View Article - Singapore Academy of Law

More documents

Recommendations

Info

232 Singapore Academy of Law Journal (2003) 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 unreported, Divorce Petition No 1307 of 1995 Ibid, per Lai Siu Chiu J, at para 27.
15 SAcLJ Matrimonial Assets and the 3 rd Party 233 $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 unreported, Divorce Petition No 3777 of 2000 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.
Page 1 and 2: 15 SAcLJ Matrimonial Assets and the
Page 13: 15 SAcLJ Matrimonial Assets and the
Page 65 and 66:
15 SAcLJ Matrimonial Assets and the
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73 and 74:
Page 75 and 76:
Page 77 and 78:
Page 79 and 80:
Page 81 and 82:
Page 83 and 84:
Page 85 and 86:
Page 87:
show all

View Article - Singapore Academy of Law

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?