Postnuptial Agreement

16 March 2022

Foo Soon Yien

A popular misconception about postnuptial agreements is that they spell the doom of a marriage. That is not necessarily true as there are 2 kinds of postnuptial agreements.

The first type of postnuptial agreement may be made when the husband and wife are still together and intend to remain together. The second type may be entered into when parties are at the point of separating, in which case, the postnuptial agreement may also be called a “separation agreement”. Both are agreements that parties enter into to set out what would happen if the parties separate or divorce.


Difference between prenuptial and postnuptial agreements
The main difference between prenuptial and postnuptial agreements is the date they are entered into. As the name indicates, prenuptial agreements are created before the marriage is solemnised and registered while postnuptial agreements are created after.
As stated by the Court of Appeal, postnuptial agreements in Singapore are usually accorded more weight by the Court. This is because postnuptial agreements are made in very different circumstances. Firstly, postnuptial agreements are presumed to reflect the more recent intentions and attitudes after parties. Secondly, parties would have experienced marriage and would be better equipped to understand the responsibilities of marriage and the implications of such agreements. It would thus be a better reflection of parties’ expectations and intentions.


Enforceability in Singapore
A postnuptial agreement is a signed agreement between the spouses. This means that the standard rules of contract law apply. The agreement must be a result of offer and acceptance, consideration, and an intention to create legal relations. Additionally, there must not have been undue influence, duress, misrepresentation or mistake in the formation of the agreement.
In Singapore, postnuptial agreements are subject to the scrutiny of the courts.


Division of matrimonial property
The ultimate power is vested in the court to divide matrimonial assets in a proportion that is just and equitable. The postnuptial agreement is only one of the factors to be considered by the court and any such agreement cannot oust the jurisdiction of the court.
Postnuptial agreements relating to the division of matrimonial assets are likely to be accorded more weight than prenuptial agreements due to the change in circumstances. In reaching a just and equitable division of matrimonial assets, the court can choose to place more weight on postnuptial agreements where the circumstances show that the process by which the parties reached agreement is fair, and the agreement does not seem to be manifestly disadvantageous to one party.


Maintenance
All postnuptial agreements with respect to maintenance are subject to the scrutiny of the court and may be varied if there has been any material change in circumstances. This means that the courts have the statutory power, pursuant to s119 of the Women’s Charter to override any postnuptial agreement entered into between the spouses on the issue of maintenance.


Custody, Care and Control
There is a presumption that prenuptial and postnuptial agreements relating to the custody are unenforceable unless it is clearly demonstrated by the party relying on the agreement that it is in the best interests of the child. This is because the Court presumes that the agreement focuses on the will and interests of the parents rather than the welfare of the child, which is the paramount consideration of the court.
It should be noted that the content of the prenuptial agreement may indeed coincide with the welfare of the child. However, the court would nevertheless be the final arbiter as to the appropriateness of the custody arrangements in the agreement.


Advantages of postnuptial agreements
Create certainty
When parties enter into postnuptial agreements, they would engage in discussions of their expectations. While the possibility of a divorce is a difficult topic to broach, it would help both parties to have clarity on their respective positions in the unfortunate event of a divorce.


Reflect changes in circumstances
Postnuptial agreements can be helpful to reflect a significant change in circumstances since the marriage. For example, if a party receives a large inheritance after the marriage and wants to protect it in the event of a divorce, a postnuptial agreement can be helpful to reflect the change in parties’ intentions, expectations and circumstances since they got married.


Expedite proceedings
When divorces are long and protracted, they may take an emotional toll on parties. A postnuptial agreement would help to expedite divorce proceedings and reduce disagreement and conflict. This is because parties would have reached consensus on the ancillary matters in the postnuptial agreement, and the divorce would be uncontested. An uncontested divorce is one where the parties have come to a private agreement on all the issues to the divorce. This is in contrast to a contested divorce which means that there are still pending issues to be heard in court. A contested divorce can be lengthy and arduous and a postnuptial agreement that addresses the ancillary matters could help avoid that.


Conclusion
In conclusion, it may be helpful for spouses to enter into postnuptial agreements to ensure that they have a shared understanding with regards to financial arrangements in the unfortunate event of a divorce. While it may be a difficult topic to broach, there are significant advantages in ensuring that parties are on the same page about their future expectations.

Foo Soon Yien
Senior Director, Founder, BR Law Corporation
foosoonyien@brlawcorp.com