By: Esther Yong
A prenup, aka a pre-marriage agreement signed by a couple that stipulates how they will settle matters between themselves in the event of divorce procedures – is seen to dilute the romantic flavour of wedding preparations here in Asia. Many couples are loathe to consider the breakdown of a marriage before it has even begun.
Despite this, prenup agreements can come in handy if you and your partner don’t make it to happily ever after, and understanding the Singapore court’s stance on prenups is vital to avoid nasty divorce battles. It also pays to remember that a well-drafted prenup can significantly lower the legal cost of divorce but a badly-drafted prenup can cost you more trouble than not having one at all.
Here’s 5 tips from Huffe, Singapore’s leading legal education portal on divorce to bear in mind before you sign on the dotted line:
1. Get a good divorce lawyer
Not just a good lawyer, but a good divorce lawyer. Whether you and your spouse are intending to draft a prenup in Singapore or you have decided to enforce your prenup during divorce proceedings in Singapore, the rewards of engaging an experienced family lawyer will easily shine through. Drafting an effective prenup not only requires extensive knowledge of Singapore’s divorce law but also an in-depth understanding of how the courts interpret marital agreements. A good divorce lawyer in Singapore will be able to strike a balance between abiding by the relevant legal principles and upholding your wishes.
2. Choose what law governs your prenup
In Singapore, the validity of a contract (this includes prenuptial agreements) is determined by a particular system of law called the “proper law of the contract”. The proper law of the contract is in turn decided based on three factors: (1) whether the parties to the agreement have expressly chosen a governing law (2) where parties have not made an express choice, whether a choice of law can be implied or (3) where there is no express or implied choice, the system of law with the closest and most real connection to the contract is chosen. Simply put, there are three possible methods in which the Singapore court will determine which system of law governs your prenup. Methods (2) and (3) are significantly more complicated than Method (1) as they require more intervention from the court.
For the sake of certainty and clarity, it would probably be best for you and your spouse to decide on a system of law to govern your prenup. This would help to save the legal costs of fighting over the governing law of your prenup when either you or your spouse wishes to enforce it.
3. Don’t bother negotiating prenups relating to the custody, care and control of children
In keeping with its protective stance over children, the Singapore court operates on a presumption that prenups relating to custody, care and control of children are unenforceable. Such agreements lie in the zone of unenforceability because they are made in accordance with the parents’ desires and not the welfare of the child/children (who are usually not yet born at the time of agreement). The court will only move out of the unenforceability zone if it is convinced that the agreement is in the best interests of the child/children of the marriage.
4. Even if your prenup specifies how to divide your assets, there is actually no way to guarantee it
For the division of matrimonial assets upon divorce, the Singapore court retains the ultimate power to oversee the just and equitable splitting of assets. Thus, your prenup will not be automatically enforceable just because it exists. A prenup is but one of the many factors that the court will consider in exercising its powers of division, where other factors include the direct and indirect contributions of each spouse towards the accumulation of assets. The weightiness of your prenup in influencing the court’s division of assets depends on the precise facts of your case. Generally, your prenup will be taken very seriously if you and your spouse are foreigners and your prenup is governed by foreign law (a system of law that is not Singapore’s). However, there is no blanket rule that your prenup will be enforced just because it fulfils these criteria — your prenup must first withstand the court’s scrutiny.
5. Singapore won’t tolerate maintenance avoidance tactics
The law in Singapore mandates that a man maintain his former wife and that parents maintain their children. In scrutinising prenups relating to maintenance, the court will consider whether the terms of maintenance are fair and adequate. Thus, to increase the enforceability of your prenup, the sum of maintenance agreed should generally be similar to what the wife and/or children would receive under Singapore’s divorce laws. Additionally, you should remember that the Singapore court fiercely guards the interests of children and will not enforce a prenup that does not prioritise the best interests of the child/children of the marriage – this includes a prenup that provides insufficient maintenance for the children.
At the end of the day, it all boils down to the Singapore court’s tight grip on its powers to scrutinise prenups before enforcing them. Engaging a good divorce lawyer in Singapore will help you to navigate through the complex exercise of drafting or enforcing your prenup here.