Prenuptial Agreements in Division of Matrimonial Assets

Prenuptial agreements are a common trend in marriages today. They often involve the spouses entering into an agreement, prior to marriage, which sets out the manner in which various ancillary matters relating to their marriage would be arranged should they inevitably decide to end their marriage at an undetermined point in the future. This includes issues such as the division of the spouses’ assets, maintenance for the former wife, as well as arrangements relating to the care and upbringing of their children, if any.

The issue then is, given the developed principles of law in Singapore for adjudicating over such issues, would a court still enforce a couple’s pre-agreed agreement? This concern is especially acute where the couple’s agreement would seem to run contrary to how the court would decide these ancillary matters based on settled law in Singapore.

First, any prenuptial agreement would be subject to the scrutiny of the court and would be one of the factors that a court would consider in making its decision on the various ancillary matters that may arise in a particular divorce case. Section 112(2)(e) of the Women’s Charter (Cap 353, Rev. Ed. 2009), explicitly requires the court to consider such agreements in making its decision on the division of matrimonial assets.

Second, albeit in limited situations, such pre-nuptial agreements could be invalid and not taken into consideration where they undermine the core principles of a marital relationship (TQ v TR and other appeals [2009] 2 SLR 961). Finally, having scrutinized the prenuptial agreement, the court may either enforce the agreement as it stands or may incorporate terms of the prenuptial agreement into the order it makes.