Essentially, postnuptial agreements are agreements entered into by married couples to determine issues upon divorce such as the division of matrimonial assets, maintenance and child-related issues. There 3 key points to note:
- Whether postnuptial agreements are enforceable
- Whether it makes a difference if the agreement was made verbally
- Whether the attempt to reconcile affects the agreement
Enforceability of Postnuptial Agreements in relation to division of assets
These agreements may be made when parties are still together and intend to remain together, or when they have separated.
The latter is often referred to as a “separation agreement”. This distinction is not to be taken lightly as it is determinative of the weight the courts will place on the agreement. This is understandably so as a separation agreement is made in serious contemplation of a divorce to cater for the immediate needs of parties.
In general, the courts will attach significant weight to such agreements if properly executed when deciding on the division of matrimonial assets, unless there are good and substantial grounds for evincing that doing so would cause injustice.
However, no such agreements shall oust the jurisdiction of the court in determining the division of assets. In other words, the agreement is only a factor that the court will take into consideration; the court will not simply enforce the agreement at the expense of neglecting other factors.
“Even the presence of a validly executed agreement cannot tie the hands of a court”
When exercising its powers to divide marital assets in a just and equitable manner, the court will have regard to any post-nuptial agreements made in contemplation of a divorce, along with other factors.
Even if the postnuptial agreement is given significant weight, it has to be weighed against all the circumstances. Some of the other factors considered include the extent of contributions (either monetary or towards the welfare of the family), needs of children and debts undertaken by either party for the benefit of the marriage.
The courts will not rubber stamp postnuptial agreements that go against existing laws and public policies as a safeguard to ensure that individual rights are not compromised by agreements made in the presence of possible ignorance and strong emotions.
Oral Postnuptial Agreements
In the event that there was a voice recording, the agreement will be valid if it meets all the elements of a valid contract in Singapore. In a social and domestic context, the courts generally presume that parties have no intention to create legal relations, which is one of the elements of a valid contract.
However, this presumption can be rebutted. The fact that an agreement arose during a contemplated divorce may evince to the court that there was intention to create legal relations.
In the event that there was no recording of the verbal agreement, an agreement may nonetheless be implied albeit with a high evidential threshold. The courts need to be satisfied that an agreement ought to be implied based on all the relevant circumstances and that the agreement must exhaustively govern the post-divorce allocation of the said assets, i.e. all the terms for division of assets have been specified fully and clearly.
“Mere discussions on the potential division of assets will not suffice”
Getting the Right Support
Our team of dedicated divorce lawyers can assist clients with both simple and complex agreements dealing with child-related and high value asset issues. Regardless of your circumstances, we are confident we have the capability to assist you.
