Foreign Pre-Nuptial/Post-Nuptial Agreements

You and your spouse may have made a prenuptial agreement – or postnuptial agreement either before or after the marriage took place. Your question may then be whether these agreements will be accounted for or enforced in the Singapore courts.

Post-nuptial agreements

Singapore law encourages settlement of divorces through mechanisms like mediation through divorce lawyers, as it attempts to provide a harmonious resolution of the divorce. Correspondingly, the law respect parties’ autonomy to make postnuptial agreements when divorce is contemplated, and will duly enforce such agreements.

Pre-nuptial agreements

Previously, the courts were reluctant to enforce pre-nuptial agreements, as it was thought that such agreements attempt to oust the jurisdiction of the court so that they were contrary to public policy.

Recently, however, the Court of Appeal in TQ v TR [2009] SGCA 6 gave effect to a pre-nuptial agreement that was made 16 years earlier, recognising that it was valid and effective. It considered that the parties had entered into the agreement voluntarily, as mature adults, and in the presence of a notary public who had explained the content and effect of it. Furthermore, it provided for maintenance, though it did not make any provision for the division of assets.

This decision is notable because it was previously thought that the focus of the court would be whether the agreement is recent enough to reflect the current circumstances of the parties, as the parties cannot usually weigh the risks of entering into the agreement. While this may still be a factor, the court highlighted that there would situations where the agreement would be accorded significant, if not overriding, weight.

Despite the trend towards the enforcement of foreign pre-nuptial agreements, however, it cannot be assumed that such agreements will always be enforced. Ultimately, the court will exercise its discretion to ensure that a fair outcome is achieved. In doing so, it will balance its respect for party autonomy and its commitment to ensuring that fundamental family obligations are fulfilled and financially weaker family members protected.

As a side note, it is not very clear from the court’s judgment what law to apply to determine whether such agreements are valid. However, one interpretation is that the parties agreement in accordance with the proper law of the contract would trump the law of the domicile of the parties. In TQ v TR, even though the court found that the Netherlands was not the parties’ domicile, the court relied on s 112 of the Women’s Charter to justify giving effect to the agreement. This section provides that the court has the power to order a just and equitable division of the parties’ assets.

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