The Singapore Law Gazette

Dishonest Spouses Beware: Developments in the Law on Fraudulent Non-Disclosure in Matrimonial Proceedings

What is the effect of dishonest non-disclosure on the validity of a matrimonial consent order? How, if at all, would an agreement to compromise the non-disclosure have an impact on such validity? The illuminating perspectives proffered by the High Court and Court of Appeal in BMI v BMJ [2017] SGHC 112 and BMI v BMJ [2017] SGCA 63 provide fertile ground on which to evaluate the foundational aims of a matrimonial consent order, the weight that should be placed on any existing settlement agreement, and the differences between a matrimonial consent order and civil consent order. This article will analyse the strength of the views expressed by the Singapore Courts against the backdrop of two recent UK Supreme Court decisions, Sharland v Sharland [2015] UKSC 60 and Gohil v Gohil (No. 2) [2016] AC 849. 

Introduction

The decision in BMI v BMJ [2017] SGHC 112, which was affirmed on appeal in BMI v BMJ [2017] SGCA 63, marks a watershed development in matrimonial law (both decisions would be collectively referred to as BMI). It establishes the principle that an ex-spouse who has been the victim of fraudulent non-disclosure during divorce proceedings would have the right to set aside the existing divorce settlement any time after it was made. It joins the chorus of two recent decisions handed down by the Supreme Court of United Kingdom, Sharland v Sharland (Sharland),¹ [2015] UKSC 60. and Gohil v Gohil (No 2) (Gohil),² [2016] AC 849. where the Courts allowed the application of two ex‑wives to re-open their divorce settlements, which were made more than a decade ago, on the grounds of their ex-husbands’ dishonest non-disclosure. Sharland and Gohil were the subjects of widespread media attention in the English press, being hailed as an “incredibly significant ruling” and “a victory for common sense and a defeat for dishonesty”.³ See “Divorce Ruling: Alison Sharland and Varsha Gohil Win Appeal” (BBC World News, 14 October 2015); see also “Women Get Right to Reopen Divorce Settlements after Supreme Court Ruling” (The Guardian, 14 October 2015).

Issues relating to the threshold for fraudulent non-disclosure, the effect of compromising a claim in fraudulent non-disclosure and the relevance of delay in bringing such a claim were central to the decision in BMI. Both the High Court and Court of Appeal were unanimous in its conclusion that “fraud unravels all”, and that neither a compromise agreement nor delay would act as a bar to an application to set aside an existing divorce settlement. In so holding, the High Court and the Court of Appeal emphasised that the duty of full and frank disclosure was a fundamental tenet of the Court’s just and equitable jurisdiction in matrimonial matters. Therefore, any material breach of this duty would not be tolerated, as it would severely undermine the Court’s ability to fairly assess and protect the interests of the divorcing parties.

This article seeks to analyse the decision in BMI, highlight important developments in the law and draw attention to several issues where further clarification and judicial guidance would be desired.

Background to the Proceedings

The proceedings in BMI, which commenced in 2016, arose from the wife’s application to set aside a consent order that recorded a settlement deed concluded between the husband and wife during the proceedings for ancillary matters that followed upon their divorce. The divorce proceedings, which concluded in 1990, involved a short marriage that lasted for a relatively brief duration of five years, during which the parties had two children together.

Throughout the divorce proceedings and the hearing of the ancillary matters, the wife alleged that the husband was guilty of failing to make full and frank disclosure of his assets, by either hiding these assets or holding them through nominees. After divorce proceedings concluded and orders were made for the children, the parties entered into settlement negotiations regarding the issues of maintenance and division of matrimonial assets. The negotiations were facilitated by the trial judge, and the terms of the settlement deed dated 30 June 2000 were eventually recorded in a consent order.

Under the terms of the settlement deed, the parties agreed that the husband would pay the wife approximately $13 million in ten instalments over a period of about four years, as full and final settlement of the wife’s claim to the division of matrimonial assets. The settlement would also extend to any further claims arising in relation to the divorce proceedings and all other outstanding litigation and ancillary issues between the husband and wife. In accordance with the settlement terms, the husband fully discharged his obligations and made payment of the agreed sum of $13 million to the wife.

The Wife’s Application to Set Aside the Consent Order

In mid-2016, the wife applied to set aside the consent order on the grounds of the husband’s fraudulent non-disclosure. She relied on section 112(4) of the Women’s Charter (WC), which provides as follows:⁴BMI v BMJ [2017] SGHC 112 at [8].

The court may, at any time it thinks fit, extend, vary, revoke or discharge any order made under this section, and may vary any term or condition upon or subject to which any such order has been made. [Emphasis added]

Based on the literal wording of section 112(4) of the WC, the wife argued that the Court had the power to set aside a consent order at any time, and would be able to do so regardless of the amount of time that had elapsed since the consent order was made.

The wife contended that during the 16 years that had passed since the making of the consent order, she discovered evidence revealing that the husband’s asset pool was substantially wider than what he had disclosed during the divorce proceedings.⁵Ibid at [26]. She referred to the findings of two past judgments that were handed down in 2010 and 2016 respectively, involving law suits which the husband had either been a party to or played a significant role in. The wife submitted that the Judge’s findings constituted evidence that the husband had hidden investments which were not disclosed to the wife and had also channelled assets through his business partners in order to hide them from the wife during the divorce proceedings.

Further, the wife also relied on a variety of newspaper reports from sources such as The Sunday Times, Forbes, The Straits Times etc, as evidence that the husband had made several major investments and held interests in various companies that were worth millions of dollars, all of which were not disclosed during the divorce proceedings.

The Husband’s Resistance of the Wife’s Application

The husband resisted the wife’s application on the following grounds.

First, the husband disputed the wife’s claims of non-disclosure against him on the basis that the evidence she relied on was not conclusive of any finding of fraudulent non‑disclosure. He argued further that even if she managed to establish her claim for fraud, the consent order should not be set aside as the Court would not make an order that was substantially different from the existing order even after taking the non‑disclosure into account.⁶Ibid at [46]. The amount of $13 million that was awarded to the wife under the settlement deed had already significantly exceeded the division ratio that would typically be awarded in short marriages of a similar duration to the parties’ marriage.

Second, the husband submitted that as the settlement deed recorded in the consent order represented a full and final settlement of all outstanding and future litigation between the parties, the wife’s claims of fraudulent non-disclosure had already been compromised under the settlement deed. The proceedings were merely her attempt at a “second bite of the cherry” and amounted to an abuse of process. In support of his contention, the husband relied on the principle commonly invoked in contractual settlement agreements that “a party cannot compromise a claim for non-disclosure and then later revive the underlying claim which has been compromised”.⁷Ibid at [21].

Further, the significant delay with which the wife’s application was brought would cause “irreparable prejudice” to the husband if the application was allowed. Not only was there a paucity of available evidence relating to her application due to the 16 years that had lapsed since the recording of the consent order, the settlement deed had been fully implemented, and the husband has since moved on with his life.⁸Ibid at [22].

The Decision of the High Court and Court of Appeal

Before the High Court, the wife’s application was dismissed on the grounds that there was insufficient evidence to ground a claim in fraud. The decision of the High Court was affirmed by the Court of Appeal, which expressed agreement with the guiding principles that were laid down by the High Court (both the High Court and Court of Appeal decisions would be collectively referred to as the Court).

The Threshold for Fraudulent Non-Disclosure and the Dismissal of the Wife’s Claim

In relation to the threshold for fraudulent non-disclosure, the Court emphasised that the threshold for fraud is a high one, and would ordinarily only be found after the claims have been the subject of cross-examination at trial.⁹Ibid at [29]; see also BMI v BMJ [2017] SGCA 63 at [5]. The High Court accepted the analogy drawn by the husband with the test for fraudulent misrepresentation that was laid down in Wee Chiaw Sek Anna v Ng Li-Ann Genevieve (sole executrix of the estate of Ng Hock Seng, deceased) and another.¹⁰ [2013] 3 SLR 801. Using the test for fraudulent misrepresentation as a benchmark, the Court held that in order to ground a claim in fraudulent disclosure, the burden would lie on the party alleging fraud to show, based on the available and admissible evidence, that the non-disclosure was both deliberate and dishonest.

If the party alleging fraud manages to establish fraudulent non-disclosure, the burden then shifts to the perpetrator of the fraud to prove that the non-disclosure was not material.¹¹BMI v BMJ [2017] SGHC 112 at [46]. The High Court reiterated the holding in Livesey v Jenkins (Livesey),¹² [1985] AC 424. which was also endorsed by the Court of Appeal in AOO v AON (AOO):¹³ [2011] 4 SLR 1169; see also BMI v BMJ [2017] SGHC 112 at [45].

“It is not every failure of full and frank disclosure which would justify a court in setting aside an order of the kind concerned in this appeal. On the contrary, it will only be in cases when the absence of full and frank disclosure has led to the court making either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case for setting aside can possibly be made good.” [Emphasis added]

Therefore, if the non-disclosure was not material and would not lead to the making of a substantially different order, the existing order would not be set aside.

Applying the test for fraudulent non-disclosure to the facts of the case, the Court dismissed the wife’s application on the basis that she had failed to adduce sufficient and cogent evidence to establish the high threshold for fraud.¹⁴BMI v BMJ [2017] SGHC 112 at [44]; BMI v BMJ [2017] SGCA 63 at [10]. The evidence relied on by the wife, which comprised mostly newspaper reports, past judgments, and inferences drawn from these sources, could not be relied to show a probable or conclusive finding of dishonesty on the part of the husband. These sources established, at best, “mere suspicions” of the husband’s dishonesty.

The Court also agreed with the husband’s submission that even if the wife could successfully establish fraudulent non-disclosure, the requirement of materiality would not be fulfilled, as the Court would not have made an order that was substantially different from the existing order even if the non-disclosure was taken into account.¹⁵BMI v BMJ [2017] SGHC 112 at [52]; BMI v BMJ [2017] SGCA 63 at [11].

Compromise Agreement on Fraud had no Legal Effect

Notwithstanding that the wife’s claim was dismissed due to the paucity of evidence, the Court went on to lay down important principles in relation to the remaining issues that were raised in the husband’s submissions.

The Court rejected the husband’s submission that the wife’s claim was barred on the basis that she had compromised her claims for non-disclosure under the settlement deed. It held that the wife did not compromise her claims on fraudulent non-disclosure under the settlement deed as the law did not contemplate her ability to do so.¹⁶BMI v BMJ [2017] SGHC 112 at [12]; BMI v BMJ [2017] SGCA 63 at [7]. Therefore, the Court had the power to set aside the consent order despite the fact that issues of non-disclosure had already been the subject of an extensive trial, detailed negotiations between the parties, and were compromised in a settlement deed that purported to represent a full and final settlement of existing and future litigation.

An important rationale underlying the Court’s decision on compromise was the distinction it drew between matrimonial orders and civil orders. It expressed agreement with the decision of Lady Hale in Sharland on the key differences between a matrimonial order and civil order.¹⁷Sharland v Sharland [2015] UKSC 60 at [27]. While a civil order, such as one based on a compromise agreement, derives its legal effect from the agreement made between the parties, the authority of a consent order in the matrimonial context is drawn from the court order itself.¹⁸BMI v BMJ [2017] SGHC 112 at [18].

By reason of this difference, an act of fraudulent non-disclosure by either party to the consent order not only vitiates the reality of the parties’ consent, as the innocent party’s consent would have been informed by a false premise, but also “undermines the court’s ability to exercise its powers as the final arbiter as to the appropriateness of the arrangements agreed upon”.¹⁹Ibid at [19]

The Significance of Delay

With respect to the significance of the 16 year period that had lapsed since the making of the consent order, the Court agreed with the wife’s submission that the defence of laches would not operate as a bar to her application to set aside a consent order, in line with a literal reading of section 112(4) of the WC.²⁰Ibid at [22]–[23]; BMI v BMJ [2017] SGCA 63 at [5]–[6]. It applied the decision in Teh Siew Hua v Tan Kim Chiong (Teh Siew Hua),²¹ [2010] 4 SLR 123. where the High Court held that the equitable defences of laches and acquiescence would not apply to an application under section 112(4) of the WC as it was a statutory remedy. The Court also found that the husband failed to show that he had suffered prejudice due to the delay.

Commentary

A Salutary Warning

The decisions of the High Court and the Court of Appeal have provided much-needed clarity on the consequences of fraudulent non-disclosure in the context of setting aside a consent order. It sends a stern reminder to divorcing spouses of the importance of the duty to give full and frank disclosure to the Court, and warns that any party who willfully misleads the Court may risk the possibility that the entire settlement would be re-opened at any time after the consent order is made.

In both the judgments of the High Court and Court of Appeal, the Court also relied on the English decisions of Sharland and Gohil, which involved highly similar issues. Sharland involved an application by the wife to set aside the consent order on the grounds that the husband had failed to disclose that there were plans for an initial public offering of a software company of which he had a substantial shareholding. These plans, if disclosed, would have resulted in a significantly higher valuation for the company than the value that was used during settlement negotiations between the parties. In Gohil, the husband had only disclosed a modest asset pool that was not reflective of the actual pool of assets he had access to. The Supreme Court allowed the wife’s application to set aside the consent order in both cases on the grounds of the husband’s fraudulent non-disclosure. The decision in BMI therefore brings the position in Singapore in line with the English position.

The Key Differences between Matrimonial Orders and Civil Orders

A critical point that was consistently emphasised in the decisions of BMI, Sharland and Gohil was the importance of distinguishing matrimonial orders from civil orders, and the principles underlying these two distinct types of orders. What are the key characteristics of a matrimonial consent order, and how does it differ from a civil order? Following the decisions in BMI,Sharland and Gohil, this section discusses some of these differences in the context of fraud.

Fundamentally, the Court’s differential treatment of civil and matrimonial consent orders is premised on the contrasting aims of both types of order. A civil consent order seeks to give legal effect to the intention of the parties as expressed in the terms of the settlement agreement, so as to uphold the principle of freedom of contract, which undergirds contractual agreements more generally. On the other hand, in respect of a matrimonial consent order, the Court does not merely acts as a rubber stamp, but as a final arbiter of the terms of the consent order, in order to ensure a just and equitable division between the parties under section 112(1) of the WC.²²BMI v BMJ [2017] SGHC 112 at [19]. In doing so, the Court has the duty to have regard to all the circumstances of the case, and any existing settlement agreement between the parties would merely be one of several factors that may influence the Court’s decision.²³ See section 112(2)(e) of the Women’s Charter. In Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur,²⁴ [2014] 3 SLR 1284.the Court held that it would examine the precise circumstances of the case before deciding on the weight to be accorded to any existing settlement agreement – in circumstances where parties have freely and voluntarily, with the benefit of proper legal advice, arrived at a formal settlement agreement, the Court would generally attach significant weight to the agreement unless there are substantial grounds to show that it would be unjust to do so.²⁵Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur [2014] 3 SLR 1284 at [54]–[57]. The duty of divorcing parties to give full and frank disclosure during settlement negotiations leading up to a consent order is therefore paramount; should parties breach this duty by failing to disclose all the relevant information to the Court, the Court would be impeded in its ability of assessing whether the terms of the consent order have fulfilled the statutory aim of ensuring just and equitable division between the parties.

This distinction is sound in principle and justifiable on the basis of the public interest. More broadly, the Court’s role in divorce proceedings stems not only from the need to ensure justice and fairness, but also to safeguard the public interest – in the absence of judicial supervision, vulnerable spouses may be pressured or unduly influenced into acceding to a bad bargain. This may in turn yield undesirable consequences where, for instance, insufficient financial provision is available for dependent family members.²⁶Sharland v Sharland [2015] UKSC 60 at [18].

Fraud provides a particularly apt example of the law’s differential treatment of civil and matrimonial consent orders. As a starting point, similar remedial options are available to parties who have been victims of fraudulent misrepresentation in contract and of fraudulent non-disclosure in the matrimonial context. The conventional position is that a party who has been the victim of fraudulent misrepresentation would be entitled to rescind the contract. In respect of a claim for fraud, the Court is likely to uphold the victim’s right to rescind even if restitutio in integrum is unlikely to be achieved, (ie, parties may not be completely restored to their original position before the contract).²⁷The Law of Contract of Singapore (Academy Publishing, 2012) at [11.143]–[11.145]; see also Spence v Crawford [1939] 3 All ER 271 at 288–289. Similarly, in the matrimonial context, a victim of fraudulent non‑disclosure would be able to set aside the consent order in its entirety as long as the non-disclosure was material.

The available remedial options in both the contractual and matrimonial contexts diverge where the consent order contains a recital that a victim has agreed to compromise his claims in respect of the fraudulent act in order to achieve finality. If a contracting party agrees to compromise his claims for fraudulent misrepresentation in a subsequent settlement agreement or a civil consent order, the Court would uphold the compromise agreement and he would no longer be able to revive the original claim for fraud. However, any agreement by a divorcing spouse to compromise his claims for fraudulent non-disclosure would not be legally enforceable. A compromise agreement would not be able to absolve a perpetrator of the fraud from acting in breach his duty to give full and drank disclosure to the Court.

Another significant difference arises from the varying consequences that ensue from a delay in bringing the claim or an act of affirmation by the victim. According to sections 29(1)(a)–29(1)(b) of the Limitation Act, a contracting party who has been a victim of fraud would have six years to bring his claim from the time at which he discovers the fraudulent act. However, before the six-year period has passed, his claim would not be prejudiced by any delay through mere lapse of time, unless there is evidence of his intention to affirm the fraudulent act.²⁸The Law of Contract of Singapore (Academy Publishing, 2012) at [11.152]; see also Clough v London and North Western Railway Co (1871) LR 7 Exch 26 at 34–35. Once the victim has affirmed the fraudulent act, he would no longer be entitled to rescind the contract.

The consequences of delay and affirmation are different, however, for a divorcing spouse who has been a victim of fraudulent non-disclosure. Based on the holding in BMI and the earlier decision of Teh Siew Hua, neither delay nor affirmation would be a bar to the victim’s claim brought under the statutory remedy in section 112(4) of the WC. Even if the victim has engaged in any act of affirming the contract, he would not lose his right to set aside the consent order.

The key differences between matrimonial and civil orders also bears upon the requirements that have to be fulfilled when a party wishes to adduce new evidence in respect of a claim in fraud either on appeal or after judgment has been passed. In a civil claim, the burden lies on the party seeking to admit further evidence to show that the evidence satisfies the criteria propounded in Ladd v Marshall,²⁹ [1954] 3 All ER 745. namely, that the evidence must not have been obtainable by reasonable diligence at trial, must be credible and was likely to have an important impact on the decision. By contrast, in Gohil, the Court held that the principles in Ladd v Marshall would not be applicable in the context of a matrimonial claim. Unlike a judgment in a civil claim, the basis of an application to set aside a consent order arises from the fraudster’s breach of his duty to give full and frank disclosure to the Court.³⁰Gohil v Gohil [2015] UKSC 51. The burden does not lie on the victim, but the perpetrator of the fraud, to adduce all the relevant evidence of his matrimonial assets during the divorce proceedings. As the Court continues to have jurisdiction over a divorce even after proceedings have concluded, the victim retains the right to put forth evidence at any time after an order or judgment has been concluded. This is distinct from a civil claim, where the Court no longer has jurisdiction after a final order or judgment has been handed down.

While this aspect of the decision in Gohil was not discussed in BMI, based on the principles behind the decision in BMI, it is highly likely that the Court would also adopt a similar approach.

Question Awaiting Future Judicial Guidance

As much as the decision in BMI has provided important clarification on the law on fraudulent non-disclosure in matrimonial law, it also raises the following questions on the applicability of the test for fraudulent non-disclosure and the availability of equitable defences:

1. Under what circumstances would an order be regarded as being “substantially different” from the existing order that was made in the absence of non-disclosure?

In AOO, the Court warned that, “Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications summarily dismissed …”³¹AOO v AON [2011] 4 SLR 1169 at [17]. [Emphasis added.]

This underscores the judicial insistence that parties should refrain from bringing claims that are unlikely to result in a material difference to the existing order. While this approach may be justified on principle, in practice, the line between non-disclosure of a “relatively minor matter” and one that may result in a “substantial difference” may not always be clear in practice – for instance, it is unclear whether the financial background of the parties would be relevant to the Court’s assessment of whether an order would be substantially different in the absence of non-disclosure, or whether the non-financial consequences that accompany the making of a different order would form part of the Court’s consideration.

It is hoped that future decisions on the subject would provide more definitive guidance on the criteria by which the Court would rely on in assessing whether the non-disclosure would be material.

2. To what extent are equitable defences applicable to an application under section 112(4) of the WC?

As stated in an earlier part of this article, the Court in BMI affirmed the ruling in Teh Siew Hua that the equitable defences of laches and acquiescence would not defeat an application under the section 112(4) of the WC.³²BMI v BMJ [2017] SGCA 63 at [6]. Be that as it may, a closer reading of Teh Siew Hua reveals that a defendant may still have recourse to these defences if he has suffered unjust prejudice as a result of the plaintiff’s actions.³³Teh Siew Hua v Tan Kim Chiong [2010] 4 SLR 123 at [47]. This suggests that acts of delay or affirmation are not fully inapplicable and may nevertheless remain relevant considerations, thereby leaving considerable uncertainty on the significance of such acts where the defendant has suffered prejudice.

Further, another issue that was not discussed was whether other forms of equitable relief such as waiver, unconscionability, and the doctrine of unclean hands would be relevant to an application under section 112(4) of the WC. Clarification on the significance of these equitable defences would also be needed.

3. How differently would claims grounded on other forms non-disclosure, such as innocent and negligent non-disclosure, be treated?

Apart from ruling on the requirements for a claim in fraudulent non-disclosure, neither the High Court nor the Court of Appeal in BMI discussed the requirements of other forms of non-disclosure, such as innocent or negligent non‑disclosure. Based on the English position that was established in Livesey, a claim for innocent non-disclosure would differ from a claim in fraudulent non‑disclosure in that the victim would have to bear the burden of proving both the non-disclosure and the requirement of materiality.³⁴ The burden of proof for a claim in fraudulent non-disclosure is detailed in paragraph V(i) above. It remains unclear if the Singapore Courts would adopt a position similar to Livesey.

Conclusion

BMI is a decision that symbolizes a heightened awareness of the need for legal protection for the financially weak and emotionally vulnerable spouse in divorce proceedings, and would continue to influence and shape the development of the law on non-disclosure and section 112(4) of the WC. The Court’s willingness to undertake the unenviable task of weighing up the competing considerations of achieving finality to proceedings, according respect for the intention of the parties, upholding justice and ensuring fairness between the parties is indeed a commendable one. Following BMI, matrimonial lawyers must take care to reiterate the importance of the duty of full and frank disclosure when rendering advice to divorcing spouses, without which, finality to the proceedings may never be achieved.