Are you about to get married? If you are, have you considered putting together a prenuptial agreement in Singapore?
In this article, we will take a look at what exactly a prenuptial agreement is and whether or not you should consider having one drawn up ahead of your big day.
A prenuptial agreement is a legal contract that is signed by two people before they get married. It outlines agreements over ownership and custody of finances, assets and children for each person in the event of separation or divorce.
The best way to think about it is like an insurance policy, but instead of protecting against some external event, it protects against an internal one: getting divorced. It can be used for any marriage where there are significant assets or children involved.
There are no laws in Singapore mandating couples to sign a prenup. However, this does not mean you should not consider it.
So, should you get one? Read on to find out.
General overview of what a prenuptial agreement is in Singapore
A prenuptial agreement is a contract between two parties before their marriage to specify the terms and conditions of their rights to their property and children should they divorce or separate. The agreement can be signed even if you have no intention to get divorced, so long as there is no conflict with public policy (for example, it cannot contravene the Women’s Charter).
In the landmark case of TQ v TR, the Singapore Court of Appeal upheld the prenuptial agreement. Nonetheless, the Court of Appeal was quick to emphasise that not all prenuptial agreements may be upheld.
Given their legal nature, all prenuptial agreements must also comply with the standards of any basic legal contract. This implies that prenuptial agreements must be supported through mutual agreement, and should not be secured through lies, fraud, coercion or unconscionability.
Is a prenuptial agreement enforceable in Singapore’s court?
The general rule is that prenuptial agreements are enforceable in Singapore.
However, the following conditions must first be met before a prenuptial agreement can be enforced:
- The agreement should have been entered into voluntarily
- There should exist no conflict with public policy (e.g., if it contravenes sections of the Women's Charter)
- The parties must have fully disclosed their financial positions to each other
- The agreement should be fair and equitable
- The parties must have the legal capacity to contract
The court has the authority under section 112 of the Women's Charter to equitably distribute marital assets during a divorce, considering the relevant circumstances. The court may take into consideration the prenuptial agreement while making this determination but is not required to do so by law.
A prenuptial agreement that goes against any provision in the Women's Charter is unenforceable. If a court examines a prenuptial agreement during divorce litigation and determines it to be invalid, the court has the discretion to refuse to enforce it.
In some circumstances, courts may give special weight to foreign prenuptial agreements governed by different legislation and signed by individuals from other countries.
Nonetheless, the court still would not stand for agreements that are inconsistent with the Women's Charter's standards.
Difference between prenuptial agreement and postnuptial agreement
A prenuptial agreement is a contract entered into by two people before they get married. A postnuptial agreement, on the other hand, is a contract made between spouses after they are already married.
The key difference between these two types of agreements lies in when they are made.
Generally speaking, prenuptial agreements are more common than postnuptial agreements. This is because people usually enter into prenups to guard against the possibility that their marriage will not last. Postnuptial agreements, on the other hand, are generally entered into when a couple is already married and, due to changes in their marriage or circumstances, decide to take specific steps toward protecting their assets if they get divorced. A postnup may also be less enforceable than a prenup, as it may be presumed that a partner in a marriage is more likely to be coerced by the other into an arrangement.
Main reasons why you should consider getting a prenuptial agreement
There are many reasons why couples may choose to get a prenuptial agreement in Singapore. Some people might get one because they think their marriage might not last. Others might get one to protect their assets if they do get divorced.
Whatever the reason, here are a few key reasons why you should consider getting a prenuptial agreement:
1. To protect yourself from your spouse's debts: If your spouse incurred a lot of debt before marriage, that debt will be legally binding on you if you get divorced. A prenuptial agreement can help protect you from this.
2. To protect your children: If you have young children who are not yet in school, a prenuptial agreement can help to ensure that they will receive financial support for an education should the marriage fall apart.
3. For clarity on how you will split marital assets should you get divorced.
4. For certainty on what will happen to a co-owned business: If a couple owns a business together, they will need to decide what happens to that business in the event of a divorce. A prenuptial agreement can help make this decision ahead of time, rather than letting the courts decide later on.
5. You can also protect your family’s businesses or heirlooms by including what will happen to these assets in the event of a divorce.
Prenuptial agreements are particularly important for couples who own businesses or have significant assets. If you and your spouse are not in either of those categories, a prenuptial agreement might not be as important for you. But it's still a good idea to speak with an attorney about whether or not one is right for you.
Related to this topic: Why this Singaporean influencer thinks prenups are important
How to draft a prenuptial agreement
If you and your spouse decide that a prenuptial agreement is right for you, the next step is to draft one. This can be a complicated process, so it's important to work with an attorney who specialises in family law to make sure everything is done correctly.
The first step is to come up with a list of all your assets and debts, as well as those of your spouse. This is important so that you can determine what will happen to each asset in the case of a divorce or separation.
The next step is to draft the contract detailing how any shared assets should be divided if the marriage ends. In addition, it's important to include language regarding which debts each party will be responsible for, and how to go about splitting any shared household expenses.
The final step is to make sure that both parties are satisfied with the agreement before signing it.
While a prenuptial agreement may not be necessary for every couple, there are some definite benefits to having one. These include peace of mind in knowing that you and your partner have agreed on how the assets will be split should you divorce. It can also help to provide legal protection from the debts of your spouse.
The prenuptial agreement could additionally provide you with a financial safety net in the unfortunate circumstance of your marriage souring.
Arranging for such an agreement before you get married, could hence be worth considering, especially if you have significant assets that you want to protect.
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