UMV v UMW

• Jurisdiction: Singapore
• Judge: Eugene Tay
• Judgment Date: 10 July 2018
• Neutral Citation: [2018] SGFC 60
• Court: Family Court (Singapore)
• Docket Number: D 3001/2013, FC/SUM 386/2018
• Year: 2018
• Published date: 14 July 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
• Citation: [2018] SGFC 60

District Judge Eugene Tay: Introduction

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.

Background

Parties 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: that the Defendant shall transfer his interest, title and share in the matrimonial home at xxx, Singapore xxx (“the Jalan Mutiara Property”) to the Plaintiff without any CPF refunds required to the Defendant’s CPF accounts nor with any cash consideration the Defendant shall redeem the outstanding loan with DBS Bank Account No. xxx on his own. the costs and expenses of the transfer of the Jalan Mutiara Property shall be borne by parties in equal shares. the transfer of the Jalan Mutiara Property shall be completed within six months from the date of the Final Judgment being granted. in the event of either party failing to execute all relevant documents pertaining to the transfer of the Jalan Mutiara Property within 7 days of a request to do so, that the Registrar of the Subordinate Courts shall be empowered to execute the same on behalf of the defaulting party pursuant to section 45(1) of the Subordinate Courts Act (Cap 321) Rev Ed 2007. that the Defendant shall transfer his interest, title and share in the property situate and known as xxx, Singapore xxx (“the Jalan Pemimpin Property”) to the Plaintiff without any cash consideration. the costs and expenses of the transfer of the Jalan Pemimpin Property shall be borne by parties in equal shares. the transfer of the Jalan Pemimpin Property shall be completed within six months of the date of the Final Judgment being granted. in the event of either party failing to execute all relevant documents pertaining to the transfer of the Jalan Pemimpin Property within 7 days of a request to do so, that the Registrar of the Subordinate Courts shall be empowered to execute the same on behalf of the defaulting party pursuant to section 45(1) of the Subordinate Courts Act (Cap 321) Rev Ed 2007. that the Defendant shall transfer his interest, title and share in the property situate and known as xxx, Singapore xxx (“the Valley Park Property”) to the Plaintiff without any cash consideration. the costs and expenses of the transfer of the Valley Park Property shall be borne by parties in equal shares. the transfer of the Valley Park Property shall be completed within three months of the date of the Final Judgment being granted. in the event of either party failing to execute all relevant documents pertaining to the transfer of the Valley Park Property within 7 days of a request to do so, that the Registrar of the Subordinate Courts shall be empowered to execute the same on behalf of the defaulting party pursuant to section 45(1) of the Subordinate Courts Act (Cap 321) Rev Ed 2007. that parties shall have no further claims against each other and shall retain all other assets held in their respective sole names. each party to bear his/her own costs. that there be liberty to apply.

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: the Defendant’s affidavit filed on 29 January 2018 (DA1); the Plaintiff’s affidavit filed on 9 March 2018 (PA); the Defendant’s affidavit filed on 6 April 2018 (DA2); the Plaintiff’s written submissions filed on 25 April 2018 (PS1); the Defendant’s written submissions filed on 4 May 2018 (DS); the Plaintiff’s reply submissions filed on 10 May 2018 (PS2).

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: the Plaintiff’s fraudulent non-disclosure of material facts, arising from her failure to disclose the Defendant’s mental condition at the time; the Plaintiff taking an unfair advantage over the Defendant in negotiating and settling the terms of the Order; and the Order being tainted by actual undue influence.

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 BOK v BOL [2017] SGHC 316 (“BOK”) in respect of undue influence, and stated that he was relying on actual undue influence on the part of the Plaintiff¹¹. The Defendant claimed that the Plaintiff’s capacity to influence him at the time of the divorce suit was indisputable, given their long marriage and his continued affection for her then¹². He also claimed that due to the effects of the divorce and his condition, his mental state at the time left him reclusive and susceptible to her influence, and that his condition also prevented him from seeking independent legal advice¹³. He further claimed that the cumulative effect of her undue influence eventually resulted in him being swindled into signing the DCO¹⁴. He submitted that actual undue influence was clearly made out, thereby vitiating the entirety of the Order¹⁵.

The Plaintiff’s case

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...