UMV v UMW
Court | Family Court (Singapore) |
Judge | Eugene Tay |
Judgment Date | 10 July 2018 |
Neutral Citation | [2018] SGFC 60 |
Citation | [2018] SGFC 60 |
Docket Number | D 3001/2013, FC/SUM 386/2018 |
Hearing Date | 10 May 2018 |
Plaintiff Counsel | Ms Geralyn Danker (M/s Veritas Law Corporation) |
Defendant Counsel | Mr Kishan Pratap (M/s Ho Wong Law Practice LLC) |
Subject Matter | Family Law,S112(4) Women's Charter,Setting aside of Consent Order |
Published date | 14 July 2018 |
The present application, Summons No. FC/386/2018 (“the Application”) was filed by the Defendant on or about 29 January 2018 to set aside the order of Court dated 16 October 2013 made by consent (“the Order).
I heard and dismissed the Application on 10 May 2018, and awarded the Plaintiff costs fixed at $2,500.00 all-in. The Defendant (who was legally represented at the hearing on 10 May 2018) had since filed an appeal in person on or about 22 May 2018 (having earlier filed his Notice of Intention to Act in Person in Place of Solicitor on or about 17 May 2018). I now set out the reasons for dismissing the Application.
BackgroundParties were married on 21 June 1974 at the Singapore Marriage Registry. They have two grown children of the marriage, a daughter born in 1976 and a son born in 1979. The Plaintiff commenced divorce proceedings in Singapore on or about 17 June 2013. Interim Judgment was granted on 6 August 2013 on an uncontested basis on the grounds that the Defendant has behaved in such a way that the Plaintiff cannot reasonably be expected to live with the Defendant, with the ancillary matters adjourned to Chambers.
Subsequently, on or about 20 September 2013, a draft consent order (“the DCO”) containing the following terms (including the Defendant’s consent signed before a Commissioner for Oaths) was filed in Court:
On 16 October 2013, the Order was recorded in Court before District Judge Lim Choi Ming based on the terms in the DCO set out at [4] above. Final Judgment was subsequently granted on 8 November 2013.
After the Application was filed, it was first fixed before me on 26 April 2018. At this hearing, the Defendant’s solicitor sought an adjournment to file a further reply affidavit in response to the Plaintiff’s second affidavit filed on or about 17 April 2018 without leave of Court. After the Plaintiff’s solicitor confirmed that she was prepared to proceed with the hearing without the Plaintiff’s second affidavit, the Defendant’s solicitor still sought an adjournment to prepare written submissions. After hearing from both solicitors, I disallowed the Plaintiff’s second affidavit, and adjourned the hearing to 10 May 2018. I also directed parties to exchange and submit written submissions by 3 May 2018.
At the hearing on 10 May 2018, the following documents were before me:
After considering the evidence and submissions, I heard and dismissed the Application, as stated at [2] above.
The Defendant’s case The Defendant contended that the Order should be set aside based on the following grounds1:
On fraudulent non-disclosure of material facts, the Defendant contended that the Plaintiff had dishonestly and intentionally failed to disclose his mental state at the time of the divorce suit, and this non-disclosure resulted in a materially different order from what would have otherwise been granted2. The Defendant further highlighted that he was unrepresented throughout the course of the proceedings, and claimed he was in a state of shock3. He submitted that in such circumstances, the onus should fall on the Plaintiff to keep the Court cognisant of his condition, which was evidently not done4. He also claimed that the Plaintiff was aware that there were valid concerns as to his rationality and decision making ability at the time he signed the DCO5.
The Defendant submitted that the present instance of fraudulent non-disclosure was clearly material, and it is definitely unlikely that any Court would permit someone who was suffering from mental ailment to execute a consent order, especially in his frail state of mind6. He further submitted that the appropriate remedy would be to set aside the entirety of the Order7.
On the Plaintiff taking unfair advantage over the Defendant in the course of negotiating and settling the terms of the Order, the Defendant alleged the present case was not one where the agreement between the parties was negotiated at arm’s length through the parties’ legal representatives, and instead, the entire proceedings involved in Plaintiff constantly and systematically preying on the Defendant’s insecurities and fragile state of mind, in order to unilaterally impose her own terms on him8. He submitted that the Order was far from a genuine settlement between the parties, and was instead nothing more than a result of the Plaintiff’s schemes9.
On the Order being tainted by undue influence, the Defendant submitted that the vitiating factor of undue influence in the context of matrimonial proceedings should not operate as stringently as in an ordinary commercial setting, and that the legal burden in establishing the presence of any vitiating factors in matrimonial proceedings be lowered to take into account the different context10.
The Defendant cited the case of
The Plaintiff’s case is that the Application is complete devoid of merit and is in essence a backdoor appeal against the Order which the Defendant had freely consented to in 2013, and that the Defendant is essentially seeking a second bite at the cherry when there is no basis16.
The Plaintiff asserted that the Defendant had failed to adduce any proof that would prove on balance of probabilities that either (i) an unfair advantage had been taken of him during the negotiating of the terms of the Order or (ii) that there had been some inequitable circumstance warranting the Court’s interference17. The Plaintiff highlighted that none of the medical reports adduced by the Defendant went so far as to say either that the Defendant’s condition had impaired his ability to make decisions at the...
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VMA v VMB
...written submissions for the case law on setting aside Consent Orders in particular, to the cases of AOO v AON [2011] SGCA 51, UMV v UMW [2018] SGFC 60 and Lee Ming Jai v Chua Cheow Koon [2004] SGHC 275. In citing the case of AOO v AON, the Wife’s Counsel submitted that the absence of full a......