Prenuptial and Postnuptial Agreements

Prenuptial and postnuptial agreements are practical arrangements which determine what happens to a couple’s property and financial assets if the marriage fails and they divorce. These agreements can also cover custody matters.

Always controversial, pre and postnuptial agreements are viewed as insurance by many couples. In contrast, others see them as a body blow to the trust and commitment required for a long-lasting and successful marriage.

Prenuptial and postnuptial agreements must be correctly executed under contract law to be valid. However, the courts can still disregard their provisions.

What is a prenuptial agreement?

Also called a prenup, this agreement is a written contract between two people before they marry. It sets out what will happen in certain circumstances, mainly who will get what if the marriage fails, and what happens to the children.

Are prenups a good idea?

Lawyers tend to advocate for prenuptial agreements, especially with high net-worth couples; it’s a way of protecting significant assets if the worst happens.

Prenups force people to face the prospect of their marriage failing and what would happen in this scenario. It’s not always something that couples want to focus on, but it can be helpful to discuss more challenging topics.

Quite often, a prenup is an excellent opportunity to discuss things that may have yet to be considered, like who will care for the children and if one parent is going to stay at home. These subjects can help set the scene for a happy marriage; they don’t have to be a portend of doom.

Prenups can also protect family businesses if divorce happens, preventing the removal of assets by a non-family member. This also applies to heirlooms.

However, the main reason that soon-to-be-wed couples do not favour prenups is the downside of talking about divorce before you are even married. Many people view prenups as a tangible indication of a lack of trust and commitment and, essentially, planning for defeat.

What kind of things does a prenup cover?

Prenups usually envisage a time when the marriage has failed, so they prescribe what happens to the division of property and assets.

Couples can decide how to split their property and finances; it doesn’t have to be 50:50. A prenup can also cover the scenario when a party to the marriage has died. Although this is more appropriately dealt with by writing a will, many people delay doing this until they have had children, and sometimes, not even then.

In some situations, a prenup will cover debts and liabilities owed by one or both parties.

A prenup can also help protect children from a previous marriage.

Are prenups enforceable in Singapore?

A prenup is considered a binding agreement, but notwithstanding this, the court may decide not to follow its terms. There are various reasons for this.

It could be because the scenario in a marriage further down the line may be entirely at variance with what was deemed reasonable and decided several years earlier.

Further, the court must consider previous case results and relevant legislation.

In 2009, in the case of TQ v TR, the Court of Appeal in Singapore upheld a specific prenuptial agreement. However, the judgement warned that prenuptial agreements are not automatically enforceable.

The court will not uphold a prenuptial agreement that contravenes any express provision within the Women’s Charter. Drafting a prenup should be done in line with the requirements and policies of the Charter. A prenup which chimes closely with it is more likely to be upheld by a court.

A court is entitled to assess a prenup if divorce proceedings are commenced and consider the terms in the light of Section 112 of the Women’s Charter. This allows the court to divide marital assets in a just and equitable manner which could be in direct contravention of the prenup.

With reference to custody, care, and access to any children, no prenup agreement can dent or remove the ultimate power of the court to put the children’s interests first at all times.

Even though a court may ultimately end up disregarding the contents of a prenup, it is still important that any agreement is correctly executed so it is valid. This means there should be no fraud, coercion, or misrepresentation.

A prenuptial agreement may reference a governing law. Consequently, the Singapore courts may then place more weight on supporting the terms of the contract if the stated governing law recognises prenups.

What is a postnuptial agreement?

A postnuptial agreement is entered into during the marriage and sets out what happens if the parties separate, divorce, or one spouse dies.

It’s fair to say that the only difference between prenups and postnuptial agreements is the date of their creation.

However, the courts often place more weight on a postnuptial agreement as they are written within the context of a live marriage rather than the prospect of what it will be like to be married.

Agreements made within the reality of marriage are more likely to be upheld as representative of a couple’s desires and intentions.

Some couples write a prenup and follow up later with a postnuptial agreement. It’s essential that the two documents don’t contradict one another and that it’s clear which one has precedence.

If both exist and the couple’s relationship has fractured, leading to a divorce, the court will likely attribute more weight to the later post-nuptial agreement.

What is the difference between a postnuptial agreement and a deed of separation?

Both arrangements are entered into post-marriage, but a deed of separation is usually only considered when filing for divorce or when a couple are waiting to divorce but has not yet met the required conditions – Usually a period of three years from the date of the marriage.

A deed of separation is legally binding, whereas a court can disregard the provisions of a postnup; they are not binding automatically.

Postnuptial agreements and wills

Wills serve a broader purpose than postnups and can include people outside the marriage. Postnups relate only to the relationship between the spouses.

A will is a legally binding document, and the provisions made for the distribution of assets on the death of a spouse will stand. A postnup, whilst carrying more weight with the court generally than a prenup, can be overridden by the court.

The contents of postnuptial agreements

Most postnuptial agreements contain similar provisions to a prenup; they cover the split of assets in the event of a divorce, maintenance payments, and the custody and control of any children.

Having children can be a trigger for a couple to enter into a post-nuptial agreement. A large inheritance or a significant change of circumstances is another.

Enforceability of postnuptial agreements

Like prenups, postnuptial agreements are subject to the same rules of contract law as any other signed agreement. This also means the agreement will be invalid if evidence of undue influence, coercion, or misrepresentation exists.

Even if the document is correctly executed, a court can still choose to disregard it if the provisions do not align with the policies and terms set out in the Women’s Charter.

Unfair and inequitable division of marital assets in a postnuptial agreement is unlikely to be upheld by the court. Provisions which restrict or stop a wife from applying to her husband for maintenance are also likely to be disregarded by the court.

No court will uphold arrangements for children that run contrary to their welfare.

Final thoughts

It’s sensible to take legal advice if you want to have a prenup or postnuptial agreement. Provisions which ally closely with the terms of the Women’s Charter are more likely to be supported by a court