Marital Agreements

Marital Agreements

Are marital agreements (pre and post marriage) enforceable? Is the position the same if the agreement is a foreign agreement?

Marital (pre- and post-nuptial) agreements are not in and of themselves enforceable whether as an operation of the common law or by statute (TQ v TR [2009] 2 SLR(R) 961 (CA)). However, subject to their subject matter and there being no vitiating factors affecting their validity, the courts may take such agreements into account when exercising their judicial discretion. It should also be noted that the courts have made a distinction between pre- and post-nuptial agreements in that all things being equal, post-nuptial agreements would be given more weight as they are made after the parties have undertaken responsibilities as and between each other (TQ v TR).

 

Foreign vs Domestic Agreements

Where a marital agreement is (a) a valid foreign law-governed agreement, (b) not contrary to Singapore’s public policy, and (c) entered into between foreign nationals, the courts would accord its terms with “significant (even critical) weight” (TQ v TR). In relation to other agreements which possess a domestic element, e.g. involving Singapore nationals, the weight to be accorded to such agreements would depend on the facts of the case (TQ v TR).

 

Subject Matter of Agreements

Subject Matter Level of Judicial Scrutiny or Cognisance Legislative Provision of Women’s Charter or Case Law
Child custody (and care and control) Agreements are prima facie unenforceable as there is a presumption that it is in the interests of the parties and not the child. The onus is on the party asserting otherwise to prove it to the courts.

The courts’ paramount consideration is the welfare of the child.

The courts have power to vary the terms of pre- and post-nuptial agreements relating to custody.

TQ v TR. 

 

 

s 129, Women’s Charter.

Wife maintenance Post-nuptial agreements:

Such agreements would be subject to judicial scrutiny, in particular on the adequacy of the maintenance, and the courts have power to vary the terms of maintenance if there has been a “material change in the circumstances”.

 

Pre-nuptial agreements:

Common law would apply, and such agreements would be subject to the court’s scrutiny, in particular on the adequacy of the maintenance.

An agreement of a sum in settlement of all future claims of maintenance must be approved by the court before it is effective.

Such agreements are considered as a part of “all the circumstances of the case”.

However, if the provision is just and fair and does not fall short of what is needed and expected under general law, there is nothing preventing the court from endorsing the substance of the terms of the agreement.

 

TQ v TR; ss 119 and 132.

 

 

 

TQ v TR.

 

s 117.

s 69(4); AUA v ATZ [2016] SGCA 41.

AUA v ATZ (in the context of child maintenance but would apply fortiori to wife maintenance).

Child maintenance The above on a wife’s maintenance would similarly apply. However, the courts would be vigilant and reluctant to enforce any agreement that is not in the best interests of the child. The courts’ paramount consideration is the welfare of the child. TQ v TR; AUA v ATZ.
Division of matrimonial assets Agreements must be taken into account by the courts in their exercise of discretion when dividing matrimonial assets if such agreements were made in “contemplation of divorce”. The exact weight to be allocated would be fact-specific. This includes both pre-nuptial and postnuptial agreements.

Significant, even conclusive, weight can be placed on an agreement on the division of matrimonial assets if the parties freely and voluntarily entered into the agreement with full knowledge of the relevant circumstances and matters to be considered.

s 112(2)(e); TQ v TR.

 

 

AUA v ATZ.

 

Some examples of “circumstances” in which the court may not uphold a nuptial agreement, notwithstanding its formal validity, are set out below:

(a) there was an element of trickery or coercion used to get one party to sign the pre-nuptial agreement (Chia Hock Hua v Chong Choo Je [1994] 3 SLR(R) 159);

(b) where the parties failed to give full and frank disclosure, such as when the husband knew or ought to have known that he would be receiving substantive stock options at the time the parties entered into the pre-nuptial agreement which he did not disclose (AFS v AFU [2011] 3 SLR 275);

(c) the pre-nuptial agreement is manifestly in one party’s favour and to the detriment of the other (TQ v TR); and

(d) where there was variation by subsequent conduct (TQ v TR).

 

Can marital agreements cover a spouse’s financial claims on divorce, e.g. for maintenance or compensation, or are they limited to the election of the matrimonial property regime?

Marital agreements can cover a spouse’s financial claims, but the enforcement of the terms is ultimately subject to judicial discretion (see 1st question above).

 

What are the procedural requirements for a marital agreement to be enforceable on divorce?

There are no explicit procedural requirements, but the court has suggested that greater weight would be given if both parties were represented and advised fully of the circumstances when they enter into a marital agreement (in the context of a post-divorce agreement: Surindar Singh s/o Jaswant Singh v Sita Jaswant Kaur [2014] 3 SLR 1284; and AUA v ATZ [2016] SGCA 41).