VZV v VZW

• Jurisdiction: Singapore
• Judge: Goh Kiat Yi
• Judgment Date: 21 January 2022
• Neutral Citation: [2022] SGFC 9
• Citation: [2022] SGFC 9
• Court: Family Court (Singapore)
• Published date: 28 January 2022
• Docket Number: Divorce No 2552 of 2020 Summons 2165 of 2021
• Plaintiff Counsel: Mr Nathan Aaron Benjamin (Aaron & Co.)
• Defendant Counsel: Mr Lim Junchen Xavier (Yeo & Associates LLC)
• Subject Matter: Family Law,Ancillary Matters,Division of Matrimonial Assets,Settlement Agreement
• Hearing Date: 01 November 2021,22 October 2021

District Judge Goh Kiat Yi: Introduction

The present case concerns the ancillary matters following the dissolution of the marriage between the Plaintiff wife (“the wife”) and the Defendant husband (“the husband”). Summons 2165 of 2021 is the wife’s application for judgment to be entered on the ancillary issues pursuant to an alleged settlement agreement concluded between parties in June 2021 (“Sum 2165”).

After hearing parties, I dismissed Sum 2165 and made orders on the ancillary issues as follows: In full and final settlement of the division of matrimonial assets, the matrimonial flat at Block xxx Singapore is to be sold in the open market and the net proceeds after less the outstanding loan, HDB resale levy (if any) and cost and expenses of sale is to be divided in the ratio of 35% and 65% to the Plaintiff and Defendant respectively. Parties shall refund their own CPF accounts for the monies utilised in the purchase including accrued interest. Parties to have joint conduct of sale. Each party shall retain all assets in their own names. The Registrar or Assistant 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 on 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 other party. There shall be no wife maintenance. Plaintiff to pay the Defendant cost fixed at S$1,250.

The wife has appealed against my dismissal of Sum 2165 and the ancillary orders in part on the division of the matrimonial home and costs.

Background

The wife and the husband were married on 13 August 1982. They have two adult children to the marriage, a daughter who is 37 years old and a son who is 35 years old.

The wife is 60 years old and works as a cleaner. The husband is 66 years old and last worked as a flyer distributor.

The wife commenced the present proceedings in June 2020 and the divorce was granted on an uncontested basis on the wife’s claim of four years separation. Based on the statement of particulars, parties have been living apart since the year 2000 due to unhappy differences.¹ It is not disputed that they continued to live at the same address notwithstanding the separation with the wife only moving out sometime in 2020.² The parties slept in separate bedrooms during the separation.³

The interim judgment was granted on 10 November 2020. This was a long marriage of around 38 years until the interim judgment and 18 years until the time of separation.

Documents filed

I set out the documents filed by parties for ease of reference.

Plaintiff Wife	Defendant Husband
Supporting affidavit for Sum 2165 (“PA1”)	Reply affidavit for Sum 2165 (“DA1”)
Final reply affidavit for Sum 2165 (“PA2”)
1st Affidavit of Assets and Means (“PAOM1”)	1st Affidavit of Assets and Means (“DAOM1”)
2nd Affidavit of Assets and Means (“PAOM2”)	2nd Affidavit of Assets and Means (“DAOM2”)
3rd Affidavit of Assets and Means (“PAOM3”)	3rd Affidavit of Assets and Means (“DAOM3”)
4th Affidavit of Assets and Means (“PAOM4”)
Letter dated 27 October 2021 (“letter”)
Written submissions (“P submissions”)	Written submissions (“D submissions”)
Bundle of Authorities
AM fact and position sheet	AM fact and position sheet

SUM 2165

I begin with Sum 2165 which is the wife’s application to enter judgment on the ancillary issues in the terms on an alleged settlement agreement (“the alleged settlement agreement”). The background leading to this application is largely undisputed.

Parties were given the usual directions to file their respective ancillary affidavits following the grant of the interim judgment. At the case conference on 10 March 2021, parties agreed to attend mediation to resolve the outstanding ancillary issues with the first mediation fixed on 8 April 2021. Parties concurrently exchanged without prejudice correspondences. A second mediation date was fixed on 28 April 2021 (“the second mediation”).

On 26 April 2021, two days before the second mediation, the husband’s solicitors wrote to the wife’s solicitors by way of a without prejudice letter proposing certain terms to resolve the dispute (“the without prejudice letter”).⁴ The salient terms of the letter are as follows:

“…

2. Our client does not accept your client’s [the wife] proposal and can only view your client’s proposals as disingenuous. 3. Our client proposes the following: a) The matrimonial flat at Blk xxx Singapore be sold in the open market within 6 months from the date of the Certificate of Final Judgment and the proceeds of sale less costs and expenses to be divided 70%-30% in your client’s favour with parties responsible for refunding their respective CPF account(s);

…

b) There shall be no wife maintenance;

…

4. Please take the above as out client’s bottom-line proposal. 5. If your client is agreeable, parties may proceed to record a settlement during the next mediation . If, however, your client is not agreeable, our client takes the position that he will not be making any further revised proposals and it would be pointless attending further mediation and we will write in to court to vacate the mediation and to fully contest the ancillary matters at the AM hearing.

(emphasis in bold mine)

The wife did not reply to the without prejudice letter and parties proceeded to attend the second mediation on 28 April 2021. The mediation was unsuccessful and directions were given by the court for the ancillary matters to be contested with further ancillary affidavits to be filed. Parties attended a case conference on 8 June 2021 where the wife sought an extension of time to file and serve her third ancillary affidavit.

In a surprising turn of events, the wife’s counsel wrote to the husband’s counsel on 11 June 2021 indicating that she accepted the husband’s offer contained in the without prejudice letter.⁵ The husband’s counsel replied that the husband was no longer agreeable to settle on those terms given that the negotiation during mediation had fallen through and the husband had since gone through various documents to rebut the wife’s assertions.⁶ The husband also added that the proposals were made in the spirit of a quick and amicable settlement during the mediation process.

The wife then commenced Sum 2165 to enter judgment on the alleged settlement agreement.

Parties submissions for Sum 2165

The wife submits that that a settlement agreement was reached by parties on 11 June 2021 when she accepted the husband’s offer of 26 April 2021.⁷ She submits that at no point did the husband or his solicitors withdraw the offer. She disagrees with the husband’s claim that the offer was withdrawn when the mediation sessions ended without settlement as the mediator did not and had no power to give directions for the withdrawal of parties’ offers. This also applies to the case conference judges who gave further ancillary directions. The wife asserts that the husband had ample time to withdraw his offer by issuing a simple letter of withdrawal of offer but decided not to do so. ⁸ Finally, the wife submits that even if the court does not enforce the agreement, it is open to the court to refer to the agreement in determining the issue of division.⁹

The husband submits that there was no settlement between the parties during the second mediation on 28 April 2021 with directions thereafter given for parties to file their third ancillary affidavits.¹⁰ The husband submits that even on a plain reading of the without prejudice letter, there was no offer to settle but merely a proposal on the ancillary matters to facilitate a settlement between parties at mediation. Further, even if the letter is an offer to settle, the wife had rejected the offer at the mediation and there could have been no meeting of the minds.¹¹ The husband also raised arguments on whether the offer was a valid offer to settle within the meaning of the Family Justice Rules which I did not think was relevant for present purposes.¹²

Decision on Sum 2165

Having considered parties’ submissions, I find that there was no enforceable settlement agreement, either for judgment to be entered or considered as a factor in determining the just and equitable division of the matrimonial assets.

I did not think that the without prejudice letter amounted to a binding offer. It is expressly set out in paragraph 5 of the without prejudice letter that “if the wife is agreeable to the proposal, parties may proceed to record a settlement at the next mediation.” The use of the words “may proceed” instead of a mandatory phrase “shall proceed” indicates that there could possibly rather than definitively be a settlement. The reference to the recording of a settlement “at the next mediation” also indicates that a further step needs to be taken before a settlement is reached.

Even if the offer is binding, such an offer would have lapsed following the failed second mediation on 28 April 2021. The second part of paragraph 5 of the without prejudice letter clearly states that if there was no agreement, the ancillary matters will be fully contested. It is not disputed that there was no acceptance of the terms of the proposal by the wife in the immediate time period after the without prejudice letter was sent. It is also not disputed that parties were unable to resolve the matters at the second mediation and directions were given for the ancillary matters to be contested. The entire mediation process fell through.

The wife strenuously argues that the husband did not withdraw his offer and therefore she could still accept the...