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Postnuptial Agreement in Singapore – Effect on Children Custody

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.

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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.

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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.

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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.

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Conclusion

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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Postnuptial Agreement Singapore – Child Maintenance

Case Commentary – AUA v ATZ [2016] SGCA 41

 Effect of a Postnuptial Agreement on Child Maintenance

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The binding effect of a postnuptial agreement in Singapore 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 maintenance of the child.

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.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.

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Effect of a Postnuptial Agreement in Singapore on Child Maintenance – The Law

 .When the Court is determining the issue of maintenance of the child, the paramount consideration is the welfare of the child regardless of the presence of a postnuptial agreement. Although a postnuptial agreement is not statutorily prescribed in the Women’s Charter (“the Charter”), it is relevant in the determination as the Court will have regard to all the circumstances of the case.

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Developments from AUA v ATZ

The Court of Appeal in AUA emphasised that since the paramount consideration is the welfare of the child, if a postnuptial agreement were to leave the child with inadequate support, or if the burdens of parenthood are so unevenly distributed, they would not hesitate to step away from the terms of the postnuptial agreement in order to achieve a just and fair outcome. However, where the overall provision in the postnuptial agreement is a just and fair result under the general law, the Court would endorse the substance of terms of the agreement.

In addition, the Court of Appeal made a distinction between the approaches when considering the issue of division of assets and maintenance for the child. The Court assumes a more custodial role to ensure that the welfare of the child is safeguarded.

More specifically, the Court of Appeal clarified that no parent can contract out his or her obligation to provide for the “accommodation, clothing, food and education” pursuant to Section 68 of the Charter and the Court would disregard such a provision in a postnuptial agreement. Ultimately, the right of a child to adequate support is a matter of public concern thus the parents’ obligation to provide for the child cannot be contracted out.

In order to arrive at a just apportionment of the maintenance of the child, the Court shall have regard to the financial capacities of the parties, and the present and future contributions of the respective parties to the continuing welfare of the child.

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Conclusion

Ultimately, the welfare of the child is the overriding consideration in determining the maintenance of the child. A postnuptial agreement in Singapore shall only serve as one of the factors that the Court takes into account. However, if the postnuptial agreement is deemed to set out a just and equitable order, the Court would give it conclusive weight.

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 Related Articles:

Maintenance

 

Postnuptial Agreements in Singapore – Effect on Division of Assets

Effect of a Postnuptial Agreement on Divison of Assets

Case Commentary – AUA v ATZ [2016] SGCA 41

In the recent Court of Appeal case of AUA v ATZ [2016] SGCA 41, the Court examined the weight which would be ascribed to the terms of a postnuptial agreement concluded by the parties in contemplation of a divorce relating to the division of matrimonial assets. Prior to the assessment of the weight ascribed to the agreement, the Court must first ascertain the following:

1. That the postnuptial agreement must be freely and voluntarily entered into by the parties; and

2. That the postnuptial agreement is an agreement within the meaning of Section 112(2)(e) of the Women’s Charter (“the Charter”).

At the first instance, the High Court departed from the division in the deed of separation (“Deed”) as it did not appear to take into account the continuing role that the wife would play in caring for the child from the date of the Deed until the date of final judgment, and therefore concluded that the Deed did not reflect a fair and equitable distribution. However, the Court of Appeal disagreed with the basis on which the High Court varied the agreed distribution in the Deed for the following three reasons:

1. The parties’ post-Deed activities should not be taken into account in determining what the appropriate division of their matrimonial assets;

2. The wife’s contributions post the conclusion of the Deed was taken into consideration when parties entered into the Deed; and

3. It is a matter of common sense and justice that the existence of an agreement for the division of matrimonial assets in contemplation of divorce should be accorded due weight.

A key issue that arose in AUA v ATZ is the determination of the cut-off date for determining the parties’ contributions to the marriage when a post-nuptial agreement comes into play. The Court of Appeal held that the operative date ought to be the date of the conclusion of the Deed instead of the date of final judgment because that was when the marriage effectively came to an end.

Upon examination of the Deed, it was clear that the parties’ marital relationship had ended with the conclusion of the Deed pursuant to the principles set out in ARY v ARX and anor appeal [2016] 2 SLR 686: (a) there is no longer a matrimonial home; (b) there is no consortium vitae – the parties were to live complete separate lives; and (c) neither party had conjugal rights. Furthermore, it was clear that parties were waiting for time to elapse so either one could file for divorce on the ground of three years’ separation. The Court was of the view that the wife would have known that the Deed was structured in such a way that took into account that she would be the primary caregiver to the child.

Secondly, the Deed was the product of lengthy negotiations between the parties who were both legally represented and that the parties would have addressed their minds to the wife’s contributions in the agreed division of their matrimonial assets. The Court was satisfied that there were no potential vitiating factors and that the agreement would reflect what parties thought was fair and reasonable.

Furthermore, the Court was cautious to vary the Deed as it is a matter of common sense and justice that the existence of such an agreement should be accorded due weight when determining a just and equitable distribution. In AUA, parties have negotiated rationally and have full knowledge of their respective contributions to the marriage and have agreed on what parties view as just and equitable.

For the reasons stated above, the Court of Appeal concluded that the terms of the Deed in relation to the division of assets would be a just and equitable outcome.

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Postnuptial Agreement Singapore – What this case means for you

If you enter into a postnuptial agreement with your spouse freely and especially with the benefit of legal representation, and the agreement relates to division of assets, it may be difficult for you to persuade the courts to depart from the postnuptial agreement. The courts may take the position that parties have negotiated rationally and have agreed on what parties view as a fair settlement.

It is therefore advisable that you should not sign if you are not happy with the proposed terms of a postnuptial agreement, as it may be difficult to re-open arguments that you should be entitled to more for asset division.

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Postnuptial Agreement and child custody