AUA v ATZ [2016] SGCA 41

Outcome: Appeal allowed in part

Facts

1 The Husband appealed against the High Court’s decision to vary the Deed on the issues of division and maintenance as well as the Judge’s refusal to alter the arrangement in relation to care and control.  

Court’s Decision:

2 The Court of Appeal allowed the Husband’s appeal on the issue of division of assets and dismissed his appeal on the issues of maintenance and care and control.  

3 The court disagreed that the parties’ post-Deed activities should be taken into account in determining what the appropriate division of their matrimonial assets ought to be. In particular, the court disagreed that the cut-off point for the determination of the parties’ contributions to the marriage for the purposes of the division exercise ought to be the date of the final judgment of divorce. The crux of the question should be whether the marriage still exists in the meaningful sense such that the actions of the parties, whether in the acquisition of assets, the care of their children, or otherwise may properly be said to have been done during the subsistence of the marriage and should therefore be taken into account in the division exercise: at [24] and [25].

4 The existence of an agreement for the division of matrimonial assets in contemplation of divorce should be accorded due weight when the court decides what is a just and equitable distribution. There are two reasons for this. First, parties who are negotiating (particularly when they had legal advice) do so rationally and with full knowledge of their own contributions to the marriage. Hence, what they agree on must represent what in their view is a just and equitable contribution. Second, promises are binding and agreements should be kept: at [31] and [32].

5 Marital agreements relating to the maintenance of children are relevant where the court is determining what quantum of maintenance to order. However, the welfare of the child should be the overriding objective. The court will not sanction any agreement as to maintenance if its overall effect would leave the child with inadequate support. In addition, the court will not allow a parent to abdicate his/her responsibility of parental support. The welfare of the child was best advanced if both parents played an active role in the upbringing of the child. Even if one parent were fully capable of providing for the child’s material needs, it would still be in the best interests of the child, that the law recognises and enforces the joint responsibility of both parents to maintain the child: at [42], [43], [44] and [45]. 

6 The court would play a comparatively minor role in the case of the division of matrimonial assets (and, to a lesser extent, the maintenance of the child) as the substance of the question is one of finances. However, where the court is concerned with questions of custody and care and control, the subject is not wholly pecuniary but the welfare of the child. A child’s welfare is not to be battered or negotiated at the termination of a marriage. Hence, the court always acts to maximise the welfare of the child: at [57]. 

7 While the court is enjoined to have regard to the wishes of the parents and of the child, it is not bound by anything that might be set out in a marital agreement. There ought to be a presumption that all agreements (whether prenuptial or postnuptial) relating to the custody or care and control of children are unenforceable unless it is clearly demonstrated by the party relying on the agreement that the agreement is in the best interests of the child. Hence, the court treats the terms of such agreement with great circumspection and will not give effect to them unless it is satisfied that to do so would be in the best interests of the child: at [58].  

The full text of the decision can be found here.