BMI v BMJ

• Judge: Valerie Thean JC
• Judgment Date: 22 May 2017
• Neutral Citation: [2017] SGHC 112
• Citation: [2017] SGHC 112
• Defendant Counsel: Davinder Singh SC, Randolph Khoo, Veronica Joseph and Tricia Ho (Drew & Napier LLC)
• Published date: 22 November 2017
• Hearing Date: 03 February 2017
• Plaintiff Counsel: Eugene Thuraisingam, Suang Wijaya, Mervyn Cheong and Chooi Jing Yen (Eugene Thuraisingam LLP)
• Date: 22 May 2017
• Court: High Court (Singapore)
• Docket Number: Divorce Petition No 2735 of 1995 (Summons No 600047 of 2016)
• Subject Matter: Women's Charter,Family Law,Consent orders,Section 112(4) Women's Charter (Cap 353, 2009 Rev Ed)

Valerie Thean JC: Introduction

Full and frank disclosure is fundamental to the court’s exercise of its just and equitable jurisdiction under s 112 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the WC”). In its absence, consent orders may be set aside on the basis of non-disclosure under s 112(4) of the WC. In this case, after the hearing of the parties’ ancillary matters, during which the applicant (“the Wife”) contended non-disclosure on the part of her former husband (“the Husband”) and cross-examined him on the same, parties agreed to a consent order (“the Consent Order”). By this application, some 16 years later, the Wife sought to set aside the Consent Order on the ground of the Husband’s fraudulent non-disclosure.

Facts

The Husband and the Wife married on 23 June 1990. They have two children. On 29 September 1995, the Wife started divorce proceedings in Divorce Petition No 2735 of 1995 (“D 2735”). As the matrimonial process then required parties to disclose their respective assets and means even before the grant of a decree nisi, the Husband declared his assets in his affidavit of means dated 31 January 1996 (“the 1996 AOM”) and his supplementary affidavit of evidence-in-chief dated 19 January 1999 (“the 1999 SAEIC”).

During the divorce proceedings (throughout which she was represented by different lawyers at different stages), the Wife alleged that the Husband had not fully disclosed his assets and means. Extensive applications for discovery and interrogatories were made. The issue of alleged non-disclosure featured heavily in the lead-up to and during the hearing of the ancillary matters in 1999. The Wife made allegations of non-disclosure in her affidavit of evidence-in-chief, and her counsel cross-examined the Husband on the alleged non-disclosure as well. In the Wife’s closing submissions in D 2735, she maintained that the Husband had hidden assets or held them through nominees and was thus guilty of non-disclosure. The Husband denied these allegations throughout the course of the divorce proceedings.

After the trial concluded and closing submissions were made, a decree nisi was granted in favour of the Wife on 11 August 1999. Orders were made for to the children. The determination on the issues of maintenance and division of matrimonial assets was reserved.

Subsequently, parties entered into settlement negotiations, facilitated by the trial judge, culminating in a settlement deed on 30 June 2000 (“the Settlement Deed”), as recorded in the Consent Order, which was granted on the same day. Clause 1 of the Settlement Deed provided that, in settlement of the divorce proceedings, the Husband was to pay the Wife the sum of about $13m in ten instalments from January 2001 to June 2005 in respect of the division of matrimonial assets. The preamble to the Settlement Deed stated that “[t]he Husband and Wife desire to settle the outstanding ancillary issues, including the question of division of matrimonial assets, on the terms stipulated in [the Settlement] Deed … [which] represents full and final settlement of the Wife’s claim to the division of matrimonial assets”. Clause 17 of the Settlement Deed also stated that “neither party shall have any further claims whatsoever and/or howsoever arising in relation” to the divorce proceedings and all other outstanding litigation and ancillary issues between the Husband and Wife.

There is no dispute that the Husband has paid the sums as agreed and that the Consent Order has thus been completely implemented. On 10 May 2016, the Wife took out Summons No 600047 of 2016 (“SUM 600047”), seeking to set aside the Consent Order on the basis of the Husband’s alleged fraudulent non-disclosure of certain assets.

I heard SUM 600047 on 3 February 2017. While this matter was filed in an old suit, and not as a fresh originating summons, as could also have been done, parties consented to have the matter heard in camera in line with s 10 of the Family Justice Act 2014 (Act 27 of 2014). I applied s 8(2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) accordingly. After hearing parties, I dismissed the Wife’s application with costs. Separately, I subsequently granted a declaration in Summons No 600004 of 2017 that no leave is required to appeal against my decision in SUM 600047. The Wife thereafter filed her appeal in Civil Appeal No 40 of 2017 on 3 March 2017. I now furnish my grounds of decision.

Relevant principles and issues arising

In applying for the Consent Order to be set aside, the Wife invoked the court’s power to grant relief under s 112(4) of the WC which states as follows:

The court may, at any time it thinks fit, extend, vary, revoke or discharge any order made under this section, and may vary any term or condition upon or subject to which any such order has been made.

[emphasis added]

It was common ground that non-disclosure is a ground upon which consent judgments may be set aside: Livesey (formerly Jenkins) v Jenkins [1985] AC 424 (“Livesey”). In Livesey, Lord Brandon, in setting aside a consent order which was vitiated by inadvertent non-disclosure, explained the rationale for the decision as follows at 441D:

For … reasons of principle … the requirement of full and frank disclosure always exists in proceedings for financial provision and other ancillary relief. It is, as I have sought to stress, a requirement founded on the terms of section 25(1) of the [Matrimonial Causes Act 1973], and, for reasons of public policy, it is not open to parties, whether represented by lawyers or not, to disregard, or to contract out, of such requirement.

Livesey was a case where the husband had conveyed his half share of the matrimonial home to the wife in order to provide a home for her and their two children, without knowledge that she was engaged to remarry. Upon his discovery of the truth some six months after the consent order was made, the husband successfully applied for the consent order to be set aside. In Livesey, the non-disclosure was inadvertent but not denied. Lord Brandon regarded it as material because, upon the wife’s remarriage, she would have lost, by virtue of s 28 of the Matrimonial Causes Act 1973 (c 18) (UK), her right to financial provision from her former husband.

In the case at hand, whilst some 16 years have passed, the Wife contended that she has discovered fraudulent non-disclosure on the part of the Husband. The Husband denied any such non-disclosure, whether fraudulent or otherwise, and contested the materiality of any non-disclosure at the same time. He further contended that the negotiations and ensuing deed contemplated the possibility of non-disclosure, which had thus been compromised.

The dispute between parties may thus be analysed by reference to the following issues, which I determined as follows: Had the Wife compromised her allegations of non-disclosure by virtue of the terms in the Settlement Deed? I held that the law does not contemplate any ability on her part to do so, and that she had not. Did the passage of 16 years disentitle the Wife from relief? In light of the express words of s 112(4) of the WC, I held that the passage of time, in and of itself, did not. Was there fraudulent non-disclosure on the Husband’s part at the material time before the Consent Order was entered into? On the facts, I held that there was insufficient evidence as to what he had fraudulently failed to disclose. Was there any non-disclosure that was material? I held that this requirement of materiality was not met either. My reasons for so holding are set out below.

Did the Wife compromise her allegations as to disclosure?

The Husband contended in his affidavit that the deed represented a final determination of the Wife’s allegations of non-disclosure. He relied on the general context of an extensive trial on the issue of non-disclosure, subsequent negotiations involving the same where he had made clear the finality of the settlement, and the deed following thereafter, which contained three clauses, as follows: The preamble stated that “the terms stipulated in [the] Deed … represents the full and final settlement of the Wife’s claim to the division of matrimonial assets”. Clause 17(a), “Releases”, stipulated that “neither party shall have any further claims whatsoever and/or howsoever arising in relation” to the divorce. Clause 18, “Omissions”, provided that “[a]ny question which arises and which is not provided for in this deed shall be referred to the trial judge … who in making his decision shall have regard to the spirit and the overall scheme of the settlement provided herein”.

Pursuant to Clause 18, the Husband had previously sought to have the matter heard by the trial judge. This earlier application was dismissed by the Assistant Registrar, and the appeal therefrom was dismissed by me. Subsequently, on the present SUM 600047, the Husband contended that the preamble and Clause 17 prevented the Wife from re-opening the matter.

In Gohil v Gohil (No 2) [2016] AC 849 (“Gohil”), the UK Supreme Court considered a recital that was worded more strongly than the formulation in our present case (see [7] of Gohil):

… the [wife] believes that the [husband] has not provided full and frank disclosure of his financial circumstances (although this is disputed by the [husband]), but is compromising her claims in the terms set out in this consent order despite this, in order to achieve finality.

Lord Wilson JSC (with whom the rest of the seven-judge coram agreed) held, at [22], that the recital in the consent order had “no legal effect”, on the basis that “one spouse cannot exonerate the other from complying with his or her duty to the court”.

In so deciding, the seven-judge panel agreed with Baroness Hale DPSC’s statement in Sharland v Sharland [2015] UKSC 60 (“Sharland”), at [32], that “… the court is in no position to protect the victim from the deception, or...