Prenuptial Agreement

09 March 2022

Foo Soon Yien

For couples eagerly anticipating marital bliss, the topic of a prenuptial agreement is not easy to bring up. Against the exciting backdrop of wedding planning, talking about the end of the marriage before it has even begun may feel inappropriate or even taboo. 

Some worry that initiating discussions of a prenuptial agreement suggests a lack of trust in the other party or a lack of commitment to the marriage.
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There is a common perception that it is usually the wealthier party (or his or her parents) who suggests entering into a prenuptial agreement to protect his or her assets. However, contrary to popular belief, a prenuptial agreement does not unilaterally benefit only one party but protects both parties’ interests. It helps parties to clarify their positions and expectations and avoid misunderstandings.

What is a prenuptial agreement?
Prenuptial agreements refer to agreements reached by a couple before their marriage. Such agreements stipulate what will happen in the event of a divorce and how matters will be resolved. Prenuptial agreements may cover a range of issues, including maintenance, the division of matrimonial assets, and children.
Prenuptial agreements are contractual in nature and must satisfy the requirements of contract law. This means that there must be consideration and the agreement must not be reached through misrepresentation, fraud, duress, unconscionability, or undue influence.

Are prenuptial agreements valid and enforceable in Singapore?
Courts do uphold or pay regard to a prenuptial agreement unless it contravenes or is not in accordance with the principles in the Women’s Charter.


Advantages of prenuptial agreements

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Providing certainty to both parties
While it may be understandably difficult to initiate discussions of a prenuptial agreement, it has the crucial benefit of helping parties avoid misunderstandings. It gives parties an opportunity to discuss and clarify their expectations. It ensures that parties are on the same page on important issues such as financial arrangements. When everything is set out in a written agreement, it can offer additional certainty for the future.


Protecting premarital assets
A prenuptial agreement allows parties to protect the assets acquired before the marriage. While assets acquired before marriage are usually not regarded as matrimonial assets, but it
provides clarity when it is neatly put down in writing. Clear categorisation of assets also helps avoid dispute later on.


Protecting parties from each other’s debts
A prenuptial agreement can be used to ensure that assets of one party will not be used to satisfy debts and liabilities of the other party.


Protecting a family business
Maintaining control of a family business is another advantage of a prenuptial agreement. To avoid complications should the marriage come to an end, we recommend that parties with ownership in businesses enter into prenuptial agreements.


What can be included
The prenuptial agreement may include terms on the ownership or division of assets, maintenance or care of the children.


Division of Matrimonial Assets
Under s112 of the Women’s Charter, the Court has the power to order the division of any matrimonial asset and will do so in a just and equitable manner with regard to the circumstances. A prenuptial agreement cannot be construed in such a manner as to detract from this ultimate power. However, this does not mean that such a prenuptial agreement cannot (where relevant) be utilised to aid the court in exercising its power pursuant to s112 of the Act.


Maintenance
Similarly, the Court does take into consideration the prenuptial agreement but it is not bound to follow any part which is not in accordance with the provisions of maintenance in the Women’s Charter.


Custody, Access and Care and Control of Child
The prevailing principle in granting custody, access and care and control of the child is the best interest of the child. This means that a prenuptial is only enforceable if it is in the best interest of the child.


Conclusion
The end of a marriage is a deeply unfortunate event that many are reluctant to address. A prenuptial agreement is much like insurance in that it provides protection against an unpleasant eventuality. Not only does it help parties ensure that they have a shared, mutual
understanding about future arrangements, it also helps avoid the acrimony of a drawn out court case should the marriage come to an end. If parties have already reached agreement on their financial arrangements, that helps expedite the painful process of divorce and facilitates the resolution of ancillary matters in a systematic and efficient manner.

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