Effect of a Postnuptial Agreement on Maintenance for the Child

Case Commentary – AUA v ATZ [2016] SGCA 41

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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 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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The Law on Postnuptial Agreements & Maintenance of the Child

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 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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