fc_judgments: 76
Data source: lawnet.sg/lawnet/web/lawnet/free-resources
This data as json
| _id | _item_id | tags | date | court | case-number | title | citation | url | counsel | timestamp | coram | html | _commit |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 76 | e5cc176ba613d718c26d6276bba07e821706a20e | [
"Family law \u2013 Ancillary powers of court \u2013 Variation of consent order \u2013 Whether order for payment of fixed sum in monthly instalments should be interpreted to be a maintenance order or an order dividing matrimonial assets",
"Family law \u2013 Ancillary powers of court \u2013 Variation of consent order \u2013 Whether order for monthly instalment payment rendered unworkable due to change in payor\u2019s financial situation",
"Family law \u2013 Maintenance \u2013 Variation of maintenance order \u2013 Whether the loss of employment income and remarriage amount to a material change of circumstances"
] |
2024-08-20 | Family Court | Divorce Suit No. 818 of 2020 (Summons No. 3761 of 2023) | XCJ v XCK | [2024] SGFC 73 | https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F32085-SSP.xml | [
"Ms Kee Lay Lian and Mr Shawn Teo (Rajah & Tann Singapore LLP) for the Plaintiff",
"Mr Yap Teong Liang (TL Yap Law Chambers LLC) for the Defendant."
] |
2024-09-11T16:00:00Z[GMT] | Kevin Ho | <root><head><title>XCJ v XCK</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> XCJ <em>v</em> XCK </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/32085-SSP.xml')">[2024] SGFC 73</a></span></h2><table id="info-table"><tbody><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Case Number</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">Divorce Suit No. 818 of 2020 (Summons No. 3761 of 2023)</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Decision Date</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">20 August 2024</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Tribunal/Court</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">Family Court</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Coram</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> Kevin Ho </td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Counsel Name(s)</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> Ms Kee Lay Lian and Mr Shawn Teo (Rajah & Tann Singapore LLP) for the Plaintiff; Mr Yap Teong Liang (TL Yap Law Chambers LLC) for the Defendant. </td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Parties</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> XCJ — XCK </td></tr></tbody></table> <p class="txt-body"><span style="font-style:italic">Family law</span> – <span style="font-style:italic">Ancillary powers of court</span> – <span style="font-style:italic">Variation of consent order</span> – <span style="font-style:italic">Whether order for payment of fixed sum in monthly instalments should be interpreted to be a maintenance order or an order dividing matrimonial assets</span></p> <p class="txt-body"><span style="font-style:italic">Family law</span> – <span style="font-style:italic">Ancillary powers of court</span> – <span style="font-style:italic">Variation of consent order</span> – <span style="font-style:italic">Whether order for monthly instalment payment rendered unworkable due to change in payor’s financial situation</span></p> <p class="txt-body"><span style="font-style:italic">Family law</span> – <span style="font-style:italic">Maintenance</span> – <span style="font-style:italic">Variation of maintenance order</span> – <span style="font-style:italic">Whether the loss of employment income and remarriage amount to a material change of circumstances</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">20 August 2024</p></td><td><p class="Judg-Date-Reserved"></p></td></tr></tbody></table><p></p> <p class="Judg-Author"> District Judge Kevin Ho:</p> <p class="Judg-Heading-1">Introduction</p> <p class="Judg-1"><a id="p1_1"></a>1 The Plaintiff, Mr [XCJ] (“Husband”), filed for divorce against the Defendant, Mdm [XCK] (“Wife”), in February 2020.</p> <p class="Judg-1"><a id="p1_2"></a>2 After a long period of discussions and negotiations, an Interim Judgment for Divorce was eventually granted on 11 January 2021, and the orders relating to the ancillary matters of divorce were made by consent on 9 February 2021 (“AM Order”).<span class="FootnoteRef"><a href="#Ftn_1" id="Ftn_1_1"><sup>[note: 1]</sup></a></span></p> <p class="Judg-1"><a id="p1_3"></a>3 For all intents and purposes, in 2021, the parties parted ways amicably, and the terms of their divorce – in particular, the financial issues consequent on the divorce – were the product of an agreement reached between the parties, both of whom were represented by solicitors at the material time.</p> <p class="Judg-1"><a id="p1_4"></a>4 However, since the divorce, several events occurred which the Husband claims justify changes (or variations) being made to the terms set out in the AM Order which led to the filing of the present application, ie<em>.</em> FC/SUM 3761/2023 (“SUM 3761”).</p> <p class="Judg-1"><a id="p1_5"></a>5 These events include: (a) the loss of the Husband’s employment;<span class="FootnoteRef"><a href="#Ftn_2" id="Ftn_2_1"><sup>[note: 2]</sup></a></span> and (b) the difficulties he faced as regards the sale of certain properties in Belgium and the Wife’s conduct <em>vis-à-vis</em> a company in Belgium.<span class="FootnoteRef"><a href="#Ftn_3" id="Ftn_3_1"><sup>[note: 3]</sup></a></span> In his counsel’s written submissions, the Husband also referred to his remarriage and the need to maintain his current family as another reason.<span class="FootnoteRef"><a href="#Ftn_4" id="Ftn_4_1"><sup>[note: 4]</sup></a></span></p> <p class="Judg-1"><a id="p1_6"></a>6 At the heart of the present dispute between the parties are Orders 3(a), 5, 7(a), 8, 9(a) of the AM Order. For ease of reference, I reproduce them below:</p> <p class="Judg-Quote-1"> <b><u>Order 3</u></b> </p> <p class="Judg-Quote-1">“The Plaintiff shall pay the following, as a liquidation for the marital assets (“liquidation-partage du regime matrimonial”):</p> <p class="Judg-QuoteList-2">a. the sum of EUR 2,100,000 in equal instalments of EUR 12,500 from January 2021 to January 2035 on the 1st day of each calendar month. Such payment shall be deposited by the Plaintiff into the Defendant BNP’s current account BE44 2100 xxx.</p> <p class="Judg-QuoteList-2">b. the sum of EUR 1,800,000 in equal instalments of EUR 20,000 from January 2021 to January 2029 on the 1st day of each calendar month. Such payment is to be made by the Plaintiff into the Company’s KBC current account BE13 7370 xxx.”</p> <p class="Judg-Quote-1"> <b><u>Order 5</u></b> </p> <p class="Judg-Quote-1">“In the event that the Plaintiff shall pass away, the liabilities set out at paragraph 3 above are covered and shall be extinguished by the payment of the life insurance of USD5,000,000 via an Aviva My Protector policy number 8078xxx issued by Aviva Ltd at 4 Shenton Way, Singapore, and the Defendant and the Daughter are beneficiaries of the said policy.</p> <p class="Judg-QuoteList-2">a. The Plaintiff shall not at any time terminate or surrender the Aviva My Protector policy number 8078xxx and shall at all times continue to pay the premiums in order to maintain the existence of this policy.”</p> <p class="Judg-Quote-1"> <b><u>Order 7</u></b> </p> <p class="Judg-Quote-1">“From January 2021 onwards and until the earlier of the Plaintiff or the Defendant’s demise, the Plaintiff shall pay to the Defendant:</p> <p class="Judg-Quote-2">the sum of EUR 2,000 per month as monthly maintenance payable on the last day of each month, to be increased from 2035 onwards to an amount satisfactory to maintain a substantially similar lifestyle.”</p> <p class="Judg-Quote-2">the amount necessary to cover the cost of a DKV health insurance and associated Social Security (“Mutuelle”) costs for the Defendant on an annual basis; and</p> <p class="Judg-Quote-2">the equivalent value of the Defendant’s current annual sports clubs memberships and dues on an annual basis.</p> <p class="Judg-Quote-1"> <b><u>Order 8</u></b> </p> <p class="Judg-Quote-1">“From January 2021 onwards, the Defendant will be allowed by the Plaintiff (directly or indirectly), to become the tenant of the Brussels Properties as long as the Defendant and the Daughter maintain their ownership and interest therein.”</p> <p class="Judg-Quote-1"> <b><u>Order 9(a)</u></b> </p> <p class="Judg-Quote-1">“Parties agree that:</p> <p class="Judg-Quote-2">In the event that the Company requires capital to fund exceptional expenses for the Brussels Properties such as repairs and/or upkeep while the Defendant is residing in the same, the Plaintiff shall be solely responsible for such capital contribution of repairs and/or upkeep in the absence of funds available with the Company.”</p> <p class="Judg-Quote-1">…</p> <p class="Judg-1"><a id="p1_7"></a>7 Through SUM 3761, the Husband applies for Order 3a, 5, 8, 9a of the AM Order to be deleted in their entirety,<span class="FootnoteRef"><a href="#Ftn_5" id="Ftn_5_1"><sup>[note: 5]</sup></a></span> and for Order 7a of the AM Order to be varied such that “<em>no spousal maintenance</em>” would be payable to the Wife.<span class="FootnoteRef"><a href="#Ftn_6" id="Ftn_6_1"><sup>[note: 6]</sup></a></span></p> <p class="Judg-1"><a id="p1_8"></a>8 Further, the Husband asks this Court to issue a <em>court order</em> for the properties located at [Brussels, Belgium] to be sold within 6 months (which I shall refer to as the “Sale Order”).<span class="FootnoteRef"><a href="#Ftn_7" id="Ftn_7_1"><sup>[note: 7]</sup></a></span> These properties are the same properties referred to in Orders 8 and 9 of the AM Order (reproduced above) as the “<em>Brussels Properties</em>”.</p> <p class="Judg-1"><a id="p1_9"></a>9 In her affidavits, and through her counsel’s submissions, the Wife asks that SUM 3761 be dismissed as the Husband failed to satisfy the necessary legal and/or evidential requirements to justify any variations being made to the AM Order.<span class="FootnoteRef"><a href="#Ftn_8" id="Ftn_8_1"><sup>[note: 8]</sup></a></span></p> <p class="Judg-1"><a id="p1_10"></a>10 Based on the parties’ written and oral submissions, the issues before this Court are as follows :</p> <p class="Judg-2"><a id="p1_10-p2_a"></a>(a) Does the Family Court have the jurisdiction and/or power to make the Sale Order in respect of the Brussels Properties sought by the Husband? If so, should the Order be made?</p> <p class="Judg-2"><a id="p1_10-p2_b"></a>(b) Do Orders 3a, 5, 8, 9a of the AM Order relate to the division of the parties’ matrimonial assets, or are they maintenance orders?</p> <p class="Judg-2"><a id="p1_10-p2_c"></a>(c) Has the Husband satisfied the relevant legal requirements to justify his application to vary Orders 3a, 5, 8, 9a of the AM Order?</p> <p class="Judg-2"><a id="p1_10-p2_d"></a>(d) Can the Husband rely on his present circumstances – including his current employment status and/or remarriage – to vary Order 7(a) of the AM Order, and remove his obligation to pay the Wife maintenance?</p> <p class="Judg-1"><a id="p1_11"></a>11 I will address each of these issues, in turn.</p> <p class="Judg-Heading-1">Can the Family Court make the Sale Order?</p> <p class="Judg-1"><a id="p1_12"></a>12 In this Section, I will set out my views on the nature and scope of the Sale Order sought in Prayer 1 of SUM 3761. In doing so, I will assume <em>arguendo</em> there was some evidential and/or legal basis to vary the AM Order. I will discuss further whether the AM Order should, in fact, be varied in greater detail at [71] to [88] below.</p> <p class="Judg-1"><a id="p1_13"></a>13 In his counsel’s written submissions, the Husband referred this Court to r 540(1) of the Family Justice Rules 2014 (“FJR”) and submitted that this rule empowers the Family Court in Singapore to order the sale of immovable property (including those located in a foreign country). According to counsel, all the Husband needs to show is that it is “<em>necessary and expedient</em>” for such an order to be made.<span class="FootnoteRef"><a href="#Ftn_9" id="Ftn_9_1"><sup>[note: 9]</sup></a></span></p> <p class="Judg-1"><a id="p1_14"></a>14 Having considered the matter, I am unable to agree with counsel’s submission.</p> <p class="Judg-1"><a id="p1_15"></a>15 In my view, the Husband has confused the Family Court’s <em>power</em> to make an order of a certain nature (for eg. the sale of a property) with its <em>jurisdiction</em> to hear the matter (or dispute) in question.</p> <p class="Judg-1"><a id="p1_16"></a>16 It is trite that a court’s power and its jurisdiction refer to different matters – jurisdiction is the court’s “<em>authority, however derived, to hear and determine</em>” a dispute, whereas a court’s power is its “<em>capacity to give effect to its determination by making or granting the orders or reliefs sought by the successful party”</em>: see <em>Re Nalpon Zero Geraldo Mario</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2013] 3 SLR 0258.xml')">[2013] 3 SLR 258</a> at [31].</p> <p class="Judg-1"><a id="p1_17"></a>17 This is especially important in the present context as the Family Court was exercising its <em>matrimonial jurisdiction</em> when it made the AM Order after the Husband had invoked the Family Court’s jurisdiction by filing divorce proceedings pursuant to the Women’s Charter 1961 (“WC”).</p> <p class="Judg-1"><a id="p1_18"></a>18 In hearing SUM 3671, I am also exercising the Family Court’s matrimonial jurisdiction to hear an application to <em>vary</em> the AM Order. Thus, if I am to make the Sale Order sought by the Husband, I would be doing so as part of the Family Court’s matrimonial jurisdiction.</p> <p class="Judg-1"><a id="p1_19"></a>19 However, the Court of Appeal in <em>UDA v UDB</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/21828-SSP.xml')">[2018] 1 SLR 1015</a> was clear in holding that the Family Court’s power to divide assets “<em>or the sale of any such asset</em>” under s 112, WC operates only between the parties to the marriage and has force only “<em>between the parties</em>”;<span class="FootnoteRef"><a href="#Ftn_10" id="Ftn_10_1"><sup>[note: 10]</sup></a></span> the Family Court cannot, in exercise of its matrimonial jurisdiction, make orders against third parties in respect of assets and/or properties held by such third parties.</p> <p class="Judg-1"><a id="p1_20"></a>20 In this regard, the Husband’s reliance on r 540(1), FJR unfortunately misses the point as that is clearly a procedural rule. The Court of Appeal in <em>UDA</em> observed that where the jurisdiction which the party “<em>was advocating for did not exist</em>”, he or she “<em>could not create it by invoking a procedural rule</em>”.<span class="FootnoteRef"><a href="#Ftn_11" id="Ftn_11_1"><sup>[note: 11]</sup></a></span></p> <p class="Judg-1"><a id="p1_21"></a>21 In fact, the Husband’s own written submissions referred this Court to the High Court’s decision in <em>Tan Poh Beng v Choo Lee Mei</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/[2014] SGHC 0163.xml')">[2014] SGHC 163</a> where the High Court made the following apposite observations (at [19] of its judgment) in respect of O 31, r 1 of the Rules of Court 2014 (which is <em>in pari materia</em> to r 540, FJR):</p> <p class="Judg-Quote-1">19 […] The court’s power under both the SCJA and the ROC to order the sale of a property is contingent on there <b>being a substantive legal basis to justify the exercise of that power. Neither provision was intended to create an unfettered power on the court’s part to order the sale of a property simply because it is “necessary or expedient” to do so</b>. In this regard, it bears noting that both para 2 of the First Schedule and O 31 r 1 refer to the need for a “cause or matter” relating to any land or immovable property […]</p> <p class="Judg-Quote-1"></p><div align="right">[Emphasis added in <b>bold</b>]</div><p></p> <p class="Judg-1"><a id=""></a>Rule 540, FJR does not provide the Family Court with an unfettered free-standing power. It can only be invoked against parties who are already within this Court’s matrimonial jurisdiction.</p> <p class="Judg-1"><a id="p1_22"></a>22 As such, even if I were to assume that there were reasons justifying the variation of the AM Order, I do not have the power to make the Sale Order in respect of the Brussels Properties.</p> <p class="Judg-1"><a id="p1_23"></a>23 It is not disputed that neither the Husband nor the Wife is an owner of the Brussels Properties. Indeed, Order 1 of the AM Order <em>expressly</em> states that the Brussel Properties are being held by a foreign company, ie. [A] (“A Co”). In his affidavit, the Husband exhibited a company profile search of A Co indicating that the Wife, their daughter (ie. [V]), and one [T], are the administrators and members of A Co’s board.<span class="FootnoteRef"><a href="#Ftn_12" id="Ftn_12_1"><sup>[note: 12]</sup></a></span></p> <p class="Judg-1"><a id="p1_24"></a>24 In other words, if I were to make the Sale Order sought by the Husband, a Family Court in Singapore would be effectively ordering a corporate entity in Belgium (ie. A Co) – of whom the Husband is neither an administrator nor board member, and the Wife being only 1 of 3 board members – to sell <em>the corporate entity’s</em> properties located <em>in Belgium</em> because of matrimonial proceedings between the Husband and the Wife in Singapore. I do not find that it is appropriate or proper for this Court to do so.</p> <p class="Judg-1"><a id="p1_25"></a>25 This is especially so given that Prayer 1 of SUM 3761 asks that this Court order the sale of the Brussels Properties “<em>and for the sale proceeds arising from the said sale to be </em><b><em>equally </em></b><em>distributed to the </em><b><em>Defendant and the Plaintiff</em></b> [emphasis in <b>bold</b> added]”; the Husband is asking this Court to compel A Co (who is not a party to the proceedings) to not only divest itself of its properties, but to also order that the sale proceeds therefrom be paid to the Wife and the Husband directly, despite neither of them being an owner of the Brussels Properties.</p> <p class="Judg-1"><a id="p1_26"></a>26 During oral submissions, when I queried the Husband’s counsel on the legal effect and/or basis for this Court to order A Co to sell the Brussels Properties, counsel submitted that I could simply order that the Brussels Properties “be sold” and leave it to the Husband, the Wife and/or A Co to “sort out” amongst themselves how such an order would be implemented overseas.</p> <p class="Judg-1"><a id="p1_27"></a>27 I am again unable to accept the Husband’s counsel’s submission, not least because:</p> <p class="Judg-2"><a id="p1_27-p2_a"></a>(a) Counsel’s submission represented a significant departure from what was sought in Prayer 1 of SUM 3761. Counsel was thus advancing a completely different case from that stated in their written submissions,<span class="FootnoteRef"><a href="#Ftn_13" id="Ftn_13_1"><sup>[note: 13]</sup></a></span> and what was written in the Husband’s own affidavit,<span class="FootnoteRef"><a href="#Ftn_14" id="Ftn_14_1"><sup>[note: 14]</sup></a></span> without any prior notice given to the Wife (or her counsel) of such a change. This meant that the Wife was deprived of any opportunity to adduce the necessary evidence, or raise the relevant legal challenges, to address this new request.</p> <p class="Judg-2"><a id="p1_27-p2_b"></a>(b) In any case, I found such a request to be wholly ambiguous, and what was sought could hardly be called an “order” in the first place. It is unclear to whom is this order for sale directed against, and who is required to comply with it?</p> <p class="Judg-2"><a id="p1_27-p2_c"></a>(c) For the reasons I have set out above, I find that it is not within this Court’s matrimonial jurisdiction to hear disputes relating to (or make orders against) assets held by a third party, such as A Co. If I were to make an open-ended order for the Brussels Properties to be sold, only the Husband and the Wife would possibly be bound by such an order, yet neither of them is the legal owner of the said Properties which could unilaterally effect the sale.</p> <p class="Judg-2"><a id="p1_27-p2_d"></a>(d) The uncertainty inherent in such an order would lead to difficulties in <em>enforcing</em> the same since it is not clear who is supposed to do what, in order to comply with a broadly worded order requiring “the sale of the Brussels Properties”.</p> <p class="Judg-1"><a id="p1_28"></a>28 Accordingly, I do not find any legal basis to support the Husband’s application in this regard. Prayer 1 of the SUM 3761 is thus dismissed.</p> <p class="Judg-1"><a id="p1_29"></a>29 I should add that the Husband had referred, in his affidavit, to Orders 4 and 6 of the AM Order as orders which already envisaged the possible sale of the Brussels Properties, and that all he is requesting this Court to do is to intervene by making the Sale Order.<span class="FootnoteRef"><a href="#Ftn_15" id="Ftn_15_1"><sup>[note: 15]</sup></a></span></p> <p class="Judg-1"><a id="p1_30"></a>30 In my view, the presence of Orders 4 and 6 did not assist the Husband at all. If anything, Order 4 made clear that a sale of the Brussels Properties would only occur “<em>in the event that the parties agree</em>” and even then, the proceeds of any such sale would be made available to “<em>shareholders</em>” (and not directly to the Husband).</p> <p class="Judg-1"><a id="p1_31"></a>31 These Orders do not justify the Court ordering the sale of the Brussels Properties without both parties’ consent, and certainly not for the vesting of any sale proceeds therefrom in the Husband or the Wife directly. For reasons I would come to below, this Court should be slow to intervene and effectively rewrite the parties’ agreement (as set out in the AM Order).</p> <p class="Judg-Heading-1">Interpretation of the AM Order </p> <p class="Judg-1"><a id="p1_32"></a>32 I will now move on to address the next question – ie. what is the nature of Orders 3a, 5, 8, 9a of the AM Order. The parties took opposing positions on this question.</p> <p class="Judg-1"><a id="p1_33"></a>33 The Husband argued that this Court should look at the “substance” of these Orders and find that they were “maintenance orders”, whereas the Wife submitted that these were orders which divided the parties’ matrimonial assets (which, for ease of reference, I will refer to as “division orders”).</p> <p class="Judg-1"><a id="p1_34"></a>34 The distinction between maintenance orders and division orders is significant in the present case because the legal principles applicable to varying maintenance orders are different from those relating to the variation of division orders.</p> <p class="Judg-1"><a id="p1_35"></a>35 Both parties accept that maintenance orders may be varied if there has been a material change in the parties’ circumstances: see ss 118 and 119, WC. On the other hand, if the orders in question were division orders, then this Court can only vary them if the Husband could show that the said orders were unworkable <em>ab initio</em> or have become unworkable: see <em>AYM v AYL</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/[2013] 1 SLR 0924.xml')">[2013] 1 SLR 924</a> (“<em>AYM</em>”) at [22] – [23].</p> <p class="Judg-1"><a id="p1_36"></a>36 Accordingly, it fell on this Court to interpret/construe Orders 3a, 5, 8, 9a of the AM Order in order to determine their nature.</p> <p class="Judg-1"><a id="p1_37"></a>37 In this regard, the High Court in <em>Seah Kim Seng v Yick Sui Ping</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/17865-SSP.xml')">[2015] 4 SLR 731</a>, made the following instructive observations on the relevance of the parties’ intention when considering the terms of a consent order:</p> <p class="Judg-Quote-1">…the fact that a consent order was recorded means that the intention of the respective parties may be relevant in a broad sense; such intention has to be considered in the light of the compromise required in reaching an agreement and expressed in the consent order. What matters ultimately is the common understanding between the parties. The court cannot ultimately substitute its own agreement in place of what the parties came to…<span class="FootnoteRef"><a href="#Ftn_16" id="Ftn_16_1"><sup>[note: 16]</sup></a></span></p> <p class="Judg-1"><a id="p1_38"></a>38 In <em>WWC v WWD</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31395-SSP.xml')">[2024] SGFC 17</a>, this Court had similarly observed that when interpreting consent orders containing terms drafted primarily by the parties (or their solicitors), the court can have regard to principles of contractual interpretation to aid in ascertaining the meaning of the words used in the consent order, being careful to explain that the use of such principles did not equate to the wholesale importation of the law of contract.<span class="FootnoteRef"><a href="#Ftn_17" id="Ftn_17_1"><sup>[note: 17]</sup></a></span> It was further observed that primacy should still be accorded to the <em>text</em> and <em>language</em> used in the said order.</p> <p class="Judg-1"><a id="p1_39"></a>39 Having considered the evidence, I find that Orders 3a, 5, 8, 9a of the AM Order are division orders, and not maintenance orders. I reach this conclusion having regard to both the text and context of the AM Order.</p> <p class="Judg-Heading-2">Text of the AM Order</p> <p class="Judg-1"><a id="p1_40"></a>40 I start by addressing Order 3 of the AM Order. This was an order of some import as it referred to the total amount payable by the Husband (ie. EUR 3.9 million) and the manner this sum was to be paid (ie. in equal instalments totalling EUR 32,500 per instalment).</p> <p class="Judg-1"><a id="p1_41"></a>41 In my view, the language and text of Order 3 as well as its preamble were clear – the Order expressly stated that the Husband must pay the Wife various amounts “<em>as a liquidation for the marital assets</em>”.</p> <p class="Judg-1"><a id="p1_42"></a>42 Given the express reference to the “<em>liquidation</em>” of the parties’ “<em>marital assets</em>”, I find that the Order could not possibly be read as (or bear the meaning of) an order relating to the payment of spousal <em>maintenance</em> or alimony as suggested by the Husband. It was an order relating to the division of the parties’ matrimonial assets under s 112 of the WC. Indeed, s 112(5)(g) of the WC expressly allows the Family Court to order one party to pay another party a sum of money, and s 112(6) permits any order for the payment of money to be carried out in instalments. Such an understanding of Order 3 was consistent with both the language of Order 3 and the legal framework under which a division order can be made.</p> <p class="Judg-1"><a id="p1_43"></a>43 The language of Order 3a can be juxtaposed against Order 7a of the AM Order where the latter Order expressly provided for the Husband to pay the Wife the sum of EUR 2,000 per month “<em>as monthly maintenance</em>”, which may be increased after 2035 for the Wife “<em>to maintain a substantially similar lifestyle</em>”.</p> <p class="Judg-1"><a id="p1_44"></a>44 The references to “marital assets” (in the preamble of Order 3) and to the aggregate amounts payable (eg. “EUR 2,100,000” and “EUR 1,800,000” in Orders 3a and 3b, respectively) stand in stark contrast to phrases such as “<em>maintenance</em>” and/or the Wife’s “<em>lifestyle</em>” (as used in Order 7a). The parties’ deliberate choice to use different references and phrases demonstrated their understanding of the differences between maintenance orders and division orders, and that they had intended for Order 3 and Order 7 to have different legal effect.</p> <p class="Judg-1"><a id="p1_45"></a>45 As regards Order 5, this Order expressly referred to Order 3a and was also intended to be a division order. Put simply, Order 5 related to how the payment obligations in Order 3 would be extinguished with the effect that the debt cannot be claimed against the Husband’s estate upon his death.</p> <p class="Judg-1"><a id="p1_46"></a>46 Counsel for the Husband submitted that the reference in Order 5 to the existence of an insurance policy reflected the Husband’s attempt to ensure that his family (ie. the Wife and [V]) would be provided for in the event of his death. According to counsel, this could be seen as part of the Husband’s effort to “maintain” his family and was arguably a maintenance order.</p> <p class="Judg-1"><a id="p1_47"></a>47 I found this argument to be equivocal, at best.</p> <p class="Judg-1"><a id="p1_48"></a>48 There was some force in the Wife’s counsel’s rebuttal that the references to an insurance payout could also support the view that the Husband recognised Order 3 as a division order. This is because had Order 3 truly been intended to be a maintenance order, the Husband’s obligation to pay maintenance would have extinguished automatically upon his death as a matter of law,<span class="FootnoteRef"><a href="#Ftn_18" id="Ftn_18_1"><sup>[note: 18]</sup></a></span> and there would have been no need for him to provide for an insurance payout to prevent the Wife from making a claim for outstanding payments against his estate.</p> <p class="Judg-1"><a id="p1_49"></a>49 With respect to Orders 8 and 9a, I similarly find that they were not maintenance orders but were orders which are consequential to, or are meant to implement, the other division orders contained in the AM Order.</p> <p class="Judg-1"><a id="p1_50"></a>50 Both Orders referred to the Brussels Properties and A Co (which is referred to as the “<em>Company</em>” in the AM Order) and addressed how the parties should regulate their conduct <em>inter se</em> given the Husband’s unique capacity as an <em>usufructuary</em> of the A Co shares held by the parties’ daughter, [V] (an issue which I will address further below).</p> <p class="Judg-Heading-2">Context and circumstances surrounding the AM Order</p> <p class="Judg-1"><a id="p1_51"></a>51 I next consider the context and circumstances at the time the AM Order was entered into by consent.</p> <p class="Judg-1"><a id="p1_52"></a>52 As stated above, <em>both</em> parties were legally represented in February 2021 when the AM Order was made. Drafts of the orders were exchanged between both parties’ solicitors (including the parties’ themselves) leading up to finalisation of the draft consent order (which eventually became the AM Order).</p> <p class="Judg-1"><a id="p1_53"></a>53 The various drafts and amended versions of the draft consent order, together with the covering emails sent by the parties and/or their solicitors, were exhibited in their respective affidavits filed in these proceedings.<span class="FootnoteRef"><a href="#Ftn_19" id="Ftn_19_1"><sup>[note: 19]</sup></a></span> From a perusal of these documents, it was clear that one of the parties’ key concerns was the need to avoid the situation where Order 3 of the initial draft consent order would be classified as an order for “spousal support” thereby attracting tax implications in Belgium according to the Wife’s tax advisors.<span class="FootnoteRef"><a href="#Ftn_20" id="Ftn_20_1"><sup>[note: 20]</sup></a></span></p> <p class="Judg-1"><a id="p1_54"></a>54 This concern was made known to the Husband, and it was eventually agreed between the parties that Order 3 would state that it related to the <em>liquidation</em> of the marital assets (or the concept of “<em>liquidation-partage du regime matrimonial</em>” under Belgian law), the latter phrase being inserted into a draft circulated <em>by the Husband</em> himself, in November 2020.<span class="FootnoteRef"><a href="#Ftn_21" id="Ftn_21_1"><sup>[note: 21]</sup></a></span></p> <p class="Judg-1"><a id="p1_55"></a>55 In these proceedings, the Husband argued that the exchange of correspondence – including an alleged internal “explanation” as to how the <em>numerical figures</em> of EUR 2.1 million and EUR 1. 8 million in Order 3a and 3b, respectively, were calculated (written in “[ ]” in the later versions of the draft consent order circulated),<span class="FootnoteRef"><a href="#Ftn_22" id="Ftn_22_1"><sup>[note: 22]</sup></a></span> supported his argument that parties intended for Order 3 to be a form of maintenance payments to the Wife.</p> <p class="Judg-1"><a id="p1_56"></a>56 Again, I am unable to agree with the Husband’s argument.</p> <p class="Judg-1"><a id="p1_57"></a>57 Instead, I accept the Wife’s submission that the correspondence exchanged demonstrated that the parties had <em>specifically applied their minds</em> to how the draft consent order was to be crafted and that they intended for Order 3 to be a division order.<span class="FootnoteRef"><a href="#Ftn_23" id="Ftn_23_1"><sup>[note: 23]</sup></a></span> Both parties had agreed that they did not want Order 3 to be deemed by the foreign tax authority as a maintenance (or alimony) order and had made sure that Order 3 was intended to be a division order so as not to attract any tax implications.</p> <p class="Judg-1"><a id="p1_58"></a>58 It follows that Order 5, which is meant to be read together with Order 3, was intended by the parties to also be part of the division of their marital assets, and not a maintenance order.</p> <p class="Judg-1"><a id="p1_59"></a>59 Indeed, accepting the Husband’s argument would be to accept that the parties had privately wanted (and understood) Order 3 to be a maintenance order but had intentionally drafted the clause in an obscure (or possibly, duplicitous) manner with the sole purpose to evade foreign tax obligations. This is a very serious claim involving fraud and dishonesty committed on both foreign tax authorities as well as the court. I am not persuaded that the documents submitted evidence the presence of any such conduct and/or intentions between the parties.</p> <p class="Judg-1"><a id="p1_60"></a>60 I thus find that both parties agreed for Orders 3 and 5 to be read and understood as division orders, and that was their intention when the AM Order was made in February 2021.</p> <p class="Judg-1"><a id="p1_61"></a>61 I next address Orders 8 and 9. In considering the context under which these Orders were made, it is important to appreciate that by the time of the AM Order in February 2021, the Husband had already divested the legal ownership of his shares in A Co (and through that, the Brussels Properties) to [V].</p> <p class="Judg-1"><a id="p1_62"></a>62 It was not disputed by both parties and their foreign law experts, that the Husband was and remains a <em>usufructuary</em> of the A Co shares. The <em>usufruct</em> regime under Belgian law is such that the bare legal title/ownership of an asset (ie. the “<em>nue-propriété</em>”) may be vested in one owner while the right to use the property and enjoy the “fruits” of the same (for <em>eg.</em> dividends and income therefrom) are vested in another person (ie. the <em>usufructuary</em>).<span class="FootnoteRef"><a href="#Ftn_24" id="Ftn_24_1"><sup>[note: 24]</sup></a></span></p> <p class="Judg-1"><a id="p1_63"></a>63 In the present case, [V] is the owner of the bare legal title, and the Husband is the <em>usufructuary</em>. Both parties’ foreign law experts have referred to Article 3.138 of the Belgian Civil Code, the English translation of which states as follows:</p> <p class="Judg-Quote-1">Usufruct grants its holder the temporary right to use and enjoy, in a prudent and reasonable manner, a property belonging to the bare-owner, in accordance with the purpose of the property and with the obligation to return it at the end of their right.</p> <p class="Judg-1"><a id="p1_64"></a>64 I accept the Wife’s expert, Ms C’s, explanation that the <em>usufruct</em> regime does not grant the <em>usufructuary</em> (ie. the Husband) the right to sell/dispose the assets subject to the <em>usufruct</em> (ie. the A Co shares in the present case). Where both the legal owner and the <em>usufructuary</em> agree to sell the asset in question, then the latter may be entitled to claim compensation arising from the loss of his rights, enjoyment and use of the asset (as a result of its disposal). The <em>usufructuary</em>, however, cannot act unilaterally to sell the asset.</p> <p class="Judg-1"><a id="p1_65"></a>65 When viewed in this context, it becomes clear that Orders 8 and 9 were intended to be division orders regulating the use of the Brussels Properties and the shareholding of A Co.</p> <p class="Judg-1"><a id="p1_66"></a>66 While both these assets are no longer legally owned by the Husband, he remains a <em>usufructuary</em> and has the right to make decisions over the use of A Co shares (and its fruits). This, in turn, necessitated the use of language such as “<em>the Defendant</em> [ie. the Wife] <em>will be allowed by the Plaintiff</em> [ie. the Husband] <b><em>(directly or indirectly)</em></b><em>, to become the tenant of the Brussels Properties…</em> [emphasis in <b>bold</b> added]” in Order 8. The need to provide for the possible “indirect” authorisation by the Husband arose from the fact that he is no longer the legal owner of the A Co shares, but its <em>usufructuary</em>.</p> <p class="Judg-Heading-2">Conclusion of Interpretation of the AM Order and its consequence</p> <p class="Judg-1"><a id="p1_67"></a>67 For the foregoing reasons, I find that Orders 3, 5, 8 and 9 were orders relating to the division of matrimonial assets, and <em>not</em> maintenance orders.</p> <p class="Judg-1"><a id="p1_68"></a>68 For completeness, the Husband did not raise the existence of any mistake, misrepresentation nor did he claim that the AM Order was procured by fraud. In any case, such a claim would also have been difficult to maintain given that both parties were represented by solicitors at the material time.</p> <p class="Judg-1"><a id="p1_69"></a>69 Accordingly, contrary to his counsel’s submissions,<span class="FootnoteRef"><a href="#Ftn_25" id="Ftn_25_1"><sup>[note: 25]</sup></a></span> the Husband cannot rely on ss 118 or 119, WC as the legal basis to vary Orders 3, 5 8 and 9 of the AM Order; this Court cannot vary these Orders because of an alleged “<em>material change in circumstances</em>”.</p> <p class="Judg-1"><a id="p1_70"></a>70 Instead, the Husband can only rely on s 112(4), WC and must demonstrate that these Orders were “unworkable” or have become “unworkable”, as held by the Court of Appeal in <em>AYM</em>.</p> <p class="Judg-Heading-1">The AM Order is not unworkable</p> <p class="Judg-1"><a id="p1_71"></a>71 At the outset, in considering whether Orders 3, 5, 8 and 9 of the AM Order were (or have become) unworkable, I observe that the Husband’s counsel did not include in their written submissions any legal arguments on the issue of unworkability. Presumably, this is because the main plank of the Husband’s case is that he is entitled to rely on alleged material changes in his circumstances to vary the said Orders (which I do not accept, for the reasons set out above).</p> <p class="Judg-1"><a id="p1_72"></a>72 Nevertheless, counsel did indicate, during the hearing of SUM 3761, that they are relying on broadly the same grounds (ie. a change in the Husband’s circumstances) to show that the Orders have become unworkable. I also take into consideration the fact that the Husband’s affidavit did mention (albeit in passing) that the terms of the AM Order were “<em>unworkable</em>”.</p> <p class="Judg-1"><a id="p1_73"></a>73 I am therefore satisfied that was no prejudice being caused to the Wife and/or or that she had been taken by surprise by the Husband’s claim that the AM Orders have become unworkable. Indeed, the Wife’s written submissions specifically addressed the issue of the AM Orders’ unworkability.<span class="FootnoteRef"><a href="#Ftn_26" id="Ftn_26_1"><sup>[note: 26]</sup></a></span></p> <p class="Judg-1"><a id="p1_74"></a>74 That said, having considered the matter, I do not find any of Orders 3, 5, 8 and 9 to be unworkable (whether at its inception, or that they have become unworkable due to subsequent events). I therefore see no basis to vary any of these orders.</p> <p class="Judg-1"><a id="p1_75"></a>75 To begin with, the Court of Appeal in <em>AYM</em> was careful to explain that the power under s 112(4), WC does not give a court <em>carte blanche</em> to vary an order and that the power must be exercised only in exceptional situations.<span class="FootnoteRef"><a href="#Ftn_27" id="Ftn_27_1"><sup>[note: 27]</sup></a></span> The Court of Appeal further held as follows (<em>AYM</em> at [23]):</p> <p class="Judg-Quote-1">23 However, even assuming that the order for the division of matrimonial assets made by the court has not been completely effected or implemented, there still remains the issue as to the <em>grounds</em> on which the court would vary an order already made. <b>In our view, the fundamental importance of finality in the context of the division of matrimonial assets would also apply here</b>. To this end, we are of the view that the court would make, <em>inter alia</em>, the necessary variations to an order for the division of matrimonial assets <em>only</em> where the order was <em>unworkable</em> or <em>has become unworkable</em> (<em>but before</em> it has been fully effected or implemented). We would however, point out, parenthetically, that the courts would not look favourably upon frivolous applications that would constitute an abuse of the process of court, which applications would be subject, <em>inter alia</em>, to the appropriate costs orders.</p> <p class="Judg-Quote-1"></p><div align="right">[Emphasis added in <b>bold</b>]</div><p></p> <p class="Judg-1"><a id="p1_76"></a>76 In the present case, there was nothing in the Husband’s affidavits which suggests that Orders 3, 5 8 and 9 of the AM Order were unworkable <em>ab initio</em>. In fact, the Husband had complied with those orders in the years following the making of the AM Order, making them clearly workable.<span class="FootnoteRef"><a href="#Ftn_28" id="Ftn_28_1"><sup>[note: 28]</sup></a></span> I therefore understood the Husband’s case to be the narrower claim that the AM Order has become unworkable due to subsequent events – ie. his loss of employment and his remarriage.<span class="FootnoteRef"><a href="#Ftn_29" id="Ftn_29_1"><sup>[note: 29]</sup></a></span></p> <p class="Judg-1"><a id="p1_77"></a>77 As regards when new and/or subsequent circumstances can cause a division order to “become unworkable”, the Court of Appeal held that the new circumstances which have emerged since the order must “<em>so radically change the situation so that to implement the order as originally made would be to implement something which is radically different from what was originally intended.</em>”<span class="FootnoteRef"><a href="#Ftn_30" id="Ftn_30_1"><sup>[note: 30]</sup></a></span></p> <p class="Judg-1"><a id="p1_78"></a>78 <em>AYM</em> was a case where a husband whose business had failed, and who claimed that he had been unable to find a job, applied to vary a division order made by consent. The consent order provided for the parties’ matrimonial property to be sold only after 6 years and for the sale proceeds to be distributed between the parties thereafter, with the wife obtaining a larger share. The husband sought orders for the property to be sold within 3 months, and for the sale proceeds to be <em>inter alia</em> divided equally. Both the District Judge and the High Court dismissed the husband’s application.</p> <p class="Judg-1"><a id="p1_79"></a>79 In upholding the lower courts’ decision <em>vis-à-vis</em> the variation of the consent order, the Court of Appeal observed as follows:<span class="FootnoteRef"><a href="#Ftn_31" id="Ftn_31_1"><sup>[note: 31]</sup></a></span></p> <p class="Judg-Quote-1">33 Turning to the facts of the present appeal, we agree with the Judge’s decision. It is clear, in our view, <b>that the change in circumstances which the Husband prayed in aid fell far short of the radical change in circumstances</b> referred to above (at [25]) and did not amount to the order becoming unworkable. <b>Even if business failure and a loss of income amounted to a “material change in the circumstances” sufficient to justify a variation of an order for maintenance, they did not suffice in the present case to justify the invocation of s 112(4) in so far as the division of matrimonial assets was concerned</b>. It should also be noted that the order concerned was the result of a <em>consent order</em> between the Husband and the Wife (and see generally above at [15]). Indeed, the Husband was, in the final analysis, merely attempting to obtain a further amount because the matrimonial asset concerned was now worth more than what the parties had originally thought (see above at [3]). <b>Such attempts to undermine the finality of orders with regard to the division of matrimonial assets are wholly undesirable as well as unmeritorious and are, indeed, the very antithesis of the rationale underlying such orders in the first place, and aptly demonstrate the dangers of a wide interpretation of s 112(4)</b>. If, indeed, he had suffered a loss of income which amounted to a material change of circumstances, his proper course should have been to seek to vary the order for the payment of maintenance, rather than to seek to reopen the order with regard to the division of matrimonial assets.</p> <p class="Judg-Quote-1"></p><div align="right">[Emphasis added in <b>bold</b>]</div><p></p> <p class="Judg-1"><a id="p1_80"></a>80 In my view, the alleged changes in circumstances relied on by the Husband, like those referred to in <em>AYM</em>, fell far short of what was needed to vary a division order made by consent (ie. the AM Order).</p> <p class="Judg-1"><a id="p1_81"></a>81 Even if I were to accept that the Husband had lost his employment, and was unable to find a suitable job thereafter, the alleged change in his employment situation was simply not sufficient to justify varying the carefully negotiated division orders set out in AM Order.</p> <p class="Judg-1"><a id="p1_82"></a>82 To recapitulate, the evidence tendered by the parties showed that they had reached an agreement on the terms of the divorce (and the eventual draft consent order) after a long period of negotiations between the parties and their respective solicitors. This negotiated settlement, which was reached early in the proceedings (before any discovery and/or financial disclosures was ordered), meant that the draft consent order reflected the bargain struck between the parties without the need for either of them to undertake an extensive investigation of each other’s assets.</p> <p class="Judg-1"><a id="p1_83"></a>83 It was within this context that the Husband had agreed to provide the Wife with the amounts stated in Order 3 as being <em>inter alia</em> her share of the parties’ overall matrimonial assets.</p> <p class="Judg-1"><a id="p1_84"></a>84 In this regard, Choo J’s observations in the recent decision of <em>WRP v WRQ</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31044-SSP.xml')">[2024] SGHCF 12</a> are apposite:</p> <p class="Judg-Quote-1">…Although the idea of sanctity of contract is not applied directly in matrimonial proceedings as if they were commercial enterprises, weight is given to the negotiated settlement of the parties. <u>Much give and take are involved in reaching such settlements, and the court should keep this in mind lest it gives more to the taker by taking more from the giver, contrary to the parties’ intentions</u>…<span class="FootnoteRef"><a href="#Ftn_32" id="Ftn_32_1"><sup>[note: 32]</sup></a></span></p> <p class="Judg-Quote-1"></p><div align="right">[Emphasis added]</div><p></p> <p class="Judg-1"><a id="p1_85"></a>85 Put another way, the Husband’s application to vary the AM Order and change the amount payable to the Wife or the period/mode in which payment is to be made to her, is effectively a request for him to rewrite the carefully negotiated agreement between the parties even though it is not clear what was the exact “give-and-take” which the parties had agreed to when they entered into the original settlement.</p> <p class="Judg-1"><a id="p1_86"></a>86 As regards the Husband’s remarriage, I find that this is not a valid basis to seek a variation of the AM Order. Indeed, given the Husband’s decision to marry his current wife on 3 May 2021 (which was less than 1 month after the Certificate of Final Judgment was issued on 12 April 2021),<span class="FootnoteRef"><a href="#Ftn_33" id="Ftn_33_1"><sup>[note: 33]</sup></a></span> he would have been fully aware of his legal obligations under the AM Order and cannot rely on his decision to remarry as a basis to re-write the terms of his divorce which was finalised just one month before.</p> <p class="Judg-1"><a id="p1_87"></a>87 Lastly, insofar as the Husband relied on the Wife’s alleged actions arising from the sale of the Swiss property (referred to in Order 2 of the AM Order) or her actions <em>vis-à-vis</em> A Co’s bank account,<span class="FootnoteRef"><a href="#Ftn_34" id="Ftn_34_1"><sup>[note: 34]</sup></a></span> I am of the view that these were matters which, at their highest, relate to the parties’ compliance with the AM Order or the <em>enforcement</em> of the AM Order; they were not justifications for its variation. The difference between the enforcement of a court order and the need for its variation was a matter which the Husband clearly understood, having referred to the same in his affidavit.<span class="FootnoteRef"><a href="#Ftn_35" id="Ftn_35_1"><sup>[note: 35]</sup></a></span></p> <p class="Judg-1"><a id="p1_88"></a>88 In reaching the conclusions above, I have assumed <em>arguendo</em> that the Husband was (and remains) impecunious and/or lacked the ability to draw an income similar to what he was earning in February 2021. This assumption was made to illustrate that even if the Husband’s circumstances had indeed changed (as he had alleged), the AM Order had not become unworkable.</p> <p class="Judg-1"><a id="p1_89"></a>89 However, for the reasons set out at [98] below, I find that the Husband has not sufficiently discharged his burden to prove any alleged change in circumstances to justify a variation of the AM Order on account of alleged unworkability.</p> <p class="Judg-Heading-1">Order 7 of the AM Order should not be varied</p> <p class="Judg-1"><a id="p1_90"></a>90 In this Section, I will address whether Order 7a of the AM Order (which both parties accept was meant to be a maintenance order<span class="FootnoteRef"><a href="#Ftn_36" id="Ftn_36_1"><sup>[note: 36]</sup></a></span>) should be varied because of the Husband’s alleged change of circumstances.</p> <p class="Judg-1"><a id="p1_91"></a>91 In respect of this issue, the Wife submitted that the Husband did not substantiate his claim that there was an alleged change in circumstances given his “[failure] <em>to produce any evidence related to his bank accounts, investments accounts and/or other related information of his financial resources, including how he is funding his own monthly expenses and that of his current wife and child</em>”.<span class="FootnoteRef"><a href="#Ftn_37" id="Ftn_37_1"><sup>[note: 37]</sup></a></span> I agree with this submission.</p> <p class="Judg-1"><a id="p1_92"></a>92 In my view, the lack of evidence from the Husband was significant and inimical to his claim that he was (or remains) in dire financial straits. Being the applicant in a variation application, the burden fell on the Husband to prove his inability to meet his maintenance obligation, and he failed to do so.</p> <p class="Judg-1"><a id="p1_93"></a>93 I do not agree with his counsel’s argument that the Court must accept that there has been a material change in the Husband’s circumstances simply because it is an allegedly “<em>incontrovertible fact</em>” that the Husband’s income has changed since the time of the AM Order.</p> <p class="Judg-1"><a id="p1_94"></a>94 Even if I am prepared to accept that the Husband’s:</p> <p class="Judg-2"><a id="p1_94-p2_a"></a>(a) latest of income tax Notice of Assessment for Year of Assessment 2023 shows that he had earned approximately $500,000 that year, as compared to the $2.1 million annual income he had earned in 2021; and/or</p> <p class="Judg-2"><a id="p1_94-p2_b"></a>(b) current affiliation with [NWA Co] was merely on an <em>ad hoc</em> unremunerated basis,</p> <p class="Judg-1"><a id=""></a>that did not <em>ipso facto</em> mean that the Husband had proved his case that he was unable to meet his maintenance obligations.</p> <p class="Judg-1"><a id="p1_95"></a>95 As the Husband’s own counsel noted in their written submissions,<span class="FootnoteRef"><a href="#Ftn_38" id="Ftn_38_1"><sup>[note: 38]</sup></a></span> the Court of Appeal in <em>BZD v BZE</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/24080-SSP.xml')">[2020] SGCA 1</a> (“<em>BZD</em>”) emphasised that “[i]<em>n examining the question of material change in circumstances, the inquiry is not simply whether there has been any material change per se since the</em> [maintenance order]. <em>The change must be sufficiently material such that it is no longer fair to expect the status quo to remain</em>”.<span class="FootnoteRef"><a href="#Ftn_39" id="Ftn_39_1"><sup>[note: 39]</sup></a></span></p> <p class="Judg-1"><a id="p1_96"></a>96 To ascertain whether it is fair for the Order 7 (or any part thereof) to remain, the Court would have to undertake a proper and holistic assessment of the Husband’s current financial situation to determine whether he can still afford to pay maintenance.</p> <p class="Judg-1"><a id="p1_97"></a>97 In particular, s 114(1), WC expressly provides that when determining the amount of maintenance to be paid to a former wife, the court must have regard to all circumstances of the case including “<em>the income, earning capacity, property and other financial resources which each of the parties to the marriage has…</em>”. It follows that when deciding whether to reduce (or, in this case, completely remove) the Wife’s entitlement to spousal maintenance in the AM Order, the Court must similarly consider the Husband’s overall financial resources.</p> <p class="Judg-1"><a id="p1_98"></a>98 I thus agree with the Wife’s submission that “<em>there</em> [was] <em>no evidence to support</em> [the Husband’s] <em>contention that his financial resources have been completely depleted</em>”.<span class="FootnoteRef"><a href="#Ftn_40" id="Ftn_40_1"><sup>[note: 40]</sup></a></span> In fact, the Husband did not provide <em>any evidence</em> as to how much money he currently has. Accordingly, I do not find that he has proven that there has been any <em>material</em> change of circumstances which warrants the variation of Order 7 of the AM Order – an order which requires him to pay <em>inter alia</em> EUR 2,000 per month to the Wife.</p> <p class="Judg-Heading-1">Conclusion</p> <p class="Judg-1"><a id="p1_99"></a>99 In conclusion, I find that Orders 3, 5 8 and 9 of the AM Order were orders for the division of the parties’ matrimonial assets. These Orders (or any part thereof) can only be varied, pursuant to s 112(4) of the WC, if the Husband can demonstrate that they were unworkable <em>ab initio</em> or have become unworkable. The Husband has failed to do so, based on the evidence he had submitted in these proceedings.</p> <p class="Judg-1"><a id="p1_100"></a>100 It follows that there is no basis for the Court to now delete the aforesaid Orders from the AM Order, or for the Court to make a free-standing order relating to the sale of Brussels Properties and/or to distribute the proceeds therefrom.</p> <p class="Judg-1"><a id="p1_101"></a>101 With respect to Order 7 of the AM Order, although this was a maintenance order which could be varied pursuant to ss 118 and 119 of the WC, I find that the Husband did not discharge his burden to prove the existence of a material change of circumstances and there is similarly no basis to vary the provision of spousal maintenance stated therein.</p> <p class="Judg-1"><a id="p1_102"></a>102 Accordingly, the Husband’s application <em>vide</em>. SUM 3761 is dismissed in its entirety.</p> <p class="Judg-1"><a id="p1_103"></a>103 I will hear the parties on the issue of costs.</p> <hr align="left" size="1" width="33%"><p class="Footnote"><sup><a href="#Ftn_1_1" id="Ftn_1">[note: 1]</a></sup>Husband’s Supporting Affidavit (SUM 3761) dd 08.12.23 (“H1”) at [8] and [9]. The IJ is exhibited at p. 31 of H1.</p><p class="Footnote"><sup><a href="#Ftn_2_1" id="Ftn_2">[note: 2]</a></sup>H1 at [21] – [25].</p><p class="Footnote"><sup><a href="#Ftn_3_1" id="Ftn_3">[note: 3]</a></sup>H1 at [31] – [33].</p><p class="Footnote"><sup><a href="#Ftn_4_1" id="Ftn_4">[note: 4]</a></sup>Husband’s Written Submissions dd 13.06.24 (“HS”) at [40(a)].</p><p class="Footnote"><sup><a href="#Ftn_5_1" id="Ftn_5">[note: 5]</a></sup>Prayer 2 of SUM 3761.</p><p class="Footnote"><sup><a href="#Ftn_6_1" id="Ftn_6">[note: 6]</a></sup>Prayer 3 of SUM 3761.</p><p class="Footnote"><sup><a href="#Ftn_7_1" id="Ftn_7">[note: 7]</a></sup>Prayer 1 of SUM 3761.</p><p class="Footnote"><sup><a href="#Ftn_8_1" id="Ftn_8">[note: 8]</a></sup>Wife’s Written Submissions dd 13.06.24 (“WS”) at [38].</p><p class="Footnote"><sup><a href="#Ftn_9_1" id="Ftn_9">[note: 9]</a></sup>HS at [18].</p><p class="Footnote"><sup><a href="#Ftn_10_1" id="Ftn_10">[note: 10]</a></sup><em>UDA v UDB</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/21828-SSP.xml')">[2018] 1 SLR 1015</a> (“<em>UDA</em>”) at [28], [31] and [32].</p><p class="Footnote"><sup><a href="#Ftn_11_1" id="Ftn_11">[note: 11]</a></sup><em>UDA</em> at [48].</p><p class="Footnote"><sup><a href="#Ftn_12_1" id="Ftn_12">[note: 12]</a></sup>H1 at p. 89.</p><p class="Footnote"><sup><a href="#Ftn_13_1" id="Ftn_13">[note: 13]</a></sup>HS at [2] and [53].</p><p class="Footnote"><sup><a href="#Ftn_14_1" id="Ftn_14">[note: 14]</a></sup>H1 at [4].</p><p class="Footnote"><sup><a href="#Ftn_15_1" id="Ftn_15">[note: 15]</a></sup>H1 at [32].</p><p class="Footnote"><sup><a href="#Ftn_16_1" id="Ftn_16">[note: 16]</a></sup>See <em>Seah Kim Seng v Yick Sui Ping</em> <a class="pagecontent" href="javascript:viewPageContent('/SLR/17865-SSP.xml')">[2015] 4 SLR 731</a> at [29].</p><p class="Footnote"><sup><a href="#Ftn_17_1" id="Ftn_17">[note: 17]</a></sup><em>WWC v WWD</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31395-SSP.xml')">[2024] SGFC 17</a> at [52].</p><p class="Footnote"><sup><a href="#Ftn_18_1" id="Ftn_18">[note: 18]</a></sup>See s 117(a)(i), WC.</p><p class="Footnote"><sup><a href="#Ftn_19_1" id="Ftn_19">[note: 19]</a></sup>H1 at Tab 6; Wife’s Reply Affidavit dd 26.04.2024 (“W1”) at pp. 6 – 71.</p><p class="Footnote"><sup><a href="#Ftn_20_1" id="Ftn_20">[note: 20]</a></sup>Wife’s Supplemental Affidavit dd 23.05.24 (“W2”) at p. 52.</p><p class="Footnote"><sup><a href="#Ftn_21_1" id="Ftn_21">[note: 21]</a></sup>WS at [37]; W1 at p. 41 and 42.</p><p class="Footnote"><sup><a href="#Ftn_22_1" id="Ftn_22">[note: 22]</a></sup>H1 at p. 40.</p><p class="Footnote"><sup><a href="#Ftn_23_1" id="Ftn_23">[note: 23]</a></sup>WS at [33] – [37].</p><p class="Footnote"><sup><a href="#Ftn_24_1" id="Ftn_24">[note: 24]</a></sup>Husband’s Foreign Law Expert’s Affidavit dd 29.03.24 (“HE1”) at p. 13; Wife’s Foreign Law Expert Affidavit dd 15.05.24 (“WE1”) at p. 5.</p><p class="Footnote"><sup><a href="#Ftn_25_1" id="Ftn_25">[note: 25]</a></sup>HS at [29] – [32].</p><p class="Footnote"><sup><a href="#Ftn_26_1" id="Ftn_26">[note: 26]</a></sup>WS at [18] and [49].</p><p class="Footnote"><sup><a href="#Ftn_27_1" id="Ftn_27">[note: 27]</a></sup>See <em>AYM</em> at [11].</p><p class="Footnote"><sup><a href="#Ftn_28_1" id="Ftn_28">[note: 28]</a></sup>H1 at [28] and [29].</p><p class="Footnote"><sup><a href="#Ftn_29_1" id="Ftn_29">[note: 29]</a></sup>HS at [36].</p><p class="Footnote"><sup><a href="#Ftn_30_1" id="Ftn_30">[note: 30]</a></sup>See <em>AYM</em> at [25].</p><p class="Footnote"><sup><a href="#Ftn_31_1" id="Ftn_31">[note: 31]</a></sup><em>AYM</em> at [33] and [34].</p><p class="Footnote"><sup><a href="#Ftn_32_1" id="Ftn_32">[note: 32]</a></sup>See <em>WRP v WRQ</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/31044-SSP.xml')">[2024] SGHCF 12</a> at [5].</p><p class="Footnote"><sup><a href="#Ftn_33_1" id="Ftn_33">[note: 33]</a></sup>Husband’s Supplemental Affidavit dd 02.07.24 (“H3”) at p. 5.</p><p class="Footnote"><sup><a href="#Ftn_34_1" id="Ftn_34">[note: 34]</a></sup>H1 at [30]; Husband’s 2<sup>nd</sup> Affidavit dd 09.05.24 (“H2”) at [52].</p><p class="Footnote"><sup><a href="#Ftn_35_1" id="Ftn_35">[note: 35]</a></sup>H2 at [10].</p><p class="Footnote"><sup><a href="#Ftn_36_1" id="Ftn_36">[note: 36]</a></sup>HS at WS at [30] and [38].</p><p class="Footnote"><sup><a href="#Ftn_37_1" id="Ftn_37">[note: 37]</a></sup>WS at [43].</p><p class="Footnote"><sup><a href="#Ftn_38_1" id="Ftn_38">[note: 38]</a></sup>HS at [32].</p><p class="Footnote"><sup><a href="#Ftn_39_1" id="Ftn_39">[note: 39]</a></sup><em>BZD</em> at [14].</p><p class="Footnote"><sup><a href="#Ftn_40_1" id="Ftn_40">[note: 40]</a></sup>WS at [43]; W1 at [91] and [92].</p></div></content></root> | 1800 |
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