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Why You should have a Prenuptial Agreement

PKWA LAW

Prenuptial Agreements in Singapore

couple signing prenuptial agreement

What are Prenuptial Agreements

As the name suggests, a prenuptial agreement is a contract made between you and your fiancé/fiancée before marriage. Although you enter into this agreement even before you've tied the knot, the agreement itself is meant to govern what happens to the parties (particularly their assets) in the eventuality of a divorce.

The contents of these agreements vary between couples. However, generally, they relate to the division of assets attained before and during the marriage, maintenance, and issues pertaining to the child(ren).

The divorce need not be imminent or even desired at the time of the agreement. Rather, what is required in making the agreement, is that you and your fiancé/fiancée address your minds to that possibility and have the intention for the agreement to exhaustively govern the ancillary matters upon the contingency of divorce.

The Law on Prenuptial Agreements

First and foremost, a prenuptial agreement is a contractual agreement. For it to be a valid agreement in the eyes of the law, it must comply with the common law rules that govern contractual agreements between parties, which includes that:

  1. parties must have intended for the document to be legally binding;
  2. parties must have agreed on the terms stipulated in the document without any duress, misrepresentation, or fraud; and
  3. there must have been some form of consideration exchanged.

It is important to comply with the various legal doctrines and requirements to ensure your prenuptial agreement is valid, if not, the Courts will only enforce a contract not validly formed in limited circumstances. Even so, a validly formed prenuptial agreement alone does not guarantee your prenuptial agreement's enforceability in Singapore.

The legal status of a prenuptial agreement in the matrimonial sphere in Singapore is guided by a simple, but central principle: where one or more of the provisions of the Women's Charter ("WC") expressly covers a certain aspect of the prenuptial agreement, then that provision will be the governing law, however when the Women's Charter is silent, then the legal status of the agreement will be governed by the common law. This was set out in the seminal case of TQ v TR and another appeal [2009] SGCA 6, which remains good law to date.

It is provided for in the Women's Charter that the Courts have full discretion in deciding the maintenance for wife/children, custody, care and control of the child(ren) of the marriage, and the division of matrimonial assets. Although these provisions in the Women's Charter do not necessarily specifically refer to prenuptial agreements, the Court held that there is no logical reason why the legislative policy underlying the Women's Charter (especially when they relate to postnuptial agreements) should not apply equally to prenuptial agreements.

Accordingly, the Courts have the overall power to subject the prenuptial agreement to scrutiny and override any such prenuptial agreement in deciding "fair and reasonable" maintenance, or to achieve "just and equitable" division of assets, or to do what is necessary in "the best interests of the child".

What Does This Mean For You

Understandably, it seems as if in Singapore, regardless of whether you have a prenuptial agreement validly prepared or not, the Court will be the final arbiter of your divorce matter. Admittedly, that is the case in Singapore, however, that is not to say that a prenuptial agreement has no value.

Especially in the case of division of assets, the prenuptial agreement would be utilised to aid the Courts in exercising their powers. It has been recognised by the Court that you may have decided to get married because of the assurance furnished by the prenuptial agreement (especially in jurisdictions where prenuptial agreements are the norm) and the Courts have found that it is not just and equitable for your spouse to then try to evade his/her responsibilities under the agreement later when the eventuality of divorce becomes a reality.

That is to say, if you have a large asset pool prior to marriage, a prenuptial agreement may be able to protect those assets in the event of divorce. A prenuptial agreement plays a crucial role in guiding the Courts in their decisions towards the division of your matrimonial assets.

Similarly, in cases where the prenuptial agreement addresses maintenance, the Courts will not ignore the existence of the agreement in its entirety. This also applies to prenuptial agreements which address issues relating to the children, and these agreements would still act as a key guide for the Courts in exercising their powers.

However, it is important to keep in mind that there is no blanket rule that a prenuptial agreement must be enforced to the exclusion of all other relevant circumstances. The weight accorded to your prenuptial agreement would be dependent wholly on the particular facts of your case, including the circumstances surrounding the both of you entering into this agreement in the first place (eg: if parties had legal counsel representation or if there was a substantial negotiation between parties before the agreement was finalised, etc.).

Also, it is important to remember that regardless of any agreement, prenuptial or otherwise, the Courts will always be especially vigilant when it comes to decisions relating to the child(ren) of the marriage and will not easily accede to the arrangements specified in the agreement. The well-being of the child(ren) is the paramount consideration and the Courts will always decide based on what is in the best interest of the child(ren) of the marriage. It might well be the case that the contents of your prenuptial agreement coincide with the welfare of your child(ren), however, the Courts will nevertheless be the final arbiter as to the appropriateness of the arrangements embodied in your prenuptial agreement.

Conclusion

A prenuptial agreement sets out the settlement of ancillary matters in the event of a divorce even before you are married. In Singapore, a prenuptial agreement mostly functions as a guide for the Courts, rather than a binding contract, in deciding the ancillary matters in your divorce. The legislative principles underlying the Women's Charter continue to oversee the Courts in their decision on the applicability of your prenuptial agreement. The Courts ultimately make the final call on whether to enforce your prenuptial agreement in its entirety, in part, or not at all.

Nonetheless, having a guide for the Courts to refer to is always better than a "he said she said" finger pointing battle if things go sour in your marriage.

ABOUT PKWA LAW

At PKWA Law, our team of Family Lawyers are consistently named as leading Singapore divorce lawyers by respected independent legal publications such as Asian Legal Business, Singapore Business Review, Global Law Experts and Doyle's Guide to Singapore Family Lawyers.

Keen to discuss more? Contact us at tel 6854-5336.

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