Bmi v Bmj

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA,Judith Prakash JA,Steven Chong JA
• Judgment Date: 09 November 2017
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 40 of 2017 and Summons No 125 of 2017
• Date: 09 November 2017

BMI

and

BMJ and another matter

[2017] SGCA 63

Andrew Phang Boon Leong JA, Judith Prakash JA and Steven Chong JA

Civil Appeal No 40 of 2017 and Summons No 125 of 2017

Court of Appeal

Family Law — Consent orders — Wife applying to set aside matrimonial consent order for fraudulent and material non-disclosure after substantial lapse of time, after consent order had been fully implemented, and where issue of non-disclosure had been ventilated and expressly considered in reaching matrimonial settlement — Whether consent order should be set aside

Family Law — Women's Charter — Whether court had power under s 112(4) Women's Charter (Cap 353, 2009 Rev Ed) to vary matrimonial consent order that had been fully implemented and following substantial lapse of time — Section 112(4) Women's Charter (Cap 353, 2009 Rev Ed)

Held, dismissing both the amendment application and the appeal:

(1) Allowing the amendment application would have resulted in material prejudice to the Husband, who was not given the opportunity to address the alternative grounds at first instance. In any event, it had been made clear in AYM v AYL[2013] 1 SLR 924 that the court had no power to vary a matrimonial order that had been fully implemented, except in the limited case of fraud. Therefore, any non-disclosure by the Husband that was not fraudulent would not have furnished a basis for the setting aside of the Consent Order. Accordingly, the amendment application was dismissed: at [3].

(2) The fact that the Consent Order had been entered into and fully implemented as well as the subsequent lapse of time were not factors which would, by themselves, prevent the court from intervening on the basis of s 112(4) of the Women's Charter (Cap 353, 2009 Rev Ed) if there was cogent and compelling evidence of fraudulent and material non-disclosure by the Husband. Fraud was a limited exception to the general principle that the court had no power under s 112(4) to vary a matrimonial order that had been fully implemented. And the express words of s 112(4) precluded the application of the time-bars under the Limitation Act (Cap 163, 1996 Rev Ed) as well as the equitable defences of acquiescence or laches: at [5] and [6].

(3) The argument that the Wife should not be allowed to rely on fraudulent non-disclosure as a basis for setting aside the Consent Order because she had compromised these allegations by entering into the Consent Order was also rejected. If there was fraudulent non-disclosure that was material, such that proper disclosure would have led the court to making a substantially different order, then the fact that the parties and the court had considered the allegations of non-disclosure would not, by itself, preclude the court from setting aside the earlier order that was made on the basis of fraud: at [7].

(4) However, the fact that the Wife's allegation of non-disclosure had been ventilated and taken into account when the parties entered into the Consent Order was still an important and relevant factor. This was because, as a general principle, where the issue of non-disclosure had been ventilated and expressly considered in reaching a matrimonial settlement, then the courts should be slow to reopen the settlement on the very same basis unless there was clear evidence that the non-disclosure was fraudulent and that the parties would have entered into, and the court would have made, a substantially different order if proper disclosure had been made: at [9].

(5) On the facts, the Judge rightly found that the Wife's allegations of a fraudulent and material non-disclosure lacked sufficient evidential basis, and were without merit. The evidence before the court fell far short of the high threshold for a finding of fraud to be made. Furthermore, even if the Husband had deliberately misrepresented his total assets, the possibility of non-disclosure was a factor which both the Wife and the court were cognisant of at the time the Consent Order was made. Any non-disclosure by the Husband was thus not material: at [10] and [11].

(6) Parties should not be allowed to reopen settlements at will, or continue to make claims indefinitely for benefits received by the other party after the division of matrimonial assets had been completed. There was a need for finality, unless fraud was clearly established: at [12].

Case(s) referred to

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

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