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15 SAcLJ Matrimonial Assets and the 3 rd Party 219 

MATRIMONIAL ASSETS AND THE 3 rd PARTY— 

TO START A NEW FIGHT, TO JOIN IN THE FRAY, TO 

SPEAK FROM THE SIDELINES, OR TO LIVE IN 

BLISSFUL IGNORANCE… 

An analysis of the jurisdictional and procedural issues 

which arise when the matrimonial assets to be divided by 

the court in the ancillary matters proceedings subsequent 

to a divorce involve 3rd party interests, or potential 3rd 

party interests. 1 

1 Introduction 

1 A newly married couple will usually set up a home together. In 

the course of their married life, they may buy a car, do renovations to 

their house, and make investments in the stock market. They may take 

loans to do these things, either from their friends and relatives, or from a 

financial institution or company. Together, or separately, they may set up 

bank accounts, companies, and business ventures with their friends, 

family members or business acquaintances. No man is an island, 2 

particularly for the socially and economically successful. The husband 

and wife could be connected to many other people, not just emotionally 

and socially, but economically. The husband, when fulfilling his role as a 

son, nephew, friend, employee, boss, business partner, and so on, may be 

involved in significant financial transactions, commitments and 

obligations. The same would be true for the wife. 

2 When the marriage breaks down and the couple get divorced, the 

court then has the task of dividing the matrimonial assets between the 

couple (“the ancillary matters”). In the course of doing this, the court 

may find itself faced with the prospect of dealing with, and deciding on, 

the interests and concerns of all the third parties—i.e. all those family 

members, friends, business acquaintances and creditors of the divorcing 

couple who have economic connections with either or both of them—in 

1 

2 

The phrase “3rd party” in this article is used to describe all those parties aside from 

the husband and wife who claim to have an interest in an asset which is claimed by 

either the husband or the wife, or both, to be a matrimonial asset within the meaning 

of Section 112 (Power of court to order division of matrimonial assets) of the 

Women’s Charter (Cap. 353) (“Section 112”). It should not be confused with the 

term “third party” which is used to describe a party brought into an action by the 

defendant under Order 16 of the Rules of Court. 

John Donne, 1684.

220 

Singapore Academy of Law Journal (2003) 

the form of joint investments, friendly or commercial loans, monies kept 

in a bank account, shareholdings in a company, a piece of property, and 

so on. 

3 For example, the father of the husband may claim that the car 

which his son is driving is actually his, and not a matrimonial asset 

which should be divided by the court. 3 The husband may claim that half 

the monies in a particular bank account in both his and his business 

partner’s names belong to his business partner, while his wife contends 

that the entire contents of that bank account actually belong to the 

husband. 4 The wife may claim that all the shares in a particular company 

which are in the names of the husband’s mistress and his two illegitimate 

children with her actually belong to the husband. 5 The husband’s mother 

may claim that she lent a sum of money to the husband and wife to 

purchase their matrimonial home, while the wife asserts that this sum 

was a gift to herself and her husband, and not a loan. 6 

4 For the purposes of this article, the person, aside from the 

divorcing couple (who shall be termed “the husband and wife”), who: 

(i) claims (or on whose behalf it is claimed by the husband and/or 

the wife that) an interest in an asset which is claimed by either or 

both the husband and wife to be a matrimonial asset; and/or 

(ii) claims (or on whose behalf it is claimed by the husband and/or 

the wife) to have loaned monies to either or both the husband 

and wife, which he expects to be returned to him at some point in 

the future 

shall be known as the “3 rd party”. 

The term “3 rd party issues” shall be used to refer to the issues set out in 

paragraphs 4 (i) and (ii) above. 

5 Numerous jurisdictional and procedural questions arise in 

relation to the 3 rd party and 3 rd party issues: 

3 

4 

5 

6 

This was the case in Audrey Lee Dawn (m.w.) v Chow Hoo Siong [2003] SGDC 47; 

Chow Hoo Siong v Audrey Lee Dawn [2003] SGHC 235 

This was the case in Yow Mee Lan (m.w.) v Chen Kai Buan [2000] 4 SLR 466 

This was the case in Lam Siew Lan (m.w.) v Lian Tong Looi (unreported, Divorce 

Petition No. 1816 of 1999) 

This was the case in Lee Sew-Iam Richard@Lee Siew Wian v Yeo Siew Keng Lilian 

(m.w.) and Another (unreported, Divorce No. 193 of 1995)


(i) Does the court dealing with the ancillary matters also have the 

jurisdiction to deal with the 3 rd party issues 

(ii) Even if the court had such jurisdiction, can the 3 rd party 

nonetheless choose to start his own proceedings in respect of the 

3 rd party issues in an ordinary civil court Should such 

proceedings be heard together with the ancillary matters 

proceedings 

(iii) Alternatively, is the 3 rd party allowed to intervene in the 

ancillary matters proceedings If so, how does he go about 

doing this 

(iv) What will happen if the 3 rd 

ancillary matters proceedings 

party does not intervene in the 

(v) If the 3 rd party does intervene in the ancillary matters 

proceedings, what procedure should be adopted at the hearing 

(i.e. open court hearing with cross-examination of all witnesses, 

or chambers hearing without cross-examination as of right) 

(vi) What effect does (a) the Supreme Court of Judicature (Transfer 

of Matrimonial, Divorce and Guardianship of Infants 

Proceedings to District Court) Order (“the Transfer Order”) 

(which, inter alia, gave the District Court the jurisdiction to hear 

and determine any proceedings under Part X of the Women’s 

Charter, regardless of the monetary amount involved, in respect 

of divorce petitions filed on or after 1 April 1996) and (b) the 

Supreme Court of Judicature (Transfer of Matrimonial, Divorce 

and Guardianship of Infants Proceedings to District Court) Order 

2003 (“the Second Transfer Order”) 7 (which, inter alia, gives 

7 Section 2 (Proceedings transferred to District Court) of the Transfer Order states: 

(1) Any proceedings under— 

(2) (a) section 59 and Part X of the Women’s Charter (Cap. 353); … 

commenced in the High Court on or after 1 st April 1996 shall be transferred to and 

be heard and determined by a District Court. 

(3) All matters or causes relating to proceedings referred to in sub-paragraph (1) 

commenced before 1 st April 1996 shall continue to be heard and determined by the 

High Court. 

The Second Transfer Order repealed the Transfer Order. The Transfer Order is therefore 

only applicable to divorce petitions filed on or after 1 April 1996 and before 15 

December 2003. Section 2 (Proceedings Transferred to District Court) of the Second 

Transfer Order states: 

[continued next page]

222 


the District Court the jurisdiction to hear and determine any 

proceedings under Part X of the Women’s Charter, save for 

contested applications for the division of matrimonial assets 

where the gross value of the matrimonial assets are asserted by 

any party to the proceedings to be worth S$1.5 million or above, 

in respect of divorce petitions filed on or after 15 December 

2003) have in relation to all the above questions, if any 

6 This article organises and categorises the questions set out 

above, in order to provide a framework which can be used to analyse any 

situation in which 3 rd party issues arise. It will also put forward the 

author’s views on how these questions should be answered, and 

illustrates these with examples of how the Singapore, English and 

Malaysian courts have answered such questions in the past. 

2 Jurisdiction of court hearing ancillary matters to hear 

the 3 rd party issue 

7 Under Section 112(1) of the Women’s Charter (Cap. 353), 8 the 

court has the power to order the division between the parties of any 

matrimonial asset or the sale of any such asset and the division between 

2. —(1) Subject to paragraph 2(2), any proceedings under — 

(a) section 59 and Part X of the Women’s Charter (Cap. 353); or 

(b) the Guardianship of Infants Act (Cap. 122), 

commenced in the High Court on or after 15 December 2003 shall be transferred to and 

be heard and determined by a District Court. 

(2) In matrimonial proceedings under Part X of the Women’s Charter transferred to a 

District Court under paragraph (1), where 

(a) an application is made for the division of matrimonial assets; and 

(b) the said application is contested; and 

(c) the gross value of the matrimonial assets is asserted by any party to the 

proceedings, in the manner required by the Registrar of the Subordinate 

Courts, to be of or above the value of $1.5 million, 

the proceedings shall, upon the direction of the Registrar of the Subordinate Courts that 

the ancillary issues are ready for hearing, be transferred to and be heard and determined 

by the High Court. 

(3) In sub-paragraph (2), “gross value of the matrimonial assets” means the total value of 

the assets, disregarding any outstanding liabilities attaching thereto or any personal 

liabilities. 

8 

Section 112(1) (Power of court to order division of matrimonial assets) states: The 

court shall have power, when granting or subsequent to the grant of a decree of 

divorce, judicial separation or nullity of marriage, to order the division between the 

parties of any matrimonial asset or the sale of any such asset and the division 

between the parties of the proceeds of the sale of any such asset in such proportions 

as the court thinks just and equitable.


the parties of the proceeds of the sale of any such asset in such 

proportions as the court thinks just and equitable. 

8 Does this section give the court dealing with the issue of the 

division of the matrimonial assets the jurisdiction to also deal with 3 rd 

party issues, or must a separate civil suit be taken out to deal with the 3 rd 

party issues 

9 Note: This question is discussed in section 2.1 on the basis that 

the civil suit to be taken out in respect of the 3 rd party issues is to be 

taken out in a court of the same jurisdiction as the court dealing with the 

ancillary matters—i.e. either both the civil suit and the ancillary matters 

would be heard in the High Court or both the civil suit and the ancillary 

matters would be heard in the District Court. The particular jurisdictional 

issues which would arise if the civil suit is taken out in the High Court, 

but the ancillary matters are being heard in the District Court will be 

discussed in section 2.2. For the purposes of this article, the term 

“Family Court” will be used to refer to the District Court which deals 

with the ancillary matters. 

2.1 Must a separate civil suit be taken out to deal with the 

3rd party issues 

2.1.1 Yes—Court dealing with ancillary matters has no 

jurisdiction to deal with 3 rd party issue 

10 One view is that 3 rd party issues should not be dealt with by the 

Family Court, as Section 112 appears only to refer to the parties to the 

divorce proceedings (i.e. the husband and wife). On this view, a civil suit 

should be taken out to resolve the 3 rd party issues, and, if necessary, the 

ancillary matters should be adjourned to await the outcome of the civil 

suit. This approach was taken by the parties in the case of Liu Ah 

Moy@Liu Ah Lin (m.w.) v Lim Seck Yeow and Another. 9 In this case, the 

husband acquired a property in the names of himself and his mistress 

during the course of the marriage, which property was subsequently sold. 

The wife filed a divorce petition in the Family Court on 15 April 1999, 

and a decree nisi was granted on 18 August 2000, with the ancillary 

matters being adjourned to chambers. The wife then filed an originating 

summons in the High Court on 20 April 2001 seeking a declaration that 

the husband’s mistress held her half share of the said property in trust for 

the husband and that the husband’s mistress’ share of the sale proceeds 

9 

unreported, Divorce Petition No. 581 of 1999

224 


of the said property constituted part of the matrimonial assets subject to 

division in the pending matrimonial proceedings (the 3 rd party issue). 

When the originating summons came up for hearing, the High Court held 

that half of the sale proceeds of the property should be released to the 

husband’s mistress, and that the other half (amounting to $1,072,511.69) 

belonged to the husband and formed part of the matrimonial assets. This 

sum was to be held by stakeholders until the final disposal of the 

matrimonial proceedings. The Family Court then proceeded to deal with 

the division of the matrimonial assets (final orders being made on 31 

May 2002), giving the wife, inter alia, a 25% share of the husband’s 

half-share in the sale proceeds, i.e. the $1,072,511.69. It should be noted, 

however, that there was no pronouncement by the Family Court that the 

Family Court would have had no jurisdiction to deal with the 3 rd party 

issue. 10 Only the order in respect of maintenance was appealed (and 

which was varied by the High Court). No comment was made by the 

High Court at the appeal regarding the Family Court’s jurisdiction (or 

the lack thereof) to deal with the 3 rd party issue. 

11 In the case of Yu Wei Shin v Yong Kim Ying (m.w.), 11 the 

husband claimed that certain properties were held by the respondent’s 

wife’s brothers on trust, or partially on trust, for him. The wife disputed 

this. The court hearing the ancillary matters (the Family Court) did not 

deal with this issue, stating that until there was a determination of the 

parties’ respective right and interest in the properties, they must be 

excluded from the pool of assets for division. The court ordered that 

these properties be held for both the husband and wife in equal shares 

should they succeed in claiming them (“order in respect of the 3 rd 

party issue”). This implies that a civil suit would have to be taken out 

by one of the parties for a declaration as to whether the properties were 

held by the wife’s brothers in trust for the husband or not—and hence 

that the court hearing the ancillary matters had no jurisdiction to deal 

with the matter. On appeal, the High Court varied certain of the orders 

made by the Family Court in respect of the division of matrimonial 

assets. However, the order in respect of the 3 rd party issue was not 

varied. 

10 

11 

See Section 2.2 for a discussion on the Family Court’s jurisdiction to deal with 3 rd 

party issues involving assets worth more than $250,000. 



2.1.2 No—Court dealing with the ancillary matters has the 

jurisdiction to deal with the 3 rd party issue 

12 It is submitted, however, that the better view is that the court 

dealing with the issue of the division of the matrimonial assets should 

also have—and does have—the jurisdiction to deal with 3 rd party issues. 

This is because the court would naturally have to decide what the 

matrimonial asset is first, before being able to make any orders under 

Section 112. Deciding the extent of the 3 rd party’s interests would be 

something that must be done in the course of deciding what constitute 

the matrimonial assets. Such a decision would be more conveniently and 

expeditiously decided by the same forum, and therefore should be. 

13 The English position appears to support this view. In the English 

case of Tebbutt v Haynes and another, 12 the court held that on an 

application by a spouse under section 24 of the Matrimonial Causes Act 

1973 for a property adjustment order, 13 the court had the jurisdiction to 

determine not only the rights and interests of the husband and wife in the 

12 

13 

[1981] 2 All ER 238 

Section 24 of the Matrimonial Causes Act 1973 (Property adjustment orders in 

connection with divorce proceedings, etc.) grants the English court the power to 

make property adjustment orders and is the equivalent of our Section 112. It is 

dissimilar to Section 112, however, in its wording and scope. Section 24(1) states 

that: 

On granting a decree of divorce, a decree of nullity of marriage or a decree of judicial 

separation or at any time thereafter (whether, in the case of a decree of divorce or of 

nullity of marriage, before or after the decree is made absolute), the court may make 

any one or more of the following orders, that is to say— 

(a) an order that a party to the marriage shall transfer to the other party, to any 

child of the family or to such person as may be specified in the order for the 

benefit of such a child such property as may be so specified, being property to 

which the first-mentioned party is entitled, either in possession or reversion; 

(b) an order that a settlement of such property as may be so specified, being 

property to which a party to the marriage is so entitled, be made to the 

satisfaction of the court for the benefit of the other party to the marriage and of 

the children of the family or either or any of them; 

(c) an order varying for the benefit of the parties to the marriage and of the 

children of the family or either or any of them any ante-nuptial or post-nuptial 

settlement (including such a settlement made by will or codicil) made on the 

parties to the marriage; 

(d) an order extinguishing or reducing the interest of either of the parties to the 

marriage under any such settlement; 

subject, however, in the case of an order under paragraph (a) above, to the 

restrictions imposed by section 29(1) and (3) below on the making of orders for a 

transfer of property in favour of children who have attained the age of eighteen.

226 


property but also the rights and interests of 3 rd parties who had 

intervened in the application 14 to claim an interest in the house: 

“It is fundamental to the s 24 jurisdiction that the judge should 

know over what property he is entitled to exercise his discretion. 

If there is a dispute between a respondent spouse and a third 

party as to the ownership of a particular item of property which 

stands in the respondent’s name, that dispute must be resolved 

before the judge can make an effective final order under s 24. 

There are only two ways of resolving such a dispute. Either the 

Family Division proceedings must be adjourned pending the trial 

of the claim in other proceedings, or the dispute must be decided 

in the s 24 proceedings by allowing the 3rd party to intervene. 

The latter course was adopted in the instant case. It has not been 

suggested, and I do not think it would be right to suggest, that 

the court had no jurisdiction to permit Mrs Tebbutt [the 3 rd party] 

to intervene. There could be no purpose in her intervention 

except to decide that dispute. I think that in a case like the 

present the Family Division has jurisdiction under s 24 to 

decide property rights.” (per Brightman LJ at page 245) 

(emphasis added) 

14 The Singapore courts appeared to have adopted a similar 

approach, although they have not stated the jurisdictional position as 

explicitly as it has been stated in Tebbutt. In the Shi Fang case, supra, 

for example, the court at first instance (the High Court) held that shares 

in the husband’s name, but which were claimed by the husband’s father 

to belong to him, actually belonged to the husband. This aspect of the 

judgment was not appealed against by the husband. However, at the 

appeal hearing, the Court of Appeal expressed the view that the shares 

were in fact held on trust by the husband for the father—indicating that if 

this issue had been the subject matter of an appeal by the husband, the 

Court of Appeal would have had no reservations in dealing with the 

same. In the case of Audrey Lee Dawn, supra, the Family Court decided 

that the car purchased by the respondent husband’s father (worth 

$90,000 at the time of the ancillary matters hearing) and which he 

claimed to be his, actually belonged to the respondent husband. 15 In Yow 

14 

This case deals with 3 rd parties who had formally intervened to join the ancillary 

matters proceedings as parties. See Section 4 below for a discussion in respect of the 

scope of the court’s jurisdiction in relation to 3 rd parties who do not formally 

intervene to join the ancillary matters proceedings. 

15 On appeal, the High Court accepted this finding, though it held that as the car was a 

gift by the respondent husband’s father to the responasdent, [continued next page]


Mee Lan, supra, the Family Court found that half the money in two 

Malaysian bank accounts in the joint names of the respondent husband 

and his business partner (amounting to RM 349,837.58) belonged to the 

respondent husband. On appeal, the High Court held that the whole of 

this sum belonged to the respondent husband. In the case of Krygsman 

Juliet Angela (m.w.) v Lee Cung Meng Joseph, 16 the husband claimed 

that his stake in a property (Berwick Drive) owned with two of his sisters 

and a brother-in-law (purchased at the price of $1.44 million, and 

claimed by the husband not to have changed much in value at the time of 

the ancillary matters hearing) was only $14,400. The Family Court 

accepted the husband’s position in this respect. The Family Court’s 

decision in the division of the matrimonial assets was upheld by the High 

Court on appeal, including that aspect of its judgment dealing with the 

Berwick Drive property. 17 

15 The cases cited above support the position that the Singapore 

courts are both willing and able to deal with 3 rd party issues when 

dealing with the ancillary matters, in the absence of any separate civil 

suit being filed regarding the said 3 rd party issues. 

2.2 Family court’s jurisdiction to deal with 3 rd party issues 

involving amounts or claims of over $250,000 

16 Under the Transfer Order, the Family Court was given the 

jurisdiction to hear and determine any proceedings under Part X of the 

Women’s Charter, regardless of the monetary amount involved, in 

respect of divorce petitions filed on or after 1 April 1996. It applies to all 

divorce petitions filed on or after 1 April 1996 and before 15 December 

2003. Under the Second Transfer Order, the Family Court is given the 

jurisdiction to hear and determine any proceedings under Part X of the 

Women’s Charter, save for contested applications for the division of 

matrimonial assets where the gross value of the assets is asserted by any 

party to the proceedings to be $1.5 million or above, in respect of 

divorce petitions filed on or after 15 December 2003. Does this include 

3 rd party issues which involve assets worth more than $250,000, since the 

jurisidictional limit of the District Court is $250,000 18 

16 

17 

18 

gift by the respondent husband’s father to the respondent, it was not a matrimonial 

asset available for division, as there had been no substantial improvement to the car 

by the wife or by the wife and husband together during the marriage. 

unreported, Divorce Petition 2123 of 1999 

Lee Chung Meng Joseph v Krygsman [2001] 1 SLR 579 

See Section 2(b) (Interpretation) Subordinate Courts Act (Cap. 321)

228 


17 One argument against the Family Court having such jurisdiction 

is that the Transfer Order and the Second Transfer Order were never 

meant to give the Family Court the jurisdiction to determine issues and 

to make orders which could, in the absence of a divorce, only have been 

dealt with or made by the High Court. This is because in dealing with 

such 3 rd party issues, the principles relevant to ordinary civil proceedings 

(concepts such as the resulting trust or constructive trust, for example) 

must be applied, and not the principles relevant to the division of 

matrimonial assets set out in the Women’s Charter (Cap. 353). It may be 

argued that it would not be appropriate for the Family Court, as a 

specialist court in family matters, tasked with applying family law 

principles to its cases, to be making decisions and dealing with issues 

requiring the application of civil principles in those cases where only the 

High Court would have had jurisdiction (i.e. those cases involving 

amounts or claims of over $250,000). On this view, the approach taken 

in Liu Ah Moy, supra, should be adopted, i.e. a civil suit must be filed in 

the High Court to deal with the 3 rd party issue, before the ancillary 

matters are heard in the Family Court. 

18 However, it would often be more convenient, expeditious and 

cost-effective for the 3 rd party issues as well as the ancillary matters to be 

dealt with by the same forum. Thus, either the High Court should hear 

both matters, or the Family Court should. It is submitted that the Transfer 

Order and the Second Transfer Order were not intended to automatically 

remove this advantage (i.e. of having one forum hearing all the relevant 

issues) from every single divorce case involving a 3 rd party issue in 

relation to amounts or claims worth more than $250,000. Therefore, it is 

submitted that a purposive interpretation of the Transfer Order and the 

Second Transfer Order be adopted: the better view is that the Transfer 

Order and the Second Transfer Order were intended to allow the Family 

Court to step into the shoes of the High Court, in this regard, ie. the 

Transfer Order and the Second Transfer Order were meant to cover those 

situations involving 3 rd party issues even if they are in relation to 

amounts or claims worth more than $250,000. 

19 There are local authorities to support this view. In Lau Loon 

Seng v Sia Peck Eng, 19 the Family Court held that 155,000 shares in a 

certain company (of which 115,000 were held in the name of one 3 rd 

party, and 40,000 were registered in the name of a second 3 rd party) were 

held on trust for the husband. The Family Court ordered that the shares 

be valued within two months of the date of the ancillary matters orders, 

19 

[1999] 4 SLR 408


thus indicating that the value of the shares would not affect the Family 

Court’s jurisdiction to deal with the same. The Family Court’s orders 

were upheld on appeal to the High Court. In Lam Siew Lan, supra, the 

Family Court found that shares in a company (worth $1,668,800) which 

were registered in the names of the respondent husband’s mistress and 

two illegitimate children actually belonged to the husband, and that the 

wife should be given 20% of the value of these shares. This order was 

not varied on appeal. In the case of Ong Tong Liang v Lim Siew Cheng 

Jeanette 20 the Family Court found it suspicious that the respondent 

husband had transferred 80% of a certain property (the Ivory Heights 

apartment) to his mother in October 1997, after he filed a divorce 

petition in July 1997. The court held that this was a sham transaction, 

designed to keep assets out of the reach of his family. The full value of 

this asset (at its open market price of $550,000) was included in the pool 

of matrimonial assets available for division. The wife was awarded a 

50% share of the total pool of matrimonial assets (worth $1,440,400). 

The court ordered that the husband pay the wife the sum of $330,000, 

being the remainder of her share of the matrimonial assets (the 

matrimonial home (worth $390,400) was already in the wife’s name.) On 

appeal, the High Court varied the order made by the Family Court by 

reducing the sum of $330,000 to $260,895. 21 However, no comment was 

made by the High Court that the Family Court had no jurisdiction to deal 

with the 3 rd party issue in this case. 

2.3 Side-stepping the jurisdictional question 

20 The question of whether the court hearing the ancillary matters 

has the jurisdiction to deal with 3 rd party issues can be avoided entirely, 

however, if the court does not have to decide what the 3 rd party’s share in 

the matrimonial asset is. 

2.3.1 By agreement 

21 If parties come to an agreement on what constitutes the 

matrimonial asset, the court will not have to make a decision as to the 3 rd 

party’s share of the matrimonial asset before deciding what constitutes 

the matrimonial asset. 22 For example, in the case of Tan Hock Soon v 

20 

21 

22 

unreported, Divorce Petition No 2208 of 1997 

No judgment was written by the High Court for this case, nor was an oral judgment 

given. 

All parties must be a party to the agreement, however, as no consent judgment or 

order has any operation against a party not shown to have consented; The Doctrine of 

Res Judicata, Spencer Bower, Turner and Handley (3 rd Ed, 1996), at p. 23, para 41

230 


Dolly Chew Jee Kee Neo (m.w.), 23 a matrimonial home (which had a net 

worth of $913,000 at the time of the ancillary matters hearing) was 

purchased by the husband, wife and their eldest daughter as tenants-incommon 

in equal shares. There were disputes as to the exact sums paid 

for the property by the husband and the eldest daughter. The husband 

took out an originating summons in the High Court to determine the 

eldest daughter’s beneficial ownership of the matrimonial home, but 

subsequently withdrew it on the day of the hearing. The eldest daughter 

had filed affidavits in the ancillary matters hearing to state her claim of a 

one-third share of the matrimonial home. At the ancillary matters 

hearing, however, the parties accepted that the eldest daughter’s share in 

the matrimonial home would be one-third, leaving two-thirds of the net 

value of the matrimonial home as matrimonial assets to be divided 

between the husband and the wife. There was therefore no need for the 

court to decide the value of the matrimonial asset to be divided as far as 

the matrimonial home was concerned. The appeal in this case was 

dismissed by the High Court. 

2.3.2 Orders contingent on future litigation 

22 The court can also make orders on the basis that another forum 

will be dealing with the 3 rd party issue, as was done in the case of Yu Wei 

Shin, supra. In that case, the court ordered that certain properties in the 

names of 3 rd parties (the wife’s brothers) be held for both the husband 

and wife in equal shares should they succeed in claiming them, without 

deciding whether the said properties were indeed held by the 3 rd parties 

on trust for the husband and wife. However, as it is submitted that the 

court (whether the High Court or the Family Court) has the jurisdiction 

to deal with the 3 rd party issues, it is further submitted that the court 

dealing with the ancillary matters should decide the 3 rd party issues itself, 

unless separate proceedings in respect of those 3 rd party issues in another 

forum have already been commenced. 24 

23 An example of how the court can make orders on the basis that 

another forum will be dealing with the 3 rd party issue, in a situation 

where separate proceedings in respect of the 3 rd party issue have already 

commenced, is the case of Leong Choon Kum (m.w.) v Chia Kin Tuck. 25 

The husband in this case had filed a suit in the High Court (OS 554 of 

23 

24 

25 

unreported, Divorce Petition No. 2489 of 1997 

For a discussion of the various courses of action the court could take if separate 

proceedings are commenced in another forum, see Section 6. 

unreported, Divorce Petition No. 1621 of 1998; appeal in this matter not disposed of 

at the time of writing.


2002) against his three siblings. He sought a declaration from the court 

that a certain property (the Ringwood bungalow) belonged to the estate 

of his late mother and that the legal owners (his siblings and himself) 

only held the property on trust for the mother’s estate. If the property 

belonged to the mother’s estate, the husband’s share would be 50% 

under the will of the mother. If the property belonged to the legal 

owners, the husband would have a one third share in the property. The 

court’s decision on whether the property belonged to the mother’s estate 

would therefore affect the pool of matrimonial assets available for 

distribution. The High Court suit was still pending at the time of the 

ancillary matters hearing in the Family Court. The Family Court 

nonetheless proceeded to hear the ancillary matters, and to make an 

“alternative order”. The wife was given a 15% share of the husband’s 

one third share of the Ringwood bungalow, on the basis that the property 

belonged to the legal owners. However, the Family Court went on to 

order that in the event that the High Court found that the Ringwood 

bungalow belonged to the estate of the husband’s mother (thus entitling 

the husband to 50% of the property), the husband was to pay the wife 

15% of his additional 16.66% 26 share in the property. 

2.3.3 Clearly not a matrimonial asset 

24 The court may decide that the asset or part of the asset claimed 

by the 3 rd party is clearly not a matrimonial asset, without having to 

decide the 3 rd party’s share of that asset. For example, in the case of Goh 

Heok Hoon (m.w.) v Ang Kok Keng, 27 the husband claimed that certain 

monies in a bank account were held by him on trust for his mother. The 

wife claimed that these monies belonged to the husband. She did not 

claim that they were a gift from the husband’s mother to her, or to both 

her and her husband. After examining the evidence, the Family Court 

stated that it was not clear whether the monies were held by the husband 

on trust for his mother, or whether the said monies were a gift from his 

mother to him, but held that in any event, whether a trust or a gift, they 

were not a matrimonial asset, and would not be taken into account in the 

division of matrimonial assets. (The appeal by the husband against the 

orders on division of matrimonial assets was dismissed.) 

25 It is important, therefore, to analyse the claims being made by 

each of the parties, in order to ascertain whether the court must make a 

decision regarding the 3 rd party’s share in the matrimonial asset before 

26 

27 

Which is roughly 50% less 33.33% (the one third share). 


232 


making a decision regarding the division of matrimonial assets. If the 

court does not have to do so, then the question of whether the court has 

the jurisdiction to do this does not even arise. 

2.4 Loans and liabilities 

26 3 rd party issues crop up not just in relation to assets owned 

(either beneficially or legally) by the husband and wife, but also in 

relation to their loans and liabilities. The 3 rd party may have lent sums of 

money to either or both husband and wife. The 3rd party may be an 

institution such as a bank, which may have a mortgage on the 

matrimonial home, or an individual such as a relative of one of the 

parties, who has been given no security at all in respect of the loan that 

he has made. Does the court have jurisdiction to deal with such loans and 

liabilities 

2.4.1 Court’s jurisdiction to deal with loans between husband 

and wife 

27 In the High Court case of Chong Li Yoon v Soo Yook Thong, 28 

the petitioner wife had prayed, inter alia, for the respondent husband to 

repay her all the loans and debts incurred by her on his behalf. The court 

dismissed this prayer, holding that liabilities and obligations in respect of 

loans and debts are matters in the law of contract and quasi-contract 

respectively, and not ancillary matters in divorce proceedings. As such, 

the court had no jurisdiction to grant an order of repayment of a loan 

between husband and wife in the course of matrimonial proceedings and 

the aggrieved party should seek redress through a separate civil action. 

This approach was not followed, however, in the later High Court case of 

Yeong Swan Ann v Lim Fei Yen (m.w.). 29 In this case, the wife claimed 

against the husband during the hearing of the ancillary matters for a loan 

of $22,300, which had been given by the wife to the husband during the 

marriage. The court ordered the husband to return the loan, on the basis 

that it was not in the interests of the parties, especially the wife, to allow 

“legal niceties” 30 to affect the necessity of ordering a clean break 

between the parties in respect of the matrimonial assets. If the wife had 

to start fresh proceedings to recover the loan, the “clean break” between 

the parties would be affected. The High Court’s decision was upheld by 

the Court of Appeal, which stated that the sum of money (i.e. the loan of 

28 

29 

30 

[1993] 3 SLR 181 


Ibid, per Lai Siu Chiu J, at para 27.


$22,300) “formed part of the assets belonging to the parties at the time 

the application was made under section 106 [now section 112] to divide 

their matrimonial assets and it was thus well within the jurisdiction of 

this court to order the husband to pay this sum of money to the wife.” 31 

This practical approach is commendable for saving the parties financial 

as well as emotional costs. Indeed, the High Court had observed that “the 

acrimonious relationship between the parties would not be improved but 

would be further exacerbated if the wife was forced to start fresh 

proceedings (which she could ill afford) to recover this and the other 

amount.” 32 

28 It is therefore clear that the court dealing with the ancillary 

matters has the jurisdiction to order the repayment of loans between the 

husband and wife. The Family Court has also exercised its jurisdiction in 

this regard. (See the case of Lee Geok Mui v Goh Tong Hiang, 33 where 

the court ordered the sum of $30,000 to be paid by the husband to the 

wife, in respect of various loans given by the wife to the husband.) 34 

2.4.2 Court’s jurisdiction to deal with loans from and liabilities 

to 3rd parties 35 

29 The question which follows is whether the court has a similar 

jurisdiction to deal with loans made by 3 rd parties to either or both the 

husband and wife. It is submitted that it does. 

30 Under Section 112(2)(b) the court has a duty, when deciding the 

issue of the division of matrimonial assets, to take into account “any 

debt owing or obligation incurred or undertaken by either party for their 

joint benefit or for the benefit of any child of the marriage”. 

31 

32 

33 

34 

35 

Yeong Swann Ann v Lim Fei Yen [1999] 1 SLR 651, per Yong Pung How CJ 

Supra note 29, per Lai Siu Chiu J, at para 27 


The appeal in this case was withdrawn. 

For the same reasons as set out in Section 2.2 above, it is submitted that the Family 

Court has the jurisdiction to deal with loans from or liabilities to 3 rd parties which are 

over $250,000. Under Section 112(2), the court has the duty to take into account, 

inter alia, the existence and size of loans from and liabilities to 3 rd parties before 

making a decision on the division of matrimonial assets. It would be more 

convenient, cost-effective and expedient for the same forum which decides the 

division of matrimonial assets to also determine the issue of loans from or liabilities 

to 3 rd parties.

234 


31 The existence and size of any debts due by either or both the 

husband and wife to 3 rd parties are therefore issues which must be 

decided by the court before it makes orders under Section 112. Thus, the 

court clearly has the jurisdiction to decide on the existence and size of 

such debts. Does the court only have the jurisdiction to deal with such 

debts when they are for the benefit of the family, however 

2.4.2.1 Taking into account “any debt owing or obligation 

incurred or undertaken by either party for their joint 

benefit or for the benefit of any child of the marriage”. 

(a) How court may deal with loans from and liabilities to 3 rd parties 36 

(“the debt”) 

32 Once the court has determined that the debt exists, and the size 

of the debt, it may: 

(i) 

Decide that the value of a particular asset should be reduced, 

taking into account the size of the debt 

33 See, for example, the case of Lee Chung Meng Joseph v 

Krygsman, supra, where the court calculated the value of the 

matrimonial home (Jalan Tarum) (valued at $1.2 million) by taking into 

account an outstanding housing loan of $670,000 and an outstanding 

overdraft of $150,000. Thus, the net value of Jalan Tarum was found to 

be $380,000. In the same case, there was also another property which 

was purchased by the husband together with his brother-in-law, the 

wife’s father and another person. This property was developed into a pair 

of semi-detached houses, one of which was sold. The remaining unit was 

valued at $1.75 million. However, the development project as a whole 

incurred a loss of $682,255, of which the husband claimed he would be 

liable for a quarter share. The court accepted the husband’s position in 

this regard, and included this liability when calculating the pool of 

matrimonial assets. 

(ii) 

Take the size of the debt (which only one party, i.e. either the 

husband or the wife, is committed to repaying) into account in 

the overall division of matrimonial assets 

36 

The discussion in this section will proceed on the basis that the court has the power to 

make all the orders set out in 2.4.2.1(a)(i)-(iv). Issues as to the court’s power to make 

orders in situations where the 3 rd parties have/have not been given notice of the 

ancillary matters proceedings or been joined/not been joined as parties to the 

ancillary matters proceedings are dealt with in Section 4.4.


34 See, for example, the case of Chan Choy Ling v Chua Che 

Teck, 37 where the Court of Appeal held that the debts incurred by the 

wife were substantial, and would have to be paid and discharged by her 

(the said debts had been taken out by the wife and consisted of a housing 

loan from the wife’s employer and a bridging loan from a bank). The 

court took this into account in ordering that the wife be allowed to retain 

the matrimonial home without any payment to the husband. 

(iii) 

Order one party to take over the liability to the 3 rd party, and to 

take this liability into account in the overall division of 

matrimonial assets 

35 See, for example, the case of Tham Khai Meng v Nam Wen Jet 

Bernadette. 38 In this case, a loan was taken from OCBC Finance 

Singapore Ltd by the husband and wife to purchase the matrimonial 

home. This loan consisted of a term loan of $600,000 and a revolving 

credit facility of up to $500,000. It was agreed between the husband and 

wife that the term loan of $600,000 was to be serviced by the husband 

and the revolving credit facility of up to $500,000 was to be serviced by 

the wife. The Court of Appeal ordered, inter alia, that the husband 

should transfer all his estate and interest in the matrimonial home to the 

wife, and in consideration of this, the wife should pay the husband a 

lump sum of $1 million and procure the discharge of his liability to the 

finance company, i.e. taking over the entire liability to the finance 

company herself. 

36 Also see the case of Yuan Hsiang Ping v Phua Gek Hong, 39 

where the parties’ liabilities far exceeded their assets, and the court had 

to decide upon the division of the liabilities as well as the assets. The 

Family Court held that there should be no division of the husband’s 

assets which consisted of his car, business, Central Provident Fund 

monies and shares held in his name, which were collectively worth 

$16,514.21. The Family Court further ordered that the wife was to 

transfer her share of a property in Malaysia (worth $44,000) to the 

husband. However, the husband was to be solely liable for the debts 

incurred jointly by the parties, amounting to $218,936.30, as he had 

always managed all the family finances. The wife had been a homemaker 

for the duration of the marriage. (On appeal, the High Court 

ordered that the Malaysian property should be sold, and 50% of the net 

37 

38 

39 

[1995] 3 SLR 667 

[1997] 2 SLR 27 

unreported, Divorce Petition No 2216 of 1997

236 


sale proceeds should be paid to the wife. No judgment was written by the 

High Court in the matter.) 

37 Another example is the case of Ng Kim Seng v Kok Mew Leng. 40 

In this case, the High Court had ordered that the matrimonial home be 

divided between the wife and the husband in the proportion fourth-fifths 

to one-fifth, and that the wife would have the sole discretion either to sell 

the matrimonial home to a third party and make payment of one-fifth 

share of the net sale proceeds to the husband, or to retain the matrimonial 

home for herself and pay him the sum of $144,000. On appeal, the Court 

of Appeal upheld these orders. However, it further ordered the wife to 

repay her father the sum of $52,423.44 advanced by him to the husband 

and wife for the redemption of the mortgage on the matrimonial home. 

(iv) 

Order one or both parties to repay the loan in full to the 3 rd party 

from the sale proceeds of the matrimonial asset 

38 See, for example, the case of Lee Sew Iam Richard@ Lee Siew 

Wian v Yeo Siew Keng Lilian (m.w.) and Another, 41 where the husband’s 

mother had made a loan of $350,041.61 to the couple to purchase a flat. 

At the ancillary matters stage, the parties disagreed as to whether the 

husband’s mother should be repaid her loan with interest and if so, at 

what rate. The High Court ordered that the said flat be sold and that the 

husband’s mother’s loan be repaid to her together with interest at 6% per 

annum, commencing from the date of completion of the purchase of the 

flat up to the date of completion of the sale, from the sale proceeds of the 

flat. 

(b) 

Whether loan from 3 rd party must be for the benefit of the family 

39 In the case of Ong Tong Liang v Lim Siew Cheng Jeanette, 

supra, the debts incurred by the husband were held by the court to be 

gambling debts or for the husband’s personal business ventures. The 

husband in this case had made little indirect financial contributions to the 

family. The court held that these debts, being of a personal and business 

nature, were not undertaken for the joint benefit of the parties, or for the 

child of the marriage. In the circumstances, they were not debts coming 

within the definition of section 112(2)(b) and hence were not taken into 

account when determining the value of the pool of matrimonial assets. 42 

40 

41 

42 

[1992] 2 SLR 872 

unreported, Divorce No. 193 of 1995 

The orders made in respect of the division of matrimonial assets were varied on 

appeal, but no judgment was written by the High Court.


40 In contrast, in the case of Yuan Hsiang Ping, supra, the court 

was of the view that the husband had not recklessly speculated in shares 

or accumulated debts. The size of the parties’ liabilities had its cause in 

the untimely crash of the stock market and property market in 1998. The 

wife knew that her husband invested heavily in the stock and the 

property markets to generate income and enable her to maintain a fairly 

high standard of living, and all loans taken by the husband in this regard 

were taken with the wife’s knowledge. The liabilities were therefore 

taken into account in deciding the division of the matrimonial assets. 43 

41 These two cases seem to indicate that the court will only take 

into account those debts incurred for the benefit of the family when 

making an order under Section 112, and hence when making any of the 

orders set out in Section 2.4.2.1(a)(i)-(iv) above. In addition, the 

definition of what constitutes a debt for the benefit of the family has also 

appeared to have been confined, in the said cases, to those debts which 

are undertaken with the intention or purpose of acquiring assets or 

generating income for the benefit of the family. 

42 It is submitted, however, that the better view is that: 

(i) 

The scope of what qualifies as a debt incurred for the benefit of 

the family should be widened, to include those debts which were 

not incurred with the intention or purpose of acquiring assets or 

generating income for the benefit of the family, but which could 

have resulted in this. For example: 

If a husband buys a $5,000 watch for himself after the date of the 

marriage (which has appreciated in value to $8,000 by the time 

of the ancillary matters hearing), and takes a $5,000 loan to do 

so, the watch will be considered a matrimonial asset for division, 

notwithstanding that it was not bought with the intention of 

benefiting the family. It seems only fair, in that case, that the 

$5,000 debt which was taken to purchase the watch should be 

taken into account in assessing the value of the watch for the 

purposes of the division. Otherwise, the party who did not 

acquire the asset would have the benefit of claiming a share in it, 

43 

On appeal, the Family Court’s order that the wife’s share of the Malaysian property 

be transferred to the husband was varied, in that the High Court ordered that the said 

property was to be sold and that the wife was to be paid half the sale proceeds. All 

the other orders made by the Family Court were not varied. No judgment was written 

by the High Court in this matter, however.

238 


at its full value, without having to share in the burden of any 

loans taken out to acquire it. This would not be equitable. 

43 Thus, in the example given above, the wife will be able to obtain 

a share of the watch, which, after taking into account the $5,000 loan, 

will have a net value of $3,000. However, if the watch has depreciated in 

value to $2000 by the time of the ancillary matters hearing, then after the 

watch is sold, the husband would still have a debt of $3,000. Will this 

$3,000 debt be taken into account in the division of the matrimonial 

assets After all, the debt was not incurred for the family, but for the 

husband’s own purposes—i.e. a watch for himself to wear. Would the 

wife have to share in the debt of $3,000 if the value of the watch 

depreciates, in the same way as she would be able to share in the profit 

of $3,000 if the value of the watch appreciates On the analysis of Ong 

Tong Liang and Yuan Hsiang Ping set out above, the inference seems to 

be that she would not. However, this result seems inequitable to the 

husband. It is submitted that the better view is that the wife should share 

in the burden as well as the benefit, and that therefore the debt of $3,000 

should be taken into account as well. 

44 In this regard, it is suggested that a distinction may be drawn 

between loans taken out to acquire assets (even those considered as 

luxuries) or to generate income (business debts, for example) which, if 

the assets had some value, and profit had been made, would have been 

included in the pool of matrimonial assets available for division; and 

loans taken out to acquire gifts for third parties (such as the husband’s 

mistress) or spent on activities (such as the husband’s overseas holiday 

with his mistress) from which the family did not, and could never, expect 

to benefit. The former should definitely be taken into account when 

making an order under Section 112, and hence when making any of the 

orders set out in Section 2.4.2.1(a)(i)-(iv) above. 

(ii) 

The court should also take into account those debts incurred for a 

party’s sole benefit, even for those cases where the family did 

not, and could never, expect to benefit from the same. 

45 Section 112(2) 44 states that the court may take into account “all 

the circumstances” of the case, and not just the factors listed within that 

44 

Section 112(2) of the Women’s Charter (Cap. 353) states: “It shall be the duty of the 

court in deciding whether to exercise its powers under subsection (1) and, if so, in 

what manner, to have regard to all the circumstances of the case, including the 

following matters: 

[continued next page]


section. Thus the court is not confined to taking into account only those 

debts taken out for the benefit of the family, as set out in Section 

112(2)(b). It is clear that any loans taken out by a party would have an 

impact on firstly, that party’s ability to pay the other party for his/her 

share of the matrimonial assets, and/or the amount of cash the party 

would have in hand/be able to realise after the assets are divided; and 

secondly, that party’s ability to maintain his/her own standard of living 

after the divorce. It is submitted that these are relevant factors to be taken 

into account as part of “all the circumstances” of the case under Section 

112(2). 

46 Thus, the fact that the debt was incurred for a party’s sole benefit 

(in cases where the family did not, and could never, expect to benefit 

from the debt) rather than for the benefit of the family should not 

automatically mean that the court has no jurisdiction to make any of the 

orders set out in Section 2.4.2.1(a)(i)-(iv) above in relation to that debt. 

The fact that it was incurred for the party’s sole benefit is merely one of 

the factors to be taken into account in deciding what orders to make in 

respect of that debt. 

(c) 

Repayment of 3 rd party loan from matrimonial assets 

47 Of all the orders which the court could make, as set out in 

Section 2.4.2.1(a)(i)-(iv) above, the order which would be of the greatest 

benefit, and the most interest, to a 3 rd party would be the order that he is 

to be repaid his debt from the matrimonial assets. In the previous 

paragraph, it was submitted that the court hearing the ancillary matters 

has the jurisdiction to make orders in relation to liabilities which were 

not incurred for the benefit of, or which were not incurred with the 

intention of benefiting, the family. The fact that the said liabilities were 

not incurred for the benefit of, or with the intention of benefiting, the 

family is merely one of the factors to be taken into account in the making 

of such orders. The following section explores the balancing exercise 

undertaken by the court in this respect: 

(a) the extent of the contributions made by each party in money, property or work 

towards acquiring, improving or maintaining the matrimonial assets; 

(b) any debt owing or obligation incurred or undertaken by either party for their joint 

benefit or for the benefit of any child of the marriage; 

(c) the needs of the children (if any) of the marriage….etc.

240 


Secured Creditors 

48 At this juncture, it should be noted that this discussion does not 

concern the secured creditor. The secured creditor is assured of 

repayment—from the particular asset which he holds as security for his 

loan. He does not need an order from the court dealing with the ancillary 

matters in order to recover his loan. Whether the money loaned by the 

secured creditor was actually used for the benefit of the family or not is a 

matter about which the husband and wife may be in dispute. The court’s 

findings in this regard may affect the orders made in respect of the 

division of the matrimonial assets. However, such disputes and findings 

will not concern nor affect the secured creditor, who will be able to 

recover his debt from the particular asset which he holds as security 

before it can be divided between the husband and wife. 

Unsecured creditors 

49 Unsecured creditors would range from judgment creditors who 

are institutions—credit card companies, for example, to friends and 

relatives who lent the money for a specific purpose (for example, to buy 

the matrimonial home, or to pay for the children’s school fees). If the 

unsecured creditors are not given an order to be repaid their loans from a 

particular asset, or from the pool of matrimonial assets, then their only 

recourse is in commencing proceedings in the civil courts. It is submitted 

that a distinction should be drawn between the scenario where the debt 

can be linked to a particular matrimonial asset, and when it cannot. 

(i) 

Where debt can be linked to a particular matrimonial asset 

50 Certainly, if the debt to the 3 rd party can be linked to the 

acquisition of a particular matrimonial asset, that would be a very strong 

factor in the 3 rd party’s favour. It is submitted that if such a factor exists, 

then the court need not go on to consider any other factors before 

ordering that the 3 rd party be repaid his loan from that particular 

matrimonial asset. One concern with this approach is that this may place 

the 3 rd party in the position of a secured creditor when he never had any 

security for the loan which he made. However, this can be rationalised 

by adopting the High Court’s reasoning in Lee Sew Iam Richard, supra, 

where the High Court opined that the 3 rd party lender without security 

played the same role vis-à-vis the husband and wife as a secured 

creditor, and should therefore be entitled to repayment of the loan in the 

same way as a secured creditor would.


“Another bone of contention between the parties was as to 

whether the husband’s mother should be repaid her loan with 

interest and if so, at what rate. The first issue was easily disposed 

of by asking, what would have been the alternative if the mother 

had not extended the loan The answer must surely be that the 

parties or one of them would have had to borrow the required 

sum from a financial institution. Why then should there be any 

difference when the mother lent the parties the monies drawn 

from her overdraft account with DBS Bank… I could see no 

distinction between a direct borrowing by the parties from a 

bank and indirect borrowing by them through the husband’s 

mother; in both instances interest is payable and I held that the 

repayment to the husband’s mother should include 

reimbursement of interest at a lower rate (6%) than what she had 

to pay DBS Bank (7%) on her overdraft facility.” (per Lai Siu 

Chiu J) 

51 It should be noted, in this regard, that the 3 rd party lender who is 

not a secured creditor would often be a close family member or friend of 

the husband and wife. The money would have been lent on the strength 

of the personal relationship the lender had with either or both the 

husband and wife. In this regard, the husband and wife would have 

benefited from a loan of money, which they may not have been able to 

obtain from a commercial source. Even if they had managed to obtain 

such a loan from a commercial source, there would often be no interest 

charged in respect of the “friendly” loan, and no need to provide any 

security. Since both the husband and wife would have benefited from the 

3 rd party’s generosity in this respect during the marriage, it seems only 

equitable that upon the breakdown of the marriage, the 3 rd party should 

be repaid the monies he had advanced with interest. 

(ii) 

Where debt cannot be attributed to any particular matrimonial 

asset 

52 Where the debt cannot be attributed to any particular 

matrimonial asset, the court should consider a whole range of factors in 

deciding whether to order the 3 rd party to be repaid from the pool of 

matrimonial assets (“the repayment order”). 

53 Although the English case of Harman v Glencross 45 involves a 

discussion of legislation of which there is no equivalent in Singapore, it 

45 

[1986] 1 All ER 545

242 


is nonetheless a good illustration of the type of balancing exercise which 

the court may undertake when deciding whether to make an order in 

favour of a 3 rd party creditor. In this case, the husband’s creditor (in 

respect of his business debts) had obtained a charging order under 

Section 1(a) of the Charging Orders Act 1979 46 in respect of the 

husband’s interest in the matrimonial home. The wife had obtained a 

decree nisi before the charging order had been obtained. When the wife 

discovered the existence of the charging order, she applied for it to be 

discharged, or, in any event, not enforced until the hearing of her 

application for ancillary relief. The registrar ordered that the charging 

order was to be subject to any order made in the ancillary proceedings 

and further ordered, in the ancillary proceedings, that the husband’s 

interest in the matrimonial home was to be transferred to the wife. The 

registrar’s order was upheld on appeal by the judge, and subsequently by 

the English Court of Appeal. It was held that the court had to strike a 

balance between “the normal expectation of the creditor and the 

hardship to the wife and children if an order is made” (per Fox LJ, at 

page 562 d-e). The Court of Appeal discussed various factors which had 

been considered by the court below in its decision: 

“(1) She had been previously cheated by her husband. The judge 

did not expressly decide this issue of fact, but in any event it can 

have little or no significance when weighed in the balance 

against the rights of the judgment creditor. (2) She was not a 

party to the debt incurred by the husband and never agreed to the 

debt being incurred. (3) The judgment creditor could, if he had 

wished, have asked for the debt to be made a charge on the 

house before he advanced the money. (4) The judgment creditor 

was the partner of the husband and knew of the husband’s wife 

and children and home. 

Points (2), (3) and (4) are all points which it was legitimate for 

the judge to consider…Finally, he considered the point that the 

effect of a charging order absolute would (on the figures) be to 

transfer the whole of the husband’s interest in the house to the 

judgment creditor, leaving the wife with nothing to claim against 

in the divorce proceedings. The judgment creditor, if the 

46 

There is no equivalent of this section in Singapore. A creditor in Singapore who 

wishes to recover his debt may apply for a writ of seizure and sale to sell the debtor’s 

interest in the immovable property under Order 47 Rule 4 of the Rules of Court. 

However, if the immovable property is in joint names of the debtor and another 

person, the creditor may only attach and sell the debtor’s share of the immovable 

property, not the entire immovable property.


charging order absolute were discharged, would still have his 

judgment debt. However, since the husband had no assets other 

than his share in the house, without a charging order, or some 

other method of reaching that share (e.g. bankruptcy), that 

judgment debt was likely to be worthless. Counsel for the 

judgment creditor was justified in saying that this point was 

merely restating the problem: on the figures in this case it was all 

or nothing.” (per Balcombe LJ at page 558 b-e) 

“The court is required, under the 1979 Act, to consider all the 

circumstances of the case. One of those circumstances is the 

position of the creditor; to prevent him recovering his debt 

against the only property of the debtor which is available may 

cause great hardship to him. The creditor has put in no evidence 

of hardship in the present case, but other cases may be very 

different.” (per Fox LJ at page 563 f-g) (emphasis added) 

54 On the facts, since the creditor had put in no evidence as to his 

circumstances, the Court of Appeal held that the judge had been entitled 

to decide that the hardship to the wife if the charging order was not 

varied (in the manner that it was by the registrar) was an overwhelming 

factor outweighing the creditor’s interests. 47 

55 In the light of the foregoing, it is submitted that the factors 

which should be included for consideration by the court when deciding 

whether to make the repayment order 48 are: 

I 

Purpose of the debt 

56 If the debt was taken for the benefit of the family, or if it was 

taken to acquire assets (even those considered as luxuries) or to generate 

income (business debts, for example) which, if the assets had some 

value, and profit had been made, would have been included in the pool of 

matrimonial assets available for division, then that should be a factor in 

favour of making the repayment order. 

II 

Other party’s knowledge of and consent to the debt 

57 If the other party knew of and consented to the debt being taken 

out, that should be a factor in favour of making the repayment order. 

47 

48 

See para (2) of the holdings at p. 546. 

The list of factors is not meant to be exhaustive, but only to highlight the key factors 

to be taken into account.

244 


III Why the 3 rd party did not obtain security for the 

debt/Relationship between 3 rd party and the husband 

and/or wife 

58 If the 3 rd party is a commercial institution and did not obtain 

security for the debt, then there is no reason why the court should put 

him in the position of a secured creditor, as he has not bothered to look 

after his own interests, in this regard. It is submitted that the court would 

be less reluctant to make the repayment order in respect of a 3 rd party 

who is an individual, and who seems to have given the loan for reasons 

of love and affection (for example, the 3 rd party is a close family member 

of either the husband and wife). This is because the 3 rd party individual 

could not have taken the same steps as a commercial creditor to protect 

his interests. 

IV 

V 

VI 

Hardship to the family if the repayment order is made 

Hardship to the 3 rd party if no repayment order is made 

Size of the debt 

59 If there are sufficient matrimonial assets to discharge the debt as 

well as to divide between the parties, then the court would be less 

reluctant to make the repayment order 

VII 

Lack of full and frank disclosure 

60 If the court holds that a party (who has incurred the debt) has 

refused to make full and frank disclosure, it may infer that he has 

sufficient assets from which to satisfy the debt, and therefore not be 

inclined to make the repayment order. As the court in Rayney v Spencer 49 

had opined, “The underlying policy in the Charter is not to allow the 

husband to deprive the wife and children by diminishing his assets.” 

61 Admittedly, the balancing exercise that the court has to 

undertake is a difficult one, as each case would turn on its own facts. It is 

also not possible to state with any precision the weight that is to be given 

to each factor. In this regard, it should be noted that Harman v 

Glencross, supra, was cited in Rayney v Spencer, supra, in the context of 

the court’s observation that: “The English courts’ attempts to balance the 

49 [1995] 2 SLR 153


claims of a wife against the claims of her husband’s creditors are not 

free from uncertainty.” (per KS Rajah J) 

2.5 Jurisdiction of court hearing ancillary matters to deal 

with 3 rd party issues 

62 In the light of the foregoing, it is submitted that: 

(1) The court dealing with the ancillary matters upon divorce, 

whether it is the High Court or the Family Court, also has the 

jurisdiction to deal with any 3 rd party issues which may arise in 

relation to the ancillary matters; and 

(2) The Family Court has the jurisdiction to deal with 3 rd party 

issues involving matrimonial assets or liabilities which are of a 

sum greater than $250,000 

3 Filing a separate civil suit 

63 Notwithstanding that the court dealing with the ancillary matters 

has the jurisdiction to deal with the 3 rd party issues, does the 3 rd party, or 

the husband, or the wife, still have the right to file a civil suit (in the 

High Court, District Court or Magistrate’s Court (“the ordinary civil 

court”) depending on the size of his claim) in respect of these issues 

after divorce proceedings have commenced 

64 It is submitted that the 3 rd party should not be deprived of his 

right to file a civil suit in the ordinary civil court just because the party 

that he lent money to, or entered into a financial transaction with, is 

involved in divorce proceedings. This submission is also applicable to 

the husband and wife—i.e. that the husband and wife should not be 

deprived of their right to file a civil suit in respect of the 3 rd party issue in 

the ordinary civil court just because they happen to be involved in 

divorce proceedings at the time that they wish to file the civil suit. These 

arguments apply with particular force in the case of divorce petitions 

filed on or after 1 April 1996 and before 15 December 2003, where, as a 

result of the Transfer Order, the ancillary matters proceedings will be 

heard by the Family Court, no matter what the monetary value of the 

assets or liabilities involved, but a civil suit which is filed in respect of 

the 3 rd party issue involving assets (or liabilities) of a sum more than 

$250,000 would have to be commenced in the High Court. (The same 

arguments would apply in respect of divorce petitions filed on or after 15 

December 2003, where, as a result of the Second Transfer Order, all 

ancillary matters proceedings will be heard by the Family Court, unless

246 


the gross value of the assets involved in a contested application for the 

division of matrimonial assets is asserted by a party to be $1.5 million or 

more.) A party may prefer the High Court to deal with the 3 rd party issue, 

notwithstanding that the costs of commencing a High Court suit are 

greater than the costs of joining the Family Court proceedings. It is 

submitted that it is unlikely that the Transfer Order and the Second 

Transfer Order were intended to automatically deprive a 3 rd party in this 

situation of his right to have his dispute heard in the High Court. 

Moreover, the 3 rd party may not even be aware of the existence of the 

divorce proceedings at the time that he wishes to make his claim against 

the husband and/or the wife. 

65 It is submitted, therefore, that the 3 rd party, or the husband, or the 

wife, may rightfully file a civil suit in the ordinary civil court. Such a suit 

should not be struck out on the grounds that the civil court has no 

jurisdiction to hear it. However, whether the civil suit will be: 

(1) allowed to continue in the civil court at the same time as the 

ancillary matters proceedings; 

(2) ordered to be transferred to the court hearing the ancillary 

matters proceedings; or 

(3) ordered to be stayed until the ancillary matters proceedings are 

concluded, 

is a separate issue, which will be dealt with in Section 6. 

66 If, for example, the 3 rd party files a suit in the ordinary civil court 

against the husband claiming that he lent money to that person, or is the 

owner or part-owner of a matrimonial asset which is in the husband’s 

name, the wife should have the right to intervene in that suit, as any 

decision made would affect the pool of matrimonial assets available for 

division, and hence affect the interests of the wife. Of course, the 

principles applied by the court in deciding the case, even if the wife 

intervenes in the matter, would be civil principles, and not the principles 

set out in the Women’s Charter (Cap. 353). If the wife is not given any 

notice of the 3 rd party’s suit, and judgment is given against the husband, 

the wife could apply to set that judgment aside on the grounds that it was 

obtained by collusion. Whether this would succeed would depend on all 

the circumstances of the case. But it would appear that in a situation 

where the husband had allowed judgment by default to be entered 

against him in favour of the 3 rd party, or had taken a similar position to 

that advanced by the 3 rd party at the hearing, which led to a judgment


being made in favour of the 3 rd party, then it is submitted that the wife’s 

application to set that judgment aside would have a reasonable chance of 

success. 50 

4 3 rd party’s involvement in the ancillary matters 

proceedings 51 

4.1 Reasons for 3 rd party’s involvement in the ancillary 

matters proceedings 

4.1.1 From the 3 rd party’s perspective 

“I was never ruined but twice: once when I lost a lawsuit, 

and once when I won one.” (Voltaire (1694-1778)) 

67 The 3 rd party, particularly an individual, would usually not want 

to get involved in the ancillary matters proceedings (or any other 

litigation) if he does not have to. Being involved in litigation may mean 

having to incur his own legal costs, having to spend time giving 

instructions at the lawyer’s office and attending court, paying party and 

party costs, and so on. 

68 The reasons that the 3 rd party would still want to be involved in 

the ancillary matters proceedings in spite of all these potential 

disadvantages would be: 

(a) To ensure that he will be able to put forward his version of 

events in respect of the 3rd party issue, in order to have the 

matter decided in his favour; and/or 

(b) To ask for orders to be made in his favour, and to be able to 

enforce these orders; and/or 

50 

51 

In this regard, see the case of Mehaffey v Mehaffey [1905] IR 292, where a third party 

was granted leave to set aside a judgment, obtained by collusion between the plaintiff 

and defendant (who were husband and wife), which affected his pecuniary interests. 

The third party was also given leave to intervene and defend the action in the name of 

the defendant, on giving him a proper indemnity. 

Of course, a separate civil suit may be filed in the ordinary civil court by the 3 rd 

party, the husband or the wife. This course of action has been dealt with in the 

previous section. This section focuses on what the 3 rd party can do in relation to the 

ancillary matters proceedings, as opposed to what can be done to commence separate 

proceedings.

248 


(c) To be able to appeal any findings or orders made against him; 

and/or 

(d) If any findings are made in his favour, for this to act as an issue 

estoppel, preventing the husband and/or wife from starting or 

defending an action comprising the same subject matter in the 

future. 

4.1.2 From the perspective of the husband and wife 

69 As far as the husband and wife are concerned, they would 

usually not want to involve the 3 rd party in the ancillary matters 

proceedings, as it may mean a lengthier hearing, as well as having to 

spend extra time and legal costs dealing with the 3 rd party’s evidence, 

applications, and legal representatives. The reasons that either the 

husband and/or wife would want the 3 rd party to be involved in the 

ancillary matters in spite of the potential disadvantages would be: 

(a) To ensure that the 3 rd party will give evidence in respect of the 

3 rd party issue, which will be in accordance with the position that 

the husband/wife has taken on that issue; and/or 

(b) To ask for orders to be made against the 3 rd party, and to be able 

to enforce them against him; and/or 

(c) If any findings are made against the 3 rd party, to estop the 3 rd 

party from starting or defending an action comprising the same 

subject matter in the future. 

70 The following question then arises: 

To what extent and how must the 3rd party be (a) notified of and (b) 

involved in the ancillary matters proceedings in order to achieve the 

various objectives (as set out in Sections 4.1.1 and 4.1.2 above) of the 3 rd 

party, the husband and wife 

4.2 Notice and joining as a party 

71 If the 3 rd party is not given due notice of the ancillary matters 

proceedings (“due notice”), 52 and the husband/wife does not take steps to 

join him as a party to the proceedings, he will not be a party to the 

52 What constitutes “due notice” is discussed in Section 5.1.


proceedings (“non-party without notice”). If the 3 rd party is given due 

notice of the ancillary matters proceedings, the 3 rd party may choose 

either to: 

(a) Take no part in the ancillary matters proceedings (“non-party 

with notice”) 

(b) Join the ancillary matters proceedings as a party (“a party”) 

under Order 15 Rule 6 (Misjoinder and nonjoinder of parties) of the 

Rules of Court 53 (“join/joining as a party”). 

4.3 Giving evidence and making findings 

4.3.1 Giving evidence 

72 It is submitted that whether the 3 rd party is a party to the 

ancillary matters proceedings or not, he can still give evidence in the 

proceedings. A 3 rd party who is a party to the ancillary matters 

proceedings would give evidence in the proceedings for himself. 

73 A 3 rd party who is a non-party to the proceedings would give 

evidence in the proceedings as a witness for either the husband or the 

wife, if he is requested by them to do so. He may also set out his position 

in respect of the 3 rd party issue in his affidavits. Pursuant to this, he may 

be cross-examined in court. See, for example, Audrey Lee Dawn, supra, 

(respondent husband’s father filed an affidavit and was cross-examined 

in court), Lee Sew-Iam Richard, supra (petitioner husband’s mother filed 

an affidavit in court), and Kng Poey Choo (m.w.) v Ong Chong Ken 

Kenneth and Another 54 (respondent husband’s father filed an affidavit in 

court). In none of these cases were the 3 rd parties joined as parties to the 

proceedings. 

4.3.2 Making findings 

74 Findings can obviously be made for or against a 3 rd party who is 

a party to the ancillary matters proceedings. However, it is also clear that 

in family cases the court is prepared to make findings for or against a 

non-party to the proceedings, even if he does not give evidence in the 

proceedings, or been given due notice of the proceedings. 

53 

54 

See Section 5.2 for a full discussion of Order 15 Rule 6. 

[2003] SGDC 83; the respondent wife’s appeal in this case was dismissed on 25 

August 2003.

250 


75 In the case of Ong Cheng Leng v Tan Sau Poo, 55 for example, the 

Court of Appeal reversed findings made by the High Court that it was 

the husband and not the 3 rd party who paid for two properties (at Emerald 

Hill and Wan Tho) and for two cars which were all solely registered in 

the 3 rd party’s name. The Court of Appeal did not state, however, that the 

High Court should not have dealt with this issue without the 3 rd party 

being joined as a party or called as a witness for the ancillary matters 

hearing. In Lam Siew Lan, supra, the court held that shares registered in 

the 3 rd party’s name still belonged to the husband. This was not varied on 

appeal. A similar decision was made in Lau Loon Seng, supra. In Yow 

Mee Lan, supra, it was held that the monies in two Malaysian bank 

accounts in the names of the respondent husband and his business 

partner belonged solely to the husband. In none of these cases does it 

appear that the respective 3 rd parties gave evidence in the proceedings, or 

were even given due notice of them. 

76 It is submitted that this approach is a sensible one. This is 

because the court would not wish to open the floodgates to 3 rd parties 

joining or giving evidence in the family court proceedings. This would 

almost inevitably make matters more acrimonious, costly and protracted, 

because the 3 rd parties would normally be well known to either or both 

the husband and wife, and would usually be aligned to one of them. 

(“the floodgates to 3 rd parties argument”) This is why the court should 

usually leave it to the husband and wife to decide what evidence, and 

from whom, they wish to obtain this evidence to support their respective 

cases. The court should therefore be slow to insist that a particular 3 rd 

party give evidence in the proceedings before making findings in respect 

of the 3 rd party issue, even if these findings are against the 3 rd party. (The 

question of whether such findings will operate as issue estoppels against 

the 3 rd party, however, in any future litigation regarding the same issues, 

is dealt with in Section 4.6.) 

77 But note: if the court intends to make orders against the 3 rd party, 

i.e. orders which will directly affect the 3 rd party’s pecuniary or 

proprietary interests, the 3 rd party should be given due notice of the 

proceedings and joined as a party to the proceedings (see Section 4.4. 

below). If the findings to be made against the 3 rd party are required in 

order for such orders against the 3 rd party to be made, it follows that the 

3 rd party would have to be given due notice of the proceedings and joined 

as a party to the proceedings before such findings are made. This is 

because there would be no point in the court making such findings 

55 [1993] 3 SLR 137


against the 3 rd party if the court could not go on to grant the orders 

sought against the 3 rd party (i.e. because the 3 rd party had not been given 

due notice of the proceedings and/or been joined as a party to the 

proceedings). 

4.4 Making and enforcing orders for or against the 3rd 

party 

4.4.1 Types of Orders 

78 Three types of orders can be made in relation to the 3 rd party: 

(a) orders directly against the 3 rd party, for example, ordering the 3 rd 

party to transfer an asset in his name, or to pay a sum of money to the 

husband or wife 

(b) orders which are directed against the husband and/or wife, but 

which directly affect the 3 rd party’s interest 

79 See, for example, the case of Lim Gwek Quee (m.w.) v Peter 

William Cunningham 56 , where the Family Court ordered one of the 

parties to take steps to wind up the family companies (the 3 rd parties) 

rather than making any orders against the 3 rd parties themselves 57 . This 

order was not varied on appeal. Also see the case of Chee Bong Yeo v 

Teo Soon Hoe and Anor 58 . The plaintiff in this case (the 3 rd party) had 

applied for the setting aside of an order made in the ancillary matters 

proceedings which was to the effect that a property registered in the 

husband’s name (which the 3 rd party claimed belonged to her) was a 

matrimonial asset, and the right, title and interest in the property, or the 

proceeds of sale thereof, was to be divided between the husband and 

wife in the ratio of 60:40. 

80 It is suggested that the test laid down in Pegang Mining Co Ltd v 

Choon Sam & Ors, 59 which was followed in Pelangi Airways Sdn Bhd v 

Mayban Trustees Bhd 60 be adopted when considering whether an order 

made by (or sought from) the court falls into this category of orders, that 

56 

57 

58 

59 

60 

unreported, Divorce Petition 2399 of 1999 

Though in this case, the court would, in any event, not have been able to make a 

winding up order against any of the companies as no winding up proceedings had 

been commenced at the time of the ancillary matters hearing. Moreover, the winding 

up proceedings would have to be commenced and heard in the High Court. 

unreported, OS No. 239 of 1996 

[1969] 2 MLJ 52 

[2001] 2 MLJ 237

252 


is: will the intervener’s (i.e. the 3 rd party’s) right against or liabilities to 

any party to an action be directly affected by any order made in the 

action 61 Or to put it another way, would the order given “directly affect 

a third person in his legal rights or in his pocket” 62 One example of this 

would be a declaration that the sale of certain lands to a third party is 

null and void—see the case of Chang Ching Chuen & Ors v Aik Ming 

(M) Sdn Bhd (Pekan Nenas Industries Sdn Bhd, Intervener) 63 . In this 

case, certain lands were sold to the 3 rd party (i.e. Pekan Nenas Industries 

Sdn Bhd) by the defendants, but the registration of the transfer of the 

lands could not be effected as the first plaintiff applied for a declaration 

that the said sale was null and void, and obtained an interim injunction 

against the transfer until the dispute between the plaintiffs and the 

defendants was resolved. The court held that the 3 rd party was entitled to 

intervene in the matter on the basis that its interests vis-à-vis the sale of 

the lands would be affected by the declaration sought. This was because 

a significant amount of the purchase price for the lands had already been 

paid by the 3 rd party to the defendants, and the 3 rd party wanted to 

register the transfer of the lands. 

81 Such orders directly affecting the 3 rd party’s interest must be 

distinguished from orders made for the division of the matrimonial assets 

which take into account certain findings in respect of the 3 rd party issue, 

but do not directly affect the 3 rd party’s interest. For example, in the case 

of Lau Loon Seng, supra, the High Court held that certain shares 

registered in the 3 rd parties’ names actually belonged to the husband. 

However, no order was made which necessitated the sale or transfer of 

these shares. The court merely ordered the husband to pay the wife the 

value of her division in the shares. A similar order was made in the case 

of Lam Siew Lan, supra. In these two cases, findings were made against 

the 3 rd party, but no orders which directly affected their interest. Of 

course, if it is the case that the asset registered in the 3 rd party’s name 

must be sold in order to satisfy the court order in respect of the division 

of the matrimonial assets (for example, because the husband would not 

have the funds to pay the wife her share in the asset unless it is sold), 

then it would appear that the order for division would operate, albeit 

indirectly, as an order directly affecting the 3 rd party’s interest. 

61 

62 

63 

See para (2) of the holdings in the Pelangi Airways case, supra. 

per Lord Denning MR in Gurtner v Circuit [1968] 1 All ER 328, at p 332 b-c 

[1995] 2 MLJ 43


(c) orders in favour of the 3 rd party, for example, ordering the 

husband and/or wife to pay the 3 rd party a sum of money, or to transfer 

an asset in their names to the 3 rd party. 

4.4.2 Orders made for or against a party 

82 Where a party has intervened in the matter, 64 or been joined as a 

party to the proceedings on the court’s own motion, 65 the court is entitled 

to make any orders it sees fit in relation to that party. 66 Such orders are 

obviously enforceable by any of the parties to the proceedings. 

4.4.3 Orders made against a non-party 

83 The case of Razman bin Hashim v South East Asia Insurance 

Co. 67 held that it would be a breach of the principle of natural justice for 

an order to be made against a non-party. In this case, the Malaysian High 

Court had held that the driver of a motorcar and the deceased rider of a 

motorcycle who had collided with each other had both been responsible 

for injuries to the appellant (the pillion rider on the motorcycle) and 

apportioned their liability on a 50:50 basis. The motorcar driver was a 

party to the suit, but the motorcycle rider was not, nor was he called as a 

witness, since he had died as a result of the collision. On appeal, the 

court held that the order apportioning liability should not have been 

made. It was made in breach of natural justice, as the non-party had not 

been heard in the matter. Also see the case of Soh Lai Chan and Another 

v Kuah Peng Hock and Another 68 where the High Court held that it 

would be inappropriate to make any order prejudicial to a person who 

was not a party to the proceedings. (The plaintiff in this case had urged 

the court to declare that the transfer of certain shares to the non-party by 

the first defendant should be declared void.) In the English case of Kalsi 

v Kalsi 69 the court held that the court could not issue injunctions against 

persons who were not parties before the court, except in very exceptional 

circumstances: 

“It is only in extremely limited circumstances that persons or 

entities who are not parties before the court can be affected by 

orders of the court. Even in the case of a Mareva injunction, 

64 As the husband’s aunt and mother did in Tebbutt, supra. 

65 See TSB Private Bank International SA v Chabra and another [1992] 2 All ER 245 

66 See the Holdings at paragraph (1), page 246 of TSB Private Bank International, supra. 

67 [1995] 2 MLJ 469 

68 [2003] SGHC 144 

69 [1992] 1 FLR 511

254 


where third parties to whom notice has been given of the 

existence of the injunction become involved, it is only in a 

secondary capacity, i.e. aiding and abetting the breach of the 

injunction by the party to the action to whom that injunction is 

directed. Again, it has always been recognized that there is an 

inherent jurisdiction in the court to commit third parties who are 

not before it as parties ‘in the case of a contempt in the face of 

the court’. Apart from these rare exceptions, the distinction 

must be clearly drawn between those authorities which support, 

albeit as an interim measure only, ex parte orders against parties 

who have been joined in the action by the plaintiff, and those 

who are not parties before the court at all.” (per Purchas LJ at 

page 520) 

84 In accordance with the principle set out in the cases cited above, 

none of the family cases cited in this article feature orders made directly 

against the 3 rd party, i.e. orders which require the 3 rd party to transfer 

property, pay sums of money, and so on, to any other party in the 

proceedings. The court simply does not, and should not, have the power 

to make orders directly against a non-party. However, in the cases of 

Peter Cunningham and Chee Bong Yeo, supra, the 3 rd parties were not 

given notice of the proceedings, but orders were nonetheless made which 

affected their interests directly. It is submitted, however, that the better 

view is that the court should not, and cannot, make orders directly 

affecting the 3 rd party’s interest, even if these orders are directed against 

the husband and/or the wife—as, in effect, these would operate in the 

same manner as orders directly against the 3 rd party. 

85 Indeed, the Peter Cunningham case can be distinguished on the 

basis that the husband and wife in this case were the directors and 

shareholders of the companies ordered to be wound up. These companies 

were therefore the alter egoes of the parties to the proceedings. It was 

therefore not necessary to give them due notice of the proceedings, or to 

join them as parties to the same. In the Chee Bong Yeo case, there was 

another property registered in the husband’s name in addition to the 

property claimed by the 3 rd party, which was also held by the court to be 

a matrimonial asset, and which was ordered to be divided between the 

parties. It is thus possible that the court dealing with the ancillary matters 

was of the view that the wife’s share of the matrimonial assets could 

have been satisfied without the sale of the property claimed by the 3 rd 

party, and did not seriously contemplate that the property claimed by the 

3 rd party might have to be sold in order for the judgment to be satisfied.


4.4.4 Orders made against a non-party with notice 

86 If due notice is given of the ancillary matters proceedings to the 

3 rd party, and the 3 rd party does not apply to be joined as a party to the 

proceedings, ought this to suffice to enable the court to: 

(a) make orders directly against the 3 rd party, and/or 

(b) orders directed against the husband and/or wife but which 

directly affect the interest of the 3 rd party (collectively, “orders 

against the 3 rd party”) 

It is submitted that it should not suffice. 

4.4.4.1 Need for clarity in status, rights and duties of the 3 rd party 

87 The purpose of making the 3 rd party a party to the proceedings 

under Order 15 Rule 6 is to ensure that: 

(i) he is aware of the exact claims that are being made against him 

at each stage of the proceedings; 

(ii) he has the opportunity to assemble documents and instruct 

counsel as a party, rather than as a witness in the main dispute 

between the husband and wife; 

(iii) he is able to participate fully in each stage of the proceedings by 

attending hearings and making submissions in the matter; and 

(iv) he is served with all the relevant documents in the proceedings at 

each stage of the proceedings. 

88 As a party, he will be entitled to request for, and to be served, the 

documents filed in court by the other parties, to take out discovery 

applications against the other parties, and to attend and make 

submissions at all hearings. Conversely, the other parties to the 

proceedings will be able to request to be served documents filed in court 

by the party, apply for discovery against him as a party, and so on. It is 

only when the 3 rd party is fully aware of the case against him, is updated 

on and has the opportunity to be fully involved at each stage of the 

proceedings, that it would be fair to make orders against the 3 rd party at 

the final hearing.

256 


89 It is arguable that it is possible for a 3 rd party to be one of the 

“full participants in the battle” 70 although he is not formally made a 

party. Thus, it may be argued that if the 3 rd party has received due notice 

of the proceedings and has full knowledge of the same, the court should 

be able to make orders against the 3 rd party, even though he has not been 

formally made a party. 

90 It is submitted, however, that to be a “full participant in the 

battle”, not only would the husband and wife have to give him due notice 

of the proceedings, but they should also treat him as they would any 

other party to the proceedings at each subsequent stage of the 

proceedings. For example, if a fresh affidavit is filed by the wife which 

touches on the 3 rd party issue after the 3 rd party is given due notice of the 

proceedings, this should be served on the 3 rd party. This is particularly 

important for ancillary matters where there are no pleadings, unlike in 

ordinary civil cases. The parties’ cases must be gleaned from the 

affidavits and affidavits in reply which they file in the weeks or months 

preceding the ancillary matters hearing (which may go up to three, four, 

five, or even more “rounds”). 

91 The danger with the approach of assuming that if the 3 rd party is 

treated as if he were a “full participant in the battle”, he thus becomes 

one (thus enabling the court to make orders against the 3 rd party), is that 

it opens the possibility of all sorts of factual disputes arising regarding 

the extent to which the 3 rd party has been given notice and kept informed 

of the proceedings, how this has been done, and by whom. 

92 In the case of Kalsi, for example, the wife had taken out an 

application to, inter alia, prohibit her husband and his three brothers 

from exercising any rights of occupation they might have in the 

matrimonial home, and that their rights of occupation should be 

suspended or restricted upon such terms as the court deemed fit. This 

application came up for hearing, and was adjourned. The court noted that 

there was some doubt as to whether the brothers were present at this 

hearing, but it was probable that they were aware of the proceedings. At 

the adjourned hearing, counsel for the husband indicated that he did not 

oppose the application, but informed the judge that he had no 

instructions to appear for the brothers. Ultimately, on the judge refusing 

to adjourn the matter, and stating that the brothers would have to 

represent themselves, it was agreed by the brothers that counsel for the 

husband should be instructed by them. After hearing the husband’s 

70 

per Purchas LJ, in Kalsi, at p 518.


counsel, the judge made an order restraining the brothers from remaining 

at, or entering the matrimonial home until an application for ancillary 

relief made in the proceedings had been adjudicated upon, or until 

further order. None of the brothers were parties to the proceedings. The 

court observed: 

“At the adjourned hearing…the only indication of the wife’s 

case—namely that based upon an express trust granting her and 

her husband exclusive possession—was to be found in the 

paragraph in the affidavit to which I have already referred [i.e. 

the wife’s affidavit in support of her application]. There are no 

grounds for being certain that the brothers were aware that this 

was the case being made by the wife, or the details upon which 

she based her case. There was no evidence that the brothers had 

been served with a copy of her affidavit. They were not parties to 

the application and would only be aware of documents, etc by 

virtue of secondhand information obtained from the 

husband…In addition there appears to be some conflict between 

the parties as to the stages during which any particular brother 

might or might not have been in court.” (per Purchas LJ, at page 

518) 

93 The court held that the judge should have joined the brothers as 

parties to the proceedings, as this would at least have given them a status 

before the court which would have made them subject to the court’s 

jurisdiction. 

94 Thus, it appears that once the 3 rd party is made a party to the 

proceedings, his status vis-à-vis the court and the other parties would be 

completely clear, as would the rights and duties of all the other parties in 

relation to the 3 rd party, and vice versa. The situation if he is not made a 

party to the proceedings is much more ambiguous. 

95 It is therefore submitted that if orders against the 3 rd party are 

requested, the appropriate course of action to take is to apply to join him 

as a party. If this has not been done, then the court should not make 

orders against the 3 rd party, no matter what documents have in fact been 

served on the 3 rd party, and the extent to which he may already have 

participated in the proceedings (for example, by attending ancillary 

matters pre-trial conferences, filing witness affidavits, and so on). 71 

71 

An exception should be made, however, in respect of costs awards against the nonparty. 

The court may award costs against a non-party inass [continued next page]

258 


96 It is further submitted that the “floodgates to 3 rd parties” 

argument” 72 will not make a difference in this regard, unlike in the case 

where mere findings (without orders) are made against the 3 rd party. This 

is because when mere findings are made against the 3 rd party, but no 

orders are made against him, the 3 rd party can continue his life as normal. 

He is not required to do anything, and nothing will be done to him or to 

his property or money. However, when orders are made against him, he 

must obey them, or go through the trouble of setting them aside. The 

consequences to the 3 rd party in terms of time and costs in doing this are 

potentially very serious. The balance is therefore in favour of protecting 

the 3 rd party’s rights, in this regard. 

4.4.5 Orders should not be made against non-party with or 

without notice 

97 In the light of the foregoing, it is submitted that orders against 

the 3 rd party should not be made if the 3 rd party is a non-party, whether 

with or without notice. If such orders are indeed made, the 3 rd party 

should be able to apply to set aside such orders and his application would 

be granted as a matter of course. 

98 Note: There is a regime under Order 15 Rule 13A (Notice of 

action to non-parties) of the Rules of Court to ensure that non-parties in 

relation to certain types of proceedings (i.e. estate and trust cases 73 ), who 

will or may be affected by the judgment of the court, will have the 

opportunity to participate in the suit. The rule provides a procedure for, 

inter alia, such persons to be notified, for them to become a party to the 

action by entering an appearance, and to be bound by any judgment 

given in the proceedings if they do not enter appearance. It is submitted, 

however, that this rule is not applicable to 3 rd party issues. 74 The mere 

fact that such a regime exists in respect of certain types of proceedings 

indicates that for all other proceedings, a non-party is not bound by any 

orders made against him. 

72 

73 

74 

party. The court may award costs against a non-party in circumstances where the 

non-party had initiated the action in the name of the plaintiff. See The Karting Club 

of Singapore v David Mak & Ors (Wee Soon Kim Anthony, Intervener) [1992] 2 SLR 

483. 

Set out in Section 4.3.2 above 

See Order 15 Rule 13A(6). 

In this regard, see the discussion on Order 15 Rule 13A in Section 4.8.


4.4.6 Orders in favour of the 3 rd party 

99 The parties to the proceedings can apply to the court for 

whatever orders they wish, including orders in favour of the 3 rd party. 

However, if the 3 rd party is not a party to the proceedings, it is submitted 

that he has no locus standi to appear before the court and to ask for any 

order to be made in his favour. If he would like to ask for such an order, 

he should join the proceedings as a party. 

100 However, as the 3 rd party is benefited, rather than prejudiced, by 

an order in his favour, the reasons for the principle that he should be 

made a party to the proceedings before an order may be made against 

him are not applicable. Furthermore, if the 3 rd party issues are dealt with 

at the same time as the main ancillary matters issues, all parties would be 

saved the time and costs of future litigation in the matter. This is 

especially important in cases where the 3 rd party is closely connected to 

either or both the husband and wife by blood and emotional ties, and 

little purpose would be served in drawing them into the litigation 

unnecessarily. The “floodgates to 3 rd parties argument” is therefore 

applicable to this situation. 

101 The courts appeared to have acted in accordance with this 

rationale, and made orders in favour of the 3 rd party even though he was 

not a party to the proceedings. Such orders in favour of the 3 rd party have 

been directed against either or both the husband and wife. For example, 

in Ng Kim Seng, supra, the Court of Appeal ordered the wife to repay her 

father a loan he had advanced the husband and wife to redeem the 

mortgage for the matrimonial flat. In Lee Sew-Iam Richard, supra, the 

High Court ordered, inter alia, that the husband and wife sell the 

matrimonial flat, and repay the husband’s mother her loan from the sale 

proceeds. 

102 It is submitted that this is the correct approach, for the following 

reasons: (a) the 3 rd party benefits from the order, (b) the ancillary matters 

proceedings are not unnecessarily protracted by the inclusion of an 

additional party, and (c) the 3 rd party issue is dealt with. 75 

103 However, it is doubtful whether a non-party can enforce orders 

made in his favour. 76 It is submitted that the better view is that he may 

75 

76 

Though this will not necessarily guarantee that no future litigation in the matter will 

take place—see Section 4.6. 

A party can obviously enforce any orders made in the proceedings against any other 

party to the proceedings.

260 


not. After all, he chose not to participate in the proceedings. He was 

never at risk of having orders made against him. It seems inequitable that 

he should benefit from an order made in his favour if he never bore any 

risk or burden in the litigation in which that order was made. If he would 

like to enforce the order made in his favour, therefore, either the husband 

or the wife will have to take steps to enforce the order, and not the 3 rd 

party. Alternatively, the 3 rd party could commence a separate civil suit in 

the ordinary civil court to try and obtain the same result as the order 

made in his favour in the ancillary matters proceedings. 77 The evidence 

given in the ancillary matters court may be used in the cross-examination 

of the witnesses in the civil suit, if they give evidence in the civil suit 

which is contrary to the evidence they had given in the ancillary matters 

court. 

4.5 Right to appeal 

104 If findings and orders are made against the 3 rd party, the 3 rd party 

may wish to appeal against them. The husband or wife may also wish to 

appeal against the court’s decision, in this regard. 

4.5.1 Of a party 

105 A party to the proceedings clearly has the right to appeal against 

any judgment which he feels is not in his favour. For example, in the 

English case of Perez-Adamson v Perez-Rivas (Barclays Bank plc, third 

party), 78 the divorcing wife applied for a property adjustment order under 

section 24 of the Matrimonial Causes Act 1973, as well as for an order to 

set aside the third party bank’s legal charge over the matrimonial home. 

It was the third party bank which appealed against the order of the High 

Court setting aside the bank’s legal charge over the matrimonial 

property, and ordering that the sale proceeds of the matrimonial home be 

transferred to the wife. 

106 It should be noted, however, that a party who allows judgment to 

be made against him by default of appearance has no right of appeal 

without leave. A wilful failure to participate in the proceedings and 

acquiescing to the order would provide grounds for refusal of leave. (In 

77 

As to whether the other party would be estopped from denying the 3 rd 

claim—see Section 4.6. 

78 [1987] 3 All ER 20 

party’s


this regard, see the case of Fairview Schools Bhd v Indrani a/p 

Rajaratnam & Ors (No 1) 79 ) 

4.5.2 Of a non-party without notice 

107 A non-party who was not given due notice of the proceedings 

may apply to have the original order set aside, and to have a re-trial of 

the matter. This is what happened in the case of Kalsi, supra, where it 

was held that the 3 rd parties (the husband’s brothers) should have been 

joined as parties to the wife’s application to, inter alia, restrict the said 

brothers from exercising their rights of occupation in the matrimonial 

home. The court hearing the application had made a restraining order 

against the brothers. One of the brothers appealed from the order granted 

as an intervener, pursuant to leave granted to him both to intervene and 

to appeal out of time. The court allowed the appeal and ordered the 

wife’s application to be remitted to the English High Court for rehearing, 

thus giving the wife the opportunity properly to formulate the nature of 

her claim for relief against the 3 rd parties, and to join them as defendants. 

108 The non-party without notice can therefore apply to intervene in 

order to appeal against the order made against him, and have the matter 

remitted for a re-trial. Leave will be granted to him to do this as a matter 

of course. In this regard, it should be noted that an application to be 

joined as a party under Order 15 Rule 6 may be made after judgment if it 

is intended to apply to set the same aside. 80 

4.5.3 Of a non-party with notice 

109 Will a non-party who was given due notice of the proceedings 

but did not apply to join them as a party have the same right to appeal 

110 The court in In re Securities Insurance Company 81 had stated, in 

relation to a scheme of arrangement approved by the court, that a person 

who, without being a party, was either bound by the order made by the 

court or was aggrieved by it or was prejudicially affected by it, could not 

appeal against it without leave. 82 The court went on to add, however, that 

79 

80 

81 

82 

[1998] 1 MLJ 99 

See paragraph 15/6/17 at page 199, Singapore Civil Procedure 2003. 

[1894] 2 Ch D 410 

In this case, a judge had made an order sanctioning a scheme of arrangement in a 

voluntary winding-up of a company. An appeal was filed by persons whose interests 

as creditors were affected by the scheme, but who had not opposed the scheme at the 

meeting of creditors, nor appeared before the judge when his sanction was applied 

for, nor obtained leave to appeal. The appeal was dismissed.

262 


the non-party would not “require much”, 83 and that it would be “very 

easy” 84 to obtain leave. 

111 The Malaysian Court of Appeal, however, in the case of 

Tradium Sdn Bhd v Zain Azahari bin Zainal Abidin & Anor 85 was of the 

view that these words, i.e. that the non-party would not “require much” 

to obtain leave to appeal, were spoken at a time “when the wide 

jurisdiction to permit intervention in all original proceedings now 

contained in O 15 r6(2) 86 was absent.” 87 , and held that leave should not 

be granted to a non-party to intervene in a case in order to appeal the 

decision if he could have applied to be joined as a party at an earlier 

stage but failed to do so. 

112 It is submitted, however, that the more lenient view expressed in 

In re Securities Insurance Company, rather than the strict view in 

Tradium should be followed. 

113 In the Tradium case 88 , supra, the Malaysia Court of Appeal had 

observed: 

The applicant admittedly did not wish to face an order for costs. 

Nevertheless, while enjoying that protection [i.e. of being a nonparty], 

it attacked the first respondent’s arguments before the 

83 

84 

85 

86 

87 

88 

per Lindley LJ, at p 413. 

per Kay LJ, at p 414. 

[1995] 1 MLJ 668. 

This is equivalent to Order 15 Rule 6(2) of the Rules of Court which allows the court, 

either of its own motion, or upon application to, inter alia, order any person to be 

added as a party to an action. 

Per Gopal Sri Ram JCA. 

The applicant in this case was a property developer. The plans for one of its proposed 

developments, although approved by the second respondent, met with opposition 

from the first respondent. The first respondent applied to the High Court for leave to 

apply for an order of certiorari to quash the second respondent’s approval. Although 

the grant of certiorari would affect the applicant financially, it made no attempt to 

intervene to have itself added as a party as it did not wish to face an order for costs in 

the event the first respondent succeeded in its application. The applicant had been 

served with the relevant papers, although there was no application to join it as a 

party. However, it participated in the proceedings and made submissions in the 

matter. The High Court then granted the certiorari and quashed the approval. The 

second respondent appealed against the decision. The applicant then applied to add 

himself as a party to appeal against the decision that was rendered, for the purpose of 

appealing separately to the Court of Appeal. This application failed, but the applicant 

did not appeal the decision. It then moved the Court of Appeal by a notice of motion, 

for inter alia, an order that it be permitted to intervene and take part as an intervener 

in the appeal. The Court of Appeal refused the motion.


judge. In my view, the applicant was no better than a sniper who, 

whilst concealed and protected by the foliage in which he hides, 

proceeds to take pot-shots at his unsuspecting opponent. He was 

not prepared to take on all the risks of a full battle and, when the 

event went against him, decided to change his role. Ought he to 

be permitted to do this I think not: for both principle and 

authority are against him. (per Gopal Sri Ram JCA) 

114 In Tradium, the 3 rd party appears to have been treated as if he 

was a party (by being allowed to make submissions in the proceedings 

and having orders made which affected him financially)—except that he 

was in an even better position, because as a non-party, he did not have 

the risk of facing an order for costs. Because it considered that the nonparty 

had been in a better position than a party would have been, the 

court decided that he could not appeal against the decision made. It is 

submitted, however, that the basis of this reasoning is flawed, firstly 

because the non-party should not have had the locus standi to make 

submissions in court and should therefore have been prevented from 

taking “pot-shots at his unsuspecting opponent”. The non-party should 

never have been placed in a better position than a party. Secondly, no 

orders should have been made which affected the non-party’s pecuniary 

interests without making him a party to the proceedings first. 89 It is 

therefore submitted that the views expressed by the Court of Appeal in 

Tradium regarding the non-party’s rights of appeal should not be 

followed. (Admittedly, in In Re Securities, supra, an order was made 

against persons whose interests as creditors were affected by the scheme 

of arrangement without their being joined as parties. But this may be 

explained on the basis that in a company’s winding up situation, there 

may be many creditors, and it would not have been practical to join 

every single one of them as parties before the court was able to approve 

the scheme of arrangement.) 90 

89 

90 

In this regard, see Sections 4.4.3-4.4.5 above. 

Kay LJ had observed in In Re Securities, supra, that the appellants in this case had 

the opportunity of joining themselves as parties to the proceedings, but failed to do 

so, and that in the circumstances, the case was not one in which leave to appeal ought 

to be given. It is submitted that this comment should be disregarded firstly on the 

basis that it is dicta, since the court was not asked to decide whether the appellants 

should be granted leave to appeal, but whether they needed leave to appeal. 

Secondly, the comment can be explained on the basis that in a company’s winding up 

case, there could potentially be many creditors. It would be commercially unviable if 

a scheme of arrangement that had been agreed to by those creditors who attended the 

creditors’ meeting could be appealed against by any creditor who had notice of, but 

chose not to, attend the meeting. Thus, for practical reasddons, [continued next page]

264 


115 In the light of the foregoing, it is submitted that although leave is 

required before the 3 rd party who is a non-party with notice may 

intervene to appeal against the decision made against him, such leave 

would be granted quite readily. 

4.6 Issue estoppel based on res judicata 

4.6.1 In respect of a party 

116 A party to any legal proceedings will be estopped from bringing 

or defending any future action the substance of which involves an issue 

which has been decided by the court in those legal proceedings—as the 

matter would then be res judicata. 91 In this regard, declaratory judgments 

may also create a res judicata. 92 A party who intervenes in the 

proceedings is considered a party. 93 

117 The English case of Tebbutt, supra, illustrates the operation of 

the principle of issue estoppel based on res judicata. In this case, the 

wife filed a divorce petition in the Family Division in October 1973. A 

decree nisi was granted in May 1974. She then applied for a property 

adjustment order under Section 24 of the Matrimonial Causes Act 1973. 

The husband (who had gone missing from September 1973) had 

purchased a property in his name in October 1970. The wife prayed for 

the transfer of this property to her. At the material time, the husband’s 

mother and the husband’s aunt were the occupants of this property. The 

husband’s aunt had agreed with the husband that although the husband 

would be the legal owner of the property, the husband’s aunt would be 

91 

92 

93 

chose not to, attend the meeting. Thus, for practical reasons, (which would not really 

be applicable to non-company’s winding up cases) those creditors who could have 

joined themselves as parties to oppose the scheme of arrangement, but failed to do so, 

should not be allowed to appeal. 

See The Doctrine of Res Judicata, Spencer Bower, Turner and Handley, (3 rd Ed, 

1996), at p 4 for a definition of res judicata: 

“In English law a res judicata is a decision pronounced by a judicial tribunal having 

jurisdiction over the cause and the parties which disposes once and for all of the 

matters decided, so that except on appeal they cannot afterwards be relitigated 

between the same parties or their privies....In every case the decision estops or 

precludes any party to the litigation or his privies from disputing, against any other 

party or his privies, in later litigation, the correctness of the earlier decision. The 

same claim cannot be raised again between them, and this principle extends to all 

matters of law and fact which the decision necessarily established as the legal 

foundation of the conclusion reached by the court.” (Also see pp 88-89, para 182 of 

the same text on the topic of Issue Estoppel). 

Ibid at p 71, para 159. 

Ibid at p 112, para 218.


liable for the mortgage instalments, and when she paid off the mortgage, 

would be entitled to call for the transfer of the full legal and beneficial 

ownership of the property to her. On the hearing of the wife’s property 

adjustment order application, the registrar ordered that notice be given to 

the husband’s aunt. Subsequently, leave was given to the husband’s aunt 

and the husband’s mother to intervene in the wife’s application, which 

they duly did. The husband’s aunt gave evidence at a “very full 

hearing” 94 before the registrar, and subsequently at the appeal hearing. 

The appeal court found that the wife had no claim to the property except 

to the extent that the husband had contributed to its purchase. A few days 

before the judgment was given in the appeal, the husband’s aunt issued a 

writ in the Chancery Division claiming that she was entitled to an 

interest in the property against the husband and wife. The wife put in a 

defence and counterclaim. The Court of Appeal held that the wife was 

estopped from asserting that she was entitled to a share in the equity of 

the house: 

The principle involved is that of issue estoppel. A person should 

not have to fight all over again the selfsame issue that has been 

decided before, provided that the party against whom the 

estoppel is raised has had a fair and full opportunity to 

contest the issue, so that it would not be just to allow him to 

reopen the matter in subsequent proceedings. (per Brightman 

LJ, supra, at page 244 b-c) 

4.6.2 In respect of a non-party without notice 

118 It appears that only parties to an action are bound by issue 

estoppel. 95 A non-party without notice of the proceedings will not be 

bound, as he would not have had a “fair and full opportunity” to contest 

the matter. 

4.6.3 In respect of a non-party with notice 

119 But if a non-party was given due notice of the proceedings, and 

had a “fair and full opportunity” to join the same, but failed to do so, 

should he be bound by issue estoppel subsequently 

94 

95 

per Brightman LJ, at p. 243 f-g. 

Supra note 91, at p 110.

266 


120 The case of Seah Peng Koon, 96 for example, would seem to 

indicate that he should. In this case, the Court of Appeal held that the 

applicant in this case could have intervened in earlier proceedings in 

1981 (“the 1981 proceedings”), but chose not to do so. 10 years later, he 

started proceedings involving the same issue dealt with in the 1981 

proceedings. The court held that he was estopped from challenging the 

decision made in the 1981 proceedings, stating that the principle in the 

probate division is that where a will is in question, a party who has 

knowledge of the proceedings and has a right to intervene, and does not 

intervene, is prima facie bound by the result of the proceedings. 

4.6.3.1 Non-party with notice should not be bound by issue 

estoppel 

121 It is submitted, however, that the better view is that the nonparty 

with notice should not be so bound, for the following reasons: 

(a) Need for certainty regarding what constitutes a “fair and full 

opportunity” to contest the case 

122 It is only when the 3 rd party is fully aware of the case against 

him, is updated on and has the opportunity to be fully involved at each 

stage of the proceedings, that it would be equitable for him to be 

prevented from re-litigating the same issues which were dealt with in the 

proceedings. What, however, constitutes a “fair and full opportunity” to 

contest the issue It is submitted that (as in the case where orders are 

made against the 3 rd party) not only would the husband and wife have to 

give the 3 rd party due notice of the proceedings, but they should also treat 

him as they would any other party to the proceedings at each subsequent 

stage of the proceedings. 

123 The kind of uncertainties which can arise in this regard are 

illustrated by the case of Chee Bong Yeo. The plaintiff in the case of 

Chee Bong Yeo started proceedings in the High Court to declare that a 

certain property (St. Patrick’s Road) was held on trust for her by the first 

defendant (who was the husband in the ancillary matters proceedings), 

although the court dealing with the ancillary matters had decided that the 

husband was in fact the beneficial owner of the said property. The 

plaintiff claimed to have been ignorant of the fact that she might be in 

danger of losing her property as a result of the ancillary matters 

proceedings, and that she was not kept informed of the progress of the 

96 [1993] 2 SLR 353


divorce hearing or the hearing of the ancillary matters. She was only told 

that she might have to give evidence in the ancillary matters proceedings. 

However, she contradicted herself several times in court, admitting that 

she had been told about the divorce, and even admitting at one stage that 

she had been told that the St. Patrick’s Road property might be involved 

in the ancillary matters proceedings. The court observed that her 

evidence in this regard was “somewhat confused” 97 . (Her application was 

eventually dismissed, but not on the grounds of issue estoppel.) 

124 It is submitted that in order to prevent such uncertainties arising 

as to the extent to which the 3 rd party has been given a “full and fair 

opportunity” to contest the case, the most appropriate course of action to 

take is to apply to join him as a party. Once this is done, the 3 rd party’s 

status vis-à-vis the court and the other parties would be completely clear, 

as would the rights and duties of all the other parties in relation to the 3 rd 

party, and vice versa. The 3 rd party ought to then be estopped from 

relitigating the same issues dealt with in the proceedings to which he is a 

party. Conversely, if this has not been done, the 3 rd party should not be 

estopped from relitigating these issues, no matter what documents have 

in fact been served on him, and the extent to which he may already have 

participated in the proceedings (for example, by attending ancillary 

matters pre-trial conferences, filing witness affidavits, and so on). 

(b) Order 15 Rule 13A 98 

125 The same arguments as set out in Section 4.4.5 above are 

applicable to issue estoppel, i.e. the fact that a specific provision (in the 

form of Order 15 Rule 13A of the Rules of Court) has been created for 

certain specific proceedings (i.e. estate and trust cases) to ensure that 

non-parties with notice of the proceedings will be bound by any 

judgment given in default of their appearance, implies that the non-party 

in all other cases should not be so bound, whether with or without notice. 

126 The case of Seah Peng Koon, supra, can probably be explained 

on the basis that it was a probate case, and Order 15 Rule 13A (which is 

only applicable for estate and trust cases) was not enacted at the time that 

the 1981 proceedings were instituted, nor at the time where the Court of 

97 

98 

per Judith Prakash J, Chee Bong Yeo, supra at para 20. 

See Section 4.8 below for a discussion on the applicability of the Order 15 Rule 13A 

regime to 3 rd party issues.

268 


Appeal heard the applicant’s case. 99 It should also be noted that the Court 

of Appeal’s pronouncement regarding the principle that a party who has 

knowledge of the proceedings and has a right to intervene, and does not 

intervene, is prima facie bound by the result of the proceedings, was 

stated to be in respect of the probate division, and not any other type of 

case. Thus, it is submitted that the Court of Appeal was merely filling the 

gap which Order 15 Rule 13A now fills, and was not making a general 

pronouncement that a non-party with notice would be bound by issue 

estoppel. 

4.6.3.2 Mutuality of estoppels 

127 In The Doctrine of Res Judicata, supra, it is stated: 

“The principle is that res judicata estoppels in civil cases are 

mutual, and a party is only bound in favour of another if a 

contrary decision would have bound him.” 100 

128 This means that if the 3 rd party (who is a non-party to the 

ancillary matters proceedings) is not bound by issue estoppel, then 

neither should the party to the ancillary matters proceedings (“the 

original party”) be bound, vis-à-vis the 3 rd party. 

129 Thus, if the original party commences fresh proceedings against 

the 3 rd party on the same issues which were dealt with in the ancillary 

matters proceedings, then the 3 rd party may not raise the defence of issue 

estoppel against that party based on the judgment given in the ancillary 

matters proceedings. For example, the court may hold that half the 

beneficial interest in a property registered in the 3 rd party’s name actually 

belongs to the husband, and therefore order the husband to pay the wife 

the sum of $50,000 to represent her share of the husband’s share of that 

property. The husband may subsequently start proceedings against the 3 rd 

party claiming a beneficial interest in the whole of the property. The 3 rd 

party cannot raise an issue estoppel against the husband based on the 

judgment of the court in the ancillary matters proceedings to prevent the 

husband from laying a claim to the whole of the property, rather than 

half of it. 

99 

Order 15 Rule 13A was only introduced in 1997. Note Pinsler’s remarks on it being 

an “entirely new provision” (Singapore Court Practice 2003, para 15/13A/1, at 

p 374). 

100 Supra note 91, at pp 110-111.


130 Alternatively, if the 3 rd party commences fresh proceedings 

against the original party on the same issues which were dealt with in the 

ancillary matters proceedings, and the original party seeks to re-open all 

the issues, rather than to abide by the findings made in the ancillary 

matters proceedings, the 3 rd party may not raise issue estoppel as a 

defence against the original party based on the judgment given in the 

ancillary matters proceedings. For example, if the court finds that the 3 rd 

party has loaned the sum of $50,000 to the husband to purchase the 

matrimonial home, and orders this sum to be repaid to the 3 rd party by 

the husband, and the husband refuses to pay the 3 rd party, the 3 rd party 

may then start proceedings against the husband to recover this sum. The 

husband will not be estopped by the judgment of the court in the 

ancillary matters from disputing the existence as well as the size of the 

debt. 

131 However, in both the scenarios set out above, any evidence 

tendered in the ancillary matters proceedings may also be tendered in the 

fresh proceedings in the ordinary civil court, and if there is any 

contradiction between the evidence given in the ancillary matters 

proceedings and the evidence given in the fresh proceedings, the 

appropriate adverse inferences may be drawn. 

4.7 In practice—for cases where 3 rd party is a non-party 

with or without notice 

132 In practice, however, it would seem that issues regarding the 3 rd 

party’s appeal rights and the question of issue estoppel seldom arise, 

notwithstanding that the 3 rd party is a non-party with or without notice of 

the ancillary matters proceedings. 

133 It is submitted that this is because the 3 rd party would often be a 

friend or relative of either the husband or wife, and aligned to that party 

(“the original party the 3 rd party is aligned to”). 

134 If an order against the 3 rd party (who is a non-party to the 

ancillary matters proceedings) is given, the original party that the 3 rd 

party is aligned to, will usually be the one to appeal against that order. 

Thus, the question of whether the 3 rd party has the right to appeal against 

that order would normally not arise, nor would there be any future 

litigation started by the 3 rd party in the ordinary civil court in the matter. 

135 If an order in favour of the 3 rd party is given, the original party 

that the 3 rd party is NOT aligned to will appeal against the order, rather 

than start fresh proceedings in the matter. The party against whom that

270 


order is directed will often be the party whom the 3 rd party is aligned to. 

(In Ng Kim Seng, supra, for example, the wife was ordered to repay her 

own father the loan that he gave the husband and wife to purchase the 

matrimonial home.) In the light of the relationship between the 3 rd party 

and the original party the 3 rd party is aligned to, it is unlikely that the 3 rd 

party would take legal steps to enforce the order, and that there would be 

any future litigation in this regard. 

136 Alternatively, the order may be drafted in such a manner that in 

practice the husband and/or wife will have no choice but to comply with 

it. For example, in the case of Lee Sew-Iam Richard, supra, the 

matrimonial home was ordered to be sold, and the net proceeds divided 

between the parties only after the husband’s mother’s loan was repaid to 

her. The solicitors handling the conveyance of a property subject to this 

type of order would ensure that the 3 rd party would be repaid on the day 

of completion of the sale of the property. 

137 If there are findings made by the ancillary matters court in 

favour of or against the 3 rd party, but no orders are made for or against 

the 3 rd party, then the 3 rd party is not practically affected by the ancillary 

matters proceedings. It is the husband and/or the wife who would appeal 

against any orders directed against him/her, and not the 3 rd party. In the 

light of the relationship between the 3 rd party and the original party the 

3 rd party is aligned to, as well as considerations of time and expense, it is 

submitted that future litigation over issues which have already been dealt 

with by the ancillary matters court is, in practice, unlikely. 

138 In addition, there is the consideration for the original parties and 

the 3 rd party that, even though they are not bound by issue estoppel 

regarding the 3 rd party issues, the chances of the ordinary civil court 

making findings which are different from the court hearing the ancillary 

matters proceedings may not be high, particularly if the 3 rd party has 

given evidence in the ancillary matters proceedings. 

4.8 Order 15 Rule 13A 

139 Order 15 Rule 13A states: 

“(1) At any stage in an action to which this Rule applies, the 

Court may, on the application of any party or of its own motion, 

direct that notice of the action be served on any person who is 

not a party thereto but who will or may be affected by any 

judgment given therein.


… 

A person may, within 8 days of service on him of a notice under 

this Rule, enter an appearance and shall thereupon become a 

party to the action, but in default of such appearance and subject 

to paragraph (5) he shall be bound by any judgment given in the 

action as if he were a party thereto. 

If at any time after service of such notice on any person the writ 

or originating summons is amended so as substantially to alter 

the relief claimed, the Court may direct that the judgment shall 

not bind such person unless a summons is issued and served 

upon him under this Rule. 

This Rule applies to any action relating to— 

(a) 

(b) 

the estate of a deceased person; or 

property subject to a trust.” (emphasis added) 

“The rule augments the policy of the existing rules to ensure that 

all persons who might be affected in estate and trust cases are 

given the appropriate notice.” (See Singapore Court Practice 

2003, Jeffrey Pinsler, at page 374, paragraph 15/13A/1) 

(emphasis added) 

140 Order 15 Rule 13A(6) states that the rule applies to any action 

relating to the estate of a deceased person, or to any property subject to a 

trust. If the 3 rd party issue concerns a property which is alleged by the 

husband or wife to be held on trust for or by the 3 rd party, would the 

ancillary matters proceedings—or at least the 3 rd party issue—then fall 

under Order 15 Rule 13A 101 

141 It is submitted that the plain reading of Order 15 Rule 13A(6) 

indicates that the rule was intended only to apply to “pure” estate or trust 

cases, where the main action is substantially about the estate or trust 

property issue, and not to an ancillary matters hearing, where the trust 

issue involving the 3 rd party is just a sub-issue of the issue of the division 

of matrimonial assets between the husband and wife, which may itself be 

101 

No explanation of the scope of the term “action relating to property subject to a 

trust” may be found in the relevant sections of Singapore Civil Procedure 2003 (see 

p 227) and Singapore Court Practice 2003, Jeffrey Pinsler (see page 374).

272 


just one of the many issues between those two parties. Therefore, Order 

15 Rule 13A(6) will not assist in resolving the issues of how to give 

notice of the ancillary matters proceedings to the 3 rd party, and whether 

he will be bound by any judgment given by the ancillary matters court if 

he does not join the proceedings as a party. 

4.9 Summary 

142 Table 1. provides a summary of the issues set out in Sections 

4.3-4.6 above. 

Table 1. 

Status, Rights and 

Liabilities of 3 rd Party at 

the ancillary matters 

proceedings 

Party 

Non-Party without 

notice 

Non-Party with notice 

Whether 3 rd party can give 

evidence 

Yes. See 

Section 

4.3.1 

Yes. See Section 4.3.1 Yes. See Section 4.3.1 

Whether findings can be 

made for or against the 3 rd 

party 

Yes. See 

Section 

4.3.2 

Yes. See Section 4.3.2 Yes. See Section 4.3.2 

Whether orders can be 

made and enforced against 

the 3 rd party 

Yes. See 

Section 

4.4.2 

No. See Section 4.4.3 

and 4.4.5 

No. See Section 4.4.4 and 

4.4.5 

Whether orders in favour of 

the 3 rd party can be made 

Yes. See 

Section 

4.4.6 

Yes, but the 3 rd party 

does not have the locus 

standi to request for such 

orders. Only the parties 

to the action do. See 

Section 4.4.6 

Yes, but the 3 rd party 

does not have the locus 

standi to request for such 

orders. Only the parties to 

the action do. See Section 

4.4.6 

Whether orders in favour of 

the 3 rd party can be 

enforced by the 3 rd party 

Yes. See 

Section 

4.4.6 

No. See Section 4.4.6 No. See Section 4.4.6 

Whether 3 rd party has the 

right to appeal against an 

order made against him 

Yes. See 

Section 

4.5.1 

Leave is required for the 

3 rd party to intervene in 

order to appeal against 

an order made against 

him, but it will be 

granted as a matter of 

course. See Section 4.5.2 

Leave is required for the 

3 rd party to intervene in 

order to appeal against an 

order made against him, 

but it will be granted 

quite readily. See Section 

4.5.3


Whether the 3 rd party will 

be estopped from 

commencing future 

litigation involving issues 

already dealt with by the 

ancillary matters court 

Yes. See 

Section 

4.6.1 

No. See Section 4.6.2 No. See Section 4.6.3 

143 Thus, if the husband and wife are seeking orders against the 3 rd 

party, and/or anticipate future litigation (after the ancillary matters court 

has decided the matter) regarding the 3 rd party issue, then they should 

apply to join him as a party to the action. If they are not seeking such 

orders 102 and they do not anticipate such future litigation, then there is no 

necessity, from their point of view, to have the 3 rd party joined as a party, 

or even to give him notice of the proceedings. 

144 The 3 rd party, on the other hand, would probably want to be 

given notice of the proceedings, in order that he may know and 

understand the case against him, and decide what further steps he may 

wish to take in the matter. He would only want to join the proceedings as 

a party, however, if he would like to: (a) ask for orders to be made in his 

favour and to be able to enforce them, and (b) have the 3 rd party issue 

conclusively dealt with by the Family Court, and to have the same rights 

to participate in such proceedings, and to appeal the decision made, as 

any other party. 

4.10 Court’s role in ordering notice be given to 3 rd party/3 rd 

party be joined as a party to the ancillary matters 

proceedings 

145 In a situation where the husband and wife do not wish to give the 

3 rd party notice of the proceedings, or where the 3 rd party has been given 

notice of the proceedings, but neither he, the husband nor the wife has 

102 The husband and wife may try to avoid seeking orders against the 3 rd party, whilst 

still requesting the court to deal with the 3 rd party issue, in the following ways: 

(a) Order the value of the asset in the 3 rd party’s name, or alleged by the 3 rd party 

to be owned by him beneficially, to be taken into account in the division of the 

matrimonial assets instead of seeking an order for the sale of that asset (See, for 

example, the cases of Lau Loon Seng and Lam Siew Lan, supra, discussed in 

Section 4.4.1(b) above). 

(b) Agree on the extent of the 3 rd party’s share in the asset, so that the court does 

not have to make a decision on the issue. (See Section 2.3.1 above, in this 

regard.)

274 


made an application for the 3 rd 

proceedings: 

party to be joined as a party to the 

When should the court order: 

(a) the husband and/or wife to give notice of the proceedings to the 

3 rd party 

(b) that the 3 rd party be joined as a party to the proceedings 

4.10.1 Giving notice 

146 If it is clear that the husband and/or wife are seeking orders 

against the 3rd party at the ancillary matters hearing, then the court 

should order that the 3rd party be given due notice of the ancillary 

matters proceedings, in order to allow the 3rd party the opportunity to 

apply to be joined as a party of his own accord. 

147 If orders against the 3rd party are not being sought, the court 

then has to balance the following factors: 

Factors in favour of giving the 3 rd party due notice of the 

proceedings 

(a) 

the requirements of natural justice 

148 The 3 rd party ought to be notified of any matter which would 

affect his interests, however indirectly, in such a manner that he will be 

able to understand all the issues raised by, and the cases of, the 

respective parties, and to have the opportunity to participate in the 

proceedings as a party if he so wishes. In this regard, the court should 

consider: 

(i) 

Whether the 3 rd party already appears to have knowledge of the 

proceedings 

149 For example, if the 3 rd party has already filed witness affidavits 

in the proceedings, or written a letter to one of the parties indicating that 

he is not interested in taking part in the proceedings, this “natural 

justice” factor would have less weight. 

(ii) 

The nature of the 3 rd party issue


150 If the 3 rd party issue concerns an asset of considerable value, for 

example, then it would be more important for the 3 rd party to be notified 

of the proceedings and/or joined as a party to the same. 

(b) 

(c) 

Avoiding the delay, inconvenience and expense of a separate 

trial on the 3 rd party issue, by having all matters finally dealt with 

in the same forum at the same time, thus saving the court’s as 

well as the parties’ resources 

Avoiding the danger of conflicting decisions which would be 

present if there was a separate trial on the 3 rd party issue 

151 In respect of factors (b) and (c) above, the court should consider 

the likelihood of future litigation regarding the 3 rd party issue taking 

place in the ordinary civil court. The greater the likelihood, the stronger 

the reason for notifying the 3 rd party of the proceedings and joining him 

as a party to the same. In deciding the likelihood of future litigation, the 

value of any asset concerned and whether the husband, wife, and 3 rd 

party are high-profile/exceptionally litigious parties are relevant factors. 

Factor against giving the 3 rd 

proceedings 

party due notice of the 

(d) the floodgates to 3 rd parties argument (see Section 4.3.2 

above)—i.e. an increase in time, expense and acrimony of 

involving 3 rd parties in the proceedings 

152 The lesser the value of any asset concerned, the stronger this 

factor would be. 

Neutral factor 

(e) 

the 3 rd party will not be bound by any order made against him, 

nor prevented from litigating the issues in future if he is not duly 

notified of and/or not made a party to the proceedings (see 

Sections 4.4 and 4.6 above) 

Guiding principle in respect of giving notice 

153 It is submitted that where the factors for and against giving 

notice to the 3 rd party are evenly balanced, the court should generally 

order that notice of the proceedings be given to the 3 rd party.

276 


4.10.2 Joining as a party 

154 If it is clear that the husband and/or wife are seeking orders 

against the 3 rd party at the ancillary matters hearing, then the court 

should order that the 3 rd party be joined as a party to the ancillary matters 

proceedings, as orders may not be made against a non-party to the 

action. 103 

155 The court must balance the following factors when deciding 

whether to order, of its own motion, that the 3 rd party be joined as a party 

to the proceedings when the 3 rd party himself, the husband, and the wife, 

have not applied for this to be done: 

Factors against joining the 3 rd 

proceedings 

party as a party to the 

156 The same factor as set out in paragraph (d) of Section 4.10.1 

above (i.e. the floodgates to 3 rd parties argument) would be applicable. 

Consequences of being a party to litigation 

157 Once the 3 rd party is joined as a party to the proceedings, he 

would be vulnerable to costs and other orders being made against him. 

His credit rating may also be affected by being a party to litigation. 

Factors in favour of joining the 3 rd party as a party to the 

proceedings 

158 The factors in favour of joining the 3 rd party as a party to the 

proceedings would be the same factors set out in paragraphs (a)-(c) of 

Section 4.10.1 above (i.e. the requirements of natural justice; avoiding 

the delay, expense and inconvenience of a separate trial; and 

avoiding the danger of conflicting decisions). 

159 Paragraph (e) of Section 4.10.1 would, once again, be a neutral 

factor. 

Guiding principle in respect of joining 3 rd party (when orders 

against the 3 rd party are not being sought) 

160 If the factors set out above are evenly balanced, the court should 

not order the 3 rd party to be joined as a party. This is on the basis that 

103 

In this regard, see Section 4.4.3-4.4.5 above.


parties should not be compelled to litigate against persons whom they do 

not wish to engage in litigation with. In this regard, see the case of Tajjul 

Ariffin bin Mustafa v Heng Cheng Hong, 104 where the court stated: 

“(4) Generally, in common law and chancery matters, a plaintiff 

who considers that he has a cause of action against a defendant is 

entitled to pursue his remedy against that defendant alone and he 

cannot be forced to pursue his remedy against other persons who 

he has no wish to sue. (See Per Wynn-Perry J in Dollfus Mieg et 

Compagnie SA v Bank of England.)… 

(6)… a defendant against whom no relief is sought by the 

plaintiff will generally not be added against the wishes of the 

latter. (See Hood-Bars v Frampton & Co.). 

…he [the plaintiff] should be allowed to proceed against the 

defendant of his choice…There may be cogent reasons for his 

not wanting to proceed against the intended second defendant; 

for example the intended second defendant, who is alleged by 

the defendant to have been wholly or partly at fault, may be a 

friend or next of kin of the plaintiff, or the joinder may result in 

unnecessary prolongation of the trial or in the plaintiff having to 

shoulder the burden of additional costs should he fail against 

both the defendants. There may, of course, be other reasons.” 

(per Edgar Joseph JR SCJ)” 

4.10.3 Where 3 rd party/other parties apply for joinder 

161 If the 3 rd party himself, after having been given due notice of the 

proceedings, applies to join the proceedings, or if either the husband and 

wife apply to join the 3 rd party to the proceedings, the test for whether to 

allow the appplication will be whether the 3 rd party’s proprietary or 

pecuniary rights would be affected by the court’s decision. (See the cases 

of Pegang Mining, Pelangi Airways, Chang Ching Chuen and Gurtner v 

Circuit, supra, discussed in Section 4.4.1(b) above). The factors 

discussed in paragraph 4.10.1(a)-(c) would also be relevant. 

104 

[1993] 2 MLJ 143

278 


5 Procedure 

5.1 Notice 

162 What would constitute due notice of the ancillary matters 

proceedings to the 3 rd party 

163 It is submitted that the ancillary matters affidavits filed in court 

which contain the husband’s and wife’s respective claims and positions 

on the 3 rd party issue should be personally served on the 3 rd party, 

together with a covering letter giving a brief summary of the claims 

being made against the 3 rd party. In the case of Kalsi, supra, for example, 

the court noted that the only indication of the wife’s case was contained 

in a paragraph in the supporting affidavit to her application, which 

should have been served on the non-parties. 

164 If the ancillary matters affidavits have not been drafted yet, then 

a letter setting out the husband’s and wife’s respective claims and 

positions on the 3 rd party issue should be personally served on the 3 rd 

party. This was done in the case of Aik Ming (M) Sdn Bhd & Ors v 

Chang Chin Chuen & Ors and another appeal 105 , where the plaintiffs’ 

solicitors wrote to the intervener’s solicitors giving them notice of an 

injunction taken out by the plaintiffs on the sale of certain lands to the 

intervener and alleging that it was not a bona fide purchaser of the same. 

165 The covering letters in both the above situations should notify 

the 3 rd party of the date of the next ancillary matters pre-trial conference 

in the case, so that the 3 rd party may attend to inform the court of his 

intentions in respect of the case—i.e. whether he will be joining the 

proceedings as a party, starting a separate civil suit, and so on. 

5.2 Joinder 

166 The Women’s Charter (Matrimonial Proceedings) Rules 2003 do 

not contain any provisions governing the joinder of 3 rd parties. The 

relevant rule in the Rules of Court to govern the joinder of a 3 rd party is 

Order 15 Rule 6: 

Misjoinder and nonjoinder of parties (O. 15, r. 6) 

6. —(1) No cause or matter shall be defeated by reason of the 

misjoinder or nonjoinder of any party; and the Court may in any 

105 

[1995] 2 MLJ 770; related to the case of Chang Chin Chuen, supra, discussed at 

Section 4.4.1(b) above.


cause or matter determine the issues or questions in dispute so 

far as they affect the rights and interests of the persons who are 

parties to the cause or matter. 

(2) Subject to the provisions of this Rule, at any stage of the 

proceedings in any cause or matter, the Court may, on such 

terms as it thinks just and either of its own motion or on 

application — 

… 

(b) order any or the following persons to be added as a party, 

namely: 

(i) any person who ought to have been joined as a party or whose 

presence before the Court is necessary to ensure that all matters 

in the cause or matter may be effectually and completely 

determined and adjudicated upon; or 

(ii) any person between whom and any party to the cause or 

matter there may exist a question or issue arising out of or 

relating to or connected with any relief or remedy claimed in the 

cause or matter which in the opinion of the Court it would be 

just and convenient to determine as between him and that party 

as well as between the parties to the cause or matter. 

(3) An application by any person for an order under paragraph 

(2) adding him as a party must, except with the leave of the 

Court, be supported by an affidavit showing his interest in the 

matters in dispute in the cause or matter or, as the case may be, 

the question or issue to be determined as between him and any 

party to the cause or matter. 

167 Thus, a party may apply to join a 3 rd party to the proceedings by 

filing a summons-in-chambers together with a supporting affidavit. 

Alternatively, he may make an oral application to do so, or the court may 

do so of its own motion at the ancillary matters hearing or at an ancillary 

matters pre-trial conference. The 3 rd party’s name will then appear in the 

title to the action, as in the case of Perez-Adamson v Perez-Rivas 

(Barclays Bank plc, third party), supra (emphasis added). (See Order 15 

Rule 8 (Provisions consequential on making of order under Rule 6 or 7) 

of the Rules of Court for details on the procedures to be followed once a 

person is ordered to be joined as a party under Order 15 Rule 6.)

280 


5.3 Ancillary matters hearing 

168 What procedure should be adopted at the hearing of the ancillary 

matters proceedings involving 3 rd party issues, where the 3 rd party has 

joined the proceedings as a party i.e. 

a) An open court trial, with cross-examination as of right; or 

b) A hearing in chambers, without cross-examination as of right 

169 If the 3 rd party had taken out a separate civil suit in the ordinary 

civil court, he would have had a right to an open court trial, with crossexamination 

as of right. However, it is submitted that by joining the 

ancillary matters proceedings, the 3 rd party is taken to have consented to 

following the same hearing procedures as for all family cases, where, as 

a matter of practice, the ancillary matters are adjourned to chambers for 

hearing. 

170 In this regard, it should be noted that family disputes do not 

seem to be treated in the same way as civil cases, where crossexamination 

is an automatic right. Applications under Section 59 

(Questions between husband and wife as to property to be decided in 

summary way) of the Women’s Charter (Cap. 353), and the 

Guardianship of Infants Act, are by way of originating summons. The 

matters are heard in chambers, and the evidence is usually given by way 

of affidavits of evidence-in-chief and affidavits in reply. It seems to be a 

matter of policy that family disputes should be heard in chambers where 

all the evidence is usually tendered by way of affidavit, rather than in 

open court trials where witnesses take the stand. This may be to protect 

the privacy of the parties, as well as to save them time and costs. 

171 As the 3 rd parties to the proceedings are often closely connected 

to the husband and/or wife socially and emotionally, and/or related to 

either or both of them, it is submitted that the same policy regarding the 

protection of the parties’ privacy and the saving of time and costs should 

be extended to those ancillary matters hearings involving 3 rd party issues, 

where the 3 rd party has joined the proceedings as a party, i.e. such 

hearings should be done in chambers, without cross-examination as of 

right.


6 Where separate civil suit is filed, which court to hear 

the 3rd party issue 

172 If the 3 rd party or the husband or the wife takes out a separate 

civil action in the ordinary civil court to deal with the 3 rd party issue 

(“the civil suit 106 ”), will it be consolidated with, or transferred to the 

ancillary matters court to be heard together with, the ancillary matters 

proceedings Should it be 

173 The answers to these questions will depend on which civil court 

the suit is filed in, i.e. District Court/Magistrate’s Court or the High 

Court, as well as which court the ancillary matters are pending to be 

heard in, i.e. the Family Court or the High Court. 107 

174 Note: If a party has not filed a separate civil suit at the time that 

the ancillary matters are adjourned to chambers for hearing, but indicates 

that he wishes to do so at an ancillary matters pre-trial conference, then, 

as a matter of practice, the Family Court would usually allow him a 

reasonable length of time to do so (this being his right 108 ), before 

proceeding with the hearing of the ancillary matters. 

6.1 Reasons for having the civil suit and the ancillary 

matters heard by the same court 

175 The case of Shi Fang v Koh Pee Huat, 109 illustrates how 3 rd party 

issues are often so closely related to the issues in the ancillary matters 

proceedings that the court’s preference is to have them resolved in the 

same forum, and at the same time. In this case, the husband had taken 

out a civil suit to resolve the issue of the 3 rd party’s interest. He sought, 

inter alia, a declaration that a particular house which was registered in 

his name was held by him in trust for his father. The wife subsequently 

petitioned for divorce, and claimed maintenance and a share of the 

106 The term “civil suit” will be used to refer to all matters commenced in the ordinary 

civil court, no matter whether the originating process was a writ of summons, 

originating summons, petition, etc. 

107 In accordance with the Transfer Order and the Second Transfer Order, the ancillary 

matters in respect of all divorce petitions filed on or after 1 April 1996 and before 15 

December 2003 will be dealt with by the Family Court, and the ancillary matters in 

respect of all divorce petitions filed on or after 15 December 2003, save for contested 

applications for the division of matrimonial assets where the gross value of the 

matrimonial assets is asserted by a party to the proceedings to be $1.5 million or 

above, will be dealt with by the Family Court. 

108 See Section 3 above. 

109 [1996] 2 SLR 221

282 


matrimonial assets (including the house which was the subject matter of 

the civil suit) consequent upon the dissolution of her marriage with the 

husband (“the ancillary matters”). When the civil suit came on for 

hearing (before the ancillary matters had been disposed of), the parties 

agreed (in response to the trial judge’s suggestion) that the evidence in 

one set of proceedings would be used for the purpose of the other, as 

there were common issues of fact in both sets of proceedings. Both sets 

of proceedings were heard before the same judge. The judge dealt with 

the issues raised in the proceedings as if they had been consolidated. 

There was only one judgment covering both proceedings. At the appeal 

hearing, the Court of Appeal held that short of a formal order for 

consolidation, the two proceedings were effectively consolidated in the 

court below. 

176 This case illustrates that there may be a certain value to having 

the civil suit dealt with by the court dealing with the ancillary matters. 

Not only may the hearing process be made more convenient and 

expedient, but the quality of the decision-making process may also be 

enhanced. The relevant factors in identifying situations where it would 

be expedient for the court dealing with the ancillary matters to also deal 

with the civil suit are as follows: 

(a) There are common issues of law in both matters; 

(b) There are common issues of fact in both matters; 

(c) There are common witnesses in both matters; and 

(d) 

The 3 rd party issue is connected with the main issues in the 

ancillary matters proceedings in such a way as to make it 

necessary for the court dealing with the civil suit to be apprised 

of the ancillary matters, and vice versa. 

177 The presence of factors (a)-(c) above would mean that time and 

costs (on the part of the parties and their witnesses, as well as the court) 

could be saved by having both matters dealt with by the same forum. 

These factors would also increase the benefit to be obtained from the 

familiarity and depth that a court dealing with both matters would have 

of the parties’ situation, as a whole. The presence of factor (d) above 

would indicate that the decision-making process would be enhanced by 

having the same forum deal with both matters. 

178 An example of a situation falling within factor (d) above can be 

found in the English case of Harman v Glencross, supra, where the court


dealt with the husband’s judgment creditor’s application for a charging 

order against the matrimonial home, as well as the wife’s application for 

ancillary relief pursuant to the granting of a decree nisi. The court noted: 

“..Unless it appears to the court hearing the application for the 

charging order absolute that the circumstances are so clear that it 

is proper to make the order there and then, the usual practice 

should be to transfer the application to the Family Division so 

that it may come on with the wife’s application for ancillary 

relief and one court can then be in a position to consider all 

the circumstances of the case.” (per Balcombe LJ at page 559 

a-b, emphasis added) 

179 A similar situation arose in the case of Customs and Excise 

Commissioners v A and another 110 where the wife filed an application for 

ancillary relief in the county court pursuant to the granting of a decree 

nisi. In the meantime, the husband was convicted of drug trafficking, and 

a confiscation order was made against him in the Crown Court under the 

Drug Trafficking Act 1994. The Crown Court appointed a receiver over 

all the husband’s assets, save for the matrimonial home and the surrender 

value of the policies, for the purpose of enforcing the confiscation order. 

The Customs and Excise Commissioners applied for the matrimonial 

home and the policies to be included in the realisable property. Both 

matters were ordered to be heard by the Family Division of the High 

Court. 

“It is a commonplace of family law for parties’ liabilities to 

exceed their assets. A husband may have substantial debts to 

third parties which he wishes to clear by using his share of the 

prospective proceeds of sale of the matrimonial home. 

Exercising its jurisdiction under ss 24 and 25 of the 1973 Act in 

such a case, the court may well transfer the husband’s interest in 

the property to the wife, thereby leaving him to meet his 

liabilities from other sources…In a case such as the present, 

the court does not artificially delete Mr A’s debts and then 

consider the adjustment of assets. If the court has jurisdiction 

to make orders under s 24 of the 1973 Act in these 

circumstances, what it does, in simple terms, is to decide 

whether, in all the circumstances of the case, and applying 

the s 25 criteria (which themselves include the fact that Mr A’s 

share of the house and the policies are the subject of a 

110 

[2002] 2 All ER 736

284 


confiscation order under the 1994 Act), the house and the 

policies should be transferred from Mr A to Mrs A thereby 

leaving Mr A with a continuing liability under the confiscation 

order.” (per Wall J, at page 760, b-e) (emphasis added) 

180 In other words, a kind of balancing exercise must be undertaken 

between the needs of the family and the rights of the 3 rd party 111 —and 

this can only be properly done if both the civil suit and the ancillary 

matters are heard by the same court. 

6.2 Which court to hear the civil suit and the ancillary 

matters 

181 Diagram A illustrates the different permutations for which courts 

may hear the civil suit and the ancillary matters. The different 

permutations concern which court the civil suit is filed in, and which 

court the ancillary matters are pending before. 

111 

In this regard, it should be noted that Section 112 (Power of court to order division 

of matrimonial assets) of the Women’s Charter (Cap. 353) requires the court to 

consider “all the circumstances of the case” when making orders for the division of 

the matrimonial assets.


Diagram A 

* In accordance with the Transfer Order and the Second Transfer Order, all 

ancillary matters in respect of divorce petitions filed on or after 1 April 1996 

and before 15 December 2003 will be dealt with in the Family Court, and all 

ancillary matters in respect of divorce petitions filed on or after 15 

December 2003, save for contested applications for division of the 

matrimonial assets which gross value is asserted by a party to the 

proceedings to be worth $1.5 million or more, will be dealt with in the 

Family Court. 

** All references to a “Section” in this diagram are to a section in this article. 

*** It appears that a civil suit filed in the Magistrate’s Court (if the amount is 

below the current jurisdiction of a District Court) may only be transferred to 

the District Court if it involves an important question of law or fact (See the

286 


differing views in two High Court decisions, in this regard—at Section 6.4.3 

below) 

6.3 If the civil suit and the ancillary matters need not be 

heard by the same court 

182 If, after considering all the factors set out in Section 6.1(a)-(d) 

above, it appears that the civil suit and the ancillary matters need not be 

heard by the same court, then the two suits may either proceed 

concurrently, or one set of proceedings may be stayed until the other is 

disposed of. 

183 An example of where the latter has been done is the case of Tian 

Ah Poon (m.w.) v Teo Guan Seng and Anor. 112 The wife in this case had 

filed a divorce petition on 22 February 2001. A decree nisi was granted 

on 23 April 2002, and the ancillary matters were adjourned to be heard 

later. On 9 April 2002, the wife, a shareholder in a company of which the 

husband was a director and shareholder, commenced an action in the 

High Court (in OS 488 of 2002) under Section 216 (Personal remedies in 

cases of oppression or injustice) of the Companies Act (Cap. 50) against 

the company itself, the husband (who was a director and shareholder of 

the company), and other directors and shareholders of the company (5 

defendants in all). The wife alleged that the husband had deliberately 

increased his shareholding in the company to dilute her interest in the 

same, and prayed for, inter alia, an order that the husband purchase all 

the shares owned by the wife at a fair value to be determined by the court 

or by an independent valuer. The wife then applied to transfer the 

divorce proceedings to the High Court and have it consolidated with OS 

488 of 2002. The High Court did not make the order for transfer and 

consolidation, but instead ordered that the ancillary matters in the Family 

Court be stayed pending the final determination (and any appeal 

therefrom) of the High Court suit. 113 

184 Generally, if a party starts a civil suit in connection with the 3 rd 

party issue (either before or after the divorce petition is filed), and the 

matter is not resolved (or not close to being resolved) before the ancillary 

matters are adjourned to chambers for hearing, and there is no 

application for the civil suit to also be heard by the Family Court, the 

Family Court will, in all probability, adjourn the hearing of the ancillary 

112 unreported, Divorce Petition No. 600679/2001 

113 Order made 24 June 2002. No judgment was written by the High Court in this matter.


matters until the civil suit has been dealt with 114 . This is what was done in 

the case of Liu Ah Moy, supra, where the ancillary matters were heard 

only after orders were made in the wife’s originating summons filed in 

the High Court to seek, inter alia, a declaration that the husband’s 

mistress held her half share of the said property in trust for the husband. 

This was also done in the case of Soh Lai Chan, supra, where the wife 

took out an originating summons in the High Court under Section 73B of 

the Conveyancing and Law of Property Act (Cap 61) seeking a 

declaration against the husband and his brother that the transfer of the 

husband’s shares in a certain company to his brother was void as against 

her. The ancillary matters proceedings before the Family Court had been 

stayed pending the determination of this suit. 

6.4 If the civil suit and the ancillary matters should be 

heard by the same court 

185 If it is decided that the civil suit should be heard by the same 

court dealing with the ancillary matters, then the question arises of what 

are the applicable provisions governing the transfer of the cases to the 

same court. 

6.4.1 Civil suit filed and ancillary matters pending in courts of 

the same jurisdictional limits 

186 If a civil suit is filed in: 

(a) the District Court (civil division) 115 and the ancillary matters are 

pending in the Family Court; or 

(b) the High Court and the ancillary matters are pending in the High 

Court 

there is no need for an application for either the civil suit or the ancillary 

matters to be transferred to a court of a different jurisdictional limit. 

114 However, the court may also render a decision on the ancillary matters first, without 

waiting for the civil suit to be heard. In such cases, the court can make alternative 

orders—i.e. one set of orders on the basis that there will be a certain outcome in 

respect of the civil suit, and one set on the basis that there will be an opposite 

outcome. (In this regard, see the case of Leong Choon Kum (m.w.) v Chia Kin Tuck, 

supra, discussed in Section 2.3.2) 

115 The position if the civil suit is filed in the Magistrate’s Court is dealt with in Section 

6.4.3.

288 


187 The party who would like the two matters to be heard by the 

same court may apply under Order 4 Rule 1 (Consolidation, etc., of 

causes or matters) of the Rules of Court to consolidate the matters, have 

them heard at the same time, or to have one heard immediately after the 

other, or to have one matter stayed, pending the determination of the 

other matter. 

6.4.1.1 Order 4 Rule 1 

188 Order 4 Rule 1 states as follows: 

1. —(1) Where two or more causes or matters are pending, then, 

if it appears to the Court — 

(a) that some common question of law or fact arises in both or 

all of them; 

(b) that the rights to relief claimed therein are in respect of or 

arise out of the same transaction or series of transactions; or 

(c) that for some other reason it is desirable to make an order 

under this Rule, 

the Court may order those causes or matters to be consolidated 

on such terms as it thinks just or may order them to be tried at 

the same time or one immediately after another or may order any 

of them to be stayed until after the determination of any other of 

them. 

(2) An order for consolidation must be in Form 1 and shall direct 

that the cause or matter in which the application is made shall 

thence forward be carried on in such other cause or matter and 

that the title of such other cause or matter be amended by adding 

thereto the title of the cause or matter in which the application is 

made. 

6.4.1.2 To consolidate, try at the same time, or try in immediate 

succession 

189 It is submitted that an order under Order 4 Rule 1 for the civil 

suit to be consolidated, tried at the same time, or tried in immediate 

succession with the ancillary matters proceedings would be made if the 

factors set out in Section 6.1(a)-(d) above are satisfied.


190 Consolidation may be ordered where the parties could have been 

joined in a single action pursuant to Order 15 Rule 4. 116 It should be 

noted that: 

“If an order for consolidation had been made, only one set of 

solicitors would represent the lead plaintiff and the 

determination of the court would bind all parties. The other 

plaintiffs would have to pay the costs of their solicitors with no 

recourse against or indemnity from the defendants.” (per Lai 

Kew Chai J, Lee Kuan Yew v Tang Liang Hong & Anor and 

other actions (3) 117 at paragraph 4) 

191 In Lee Kuan Yew v Tang Liang Hong, supra, it was held that it 

was generally impossible to consolidate actions where the plaintiffs in 

the actions had been and continued to be represented by different 

solicitors who had, in each case, completed their research, getting-up 

and, had been in the process of discovery of documents and other 

information “in relation to matters which could extend back a quarter of 

a century” 118 This was because it would not be possible to obtain the 

agreement of all the parties regarding the conduct of the action, and it 

would be “unjust and too overbearing” 119 to compel all the parties to 

agree to one set of solicitors, to terminate their retainers of their 

solicitors, and pay their solicitor and client costs without the prospect of 

any recourse from the defendants should the plaintiffs succeed in their 

claims. 

192 The court in Lee Kuan Yew v Tang Liang Hong & Anor and 

other actions (3), supra, was of the view that where it was not possible 

for multiple actions to be consolidated, the next best alternative was to 

order that they be tried at the same time. 

193 There seems to be little practical difference between 

consolidation and ordering actions to be tried at the same time, aside 

from the issues of separate legal representation and costs. The court 

observed that “In a trial of all the actions at the same time, the 

attendances of witnesses, counsel and of the parties need not be 

repeated. Counsel for plaintiffs and defendants in most cases of trials of 

multiple actions at the same time had in practice sensibly agreed that 

116 See Singapore Court Practice 2003, Jeffrey Pinsler, at p 70, para 4/1/1 

117 [1997] 3 SLR 178 

118 per Lai Kew Chai J, Lee Kuan Yew v Tang Liang Hong & Anor and other actions (3), 

supra, at para 4. 

119 Ibid, at para 11.

290 


evidence led in one action would be treated as having been led in all 

other actions…In such trials of several actions, which involve common 

issues of fact and the same questions of law, the preparation of the 

opening statements, list of issues, list of propositions of law and bundle 

of documents in accordance with the Practice Directions should again 

be approached on a combined basis wherever practicable and 

convenient. In such trials, a trial judge also encourages a common core 

bundle of documents for ease of reference and in the interest of a speedy 

trial.” (per Lai Kew Chai J, Lee Kuan Yew v Tang Liang Hong & Anor 

and other actions (3), at paragraph 5) 

194 In the light of the foregoing, it is submitted that the key to 

deciding whether the civil suit should be consolidated with the ancillary 

matters or merely ordered to be tried at the same as the ancillary matters 

is the number of parties (aside from the husband and wife) who are 

involved in the civil suit, the extent to which they have each obtained 

separate legal representation, and how far advanced the civil suit is— 

which would indicate how much work has been done thus far by the 

various parties’ lawyers, and the legal costs incurred. 

195 If there is no need for the civil suit and the ancillary matters to 

be consolidated or tried at the same time, the court may order the matters 

to be tried in immediate succession, usually before the same judge. This 

would usually be in a situation where: (i) the issues must be dealt with 

discretely—i.e. where the outcome in the first matter would affect the 

decision in the second matter in such a way that it would not be possible 

to hear the second matter without knowing the outcome in the first 

matter; or (ii) where the issues may be dealt with discretely, and factor 

(c) in Section 6.1 (i.e. common witnesses in both matters) above is 

present, but not factors (a), (b) and (d) (i.e. common issues of law and 

fact, and a close connection between the 3 rd party issue and the ancillary 

matters such that the court dealing with the civil suit must be appraised 

of the ancillary matters, and vice versa). 

196 When the matters are consolidated or tried at the same time, each 

witness giving evidence will give evidence of, and be cross-examined 

(where applicable) on all the issues raised in the civil suit as well as the 

ancillary matters proceedings. The affidavits of evidence in chief will be 

drafted to reflect this. One judgment will be written covering both 

matters. In the Shi Fang case, this is what took place (see Section 6.1 

above). Where the matters are tried in succession, then, strictly speaking, 

the witnesses called and the affidavits of evidence in chief filed in 

respect of the first matter should only be in relation to the issues arising 

in the first matter. A decision will then be made in respect of the first


case. After that decision is made, the court will proceed to hear the other 

matter immediately thereafter. The witnesses called and the affidavits of 

evidence in chief filed will only address those issues in respect of that 

second matter. Pinsler has observed that the process of successive 

hearings is administratively convenient and saves the witnesses, who are 

involved in two or more actions, the expense of having to attend court on 

two or more separate occasions 120 . 

6.4.1.3 Order for Stay 

197 However, as stated earlier, the court may also order one of the 

matters (usually the ancillary matters) to be stayed until the other is 

determined 121 (“order for stay”). In the order for stay situation: 

(a) Hearing dates for the first matter would be fixed first. Only after 

the first matter is disposed of would parties then apply for a second 

set of hearing dates for the second matter. 

(b) The affidavits to be filed in respect of the second matter would 

usually be held back, pending the outcome of the first matter. All 

other steps to be taken to prepare for the hearing of the second matter 

(interlocutory applications, for example) would also be stayed until 

the first matter is disposed of. 

198 If the matters are ordered to be tried in immediate succession, 

however, preparations for the hearing of both matters would proceed 

concurrently. The same set of hearing dates will be given for both 

matters. 

199 This means that in order for stay situations, witnesses and parties 

would have to attend court on at least two separate occasions, and the 

time taken for all matters to be finally disposed of would be longer than 

if the matters were ordered to be tried in immediate succession. 

200 It is submitted that an order for stay would be more appropriate 

than an order that the matters be tried in immediate succession if the 

factors in Section 6.1 (a)-(d) were not present, and (i) the preparation (in 

120 See Singapore Court Practice 2003, Jeffrey Pinsler at p 74. 

121 For an example of where this was done, see the case of Leong Choon Kum (m.w.) v 

Chia Kin Tuck, supra, where the Family Court ordered the ancillary matters 

proceedings stayed until a certain date, when a High Court suit involving the husband 

and wife would have been disposed of. (Family Court judgment dated 22 August 

2000) On appeal, however, the High Court ordered that the High Court suit be 

transferred down to the Family Court. (See Section 6.4.2.2).

292 


particular, the contents of the affidavits which would have to be 

prepared) for the second matter would be significantly affected by the 

outcome of the first matter (ii) the decision in the first matter would 

inevitably affect the decision in the second matter, and it is not possible 

to make “alternative orders” 122 and (iii) an appeal in respect of the first 

matter is very likely. In such a situation, it would make sense for all 

work on the second matter to be stayed, pending the determination 

(including any appeal) of the first matter. 

6.4.1.4 What hearing procedure should be used if the civil suit and 

the ancillary matters are ordered to be consolidated/heard 

at the same time 123 

201 One reason that a party may wish to have the matter dealt with 

by the ordinary civil court would be because they prefer the procedural 

regime governing the trials of ordinary civil cases to that governing the 

hearing of ancillary matters. The differences in the two procedural 

regimes are as follows: 

(a) Ordinary civil suit procedure 

(i) 

(ii) 

(iii) 

(iv) 

Parties’ respective cases will be set out in pleadings; 

Only one set of affidavits of evidence-in-chief will be 

filed by all parties and their witnesses; 

The trial will be held in open court; and 

Each party will be able to cross-examine all the other 

parties and their witnesses, as of right 

(b) Ancillary matters procedure 

(i) 

(ii) 

Parties’ respective cases will be set out in affidavits filed 

by them; 

There may be several “rounds” of affidavits filed by all 

parties; 

122 See Section 2.3.2 for an example of a case where alternative orders were made. 

123 Where the civil suit and the ancillary matters are tried one after the other, the open 

court trial procedure should be used for the civil suit and the ancillary matters 

procedure should be used for the ancillary matters.


(iii) 

(iv) 

The hearing will take place in chambers 124 ; and 

Witnesses may only be cross-examined with the court’s 

leave. 

202 It is submitted that the procedural regime governing the ordinary 

civil suit is not necessarily more advantageous to all parties. In respect of 

items (i) and (ii) for each of the above categories, it is submitted that 

parties will be able to set out and ascertain the other parties’ cases 

whether they are set out in pleadings or affidavits. Indeed, the ancillary 

matters procedure, with its several “rounds" of reply affidavits, would 

seem to give the parties more than one chance to set out their case, and 

even to raise queries concerning the other parties’ cases, unlike the more 

structured pleadings regime. In respect of item (iii) for each of the above 

categories, there seems to be no obvious advantage, as far as the parties 

are concerned, of having the matter heard in open court rather than in 

chambers. A chambers hearing would in fact give the parties more 

privacy. 

203 It is submitted that the most significant procedural difference lies 

in item (iv)—the right of cross-examination. It is beyond the scope of 

this article to discuss the advantages or otherwise of being able to crossexamine 

witnesses. Suffice to say that it is still open to the party in an 

ancillary matters hearing who wishes to apply for cross-examination of 

any witness to file a summons-in-chambers together with a supporting 

affidavit to seek the court’s leave to do so before the said ancillary 

matters hearing. This was done in Audrey Lee Dawn, supra, and Ong 

Tong Liang, supra, for example. 

204 It is therefore submitted that the court should lean in favour of 

adopting the ancillary matters hearing procedure in circumstances where 

the ancillary matters have been consolidated to be heard with the civil 

suit, or ordered to be tried at the same time as the civil suit. This is 

because of the unique nature of family and family-related disputes, 

where there is a concern to protect the privacy of the parties. In this 

regard, see the discussion in Section 5.3 above. 

124 As a matter of practice, all ancillary matters in respect of which no consent order has 

been recorded on the date of the granting of the decree nisi will be adjourned to be 

heard in chambers after the granting of the decree nisi.

294 


6.4.2 Civil suit filed and ancillary matters pending in courts of 

different jurisdictional limits---the High Court and the 

Family Court 125 

6.4.2.1 Power to transfer matters from High Court to Family Court 

and vice versa 

205 Only the High Court has the power to transfer a matter from the 

High Court to the Family Court, and vice versa. The High Court’s power 

comes from Section 18 (Powers of High Court) of the Supreme Court of 

Judicature Act (Cap. 322) (“SCJA”): 

“18. —(1) The High Court shall have such powers as are vested 

in it by any written law for the time being in force in Singapore. 

(2) Without prejudice to the generality of subsection (1), the 

High Court shall have the powers set out in the First Schedule. 

(3) The powers referred to in subsection (2) shall be exercised in 

accordance with any written law or Rules of Court relating to 

them.” 

First Schedule 

Transfer of proceedings 

10. Power to transfer any proceedings to any other court or to or 

from any subordinate court, and in the case of transfer to or from 

a subordinate court to give any directions as to the further 

conduct thereof, except that this power shall be exercised in such 

manner as may be prescribed by Rules of Court. 

206 There are specific provisions in the Subordinate Courts Act 

(Cap. 321) (“SCA”) governing the transfer of cases to and from the High 

Court, however. Section 18 of the SCJA must be read together with these 

specific provisions. As stated in the case of Ong Pang Wee and Ors v 

Chiltern Park Development Pte Ltd: 126 

125 The position if the civil suit was filed in the Magistrate’s Court is dealt with in 

Section 6.4.3 below. 

126 [2003] SGCA 9


“..the scope of the High Court’s power to transfer proceedings 

from a lower court to itself cannot be determined by looking 

only at the SCJA. In fact it would be wrong to do so as s 18(3) 

provides that the powers ‘shall be exercised’ in accordance with 

written law. Parliament had therefore intended the High Court to 

have regard to other applicable written laws before exercising 

the power to transfer proceedings to itself and to act in a manner 

that was ‘in accordance with’ or consistent with those provisions 

in so doing. In this case, the applicable written law is the SCA 

and the High Court can only exercise its powers of transfer of 

proceedings as provided for in this Act.” (per Judith Prakash J, , 

at paragraph 14) 

6.4.2.2 Civil Suit filed in High Court to be heard by Family 

Court—Transfer down from High Court 

207 An example of a case where this was done is Chia Kin Tuck v 

Leong Choon Kum and Anor (Suit 1665 of 1999). On 7 May 1998, the 

wife had commenced divorce proceedings against the husband in 

Divorce Petition No. 1621 of 1998. A decree nisi was granted on 7 

January 2000, and the ancillary matters were adjourned to be heard in 

chambers. The husband then filed a suit (i.e. Suit 1665 of 1999) in the 

High Court on 24 November 1999 against the wife and a 3 rd party for the 

return of a sum of $1 million which he alleged had been given to the 

wife to be deposited into two bank accounts for the purpose of meeting 

his sons’ educational expenses, and which had been wrongfully 

transferred to the account of the 3 rd party. The husband had applied to 

stay the ancillary matters proceedings until the High Court suit was 

disposed of. This application was granted by the Family Court. On 

appeal by the wife, the High Court ordered the High Court suit to be 

transferred to the Family Court, to be heard by the same judge dealing 

with the ancillary matters 127 . 

208 The provision governing the transfer of suits from the High 

Court to the Family Court is Section 37 SCA (“Section 37”): 

General power to transfer from High Court to District Court 

37. —(1) In any action commenced by way of writ of summons 

in the High Court in the exercise of its original civil jurisdiction, 

127 Order made on 23 October 2000. No judgment was written. A new suit number was 

given for the transferred suit—DC(T) 600872 of 2000

296 


any party may for any sufficient reason at any time apply to the 

High Court for an order that the proceedings be transferred to a 

District Court. 

(2) The High Court may thereupon, if it thinks fit, order that the 

proceedings be transferred accordingly notwithstanding any 

other provisions of this Act. (emphasis added) 

209 The effect of this section is to give “the High Court an 

unfettered discretion to transfer at any time any proceedings commenced 

by writ of summons to the district court. The words ‘notwithstanding any 

other provisions of this Act’ have the effect of vesting in the High Court 

the jurisdiction to increase the ordinary civil jurisdiction of the district 

court.” (per Chan Sek Keong JC (as he then was), Australian Master 

Builders Co Pty Ltd v Ng Tai Tuan 128 ) 

(a) 

Only proceedings commenced by a writ of summons may be 

transferred down 

210 It should be noted that under Section 37, only actions 

commenced by way of writs of summons may be transferred down from 

the High Court to the District Court. Thus, if an originating summons is 

to be transferred from the High Court to the Family Court, it must first 

be “converted” into a writ under Order 28 Rule 8 (Continuation of 

proceedings as if cause or matter begun by writ) of the Rules of Court 129 . 

128 [1987] SLR 539 

129 Order 28, Rule 8 of the Rules of Court states: 

8. -(1) Where, in the case of a cause or matter begun by originating summons, it 

appears to the Court at any stage of the proceedings that the proceedings should 

for any reason be continued as if the cause or matter had been begun by writ, it 

may order the proceedings to continue as if the cause or matter had been so 

begun and may, in particular, order that pleadings shall be delivered or that any 

affidavits shall stand as pleadings, with or without liberty to any of the parties to 

add thereto or to apply for particulars thereof. 

(2) Where the Court decides to make such an order, Order 25, Rules 2 to 7, shall, 

with the omission of so much of Rule 7 (1) as requires parties to serve a notice 

specifying the orders and directions which they require and with any other 

necessary modifications, apply as if there had been a summons for directions in 

the proceedings and that order were one of the orders to be made thereon. 

(3) This Rule applies notwithstanding that the cause or matter in question could 

not have been begun by writ. 

(4) Any reference in these Rules to an action begun by writ shall, unless the 

context otherwise requires, be construed as including a reference to a cause or 

matter proceedings in which are ordered under this Rule to continue as if the 

cause or matter had been so begun.


It will not be possible to transfer ancillary matters pending in the High 

Court to the Family Court, as the originating process would be a petition 

and not a writ of summons. In this regard, other types of actions such as 

bankruptcy, companies’ winding up actions and probate matters, which 

are commenced by petitions, may also not be transferred from the High 

Court to the Family Court. 

(b) 

Proceedings commenced under specific legislation only giving 

jurisdiction to High Court 

211 It is further submitted that if the High Court proceedings were 

commenced under specific legislation only giving jurisdiction to the 

High Court (for example, an application taken out under Section 73B of 

the Conveyancing and Law of Property Act (Cap. 61) 130 (as was done in 

the case of Soh Lai Chan, supra)) such proceedings would fall outside 

the scope of Section 37. The High Court would therefore not have the 

power to transfer the case down to the District Court. The rationale for 

this is that if Parliament has expressly given the jurisdiction over cases 

coming under the specific legislation to the High Court alone, the courts 

should not go against Parliament’s intention by transferring such cases to 

the District Court under Section 37. 

212 This argument is reinforced by the fact that there is already a 

specific legislative mechanism for the District Court to be conferred 

jurisdiction to deal with certain classes of cases that only the High Court 

would have had jurisdiction to deal with. Under Section 28A (Allocation 

of proceedings to District Court) of the SCJA, the Chief Justice may by 

order direct certain classes of cases commenced in the High Court to be 

heard by the District Court, and confer jurisdiction on the District Court 

to do so. 131 (The Transfer Order and the Second Transfer Order, which 

130 The term “court” in the Act is defined as “High Court”—see Section 2(Interpretation) 

of the said Act. 

131 Section 28A SCJA states: 

(1) The Chief Justice may, where he considers it necessary or expedient to improve 

efficiency in the administration of justice and to provide for more speedy disposal of 

proceedings commenced in the High Court, by order direct such class or classes or 

description of proceedings as may be specified in the order to be heard and 

determined by the District Court. 

(2) Notwithstanding any other written law, any order under subsection (1) — 

(a) may confer jurisdiction on a District Court to hear and determine — 

(i) any proceedings specified in the order which, but for the order, the District Court 

would not have jurisdiction to hear and determine by reason only of the fact that the 

amount involved exceeds the monetary limit of its jurisdiction; or 

(ii) any proceedings relating to any of the ma tters referred to in [continued next page]

298 


give the District Court jurisdiction to hear certain family matters which 

would otherwise be the exclusive province of the High Court, would be 

an example of such legislation.) It is submitted that if the High Court had 

the power to transfer down any case it saw fit under Section 37 SCA to 

the District Court, this would obviate the need for Section 28A SCJA. 

(c) 

Reason for transfer 

213 In the Australian Master Builders case, supra, the court was of 

the view that the applicant for a transfer must show something more than 

a speedier trial and/or savings in costs (the latter merely being a 

consequence of the transfer) in order to be granted leave to transfer 

proceedings from the High Court to the District Court. It is submitted 

that if there are good reasons (of the kind set out in Section 6.1(a)-(d) 

above) for wanting the civil suit to be heard together with the ancillary 

matters proceedings, then this should suffice to justify the transfer of the 

civil suit to the Family Court. The Family Court would already have 

dealt with the divorce itself. It would therefore be an appropriate forum 

to hear both the civil suit and the ancillary matters proceedings. The 

more advanced the ancillary matters proceedings in the Family Court by 

the time the question of whether the civil suit should be transferred 

arises, the stronger the reason for transferring the civil suit to the Family 

Court. 

214 However, as stated in Australian Master Builders, supra, in 

situations; 

“…where the issues of fact may be complicated or are in respect 

of a subject matter not normally tried in such courts [i.e. the 

(ii) any proceedings relating to any of the matters referred to in section 17 (a) to (e); and 

(b) may make such incidental provision for the transfer of the proceedings to the District 

Court (including matters relating to procedure and costs) as the Chief Justice thinks 

fit. 

Section 17 (Civil jurisdiction — specific) SCJA states: 

17. Without prejudice to the generality of section 16, the civil jurisdiction of the High 

Court shall include — 

(a) jurisdiction under any written law relating to divorce and matrimonial causes; 

(b) jurisdiction under any written law relating to matters of admiralty; 

(c) jurisdiction under any written law relating to bankruptcy or to companies; 

(d) jurisdiction to appoint and control guardians of infants and generally over the persons 

and property of infants; 

(e) jurisdiction to appoint and control guardians and keepers of the persons and estates of 

idiots, mentally disordered persons and persons of unsound mind; and 

(f) jurisdiction to grant probates of wills and testaments, letters of administration of the 

estates of deceased persons and to alter or revoke such grants.


District Court] or the issues of law are of sufficient complexity 

that to allow them to be tried by a district court would merely 

open another tier of appeal and thus prolong the ultimate 

disposal of the case.”, 

then the court should consider transferring the ancillary matters 

proceedings from the Family Court to the High Court instead. (In this 

regard, see Section 6.4.2.3(a) below.) 

(d) Order 89 Rule 3 

215 The procedural rule governing the transfer of cases from the 

High Court to the District Court is Order 89 Rule 3, which states: 

Procedure on transfer from the High Court (O. 89, r. 3) 

3. —(1) Where an order is made by the High Court for the 

transfer of any proceedings from the High Court to the 

Subordinate Courts, the Registrar of the Supreme Court must 

send to the Registrar of the Subordinate Courts the file of the 

proceedings, all documents, exhibits and a certified copy of the 

notes of evidence (if any) of the proceedings. 

(2) The Registrar of the Subordinate Courts must give notice of 

the transfer to every party to the proceedings. 

(3) Subject to any directions in the order of the High Court, the 

trial shall proceed as if the proceedings were commenced in the 

Subordinate Courts. 

(e) Order 4 Rule 1 

216 Once the order has been made for the civil suit to be transferred 

down from the High Court to the Family Court, it may be consolidated 

with, ordered to be tried at the same time as, ordered to be tried in 

immediate succession with the ancillary matters proceedings, or an order 

for stay may be made. (For a discussion on Order 4 Rule 1, see Section 

6.4.1 above.)

300 


6.4.2.3 Civil suit filed in the High Court to be heard with ancillary 

matters—transfer up of ancillary matters from the Family 

Court 

217 An example of a case in which this was done is Wong Ser Wan v 

Ng Bok Eng Holdings Private Limited and Another (Suit No. 310 of 

2003/H) (“Suit No. 310”). The basis of Suit No. 310 was that certain 

shares and property had been transferred to the defendants by the 

plaintiff’s husband with the intention to, inter alia, dissipate and dispose 

of his assets to deprive the plaintiff of a just and equitable division of the 

said shares and property in the event of a dissolution of marriage. The 

plaintiff wife in Suit No. 310 had commenced divorce proceedings 

against the husband (in Divorce Petition No. 2545 of 1999) and obtained 

a decree nisi before the said suit was filed. The plaintiff then applied, 

inter alia, for the actions in the divorce petition, as well as several 

maintenance summonses which she had taken out, to be transferred to 

the High Court. The application was dismissed by the assistant registrar, 

but allowed on appeal by the High Court 132 . The ancillary matters had not 

been disposed of at the time of the application. The High Court further 

ordered that the actions be heard and determined immediately after the 

trial of Suit No. 310, before the same High Court judge. 

218 The provision governing the transfer of cases from the District 

Court to the High Court is Section 38 SCA 133 , which states: 

132 Order made on 7 May 2003. No judgment was written by the court. 

133 It may be argued that since the Transfer Order and the Second Transfer Order, which 

gave the District Court jurisdiction to hear certain family matters, were made by the 

Chief Justice pursuant Section 28A SCJA (see the discussion on Section 28A SCJA 

at Section 6.4.2.2 (b) above), this removes the power of a High Court judge to 

transfer the ancillary matters in a divorce case from the Family Court to the High 

Court under Section 38 SCA. It is submitted, however, that the better view is that the 

Transfer Order and the Second Transfer Order did not so remove the power of the 

High Court judge. This is because, on a plain reading of Section 28A SCJA, the 

Chief Justice is empowered to confer jurisdiction on the District Court to deal with 

certain matters, but the section does not expressly state that the High Court may no 

longer deal with such matters after such jurisdiction is conferred on the District 

Court. The latter position would unfairly deprive parties whose divorce petitions have 

been filed in the Family Court of a potential avenue in the disposal of their cases 

which is available to parties in ordinary civil suits filed in the District Court. It is 

therefore submitted that the Transfer Order and the Second Transfer Order were not 

intended to preclude the High Court from being able to deal with ancillary matters in 

all cases, and that, therefore, in appropriate cases, the ancillary matters may be 

transferred up from the Family Court to the High Court under Section 38 SCA.


General power to transfer from District Court to High Court 

38. Where it is made to appear to the High Court, on the 

application of a party to any civil proceeding pending in a 

District Court, that the proceeding by reason of its involving 

some important question of law, or being a test case, or for any 

other sufficient reason, is one which should be tried in the High 

Court, it may order the record to be transferred to the High 

Court. 

(a) 

Important question of law, test case, any other sufficient reason 

219 It is submitted that the condition of “any other sufficient reason” 

under Section 38 SCA would be satisfied if (i) there are strong reasons 

(of the kind set out in Section 6.1(a)-(d) above) for why the civil suit 

ought to be heard by the same court which deals with the ancillary 

matters, and (ii) the civil suit may not be transferred from the High Court 

to the Family Court as it was not commenced by a writ of summons—for 

example, it is a bankruptcy matter which was commenced by way of a 

petition—or if it was commenced under specific legislation giving 

jurisdiction only to the High Court. (See Section 6.4.2.2(a) and (b) 

above.) 

220 Therefore, the question that has to be asked first, is whether it is 

possible for the High Court suit to be transferred to the Family Court. If 

not, then the next question that has to be asked is whether the ancillary 

matters in the Family Court involve an important question of law or 

would be a test case. If so, then they should be transferred up to the High 

Court, to be heard with the civil suit. 

221 If the ancillary matters do not involve an important question of 

law or do not constitute a test case, then the considerations set out in the 

Australian Master Builders case, supra (i.e. issues of fact which are so 

complicated, issues of law which are so complex, etc. that to allow them 

to be tried by a district court would merely open another tier of appeal 

and thus prolong the ultimate disposal of the case) must be considered, 

both in relation to the ancillary matters as well as the civil suit, in order 

to decide whether the civil suit should be transferred to the Family Court, 

or whether the ancillary matters should be transferred up to the High 

Court. 

(b) Order 89 Rule 2

302 


222 The relevant procedural rule governing the transfer of District 

Court matters to the High Court is Order 89 Rule 2 of the Rules of Court, 

which states: 

Procedure on transfer from the Subordinate Courts (O. 89, r. 2) 

2. —(1) Where an order is made by the High Court for the 

transfer of any proceedings from the Subordinate Courts to the 

High Court, the Registrar of the Subordinate Courts must send to 

the Registrar of the Supreme Court the file of the proceedings, 

all documents, exhibits and a certified copy of the notes of 

evidence (if any) of the proceedings. 

(2) The Registrar of the Supreme Court must give notice of the 

transfer to every party to the proceedings. 

(c) Order 4 Rule 1 

223 As in the case of orders for “transfers down” from the High 

Court to the Family Court, once the order has been made for the ancillary 

matters to be transferred from the Family Court to the High Court, it may 

be consolidated with, ordered to be tried at the same time as, ordered to 

be tried in immediate succession with the ancillary matters proceedings, 

or an order for stay made be made. (For a discussion on Order 4 Rule 1, 

see Section 6.4.1 above.) 

6.4.2.4 Civil suit filed in the District Court to be heard with 

ancillary matters pending in the High Court—Transfer up 

of civil suit to High Court 

224 The relevant provision governing the transfer up of a civil suit 

filed in the District Court is Section 38 SCA, discussed in Section 6.4.2.3 

above. Once again, it must be shown that there is an important question 

of law, test case or some other sufficient reason before the transfer up of 

the civil suit to the High Court will be allowed. 

225 Note the High Court case of Rightrac Trading v Ong Soon Heng 

& Lim Kim Choon 134 , however, where Lai Siu Chiu J opined that where a 

party to a District Court Suit applies to transfer his claim to the High 

Court when his claim is $250,000 or less, he must first satisfy the court 

that the proceedings involve some important question of law, is a test 

134 [2003] SGHC 236


case, or for any other sufficient reason should be transferred up—but 

where his claim is over $250,000, he need not satisfy the court in respect 

of any of these factors. (It is submitted that this principle, though 

applicable to civil suits filed in the District Court, should not be 

applicable to ancillary matters proceedings in the Family Court, as this 

would render the Transfer Order and the Second Transfer Order 

nugatory.) 

226 If the court must be satisfied that the proceedings involve some 

important question of law, is a test case, or for any other sufficient 

reason should be transferred up, it is submitted that strong reasons (of the 

kind set out in Section 6.1(a)-(d) above) why the civil suit must be heard 

by the court dealing with the ancillary matters proceedings would satisfy 

the latter requirement, in the light of the fact that ancillary matters may 

not be transferred from the High Court to the District court, as the 

originating process was a petition (see Section 6.4.2.2(a) above). 

227 Paragraphs (b) and (c) of Section 6.4.2.3 above would be 

applicable to this scenario. 

6.4.3 Civil Suits filed in the Magistrate’s Court 

6.4.3.1 Ancillary matters pending in the High Court 

228 It is not possible to transfer ancillary matters pending in the High 

Court to the Magistrate’s Court (Section 37 SCA only gives the High 

Court the power to transfer matters to the District Court, and not the 

Magistrate’s Court. In any event, only proceedings commenced by a writ 

of summons may be transferred down to the District Court under Section 

37 SCA). Neither is it possible to transfer a Magistrate’s Court suit to the 

High Court. (See the case of Ong Pang Wee v Chiltern Park 

Development Pte Ltd, supra). Thus, in such a situation, at most, the 

parties may apply for one matter to be stayed until the other is heard. 

6.4.3.2 Ancillary matters pending in the Family Court 

229 The Transfer Order and the Second Transfer Order only gave 

jurisdiction to the District Court to hear divorce cases, but not the 

Magistrate’s Court. Therefore, it is not possible to transfer the ancillary 

matters pending in the Family Court to the Magistrate’s Court. Under 

Section 53 SCA 135 , the Magistrate’s Court may transfer matters to the 

135 

Section 53 (Transfer from Magistrates’ Courts to District Courts) states: 

A Magistrate’s Court may, either of its own motion or on the [continued next page]

304 


District Court. There are two conflicting High Court cases on whether 

the applicant must satisfy the requirement that there is an “important 

question of law or fact” to be decided before his case can be transferred 

to the District Court, or whether he need do so only if if the amount 

claimed in his case is below the current jurisdiction of a District Court. 

(See the High Court judgments in Tan Kok Ing v Tan Swee Meng & 

Others, Rightrac Trading v Ong Soon Heng & Lim Kim Choon and Seow 

Hock Ann and Chiltern Park Development Pte Ltd v Ong Pang Wee & 

Ors 136 ) 

230 The relevant procedural rule for the transfer of Magistrate’s 

Court matters to the Family Court would be Order 89 Rule 4 (Transfer of 

proceedings within the Subordinate Courts) of the Rules of Court. 137 

After the Magistrate’s Court matter is transferred to the Family Court, it 

may be ordered to be consolidated with, tried at the same time as, tried in 

immediate succession with, the ancillary matters, or an order for stay 

may be made under Order 4 Rule 1 of the Rules of Court. 

7 Conclusion 

231 When the 3 rd party issue rears its head, should the husband or 

wife in the divorce proceedings force the 3 rd party to join the ancillary 

matters proceedings as a party Should they even notify him about the 

proceedings, or should they allow him to live in blissful ignorance 

232 Should the 3 rd party ‘start his own fight, join in the fray, speak 

from the sidelines’, or try to live ‘in blissful ignorance’ When the 

deputy registrar at the ancillary pre-trial conference or the judge hearing 

the ancillary matters realises that there is a 3 rd party issue, should she 

order the 3 rd party to be notified of the proceedings, or acquiesce in the 

136 

137 

A Magistrate’s Court may, either of its own motion or on the application of a party 

to an action, transfer the action to a District Court on the ground that some 

important question of law or fact is likely to arise. 

[2003] 1 SLR 657; [2003] SGHC 236; and [2002] 4 SLR 79, at para 38, 

respectively. 

Order 89 Rule 4 states: 

(1) Where a Subordinate Court is satisfied that any proceedings in that Court ought 

to be tried in some other Subordinate Court, it may order the proceedings to be 

transferred to the other Court. 

(2) Any order under paragraph (1) may be made by the Court on its own motion or 

on the application by summons of any party to the proceedings. 

(3) Where an order under paragraph (1) is made by the Court on its own motion, 

the Registrar must give notice of the transfer to every party to the proceedings.


husband and wife’s decision to allow him to live ‘in blissful ignorance’ 

Should she go further, and make him a party to the proceedings 

233 As this article has shown, the answers to these questions for each 

of these players will vary, depending on a host of factors. It is submitted 

that the most important factor would be what orders (if any) are being 

sought against the 3 rd party by the husband and/or the wife. 

234 It is therefore vital that the divorcing husband and wife look out 

for, and crystallise, the 3 rd party issues as early as possible, so that all 

parties—the 3 rd party and the court included—can formulate their 

respective strategies for dealing with these issues well before the 

ancillary matters hearing date. This would ensure that the conduct of the 

action will be cost-effective and expedient in respect of all parties, and 

the 3 rd party’s level of involvement in the same will be in accordance 

with the interests of justice. 

LIM HUI MIN ∗ 

∗ BA (Oxon.), BCL, District Judge, Family and Juvenile Court. The views expressed are 

my own and do not necessarily reflect the views of the Subordinate Courts, Singapore.

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