Written by Chris Ng Shuet Yee
Case Facts
18 years after the divorce decree had been made absolute, Leong Yee Heim (‘the Respondent’), the husband filed a Form 13 notice indicating his intention to proceed with an application for ancillary relief that he had filed at the time of the petition for divorce. The application was with regards to the division of two landed properties between the parties. By virtue of a consent order entered at the time of the divorce, the parties had agreed to defer this application to a later date. The court granted the order of division of properties after hearing the parties. Ng Yuet Mooi (‘the Appellant’), the wife appealed to the Court of Appeal.
Issue of Law
The issue before the court was: if there was a consensual term to defer the division of the matrimonial assets to a date to be fixed renders or preserves, would the matter of division of assets still be available for consideration by the court under Section 76 (1) of the Law Reform (Marriage and Divorce) Act 1976 (‘LRA’) after the decree had been made absolute?
Appellant’s Argument
The court has no jurisdiction to grant the orders sought by the respondent under s. 76 of LRA. The counsel submits that any order on the distribution of matrimonial assets must be made when granting the decree of divorce, and not after.
Respondent’s Argument
Both parties had agreed to defer the division of assets to a date in the future. The respondent further urged this court to apply a liberal interpretation when dealing with the LRA since it is a piece of social legislation.
Decision of the court
The appeal is allowed. The court ruled that any consensual agreement to defer the division of assets to a later date does not mean that it is open to the parties involved to approach the court, as and when they please. An application made 18 years after is far from being reasonable and cannot be entertained by the court as of right.
Reasoning
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In s. 76 of LRA it is clearly provided that the power of the Court to make an order for the division of matrimonial assets can only be exercised when granting decree of divorce and at no later stage. The court’s power and jurisdiction to make ancillary reliefs under s. 76(1) is premised on the divorce petition and is part of the orders granted towards achieving a clean break for the parties, that they and their offspring, may each make a new life.
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Where the court’s powers on the division of assets under s. 76(1) was invoked in the petition or in a response, or where it was not but leave had been sought. In both instances, some interim direction or order on the matrimonial assets had been made at the time of grant of the decree nisi, that the division of assets was postponed to some later date. The court in these cases retains jurisdiction under s. 76(1) to hear and make an appropriate and final order on the division of any matrimonial assets, even after the decree nisi has been made absolute.
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Even if there is any consensual agreement to defer the division of assets to a later date, it does not mean that it is open to the parties to appear to the court as and when they please. An application for division of assets must be made within a reasonable time from when the decree absolute took effect, failure to do so within reasonable time will open such applications to challenges on grounds of delay, unwarranted delay, laches, estoppel, limitation by statute, or even abuse of process; all of which are raised in this appeal.
Supporting Case
Manokaram Subramaniam v. Ranjit Kaur Nata Singh
The Federal Court ruled that leave of the Court cannot be granted to a party in a petition to proceed with a claim for property division under s. 76 and/or under any provision of the LRA after decree nisi has been made absolute. Any application for an order for ancillary relief must be made before the decree nisi is made absolute. The only latitude given by s. 76, without violating the clear and express terms of s. 76 is where there was no application for such order of division either in the petition or answer to the petition, but before the decree is made absolute, an application for such order is made and even then, it is with leave of the court. Once the decree is made absolute, the order is final and there is no power under s. 76 to grant any such order.
Conclusion
In conclusion, by the clear wording of s.76 of LRA, the court only has power to order for division of matrimonial assets at the time when granting decree of divorce. Even if there is a consensual agreement to defer the matter of division, it must be made in a reasonable time.