WOQ v WOR

• Jurisdiction: Singapore
• Judge: Carrie Chan Su-Lin
• Judgment Date: 21 July 2023
• Neutral Citation: [2023] SGFC 23
• Court: Family Court (Singapore)
• Docket Number: FC/D 5351/2021, FC/SUM 91/2023, FC/SUM 257/2023
• Hearing Date: 24 March 2023,03 May 2023
• Citation: [2023] SGFC 23
• Year: 2023
• Plaintiff Counsel: Siaw Susanah Roberta [M/s Siaw Kheng Boon & Co]
• Defendant Counsel: David Nayar [M/s David Nayar and Associates]
• Subject Matter: Family Law,Variation of order
• Published date: 29 July 2023

District Judge Carrie Chan Su-Lin: Introduction

At the heart of this dispute, are terms in the consent order in the Interim Judgment dated 3 December 2021 made between the former husband (“H”) and wife (“W”) which entitled the W and child to reside in a property called “Seaview” solely owned by the H for as long as the W wishes. Orders 3(h) (1) and (2) in the Interim Judgment provided that the H shall move out of Seaview by the date of the completion of the sale of the matrimonial property called “Rivergate”. The W and child shall be entitled to reside in Seaview for as long as the W wishes (the “Consent Orders”).

These are orders reached by consent between the parties and filed under the Simplified Track Divorce. Parties use the Simplified Track when all matters are agreed at the time of commencement of the proceedings, including the grounds of divorce. The Defendant’s Consent to Simplified Divorce Proceeding and the terms of the consent orders were signed before a Commissioner for Oaths and filed in court.

FC/SUM 91/2023 and FC/SUM 257/2023

On 6 January 2023, the Plaintiff filed Summons FC/SUM 91/2023 for leave to issue Writ of Possession to enforce the order. On 20 January 2023, the Defendant filed Summons FC/SUM 257/2023 inter alia to delete the orders in the Interim Judgment – Orders 3(h)(1) and (2) which stated that the Defendant shall move out of Seaview by the date of completion of the sale of Rivergate and the Plaintiff and the child shall be entitled to reside in Seaview for as long as the Plaintiff wishes.

Both applications were heard before me on 24 March and 3 May 2023. In respect of the Plaintiff’s application for leave to issue to writ of possession, order in terms was granted. The Defendant’s application to delete Orders 3(h)(1) and (2) of the Interim Judgment was dismissed. On 3 May 2023, I provided reasons in brief, reproduced below. The Defendant (“D”) is the H and the Plaintiff (“P”) is the W.

“1. Rivergate was sold on 9 September with completion on 3 January 2023. However, the D did not move out of Seaview despite written correspondence from the P’s solicitor dated 23 December 2022, seeking that the Defendant comply with the Interim Judgment and move out of Seaview on 3 January 2023.

2. On a plain reading, the order of court was not complied with. 3. At the case conference dated 3 May 2023, counsel for the D has informed that the property is in the process of being marketed with the intention that the property be sold. Based on this latest factual development, time is of the essence. 4. The key issue before the court is whether the orders in the orders in the IJ should be deleted or varied. 5. Law: Section 112(4) of the Women’s Charter allows the court to modify orders made in the ancillary matters proceeding. The section provides that the court may at any time it thinks fit, extend, vary, revoke or discharge and order made under this section, and may vary any term or condition upon or subject to which any such order has been made. 6. However, the Court of Appeal has cautioned against an overexpansive application of section 112(4) of the WC. It does not furnish the court with a free hand to vary an order it has made; there must be exceptional reasons before such variation can be affected (see AYM v AYL [2013] 1 SLR 924). 7. Based on the facts, I did not find exceptional circumstances to delete the orders pertaining to the P and child’s entitlement to reside in Seaview for as long as they wish. The D did not prove that the circumstances fell within the exceptional circumstances which would allow the court to modify the consent order. I did not find that the order was unworkable or became unworkable as a result of new circumstances. The law requires the court to exercise the power to vary such orders judiciously and having regard to all the circumstances of the case. 8. When the consent order was signed, the D was given the opportunity to seek independent legal advice and the D endorsed his consent. The D was given time to consult solicitors.”

On 10 May 2023, the Defendant filed his Notice of Appeal.

Terms of the Consent Order

The parties were married on 26 December 2005 and there is one child to the marriage who was born on xx December 2009 (currently 14 years old). Interim Judgment (“IJ”) dissolving the marriage was granted on 3 December 2021. Under the IJ, two orders were made by consent which form the focus of the appeal. They are clauses 3(h)(1) and (2). I set out the relevant terms in the IJ dated 3 December 2021 in which the following consent orders (“Consent Orders”), inter alia, were made: “3. Further Orders Made:

By consent

Division of the matrimonial home

(c)(1) The matrimonial property at [Property 1] (“Rivergate”) shall be sold in the open market within 6 months from the date of the Certificate of Final Judgement. After repaying the outstanding housing loan, refunding to the parties’ Central Provident Fund account withdrawals made therefrom for the purchase of the matrimonial property including accrued interest, and deducting the costs and expenses of the sale, the balance proceeds shall be divided equally between the Plaintiff and Defendant. …..

Division of the matrimonial assets (aside from the matrimonial home)

(d)(1) The Plaintiff shall be entitled to a sum of $900,000 being her share of the property known as [Property 2] (“Seaview”). The sum of $900,000 shall be deducted from the Defendant’s share of the sale proceeds of Rivergate and paid to the Plaintiff. (2) Each party to retain all assets in their respective sole names and neither party shall make any claim against the other for division of assets.

Others

(h)(1) The Defendant shall move out Seaview by the date of completion of the sale of Rivergate. (2) The Plaintiff and the child shall be entitled to reside in Seaview for as long as the Plaintiff wishes. For the avoidance of doubt, the Defendant shall be responsible for paying the maintenance charges and property tax for Seaview, the Plaintiff shall be responsible for paying the utilities bill. (emphasis in bold, added) (3) There be liberty to apply.” The former wife’s application to enforce

In support of the W’s application to enforce the IJ, the W states the following at paragraphs 7 to 29 in her Affidavit dated 6 January 2023: a) The terms of the Consent Order were a global agreement reached between the H and W in or around October/November 2021. During their discussion, the W stated the subject of the child and W having no place to stay after the divorce. The H reassured the W that he would continue to provide a home for us to live in during and even after the divorce, and that the W and the child could continue to live in Seaview for as long as they wished. b) It was after they reached an agreement on all the terms that she instructed her solicitors to prepare divorce documents based on a simplified divorce. c) The Defendant signed the draft IJ knowing full well what he was signing before the Commissioner for Oaths and that was what parties agreed. d) Subsequent, the H has refused to comply with the terms of the IJ. Rivergate was sold on 9 September 2022 and the sale was scheduled to be completed on 3 January 2023. e) Between September to October 2022, the H’s solicitor wrote letters to the W’s solicitor in which parties disagreed on the W and child’s entitlement to reside at Seaview. f) On 12 December 2022, the W found out that the H changed the locks for Seaview and the W sent a WhatsApp message to the H informing him that the W and child would be moving back to Seaview on 3 January 2023 after the H moved out as provided in the Consent Order. g) On 15 December 2022, the H replied that he would not be passing the new key to the W, as the child is happily settled in the W’s house. The H would use and deal with Seaview which was wholly his own property as he deems appropriate. h) On 17 December 2022, the W replied to the H her intention to move back to Seaview on 3 January 2023. The H replied on 19 December 2023 reiterating that he would not be moving out of Seaview on 3 January 2023. i) On 23 December 2022, the W instructed her solicitors to write to the H’s solicitors to demand that the H comply with the IJ and move out of Seaview on 3 January 2023. On 27 December 2022, the H’s solicitors replied that the W having moved out, would not be entitled to return to Seaview. j) As the H will not voluntarily move out of Seaview without being compelled to do so, the W was seeking the enforcement of the consent order by granting leave to the W to issue the Writ of Possession.

The H opposed...