Should we get a Prenuptial Agreement?

A prenuptial agreement (which can also sometimes be known as an antenuptial agreement) is an agreement made by a husband and wife, prior to their marriage, which sets out what would happen in the event of their divorce. An agreement like this may cover any issue which can be the subject of ancillary proceedings – including the division of matrimonial assets, maintenance, and children.

The prenuptial agreement is often seen by couples as a practical way to provide certainty in the administration of matters that have to be dealt with as a result of a divorce. This will usually include the respective rights of property and the custody and maintenance of children.

Because prenuptial agreements are contractual in nature, they must satisfy the basic requirements of a contract in law. Therefore, the agreement must be underpinned by consideration, and cannot be obtained through misrepresentation by either party, or fraud, unconscionability, duress, or undue influence.

Are prenuptial agreements valid in Singapore?

It is often a complicated matter to decide whether a particular prenuptial agreement will be valid and enforceable by the courts in Singapore or not. Quite a lot of the issues that a prenuptial agreement will try to determine are already governed by the Women’s Charter (Cap 353).

For instance, in section 112 of the Women’s Charter, the court is given the power to order the division of any matrimonial assets between a divorcing couple (or the sale of assets and division of proceeds as the courts sees just and equitable), with regard to a set list of circumstantial factors that the court must follow when making the order.

Likewise, under section 114 of the Women’s Charter, the court must consider the circumstances of the case, including a further prescribed list of factors, when determining the maintenance amounts to be paid from one party of the divorce to the other.

The courts will scrutinise the prenuptial agreement in divorce proceedings, and will not uphold the agreement if it is seen to contravene the requirements of the Women’s Charter. In scrutinising the prenuptial agreement, the court will:

• Ascertain whether or not the terms of the prenuptial agreement are just and fair – they must provide the wife and/or children with adequate maintenance in accordance with the Women’s Charter criteria, as well as factors from relevant caselaw.
• Be especially vigilant in so far as the prenuptial agreement relates to maintenance of children – it will be slow to enforce agreements that do not seem to be in the best interests of the child(ren) concerned.
• Presume that an agreement that relates to the custody of children is unenforceable unless it is clearly shown by the party relying upon the agreement that it is in the best interests of the child(ren) concerned.
• Have ultimate power to order the division of matrimonial assets, where the agreement relates to this, “in such proportions as the court thinks just and equitable”. What weight the prenuptial agreement will be given will depend on the particular facts and circumstances of the case.

In addition, prenuptial agreements between foreign nationals and governed by foreign laws may be given more weight by the courts, provided that the foreign law does not contradict or offend the public policies of Singapore.

What can be dealt with in a prenuptial agreement?

A prenuptial agreement can deal with most matters relating to marriage. This includes issues around either parties’ ownership or division of marital assets, the provision of maintenance in the event of a divorce, and also matters of child custody for children of the marriage.

But – as noted above – the court will view each matter on its own merits and according to the circumstance, such as there being a presumption that a prenuptial agreement which relates to child custody would be unenforceable unless it is shown that the agreement is in the best interests of the child in question.

What are the terms usually included in a prenuptial agreement?

Usually, a prenuptial agreement will include terms relating to:

• Property ownership;
• Division of property in the event of the couple separating or divorcing, or one of the parties passing away;
• The debts and liabilities of the marriage partners;
• Maintenance provisions;
• The law governing the agreement.

However, as with all agreements, it is wise to tailor the terms of the agreement to suit your particular needs.

Drafting a prenuptial agreement

As we have seen, the courts in Singapore will not uphold a prenuptial agreement if it contravenes the Women’s Charter requirements. Drafting a prenuptial agreement can be a delicate issue, and it may be too technical for someone who is not legally qualified to undertake alone. If this is the case, you may wish to consult a lawyer to help to draft your prenuptial agreement.