Singapore: Prenups – The Next Big Thing In Singapore?

Last Updated: 9 May 2018
Article by Sharanjit Kaur and Michelle Ng

Contrary to popular belief, marital agreements are not as uncommon or far-fetched as they may seem to be. But what are nuptial agreements? Why are they getting increasingly popular?

Pre-nuptial agreements

The days leading up to the big day are passing in a rush. Amidst all the ordering of flowers and fussing over choices of bridesmaids' hairstyles, a prenuptial agreement may be the last thing on your mind. After all, why would it be? Why on earth would you, before even getting married, want to go into detailed planning for the worst that could happen?

A prenuptial agreement, or what is colloquially known as a 'prenup', is an agreement made between parties intending to get married, stipulating how matters will be settled between themselves in the event of a divorce. In sum, it lays down who gets what if the marriage crumbles. Prenuptial agreements are usually made as a form of sensible protection in case a marriage does not go as planned.

Post-nuptial agreements

In contrast, a postnuptial agreement, or a 'postnup', is an agreement made between a husband and wife after marriage, in which they decide on what would happen upon their separation or divorce, whichever is the case.

When parties sign a postnup, the state of their relationship may not necessarily have deteriorated – parties could choose to sign a postnup instead of a prenup simply because they did not have enough time amidst all the wedding preparations. Another common situation in which parties may choose to enter into a postnup is when there have been significant changes to their family's circumstances after their marriage that warrant serious planning, such as inheritance, children, or plans to migrate overseas. Entering into a postnup would serve to ease the insecurities that may be brought about by the changes that are happening to your family.

The issues covered by prenups and postnups are usually vastly similar. Broadly, they usually cover the amount of maintenance each party and/or their children should receive, how their matrimonial assets should be divided, and the custody, care and control of their children.

Are nuptial agreements enforceable in Singapore?

The common perception in Singapore is that the courts will not be bound by prenups or postnups. Is that true? Well, yes and no. What is true is that a marital agreement cannot be enforced in and of itself. However, they do have the force of law – courts have to consider them and may eventually decide to give them substantial or even conclusive weight.

As you may already have guessed, a court's decision on the division of matrimonial assets, maintenance and custody and care and control is not made at a judge's whims and fancies. Divorce proceedings in Singapore are governed by the Woman's Charter, and it is therefore important that a nuptial agreement cannot offend the Women's Charter.

When it comes to division of matrimonial assets, nuptial agreements are only one of the factors taken into account by the court in the exercise of its powers to reach a just and equitable division.

Assets aside, marital agreements may also provide for maintenance of the wife and/or children. These, unsurprisingly, are subject to closer scrutiny by the courts as compared to agreements relating to assets. For instance, parents have a legal duty to provide financially for their children. If they attempt to contract themselves out of this by way of a prenup or postnup, this will obviously not be condoned by the court.

Courts tend to play a more proactive role in ensuring that marital agreements that relate to the custody and care and control of children uphold the welfare of the child. Before the court gives effect to terms that relate to a children's custody, care and control, it must be satisfied that such terms are in the best interests of the children concerned. After all, it is the welfare of the children that is ultimately the paramount consideration.

In Singapore, courts tend to place greater weight on postnups as they are made in very different circumstances from that of a prenup. This is because postnups are more current in reflecting parties' intentions as compared to prenups. At the point of singing a postnup, parties have already undertaken towards each other the obligations and responsibilities of marriage, whereas for a prenup, the agreement is made at a point before parties have even committed themselves to each other through marriage.

Nuptial agreements made outside Singapore

The place where you sign your nuptial agreement, or rather, which country's laws you choose to govern your agreement is also something important to think about – this may affect the country in which your matrimonial dispute is ultimately heard (if your marriage unfortunately heads that way). One example that clearly showcases the importance of this is the Singapore High Court case of AZS and another v AZR [2013] 3 SLR 700. The husband and wife, who were French nationals, were married in France, and during their marriage had relocated to Singapore. They had entered into a prenup prior to getting married. In the prenup, numerous references were made to French law (the French Civil Code). When their relationship broke down, the husband commenced divorce proceedings in France while the wife commenced divorce in Singapore. The husband applied to the Singapore court to put the wife's divorce proceedings on hold on the basis that the French courts would be more a more appropriate forum to hear the divorce. If it was to be heard in Singapore, the Singapore court would have to examine the prenup which was made in France and under French law. In addition, the wife argued that she had not signed the prenup voluntarily – and for the Singapore court to determine whether this was true, witnesses in France would need to be called. As these were not suitable issues to be heard in the Singapore courts, the Singapore High Court concluded that France was the more appropriate forum for the parties' divorce to be heard.

Nuptial agreements are surely the way to go

Nuptial agreements are increasingly becoming accepted for what they are: not a distrust of your future spouse, but a realistic recognition of the facts of life. Entering into a nuptial agreement is worth a serious thought. Initiating a talk about the possibility of a nuptial agreement may be awkward, but they can be thought of as being an insurance policy of sorts, one which you hope will never be needed – in no way detracting from the joy of getting married or being married.

If you're considering a prenup, do try and finalise it at least a month before the wedding – you won't want to be worrying about that while preparing for your bridal party! You may wish to consider engaging a good family lawyer as much help will be needed when you navigate through the complex exercise of drafting your nuptial agreement.

As for postnups, which are usually considered by parties when there is a significant change in circumstances, it may be prudent to engage a lawyer or even a counsellor to talk through such issues before proceeding to sort out the nitty-gritties of the agreement.

Lastly, do remember to give each other time to consider, to seek legal advice and negotiate before coming to your final decision on whether to enter into a prenup or postnup.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Withers LLP
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Withers LLP
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions