Prenuptial Agreement – Should you make one in Singapore?

Divorce is never in sight when marriages happen. In fact, it’s the last thing that couples would want to think about when they tie the knot. Unfortunately, not all marriages work. There would come a point when couples are left with no other choice but to end their ties through a divorce. When this happens, a lot of time, costs and processes are needed–dividing conjugal assets, deciding who gets the flat, and similar other properties.

To avoid going through these things, there is an option to sign a prenuptial agreement or before getting married. In this article, the benefits and limitations of prenuptial agreements in Singapore will be explored and whether prenuptial agreements are enforceable in Singapore.

One of the ultimate advantages of having a prenuptial agreement is that it can be considered in the proceeding of the ancillary matters before the court. Prenuptial agreements signify the true intentions of the parties when they entered into a marriage.

Preputial Agreements relating to Division of Matrimonial Assets

The court will give weight to prenuptial agreements in cases of division of assets pursuant to Section 112 (2) (e) of the Women’s Charter. The ultimate power still resides in the court to order the division in such proportions as the court thinks just and equitable having regard to all circumstances of the case. In the recent case of UZK v UZL, the court held that the Deed of Arrangement entered into between husband and wife is valid and binding between parties but not to the court. The Deed of Arrangement was only one of the factors that the court would consider in the division of assets. In similar vein, in the case of TQ v TR, the court held that the prenuptial agreement cannot be enforced, in and of itself, it is only an aid the court in exercising its power pursuant to Section 112 of the Act. How much weight should be given? It depends on the precise facts and the circumstances of the case.

Preputial Agreements relating to maintenance of the wife and/or the children

In the case of TQ v TR, it was settled by the court that prenuptial agreements involving maintenance issues can be given credence by the court, especially when it is just and fair for both parties. However, it will be subjected to scrutiny of the courts especially when the agreement relates to the maintenance of the children, the court is vigilant and would slow to enforce such agreement that are not in the best interest of the child or the children concerned.

Preputial Agreements relating to custody, care, and control of the children

The court will give weight to prenuptial agreements in cases of custody, care and control on the basis of Section 129 of the Women’s Charter. The court will heavily scrutinize the agreement relating to the custody as well as the care and control of the children. This is a limitation of prenuptial agreements. The couples can’t put into an agreement who is going to acquire the custody of their future children because the law recognizes the interest and wellbeing of the child as the paramount of all.

Prenuptial Agreements under a foreign law bears more weight

In Singapore, a prenuptial agreement entered into by foreign nationals, which is governed by foreign law, is more persuasive, especially if the law governing states that a prenuptial agreement is enforceable and binding between parties. If this is the case, if the court comes to know the legal basis for choosing the governing law, the court can apply the terms stipulated in the agreement. Such an approach would avoid the danger of forum shopping. However, in TQ v TR, the court emphasized that such an approach is confined to prenuptial agreements relating to the division of matrimonial assets and that there is no blanket rule to the effect that such agreement would be accorded significant weight as a matter of course. Yet again, everything depends, in the final analysis, on the precise facts and circumstances.

Consequently, foreign nationals who wish to get married in Singapore, there is an added incentives to enter into pre-nuptial agreements, especially when the foreign nationals have assets in Singapore.

Conclusion

It is true that prenuptial agreements in Singapore have to abide by the various legal doctrines and requirements of the common law contracts. Still, prenuptial agreements are not as enforceable as normal contracts. However, this requirement would not apply to foreign prenuptial agreements which are valid by their proper law unless such agreement is deemed to be in contravention to Singapore’s public policy.

Nevertheless, a prenuptial agreement can still persuade the courts in deciding which is better when the division of matrimonial properties are in question. Given that, it is essential that both parties are knowledgeable of the prenuptial agreement terms before they sign it.

Prenuptial agreements can be considered as a persuasive factor to determine the best resolution in ancillary matters. Still, couples can enter into a prenuptial agreement to stipulate their intentions before they get married so that in case of divorce, the matter can be considered by the courts.

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Provided by: Tan Leroy & Associates
Contributed by: Mario Khoe

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