Effect of a Postnupital Agreement on Child Custody
The binding effect of a postnuptial agreement in the course of divorce proceedings was recently developed in the Court of Appeal case of AUA v ATZ (2016) SGCA 41. Specifically, the court shed light on the judicial process of ascribing weight to the terms of a postnuptial agreement concluded by the parties in contemplation of a divorce relating to the care and control of the child.
What are Postnuptial Agreements?
A postnuptial agreement is most commonly entered where there has been a significant change to the circumstances since the marriage. It can be entered into any time during the marriage but before parties seek a divorce.
Effect of a Postnupital Agreement on Child Custody – The Law
When the Court is determining the issue of care and control, the paramount consideration is the welfare of the child. The Court shall have regard to the wishes of both the parents of the child and the child, where he or she is of age to express an independent opinion under Section 125 of the Women’s Charter (“the Charter”).
As such, a postnuptial agreement shall only be relied upon where the agreement is deemed to be in the best interests of the child.
Developments from AUA v ATZ
The Court of Appeal in AUA highlighted the Court’s starting position while dealing with a postnuptial agreement relating to care and control of a child. Such a postnuptial agreement is unenforceable unless the party relying on it clearly demonstrates it to be in the best interests of the child. The Court’s apprehension is down to the assumption that in the heat of a matrimonial dispute, the interests of the child may be relegated to second place. In light of this, the Court of Appeal outlined that the general approach of the Court where does not concern itself with the terms of the postnuptial agreement in determining the care and control of the child.
Ultimately, the Court will consider what is in the best interests of the child, regardless of the presence of a postnuptial agreement, in determining the care and control order. This would concern the ultimate goal of fostering the child’s happiness, security, mental and emotional development into young adulthood.
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