CDV v CDW

• Jurisdiction: Singapore
• Judge: Steven Chong JA
• Judgment Date: 14 October 2020
• Neutral Citation: [2020] SGCA 100
• Defendant Counsel: Seenivasan Lalita (Virginia Quek Lalita & Partners)
• Docket Number: Civil Appeal No 4 of 2020
• Date: 14 October 2020
• Hearing Date: 08 September 2020
• Plaintiff Counsel: Liaw Jin Poh (Tan Lee & Choo)
• Year: 2020
• Court: Court of Appeal (Singapore)
• Citation: [2020] SGCA 100
• Published date: 17 October 2020

Steven Chong JA (delivering the judgment of the court): Introduction

This appeal arises from an application to vary a consent order in respect of the division of matrimonial assets, pursuant to a new statutory power in the Women’s Charter (Cap 353, 2009 Rev Ed) which did not exist at the time when the order was made. In such a situation, it is always necessary and judicious for the parties to address the court as to whether such a new statutory power can be invoked to vary the consent order in the first place.

Regrettably, in the court below, this issue was not addressed. Instead, both parties proceeded on the basis that the new statutory provision is applicable to the consent order and in turn, the High Court judge below (“the Judge”) dealt with the case on the common understanding that it applies.

This issue was however identified by this court before the hearing of the appeal and the parties were invited to address this specific point. Having heard the parties’ respective submissions, we are satisfied that the new statutory provision does not apply and hence the variation of the consent order ordered by the Judge cannot stand.

In any event, we are also satisfied that even if the court is empowered to vary the consent order, the case law is clear that there must be “exceptional reasons” before a variation can be effected. For the reasons set out below, there are no “exceptional reasons” on the facts to justify the variation.

Background facts The divorce and the Consent Order

The Husband and the Wife were married on 12 August 1973. As of 2 December 2019, the date of the first hearing before the Judge, the Husband and the Wife were 73 and 70 years old respectively: see CDV v CDW [2020] SGHC 61 (“GD”) at [16].

The decree absolute (now known as the final judgment) was granted on 21 June 1994. In the course of the divorce proceedings, the parties recorded a consent order before the court on 24 March 1994 (“the Consent Order”). The Consent Order dealt with the Husband’s maintenance obligations and the division of matrimonial assets. We reproduce the Consent Order in its entirety:

UPON the questions regarding the maintenance for the [Wife] and the disposal of the matrimonial property coming on for hearing this day and UPON hearing Counsels [sic] for the [Wife] and the [Husband], BY CONSENT, IT IS ORDERED that:-

1) the [Husband] do pay the [Wife] maintenance in the sum of $2,500.00 per month up to a total of $252,000.00. 2) the [Husband]’s liability to pay maintenance shall cease when:- a) the [Wife] remarries; or b) the [Husband] reaches the age of 55; or c) the [Husband] is unable to work or secure employment at a salary which will enable him to pay maintenance in the sum of $2,500.00[.] 3) The existing joint tenancy in the matrimonial home … be severed and the matrimonial home be held by the [Wife] and the [Husband] as tenants in common in equal shares. 4) The [Wife] do have exclusive occupation and control of the matrimonial home … during her lifetime after the severance of the joint tenancy. 5) The matrimonial home … will not be sold during the [Wife]’s lifetime. 6) If the [Wife] does remarry during her lifetime, she will not be entitled to occupy the matrimonial home … and the matrimonial home shall be sold and the proceeds of sale divided equally between the [Wife] and the [Husband].

As is evident from sub-orders 4 and 5 of the Consent Order, the parties agreed that the Wife would have exclusive occupation and control of the “Matrimonial Home” during her lifetime. Further, unless she remarries, the Matrimonial Home would not be sold during her lifetime. The Matrimonial Home was purchased in 1986 for $385,000 and was valued at between $5m and $6m as of 31 July 2019.

The Husband’s remarriage and financial difficulties

Following the divorce, the Husband married his present wife (“the Present Wife”). They co-own a five-room Housing and Development Board flat (“the HDB Flat”) which was purchased in 1998. The Husband and the Present Wife have a son who is 25 years old (“the Son”). The Son matriculated into a local university in 2016.

According to the Husband, he has been estranged from the Present Wife for the past ten years. He currently lives with his mother-in-law and the Son in the HDB Flat.

At the time of the divorce in 1994, the Husband was earning a salary of about $2,000 per month. As recently as in 2013, his annual income was $98,933.00. However, the Husband claims that he has been experiencing financial difficulties since 2015. Although he drew a salary of around $7,000 per month in 2015, he claimed to have received only $3,000 per month. Thereafter, he joined a new company. Although the agreed monthly salary was $3,000, he claimed to have received only $2,000 per month. At the time the present application was filed, he had “not been paid on a regular basis for almost one and a half years”. His current salary is reportedly $2,000 per month.

The Husband’s financial difficulties resulted in the following consequences: He was unable to pay the monthly instalments on the HDB Flat for three years, leading to the accumulation of arrears. He had to use his credit card to pay the household expenses. He was unable to pay the electricity bills sometime in 2017 and 2018, and the Son had to take over the payment of these bills. He could not pay the Son’s university tuition fees, and his sister-in-law has been providing financial assistance to the Son.

We pause here to briefly comment on the Wife’s contention that the Husband has provided insufficient evidence of his alleged financial difficulties. Among other things, she asserts that the Husband has concealed his assets in Malaysia and has “intentionally neglected to pay his HDB mortgage loans, credit card bills and late payment charges”. No concrete evidence was adduced by the Wife in support of these allegations.

We note that the Judge was satisfied that “the Husband was clearly facing extreme financial difficulty” (see GD at [41]). We see no reason to disturb the Judge’s finding of fact in this regard, and will proceed to examine this appeal on the premise that the Husband is indeed facing genuine financial difficulties.

The Husband’s debts

We turn now to set out the debts owed by the Husband.

On 13 March 2019, the Oversea-Chinese Banking Corporation Limited (“OCBC”) served a statutory demand on the Husband for outstanding debts of $58,352.85 on various credit card accounts. The Husband did not satisfy the statutory demand.

On 11 December 2019, the Husband wrote to OCBC, stating that he would settle the full outstanding amount with OCBC after he was able to sell his half-share in the Matrimonial Home.

On 13 December 2019, OCBC’s solicitors responded as follows:

We refer to your letter dated 11 December 2019.

We are instructed to inform that our clients have responded to your client’s queries on every occasion when he attended our clients Clementi Branch office. However, your client was unable to commit to an acceptable repayment plan with our clients.

Please be informed that the following sum is still due and owing from your client to our clients: [$72,807.83]

We are instructed and hereby do demand that your client makes payment of $4,000.00 ($1,000.00 to each account) by 20 December 2019. Thereafter, the payment of the balance outstanding shall be reviewed by our clients.

Please also let us have copies of the duly exercised option to purchase and/or the Sale and Purchase Agreement by 31 December 2019 and a letter of undertaking from the solicitors acting for your client in the conveyance of your client’s property by 15 January 2020.

Please note that if your client is unable to fulfil the above, we have firm instructions to commence legal action against your client without further notice.

Meanwhile, our clients’ rights against yours are hereby expressly reserved.

On 25 March 2020, after the Judge’s decision, OCBC served a second statutory demand on the Husband, with the debt now amounting to $80,557.68.

Apart from OCBC, the Husband owes $5,877.07 to Standard Chartered Bank (as of 18 June 2019). He also owes his sister-in-law $70,200.00 for the financial assistance she has rendered to the Son (as of 12 November 2019).

Compulsory acquisition of the HDB Flat

As noted above at [11(a)], the Husband has accumulated arrears in respect of his HDB monthly instalments. He was informed by the Housing and Development Board of its intention to compulsorily acquire the HDB Flat. On 22 April 2019, the Husband and the Present Wife appealed against the compulsory acquisition. It appears that no decision has been made to date, and the parties concerned are awaiting the outcome of the present appeal before us. In the event that the HDB Flat is compulsorily acquired, the compensation sum would be $585,000.

Application to vary the Consent Order

On 8 August 2019, the Husband filed HC/SUM 600205/2019. Relying on s 112(4) of the Women’s Charter, he sought to vary the Consent Order by replacing sub-orders 4 and 5 with the following orders: (i) The [Matrimonial Home] shall be sold in the open market within 3 months from the date of this order and the sale proceeds after deducing all expenses of sale be divided equally between the [Wife] and the [Husband]. Parties shall refund their respective CPF moneys withdrawn for the purchase plus accrued interest. (ii) Parties shall have joint conduct of the sale of the [Matrimonial Home]. (iii) The [Wife] shall be entitled to continue to stay in the [Matrimonial Home] until the date of completion of the sale but she will cooperate in the sale by allowing parties’ appointed property agents and all potential buyers to view the [Matrimonial Home] for the purpose of the sale. (iv) The Registrar of the Supreme Court shall execute, on behalf of the [Wife], the Option to...