UDA v UDB and another

• Court: Court of Appeal (Singapore)
• Judge: Sundaresh Menon CJ
• Judgment Date: 24 April 2018
• Neutral Citation: [2018] SGCA 20
• Citation: [2018] SGCA 20
• Defendant Counsel: Koh Tien Hua and Chew Wei En (Eversheds Harry Elias LLP),Salem Ibrahim, Kulvinder Kaur and Sarah Kee (Salem Ibrahim LLC)
• Subject Matter: Matrimonial assets,Ancillary powers of court,Family law,Division
• Plaintiff Counsel: Foo Soon Yien and Oh Zhen Hao, Thaddeus (Bernard & Rada Law Corporation)
• Published date: 01 May 2018
• Hearing Date: 08 February 2018
• Date: 24 April 2018
• Docket Number: Civil Appeal No 92 of 2017

Judith Prakash JA (delivering the grounds of decision of the court): Introduction

In October 2014, the Family Justice Act 2014 (No 27 of 2014) (“the FJA”) was brought into force. One of the purposes of the Act was to give jurisdiction over family proceedings to a dedicated court system which could design the best processes and approaches to deal with an area of law which has wide-ranging societal and personal impact. To this end, the FJA established three courts as Family Justice Courts: the Family Division of the High Court (the “Family Division”), the Family Courts and the Youth Courts. This judgment is concerned with one aspect of the jurisdiction of a court which is exercising the jurisdiction and powers of the Family Division or the Family Courts, which court we sometimes hereafter refer to as a “family justice court”.

An important function of a family justice court is to handle the disputes that frequently arise when a marriage breaks down. Such disputes often involve the ownership and distribution of property. There are almost as many ways of acquiring and owning a property as there are human relationships. Accordingly, the property that may be the subject of competing claims between husband and wife may also be subject to claims from third parties. The issue which was brought into sharp focus in this case was the extent of the jurisdiction of a family justice court exercising powers in relation to the division of property on divorce when third party interests are involved.

Background

This case involves a husband, a wife, and the wife’s mother. Divorce proceedings were started by the husband in 2008. The proceedings were prolonged due to disputes unrelated to the issue before us. By 2015, matters had reached the stage where the parties were preparing for the ancillary matters hearing on the division of matrimonial property. In July 2015, the mother, whom we shall henceforth call “the intervener”, applied for leave to intervene in the divorce proceedings. The basis of her application was that she wished to dispute the husband’s claim that an immovable property owned by the intervener was actually held by her on trust for the husband and wife and constituted a matrimonial asset. This application succeeded before the Family Court.

Thereafter, the husband applied for leave to cross-examine the intervener and the wife in respect of the dispute over the ownership of the property. The Family Court granted leave for cross-examination of the husband, the wife and the intervener. The wife and the intervener were dissatisfied and appealed to the Family Division against the order for cross-examination. On the hearing of the appeal, the High Court Judge (“the Judge”) raised the question of whether the court, exercising its power under s 112 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Charter”), had the jurisdiction and power to determine the intervener’s interest in the property and make orders against her since she was a third party to the divorce proceedings.

The intervener and the wife took the position that the court ought to determine any property dispute involving the intervener together with the issues under s 112 of the Charter. They submitted that although this section did not expressly state that the court which dealt with the division of matrimonial property had such power, such courts had in the past determined the nature and extent of third party interests before dividing the matrimonial assets between divorcing spouses. Further, this jurisdiction arose, if not from s 112 of the Charter, then from ss 22 and 25 of the FJA as well as ss 16 and 17 of and the First Schedule to the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”).

The husband, on the other hand, argued that s 112 of the Charter did not apply to the determination of a third party’s property rights and a separate civil suit had to be commenced by either the intervener or the divorcing parties in relation to the disputed property.

The decision below

The Judge decided to stay the hearing of the ancillary matters pending further directions on the basis that the family justice court exercising jurisdiction and power to make orders under s 112 of the Charter does not have the jurisdiction and power over a third party such as to enable it to make an order directly affecting the third party’s property rights. Her reasons were given in her written grounds identified as UDA v UDB and another [2017] SGHCF 16 (“the GD”).

The Judge began her analysis by setting out the three possible approaches which a family justice court could take in the course of an ancillary matters hearing in which a claim was made that an asset legally owned by a third party was in fact a matrimonial asset: Option 1(a): the court, exercising its powers under s 112 of the Charter, hears the evidence of the intervener and the divorcing parties in order to determine whether the disputed asset is a matrimonial asset. It can do this either on affidavit evidence only or by permitting cross-examination. If the court concludes that one or both of the divorcing parties has/have a beneficial interest in the property, it may include the asset in the matrimonial pool but not make any order directly affecting that asset (GD at [13]–[15]). For example, if the court determines that Asset X is held in the sole name of the intervener but is beneficially owned by the husband, it may include the husband’s interest in Asset X in the pool of matrimonial assets, but effect a just and equitable division only by making orders directly affecting the other assets in the pool. For example, the court could order the husband to pay a larger proportion of his income to the wife, instead of giving her a share in his interest in Asset X. Option 1(b): the same as Option 1(a), save that the court further provides in its order that, should there subsequently be a civil action determining the beneficial interest of any of the disputed assets, its order should be modified in the manner specified to take into account the final outcome of the civil action. Option 2: the court stays the proceedings under s 112 in order to allow the property dispute to be separately determined first. This option needed no further discussion as being part of the court’s case management powers. Option 3: the court simply determines the property interests in the asset in the s 112 proceedings and makes orders affecting that property – for example, a sale or transfer of the property.

The Judge noted that there was case support for both versions of Option 1 and for Option 3. Option 1(a) was used in Lau Loon Seng v Sia Peck Eng [1999] 2 SLR(R) 688 (“Lau Loon Seng”), Option 1(b) was used in Yeo Chong Lin v Tay Ang Choo Nancy and another appeal [2011] 2 SLR 1157 (“Yeo Chong Lin”) and Option 3 was used in ABX v ABY and others [2014] 2 SLR 969 (“ABX v ABY”).

The Judge went on to reject Option 3 as a lawful and viable option because, in her view, the court lacked jurisdiction in s 112 proceedings to make an order which would affect a third party’s substantive rights and remedies (GD at [31] and [33]). She reasoned that the court’s power under s 112 “lies within the family law regime, and its exercise should be made on family law principles, in contrast to principles that govern other areas of law, such as property law or succession law”. The court’s powers under s 112 are “forceful” and should not be enlarged by general jurisdiction-conferring provisions in the FJA or SCJA (GD at [27]).

Further, the court’s power in s 112 is ancillary to its matrimonial jurisdiction and gives it the power to “order the division between the parties of any matrimonial asset” [emphasis added]. This jurisdiction is exercised over the two parties to the marriage only (GD at [28]). Moreover, it is ancillary in that it arises only when the court grants at least an interim judgment of divorce or nullity, or a judgment of judicial separation (GD at [29]). The phrase “between the parties” – appearing twice in s 112(1) – means that the court can only interfere directly with the property rights of the divorcing parties, and not with those of a non-party or an intervener. The court’s jurisdiction does not extend to making orders against the third party (GD at [27], [28] and [31]).

The Judge also dealt with the intervener’s submission that the court had power to deal with a third party claim by virtue of s 25 of the FJA. In her view, this submission reflected a misunderstanding of the court’s matrimonial jurisdiction and its s 112 power (GD at [32]). While s 25 of the FJA did confer broad civil jurisdiction on the Family Division, the point was that such jurisdiction had to be appropriately invoked by the correct party.

The Judge observed that the participation of an intervener does not expand the court’s jurisdiction and powers when it makes orders under s 112. The supposed basis for intervention, r 353 of the Family Justice Rules (GN No S 813/2014) (“the FJ Rules”), is in pari materia with O 15 r 6 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed). The cases suggest that O 15 r 6 is a procedural rule for the practical and efficient disposal of the case and “does not give a party additional substantive rights” (GD at [36]). In the case of intervention in ancillary relief proceedings, the court remains constrained by s 112 to make orders against the divorcing parties only, and not against the intervener, who is not a party to the marriage and therefore “does not come under the jurisdiction of the court exercising its matrimonial jurisdiction” (GD at [31]).

The Judge also considered but rejected the notion that the “judge-led approach” (see Part 3 of the FJ Rules) provided a basis for the court to affect a third party’s substantive rights and remedies in s 112 proceedings (GD at [33]). Ancillary matters proceedings under s 112 were not tailored to address property disputes...