Prenuptial Agreements in Singapore

By Peter Ong Lip Cheng

Introduction

In the recent divorce saga of Taiwanese superstar Wang Leehom, there have been talks about the prenuptial agreements that the superstar entered into with his ex-wife Li Jinglei prior to the marriage. In this article, let us examine what are prenuptial agreements and their applicability to the Singapore context.

Prenuptial agreements, or “Prenups” are contracts which couples enter into prior to their marriages. It is perceived as a form of security by some couples, as it sets out the rights of the respective parties over property, maintenance and custody matters, in the event the marriage fails.

Enforceability of Prenuptial Agreements in Singapore

In the landmark case of TQ v TR and Another Appeal [2009] SGCA 6, the Court of Appeal of Singapore upheld the decision to recognise the prenuptial agreements, the Court noted that that it may not be applicable for all circumstances as each case “depend on its own facts and it would therefore be inappropriate to draw any general principles from the actual decision” of the judgment. Further, it should also be noted that the prenuptial agreement of TQ v TR is “wholly foreign in nature”, where the governing law adopted in the agreement in question was based on Dutch law.

In order for a prenuptial agreement to be enforceable, fundamentally it must satisfy the basic elements of contracts, and parties must ensure that its formation is not due to any duress, undue influence, unconscionability or misrepresentation, which may otherwise nullify the enforceability of the contract. The agreement must also comply with the policies and provisions of the Women’s Charter (Chapter 353), in order for it to be upheld.

In divorce proceedings, the Court has the final discretion to determine whether the prenuptial agreement is to be upheld, or to what extent should the terms set out in the prenuptial agreement be upheld. For instance, under Section 112(1) of the Women’s Charter (Chapter 353), it states:

The court shall have power, when granting or subsequent to the grant of a judgment of divorce, judicial separation or nullity of marriage, to order the division between the parties of any matrimonial asset or the sale of any such asset and the division between the parties of the proceeds of the sale of any such asset in such proportions as the court thinks just and equitable.

This provision provides the Court with the power to decide the division of matrimonial assets of parties without being bound by the terms of the prenuptial agreement. Though in the existence of a prenuptial agreement, the court may take terms of the prenuptial agreement into consideration when deriving her decision.

Prenuptial Agreements vs Postnuptial Agreements

…

Postnuptial agreements, as the name implies, are agreements entered between married couples after marriage. Due to the circumstances of its formation, it lends more weight to parties seeking to rely on the agreement in divorce proceedings.
In Section 112(2)(e) of the Women’s Charter (Chapter 353), it states:

It shall be the duty of the court in deciding whether to exercise its powers under subsection (1) and, if so, in what manner, to have regard to all the circumstances of the case, including the following matters:

(e) any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce;

Postnuptial agreements, as the name implies, are agreements entered between married couples after marriage. Due to the circumstances of its formation, it lends more weight to parties seeking to rely on the agreement in divorce proceedings.

Terms of prenuptial and postnuptial agreements

Common terms of a prenuptial and postnuptial agreements usually includes:

1. Arrangements and transfer in ownership of properties after divorce, separation or demise of one party;
2. Treatment of debts and liabilities;
3. Maintenance issues;
4. Treatment of ownership in businesses or companies
5. Jurisdiction

Drafting a prenuptial agreement

Due to the sophisticated nature of prenuptial and postnuptial agreements, it is important to ensure that the terms set out in the agreements comply and align with the stipulations of the Women’s Charter. Therefore, it is always advisable to engage in an experienced family lawyer to advise and guide couples in the drafting process.