Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur
Judge | Chao Hick Tin JA |
Judgment Date | 07 July 2014 |
Neutral Citation | [2014] SGCA 37 |
Court | Court of Three Judges (Singapore) |
Docket Number | Civil Appeal No 129 of 2013 |
Year | 2014 |
Hearing Date | 27 February 2014 |
Citation | [2014] SGCA 37 |
Subject Matter | Matrimonial assets,Division,Family Law |
Published date | 10 July 2014 |
Plaintiff Counsel | Yap Teong Liang (TL Yap & Associates) |
Defendant Counsel | Suchitra Ragupathy, Yingtse Chen Ouw (Rodyk & Davidson LLP) |
The parties to this appeal, formerly husband and wife, were divorced by an interim judgment of divorce issued in November 2007 (“the Interim Judgment”). The parties then commenced the process of settling the ancillary matters. As by then the children of the marriage were adults, the process focussed on the issues of maintenance and division of matrimonial property. Each party filed substantial affidavits in support of their respective claims; the marriage having lasted some 35 years and the parties having been successful in business, there were many documents and factual allegations to be explored.
After some two years of this process, the parties decided to go for mediation. The mediation took place on 11 May 2011. It resulted in a document, signed by both husband and wife, which has in this appeal been referred to as the “Settlement Agreement”. The Settlement Agreement was intended to settle all disputes and be translated into an order of court. This did not happen, unfortunately; towards the end of 2011, the wife’s lawyers informed the husband’s lawyers that the wife did not wish to be bound by the Settlement Agreement.
In January 2012, the husband filed a summons before the Family Court for the terms of the Settlement Agreement to be recorded as an order of court. No order was made on this application as the District Judge took the view that it was for the judge hearing the ancillary matters to decide whether the Settlement Agreement was binding. The ancillary matters then came on before the High Court Judge (“the Judge”). The Judge decided not to give effect to the Settlement Agreement and, instead, carried out a division exercise pursuant to which the assets were divided differently than provided for in the Settlement Agreement. The Judge’s grounds can be found at
The husband has appealed against the Judgment and the main issue before this court is what weight should be given to the Settlement Agreement.
Further background informationThis was a long marriage: the husband (the appellant herein) and the wife (the respondent herein) were married in 1972 and lived together until 2001. Divorce proceedings were commenced in February 2007. By the time the ancillary matters came on for hearing, both parties were in their late sixties.
In 2010, the parties agreed to resolve the ancillary matters through mediation. Mr Amolat Singh, a senior lawyer, was appointed as the mediator. At the mediation both husband and wife were represented by counsel: Mr RS Bajwa of M/s Bajwa & Co and Mr Kelvin Lee of Sankar Ow & Partners LLP for the wife, and Mr George Lim SC for the husband.
On 11 May 2011, after the parties had gone through the mediation process for the whole day, the Settlement Agreement was drafted by the mediator in his handwriting and signed by the parties in the presence of their lawyers. The Settlement Agreement provided that:
The Settlement Agreement also provided that the settlement was subject to the approval of the court. However, a consent order from the court was never obtained because the parties could not agree on the terms of a draft consent order. Both parties wanted to make amendments to the draft consent order in respect of matters not stated in the Settlement Agreement.
The Judge found, and the parties did not dispute, that the pool of matrimonial assets available for division consists of the following:
Suritas is a Malaysian company which owns a property at Villa Bukit Tunku, Malaysia.
The decision in the court below The Judge held that the Settlement Agreement was binding at the point at which it was signed because the terms were certain and the parties were
The Judge further held, however, that the Settlement Agreement was 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) (“the Charter”) in determining what division would be just and equitable. The Judge found that the division proposed in the Settlement Agreement was not just and equitable because the husband would receive 68% of the assets while the wife would only receive 32% of them, and this proportion did not include the other assets disclosed by the husband and wife, which were not provided for in the Settlement Agreement. Accordingly, the Judge declined to give the Settlement Agreement conclusive weight and, having considered the submissions, he awarded an equal share of the assets to each party.
The reasons of the Judge for this division are as follows:
The husband argued that agreements reached after divorce proceedings have commenced are not caught by s 112(2)(
In the alternative, the husband argued that the Singapore assets ought to be apportioned 60:40 in his favour. Regarding the Malaysian assets, the wife should retain her 25% share in Suritas but all other assets should be retained by the husband.
The wife’s caseThe wife asserted that the argument that the Settlement Agreement was binding was no longer available to the husband as he had re-negotiated the terms of the Settlement Agreement and had been the first to contend that the terms agreed to at the mediation had not been correctly set out in that document.
The Judge was correct to classify the Settlement Agreement as an agreement caught by s 112(2)(
The issues are:
This issue arose because, although the husband did not quarrel with the Judge’s finding that the Settlement Agreement is valid and binding, the fact that he appealed against the whole of the decision below gave the wife the opportunity to resuscitate her challenge to the validity of that agreement notwithstanding she did not lodge her own appeal.
In this judgment, we use the phrase “binding agreement” (or “binding settlement agreement”) to mean a settlement contract that is validly formed in accordance with the legal requirements of the common law of contract, but it should be noted that if such a contract is caught by s 112(2) of the Charter, it will not be directly enforceable (see below at [43]). If there is a binding agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce, that will be a relevant factor in the court’s determination of what is a just and equitable division of matrimonial assets under the Charter. In determining whether a binding agreement between husband and wife to settle their disputes over property and maintenance exists, the...
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