Chia Chew Gek v Tan Boon Hiang

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 26 February 1997
• Neutral Citation: [1997] SGCA 11
• Date: 26 February 1997
• Subject Matter: Consent order,s 106 Women's Charter (Cap 353),Matrimonial assets,Whether consent order failed totally in absence of approval,Direct and indirect financial contributions for the purposes of a s 106 division,Requirement of HDB's approval,Construction of consent order,Division,Family Law,Liberty to apply clause
• Docket Number: Civil Appeals Nos 104 and
• Published date: 19 September 2003
• Defendant Counsel: Joyce Fernando and VY Yoga (Gillett Kian Fong)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Simon Yuen (Chong Yeo & Partners)

(delivering the judgment of the court): These two appeals arise from the High Court`s order for the division of matrimonial assets made on 5 June 1996 in Divorce No 2189 of 1994. The order in so far as it is relevant to both appeals is that the matrimonial home, Apt Blk 112 Lengkong Tiga [num ]14-225 (`the Lengkong Tiga flat`) is to be sold at the current price in the open market within six months from the date of the order and the net proceeds, after refunding to the parties` respective CPF accounts the amounts drawn therefrom for the purchase of the Lengkong Tiga flat, together with interest, and the payment of other miscellaneous expenses be divided as to 55% thereof to the husband and as to 45% thereof to the wife. However, in the event the wife elected to purchase the Lengkong Tiga flat herself, which election she had to make in writing within two months of the date of the order, the price to be paid by the wife to the husband was to be determined by reference `to a valuation jointly obtained from a licensed HDB valuer`.

The appellant in CA 104/96 is the wife. Her contention is that the High Court did not have the jurisdiction to make the order it did on 5 June 1996 as prior to that, when granting the decree nisi in Divorce No. 2189 of 1994 on 27 April 1995, the High Court had made a consent order for the division of matrimonial assets which made particular reference to the Lengkong Tiga flat. Accordingly, the order made on 5 June 1996 ought to be set aside so that that part of the consent order relating to the Lengkong Tiga flat can be carried into effect. On the other hand the husband contended that the consent order being subject to a condition which could not be fulfilled the consent order was rendered nugatory. Accordingly, the High Court had the jurisdiction to determine the division of the matrimonial assets in accordance with the provisions of s 106 of the Women`s Charter.

The appellant in CA 106/96 is the husband. His contention is that the division ordered by the High Court on 5 June 1996 with respect to the net proceeds of sale of the Lengkong Tiga flat and after repayments to the CPF accounts of the respective parties in the proportions of 55% to himself and 45% to the wife is unfair and unjust. He seeks a variation of the order so that the wife gets not more than 30%.

Civil Appeal No 106/96 logically follows on from CA /96. That is the order in which we heard them and that is the order in which we will address them in this judgment

Before we address CA 104/96 and the consent order, we should state that the parties wer married for ten years and that there is one child of the marriage, a boy aged six years at the date of the decree nisi. The Lengkong Tiga flat was purchased during the marriage. It is not disputed that the husband`s monetary contributioin works out to $147,128.65 to the wife`s $31,700. The parties had also registered for another HDB flat at Blk 84A Toa Payoh Lorong 2 [num ]20-309 (the Toa Payoh flat) towards the purchase of which the husband had paid $2,000 a month. A maid was employed to look after the child when the parties were away at work. Joint custody of the child was given to the parties with the care and control to the wife. The wife now lives at the Lengkong Tiga flat with the child.

The consent order contained in the decree nisi in so far as it relates to the Lengkong Tiga flat and the Toa Payoh flat, called `the consent order` hereafter, reads as follows:

And by consent it is ordered that:

3 Subject to the approval by the Housing and Development Board (`HDB`)

(a) the petitioner (husband) shall transfer all his title, share and interest in the matrimonial flat, known as Apartment Block 112 Lengkong Tiga [num ]14-225 Singapore 1441 to the respondent (wife) upon (the wife) repaying (the husband`s) CPF account with Central Provident Fund (`CPF`) all moneys withdrawn plus interest in respect of the purchase of the flat.

(b) (the wife) shall transfer all her title, share and interest in the property known as Block 84A Lorong 2 Toa Payoh [num ]20-309 Singapore 1231 to (the husband) upon (the husband) refunding to (the wife`s) CPF account with the CPF all moneys withdrawn for the purchase of the said flat.

(c) In the event that the HDB does not give such approval, the parties herein are at liberty to apply.

It is not disputed by the parties that the basis of the consent order was the mutual but mistaken belief, which the learned judicial commissioner referred to as `the optimistic belief`, that as the parties had the joint custody of the child of the marriage each of them could form a separate family nucleus with the child. It soon became evident that the child could form a family nucleus either with the wife or with the husband but could not form two family nuclei, one with the wife and another with the husband. The husband could not get his mother to form a family nucleus with him as she had already formed one with her other son and the husband, by reason of his age, did not qualify under the HDB`s regulation to form a nucleus under the Joint Singles Scheme.

The wife who could form a family nucleus with her mother, who did not own a HDB flat, was not prepared to do so presumably as it would mean she would have to give up the care and control of the child to the husband to enable him and the child to form a family nucleus and qualify for the Toa Payoh flat.

Accordingly, there was an impasse. The wife was not prepared to form a family nucleus with anyone other than the child and wished to retain the Lengkong Tiga flat for their use and occupation and the husband was unable to form a family nucleus to satisfy the HDB requirements to complete the purchase of the Toa Payoh flat. The result was that the consent order could not be carried into effect. In fact there were proposals and counterproposals to find a...