Benefits and Limitations of Pre-Nuptial Agreements in Singapore

Author: Patrick Tan and Andrew Wong

Introduction

  1. Getting married is one of the biggest milestones in one’s life. Couples exchange vows and promise to stay committed to each other “till death do them part”. Amidst the fireworks and champagne, divorce is the last thing on anyone’s mind when a marriage first happens.

 

  1. However, the unfortunate reality is that, for reasons sometimes beyond one’s own control, marriages breakdown and result in divorce. The ancillary matters subsequent to the grant of an interim judgment of divorce, such as the division of matrimonial assets, spousal maintenance and care and control of children can then be a very contentious and costly affair, especially if the parties’ relationship has become so acrimonious that they are unable to come to agreement on anything. In light of this, soon to-be married couples may wish to consider the possibility of signing pre-nuptial agreements prior to getting married.

 

  1. This article explores the benefits of doing a pre-nuptial agreement in Singapore, while also highlighting certain limitations of a pre-nuptial agreement in Singapore.

 

Pre-Nuptial Agreements can be taken into account in ancillary matters

  1. A key advantage of signing a pre-nuptial agreement is that such a pre-nuptial agreement can be taken into account and given due weight when a court is handling ancillary matters. This would ensure that parties’ original intentions regarding ancillary matters can be given due consideration by the court, and lends some predictability to ancillary proceedings. Pursuant to Section 112 (2) (e) of the Women’s Charter[1], a pre-nuptial agreement may be taken into account in the court’s exercise of dividing matrimonial assets subsequent to a grant of divorce.

 

  1. Furthermore, the Court of Appeal in the decision of TQ v TR and another appeal[2] has also laid out how a pre-nuptial agreement dealing with maintenance issues can be taken into account by the court. The court is even entitled to endorse the terms of a pre-nuptial agreement if it would be “just and fair” to do so.

 

  1. While a pre-nuptial agreement is not directly enforceable per se under Singapore law in the same way that a normal contract is, it can nonetheless be a persuasive factor to guide the courts in deciding on a division of matrimonial assets or on maintenance orders. A pre-nuptial agreement would thus be useful in persuading the courts to uphold parties’ original intentions regarding ancillary matters.

 

  1. In order for pre-nuptial agreements to be accorded more weight, it is advisable for parties to be advised independently by their own lawyers before such agreements are signed, as this tends to persuade the courts that the pre-nuptial agreement was fairly negotiated and agreed upon.

 

Pre-Nuptial Agreements governed by foreign law may have heightened persuasiveness

  1. Furthermore, if a pre-nuptial agreement entered into by foreign nationals is governed by a foreign law which treats such pre-nuptial agreements as binding and enforceable, a Singapore court may also accord increased weight to such an agreement. In particular, with respect to the division of matrimonial assets, if there was legitimate basis for the choice of law (such as the law being the law of the foreign nationals’ home state) to govern the pre-nuptial agreement and the choice of law was not merely an exercise in “jurisdiction-shopping”, the courts may even opt to apply the terms of the pre-nuptial agreement in their entirety.

 

  1. As for any agreement on maintenance, the courts tend to be more conservative and would likely scrutinize the terms of the pre-nuptial agreement more carefully. Nevertheless, due weight can still be given to such an agreement by the courts.

 

  1. Consequently, for foreign expatriates or foreign nationals who wish to get married in Singapore, there is an added incentive to enter into a pre-nuptial agreement, as a pre-nuptial agreement may go some way in ensuring that the foreign law of a foreign national’s home state may apply to govern ancillary issues (at least the division of matrimonial assets and maintenance) in the event of a divorce. Such foreign law may be more familiar to and accord more with the expectations of such foreign nationals.

 

Pre-Nuptial Agreements regarding children may not be weighty

  1. With all that is said above, pre-nuptial agreements in Singapore have their limitations. A pre-nuptial agreement with respect to the custody or care and control of children may not be given much weight by Singapore courts. This is because whenever children are concerned, the unyielding principle is that the welfare of children is the paramount consideration[3]. The Court of Appeal in TQ v TR and another appeal went as far as to state that there is a presumption that such agreements pertaining to the custody or care and control of children are unenforceable, unless it can be clearly demonstrated that the agreement is in the best interests of the children. In this vein, there is thus limited scope for the operation of a pre-nuptial agreement where custody and care and control of children are concerned.

 

Conclusion

  1. Unlike in other jurisdictions, pre-nuptial agreements in Singapore are not legally binding in and of themselves. Nonetheless, they serve as one factor the court may consider in the overall exercise of deciding on ancillary matters after a divorce. Couples should still consider entering into a pre-nuptial agreement so as to ensure that their initial intentions with respect to ancillary matters can be taken into account by the courts in the unfortunate event of a divorce.

 

[1] Cap 353, Rev. Edition 2009

[2] [2009] 2 SLR (R) 0961

[3] Section 125 (2), Women’s Charter

 

Written by: Patrick Tan and Andrew Wong

 

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