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244
Singapore Academy of Law Journal (2003)
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