Important Decision on Prenuptial Agreements in Singapore

The Singapore Court of Appeal, in the case of TQ v TR [2009] SGCA 6, has conclusively decided on the enforceability of foreign prenuptial agreements.

In the past, Singapore followed the English rule that prenuptial agreements are generally unenforceable. However, more recent developments, both in England as well as in Singapore, have held this rule is outdated and should give way to a principle that prenuptial agreements may be considered, as part of all the circumstances in a case, in a court’s determination of what is just and fair.

The Singapore Court of Appeal now holds that it will normally enforce foreign prenuptial agreements.

The aforementioned case concerns a prenuptial agreement between a Dutch husband and a Swedish wife that was entered into in the Netherlands. In particular, this agreement was prepared by a Dutch civil law notary in the Netherlands. The agreement provided, amongst other things, that “[t]here shall be no community of matrimonial assets whatsoever between the spouses” and that “[t]he marital property regime in force between them shall be governed by Netherlands law.”

The Court of Appeal held that the local courts should accord “significant (even critical) weight” to the terms of a prenuptial agreement which is governed by and valid according to a foreign law, unless its terms violate the public policy of Singapore.

It is also important to note that the court confirmed that the validity of a prenuptial agreement should be governed by its “proper” law, as with any other contract. The validity of the Agreement, thus, depends on its status under Dutch law in the present case.

The proper law is to be determined by (in order of descending priority):

(a) the express choice of the parties;

(b) the implied choice of the parties; and

(c) in the absence of any express or implied choice of law, by ascertaining the system of law with which the agreement has the closest and most real connection, which is presumed to be the law of the matrimonial domicile unless rebutted.

Ultimately, there is no blanket rule that a prenuptial agreement must be enforced to the exclusion in light of all relevant circumstances before the court. The aim of the court is (in accordance with s 112(1) of the Women’s Charter) to arrive at a division of matrimonial assets that is both just and equitable as between the parties.

Is a Prenuptial Agreement necessary?

Prenups can be a choice for both parties in agreement if it is executed properly by experts. Therefore, it is best to start by speaking with a lawyer. Only you and your partner can decide, but it pays to be well researched and know all of your options, especially when your finances and more are at stake.