CDV v CDW

• Jurisdiction: Singapore
• Judge: Dedar Singh Gill JC
• Judgment Date: 26 March 2020
• Neutral Citation: [2020] SGHC 61
• Court: High Court (Singapore)
• Docket Number: Divorce Petition No 65 of 1993 (Summons No 600205 of 2019)
• Year: 2020
• Published date: 01 April 2020
• Hearing Date: 10 December 2019,02 December 2019,16 December 2019
• Plaintiff Counsel: Liaw Jin Poh (Tan Lee & Choo)
• Defendant Counsel: Seenivasan Lalita and Tay Min Hui (Virginia Quek Lalita & Partners)
• Subject Matter: Family Law,Ancillary powers of court
• Citation: [2020] SGHC 61

Dedar Singh Gill JC:

The Husband applied to vary a consent order (“the Order”) under s 112(4) of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the WC”). I granted the application. The Wife has filed an appeal against my decision. I now set out my grounds.

Facts

The Husband and the Wife were married on 12 August 1973. During the course of divorce proceedings both parties recorded the Order on 24 March 1994.¹ The Order provides:

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 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 known as [the Matrimonial home] be severed and the [M]atrimonial 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 [M]atrimonial home shall be sold and the proceeds of sale divided equally between the [Wife] and the [Husband].

…

The decree absolute was granted on 21 June 1994.²

After the divorce, the Husband remarried another woman (“the present Wife”). For a time, the Husband and the present Wife rented a property in Johor Bahru.³

In 1998, they bought a HDB flat (“the HDB flat”), which they co-own.⁴ Both the Husband and the present Wife have a son together (“the Son”).

At the time of the divorce in 1994, the Husband was earning a salary of $2,000.00.⁵ In 1997, he earned an annual salary of $72,000.00.⁶ In 2013, his annual salary reached $98,933.00.⁷ In 2015, the Husband was offered around $7,000.00 per month as a director in a company.⁸ He, however, claimed to have received only $3,000.00 per month from his directorship.⁹ Thereafter, he left his position as a director and joined another company where he earned between $2,000.00 to $3,000.00 a month.¹⁰ Since then, the Husband has fallen on tough times. The company in question did not pay him on time. The Husband sent several WhatsApp messages to his employer asking for transfers of various sums of money, some of which include:¹¹ “please tt urgently 150 to me” (dated 15 December 2018); “please tt $2000 to me for my son’s trip tomorrow” (dated 28 December 2018); “is there any way you can tt 200 to me urgently. appreciate…” (dated 21 January 2019); and “I have only $3 left in my wallet. please SMS after you have tt many thanks” (dated 5 April 2019).

The Wife did not challenge the veracity of these WhatsApp messages.

Given his financial difficulties, the Husband was unable to pay his monthly mortgage instalments on the HDB flat for three years.¹² He resorted to using credit cards, including from OCBC, to pay his monthly mortgage instalments on the HDB flat.¹³

The Husband also used a credit card to pay his household expenses.¹⁴ In addition, he faced difficulties in paying the Son’s university fees. In his own words, he was not “able to discharge [his] duty as a father to [the Son] since he entered [u]niversity”.¹⁵ The Son’s university fees amounted to $5,000.00 per semester and were payable upfront.¹⁶ As the Husband was unable to pay the fees, the Son’s aunt paid some of the fees.¹⁷

As it turned out, the Husband was unable to pay the outstanding credit card debts. On 13 March 2019, OCBC served a statutory demand under s 62 of the Bankruptcy Act (Cap 20, 2009 Rev Ed) (“the Bankruptcy Act”) for outstanding debts of $58,352.85 on various credit card accounts.¹⁸ As at the date of my decision, this figure had risen to $69,314.44.¹⁹

Further, as the Husband was unable to keep up with his monthly mortgage instalments on the HDB flat, he faced the possibility of its compulsory acquisition. There remained a large outstanding mortgage on the HDB flat totalling $194,979.62, including instalment arrears of $58,992.00.²⁰ His failure to pay the monthly mortgage instalments led HDB to issue a notice of repossession.²¹ Subsequently, the Ministry of National Development sent to the Husband a letter requesting him to submit representations in order to “appeal” against the compulsory acquisition of the HDB flat.²² It was not known whether he proceeded to submit the letter as requested.

As at 3 July 2019, the Husband only had $10,956.59 in his CPF Retirement Account.²³ As a result of his financial predicament, he intended to sell his half-share in the house referred to in the Order (“the Matrimonial home”) either to the Wife or a third party in the open market at the prevailing market price.²⁴ In this regard, he wrote the following letter to the Wife:²⁵

Dear [Wife]

I am writing to you after so many years to appeal for some help and to enquire about the state of [the Matrimonial Home]. I have fell into some difficult times during the last few years which have resulted in the accumulation of a large amount of debt among a few creditors. It has been especially difficult as I still have to continue working for $2,000 a month even in my retirement years – resulting in me being unable to pay off the creditors and to support my son who is currently undergoing his university education.

There is a high chance that the creditors will force the sale of the [Matrimonial home] as it is my last and only asset available for me to repay my debt. …

As such, I am hoping that you will be open to a discussion to work out possible solutions together. … Thus, I hope you and I can come to an agreement as it is not in my best interest to implicate you in this matter.

…

[emphasis added]

Notably, the Husband had highlighted in his letter to the Wife his fear that there would be a forced sale of the Matrimonial home given the extent of his debts. The Husband claimed that this letter was delivered to the Wife through the Son on 13 July 2019.²⁶ The Wife did not deny that this letter was delivered to the Matrimonial home. In an attempt to discuss the letter’s contents with the Wife, the Husband and the Son visited the Matrimonial home at least three times in July 2019. During their visits, they found the Matrimonial home to be deserted.²⁷

Subsequent attempts to effect personal service of Summons No 600205 of 2019, ie, the present summons, on the Wife through the court clerk proved unsuccessful. The court clerk visited the Matrimonial home on 14 August 2019 and 18 August 2019. On both occasions, all the doors and windows were shut. The gate was padlocked.²⁸ Thereafter, the Husband successfully applied for substituted service and served the papers by posting them on the gate of the Matrimonial home.²⁹

Eventually, the Wife filed an affidavit on 29 October 2019 claiming that she was still living in the Matrimonial home.³⁰

As at the date of the first hearing on 2 December 2019, the Husband and the Wife were 73 and 70 years of age respectively.³¹ Pursuant to s 112(4) of the WC, the Husband sought to vary sub-orders 4 and 5 of the Order so that the Matrimonial home would be sold on the open market.³² In particular, the Husband claimed that the Wife no longer lived in the Matrimonial home and that he would probably face bankruptcy proceedings resulting in a forced sale of the Matrimonial home at an undervalued price.³³

On 2 December 2019, I informed the Wife’s counsel, Mr Liaw Jin Poh (“Mr Liaw”), that there appeared to be insufficient evidence that the Wife was still living in the Matrimonial home. The Husband and the Son had not been able to speak to the Wife during their visits. The court clerk’s attempts to effect personal service also proved unsuccessful. The Wife’s only explanation was that her relatives had been suffering from a “slew of medical emergencies” which required her assistance and diverted her attention away from the Matrimonial home.³⁴

Concurrently, I impressed on Mr Liaw that it might be in the Wife’s own interests to consider the Husband’s offer to sell his half-share especially since there was evidence that the Husband was facing probable bankruptcy. Furthermore, the Husband had stated that he was willing to pay the Wife $192,000.00 in maintenance arrears from the sale proceeds of the Matrimonial home.³⁵ I granted an adjournment for Mr Liaw to take further instructions and fixed the matter for hearing on 10 December 2019.

Prior to the hearing on 10 December 2019, both parties filed one additional affidavit without leave of court. I allowed the admission of both affidavits, but cautioned against the filing of further affidavits without leave of court. In her second affidavit, the Wife attempted to supplement her assertion that she was living in the property by exhibiting, inter alia, utility and property tax bills.³⁶ The Husband’s response was that the Wife’s rates of usage of water and electricity fell below the average.³⁷ The Husband further claimed that it appeared that the Wife would only go the Matrimonial home to water the plants and perform some minimal cleaning.³⁸ At the hearing, I directed the Husband to file another affidavit to update the court on his present financial state,³⁹ especially in relation to his outstanding debt with OCBC.

On 11 December 2019, the Husband’s solicitors wrote to OCBC’s solicitors, informing them that the Husband would settle the outstanding debt owed to OCBC if he...