By Alicea Tan
Love is amorphous and indeterminate. But this has not stopped many couples contemplating marriage from putting down their love in exact terms in a pre-nuptial agreement. A pre-nuptial agreement is a contract entered into before marriage and can govern a wide range of aspects within married life. A couple can dictate where they should live, when they should have sex, when they should conceive and how many children they are to have. Couples may also include “force-majeure” clauses dictating how the matrimonial assets should be divided, how much a spouse should receive in maintenance when the marriage breaks down or terms for the forfeiture of assets should either party commit adultery.
Are pre-nuptial agreements legal? Singapore has yet to officially legalise pre-nuptial agreements. But in 2009, the Singapore Court of Appeal affirmed the legality of a pre-nuptial agreement executed by a married couple before a Dutch civil law notary in 1991 before the couple moved to live in Singapore, where the couple agreed not to have any community of property. Under the law regulating marriages in Singapore, in the absence of contrary intention, there is a presumption of joint ownership of matrimonial property. The effect of this pre-nuptial agreement was to constitute the required evidence of contrary intention between the parties to displace the presumption such that in the event of a divorce and granting of a decree nisi, there would be no division of matrimonial property. The marriage eventually broke down and the trial judge, honoured the pre-nuptial agreement and made no order as to division of matrimonial property. However, the disgruntled wife appealed to the highest court asserting her rights to division of matrimonial property under s.112 of the Women’s Charter (“The Act”). The Court of Appeal judges were not persuaded. They upheld the lower court’s ruling and confirmed that pre-nuptial agreements were part of Singapore law that co-existed with The Act. It was a contract formed between consenting parties and in the absence of any unconscionability or vitiating factors, the Court saw no reason to deny the validity of the pre-nuptial agreement.
Nonetheless, couples would be misguided to think that they are free to dictate all terms of their married life. An important distinction between a pre-nuptial agreement and a commercial contract is that when considering whether or not to give effect to a pre-nuptial agreement, courts are caught in the tension between two competing policies of freedom of contracts and the public regulation of married life under family law. For this reason, the Court of Appeal has emphasized that insofar as The Act expressly covers a certain category of prenuptial agreement, those provisions would be the governing law. And even where The Act is silent regarding the maintenance of children, the courts would be especially vigilant and slow to enforce agreements that are apparently not in the best interests of the child or children concerned.
The courts have imposed other limits to a couple’s freedom to draft pre-nuptial agreements. Singapore courts have confirmed that a pre-nuptial agreement that seeks to negate the marriage is unquestionably against public policy and void. In 1917, a couple in England sought to challenge the limits of law and policy in the often-cited case of Brodie v. Brodie. The woman was expecting a child and the father agreed to the marriage on the condition that the woman signed a contract stating that he could live separately from her after the marriage, as though they were unmarried. The wife had to promise never to compel him to live with her. Such a pre-nuptial agreement was met with abhorrence in both the UK and Singapore courts. The husband was seeking to use the pre-nuptial agreement to resile from the marriage and evade his marital obligations altogether, not to mention his moral obligations. Such an agreement was ‘inherently wrong’, and if implemented and enforced, ‘would make a mockery of the law regulating marriages’.
Terms of the pre-nuptial agreement are also required to be fair and reasonable. Pre-nuptial agreements have been recognized for its protective function of a spouse’s financial assets, especially if one spouse is significantly wealthier than the other. Unsurprisingly, they have been used frequently by wealthy men who have much to lose should their marriages end in divorce and the court orders a just and equitable distribution of matrimonial property under s.112 of The Act. But courts will deny parties the desired protection of their wealth if the terms of the agreement were only beneficial to one spouse and detrimental to the other, raising an inference that the agreement was procured through bad faith, for example through trickery or undue influence, where there was no competent consent to the agreement given by the other spouse. Although wives have not had much luck alleging trickery in the local courts, but in a case where the spouse in question is not well-educated or is ignorant in financial matters, it is highly probable that the agreement will be treated as void. Hence, a spouse who wishes to enforce the terms of the pre-nuptial agreement is well advised to ensure that the other party receives independent legal advice and enters into the agreement with open eyes.
Terms in the pre-nuptial agreement may become inoperative through other means as well. For example, an unfortunate accident rendering one spouse unable to work and maintain him or herself, would cause the courts to seriously reconsider enforcing a term regarding the maintenance of a spouse, which was drafted under radically different circumstances where the spouse was still capable of maintaining him or herself. A couple may also voluntarily terminate the pre-nuptial agreement at any time by including a ‘sunset provision’ which typically nullifies the pre-nuptial agreement upon a significant event such as the birth of a child. Alternatively, the agreement could simply be allowed to expire after a designated number of years, in reasonable and realistic expectation that the couple is going to have a long married life together.
Unmoved by the functional utility of pre-nuptial agreements, critics and romantics are repulsed by the notion of preparing for the end of a marriage even before it is entered into. It is also demeaning to spell out the sacred love between a couple in cold terms via a transaction made at arm’s length. While noting the emotional appeal of such criticisms, the number of divorces in Singapore has been on the rise and when love takes a turn, couples would be relieved to be spared the hassle of fighting over matrimonial assets while dealing with the emotions of a divorce. Like the Troggs sing every Christmas, “Love is all around”. Perhaps this might be true, but couples contemplating marriage are well advised to read the fine print.
Drafting the rules ;
1) Allowance up to S$10k a month until death but only S$1k if divorced.
2) Cannot sell matrimonial home, can use or pass it on to child, if no children, the closest relative as beneficiary. This rule will be forever.
3) You can chose to work for institutions only approved by me, but can keep 100% of your salary.
4) In the event of adultery, you do not even have the rights to live or any claims against the matrimonial home, only a S$1k allowance for life.
5) The wife is not expected to pay for anything, in the event of accident or death, the foundation will take over.
6) The foundation will not have any family members as directors.
7) Nobody can buy insurance for me.
8) Everything will be taken care of, even the needs and education of the children, up to marriageable age, thereafter they are on their own.
– Contributed by Oogle.
By Alicea Tan