Prenuptial Agreements in Singapore

The Singapore Court of Appeal

The Singapore Court of Appeal upheld a particular prenuptial agreement in the 2009 landmark decision of  n   Nevertheless, the Court of Appeal was quick to warn that not all prenuptial agreements will necessarily be upheld and enforced upon the parties.

Though, given their contractual nature, they must also satisfy the requirements of any basic legal contract. This means that prenuptial agreements must be supported by consideration, and must not be obtained through misrepresentation, fraud, duress, unconscionability, or undue influence.

 

A prenuptial agreement (or any term in it) which contravenes any express provision or legislative policy embodied within the Women’s Charter will not be upheld. In divorce proceedings, the court is entitled to scrutinise the prenuptial agreement and decline to uphold the agreement if it contradicts the requirements of the Women’s Charter.

Specifically, under section 112 of the Women’s Charter, the court has the power to divide the matrimonial assets of the parties in a just and equitable manner with reference to the prescribed circumstantial factors. In the midst of doing so, the court can refer to the prenuptial agreement, but is not bound to follow the agreement.

Prenuptial agreements governed by foreign laws and entered into by foreign nationals may also be conferred special significance by the courts

 

Similarly, in the award of maintenance (whether to a spouse or to the parties’ children), the court is bound to follow the instructions prescribed under section 114 of the Women’s Charter. In other words, it may refer to but is not compelled to follow the terms of the prenuptial agreement.

The aforementioned principles also apply to matters of custody, access, and care and control – the parties cannot usurp the ultimate power of the court to decide what is best for the children.

 

To sum it up, having a prenup can save you from potential negative consequences in many instances such as:

  • In the case of one of the parties remarrying, the agreement will protect children from the prior marriage, assets, and other obligations.
  • If there is a large income gap between the parties, one will have a set minimal alimony that is paid so the other party will have better financial options.
  • If the spouse owns a business, the prenup will ensure that the other spouse does not take any ownership.
  • One party will not be responsible for the others significant debt load that they acquired before the marriage. 

Whether or not a particular prenuptial agreement will be valid and enforceable by the Singapore courts is a complicated matter. … In divorce proceedings, the court will scrutinise the prenuptial agreement and will not uphold the prenuptial arrangement if it contravenes the requirements of the Women’s Charter

Thus, the rule in Singapore is that financial agreements between spouses (or spouses-to-be), while they might be afforded decisive weight in appropriate circumstances, are always subject to judicial scrutiny. Section 112 of the Singapore Women’s Charter requires the Singapore courts to order the division of matrimonial assets “in such proportions as the court thinks just and equitable”. Thus, although financial agreements are most significant there are not mechanically enforceable in Singapore. AFS v AFU, [2011] SGHC 52.

Even if prima facie the court would not lightly set aside an agreement between parties, the court has liberty to decide that an agreement ought not to apply if the court does not consider it just and equitable.

The court determined that the Singapore courts should accord “significant (even critical) weight” to the terms of a prenuptial agreement between foreign nationals that is governed by and valid according to a foreign law, unless its terms violate the public policy of Singapore.

The court of appeal in TQ v TR gave conclusive weight to a foreign prenuptial agreement .

Prenuptial agreement are not binding unless approved by the courts.

A prenuptial agreement is a document, signed before marriage, setting out the couple’s rights in relation to any property, debts, income and other assets purchased together or acquired individually (e.g. through inheritance).

It helps provide clarity for couples mainly in respect of their finances and children in their relationship. Your lawyer will obtain the information needed from you and create an agreement for your signature.

The Courts are not obliged under the law to enforce the agreement but unless the provisions go against the provisions of the Women’s Charter or there have been significant changes in the circumstances of the parties, they are likely to regard the agreement as very persuasive.

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