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282 Singapore Academy of Law Journal (2003) 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
15 SAcLJ Matrimonial Assets and the 3 rd Party 283 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
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