Should you ask for a Prenuptial agreement in Singapore?
You don’t need to be married or contemplating divorce to know about pre-nuptial agreements. If you read the newspapers or watch any television at all, you’ll probably have heard of the term in one form or another.
Those who follow celebrity tabloids will likely be even more familiar with the term. Brad Pitt and Angelina Jolie had a pre-nuptial agreement. Justin Timberlake and Jessica Biel had a pre-nuptial agreement. Even Facebook wunderkind Mark Zuckerberg insisted on having a pre-nuptial agreement with his wife, Priscilla Chan.
In the unlikely event you don’t know what a prenuptial agreement is, let us enlighten you.
A prenuptial agreement, or “prenup”, as it’s usually called, is an agreement between the parties about to get married that states precisely how the assets will be divided in the event of divorce. As they are contractual in nature, they must also satisfy the requirements of a contract in Singapore law. This means that prenuptial agreements must have the four elements of a contract – an offer, acceptance, consideration and intention to create legal relations. They must also not be obtained through misrepresentation, fraud, duress, unconscionability, or undue influence.
Are prenuptial agreements legal in Singapore?
Although the Court of Appeal of Singapore has recognized a prenuptial agreement before, in a landmark case (TQ vTR  SGCA 6), not all prenuptial agreements will be enforced or upheld.In divorce proceedings, the court is entitled to scrutinize the prenuptial agreement and decline to uphold the agreement if it contradicts the Women’s Charter.
Under Section 112 of the Woman’s Charter, the court has complete power to divide assets of the parties in a just and equitable manner. While it is possible that the court may reference the prenuptial agreement during this process and use it as a reference in determining what a just and equitable split is, it is not bound to follow the agreement.
Similarly, when considering awarding maintenance under section 114 of the Women’s Charter, the court may refer to but is not compelled to follow the terms of the prenuptial agreement.
In a nutshell, the court has full discretion to decide whether a prenuptial agreement is enforceable. Singaporeans who are thinking of having a prenuptial agreement drafted, regardless of the reason(s), are advised to mull over it, and to recognize the fact that there is a chance the agreement might not be recognized. The courts have a history of enforcing some, and not enforcing others.
What are the benefits of having a prenuptial agreement?
While it definitely isn’t the most romantic agreement in the world, entering into a prenuptial agreement can offer come benefits to the married couple and it can be tailored to fit your particular situation. Some benefits of entering into a prenuptial agreement include:
- Providing certainty to both parties. By setting out in advance the financial arrangements should you and your spouse divorce, you can prevent uncertainty should the marriage fail.
- Assist in guiding the court. While it’s not guaranteed your prenuptial agreement will be enforced, it may be helpful in guiding the court’s decision.
- Protecting your premarital assets. A prenuptial agreement can assist in preserving the assets you owned prior to marriage.
- Protecting items of sentimental value. Keeping items of sentimental value out of the marital estate in the event of a divorce may be important when there are children from a previous marriage, or where there are other relatives for whom those items are intended.
- Assist in helping the parties to a divorce come to a faster resolution of divorce proceedings.
When should you consider a prenuptial agreement?
The scenario most people tend to imagine when the topic of prenuptial agreements comes about is one where an old, rich tycoon marries a sweet young thing. While true love exists in ways most of us will never be able to fathom, the more cynical of us would probably think that this would be one of those situations where a prenuptial agreement might possibly come in handy.
However, there are other situations when a prenuptial agreement might come in handy (assuming they are enforced that is). This isn’t a closed list but number a few of the situations in which you might want to consider a prenuptial agreement.
1) As alluded to above, when one partner is much wealthier than the other partner.
2) When you and your spouse are practical people who recognize that marriages don’t always work out and both of you would like to minimize potential conflicts during a divorce.
3) When your partner is heavily in debt, and you don’t want to be responsible in any way for those debts in the unfortunate event that both of you divorce.
4) When you wish to protect and keep control of a family business and to avoid any potential complications should you and your spouse get divorced.