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Prenuptial Agreements in Singapore

What are pre-nuptial agreements?
Pre-nuptial agreements (PNA) are agreements between parties that stipulate how the assets will be divided in the event of a divorce. Without a PNA, the assets will be split in accordance with Singapore marriage law. It should be noted that not all PNAs will necessarily be taken into consideration by the courts – but more on this in the later section; for now, let’s explore what are some benefits of creating a PNA.

Should I create a pre-nuptial agreement?
Although the thought of creating a PNA may seem repulsive for some given its similarities to a business contract, which seemingly reduces the marriage to a business transaction, the benefits far outweigh the costs. Furthermore, one does not need to view a PNA from the position that the marriage is doomed to fail, rather, it can be seen as a practical safeguard to protect both parties from further hurt and discord should the marriage unfortunately break down. As two mature individuals, preparing for seemingly unlikely events may be the prudent way forward, regardless of how unlikely a divorce may seem presently, and a decision to create a PNA does not lessen a couple’s love for each other in any way.

In fact, there are numerous reasons that support the creation of a PNA. Among others, a PNA can give rise to the benefit of protecting your wealth and family heirlooms, shield you from liability for your spouse’s debt, and even protect your family business in the event of a divorce. In the case of a remarriage, a PNA may also serve to protect your children from a prior marriage, your assets, and other obligations.

Are all pre-nuptial agreements binding on parties in Singapore?
As alluded to earlier, not all PNAs will command legal force in Singapore. In order to have any legal force, the pre-nuptial agreements should be skilfully drafted in a manner that accords with a valid contract.

If any part of the agreement goes against the provisions or legislative policy of the Women’s Charter, it will not be taken into consideration by the courts. Hence, the courts are entitled to carefully scrutinise the PNA before deciding whether to give effect to it in the divorce proceedings.

Under Section 112 of the Women’s Charter, the courts have the power to divide the assets in a just and equitable manner in the way they deem fit, having regard to all circumstances of that particular case. The weight to be accorded on a PNA would depend on the facts in that case, but certain factors will incline the courts toward/away from enforcing it. For example, when arrangements outlined are deemed to be in the best interest of the children, there is a good chance the PNA will be accorded greater weight. However, if there was a failure to disclose all assets, or the PNA was drafted to allow a spouse to avoid his/her marital obligations, it will not be taken into consideration by the court. Hence, while the PNA may be extremely persuasive, it is never determinative in and of itself. Ultimately, the courts will have the final say on whether the PNA is enforceable. Hence, given its complex nature, the aid of a lawyer in this entire process may prove useful.
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