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246 Singapore Academy of Law Journal (2003) 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
15 SAcLJ Matrimonial Assets and the 3 rd Party 247 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.
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