VNM v VNN

• Jurisdiction: Singapore
• Judge: Adriene Cheong
• Judgment Date: 21 December 2020
• Neutral Citation: [2020] SGFC 103
• Court: Family Court (Singapore)
• Docket Number: Divorce No 2765 of 2018 (Summons Nos. 1317 of 2020 and 1338 of 2020)
• Year: 2020
• Published date: 24 December 2020
• Hearing Date: 01 September 2020,13 August 2020,29 September 2020
• Plaintiff Counsel: Ganga D/O Avadiar (M/S Advocatus Law LLP)
• Defendant Counsel: Say Chin Phang Sean, Leow Wei Jie Andy (M/S Keystone law Corporation LLC)
• Subject Matter: Division of Matrimonial Assets,Variation of Order
• Citation: [2020] SGFC 103

District Judge Adriene Cheong:

This judgment deals with cross-applications to vary a consent Order in relation to the division of the matrimonial assets. I heard oral submissions on 13 August 2020 and reserved my decision pending further information from parties. I subsequently informed parties of my decision by Registrar’s Notice on 1 September 2020 with accompanying brief reasons; and a subsequent decision on 29 September 2020 on the outstanding issue of costs. The Defendant has filed an appeal against the entirety of my decision and I now provide my reasons in full.

Introduction

The cross-applications revolved around the regulation of parties’ conduct to enforce the terms of a consent Order entered into in January 2019 relating to a property in Singapore (“Singapore property”) and a property in the Philippines (“Philippines property”) which remained unresolved.

Facts The parties

Parties were married in December 2013. In June 2018, the Plaintiff/Husband (“the Husband”) commenced the Writ for divorce. The Interim Judgment was granted in January 2019 dissolving the marriage where parties’ agreement on the majority of the outstanding issues was similarly recorded in the Interim Judgment (“the Consent IJ”). Parties subsequently entered into a further Consent Order in August 2019 on the remaining terms. The Final Judgment was extracted in September 2019.

The portions of the Consent IJ that are relevant to the current dispute are Clauses 1a and 1b: Relating to the Singapore property: the Husband was to pay the Wife a sum of $27,500 (being the agreed value equivalent to 5% of the prevailing market value of the Singapore property) by 30 March 2020 (i.e. 6 months from the Final Judgment); Relating to the Philippines property: the Husband was to sell the property and pay the Wife 50% of the net proceeds of sale by 30 March 2020 (i.e. 6 months from Final Judgment).

Background to the dispute

It is undisputed that the Husband is the sole owner of both properties in Singapore and the Philippines.

Pursuant to the terms of the Consent IJ, the Husband was to complete the 2 obligations relating to the properties within 6 months from the date of Final Judgment, i.e. by 30 March 2020. This is also undisputed.

It is further undisputed that at the time the applications were filed, and when the matter was heard in August 2020, these obligations remained pending. In other words, the Philippines property had not yet been sold and the Wife had not received the sums due to her for both the Singapore and the Philippines properties.

The parties’ cases

In June 2020, the Husband commenced the variation application seeking adjustments to the Consent IJ to facilitate the sale of the Philippines property.

The Wife filed her application the following day after the Husband’s application was served on her through her solicitors.

She sought adjustments to the Consent IJ for an extension of time for the sale of the Philippines property and for a penal notice to be inserted. She was of the view that the Husband was intentionally delaying the payment of the sums due to her.

The Husband perceived that the Wife had obstructed the sale of the Philippines property and sought orders to remedy this. He also asserted that he faced financial difficulties and sought an adjustment to allow him to pay the sum of S$27,500 (“the Sum”) due to the Wife for the Singapore property through monies in his Central Provident Fund (“CPF”) account instead of in cash.

After consideration, I made the following Orders: That Clause 1b of the Order of 21 February 2019 be varied to read as follows: The sum of S$27,500 (being the agreed value equivalent to 5% of the prevailing market value of the matrimonial flat located at [Singapore Property] shall be paid by the Husband to the Wife in cash within 7 days of the date of the completion of sale of the property referred to at paragraph 1c of the Order. That Clause 1c of the Order dated 21 February 2019 be varied to read as follows: The Husband’s condominium unit situated at [Philippines Property], shall be sold in the open market within 6 months of the date of this Order. 50% of the net proceeds of sale (defined as sale proceeds less any necessary costs and expenses related to the sale of the property) shall be paid by the Husband to the Wife within 7 days from the completion of the sale. The Husband shall have sole conduct of sale. The Husband shall be at liberty to elect, within 7 days of this Order (a) for the Wife to provide the Husband’s appointed agent with a set of keys to the property within 7 days of the Husband’s election, or (b) for the Wife to provide the Husband with a set of keys to the property within 21 days of the Husband’s election. Apart from the above, each party shall retain their own assets in their respective names. (no change from the original terms of the IJ)

Issues to be determined

Given the cross-applications by parties, there were several distinct but related issues involved. The focus will be on issues of relevance to the Appeal as filed by the Wife. I will deal briefly with the other issues that are unlikely to be relevant for the purposes of the present Appeal by the Wife.

The issues for determination were: The timing and manner of payment of the Sum by the Husband to the Wife; The terms of vacant possession of the Philippines property; Whether a Penal Notice should be inserted; Whether the Orders should be set aside or varied due to the Wife’s conduct; Costs.

Issue 1: Timing and manner of payment of the Sum

Whilst parties agreed on the quantum of S$27,500 that represented the 5% as provided for at Clause 1a of the Consent IJ, they disagreed on when and how it should be paid.

The Husband sought to vary the terms of the Consent IJ to allow for him to utilise monies in his CPF account to make this payment, citing cashflow issues. The Wife objected to this, referring to the terminology of the Consent IJ, which reflected a cash payment².

The Husband agreed that it was parties’ original intention for it to be paid by cash but sought a variation by reason of the material change in his cash position due to a significant reduction of his income³. He also made reference to the linked issue that the timing of the payment to the Wife should be tagged to the completion of the sale of the Philippines property⁴. The Wife maintained that Clauses 1a and 1b of the Consent IJ were independent of each other and no references were made to suggest that they were dependent⁵. She asked for an immediate payment of the Sum due to her.

On this issue, I found no reason to disturb the original intent of parties, that the Sum was to be paid by the Husband to the Wife in cash. If parties had intended for the sum to be paid through monies in the Husband’s CPF account, there would have been the corresponding supplemental Orders relating to the transfer of funds in line with the applicable CPF Rules and Regulations, which were absent. In fact, I observed that no reference was made to CPF at all in the relevant clauses contained in the Consent IJ.

However, I found that it was parties’ intention that the timing of the cash payment was to be made in or around the same time when the Philippines property was sold. If not concurrently, then at least consecutively. This was because the time frame for both obligations pursuant to Clauses 1a and 1b of the Consent IJ were listed identically as 6 months from the date of Final Judgment, i.e. by 30 March 2020. In my view, if parties had strictly complied with the terms of the Consent IJ, the Philippines property would have been sold or close to completion of a sale, at the point of time where the Husband’s obligation to pay the Sum to the Wife became due. Even though I accept that the obligations were not specifically linked or worded to be dependent on each other, the stated timelines for both obligations were clearly aligned in the Consent IJ. I saw no reason to depart from parties’ original intention and given that both parties had not complied with the original terms of the Consent IJ and adjusted the Orders to reflect this.

I found the Wife’s concern that the Husband would potentially delay the sale of the condominium⁶ if the payment was linked to the sale to be speculative at best and equivocal, in light of the fact that the Wife’s continued exclusive occupation of the property (through her family members) that she averred remained until the property was sold, and had asserted her alleged right as a co-owner of the conjugal property pursuant to the laws of Philippines⁷.

At this juncture, I would elaborate on a submission made by the Wife, that the Consent IJ should not have been varied as the situation did not cross the threshold as envisioned by the seminal Court of Appeal case of AYM v AYM [2012] SGCA 68, read with TYA v TYB [2017] SGHCF 29.

At first blush, I found this submission to be an odd position to adopt in defending the Husband’s variation, given that the Wife herself had filed her own variation application,...