Are prenuptial and postnuptial agreements enforceable in Singapore?

What these agreements are

A prenuptial agreement is signed before the marriage, and a postnuptial agreement is signed after it. Both usually set out what should happen if the marriage ends, and can cover ownership and division of property, maintenance, debts, arrangements for children and, for couples with ties abroad, which country's law governs the agreement.

Are they binding?

Not automatically. In Singapore, a nuptial agreement is not enforceable in and of itself. It is always subject to the court's scrutiny, and the final orders on divorce may differ from what the agreement says.

The leading case is the Court of Appeal's decision in TQ v TR. An agreement must first meet the ordinary requirements of contract law, and it can be undermined by matters such as failure to disclose assets, misrepresentation, duress or undue influence. Courts more often decline to apply particular clauses than set aside a whole agreement. Spouses also cannot use an agreement to remove the court's powers or rights given by the Women's Charter.

How the court treats different terms

The weight an agreement carries depends on what it deals with.

• Assets: the court keeps its power to divide matrimonial assets in a just and equitable way, but it can treat the agreement as an important factor. How much weight it gets depends on the circumstances.
• Maintenance: terms about maintenance are subject to the court's overall scrutiny, and the court is especially careful with terms about children's maintenance.
• Children: terms about custody, or care and control, are presumed unenforceable unless it is clearly shown that they are in the children's best interests.
• Foreign agreements: an agreement made under, and valid in, another country's law may be given significant weight, unless its terms go against Singapore's public policy.

What helps an agreement carry weight

The court looks at how the agreement was made as well as what it says. It is more likely to give effect to an agreement where:

• Each spouse had independent legal advice before signing
• Both spouses gave full and honest disclosure of their finances
• It was signed freely, without pressure
• The terms are fair and do not try to override the Women's Charter

Prenup or postnup?

The contents of the two are often similar, but courts tend to give postnuptial agreements more weight, because they reflect the couple's circumstances during the marriage rather than predictions made beforehand. A postnuptial agreement can also be useful after a significant change, such as an inheritance or the start of a family business.

A deed of separation is different again: it is made when a couple has decided to separate, and sets out the terms of that separation.

This article is general information about Singapore law, not advice on any particular case.