A prenuptial agreement (“prenup”) is an agreement that is signed by a couple before marriage. This agreement usually contains terms on how the couple will settle matters between themselves in the event of a divorce.
How the agreement is drafted and how detailed the arrangements are depend on the negotiations and the quality of legal advice obtained. It is important that you consult a good divorce lawyer in Singapore before signing a prenup here.
Prenups are relatively uncommon in Singapore and there is no guarantee that a prenup will have effect because the Singapore court has the power to scrutinise or even ignore prenups. Alternatively, if you have previously signed a prenup and wish to enforce it upon filing for divorce, it is also important that you seek legal advice from a good divorce lawyer so that you will know how to use your prenup to your advantage.
In Singapore, prenuptial agreements generally hold less weight than postnuptial agreements because they are created by couples who have yet to experience the trials of married life. Postnuptial agreements are more up-to-date with the parties’ circumstances and are also more likely to deal with actual events that have materialised during the course of marriage. Thus, the Singapore court may pay greater attention to postnuptial agreements because of their increased relevance and the improved position of the couple to make post-divorce arrangements.
It is relatively common for agreements reached during divorce proceedings to be converted into court orders, as the Singapore court recognises that divorcing parties may have their own reasons and methods of settling matters between themselves. However, the court will pay special notice to whether both husband and wife had equal access to legal advice and whether the agreement was reached through the use of undue influence.
In Singapore, the validity of a contract (this includes prenups) is determined by a particular system of law called the “proper law of the contract”.
The proper law of the contract is in turn decided based on three factors:
(1) whether the parties to the agreement have expressly chosen a governing law
(2) where parties have not made an express choice, whether a choice of law can be implied; or
(3) where there is no express or implied choice, the system of law with the closest and most real connection to the contract is chosen.
Simply put, there are three possible methods in which the Singapore court will determine which system of law governs a prenup. For example, the system of law may be the law of the parties’ home country, the law of Singapore or the law of the place of marriage. Methods (2) and (3) are significantly more complicated than method (1), because the court must either interpret whether parties intended for a certain system of law to govern the contract (for 2) or decide which system of law should govern the contract (for 3).
Thus, it would be useful for a couple intending to sign a prenup to decide on a system of law to govern their agreement. Thereafter, for the choice of law to be effective, it should be recorded in black and white as part of the prenup. This express choice of law would help to save the legal costs of fighting over the governing law of a prenup when either party wishes to enforce it, because the Singapore court can easily refer to the clause in the prenup that stipulates the governing law (instead of having to interpret the parties’ intentions or analyse which system of law is more closely related to the prenup).
Once the Singapore court has arrived at the governing law of a prenup based on either of the three methods explained above, it will use this system of law to assess whether the prenup is valid. Additionally, this system of law will also be used to interpret the terms of the prenup.
In Singapore, the welfare and best interests of the child is of paramount importance. Therefore, the Singapore court operates on a presumption that prenups relating to custody, care and control of children are unenforceable. Such prenups are usually made in accordance with the parents’ desires and not the welfare of the child/children (who are usually not yet born at the time of agreement). A couple may not be able to properly anticipate care arrangements that are in the best interests of their children before they have had children and before they have even tied the knot.
The court may decide to override the presumption and to enforce a prenup relating to children if it is convinced that the agreement is in the best interests of the child/children of the marriage. However, do note that even if the terms of a prenup coincide with the best interests of the children, the Singapore court still holds the ultimate power to uphold, alter or even ignore the prenup.
The law in Singapore mandates that a man maintain his former wife and that parents maintain their children. It is possible for parties to agree (whether in a prenuptial or postnuptial agreement) on the amount of maintenance to be received by the wife and any children of the marriage upon divorce. However, the Singapore court has made it clear that such agreements must first pass the court’s inspection before they become the final arrangement between divorcing parties. This means that the court has the power to vary or even ignore prenups made in relation to maintenance.
In scrutinising prenups relating to maintenance, the Singapore court will consider whether the terms of maintenance are fair and adequate. Note that the Singapore court takes a no-nonsense attitude towards men who use prenups to evade their responsibilities pertaining to maintenance. Thus, to increase the enforceability of a prenup, the sum of maintenance agreed should generally be similar to what the wife and/or children would receive under Singapore’s divorce laws. Under the Women’s Charter, the Singapore court would consider factors such as the financial needs of the wife or child, the earning capacity of the parties, any disabilities of the parties or the child, the age of each party and the duration of marriage, the contributions of each party to the marriage and the family, the standard of living previously enjoyed by the wife or child, the child’s educational pursuits and the conducts of the parties.
Additionally, it is vital to note that the Singapore court fiercely guards the interests of children and will not enforce a prenup that does not prioritise the best interests of the child/children of the marriage – this includes a prenup that provides no or insufficient maintenance for the children.
Founder and Principal Lawyer
of Yeo and Associates LLC
Beatrice Yeo Poh Tiang
Having handled over 10,000 divorces since 2006, Ms. Beatrice Yeo, the Founder and Principal Lawyer of the firm, is widely acknowledged as one of the best divorce lawyers in Singapore.
She has extensive experience in all aspects of Matrimonial Law, including Nullity Proceedings, Contested & Uncontested Divorce and Mediation.
It is Beatrice’s personal endeavour to make sure that her clients get her personal and specialised attention.
Contact Ms. Beatrice Yeo right away for a FREE phone consultation on legal costs and divorce procedure. You may also fill up the enquiry form above to be contacted by Yeo & Associates LLC.
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