Aym v Ayl

• Jurisdiction: Singapore
• Judgment Date: 23 November 2012
• Date: 23 November 2012
• Docket Number: Civil Appeal No 21 of 2012
• Court: Court of Appeal (Singapore)

AYM

Plaintiff

and

AYL

Defendant

[2012] SGCA 68

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 21 of 2012

Court of Appeal

Family Law—Ancillary powers of court—Division of matrimonial assets—Husband seeking to vary consent order entered into in respect of division of matrimonial assets—When court could vary order for division of matrimonial assets—Grounds for varying order for division of matrimonial assets—Whether business failure and loss of income sufficient ground to justify variation of order for division of matrimonial assets—Section 112 (4) Women's Charter (Cap 353, 2009 Rev Ed)—Family Law—Ancillary powers of court—Variation of order for maintenance—Whether there was agreement between parties for lump sum maintenance justifying court ordering the same

The appellant husband and the respondent wife were married for 23 years before the granting of the interim judgment of divorce on 13 July 2010. By this time, the parties had reached an agreement on the ancillary matters arising out of the divorce, and the terms of the agreement were recorded in the interim judgment as a consent order. The interim judgment was made final on 13 October 2010. The consent order provided, inter alia,that the husband was to pay the wife maintenance in the sum of $3,990 per month for herself, $2,670 per month per child for each of the three children, and their school fees. In so far as the matrimonial asset, a piece of landed property (‘the Property’), was concerned, the Property was to be sold within six years and the proceeds to be divided in the proportions of 80% to the wife and 20% to the husband if the sale price was equal to or less than $2.5m or 70% to the wife and 30% to the Husband if the sale price was more than $2.5m.

According to the husband, his business failed in November 2010, the result of which was that he no longer received any income. He claimed to have tried without success to find a new job, and this was so even up until the appeal was heard. On 14 June 2011, the husband, relying on these changes in circumstances, applied to the District Court to vary the terms of the consent order pursuant to ss 112 (4) and 118 of the Women's Charter (Cap 353, 2009 Rev Ed) (‘the Act’), seeking, inter alia,to have the Property sold within three months and for the order as to the division of the matrimonial assets to be varied to an equal division, with a $750,000 lump sum payment for the wife's maintenance to be paid out of her 50% share. By this time, the value of the Property had risen from $2.5m to an estimated $5.5m. The District Judge ordered a variation of the consent order to the extent that the Property was to be sold within six months, but refused to vary the rest of the terms of the consent order.

Dissatisfied, the husband appealed to the High Court. The High Court judge (‘the Judge’) upheld the District Judge's decision not to vary the terms of the division of the matrimonial assets in the consent order pursuant to s 112 (4) of the Act (‘s 112 (4)’). The Judge however, ordered that a lump sum maintenance of $750,000 be paid to the wife from the husband's share of the sale proceeds, on the basis that the parties had agreed on this amount as lump sum maintenance. The husband appealed against the decision of the High Court. The Property was sold on 8 June 2012 for $5.1 m.

Held, allowing the appeal in part:

(1) Although the language utilised in s 112 (4) was very broad, this provision had to have a very limited operation only. It was not intended to confer upon the court a jurisdiction writ large but was, instead, intended to confer upon the court a limited flexibility to adjust an order for the division of matrimonial assets already made. There ought therefore to be an outer limit to the jurisdiction conferred under s 112 (4). In particular, once an order of court with respect to the division of matrimonial assets had been completely implemented or spent inasmuch as everything that was required to be done had been effected and the assets concerned had been distributed to the parties, the court did not have the power under s 112 (4) to revisit or reopen the order: at [22].

(2) The court would, pursuant to s 112 (4), make, inter alia, the necessary variations to an order for the division of matrimonial assets only where the order was unworkable ab initio or has become unworkable as a result of new circumstances: at [23].

(3) An order might be unworkable ab initio due to a lack of functionality of the order, or as a result of a fundamental misunderstanding at the time the order was made: at [29].

(4) An order might become unworkable as a result of new circumstances in the literal sense, ie, that it was a matter of practical impossibility to implement the order, and the court was empowered under such circumstances to make, inter alia,the necessary variations. An order might also become unworkable in a substantive and purposive sense. Where new circumstances had emerged which so radically changed the situation so that to implement the order would be to implement something radically different from what was originally intended, this amounted to unworkability and the court would make, inter alia,the necessary variations: at [25].

(5) The husband's alleged business failure and loss of income, even if sufficient to justify a variation of an order for maintenance under s 118 of the Act, did not amount to a radical change in circumstances sufficient to justify the invocation of s 112 (4) to vary the order for the division of matrimonial assets: at [33].

(6) There was no agreement between the parties to have the wife's maintenance varied to a lump sum of $750,000 which justified the Judge ordering the same to be paid out of the Husband's share of the sale proceeds on that basis. The question of the appropriate amount of maintenance payable to the wife was remitted to the High Court to be decided by the Judge in light of the court's decision on the division of matrimonial assets: at [35] and [36].

[Observation: Where an order was premised on a consent order entered into between the parties, a yet further policy objective to be given effect to by the court was that of freedom of contract and sanctity of contract. However, in the uniquely matrimonial context, such ideas cannot be taken too far and there might be circumstances under which the existence of the vitiating factors of contract might justify court in, inter alia, varying such orders: at [15].

The existence of fraud might also justify the court in, inter alia,varying an order for the division of matrimonial assets, but the standard of proof was a very high one which was not easy to satisfy: at [30].]

AOO v AON [2011] 4 SLR 1169 (refd)

Barder v Caluori [1988] AC 20 (refd)

Chia Chew Gek v Tan Boon Hiang [1997] 1 SLR (R) 383; [1997] 2 SLR 209 (refd)

CT v CU [2004] SGDC 164 (refd)

Lee Hong Choon v Ng Cheo Hwee [1995] 1 SLR (R) 92; [1995] 2 SLR 663 (refd)

Lee Min Jai v Chua Cheow Koon [2005] 1 SLR (R) 548; [2005] 1 SLR 548 (refd)

Livesey v Jenkins [1985] AC 424 (refd)

Nalini d/o Ramachandran v Saseedaran Nair s/o Krishnan [2010] SGHC 98 (refd)

Saseedaran Nair s/o Krishnan v Nalini d/o K N Ramachandran [2012] 2 SLR 365 (refd)

Tan Sue-Ann Melissa v Lim Siang Bok Dennis [2004] 3 SLR (R) 376; [2004] 3 SLR 376 (refd)

Teh Siew Hua v Tan Kim Chiong [2010] 4 SLR 123 (refd)

TQ v TR [2009] 2 SLR (R) 961; [2009] 2 SLR 961 (refd)

Wee Chiaw Sek Anna v Ng Li-Ann Genevieve [2012] SGHC 197 (refd)

Women's Charter (Cap 353, 2009 Rev Ed) s 112 (4) (consd) ;ss 112, 118, 119

Matrimonial Causes Act 1973 (c 18) (UK)

Engelin Teh SC, Joyce Fernando, Linda Ong and Lee Leann (Engelin Teh Practice LLC) for the appellant

Kee Lay Lian and Nigel Pereira (Rajah and Tann LLP) for the respondent.

Andrew Phang Boon Leong JA

(delivering the grounds of decision of the court):

1 This was an appeal by the husband (‘the Husband’) against the decision of the High Court judge (‘the Judge’) in AYL v AYM [2012] SGHC 64 (‘the GD’) dismissing his appeal against the decision of the District Court. The District Court had dismissed his application to vary a consent order entered into between the parties vis-à-vis ancillary matters on the divorce of the two parties. The Husband had sought to rely on business failure to vary the consent order to a more favourable division of the matrimonial asset (a piece of landed property) (‘the Property’) and for a lump sum maintenance for the wife (‘the Wife’) to be paid out of her share and for the monthly payments to accordingly cease. The Judge refused the variation of the consent order as far as the division of the Property was concerned, but ordered a lump sum maintenance of $750,000 to be paid to the Wife out of the Husband's share of the sale proceeds. We dismissed the appeal with regard to the former issue and allowed it with regard to the latter issue. We now set out the detailed grounds of our decision.

The factual background

2 This case concerned a consent order entered into between the parties in respect of ancillary matters arising out of divorce proceedings. The parties were married for 23 years. A writ for divorce was filed on the ground of irretrievable breakdown, relying on the fact of at least four years' separation, and interim judgment was granted on 13 July 2010. At the time leading to the interim judgment, discussions took place between the parties with a view to reaching an agreement on the ancillary matters which arose out of the divorce. By 13 July 2010, the parties reached an agreement in relation to ancillary matters relating to custody and care and control of the children, division of assets, and the maintenance of the Wife and children. The terms of the agreement were recorded in the interim judgment as a consent order and the interim judgment was made final on 13 October 2010. The consent order provided, inter alia,that the Husband...