Case Update: VGF v VGE [2020] SGFC 22 - Successful enforcement of maintenance arrears for ex-wife
Written by Arthur Chin
In VGF v VGE [2020] SGFC 22, our Managing Director Mr Lee Ee Yang acted for the successful Complainant. In this case, the District Judge granted judgment to the Complainant for her claim for maintenance arrears in the sum of $96,000 due and owing. The Respondent resisted the Complainant’s claim for arrears on three grounds, but each ground was rejected by the District Judge. The District Judge’s decision was upheld on appeal by the High Court. We highlight some of the salient facts and issues below.
Material Facts
The Complainant commenced divorce proceedings against the Respondent back in 2010. Subsequently in 2012, both parties entered into a consent order of court in full and final settlement of the ancillary matters of the divorce (the “AM Order”).
Pursuant to the AM Order, the Respondent agreed to pay the Complainant the sum of $240,000 as a lump sum maintenance in the following terms:
S$2,000.00 per month into the Complainant’s bank account with effect from 15th March 2012 on a monthly basis (“Clause 2(a)”); and
Upon the date of completion of the sale of the company known as Toyo Packaging Industries Pte Ltd, the Respondent was to pay the Complainant in one lump sum the balance remaining of the said sum of S$240,000.00 provided always that within five (5) years from the date of the AM Order the entire sum of S$240,000.00 shall be paid to the Complainant irrespective of whether the company is sold. (“Clause 2(b)”)
Given that the Respondent remained in arrears of $96,000 pursuant to the AM Order, this formed the basis of the Complainant’s enforcement of maintenance application in MSS 860.
Issues before the Court
The primary issue before the learned District Judge Mr Goh Kiat Yi (the “Judge”) was whether the Complainant is entitled to an enforcement of maintenance arrears amounting to the sum of S$96,000 against the Respondent. To this end, the following sub-issues arose for the Judge’s consideration:
The amount of arrears as the Respondent claimed to have made cash payments;
Whether the Respondent had paid the Complainant the sum of $120,000 through their son (the “Son”); and
Whether the Complainant claims are time-barred under Section 121 of the Women’s Charter (“WC”).
In finding for the Complainant, The Judge granted MSS 860 and issued EMO 1539/2019 that the Respondent is to pay the Complainant the arrears of $96,000.00. We will consider each of the sub-issues in turn below.
Whether the Respondent made cash payments to the Complainant
On this issue, the Judge held that the Respondent had failed to discharge the burden of proof that he had made cash payments to the Complainant.
The Respondent claimed that he had made payments by cash in those months where monies were not deposited into the bank account. The Judge disagreed with his case for several reasons.
First, there was no supporting evidence to show that he had made cash payments to the Son nor that he had instructed the Son to transfer the said sums to the mother (the Complainant).
Second, even if the Respondent had made cash payments to the Complainant through the Son, the Respondent himself also acknowledged that the Son had no authority to accept the payments.
Thirdly, the Respondent’s evidence was also unsatisfactory. At trial, the Respondent raised the fact that he had paid cash due to the fact that there were insufficient funds in his account leading to the unsuccessful GIRO deductions. However, these assertions were not raised in his affidavits. By raising such an argument only at trial, the Respondent’s evidence appeared to be an afterthought more than a material assertion.
On the contrary, the Judge found both the Son and the Complainant to be credible and truthful witnesses in showing that the sum of $96,000 was not paid by the Respondent. Although the Respondent claimed that the Complainant had misled the court about the actual amounts which she had received, the Judge opined that this was in part an admission from the Respondent that he was in arrears. Even if there were some inconsistencies in the tabulation of the arrears, the Judge accepted the Complainant’s position that she had not been keeping a detailed tabulation of the arrears all the time.
Whether the Respondent’s payment of $120,000 is a gift for the Son or for the Complainant’s maintenance
The second issue concerned whether the sum of $120,000 which was transferred from the Respondent to the Son in 2016 should have been onforwarded to the Complainant as part of her maintenance under the AM Order. The Judge held that the Respondent had failed to discharge the burden of proof that the sum of $120,000 was given to the Son for the purposes of fulfilling the AM Order.
The Judge opined that given that this was a significantly larger sum as compared to the monthly quantum of $2,000 in cash under the AM Order, there ought to be some form of communication to confirm the purposes of the said sum. However, there was no evidence, receipt nor verification from the Respondent that the sum was for the purposes of maintenance under the AM Order.
Furthermore, the Judge took issues with the Respondent’s actions after he had transferred the sum of $120,000 to the Son. As the Judge rightly pointed out, if the $120,000 was truly for satisfying the Complainant’s maintenance, then the Respondent would have fulfilled his obligations in 9 months or so after the full payment. The logical conclusion would be that the Respondent would stop paying the Complainant the monthly sum of $2,000 once the obligations are fulfilled. However, it was not disputed that the Respondent continued to pay the Complainant until December 2018.
Next, the Respondent’s argument that he had paid the sum into the Son’s account instead of directly to the Complainant due to lower banking charges was rejected by the Judge on the basis that it was only raised belatedly at trial. Moreover, the Respondent’s position at trial also contradicted his own affidavit evidence where he said that he only made payment to the Son as he was not on talking terms with the Complainant during that period.
To this end, the Judge rightly pointed out that the Respondent had conceded that the Son had no authority to accept the $120,000 as maintenance. Thus, the Respondent continued to be in arrears of the $96,000 under the AM Order.
Whether the Complainant’s claims are time-barred under Section 121(3) of the WC
The final issue concerns the Respondent’s defence that the Complainant’s claims are time barred under Section 121 of the WC.
Section 121(3) of the WC reads:-
(3) No amount owing as maintenance shall be recoverable in any suit if it accrued due more than 3 years before the institution of the suit unless the court, under special circumstances, otherwise allows.
The Judge accepted the Complainant’s submissions that her claim was not time barred as they would only run after the long stop date in Clause 2(b) [See paragraph 3b above]. The Judge held that Clause 2(b) is a catch-all clause which acts as a reference point of time for both parties that whatever balance of the lump sum of $240,000 would have to be paid by 5 years of the court order, i.e. by March 2017. Clause 2 of the AM Order is in substance a lump sum maintenance order and not a periodic maintenance and the proviso under Clause 2(b) contemplates that this entire lump sum shall be paid by 5 years.
Although the Respondent claimed that the sale of his company was completed on 24 March 2015 and the three years should run from that date, the Judge did not find any clear evidence that this was the case. Taking the only clear date on evidence to be 4 April 2016 when the company was struck off, the Judge held that the Complainant’s complain on 7 March 2019 was still within the 3 years and would be enforceable.
Notwithstanding the above, the Judge then considered if there were any special circumstances which would allow the court to allow the Complainant’s claim should he err in finding that the claim was not time barred. The Judge concluded that there were indeed special circumstances in the present case which would allow the court to find that the claim should be admitted even if it was time barred.
Notably, it is Parliament’s intention to allow a wife special circumstances to claim for maintenance arrears notwithstanding the claim being time barred as a wife may have genuine reasons not to apply for recovery of arrears before the expiry of three years. In the High Court decision of Koay Guat Kooi (m w) v Eddie Yeo (formerly known as Yap Ah Huat alias Yeo Ah Nee) [1997] SGHC 197, the court held that special circumstances do not mean exceptional circumstances nor unusual circumstances. The circumstances must simply be sufficiently persuasive in themselves that to ignore them would do great injustice to the wife. For example, the Judge in this case held that such a special circumstance can occur where the wife tried to contact the husband, but the husband had been evading contact.
The Judge found that there were special circumstances for the following reasons. First, although the full outstanding amount should have been fully paid by 15 March 2015 or by 4 April 2016 when the Respondent’s company was struck off, or in any event latest by 13 March 2017 which was 5 years after the AM Order, this was not done. Instead, the Respondent continued to pay the Complainant the $2,000 pursuant to Clause 2(a) of the AM Order. This is evident from the Complainant’s messages to the Respondent asking him for the lump sum repayment and also that the Respondent’s failure to repay on time was due to him repaying his own housing mortgage.
Secondly, the Respondent had been paying the sum of $2,000 to the Complainant. It was only in February 2019 when the Respondent represented to her that he would stop paying anymore maintenance that prompted the Complainant to seek the court’s assistance to enforce full payment of the arrears. Thus, the Judge accepted that although this as not a case that the Respondent was uncontactable, the Complainant’s present claim is understandable because his continued payment acted as an acknowledgment of his arrears due and owing.