What are Prenuptial Agreements?
Prenuptial agreements are contracts entered into between spouses prior to marriage.
Some couples view prenuptials as practical solutions to determine with certainty their respective rights over property, maintenance, and custody matters, as a form of insurance against the possibility of divorce.
The Singapore Court of Appeal upheld a particular prenuptial agreement in the landmark decision of TQ v TR  SGCA 6. 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.
Are Prenuptial Agreements Valid and Enforceable by the Court?
A prenuptial agreement (or term thereof) 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.
In the words of the Court of Appeal, “Persons might (particularly in jurisdictions where prenuptial agreements were commonplace) decide to get married only because of the assurance furnished by a binding prenuptial agreement. It would be neither just nor equitable for the wife to now ask the court to allow her to evade her responsibilities under the Agreement”.
However, that is not to say that the court would not be vigilant to guard against agreements repugnant to the provisions of the Women’s Charter.
Similarly, in the award of maintenance, the court is bound to follow the instructions prescribed under section 114 of the Women’s Charter – 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.
Prenuptial and Postnuptial Agreements
Postnuptial agreements are made in circumstances that are very different from those existing in relation to prenuptial agreements. Such differences may warrant the court, according postnuptial agreements more weight than prenuptial agreements in the exercise of their discretion under section 112(2)(e) of the Women’s Charter.
What are the Matters that can be Dealt with in a Prenuptial Agreement?
Most, if not all matter, pertaining to the state of affairs between two person married to each other can be dealt with in a prenuptial agreement. It can relate to the ownership or division of property, as well as maintenance issues, during the marriage and upon the separation or divorce of the parties. It can also decide issues involving the care of their children.
What are the Usual Terms in a Prenuptial Agreement?
The usual terms of a prenuptial agreement include:
- Ownership of property during the marriage (parties may decide on special arrangements, like a 30/70 ownership of a house);
- Division of properties during separation or divorce or death of one party;
- Liabilities and debts owed by one or both parties;
- Maintenance issues; and
- Governing law of the prenuptial agreement (hypothetically, if the governing law is Dutch, and the Dutch legal system recognises prenuptial agreements, the Singapore courts may confer this agreement more significant weight).
Benefits of Prenuptial Agreements
Prenuptial agreements can:
- Offer additional certainty in the financial arrangements of the parties;
- Protect the assets acquired by one party before the marriage;
- Protect spouses from the debts incurred by the other party; and
- Protect family heirlooms or family businesses in the event of divorce and enforced division.
How to Draft a Prenuptial Agreement
While deciding on the terms of the prenuptial agreement, it is pertinent to refer to the policies and express provisions of the Women’s Charter – if the agreement is consonant with the Charter, the chances of it being upheld by the Singapore courts is greater.
An experienced family lawyer can be engaged to draft the terms of the prenuptial agreement and guide the spouses with the various legal considerations.
For a comprehensive guide on the costs of engaging a divorce lawyer in Singapore, click here.