POPS) Survey 6: Perceptions of Singles on Marriage and Having Children (Lee Kuan Yew School of Public Policy, National University of Singapore, June 2013), available at https://lkyspp.nus.edu.sg/docs/default-source/ips/pops-6_report_0812.pdf (last accessed 11 March 2021). See also: ‘50 per cent of singles okay with cohabitation’ (The New Paper, 15 February 2014), available at https://www.asiaone.com/singapore/50-cent-singles-okay-cohabitation (last accessed 11 March 2021).
108 Strijbosch, above n 104.
109 See discussion above at text to nn 37–39.
110 Mehta, above n 94, at 118; Choo, CN ‘Retirement adequacy and housing financing through the CPF system’ in Soo, HK and Leong, C Singapore Perspectives 2012: Singapore Inclusive: Bridging Divides (World Scientific Publishing Co Pte Lt, 2012) p 89Google Scholar at p 92.
111 See, for example, BUE v TZQ, above n 38.
112 As explained in Ng So Hang, above n 37, at [46], that parties ‘intended for the right of survivorship to operate upon the demise of one party in deciding to hold the Property as joint tenants’ did not mean that ‘the parties also intended for the beneficial interest to be held in equal shares, or in any particular proportion while both parties were alive’. In other words, Singapore law appears to permit joint owners to use joint tenancy for different purposes: (1) joint tenancy as in the joint owners holding the whole interest in the property with no separate shares even while the joint owners are alive; or (2) joint tenancy for the pragmatic purpose of enabling the operation of right of survivorship on the demise of a joint tenant for passing the property to the other joint tenant but the joint tenants are to hold the property as equitable tenants in common while both are still alive and in accordance with their contributions to the purchase price.
113 The court did not characterise the parties’ intimate relationship as being familial in nature.
114 The property dispute arose between a father and his adult sons.
115 See for example De Bruyne v De Bruyne [2010] EWCA Civ 519; Tahir v Faiz [2019] EWHC 1627 (QB). Cf Sandhu v Sandhu [2016] EWCA Civ 1050 at [12].
116 [2007] WTLR 1505.
117 [2012] EWCA Civ 865.
118 Ibid, at [6].
119 Ibid, at [5].
120 Ibid, at [25]. See also Sandhu v Sandhu [2016] EWCA Civ 1050 (a property dispute between a father and an adult child).
121 Gallarotti v Sebastianelli, above n 117, at [24].
122 [2010] EWCA Civ 519 at [48].
123 [2019] EWHC 1627 (QB).
124 [2017] EWCA Civ 95
125 Ibid, at [25].
126 Kerr v Baranow 2011 SCC 10 at [84].
127 Sanders, A ‘Cohabitants in private law: trust, frustration and unjust enrichment’ (2013) 62 International and Comparative Law Quarterly 628CrossRefGoogle Scholar at 651.
128 Ibid.
129 2013 SCC 5.
