No obligation to disclose information before signing Deed of Separation
If you are signing a Deed of Separation, it is important to ensure that your spouse has disclosed all relevant information for your consideration before you sign it because you will not be able to rely on your spouse’s non-disclosure as a basis for setting aside the Deed.
The principles relating to this area of law were applied in the the case of ATZ v AUA  SGHC 161.
These are the brief facts of that case:
- The wife and husband married in 2007 and began to live apart in 2008
- They discussed and worked out the terms of their separation over 5 months with the help of lawyers on both sides and eventually signed a Deed of Separation in 2009
- The wife argued that the Deed should not be recognised (i.e. set aside) and claimed that the husband had unduly pressured or coerced her into signing the Deed
In upholding the Deed of Separation, the Court provided a number of useful explanations and observations:
- A Deed of Separation would generally only be set aside on the grounds of misrepresentation, mistake, undue influence, duress, unconscionability, as well as illegality and public policy.
- A party who has obtained independent legal advice is also less likely to have signed a Deed of Separation under undue influence, duress and unconscionability. This is because the existence of independent legal advice tends to provide a party with informed consent, which would undermine any claim of undue influence or duress.
- If a party had signed the Deed of Separation reluctantly because the party was still unhappy with certain terms of the Deed but did not have the energy or money to challenge the spouse, that party cannot subsequently claim that the spouse had pressured or coerced the party to sign the Deed because the fact of the matter is that the party could have chosen not to sign the Deed if the spouse’s proposals were unacceptable.
- There is no general obligation of disclosure on parties then they are discussing or negotiating a Deed of Separation even when a party is aware that certain undisclosed information would influence the decision of the other party.
- However, the Court may give less weight to a Deed of Separation if it is shown that a party’s non-disclosure led to a less than fair division of the matrimonial property.
- There is no pre-contractual obligation on the part of parties negotiating a contract to disclose information I note that the common law imposes an express pre-contractual duty of disclosure in certain narrow circumstances.
More information on the case may be found in the Grounds of Decision here.
Tags: ancillary proceedings, deed separation, legal principles