Judgment Date03 February 2009
Date03 February 2009
Docket NumberCivil Appeals Nos 93 and 94 of 2007
CourtCourt of Appeal (Singapore)
TR and another appeal

[2009] SGCA 6

Chan Sek Keong CJ


Andrew Phang Boon Leong JA


V K Rajah JA

Civil Appeals Nos 93 and 94 of 2007

Court of Appeal

Conflict of Laws–Choice of law–Family–Domicile–Law governing validity of prenuptial agreements–Prenuptial agreement executed in Netherlands by foreigners which provided there was to be no community of property–Whether domicile of parties relevant in determining governing law for validity of prenuptial agreement–Which law governed validity of prenuptial agreement–Whether clause in prenuptial agreement stipulating that marital property regime between parties to be governed by Dutch law could be construed as express choice of law clause in favour of Dutch law or clause supporting implied choice of Dutch law as governing law of agreement–Whether prenuptial agreement valid under Dutch law–Whether foreign prenuptial agreements which were valid by their proper law had to comply with general principles of Singapore common law of contract–Family Law–Custody–Care and control–Maintenance–Child–Wife–Matrimonial assets–Division–Prenuptial agreements–Types of marital agreements–Types of prenuptial agreements–Legal status of prenuptial agreements in Singapore–Prenuptial agreement executed in Netherlands by foreigners which provided there was to be no community of property–Whether prenuptial agreement was valid under Dutch law–What weight should be given to prenuptial agreement by court in exercising its power under s 112 Women's Charter (Cap 353, 1997 Rev Ed) for division of matrimonial assets–Whether prenuptial agreement should be given significant weight given that it was entered into by foreign nationals and governed by (as well as was valid according to) foreign law

A Dutch citizen (“the Husband”) and a Swedish citizen (“the Wife”) married in the Netherlands on 13 September 1991. Together with their three children, the couple first came to live in Singapore in 1997. The marriage subsequently broke down and the Wife filed for divorce in Singapore in 2004. The divorce petition was uncontested and a decreenisi was granted on 19 April 2005. The parties then applied to the court for the ancillary matters to be decided. Prior to their marriage in the Netherlands, the couple executed before a Dutch civil law notary on 26 August 1991 a prenuptial agreement which, stated, inter alia, that there was to be no community of property (“the Agreement”).

The High Court judge (“the Judge”) ordered that both the Husband and the Wife were to have joint custody of the Children, but the Wife was to have care and control of all three children. The Husband was also ordered to pay $1,200 a month for the maintenance of each child and a lump sum of $150,000 for the Wife's maintenance. The Judge further upheld - and gave effect to - the Agreement and made no order as to the division of matrimonial assets.

The Wife appealed against the quantum for the maintenance of the Children and the making of no order as to the division of assets. The Husband appealed against the order for care and control of the Children and the maintenance orders for the Children and the Wife. In respect of the Agreement, the Wife argued that the Agreement was invalid or that it was no longer binding because it had been abandoned by the parties.

Held, varying the orders of the Judge:

(1) The circumstances not just of the parents but those ofall three children (not just each of them in isolation) had to be taken into account in deciding custody, care and control of the Children. The cross-accusations of irresponsible behaviour and infidelity by both parties, even if true, did not affect the parties' parental love for the Children. Since the Husband planned to return to the Netherlands while the Wife planned to remain in Singapore, the Children would be living far away from one parent and joint custody of the Children would be appropriate. The second daughter was studying in a Singapore school and had known no other home except Singapore and the first daughter required constant care and attention due to her disability. The two daughters' interests would thus be best served if they were cared for by their mother in Singapore. This was not a decision indicating whether they should be acculturated as Dutch or otherwise. Such a major lifestyle decision had to be taken by both parents as joint custodians. Although the son had expressed his wish to study in the Netherlands, it would be best, having regard to all the circumstances, that he remain in Singapore with the Wife, at least until the Husband complied with the orders made with respect of the Children's maintenance: at [13], [15] to [18] and [20].

(2) The Husband drew a very high salary when he first came to Singapore as a vice-president of an international management consultancy, but subsequently left this job and ran his own consultancy business. The $150,000 lump sum maintenance for the Wife ordered by the Judge was not an unreasonable sum. However, in consideration of the fact that the Husband was clearly not as well-off as he used to be, the sum should be paid in instalments: at [21] and [24].

(3) Given that the Wife did not produce any evidence of the Husband's present income and it was evident that the Husband's financial circumstances had materially deteriorated from the time when he was working at the international management consultancy, the maintenance for the Children would remain at $1,200 a month for each child. The trust fund that the Husband admitted that he had set up for the Children in Mauritius (“the ALLIJU Trust”) after the decree nisi had been granted was a naked attempt to present the Wife and the courts afait accompli in respect of the issues of maintenance and the distribution of the matrimonial assets. Accordingly, the Husband was to pay a sum equivalent to that in the ALLIJU Trust (measured in Singapore dollars) into an account in a Singapore bank, which could be used by either parent for the benefit of the Children: at [26] and [27].

(4) The validity of a contract, including marital property agreements, was governed by its proper law and the proper law was determined by (in order of descending priority): (a) the express choice of the parties; (b) the implied choice of the parties; and (c) in the absence of any express or implied choice of law, by ascertaining the system of law with which the agreement had the closest and most real connection, which was presumed to be the law of the matrimonial domicile unless rebutted. The applicable clause in the Agreement did not expressly state that the Agreement itself was to be governed by Dutch law, but it referred, literally, to the marital property regime of the marriage being governed by that law. Given that the Agreement as a whole was concerned solely with the marital proprietary relations of the parties, there was, in substance, no meaningful distinction between the Agreement and the marital property regime. In the special circumstances of the case, the clause could be read either as an express choice of law clause in favour of Dutch law, or as a clause supporting an implied choice of Dutch law. The validity of the Agreement thus depended on its status under Dutch law: at [32] to [34].

(5) The Agreement was valid under Dutch law. The Wife did not adduce, beyond her bare assertions, any evidence to prove that the Agreement had not been explained to her. Some bad faith on the Husband's part could perhaps have been inferred if the terms of the Agreement had been manifestly in his favour and to her detriment, but this was not the case. In fact, the Agreement contained a term unequivocally in favour of the Wife, specifying that the Husband was to pay the Wife a certain sum of money, so long as one or more of the Children was under the age of five and the Wife was not in the position to enjoy pension rights of her own. Such a term was inconsistent with the Wife's argument that she was pressured to sign the Agreement blindly. The Agreement, at least in relation to the article stipulating that there was to be no community of property, was also not varied by the subsequent conduct of the parties, given that there was sufficient evidence to show that while detailed accounts were not kept, the parties did not regard their marriage as being one that related to the concept of a community of property: at [37]and [40].

(6) The legal status of a prenuptial agreement in the Singapore context is the result of the interaction of both statute law (ie, the Women's Charter (Cap 353, 1997 Rev Ed) (“the Act”)) on the one hand and the common law on the other. Where one or more of the provisions of the Act expressly covers a certain category of prenuptial agreement, that provision or those provisions would be the governing law. Where, however, the Act was silent, the legal status of the prenuptial agreement concerned would be governed by the common law. In this regard, it would be assumed that any prenuptial agreement which contravenes any express provision of the Act and/or the general or specific legislative policy embodied within the Act itself will not pass muster under the common law: at [50] and [102].

(7) The Act is silent with respect to the legal status of prenuptial agreements relating to the maintenance of the wife and/or the children, though the Act contains express provisions relating to postnuptial agreements, in particular, ss 116 and 119. The common law principles would apply in the apparent absence of an applicable provision under the Act. These principles must nevertheless be consistent with, inter alia, the legislative policy underlying the Act, and the legislative policy which governs postnuptial agreements ought to apply equally to prenuptial agreements. Thus, all prenuptial agreements relating to the maintenance of the wife and/or the children would be subject to the overall scrutiny of the courts. In so far as a prenuptial agreement...

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