Prenuptial Agreements – Not A Barrier to Nuptial Bliss

A common sight in celebrity weddings in the West, prenuptial agreements are more of an exception than the norm here in Singapore. Since they usually deal with matters in the event of a divorce, many view them as a sign of bad luck or distrust.

However, superstitions aside, a prenuptial agreement reflects, more than anything, excellent foresight and preparations for the worst. In fact, a well-drafted prenuptial agreement in which both parties’ rights and obligations are adequately protected can create a win-win situation.

Nature of a prenuptial agreement

A prenuptial agreement is essentially a contract that a couple enters into before they get married, to deal with matters in the event of divorce such as maintenance, division of matrimonial assets and care, control and custody of children.

However, it is not restricted to such, and could also include terms governing parties’ marital rights and obligations. An example is one requiring parties to maintain separate financial lives.

Legality of a prenuptial agreement

Preliminarily, the prenuptial agreement must be a valid enforceable contract. In other words, it must satisfy the basic legal requirements under the laws of contract in Singapore. Thus, for example, if the agreement was not supported by consideration, it would not be enforceable.

However, even if it is a perfectly valid contract, a prenuptial agreement is not enforceable in and of itself in Singapore. Instead, it is but one factor taken into consideration by the Singapore courts in divorce proceedings.

Nevertheless, this does not mean that it is then pointless to go through the expense of preparing and entering into a prenuptial agreement. In fact, there have been cases where a prenuptial agreement was given conclusive weight and its terms given full effect, through the use of a consent order.

What then explains the difference in treatment? The crux lies in whether the provisions in the prenuptial agreement conform to the different underlying statutory principles guiding the courts in matrimonial proceedings.

For example, for matters relating to child custody, the overarching principle is that the child’s welfare is paramount. Hence, if arrangements in the prenuptial agreement are in the child’s best interests, the court will likely not hesitate to give it effect.

Therein lies the importance of seeking assistance from an experienced and skilled lawyer for the purposes of drafting a prenuptial agreement. The failure to ensure an alignment between terms in the prenuptial agreement and the various statutory principles would effectively render the entire attempt futile.

Avoid the pitfalls

A few self-help tips are listed here that could increase the likelihood of a prenuptial agreement being given greater weight by the courts.

  1. Always ensure that both parties have independent legal advice at the time of signing of the agreement;
  2. The court is more likely to give effect to terms that parties have willingly consented to whilst being fully aware of their legal consequences.
  3. Never misrepresent the nature or value of one’s assets at the time of signing of the agreement. If not, the other party can always allege unfairness later on.
  4. Clearly specify the choice of law that the prenuptial agreement is to be subject to. If a country recognising prenuptial agreements as valid in and of itself is selected as the choice of law, local courts are more likely to give its terms more weight.
  5. Where divorce has become an imminent result, the couple could choose to enter into another agreement: a post-nuptial or Separation or even a Settlement agreement on all the issues of the divorce. Since it is entered into at a closer point in time to the divorce, its terms are likely to hold more weight.

What do you have to lose?

A well-drafted prenuptial agreement could not only result in swift resolution of divorce proceedings and savings in legal costs and time, it can also greatly reduce the acrimony and emotional suffering that parties are put through during divorce proceedings.

Comparing the options, one definitely has more to lose from not protecting oneself at all, than from jumping on the prenuptial bandwagon.

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The contents and views set out above are those of the author(s) and/or are personal views and for information only. It does not constitute in any way any legal advice or representation to the reader even if the facts appear similar to your fact situation.  You are strongly encouraged to seek legal advice should you have any legal issues.