Should a prenuptial agreement be part of your wedding planning?

There are two schools of thought regarding prenuptial agreements. Many people hold the view that entering into a legal contract that lays down how money and property will be divided in the event of a divorce is unromantic. They think that couples who enter into what are commonly known as prenups are setting themselves up to fail.

The other camp believes that those who sign prenuptial agreements are taking a pragmatic and sensible approach. After all, a recent report based on data released by Singapore’s Department of Statistics, points out that divorces are becoming increasingly common. 

The people who favour prenups say that those who enter into these agreements are acknowledging the fact that their marriage can end in a divorce. They think that while a prenup may seem unsentimental and even hard-hearted, it is a practical necessity. 

Which point of view is correct? Should you enter into a prenup or not?

Are prenups even legally valid?

At the time of a couple’s divorce proceedings, Singapore’s Courts are not bound to enforce the clauses in a prenuptial agreement. In other words, all the trouble that you have gone through and the expenses you have incurred to make a prenup may be a waste. 

Why would the Court disregard a prenup? There are several reasons for this. Singapore’s laws regarding the payment of maintenance by a husband to his wife in the event of a divorce are very strict. 

The Court will ensure that the amount payable to the wife is adequate and in accordance with the applicable laws. The Court’s decision regarding payment of maintenance would be considered as final and the amount stated in the prenup would be ignored. 

As far as the issue of children is concerned, the Court will pay even less attention to a clause regarding this topic in the prenuptial agreement. The Court’s primary concern is to protect the interest of the children and take all the steps that are necessary for their welfare. 

Questions like who gets custody, and how much needs to be paid by the husband for a child’s upbringing will be decided independently of the prenup.

Why enter into a prenup at all, if the Court is going to ignore it?

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It is important to remember that while the Court may choose to pay no attention to the prenup, it will definitely take it into account before announcing a decision on certain matters. A prenup is helpful to establish the intentions of the husband and wife at the time of their marriage.

Say, the husband is a part-owner of a family business. At the time of their marriage, the couple is very sure that the wife will not be entitled to any benefit from this. If the husband is able to meet his maintenance commitments, the Court may uphold this part of the prenup.

Similarly, prenups can be very useful in establishing the rights and entitlements of children from a prior marriage. With an increasing number of divorced individuals tying the knot for the second time, the question of how the assets that existed prior to the new marriage are to be divided, may need to be addressed.

Consider a situation where two people from economically diverse backgrounds are planning to get married. If the husband and wife agree on how the assets and wealth will be divided in the event of a divorce, it can serve to establish a basis on which the Court can take a decision. 

At times, a couple could be in a different type of situation. Instead of one of them being very wealthy, the opposite could be true. The husband may owe various people a great deal of money. A prenuptial agreement could help to protect his wife from creditors in the event of a divorce. 

A prenup can make divorce proceedings simpler

In an important judgement, the Singapore Court of Appeal, which is the highest court in the country, relied on the prenuptial agreement when it gave its verdict. The case, TQ v TR and Another Appeal [2009], involved a Dutch citizen and his Swedish wife. However, it is important to remember that the proceedings concerned two foreigners who were married in the Netherlands where the prenuptial agreement was also prepared. 

What should a prenuptial agreement contain to make it a useful document in divorce proceedings? In the usual course, a prenup should include details about the property owned by the couple and how it will be divided. Maintenance issues should also be addressed. Another important area that the prenup should include is the issue of maintenance. It should lay down the extent of the husband’s liability in the event of a divorce. 

Finally, the prenup should be careful not to violate any of the terms of the Women’s Charter. This is the statute that protects the rights of women in Singapore. If any clause of the prenup is at cross purposes with the Charter, it will be struck down as being invalid. 

Disclaimer: The author is not a licensed law practitioner in Singapore. This article is based on the author's personal research and understanding into the topic, and does not constitute legal advice.