BBF v BBG

• Jurisdiction: Singapore
• Judge: Masayu Norashikin
• Judgment Date: 18 June 2012
• Neutral Citation: [2012] SGDC 204
• Court: District Court (Singapore)
• Docket Number: Divorce Suit No. 1095 OF 2007/Z
• Published date: 16 July 2012
• Year: 2012
• Hearing Date: 20 March 2012,06 September 2011,16 August 2011,31 October 2011
• Plaintiff Counsel: Plaintiff in Person
• Defendant Counsel: Defendant in Person
• Citation: [2012] SGDC 204

District Judge Masayu Norashikin: Grounds of Decision for:

Summons 2027/2011 Summons 4951/2011 Summons 5828/2011 Summons 6485/2011

Introduction

This hearing was for three applications made by the Plaintiff wife and one cross-application by the Defendant husband in respect of the consent order parties entered into for the ancillary matters in their divorce. Both parties eloquently represented themselves. At the end of the hearing, I reserved my decision.

On 20 March 2012, I dismissed the Plaintiff’s applications and allowed the Defendant’s application in part, giving my brief reasons. The Plaintiff has appealed against my decision dismissing all her applications.

Background facts

Parties were married on 18 February 1995 and have 3 children who are now 16, 15 and 13 years old. The Plaintiff filed for divorce relying on the fact of 3 years’ separation with the Defendant’s consent to the divorce. Interim Judgment was granted on 12 June 2007.

Subsequently, parties filed various rounds of their respective Affidavit of Means (“AOM”), with the Defendant’s final AOM filed on 15 January 2009. On 11 November 2009, parties entered into a consent order regarding all the ancillary matters (“the Consent Order”). The Certificate of Making Interim Judgment Final was granted on 7 December 2009.

The Plaintiff is a lawyer by training. She has bipolar disorder and is taking medication for it. She is currently unemployed although she was in practice when the Consent Order was entered into up to around July 2010. The Defendant is in a managerial position in a construction company.

The material terms of the Consent Order are: Parties have joint custody, care and control of the 3 children, who reside with the Plaintiff at the matrimonial flat and have access with the Defendant, minimum requirements for which are set out in the Consent Order. In relation to the Plaintiff’s bipolar disorder, the Plaintiff consents to the Defendant obtaining information and updates from the Plaintiff’s doctors on the Plaintiff’s mental state and condition at regular intervals. The Defendant shall pay the Plaintiff $1,000 per month for the maintenance of each of the children. The total sum of $3,000 shall be disbursed by the Defendant in four weekly sums of $750 each. The children’s passports shall be kept by the Defendant. The Plaintiff shall upon 24 hours of the return from any trip hand over all of the children’s passports to the Defendant for safekeeping. The Plaintiff shall not be entitled to any maintenance and agrees to waive her rights to any maintenance payments in exchange for the lump sum settlement in the division of matrimonial assets set out in sub-paragraphs (f) to (i) below. The matrimonial flat shall continue to be held in the joint names of the parties and shall be sold in the open market when the youngest child reaches 21 years old. The Defendant shall take over the mortgage payments for the matrimonial flat from the date the divorce is finalized until the date the youngest child turns 21. Upon the sale of the matrimonial flat, the Plaintiff shall refund 30% of the sale price to the Defendant and keep the balance. The Plaintiff also has the option to take over the flat at market price on paying the Defendant the said 30% and paying off any outstanding loan. The Defendant shall, purely out of goodwill assist the Plaintiff to renovate the matrimonial flat once the divorce has been made final and agrees to pay up to $15,000 for the renovations. The renovations shall be completed not later than 6 months from the date the divorce is made final. The above arrangements constitute the full and final settlement of the Plaintiff’s claim against the Defendant in respect of maintenance and division of matrimonial assets, and the Plaintiff agrees not to apply for variation of maintenance payments for herself, notwithstanding the deferment of sale of the matrimonial flat.

The Plaintiff’s applications

The proceeded prayers under Summons 2027/2011 were for: Variation of the amount of maintenance for the children. The Defendant to bear in full, or such proportion as the Court deems fit, the cost of fitting out the kitchen in the flat. The Defendant’s access to the children to be reduced. Possession of the children’s passports to be restored to the Plaintiff or such other persons as the Court deems fit. Leave of court for the Plaintiff to apply for variation of maintenance for herself.

In Summons 4951/2011, the Plaintiff asked for: The paragraphs in the Consent Order dealing with division of matrimonial assets to be set aside. An Order for Subpoena be issued to DBS Bank, the mortgagee for the property situated at xxx Singapore (“the xxx”) for the production of the Defendant’s application form for hou ing loan, together with all supporting income and other documents relating to, pertaining to and indicative of the Defendant’s financial position at the time of the application.

The Plaintiff’s reason for filing Summons 4951/2011 was her recent discovery that between the Interim Judgment of 12 June 2007 and the Consent Order dated 11 November 2009, the Defendant had allegedly surreptitiously purchased the xxx Property and had purposely not disclosed it to the court or to the Plaintiff at the material time.

In Summons 5828/2011, the Plaintiff asked for: The paragraph in the Consent Order whereby she gives her consent for the Defendant to obtain her medical information and updates to be set aside. The Court to be the sole judge of the Plaintiff’s health and capability of looking after the children at any point in time, assisted by qualified medical professionals when necessary.

The Defendant’s application

The Husband filed Summons 6845/2011 essentially asking for : The Plaintiff’s prayers in Summons 2027/2011 to be struck out. The children of the marriage to reside with him at the xxx Property, with liberal access to the Plaintiff.

The xxx Property

I shall first deal with the Plaintiff’s contentions regarding the xxx Property and her prayers in Summons 4951/2011 asking for the orders on division of matrimonial assets to be set aside.

Plaintiff’s arguments

The Plaintiff says she came to know about the xxx Property sometime in July 2010 when the children told her about it after their access with the Defendant. Subsequently, in early 2011, the Plaintiff discovered through a Land Titles search of the xxx Property (which she had to do, in order to obtain an order for substituted service on the Defendant of Summons 2027/2011) that the Defendant had actually exercised the Option to Purchase the xxx Property on 17 April 2009 and the transfer of the xxx Property to him was registered on 8 July 2009, both dates of which occurred before parties entered into the Consent Order. These facts were not disputed by the Defendant.

The Plaintiff further says that the Defendant had intentionally and surreptitiously hid the purchase of the xxx Property from her and that he had failed to make full and frank disclosure to the court before the Consent Order. The Plaintiff took issue with the Defendant dealing with his CPF monies as declared in his AOM by using the monies to partly finance the purchase of the xxx Property, after the filing of the AOM and before the Consent Order. Her position was that the Defendant’s AOMs did not give any hint that the Defendant had the funds or financial ability to raise a bank loan to purchase a private property. She argued that the Defendant had purposely only moved into the xxx Property several months after the Certificate of Final Judgment was granted, to hide the fact that he had actually bought the property before the Consent Order date and to give the deliberate impression that the xxx Property was purchased after the divorce was finalised.

The Plaintiff argued that her consent to the terms on her maintenance and division of matrimonial assets in the Consent Order was vitiated by the Defendant’s fraudulent concealment of his purchase of the xxx Property. Had she known that the Defendant was the owner of a private property before the divorce was finalized, she would not have agreed to those terms of the Consent Order. The Plaintiff submitted that the Defendant had painted a false picture of his financial capability, and that the xxx Property should be subject to division as a matrimonial asset.

The Plaintiff further relied on the fact that she was suffering from a mental disability with her bipolar disorder, and that she was not in the right frame of mind and was very vulnerable at the time she entered into the Consent Order. She stated that she was warded in National University Hospital in December 2008 for a relapse, and was admitted to Institute of Mental Health for one month in February 2009. She did not, however, produce any medical report regarding her mental condition. She informed the Court that she was unable to afford the cost of obtaining one.

She cited the case of Rick v. Brandsema 303 DLR (4th) 193 (“Brandsema”) (copies of which were not furnished to the court or to the Defendant) for the following principles: Where an ex-husband has taken an unfair advantage of his ex-wife who has a mental disability and thus is in a weaker position, the ex-husband has a greater responsibility to give full and frank disclosure. The fact that the ex-wife had access to legal advice was not conclusive, as a person who is mentally ill may not know how to benefit from such advice. A consent order does not have the same effect as a court order. It is actually a private agreement between the two parties endorsed by the Court and the Court assumes that both parties are at arms length. The ex-husband’s failure to disclose in that case was fatal to the consent order.

In summary, the Plaintiff argued that:- the Defendant had deliberately and/or fraudulently failed to make full and frank disclosure of the xxx Property thus...