Ujm v Ujl
| Jurisdiction | England & Wales |
| Judge | Woo Bih Li JAD,See Kee Oon J,Chua Lee Ming J |
| Judgment Date | 26 August 2021 |
| Court | High Court |
| Docket Number | Civil Appeal No 16 of 2021 |
[2021] SGHC(A) 10
Appellate Division of the High Court
Woo Bih Li JAD, See Kee Oon J and Chua Lee Ming J
Civil Appeal No 16 of 2021
Mahmood Gaznavi s/o Bashir Muhammad and Julian Martin Michael (Mahmood Gaznavi Chambers LLC) for the appellant;
Remya Aravamuthan (Remya. A Law Practice) for the respondent.
Edgar v Edgar [1980] 1 WLR 1410 (refd)
Henderson v Henderson [1843] 67 ER 313 (refd)
Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur [2014] 3 SLR 1284 (folld)
TMO v TMP [2017] 1 SLR 585 (refd)
TNL v TNK [2017] 1 SLR 609 (refd)
Women's Charter (Cap 353, 2009 Rev Ed) ss 112(1), 112(2), 121F(2), 121F(2)(d), 121F(2)(f), 121G, Pt X Ch 4A
Family Law — Ancillary powers of court — Financial relief consequential on foreign matrimonial proceedings — Wife applying for financial relief in Singapore — Whether Singapore court should grant wife financial relief under Ch 4A Pt X Women's Charter (Cap 353, 2009 Rev Ed) — Whether court should grant additional relief where parties had entered into settlement agreement in contemplation of divorce — Chapter 4A Pt X Women's Charter (Cap 353, 2009 Rev Ed)
The plaintiff wife (“the Wife”) applied for financial relief under Ch 4A of Pt X of the Women's Charter (Cap 353, 2009 Rev Ed) (“WC”) arising out of her divorce from the defendant husband (“the Husband”) in Karachi, Pakistan. The judge below (“the Judge”) granted financial relief to the Wife in the division of matrimonial assets, such that the Husband was to pay the Wife $2,586,088.01 in three tranches. He also granted maintenance for four children of the marriage that was higher than a previous interim order for maintenance. The Husband filed the present appeal which related only to the Judge's decision on the division of matrimonial assets and costs.
The Husband's main argument in the appeal was that the Singapore court should not grant the Wife any financial relief under Ch 4A because she had already agreed to certain terms under a settlement agreement dated 13 July 2015 (“SA”) which the Wife had signed. The SA comprised two pages, though the Wife claimed that she did not sign the first page. The Husband also argued that the Judge had erred in finding that the SA did not reflect the reality of the background to the acquisition of three properties in Pakistan (referred to as “R2”, “A1” and “R28”) (“the Three Properties”), which undermined the Husband's case that the SA was in full and final settlement of the divorce. In respect of R2, the first page of the SA stated that the Husband had fully paid for the property and would transfer the ownership of it to the Wife. The Judge held that he was unable to conclude, based on the evidence, that the Husband had paid for the property. In respect of A1, the SA stated that the Husband had paid 50% of the purchase price and that he would not claim that sum. However, the Judge concluded that the Wife's mother had paid for A1.
The Husband also raised a new argument on appeal that, if the court in Pakistan had jurisdiction to grant the Wife financial relief, the Wife should have claimed such relief at the time she was seeking the divorce order. By failing to do so, she had fallen foul of the rule in Henderson v Henderson[1843] 67 ER 313 (“Henderson”) which required a party to bring forward every point to be relied upon in litigation at the time of such proceedings, failing which that party was precluded from raising it later in fresh proceedings (“the Henderson issue”). Finally, in relation to the method of apportionment of matrimonial assets, the Husband argued that the Judge should not have started with an equal apportionment based on the approach in TNL v TNK[2017] 1 SLR 609 (“TNL”), as the Wife had received substantial benefits under the SA.
Held, dismissing the application:
(1) The authenticity of the first page of the SA and the Wife's signature thereon was very much contested in the proceedings below, with an expert appointed by the Judge to render a report to assist him. There was no reason to disturb the Judge's finding that the signature on the first page was that of the Wife and that she did sign it. However, that would only mean that the Wife did not tell the truth about her execution of the first page: at [12].
(2) Even if a settlement agreement made in contemplation of a divorce purported to be comprehensive and was voluntarily entered into, the parties were not necessarily bound by it, unlike an ordinary commercial agreement. The Singapore court could still grant additional relief whether in the domestic context or in an application under Ch 4A if it was in the interest of justice to do so, taking into account the interests of the parties and the children of the marriage. However, whilst a settlement agreement made in contemplation of divorce was not conclusive as to the parties' rights, the court would decide the weight that should be given to it. In this case, while the SA was entered into in contemplation of divorce, there was no suggestion that the Wife had had the benefit of legal advice on the terms of the SA, and the evidence suggested that she did not seek such advice: at [14] to [19].
(3) The Judge was entitled to consider whether the terms of the SA genuinely reflected the background to the acquisition of the Three Properties and the scope of the agreement. However, there might be some merit in the Husband's arguments that the Judge had erred in some respects in his finding that the SA did not accurately describe the acquisition of the properties. In respect of R2, there was some evidence to support the Husband's case that he had paid for the property. As for A1, it could also be said that the Husband did establish that he paid for 50% of the property. Nevertheless, even if the Judge had concluded that the description in the SA was accurate, such that the Three Properties could be said to have been given to the Wife under the SA, the court would still be entitled to take into account the fact that the Husband owned at least one other property in Pakistan and four properties in Singapore (“the Five Properties”). The value of the Five Properties amounted to about $4.68m as compared to the value of the Three Properties amounting to about $370,000. There was an obvious disparity in the manner in which the assets had been divided between the parties: at [20] to [27].
(4) In all the circumstances, it would clearly be unjust to hold the Wife to the terms of the SA. It was therefore appropriate for the Judge not to place too much weight on the SA and to grant the Wife financial relief after taking into account various factors set out in s 121F(2) WC: at [28].
(5) As for the Henderson issue, even if the Husband were allowed to raise this argument on appeal, it appeared that the Wife would not have been entitled to any relief from the court in Pakistan in any event. It was doubtful that the rule in Henderson would apply as there was no contest on the ancillaries in Pakistan. Even if the rule did apply, a Singapore court might still not be precluded from granting financial relief, although the omission to seek the same in the foreign court granting the divorce would be a factor in the overall consideration, assuming that such relief could have been obtained in the first place in contested proceedings: at [33].
(6) The Judge had correctly adopted the method of apportionment of matrimonial assets in TNL as the marriage was a single-income marriage. Further, the Judge had taken into account the benefits that the Wife obtained under the SA, on the assumption that the SA accurately described the background to the acquisition of the Three Properties. The Judge had also gone into some detail to identify and value the matrimonial assets, and to explain the eventual decision he reached. Thus, the Husband had not shown any reason to disturb the Judge's findings or eventual decision on the division of...
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