What are marital agreements?
Marital agreements are contracts entered into between spouses to determine their respective rights regarding property, maintenance, and custody matters as a form of protection in the event of divorce.
They can be made;
- before the marriage (pre-nuptial agreements) or,
- after parties enter into the marriage (post-nuptial agreements)
While marital agreements are technically contracts, they are not binding and not all terms will be strictly enforced by the courts. However, courts may still take the agreement into consideration when deciding on these ancillary matters.
The difference between a pre-nuptial agreement and a post-nuptial agreement
The key difference between a pre-nuptial and post-nuptial agreement is that they are made at different stages of a relationship. All things being equal, a post-nuptial agreement would carry more weight as it reflects a more current state of affairs after the parties are already married, as compared to pre-nuptial agreements made before parties commit themselves to the rights and responsibilities of marriage.
As such, post-nuptial agreements are usually a better indication of the parties’ intentions as compared to pre-nuptial agreements. That being said, how much weight is to be allocated to a particular marital agreement will ultimately depend on the facts of the particular case.
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What factors encourage a court to uphold terms of a marital agreement?
The primary legislation governing ancillary matters for divorce in Singapore is the Women’s Charter. Thus, a preliminary consideration before terms of a marital agreement can be enforced is whether it violates any express provisions of the statute.
Any agreement that contravenes the statute will not be enforceable. For instance, an agreement signed by both parties to deprive the wife of her legal right to apply for maintenance from the courts will be regarded as void and contrary to public policy.
Additionally, agreements regarding the arrangements of children will also be heavily scrutinized by the courts. This is as Singapore law regards the welfare of the child as the most important consideration, taking precedence over the parents’ own interests. A party seeking to rely on a marital agreement to obtain custody or care and control of the child will thus have to satisfy the court that it is clearly within the child’s best interests for the particular arrangement to be followed.
Even if the terms of the agreement do not contravene the Women’s Charter, its legal status will still be governed by the common law. This means that the validity of the agreement depends on various legal doctrines common to the law of contract and are more likely to be valid if:
- The agreement was made without any threat, coercion, or intimidation
- The agreement was formed in accordance with general rules relating to “offer” and “acceptance”
- The document was understood and intended to be final
- Everyone made full disclosure of their finances and understood what they were signing
However, even if a marital agreement does not comply with the strict legal requirements under the common law of contract, courts still retain residuary discretion to give weight to the agreement. This is especially so if the court finds the agreed terms to be just and equitable. In doing so, the courts have emphasized that a “common tenet” that runs through all marital agreements is that they are required to be independently scrutinized. This is due to the need for careful safeguards to protect the weaker party and ensure fairness is achieved.
What happens if my marital agreement was made overseas?
A marital agreement made overseas which is valid based on the particular country’s laws can still be accorded significant weight in Singapore, provided that it does not contravene the express provisions of the Women’s Charter or any Singaporean law. This stance has been upheld by the Court of Appeal in Singapore in TQ v TR (2009).
Why should I sign a marital agreement?
Given that marital agreements are not “rubber-stamped” and binding, many might reasonably wonder why they should sign a marital agreement in the first place. However, entering into a marital agreement can offer many benefits to both parties. This includes:
- Providing a degree of certainty for the future, should a divorce happen
- Addressing important and difficult issues at the outset of, or during, the marriage
- Knowledge of both parties’ financial arrangements and expectations
- Protecting both of your assets and/or family heirlooms
You may wish to consult our divorce lawyers to find out more about marital agreements in Singapore. As many factors can potentially cause a marital agreement to be set aside by the courts, it is important to have a skilled lawyer drawing up the agreement to ensure it meets all specific legal requirements.