Aqb v Aqc

• Jurisdiction: Singapore
• Judgment Date: 27 April 2011
• Date: 27 April 2011
• Docket Number: Divorce Suit No 382 of 2008 (Registrar's Appeal No 208 of 2010)
• Court: High Court (Singapore)

AQB

Plaintiff

and

AQC

Defendant

[2011] SGHC 101

Tay Yong Kwang J

Divorce Suit No 382 of 2008 (Registrar's Appeal No 208 of 2010)

High Court

Family Law—Divorce—Making final an interim judgment—Wife claiming that court had no discretion to make final an interim judgment where there were outstanding ancillary matters—Whether court retained discretion—Rule 59 (3) (a) Women's Charter (Matrimonial Proceedings) Rules (Cap 353, R 4, 2006 Rev Ed)

—Family Law—Divorce—Making final an interim judgment—Wife claiming that satisfactory arrangements had not been made for children's welfare—Whether court should exercise discretion to make final the interim judgment—Section 123 (1) (a) Women's Charter (Cap 353, 2006 Rev Ed )

The plaintiff (‘the wife’) and the defendant (‘the husband’), were married on 2 November 2003. Upon the breakdown of the marriage, the wife filed for divorce on 23 January 2008. The interim judgment of divorce was granted on 30 January 2009. The three-month period for cause to be shown why the interim judgment should not be made final lapsed on 30 April 2009. No person took out an application to show cause why the interim judgment should not be made final and neither did the wife apply for the interim judgment to be made final. In 2010, the husband applied for leave to make the interim judgment final. This was opposed by the wife. The leave sought was granted by a deputy registrar. Pursuant to this order, the certificate of making interim judgment final was issued. The wife appealed against the decision of the deputy registrar. The appeal was heard and dismissed by a district judge. In the present appeal, the wife sought to set aside the orders of the deputy registrar and district judge and, consequently, the certificate of making interim judgment final.

There were two young children of the marriage, born in 2004 and 2006 respectively. While there were interim orders with regard to maintenance for the children, custody, care and control and access, not all the ancillary matters had been concluded.

The husband and his new partner had a young child born in 2010 and were expecting a second child. They were hoping to formalise their union by marriage as quickly as possible for the sake of this child and the imminent one.

In the present appeal, the wife submitted that the court should exercise its discretion to refuse to make the interim judgment final. Section 123 of the Women's Charter (Cap 353, 2009 Rev Ed) gave the court discretion to refuse to make the interim judgment final where the arrangements for the welfare of the children were not satisfactory, and the wife contended that in the present appeal, satisfactory arrangements had not been made. The husband submitted that the threshold under s 123 was not a high one and could be satisfied so long as the welfare of the children had not been overlooked.

Further or in the alternative, the wife submitted that in addition to s 123, r 59 (3) (a) of the Women's Charter (Matrimonial Proceedings) Rules (Cap 353, R 4, 2006 Rev Ed) (‘MPR’) had to be complied with before an interim judgment could be made final. She argued that the filing of an application to make final the interim judgment was prohibited under r 59 (3) (a) as there were outstanding ancillary matters. She further argued that this rule was absolute on its face, and that the court's discretion to grant leave was confined to r 59 (3) (b). Therefore, she contended that no question of granting leave to make final the interim judgment could arise before the conclusion of all the hearings for ancillary relief.

Held, dismissing the appeal:

(1) Under s 123, the test to make final the interim judgment was whether the welfare of the children had not been overlooked and whether satisfactory arrangements had been made for their welfare. At the stage of making the interim judgment final, all the court needed to ensure was that parties involved had addressed their minds to the welfare of their children: at [13] to [14].

(2) On the facts of the case, all outstanding applications relating to access had been determined by the High Court. There was no longer a dispute relating to the education of the children. There was an existing maintenance order relating to the children's interim maintenance. Further, both the husband and the wife were well-off financially and each was able to provide for the children's needs. Therefore, the welfare of the children in this case had not been overlooked and satisfactory arrangements had been made for their welfare. Accordingly, the condition under s 123 (1) (a)for the interim judgment to be made final had been met: at [15].

(3) The court retained its discretion to grant leave to an applicant to make final an interim judgment under r 59 (3) (a)even where there were outstanding ancillary matters before the court. The clause ‘without the leave of the court’ should apply to both limbs of r 59 (3) and not just to r 59 (3) (b). The MPR 2003 showed clearly that the clause relating to leave applied to both limbs (a) and (b). There was no indication that subsequent amendments to the MPR were intended to bring about any substantive change by confining the court's discretion to grant leave to limb (b). The most probable explanation for the change in wording was that a setting error occurred in the 2005 edition of the MPR which appended the clause ‘without the leave of court’ to only r 59 (3) (b): at [20] to [24].

(4) The court should exercise its discretion under r 59 (3) (a) in favour of the husband. While there were outstanding ancillary matters, satisfactory arrangements for the welfare of the two children of the marriage had been made, and while these arrangements could be fine-tuned along the way, there was no question that the two children were more than adequately taken care of. While the husband's conduct might not be that of an exemplary husband and father, there was really no point in visiting the consequences of his conduct on the innocent children of the second union: at [27].

Fender v St John-Mildmay [1938] AC 1 (refd)

Sivakolunthu Kumarasamy v Shanmugam Nagaiah [1987] SLR (R) 702; [1987] SLR 182...