Sita Jaswant Kaur v Surindar Singh s/o Jaswant Singh

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 16 September 2013
• Neutral Citation: [2013] SGHC 176
• Court: High Court (Singapore)
• Docket Number: Divorce Transferred No 898 of 2007
• Year: 2013
• Published date: 10 July 2014
• Hearing Date: 15 February 2013,08 May 2013,04 April 2013,26 March 2013,08 March 2013
• Plaintiff Counsel: Suchitra Ragupathy (Rodyk & Davidson LLP)
• Defendant Counsel: George Lim SC and Jinny Tan (Wee Tay & Lim LLP)
• Subject Matter: Family Law
• Citation: [2013] SGHC 176

Choo Han Teck J:

The defendant husband is 69 years old and a part-time remisier. The plaintiff wife is 66 years old and is the licensee of an employment agency. The parties married on 8 March 1972 and have two sons of the marriage aged 40 years old and 35 years old respectively, who both reside overseas. The wife filed a writ for divorce on 28 February 2007 and was granted interim judgment on 2 November 2007 on the basis of four years’ separation. The parties have been effectively separated since 2002 after the wife moved out of the matrimonial home.

On 11 May 2011, parties attended a mediation session at Maxwell Chambers presided over by an experienced lawyer who is also a mediator with the Singapore Mediation Centre. Both parties were legally represented. After the mediation session, both parties signed a handwritten agreement (“the Settlement Agreement”), which stated as follows:

AGREEMENT

DIVORCE D898/2007/G

The Parties have, by consent, agreed as follows.

1. The Plaintiff wife shall retain the property at #03-17 City Towers. The Defendant husband agrees to share half (1/2) the outstanding overdraft with Hong Leong. The Plaintiff wife shall account for the sum of $40,000 subject to proof that the said sum or any other lesser sum thereof was used for repairs for the property. The Plaintiff wife agrees to refund any such sum that is not supported by documentary evidence for the repairs. In the event of an enbloc sale, the additional sum above the agreed price of $1.25m (valuation as at March 2009) shall be shared in the proportion of 60% and 40% in favour of the Plaintiff wife. 2. The Defendant husband shall get the property at 38B Jalan Mat Jambol and the Plaintiff wife shall transfer all her rights, interest and title to the Defendant husband. In the event of an enbloc sale, the additional sum above the price of $1.9 m (agreed valuation as at March 2009) shall be shared equally between the parties. 3. The Plaintiff wife shall transfer all her rights, interest and title in the property 3-1-5 Villa Aman Malaysia to the Defendant husband. 4. The Plaintiff wife shall retain her 25% share in the company (Suritas Sdh Bhd) which owes the property at Villa Bukit Tunku in Malaysia. The parties agree to liquidate the company and distribute the sale proceeds accordingly. 5. The Plaintiff wife agrees that the transfer of the property at 38B Jalan Mat Jambol shall be without any refund to her CPF account. 6. The Defendant husband agrees that he is not making any claim to the jewellery. 7. There shall be no maintenance for the Plaintiff wife. 8. Each party shall retain all other assets in his/her own name. 9. In the event of a sale by private treaty of the City Towers or Jalan Mat Jambol properties, each party shall give to the other party, the right of first refusal. 10. This settlement is subject to the approval of the court. 11. Each part shall bear its own costs. 12. In respect of paragraph 4 above, the parties’ solicitors agree to work out the outgoings on the property to facilitate the sale of the property. In the event that parties are unable to agree as to how the outgoings are to be determined and settled, parties agree to refer the matter for mediation before Mr Amolat Singh. 13. The proceedings in Malaysia in respect of the Villa Aman property are to be discontinued by the defendant husband with each party to bear its own costs. Subsequently, on 31 May 2011, the wife’s lawyers sent a draft copy of a consent order incorporating the terms of the Settlement Agreement to the husband’s lawyers. The husband’s lawyers wrote to the wife’s lawyers on 13 June 2011 proposing a clarification on the date at which the outstanding overdraft would be accounted for and suggesting that the date of liability be fixed at 11 May 2011. After an exchange of correspondence, the wife’s lawyers wrote to the husband’s lawyers on 28 October 2011 informing them that the wife was not agreeable to fixing the date of liability for the overdraft at 11 March 2011 and seeking to introduce two new terms relating to: (1) the sale of the Singapore properties if no en bloc sale took place; and (2) the $40,000 that the wife had to account for under the overdraft. The wife subsequently discharged her lawyers and appointed new lawyers, who informed the husband’s lawyers that the wife did not wish to be bound by the Settlement Agreement. The husband then filed a summons on 26 January 2012 before the Family Court for the terms of the Settlement Agreement to be recorded as an Order of Court. The District Judge made no order as he took the view that it was for the judge hearing the ancillary matters to decide whether the Settlement Agreement was binding on the parties.

Parties attended before me to address two issues: the preliminary issue of whether I should give effect to the Settlement Agreement on its terms, and if I found against the husband on this point, how the matrimonial assets ought to be divided. Counsel for the husband, Mr George Lim S.C. (“Mr Lim”), submitted that the court should generally respect and endorse agreements entered into by parties at arm’s length, and that the court ought to give effect to the policy of encouraging mediation in family disputes by enforcing settlement agreements that parties had freely entered into after mediation in the absence of fraud. Counsel for the wife, Ms Suchitra Ragupathy (“Ms Suchitra”), contended that the terms of the Settlement Agreement were disadvantageous to the wife and that the wife had entered into the Settlement Agreement after a long day and had been fatigued and oppressed and did not fully understand the terms of the agreement.

Generally, agreements made in contemplation of divorce pertaining to the division of matrimonial assets should comply with the doctrines applicable to the law of contracts: see Lian Hwee Choo, Phebe v Tan Seng Ong [2013] SGCA 37 at [18]. Clause 10 of the Settlement Agreement provided that the “settlement [was] subject to the approval of the court”. This never eventuated because the wife subsequently refused to have the Settlement Agreement converted into a consent order, but I do not think that the failure to fulfill the requirements of cl 10 meant that the Settlement Agreement was not legally binding. The Settlement Agreement was legally binding at the point at which it was signed; the terms were certain and the parties were ad idem. I also do not think that the wife had any basis for claiming that she was not bound by the agreement because she did not fully understand the terms and that the terms were not complete. The wife was legally represented and the negotiation was conducted at arm’s length, and I do not see any contractual basis for impugning the Settlement Agreement on those grounds. Neither were the terms so uncertain as to render the division of the assets unworkable.

However, an agreement made in contemplation of divorce is only one of the factors that the court should take into account under s 112(2) of the Women’s Charter (Cap 353, 2009 Rev Ed) (“Women’s Charter”) in determining what division is just and equitable, and I do not think that the proposed division in the present case was just and equitable such that I should accord the Settlement Agreement conclusive weight. The...