Contrary to popular belief marital agreements don’t seem as common or as far-fetched. What are nuptial arrangements? They are becoming increasingly popular.
Prenuptial agreements
It is a hectic time leading up to the big event. Prenuptial agreements may seem like the last thing you think of as you rush to order flowers and make decisions about hairstyles for your bridesmaids. Why would you want it to be? Before you even get married, why would you want to plan for the worst?
Prenuptial agreements, also known colloquially as a “prenup”, are agreements between people who intend to marry. They specify how the divorce will be handled. It essentially outlines who gets what in the event of a marriage ending. Prenuptial agreements are often made to protect a couple in the event of a breakdown of a marriage.
Agreements post-nuptial
A ‘postnuptial agreement’ is an agreement between a husband or wife after marriage. It outlines what will happen in the event of their separation or divorce.
A postnup is not always a sign of deterioration in a relationship. Parties could sign a Postnup to save time during wedding preparations. A postnup may also be used in cases where significant changes have occurred to the family’s financial situation after marriage. This could include plans to move overseas, inheritance, or children. A postnup can help ease any insecurity caused by changes to your family’s circumstances.
Prenups and postnups cover many of the same issues. They generally cover the maintenance each party or their children should receive, the division of their marital assets, and custody, care, and control of their children.
Is there a Singapore law that makes nuptial agreements binding?
Singaporeans have a common belief that courts are not bound by prenups and postnups. But is that true? Yes, but also no. A marital agreement can’t be enforced by itself, but it is true. They do however have legal force – courts must consider them and decide whether to give them substantial or definitive weight.
As you might have guessed by now, a court cannot decide on matrimonial assets, custody, care, and control, or maintenance, at the whims of a judge. Singapore’s Woman’s Charter governs divorce proceedings. Nuptial agreements must not violate the Women’s Charter.
Nuptial agreements are just one factor that the court considers when determining the division of marital assets.
Other than assets, marital agreements can also include maintenance for the spouse and/or children. Contrary to agreements regarding assets, marital agreements are more closely scrutinized by courts. Parents have a legal obligation to financially support their children. The court will not condone any attempt by parents to agree to this through a prenup/postnup.
The courts tend to take a proactive role in ensuring that marital arrangements that affect the custody, care, and control for children are upheld the welfare of the child. It must be satisfied that the terms relating to custody, control, and care of children are in the best interest of the child before the court will grant them effect. The welfare of the child is, after all, the most important consideration.
Postnups are more important in Singapore than prenups because they are made under very different circumstances from those of a prenup. Postnups reflect parties’ intentions more accurately than prenups. A postnup is a contract that parties sign before they have committed to marriage.
Nuptial agreements signed outside of Singapore
It is important to consider where you sign your nuptial contract, or which country’s laws you choose, as this could affect the country in that your matrimonial dispute will be heard if it goes that route. The case of AZS v AZR [2013] 3 SLR 700 is a good example of how important this is. French nationals husband and wife were married in France and had moved to Singapore during their marriage. Before getting married, they had entered into a prenup. Numerous references to French law (the French Civil Code) were made in the prenup. After their breakup, the husband initiated divorce proceedings in France and the wife in Singapore. The husband requested that the Singapore court suspend the wife’s divorce proceedings, arguing that the French courts were better suited to hear the case. The Singapore court would need to review the prenup, which was drawn up in France under French law. The wife also claimed that she did not sign the prenup voluntarily. To determine if this is true, the Singapore court would need witnesses from France. These were not appropriate issues for Singapore courts to hear, so the Singapore High Court ruled that France was the better forum to hear the parties’ divorce.
Nuptial agreements are the best way to go
Acceptance of nuptial agreements is growing. They are not meant to be a suspicion of your future spouse but an honest acknowledgment of the realities of life. It is worth considering whether you should enter into a nuptial arrangement. It can be awkward to start a conversation about the possibility of a nuptial arrangement. However, they can be viewed as an insurance policy, which you hope will not be required, and that does not detract from the joy of getting married.
Prenups should be finalized at least one month before the wedding. This will allow you to prepare for your bridal party and not worry about it. As you will need to navigate the complicated process of writing your nuptial agreement, it is worth speaking with a family lawyer.
Postnups are something that parties usually consider when there is a substantial change in circumstances. It may be wise to speak with a family law lawyers surrey to discuss such issues before you proceed to negotiate the details of the agreement.
Last but not least, remember to give your partner time to think, to get legal advice, and to negotiate before you make your final decision about whether or not to enter into a postnup.