Misconceptions that prenuptial agreements are not enforceable in Singapore arose out of a case in 1992. The court in that case appeared to suggest that prenuptial agreements are not enforceable in court because they go against public policies and provisions in the Women’s Charter which govern marriages in Singapore. However, much of what the court said has to be read in context and on closer reading, prenuptial agreements are only unenforceable in situations where the couple included a clause stipulating that another ceremony would be essential before married life can commence. It is therefore not a blanket rule that all prenuptial agreements are unenforceable. In fact, courts would more often than not find that certain clauses in the prenuptial agreement is unenforceable (if any), rather than render the entire agreement void, depending on the specific facts and circumstances surrounding the particular case.
Any misconceptions on the enforceability of prenuptial agreements in Singapore was clarified in the landmark case of TQ v TR, particularly the principles to be applied when determining the effect of a prenuptial agreement on the division of matrimonial assets. As a starting point for analysing the legal status of prenuptial agreements, courts will look at the interplay of the common law and the statute, specifically the Women’s Charter. While the court did warn that not all prenuptial agreements will be upheld and enforced, courts are still prepared to give effect to prenuptial agreements as long as they satisfy the basic requirements of a legal contract, are not obtained through fraudulent means and are in line with legal principles and public policies.
But what exactly are prenuptial agreements?
As the “pre” in the term suggests, prenuptial agreements are signed by spouses prior to their marriage.
From a practical point of view, couples view prenuptial agreements as a form of insurance that provides them with certainty over their respective rights and obligations in the marriage, and also acts as a form of security in the unfortunate event of a divorce.
Clauses in prenuptial agreements
Typically, couples would include in their prenuptial agreements clauses spelling out their rights relating to custody, maintenance and property matters, also known as ancillary matters. For properties, couples will include details about the ownership of the properties during marriage and the division of properties in the event of divorce, death of a spouse or separation. Other details include the custody of children, how the liabilities are to be settled between spouses, maintenance for the wife and children, and the governing law of the prenuptial agreement given that couples could be married in a foreign jurisdiction particularly against a backdrop of a greater number of Singaporeans marrying foreigners.
Advantages and disadvantages of prenuptial agreements
Prenuptial agreements mainly serve to protect spouses relating to the matters discussed above. Further, such agreements could serve as a starting point for negotiations in divorce proceedings, potentially speed up the divorce proceedings and to guide the court in coming to a fair and just decision, assuming that the prenuptial agreement is valid and enforceable in court.
However, it is important to bear in mind that the court is the final arbiter of the law and it is not necessary that the final judgment order will be the same as the prenuptial agreement.
In particular for the division of matrimonial assets, the governing provision is s 112 of the Women’s Charter which gives the court the power to order the division of matrimonial assets in a way that it thinks is just and equitable.
Further, for the custody of children, there is a presumption that prenuptial agreements are unenforceable unless it is shown that the agreements are drafted in the best interests of the children.
Despite the advantages of prenuptial agreements, drafting such agreements is less common in Singapore because they may not be as strictly enforced as in other jurisdictions such as the United States or Australia because their enforceability in Singapore depends on whether the court deems it valid. Prenuptial agreements are therefore not in and of themselves enforceable.
Some couples may also view the idea of drafting prenuptial agreements as a taboo topic because it is associated with an unhappy ending. The party bringing up the idea may also be viewed as less trusting and more defensive and this may potentially be a trigger point for a less harmonious marriage as parties start drawing clear boundaries when drafting such agreements.
If there are agreements entered into before marriage, it follows that there are agreements entered into after a marriage, and hence the prefix “post”.
A postnuptial agreement is typically drafted to provide for what should happen in the event of a separation, divorce or death of a spouse.
Typically, the kind of clauses that are included in a postnuptial agreement is the same as that of a prenuptial agreement. The advantages and disadvantages associated with prenuptial agreements are similar to that of postnuptial agreements. But in addition, postnuptial agreements are also useful if parties want to protect their assets when there happens to be a material change in circumstances during the marriage. For the sake of clarity, the subsequent paragraphs seek to clarify the common confusion people may have between postnuptial agreements and other legal documents.
Postnuptial agreements and prenuptial agreements
The main difference is when the two types of agreements are entered into, whether it is before or after the marriage.
Courts will tend to give more weight to postnuptial agreements due to the different circumstances in which they were made in. This is because postnuptial agreements reflect parties’ more recent intentions towards their marriage and are drafted when they have a clearer understanding of the implications of such an agreement and their responsibilities in the marriage.
Postnuptial agreements and deeds of separation
Postnuptial agreements can be entered into even when there are no signs of a breakdown of the marriage, and couples just want an added security, whereas deeds of separation are entered into when parties wish to separate or to meet the prerequisite for filing for divorce on the ground of 3 years’ separation.
Another distinction is that postnuptial agreements are not automatically binding as the court will still retain the power to determine whether such agreements are valid and enforceable, while deeds of separation are automatically binding when signed by both parties.
Postnuptial agreements and wills
In short, postnuptial agreements only involve matters relating to the rights of the parties in the marriage and is an agreement between them whereas wills can affect parties other than those in the marriage.
Drafting a pre or postnuptial agreement
Now think of this scenario: You and your boyfriend are thinking of getting married, but not till much later when you both are in your mid-thirties, as that is when both of your careers are more or less on track and are more financially stable to start a family.
Choosing which type of nuptial agreement to draft will depend on which stage of the marriage you are in. While it used to be more common for couples where one of whom is a foreigner or who have a great disparity in wealth to draft nuptial agreements, there is an increasing number of couples who want to draft such agreements as they are getting married later and accumulating more wealth before they do so; it is likely that some would want to protect their wealth and rights in a marriage, not because they do not trust each other, but because they simply want added security and to prepare themselves for the worst.
While it is possible to draft a pre or postnuptial agreement yourself, it would be best if you and your spouse were to engage an experienced lawyer to do so for you. This is because there may be some technicalities that may be too complex (especially if there are a lot of ancillary matters to be discussed), and there are certain provisions in the Women’s Charter and policies that you have to adhere to or risk having your nuptial agreements set aside by the court.
The idea of drafting a pre or postnuptial can be daunting, so here is a summary of the things you need to take note of:
Which law will the pre or postnuptial agreement follow if my spouse if a foreigner?
The nuptial agreement will be governed by the jurisdictional law chosen by the couple. If it is not expressly stated in the agreement, the agreement will have to be construed to determine whether any clauses expressly or impliedly refer to the choice of governing law.
If the nuptial agreement is governed by a foreign law, and assuming that the foreign law is not in conflict with Singapore’s public policy, the Singapore court is ready to give significant weight to the terms of that agreement if that agreement is valid and enforceable under that foreign law.
How long prior to the marriage should we sign the prenuptial agreement?
There is no magic formula to this but a few months prior to the wedding is preferable. This is to prevent undue stress on either party.
Can I modify the prenuptial agreement after marriage?
It is unlikely that you can modify your prenuptial agreement after the marriage. However, what you can do is to draft a postnuptial agreement to reflect any change in circumstances there may be during the marriage.
However, do note that if no prenuptial agreement was drafted and a number of years have passed since you and your spouse got married before you decide to draft a postnuptial agreement, any assets acquired during those number of years of marriage will be considered martial property and the process to draft the postnuptial agreement may get more complex.