TQ v TR and another appeal [2009] SGCA 6

Outcome: Orders below varied and prenuptial agreement upheld

Facts

1 The parties filed appeals against ancillary orders made by a High Court Judge. The appeals involved issues of care and control of the three Children, maintenance for the Children and Wife, and the making of no order as to the division of assets. Before they were married in the Netherlands, parties signed a prenuptial agreement before by a Dutch notary which related to division of matrimonial assets and provided that there shall be no community of property between the spouses.

Court’s Decision:

2 Circumstances not just of the parents but those of all their children as a whole must be taken into account in deciding custody and care and control. The major lifestyle decision of whether the Children should be acculturated as Dutch or otherwise must be taken by both parents as their joint custodians: at [13] and [18] to [20].

3 The validity of a contract, including marital property agreements, was governed by its proper law which is determined in descending priority of: (a) the express choice of parties; (b) implied choice of parties; and (c) where there is no express of implied choice of law, the law which the agreement has the closest and most real connection, which is presumed to be the law of the matrimonial domicile: at [32] to [34].

4 Where prenuptial agreements relate to maintenance of the wife and/or children, the court will determine if the terms produce a fair and just result, focused on the provision of adequate maintenance to the wife and/or children. The court will be especially vigilant and slow to enforce agreements on child maintenance if they are not in the best interests of the child: at [67] and [103(a)].

5 Prenuptial agreements relating to custody and care and control of children will be presumed to be unenforceable, unless the party relying on the agreement clearly demonstrates that the agreement is in the best in interests of the child: at [70] and [103(b)].

6 The court holds the ultimate power to divide matrimonial assets in just and equitable proportions, having regard to all circumstances of the case (see factors under s 112 of the Women’s Charter). Terms of a prenuptial agreement constitute one of the factors to be considered by the court in dividing matrimonial assets. The court decides the weight to be given to the prenuptial agreement, which is dependent on the precise facts and circumstances of the case – the prenuptial agreement could be significant or conclusive in appropriate situations: at [73], [77], [80], [91] and [103(c)].

The full text of the decision can be found here.

This summary is provided to assist the public to have a better understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.