Wong Kien Keong v Khoo Hoon Eng

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean J
• Judgment Date: 21 June 2012
• Neutral Citation: [2012] SGHC 127
• Court: High Court (Singapore)
• Docket Number: DT No 1446 of 2006 (Summons No 1553 of 2011)
• Published date: 25 June 2012
• Year: 2012
• Hearing Date: 11 May 2011,28 June 2011,21 March 2012,12 May 2011,29 June 2011
• Plaintiff Counsel: Randolph Khoo and Nah Mui Kheng (Draw & Napier LLC)
• Defendant Counsel: Suchitra Ragupathy (Rodyk & Davidson LLP)
• Subject Matter: Family Law,Matrimonial assets,Division,Separation deed,Allegations of abuse,Whether separation deed should be set aside
• Citation: [2012] SGHC 127

Belinda Ang Saw Ean J: Introduction

The parties, Mr Wong Kien Keong (“the Plaintiff”) and Mdm Khoo Hoon Eng (“the Defendant”), divorced after more than 28 years of marriage. Before the hearing of the ancillary proceedings relating to the maintenance and the division of the matrimonial assets, the Defendant filed Summons No 1553 of 2011 (“SUM 1553/2011”) for an order that a Deed of Separation dated 28 March 2003 entered into by the parties (“the Deed”) be set aside or, in the alternative, for a declaration that the same is void and unenforceable.

Chronology of procedural applications

SUM 1553/2011 was dismissed on 21 March 2012. I held that there were no vitiating factors to invalidate the Deed. As such, it was a valid agreement and the Deed would be a factor to be taken into consideration in the division of the matrimonial assets pursuant to s 112(2)(e) of the Women’s Charter (Cap 353, 2009 Rev Ed) (“the Charter”).

The hearing of the ancillary matters started immediately after my decision on SUM 1553/2011. I asked counsel for the Defendant, Ms Suchitra Ragupathy (“Ms Ragupathy”), to explain why the terms of the Deed should be given little weight. In other words, what were the Defendant’s reasons for maintaining that the division of the matrimonial assets in the Deed was disadvantageous to the Defendant, and how was it unreasonable in the circumstances of this present case? I also wanted to know how much the Defendant was getting under the Deed – was it 20% of the total assets as indicated in the Plaintiff’s e-mail of 21 March 2003 (see [32] below), or at least 40% of the matrimonial assets as stated in the Plaintiff’s affidavit of 9 December 2010.¹ It turned out to be a fairly short hearing as there was no affidavit evidence on the purchase price of the properties and the financial contributions each had made to complete the sale and purchase of the properties. An adjournment of the hearing was granted to enable the parties to provide the missing information.

At that point, Ms Ragupathy, who was understandably keen not to be caught “out of time” if the Defendant wished to appeal, expressed concern that given the time required for lodging an appeal against my decision in SUM 1553/2011 and that the ancillary proceedings would not be concluded within a month with the adjournment. Ordinarily, pursuant to O 57 r 4(a) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the ROC”), the Defendant has to file and serve her Notice of Appeal within one month from the date of dismissal of SUM 1553/2011 (ie, 21 March 2012), if she wishes to appeal. Counsel for the Plaintiff, Mr Randolph Khoo (“Mr Khoo”), had no objection with an order for the time for lodging an appeal against my decision on SUM 1553/2011 to run after a decision on the ancillaries was made.

Therefore, I exercised my power under O 57 r 17 of the ROC and ordered that the time for appeal in respect of SUM 1553/2011 was to run from the time of the orders for the ancillary matters. The intention was clear: in the event of an appeal to the Court of Appeal, both SUM 1553/2011 and the orders made on the ancillary matters should go up on appeal together and at the same time. Hence, the exact wording of my order, as it appears in the Notes of Arguments, is as follows:

Time will run from the time the division of matrimonial assets is decided.

On 3 April 2012, Ms Ragupathy filed the Defendant’s Notice of Appeal against the dismissal of SUM 1553/2011 vide CA 32 of 2012/S (“CA 32/2012”). On 18 April 2012, Ms Ragupathy filed Summons No 1904 of 2012 (“SUM 1904/2012”) to stay the ancillary proceedings pending the outcome of CA 32/2012. SUM 1904/2012 has not yet been heard. I should mention that allied to SUM 1904/2012 is the question of whether CA 32/2012 was filed prematurely. Needless to say, these matters will be fully argued when SUM 1904/2012 is next listed for hearing before me.

For now, I will explain in detail the reasons for the dismissal of SUM 1553/2011.

The Parties to the Deed

The parties were married on 10 December 1977 in Kuala Lumpur, Malaysia. They have two sons to the marriage. Their sons are now 27 and 30 years old respectively. The parties are highly educated, bright and accomplished individuals. They have been extremely successful in their respective careers, and they continue to do well. By all counts, they were an exceptional couple. The Plaintiff is a well-known legal personality in the legal profession. The Defendant is an eminent academician. She is currently teaching at the National University of Singapore (“NUS”).

At the time of their marriage, the Plaintiff had graduated from Massachusetts Institute of Technology, and the Defendant obtained a Ph.D from St Mary’s Hospital, University of London. Both were university lecturers in Malaysia and they lived in Kuala Lumpur, Malaysia. On 5 June 1981, the elder son was born.

In October 1982, the Plaintiff obtained a Commonwealth fellowship to pursue his doctorate degree in engineering at Imperial College in London. The Plaintiff also concurrently enrolled to read law at Oxford University.

The Defendant took a sabbatical for a year from October 1982 to August 1983 to be with the Plaintiff and the family in Oxford. In August 1983, the Defendant returned to Kuala Lumpur with the elder son and returned to lecturing.

In July 1984, the Plaintiff completed his law studies at Oxford University and returned to Kuala Lumpur. On 22 August 1984, the younger son was born. The Plaintiff returned to London to study for the UK Bar Examinations in October 1984. In August 1985, the Plaintiff returned to Kuala Lumpur after passing the UK Bar Examinations. He also completed his doctorate thesis in December 1985 in Malaysia. He then went on to chamber as a pupil at Shearn & Delamore, a Malaysian law firm.

In July 1987, the Plaintiff moved to Singapore to work for a foreign law firm at its Singapore office. Later in December 1987, the Defendant moved with the children to Singapore after the Defendant was employed by the NUS. The Plaintiff was made a local partner of the foreign firm in June 1989 and an international partner in 1993. After moving to Singapore, the parties enjoyed good fortune and in the course of the marriage acquired various properties and investments.

Sometime in November 2002, the Defendant confessed to the Plaintiff that she had an affair with her colleague. Their marriage subsequently fell apart.

On 12 March 2003, the parties separated. The Defendant moved out of the couple’s residence at Blk 130 Tanjong Rhu Road, #12-02, Pebble Bay, Singapore to live in an apartment at Aspen Heights.

After living apart, the parties signed the Deed on 28 March 2003. The circumstances surrounding the place and time the Defendant signed the Deed was contested by the parties. In my view, nothing significant turned on the discrepancies in light of the undisputed evidence that the Defendant looked perfectly normal at the Plaintiff’s birthday dinner on 28 March 2003 and did not appear to be depressed.

The Defendant filed a divorce petition on 29 June 2004 which was later discontinued on 20 March 2006. The Plaintiff then filed a divorce petition on 28 March 2006. The decree nisi dissolving the marriage was granted on 28 May 2006.

Parties’ opposing positions in SUM 1553/2011

Ms Ragupathy argued that the Deed should be set aside because the Defendant was coerced, abused and/or threatened into signing the Deed.² Ms Ragupathy further argued that the Defendant was suffering from depression at the material time such that she did not fully understand the consequences and risks of signing the Deed, and that the Defendant signed the Deed in the hope that acceding to the Plaintiff’s requests as set out in the Deed would result in reconciliation.³ Ms Ragupathy pointed to various allegations of abuse made by the Defendant in her affidavits and relied on a report prepared by one Dr Pushpa Bose (“Dr Bose”), the Defendant’s psychiatrist, which tried to shed light on the Defendant’s mental state at the time she signed the Deed.

On the other hand, Mr Khoo argued that the Deed was not tainted by any vitiating factors. According to Mr Khoo, the Defendant knew the legal significance of the Deed as she obtained legal advice on the Deed and admitted that she understood the effect of the Deed in one of her e-mails to the Plaintiff. It was pointed out that the Defendant was not a simple woman. She had excellent credentials and a range of accomplishments.⁴ The Defendant was also actively bargaining over the split of assets.⁵ Mr Khoo rejected the Defendant’s allegation that she signed the Deed because the Plaintiff made a false promise that he would reconcile with her if she did so.⁶ Mr Khoo noted that the Defendant’s allegations of abuse inflicted by the Plaintiff on the Defendant were denied and explained by the Plaintiff in his affidavits⁷ and relied on a medical report of one Dr Brian Yeo (“Dr Yeo”) to debunk the findings in Dr Bose’s report.⁸

Should the Deed be set aside? Relevant legal principles

It is not controversial that for a pre-nuptial or post nuptial agreement (collectively referred to hereinafter as “marital agreement”) to have the effect of a valid and subsisting agreement, it should satisfy the requirements of the law of contract: see Chia Hock Hua v Chong Choo Je [1994] 3 SLR(R) 159. The Court of Appeal in TQ v TR and Another appeal [2009] 2 SLR(R) 961 (“TQ v TR”), affirmed that for a pre-nuptial agreement to subsist, it must comply with the requirements of the law of contract. Andrew Phang JA’s observations in TQ v TR apply equally to post nuptial agreements like the Deed in this case, and they are as follows:

94 It is our view that prenuptial agreements ought generally to comply with the various legal doctrines and requirements that are an integral part of the common law of contract. ... This is only logical as well as just and fair, given that...