Prenuptial Agreements - Are they Recognised in Singapore Courts?

Summary: While prenuptial agreements may be recognised as valid if they fulfil the usual contractual requirements, the Singapore Courts will still scrutinise every prenuptial agreement before deciding on whether to enforce or give any of its terms conclusive weight, depending on the subject matter of the prenuptial and whether it is consistent with existing laws.

A prenuptial agreement (also known as a premarital agreement or antenuptial agreement) (hereinafter “prenup”) is essentially a contract entered into by a couple prior to their marriage.

A prenup can cover any issue which is usually the subject of ancillary proceedings, including maintenance, the division of matrimonial assets, and children.

However, it should be noted any clause dealing with such issues which contravenes the express statutory provisions will not be upheld.

Generally, a prenup is valid unless it completely undermines the marital relationship.

Prenup must comply with contractual requirements

Prenups must also comply with the various usual contractual legal doctrines and requirements – such as being validly formed in line with the general principles on offer and acceptance.

They are also subject to the various vitiating factors under the standard contractual doctrines such as misrepresentation, mistake, undue influence, duress, unconscionability, as well as illegality and public policy.

Other factors which the Court would look at are:

1. that the parties were ad idem;
2. whether the question of the benefit of legal advice was necessary if the case was a complicated one;
3. whether there was extreme pressure applied by the husband resulting in the wife accepting an unsatisfactory financing agreement;
4. whether unforeseen circumstances had arisen which made it impossible for the wife to work or otherwise maintain herself;
5. whether the agreement had been reached at arm’s length and the parties had been separately advised which facts if found would constitute prima facie evidence of the reasonableness of the terms;
6. whether poverty and ignorance produced an unfair and unacceptable arrangement for one side;
7. whether on the construction of the agreement there was a good and effective consent;
8. whether there was mistake, duress or undue influence such as the husband being in a superior bargaining position and he took unfair advantage by exploiting his position and the agreement was entered into without the wife having full knowledge of all of the relevant facts and or legal advice; and
9. the weight to be given to the conduct of the parties and circumstances of the case.

The Court is more likely to respect the prenup on matters which only affect the spouses themselves (provided they negotiated at arm’s length and close to when the prenup comes before the court), and on matters which do not affect the child’s welfare.

Spouses also cannot exclude the Court’s powers in their prenup and such attempts are unenforceable and any offending clause may be severed.

There are in particular three broad categories of prenups which the Court has given guidance on, being prenups relating to:

1. the maintenance of the wife and/or the children;
2. the custody (as well as the care and control) of children; and
3. the division of matrimonial assets.

Prenups relating to the maintenance of the wife and/or the children

All prenups on the maintenance of the wife and/or the children will be subject overall to the Court’s scrutiny.

The terms must embody a just and fair result insofar as the claim for maintenance is concerned. The Court will prevent a husband from circumventing his obligation to provide maintenance.

The Court will also be mindful that the sum of maintenance should be adequate according to the criteria in the Women’s Charter and in the case law.

Insofar as a prenup relates to children’s maintenance, the Courts will be especially vigilant and hesitate to enforce agreements that are not in the children’s best interests.

Prenups relating to the custody (as well as the care and control) of children

With regard to prenups on custody (and care and control) of children, there is a presumption that such agreements are unenforceable unless it is clearly demonstrated that the prenup is in the best interests of the children.

While the contents of the prenup may coincide with the welfare of the children, nonetheless, the Court remains the final arbiter as to the appropriateness of the arrangements in the prenup.

Prenups relating to the division of matrimonial assets

Finally, for prenups on the division of matrimonial assets, the ultimate power resides in the Court to order the division of matrimonial assets “in such proportions as the court thinks just and equitable”.

A prenup cannot detract from this ultimate power.

Nevertheless, a prenup can still be useful and relevant in assisting the Court in exercising its power pursuant on determining what is just and equitable pursuant to s 112 of the Women’s Charter.

However, everything will depend upon the precise circumstances before the Court.

Conclusion
In essence, prenups can have persuasive or even conclusive weight depending on the scope and matter to which the terms relate to. Prenups are ultimately subject to the scrutiny of the Courts.

As such, couples who wish to enter into a prenup should seek legal advice before doing so and ensure that their prenup is drafted by an experienced family lawyer to ensure that it meets the necessary requirements.

Disclaimer
This article has been prepared for general informational purposes only and should not be relied upon as legal advice or a substitute for seeking legal representation.

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