Prenups in Singapore: All You Need To Know

A prenuptial agreement (often called a prenup) is a legal contract a couple signs before getting married.

This agreement sets out how their assets, debts, and financial matters will be handled during the marriage and if they divorce or one of them passes away.

Why Have a Prenup?

 

Financial Clarity and Protection of Assets: A prenuptial agreement provides clear guidelines on how assets will be divided, protecting personal assets and ensuring both parties understand their financial rights and obligations.

Tailoring Financial Arrangements to Specific Situations: Prenups allow couples to customise their financial arrangements based on their unique circumstances, such as excluding family heirlooms or businesses from marital property.

Protecting Against Debts and Financial Obligations: A prenup can shield one spouse from the other's existing or future debts, ensuring that financial responsibilities are clearly defined and agreed upon.

Providing Security for Children from Previous Relationships: Prenups can ensure that assets are allocated to children from previous marriages, providing them with financial security and reducing potential conflicts.

Legal Framework in Singapore

In Singapore, prenuptial agreements (prenups) are not automatically enforceable. Instead, the courts play a significant role in reviewing these agreements to ensure they align with legal principles and fairness before they can be upheld.

Here’s an overview of how the legal framework operates regarding prenups in Singapore:

Key Legal Provisions

Women’s Charter: This is the primary legislation governing family law in Singapore. It includes provisions for asset division and maintenance, with Section 112 emphasising fair and equitable distribution of matrimonial assets.

Judicial Discretion: Courts review prenuptial agreements to ensure they are fair, voluntary, and fully disclosed. They assess whether the terms are just and equitable, considering the specifics of each case.

 

Court's Review Process

When reviewing prenuptial agreements, Singapore courts consider several factors:

1. Fairness: The court examines whether the terms of the prenup are fair to both parties. An agreement heavily favouring one party may be deemed unfair and unenforceable.

2. Voluntariness: The court checks if both parties entered into the agreement voluntarily. Evidence of coercion, duress, or undue influence can invalidate the prenup.

3. Full Disclosure: Both parties must fully disclose their assets and liabilities at the time of signing. Hiding assets or lack of transparency can lead to the agreement being set aside.

4. Legal Advice: It is advisable for both parties to seek independent legal advice before signing a prenup. This ensures they understand the terms and implications, supporting the agreement's fairness and voluntariness.

5. Contextual Consideration: The court considers the specific circumstances of each case, including the financial status and contributions of both parties, to ensure the agreement is fair and equitable.

6. Best Interests of Children: If the prenup includes provisions related to children, the court prioritises the children's best interests. Terms not in the children's best interests are unlikely to be enforced.

7. Foreign Prenups: For agreements involving foreign nationals or assets in different jurisdictions, the court may consider the prenup's validity under relevant foreign laws. However, the terms must still align with Singapore’s public policy and legal principles.

Key Elements to Include in a Prenuptial agreement

 

When drafting a prenuptial agreement, it’s essential to ensure that all crucial aspects are covered to provide clarity and protection for both parties. Here are the key elements that should be included to create a comprehensive and enforceable prenup.

 

• Division of Property and Assets
  Clearly outline how property and assets will be divided during the marriage and in the event of a divorce.

• Maintenance and Alimony Arrangements
  Specify terms for spousal support, including the amount and duration of maintenance payments.

• Handling of Debts and Liabilities
  Detail how existing and future debts will be managed and who will be responsible for them.

• Provisions for Changes in Circumstances
  Include clauses that allow for the agreement to be reviewed and amended in case of significant changes, such as the birth of children or major financial shifts.

• Exclusion of Child Custody and Support Terms
  Avoid including terms related to child custody and support, as these matters are determined by the court based on the child's best interests at the time of divorce.

How Prenups can be invalidated

While prenuptial agreements can provide significant benefits and protections, they are not immune to being challenged and potentially invalidated in court. Here are several key reasons why a prenup might be invalidated:

 

1. Lack of Voluntariness
For a prenuptial agreement to be valid, both parties must have entered into it voluntarily. If there is evidence that one party was coerced, pressured, or under duress to sign the agreement, the court may invalidate the prenup. This includes situations where one party was threatened or manipulated into agreeing to the terms.

2. Fraud or Misrepresentation
A prenup can be invalidated if one party can prove that the other engaged in fraud or misrepresentation. This includes failing to disclose all assets and liabilities or providing false information about financial status. Full and frank disclosure is essential for the agreement to be considered fair and binding.

3. Unconscionability
If a prenuptial agreement is found to be unconscionable at the time it was signed, meaning it is excessively unfair to one party, the court may decide not to enforce it. This can occur if the terms are heavily one-sided or if one party was not given sufficient time to consider the agreement before signing.

4. Lack of Independent Legal Advice
While not a strict requirement, the absence of independent legal advice for both parties can be grounds for invalidation. Courts prefer that both parties have had the opportunity to consult with their own lawyers to fully understand the terms and implications of the agreement. This helps ensure that both parties entered the agreement knowingly and willingly.

5. Improper Execution
Prenuptial agreements must be executed according to legal requirements. This typically involves signing the document in the presence of witnesses and ensuring that all formalities are observed. Failure to properly execute the agreement can render it invalid.

6. Changes in Circumstances
Significant changes in circumstances since the prenup was signed can also lead to its invalidation. For example, if the financial situation of either party has changed dramatically, or if new children have been born, the original terms of the prenup may no longer be deemed fair or relevant.

7. Public Policy Violations
Prenups must not violate public policy. This means that agreements containing terms that are illegal, immoral, or otherwise contrary to the principles of justice and fairness can be struck down by the courts. For instance, provisions that waive child support or attempt to predetermine child custody arrangements are often not enforceable.

8. Lack of Mental Capacity
If one party lacked the mental capacity to understand the nature and consequences of the prenuptial agreement at the time of signing, the agreement can be invalidated. This includes situations where one party was under the influence of drugs, alcohol, or suffered from a mental impairment.

Is it Too Late for a Prenup? Consider a Postnuptial Agreement

 

If you missed the opportunity to sign a prenuptial agreement before getting married, it’s not too late to put similar protections in place. You can consider creating a postnuptial agreement instead. 

What is a Postnuptial Agreement?

A postnuptial agreement, or postnup, is a legal contract entered into by spouses after they are married. Like a prenup, it outlines how assets, debts, and financial matters will be managed during the marriage and in the event of a divorce or death. The main difference is the timing of the agreement—postnups are signed after the wedding.

Why Consider a Postnuptial Agreement?

 

1. Financial Changes: Significant changes in financial circumstances, such as receiving an inheritance, starting a business, or experiencing a substantial increase in income, may prompt the need for a postnup to protect these new assets.

2. Marital Stability: If a couple experiences marital difficulties but wishes to remain together, a postnup can help address financial concerns and clarify responsibilities, potentially alleviating some of the stress and uncertainty.

3. Debt Management: If one spouse incurs significant debt after marriage, a postnup can delineate responsibility for debt repayment, protecting the other spouse from liability.

4. Blended Families: For couples with children from previous marriages, a postnup can ensure that certain assets are designated for these children, providing security and honoring prior commitments.

5. Peace of Mind: Like a prenup, a postnup can provide clarity and peace of mind by clearly defining financial arrangements and reducing the potential for future disputes.

Key Elements of a Postnuptial Agreement

 

• Asset Division: Clearly outline how assets will be divided in the event of a divorce or death.

• Spousal Support: Specify terms for maintenance and alimony, including amounts and duration.

• Debt Responsibility: Detail how existing and future debts will be managed and who will be responsible for them.

• Changes in Circumstances: Include provisions that allow for the agreement to be reviewed and amended as circumstances change, such as the birth of children or major financial shifts.

• Exclusion of Child Custody and Support Terms: Avoid including terms related to child custody and support, as these matters are determined by the court based on the child's best interests at the time of divorce.

Conclusion

In summary, prenuptial agreements are valuable tools for couples to ensure financial clarity and protection before marriage. These agreements outline how assets, debts, and other financial matters will be handled, potentially easing divorce proceedings by providing clear terms. However, not all prenuptial agreements are automatically enforceable in Singapore. Courts review them to ensure they are fair, voluntary, and fully disclosed, aligning with legal principles under the Women’s Charter.

If you didn't establish a prenuptial agreement before marriage, it's not too late to consider a postnuptial agreement. Postnuptial agreements, similar to prenups, are entered into after marriage and can address changes in financial circumstances, offering similar protections and peace of mind. Ensuring that any prenuptial or postnuptial agreement is valid requires careful consideration of legal advice, full disclosure, and fairness to both parties.

How Jacque Law Can Help

Navigating the complexities of prenuptial and postnuptial agreements can be challenging. Jacque Law specialises in family law and can provide expert guidance to ensure your agreements are fair, enforceable, and tailored to your unique circumstances. Our experienced team is dedicated to helping you protect your assets and secure your financial future.