VBE v VBF

• Jurisdiction: Singapore
• Judge: Wendy Yu
• Judgment Date: 04 October 2019
• Neutral Citation: [2019] SGFC 107
• Court: Family Court (Singapore)
• Hearing Date: 29 May 2019,24 June 2019
• Docket Number: Divorce No. D457/2018, District Court Appeal No. 78 of 2019 & No. 79 of 2019
• Plaintiff Counsel: Wong Chooi Teng Sarah with Eldan Tan, Intern (Optimus Chambers LLC)
• Defendant Counsel: Chan Poh Choo Serene with Lee Jia Hern, Intern (Serene Chan & Co)
• Subject Matter: Amendment,Variation of Consent Order,Res Judicata
• Published date: 12 October 2019

District Judge Wendy Yu: Introduction

The parties are already divorced and the ancillaries were resolved with a consent order granted (together with the Interim Judgment) on 21 February 2018 (“the Consent Order”). The Plaintiff hereinafter referred to as “the Plaintiff”) was represented in the divorce proceedings while the Defendant (hereinafter referred to as “the Defendant”) was in person. As stated in the pleadings and Consent Order, the parties have two children in the marriage, namely B (male, born on xxx 2012) and C (female, born on xxx 2015). The Consent Order stated, inter alia, that parties shall have joint custody of the children of the marriage, with care and control to the Defendant while the Plaintiff shall be liberal access to the children of the marriage. The Certificate of Final Judgement was granted on 23 May 2018.

There was another child E (born on xxx 2014) (“E”), who is the biological child of the Plaintiff but not the biological child of the Defendant¹. E was not listed as a child of the marriage in the divorce papers. This issue became a point of contention between parties in this application before me.

On the issue of matrimonial assets, paragraph 3(c)(i) of the Consent Order stated as follows: “(i) That all of the Plaintiff’s rights, title and interest in the matrimonial flat at xxx shall be transferred to the Defendant within 3 months from the date of the Final Judgment, upon the Defendant paying a sum equivalent to 40% of the market value of the flat less outstanding mortgage loan to the Plaintiff. The Plaintiff shall refund her own CPF account with accrued interest for funds paid towards the purchase of the said flat. The Defendant shall be solely responsible for the payment of the outstanding mortgage loan (if any) and all costs and expenses of transfer. (ii) In the event that the Defendant does not wish to take over the ownership of the matrimonial flat at xxx, all of the Defendant’s rights, title and interest in the matrimonial flat at xxx shall be transferred to the Plaintiff within 6 months from the date of the Final Judgment, upon the Plaintiff paying a sum equivalent to 60% of the market value of the flat less outstanding mortgage loan to the Defendant. The Defendant shall refund his own CPF account with accrued interest for funds paid towards the purchase of the said flat. The Plaintiff shall be solely responsible for the payment of the outstanding mortgage loan (if any) and all costs and expenses of transfer. (iii) the Registrar or Deputy Registrar of the Family Justice Courts under section 31 of the Family Justice Act No. 27 of 2014 is empowered to execute, sign or indorse all necessary documents relating to matters contained in this order on behalf of either party should either party fail to do so within seven (7) days of written request being made to the party.”

The Plaintiff filed an application (SUM 281/2019) on 22 January 2019 for the following orders, “1. That paragraph 4 of the Statement of Claim for Divorce be amended to include the particulars of E (Birth Certificate No. xxx); 2. Following an order granted for amendment pursuant to (1) above (if any), that 3(c)(ii) be varied as follows:

“The Plaintiff be entitled to take over the Defendant’s rights, title and interests in the matrimonial flat located at xxx (“the Matrimonial Flat”) within 6 months from the date of the Order herein, upon the Plaintiff paying the Defendant a sum equivalent to 60% of the market value of the Matrimonial Flat, less outstanding mortgage loan to the Defendant. The Defendant shall refund his own CPF account with accrued interests for funds paid towards the purchase of the said flat. The Plaintiff shall be solely responsible for the payment of the outstanding mortgage loan (if any) and all costs and expenses of transfer.”

3. Following an order granted for amendment pursuant to (i) above (if any), that 3(c)(ii) be amended to include as follows:

“For the avoidance of doubt, the calculation of the consideration payable by the Plaintiff to the Defendant shall be calculated as follows:- A. Parties shall first ascertain what is 60% of the market value of the Matrimonial Flat; B. Thereafter, the sum payable by the Plaintiff to the Defendant shall be equivalent of the sum in (A) hereinabove less the outstanding mortgage loan.”

4. That in the interim pending the outcome of this application, the Defendant be restrained from effecting the transfer of the ownership of the matrimonial flat located at xxx (“the Matrimonial Flat”) to his sole name; 5. That the Defendant pays the sum of S$1,200 as monthly for the child of the marriage, E (Birth Cert No. xxx) 6. Costs; 7. Such further and other orders as the Honourable Court deems fit.”

The Defendant subsequently filed an application in SUM 1220/2019 on 10 April 2019 asking for orders to be made to give effect to paragraphs 3(c)(i) and (iii) of the Interim Judgment dated 21 February 2018 as follows: a. That all of the Plaintiff’s rights, title and interest in the matrimonial flat at xxx (“Matrimonial Flat”) shall be transferred to the Defendant within 3 months from the date of this Order of Court, upon the Defendant paying a sum of $260,000 (equivalent to 40% of the market value of the flat being $650,000) less outstanding mortgage loan to the Plaintiff. The Plaintiff shall refund her own CPF account with accrued interest for funds paid towards the purchase of the said flat. The Defendant shall be solely responsible for the payment of the outstanding mortgage loan (if any) and all costs and expenses of transfer; b. The Registrar or Deputy Registrar of the Family Justice Courts under Section 31 of the Family Justice Act No. 27 of 2014 is empowered to execute, sign, or indorse all necessary documents relating to the transfer of the Matrimonial Flat on behalf of the Plaintiff; c. If the HDB is not prepared to act for the Plaintiff in the transfer, and the Plaintiff does not appoint her conveyancing solicitors within seven (7) days of written request being made to the Plaintiff, then the Defendant’s conveyancing solicitors Serene Chan & Co. shall be authorised to act for both parties in the transfer; d. For the transfer of the Matrimonial Flat, the Defendant shall pay the Plaintiff a sum of $260,000 less 40% of the outstanding mortgage loan. After deducting the refund to the Plaintiff’s CPF account with accrued interest for funds paid towards the purchase of the said flat, the balance cash proceeds (subject to the deduction of costs of these proceedings ordered herein) shall be paid to the Plaintiff by either of the following methods upon completion of the transfer or upon the Plaintiff vacating the Matrimonial Flat, whichever is later:- (i) If Plaintiff appoints her own conveyancing solicitors, the casher’s order in favour of the Plaintiff shall be handed to the Plaintiff’s solicitors; or (ii) If Plaintiff does not appoint her own conveyancing solicitors, the casher’s order in favour of the Plaintiff shall be deposited by Serene Chan & Co into the Plaintiff’s POSB Account No. xxx. e. Costs of this Summons and Summons No. FC/SUM 281/2019 to be paid by the Plaintiff to the Defendant, such costs to be deducted from the Plaintiff’s net sale proceeds of the Matrimonial Flat; and f. Such further or other reliefs as the Court deems fit.”

The Plaintiff’s Submissions

The Plaintiff’s application to amend the pleadings of the divorce is because there is another child, E, who is about 4 years and 3 months at the time of filing of the Plaintiff’s 1st affidavit², who was not included in the pleadings as a child of the marriage when the divorce papers were filed. The Plaintiff has stated in her submissions that E “is a child of the marriage who ought to have been included in the Statement of Claim and to whom the Defendant is liable to maintain.”³

The Plaintiff’s counsel has cited the case of EB v EC [2006] 2 SLR 475 to support her argument that once the Defendant had accepted E as a child of the family he should not be able to change his mind.⁴ The Plaintiff has also used s122, s123 and s 92 of the Women’s Charter to support her argument that the divorce proceedings ought to take into account all the children of the marriage⁵. The Plaintiff further contended that as E’s name was excluded in the Statement of Claim, this should be rectified and a claim for E’s maintenance should be heard now as well,⁶ as the Defendant had accepted E as a member of his family under s 70 of the Women’s Charter.⁷ The Plaintiff has also asserted that as E is currently not maintained by his biological father, the Defendant should assist the Plaintiff in maintaining E.⁸ According to the Plaintiff, her previous lawyers had advised her that E’s name was not to be included in the pleadings at the divorce.⁹ The Plaintiff has explained that as E was a child born during the course of the marriage and the Defendant having had accepted him, she needed to include E in the relevant documents and also to assist her in the process of obtaining financial assistance from HDB to purchase the matrimonial flat¹⁰.

The Plaintiff has explained that there was a delay in her taking over the matrimonial flat as her housing loan was only approved on 7 November 2018¹¹ and because of E’s status in the divorce proceedings¹². The Plaintiff has also argued that the Defendant had reneged on their agreement by intending to take over the matrimonial flat in 27 December 2018 and parties were not able to agree on the market value of the flat.¹³ The Plaintiff has requested for more time to take over the matrimonial flat¹⁴, and is asking for the market value to be fixed at $564,590.00 which was the purchase price of the matrimonial flat¹⁵.

The Plaintiff further explained that the Consent Order as drafted in the Interim Judgment...