Prenuptial agreements (sometimes also known as antenuptial agreements) are agreements reached by a husband and a wife before their marriage concerning what would happen in the event of a divorce. Such agreements can cover any issue which is usually the subject of ancillary proceedings, including maintenance, the division of matrimonial assets, and children.
Couples who have prenuptial agreements often view such agreements as a practical way to deal with, with certainty, some of the matters that will have to be dealt with should the couple divorce, such as the parties respective rights over property, maintenance, or custody of children.
Prenuptial agreements are contractual in nature, and thus must satisfy the basic requirements of any contract. Such agreements must be supported by consideration, and cannot be obtained through a party’s misrepresentation, fraud, duress, unconscionability, or undue influence.
Are prenuptial agreements in Singapore valid?
Whether or not a particular prenuptial agreement in Singapore will be valid and enforceable by the Singapore courts is a complicated matter. Many of the issues that a prenuptial agreement will tend to seek to determine are already governed by the Women’s Charter (Cap 353).
For example, section 112 of the Women’s Charter provides that the court shall have the power to order the division between a divorcing couple of any matrimonial asset, or the sale of such an asset and the division of the proceeds of such a sale, in the proportions as the court thinks just and equitable, with reference to a prescribed list of circumstantial factors that the court has a duty to account for in making such an order.
Similarly, under section 114 of the Women’s Charter, the court has a duty to have regard to the circumstances of the case, including another prescribed list of factors, in determining the amount of maintenance to be paid from one party to the divorce to the other.
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. The way the courts will scrutinise the prenuptial agreement can include:
- Ascertaining whether the terms of the prenuptial agreement are just and fair inasmuch as they provide the wife and/or the children with adequate maintenance in accordance with the various criteria set out in the Women’s Charter as well as in the relevant case law;
- In so far as the prenuptial agreement relates to the maintenance of the children, the court will be especially vigilant and will be slow to enforce agreements that are apparently not in the best interests of the child or the children concerned;
- In so far as prenuptial agreements relating to the custody of the children are concerned, there is a presumption that such an agreement is unenforceable unless it is clearly demonstrated by the party relying upon the agreement that that agreement is in the best interests of the child or the children concerned;
- In so far as prenuptial agreements relating to the division of matrimonial assets are concerned, the ultimate power resides in the court to order the division of matrimonial assets “in such proportions as the court thinks just and equitable”, which would include a prenuptial agreement, what weight the prenuptial agreement will be given will depend on the precise facts and circumstances of the case.
In addition, the courts may give more weight to prenuptial agreements governed by foreign laws entered into by foreign nationals, assuming the foreign law is not repugnant to the public policy of Singapore.
What can be dealt with in a prenuptial agreement?
Most matters related to a marriage can be dealt with in a prenuptial agreement. These matters can include issues relating to the ownership or division of assets of either party to the marriage, the provision of maintenance should a divorce occur, or even matters concerning the custody of any children to the marriage.
However, as noted above, different issues will be scrutinised by the court differently, such as there being a presumption that prenuptial agreements relating to the custody of children would be unenforceable unless it is demonstrated that the agreement is in the best interests of the child or children concerned.
What are the terms usually included in a prenuptial agreement?
Prenuptial agreements usually include terms relating to:
- Ownership of property;
- Division of property should the couple be separated or divorced, or should one party to the marriage pass away;
- Debts and liabilities owed by the parties to the marriage;
- The provision of maintenance; and
- The law governing the agreement.
However, as with any agreement, the exact terms of the prenuptial agreement should be tailored to fit your specific needs.
Drafting a prenuptial agreement
As noted above, the Singapore courts will not uphold a prenuptial arrangement if it contravenes the requirements of the Women’s Charter. Drafting a prenuptial agreement is a delicate issue and may be too technical for you to fully understand alone. You may wish to consult a lawyer to aid you with drafting your prenuptial agreement, should you need one.