What is a Consent Order and can it be varied in limited and special circumstances?
A Consent Order is an Order of Court which records the terms that have been agreed to by the parties in concluding a matter or dispute.
However, the Women’s Charter allows the Court to vary the terms of a Consent Order in limited and special circumstances.
The principles relating to this area of law were applied in the case of Seah Kim Seng v Yick Sui Ping [2015] SGHC 150.
These are the brief facts of that case:
- The wife and husband agreed to record a Consent Order in 2002 which dealt with the division of matrimonial property. The wife was allowed to live at the matrimonial property rent-free but would have to pay for the utilities. The property would be sold only upon the parties’ agreement.
- The original order was drafted with the aim of effectively transferring the property from the husband to the wife without requiring the wife to refund the husband’s CPF monies. The husband had signed a Deed of Undertaking in 1995 in which he stated his intention to transfer the property to the wife, but the parties were ultimately unable to transfer the property because of the prevailing rules at that time under the CPF Act required the wife to refund his CPF monies (which she was unable to do).
- However, as subsequent amendments to the CPF Act in 2007 allowed such a transfer of the shares without refund of CPF monies, the wife applied to vary the Consent Order and transfer the property to her without having to refund the husband’s CPF monies
In allowing the Consent Order to be varied, the Court provided a number of useful explanations and observations:
- In view of the amendment to the CPF Act relating to the refund of CPF monies, it was no longer necessary for the parties to maintain the position stated in the Consent Order.
- The Court can only vary the Consent Order if the original order has become unworkable and any eventual variation would be limited to what is necessary to give effect to the core or spirit of the original agreement while accommodating the new or changed circumstances.
- As a consent judgment records an agreement between the parties which should only be disturbed by the Court if it was entered into on a wrong basis, consent orders are generally only varied in exceptional circumstances (e.g. a fundamental misunderstanding).
- Although the delay by a party in applying for a variation after the change in circumstances may not always be harmful, the Court will require a satisfactory explanation for such a delay before exercising its power to vary a Consent Order.
More information on the case may be found in the Grounds of Decision here.
