Wong Yuk Fong Lily v Menezes

• Jurisdiction: Singapore
• Judgment Date: 15 February 1992
• Date: 15 February 1992
• Docket Number: Divorce Petition No 75 of 1987
• Court: High Court (Singapore)

Wong Yuk Fong Lily

Plaintiff

and

Menezes Ignatius Augustine (Menezes Daniel Matthew, intervener)

Defendant

[1992] SGHC 29

Chao Hick Tin J

Divorce Petition No 75 of 1987

High Court

Family Law–Matrimonial assets–Division–Respondent died before court made final order–Whether ancillary matters survived death–Whether court has jurisdiction over division of matrimonial assets–Sections 85 and 106 Women's Charter (Cap 353, 1985 Rev Ed)

In these ancillary proceedings, after the order on the division of matrimonial assets was made, the respondent's application to the court to hear further arguments was granted. The respondent passed away after arguments were heard but before judgment was delivered. The petitioner argued that in view of the respondent's death, the outstanding ancillary matters did not survive his death. The respondent's son intervened and submitted that the court had jurisdiction to adjudicate the ancillary matter.

Held, disallowing the intervener's petition:

An application for ancillary relief was personal to the parties and did not survive the death of either party to the marriage. If either party died before it was determined, the application would abate. While the court had jurisdiction to enforce an order for the division of matrimonial property on the death of a party, in this case, the order that was made was effectively recalled and suspended on the respondent's application for further arguments to be heard and there was no enforceable order in existence at the time of the respondent's death, and the court had no jurisdiction over the division of matrimonial assets: at [11], [17]and [18].

Barder v Caluori [1988] AC 20 (refd)

D'Este v D'Este [1973] Fam 55 (folld)

Dipple v Dipple [1942] P 65 (refd)

Sivakolunthu Kumarasamy v Shanmugam Nagaiah [1987] SLR (R) 702; [1987] SLR 182 (distd)

Sugden v Sugden [1957] P 120 (refd)

Thomson v Thomson [1896] P 263 (refd)

Civil Law Act (Cap 43,1988Rev Ed)s 7

Women's Charter (Cap 353, 1985Ed)ss 85, 106 (consd);s 88 (5) (b), Pt IX

Law Reform (Miscellaneous Provisions) Act 1934 (c 41) (UK)

Matrimonial Causes Act1965 (c 72) (UK) s 17

Matrimonial Proceedings and Property Act 1970 (c 45) (UK) s 4

Quek Mong Hua (Lee & Lee) for the petitioner

Foo Soon Yien (Bernard Rada & Lee) for the intervener

Vijay Kumar (Vijay & Co) for the deceased respondent.

Judgment reserved.

Chao Hick Tin J

1 This was a petition for divorce on the ground of four-year separation. The petitioner also prayed for ancillary reliefs relating to the custody of the children, maintenance and division of matrimonial property. The parties were married at the Registry of Marriages, Kowloon, Hong Kong on 17 January 1968.

2 The respondent contested the petition. In his answer and cross-petition, the respondent alleged that at the time of the marriage, the petitioner was already married to one Robert Ang Han Tiong. The respondent further alleged that before 1960 the petitioner was married to another person named Francisco Yi Sim. Therefore, the respondent averred that his marriage to the petitioner at the Kowloon Registry was void. In the alternative, the respondent prayed for a decree of divorce on the ground that soon after the marriage in 1968, the petitioner committed adultery with a person unknown, resulting in the conception and birth of a child on 17 December 1968, who is named Audrey Pauline Menezes. In the further alternative, the respondent prayed for a decree of divorce on the ground of unreasonable behaviour or four-year separation.

3 After a bitter trial which stretched over more than ten days, I granted on 6 May 1991 a decree nisi to dissolve the marriage on the ground of four-year separation. I rejected the respondent's allegation that their marriage on 17 January 1968 was bigamous and thus void. I also rejected the cross-petition based on adultery or unreasonable behaviour. I should explain why I refused to grant a divorce on the ground of the petitioner's adultery even though that was admitted by the petitioner (only at the trial) and a child was born out of that adulterous relationship. The respondent knew that the child could not be his as he was away on board a ship as a captain during the period from 5 February 1968 to 17 January 1969. From 1969, the parties resumed cohabitation for 13 years before they separated in 1982. It was too late for the respondent to complain of the adultery. Rather magnanimously, he even accepted the child as his. He said the child is innocent. Section 88 (5) (b) of the Women's Charter (Cap 353) (“the Charter”) clearly applied.

4 As regards the ancillary matters, only the question of division of matrimonial property remained. All the children of the family had attained...