International Child Custody & Child Abduction (Hague Convention)

In international child custody matters the child’s “habitual residence” is critical in determining whether a child has been wrongfully removed to or remains in another country. In this article, we examine the application of the Hague Convention in international child custody disputes.

International Child Custody and Care & Control Order

As defined in the Women’s Charter, a ‘child’ of marriage is a child who is under 21 years of age. Custody refers to the parent who makes the major decisions for a child, such as the child’s health, religion, health, and education issues. The parent given care and control of the child is usually the primary caregiver responsible for the child’s day-to-day life. Access to the child is granted to the other parent who is not given care and control.

Read more: International Divorce: What About the Children?

Child Custody

If you and your spouse wish to live in different countries following your divorce in Singapore, issues will have to be addressed about where and with whom the children will live, as well as arrangements put into place for contact between the children and their ‘non-resident’ parent.

There are four different types of custody orders that the courts may grant:

Sole custody order: The custodial parent may make major decisions for the child without the other parent’s agreement.

However, note that sole custody is rare and granted only in exceptional cases where joint parental custody would significantly impede decision-making or where joint parental custody is not in the child’s best interests. In most cases in Singapore, it is the norm for the Courts to grant parents joint custody.

Ultimately, the type of custody order is based on the facts and circumstances of the case.

Joint custody order: Both parents must make significant decisions about the child jointly, i.e., both parties must agree upon decisions. Either parent can apply to the Court for a resolution if there is no agreement.

Joint custody is the most common order courts make to promote the idea of shared parental responsibility. Additionally, joint custody encourages the parent who does not live with the child to continue his or her responsibilities to the child as the child’s parent.

Hybrid order: This is a sole custody order, but it includes an order that the custodial parent must consult with (or even obtain the consent of) the non-custodial parent when making decisions about some issues, such as school choice, subject choice, and so forth.

Split custody order: This is when custody of one or more siblings is awarded to one parent and custody of the other siblings is awarded to the other parent. As a general rule, siblings should be under the care of the same parent. If split custody is requested, parents must file affidavits to justify split custody and explain why it is in the children’s best interest.

Based on the first principles, in any case where custody is in dispute, the child’s best interests are the overriding consideration when courts decide what type of custody order to grant.

Read more: Understanding Child Custody in Singapore

Care and Control of the Child

Care and control is different from the issue of custody. Care and control deals with which parent the child lives with on a daily basis.

The parent awarded care and control is responsible for the child’s day-to-day activities (e.g., daily necessities, meal and bedtimes).

Care and control can be either shared or sole. Where there is shared care and control, the time spent with the child will be split between the parents equally (i.e., the 2 homes).

However, this depends on whether the arrangement is workable and if it is in the child’s best interests. Generally, shared care and control is unlikely to be granted if it disrupts the child’s schedule, given the inconvenience of travelling between 2 homes frequently.

Shared care and control is also usually granted if the parents’ relationship is cordial and they can communicate effectively.

The following is a non-exhaustive list of factors that courts will consider in deciding the issue of care and control:

• Who has been the primary caregiver of the child?
• A child’s attachment and comfort level, whether moving back and forth between parents’ homes, disrupts the child’s routine and life.
• The child’s age – are they at an age where they can make independent decisions about who to live with?
• Who the proposed caregivers are (e.g., grandparents, friends of the parents to whom care and control is delegated), and how close they are to the children.
• If one parent alienates or makes access difficult for the other parent.

Ultimately, the paramount consideration is the child’s welfare in making an order for care and control.

Child Access & Overseas Access

Child Access

The parent who does not have care and control of the child is entitled to have access to the child. The starting point is a presumption that such access would benefit the child. The issue is then the quantum of access.

Some examples of access arrangements can include the following:

• Flexible and liberal access; or
• Stipulated days/times such as:
  • Weekday access: This is usually mid-week for a few hours and is typically subject to the child’s school schedule or other activities, e.g., tuition.
  • Weekend access: This may include overnight access and should consider the child’s school schedule and other activities.
• Public holiday access: Parties often come to an arrangement where each parent spends alternate public holidays with the child. Parties can modify this arrangement the following year.
• School holiday access
• Other special occasions such as birthdays

Access orders are generally unsupervised, i.e., the parent can spend time with the child without any third party monitoring the access. However, the Court may order supervised access in the interest of the child’s safety and relationship with the other parent, which depends on the facts and circumstances of the case.

Overseas Access

If the parent with access lives abroad, the non-custodial parent is still entitled to access the child through remote access or ad-hoc access when the parent returns to visit Singapore. You can even travel abroad with your child depending on the orders made.

Again, this is left to the discretion of the Court and depends on the particular circumstances of your case.

Read more: Custody, Care & Control, and The Welfare Principle of a Child

Relocation

After a divorce, you may want to return your child to your home country. However, the move may mean your child can no longer spend time with the other parent because of contact schedules. Therefore, you must obtain the other parent’s consent to move abroad with your child. Where there is no consent, an application to Court must be filed.

The following are some factors the Court will consider in granting a request to relocate with your child:

• Whether the relocation is permanent or for a short term
• Remarriage of the relocating parent
• Family support and grandparents abroad
• Child’s education
• The loss of relationship with the other parent
• Enlistment for national service in Singapore

Legal Representation

In conclusion, international divorce with children in Singapore can be formidable. Our International Divorce Lawyers can advise you on foreign child custody, care and control, and access laws in Singapore.

For advice on complex laws concerning foreign child custody, care and control, and access laws in Singapore, consult an International divorce lawyer.

GJC Law credits our Vice-Head of Family & Matrimonial Law Practice, Sara Aziz, for her guidance.

Understanding the Requirements for an Expat Divorce in Singapore

“Can I divorce in Singapore if I got married abroad?” is a common query received by our International Divorce Lawyers in the globalised world we live in today.

As a starting point, the essential questions our Singapore Divorce Lawyers will ask are as follows:

• How long have the parties been married?
• Is either party to the marriage a Singapore Citizen?
• If neither party is a Singapore Citizen, how long have parties been residing in Singapore?
• Am I eligible to file for divorce in Singapore?
• What is the ground for divorce in Singapore?
• Habitually resident – what does it mean?

Eligibility

The length of time parties have been residing in Singapore is important because it determines whether the Court has jurisdiction to hear parties’ divorce proceedings based on domicile or habitual residence for at least three years before the commencement of proceedings under Section 93(1) of the Women’s Charter (Chapter 353).

To sum up, in the event parties have married overseas and wish to divorce in Singapore, they must fulfil the following:

• Married for at least three years;
• One party must be a Singapore Citizen;
• If no party to the marriage is a Singapore Citizen, either party must show intention to be domiciled in Singapore or be habitually resident in Singapore for at least three years

If you do not meet the above criteria

Less than three years before the commencement of the proceedings

If parties have been residing in Singapore for less than 3 years, the party who wishes to commence divorce proceedings may consider showing his/her intention to be domiciled in Singapore.

Intent to be domiciled means that he/she has to demonstrate the following:

• Voluntary residence as an inhabitant rather than a casual visitor;
• His/her intention to remain in Singapore indefinitely.

An example to show the same would be shifting a party’s substantial assets to Singapore.

At least 3 years before the commencement of proceedings

If parties have been habitually residing in Singapore for at least three years before the commencement of proceedings, the Singapore Courts will have jurisdiction to hear the parties’ divorce proceedings. To show habitual residence in Singapore, one must show a degree of continuity in his/her residence in Singapore, which is a question of fact.

Read more: Legal Issues Expats Face in Filing For Divorce in Singapore

Habitual Residency

Under the laws of Singapore, unless you are a citizen of Singapore, you will have to show habitual residence in Singapore before you can commence divorce proceedings here. You are habitually resident in Singapore if you have resided here for at least 3 years immediately before filing divorce papers in Singapore.

Read more: Jurisdiction of Court in Matrimonial Proceedings

Ground for Divorce

There is only one ground for divorce recognised in Singapore: an irretrievable breakdown of the marriage.

What is required is the impossibility of reconciliation and finality in intention.

• If you decide to apply for divorce, the onus is on you to prove ONE of the five possible situations as laid down in s 95(3) of the Women’s Charter.

There are 5 facts to prove “irretrievable breakdown” grounds for a foreigner to divorce in Singapore, which are as follows:

• Adultery: When the defendant commits adultery, and the plaintiff (i.e. the person seeking divorce) finds living with the defendant intolerable.
• Unreasonable Behaviour: When the defendant has behaved in such a way that the plaintiff cannot reasonably expect to live with him.
• Deserted: When the defendant has deserted the plaintiff for at least 2 years preceding the divorce proceedings.
• Separation of at least 3 years: Preceding the file for divorce and the defendant consents to the divorce (e.g. for simplified uncontested divorce).
• Separation of at least 4 years: Preceding the divorce proceedings and the defendant does not consent to the divorce (e.g. for contested divorce).

FAQs about Divorce in Singapore for Expats

How Do I Divorce if My Spouse is Overseas?

As mentioned above, should you meet the requirements of divorce in Singapore, you can file for the same here, even if the other party is overseas. However, if the other party commences divorce proceedings overseas simultaneously, You may apply for a stay application to suspend the overseas proceedings if you insist they be heard here.

The Singapore court will decide whether the case should be heard in Singapore or abroad. The Singapore court considers various factors, including the location of both parties’ assets and the location of your children (if any). If the application is successfully stayed, you can continue the divorce proceedings in Singapore accordingly.

Nevertheless, if you obtain a foreign divorce order, you can have it recognised in Singapore to dissolve your marriage.

Is a Marital Agreement from Overseas Valid in Singapore?

If the Marital Agreement contains a jurisdiction clause providing that it is subject to a foreign jurisdiction, the Agreement is generally not binding in Singapore. Be that as it may, the Singapore Court may consider parties’ intentions as reflected in the Agreement. In particular, regarding the division of assets, the Court has the discretion to decide on a just and equitable division.

Read more: Division of Matrimonial Assets – What the Court Will Consider

Are there advantages if I choose to divorce in Singapore?

• Generally, within a month of filing for divorce, you will receive a hearing date.
• Able to immediately file for divorce (i.e., you do not need to separate for a fixed period before filing for divorce).
• Singapore is a fused system, and you avoid barrister costs.
• A favourable exchange rate means your dollar will go further.
• Adulterous defendants are not automatically punished or penalised by the Court.

Read more: Foreigner Divorce in Singapore – What an Expat Should Know

Legal Representation

Overall, foreigner divorce in Singapore can be emotionally and legally challenging. The legal implications of a cross-border divorce tend to be complex, so clearly understanding the potential issues and how to address the legal concerns will help you deal with them effectively.

Divorce cases involving expats are unique and require a customised approach. At Gloria James-Civetta & Co, our international divorce lawyers offer sound legal advice to Expats living in Singapore and clients from other jurisdictions.

GJC Law credits our Vice-Head of Family & Matrimonial Law Practice, Sara Aziz, for her guidance.

Real Estate, Financing & Divorce

High Net Worth (HNW) and Ultra-high Net Worth (UHNW) individuals have many complex challenges during a divorce, of which one of the most significant is Real estate. Some of the complexity centres around:

• How commercial and residential assets are divided between the parties globally
• New home(s) required for one or both of the parties
• How these real estate assets are financed
• Taxation considerations and implications

In many cases, even with HNW and UHNW families, there will be debt secured against real estate to leverage the assets and provide the highest return on investment. When assets are split between parties and the ownership changes this will normally trigger a requirement to refinance, which can prove a difficult process to navigate.

If refinancing is not arranged, then the court may be left with having to order the sale of the asset. A forced asset sale could financially adversely impact the parties if it is not a good time to sell the asset and there is time pressure from the court to sell it quickly.

Furthermore, If there is a requirement to purchase one or more new residential homes financing these new homes can have added complexity if one of the spouses does not have a regular income.

In such situations, family mediation is a great way to discuss matters such as alternative financing options, to try and reach an amicable resolution if possible to stay out of court and save on legal fees.

These financing requirements are challenges that can be overcome with an experienced debt advisor such as the team at Arc & Co.

Arc & Co. is an independent full-service real estate debt advisory business with offices in London, Singapore, Monaco and Switzerland.

We can assist people going through a complex divorce settlement to restructure the debt on current and new real estate assets to ensure that your full portfolio is financed optimally.

Divorce In Singapore For Foreigners Married Overseas

Having journeyed with clientele from different backgrounds, our International Divorce Lawyers understand the applicable laws in cross-border divorces where you may be considering divorcing in Singapore but have married overseas.

“Our expertise is divorce with an international cross-border element.”

Where do you start?

This article will explore some preliminary information you need to understand about cross-border divorces.

Can you divorce in singapore?

To be eligible to commence divorce proceedings in Singapore, either of the following criteria needs to be met: –

1. Parties must be married for at least three years prior to the filing of a Writ for Divorce in the Singapore Family Justice Courts; AND
2. One party to the marriage is a Singapore Citizen; OR
3. One party to the marriage has been habitually residing in Singapore for at least three years before proceeding proceedings.

In the event neither party has not habitually resided in Singapore for three years, the party who wishes to commence divorce proceedings may consider showing his/her intention to be domiciled in Singapore. This means that he/she has to show the following: –

1. A voluntary residence as an inhabitant rather than a casual visitor;
2. His/her intention to remain in Singapore indefinitely.

This will depend on the facts of the case that our specialist divorce Lawyers will assess. A typical example to show the same would be shifting a party’s substantial assets to Singapore.

Documentation Required

As part of the procedural requirements when submitting the divorce documents to the Court, one of the documents required is a copy of the parties’ marriage certificate in English.

In the event parties’ marriage certificate is not in the English language, a translated copy of the English language’s marriage certificate is required.

Related Article: Documents Required to File for Divorce in Singapore

Exceptional Depravity

If parties have not been married for at least three years, you can only commence divorce proceedings if you have obtained the Court’s permission to do so.

To obtain the Court’s permission, you must prove “exceptional depravity” or “exceptional hardship.”

What constitutes “exceptional depravity” or “exceptional hardship” depends on the facts of the case.

Our matrimonial Lawyers can evaluate whether your circumstances meet the legal threshold of “exceptional depravity” or “exceptional hardship.”

The Alternative

You may wish to consider entering into either of the following:

1. Deed of Separation,
2. Post-Nuptial Agreement or
3. Marital Agreement

These agreements will set out parties’ respective rights and obligations until they are eligible to divorce in Singapore. Our expat and international divorce lawyers can assist in the drafting of these agreements.

Are you considering divorcing in Singapore but hold an overseas marriage certificate? Do you have queries on cross-border elements that you wish to clarify? At Gloria James-Civetta & Co, our Divorce Lawyers specialise in cross-border divorces and can advise you comprehensively to protect your rights.

All You Need To Know On Preventing Child Abduction

Under the Women’s Charter (Cap 353), your spouse/ex-spouse is required to seek your consent or obtain the permission of the court before removing your child from Singapore.

If your spouse/ex-spouse is going to bring or has brought the child out of Singapore without your consent, that could amount to child abduction. We understand how terrifying this experience might be. Hence, we will share with you the ways to prevent the removal of your child.

Application to the Immigration and Checkpoints Authority (“ICA”)

Our International Divorce Lawyers can assist with you obtaining an injunction, which is a court order that will prevent your ex-spouse from removing the child from Singapore. Once you have obtained the Court Order, you can apply to the ICA for assistance.

• Step 1: You will need to sign an Undertaking in the prescribed Form 190A of Appendix A to the Family Justice Court’s Practice Directions.
• Step 2: File the Undertaking through e-Litigation under the document code “Other Supporting Documents“.
• Step 3: After the Undertaking has been filed, send the extracted Court order and the Undertaking to ICA’s email: ICA_FJC_Notification@ica.gov.sg during the ICA’s working hours:

  Mondays to Fridays: 8am to 5pm
  Public Holiday Eves: 8am to 12pm
  Saturdays, Sunday and Public Holiday: Closed.

  The ICA will not provide assistance to stop the child from being taken out of Singapore if the above steps are not complied with. Our Experienced Divorce Lawyers can assist in making this process an expedient one in this critical period of tight timelines.

• Step 4: Send a copy of the email sent to ICA containing the extracted Court order and the Undertaking to your spouse/ex-spouse or their solicitor’s email.

Make an application for interim custody, care and control over your child

Concurrent with an application for an injunction to restrain your spouse from removing the child from Singapore, you can make an application for Interim Custody, Care and Control (“ICCC”) over your child while the divorce proceedings are ongoing.

To apply for an ICCC order, you must submit an application to the Court under the Guardianship of Infants Act (“GIA”). This application must include the following:

• the current care arrangements for your child, such as their schooling and living arrangements;
• why an ICCC order is necessary to govern the future care arrangements for your child; and
• the orders for custody, care and control which are being requested.

In deciding whether or not to grant the application for ICCC, the court has one paramount consideration: the welfare of the child.

Hence, it has to be shown that the ICCC is in the best interests of your child. While there is no definitive scope for the term ‘welfare’, you can find out more about it by speaking to our experienced Divorce Lawyers.

Talk to your spouse/ex-spouse

It is important to communicate with your spouse/ex-spouse on the custody, care, and access arrangements for the child. Try to discuss and reach a compromise on the child’s welfare.

Read more: Commencing Court Proceedings Against an Ex-spouse who has Abducted your Child

Talk to our Experienced Divorce Lawyers

We understand that communication could be difficult if you and your spouse/ex-spouse share an acrimonious relationship. In such a situation, our international divorce lawyers are here to negotiate for you and are here to assist you with the various procedural issues.

Commencing Court Proceedings Against An Ex-spouse Who Has Abducted Your Child

Under the Women’s Charter (Cap 353), your ex-spouse is required to seek your consent or obtain the permission of the court before removing your child from Singapore.

If your ex-spouse has brought the child out of Singapore without your consent, that amounts to child abduction. We empathize with your fear in such a situation. Hence, we will share with you the process of applying to the Court for the return of your child.

Making a Hague Convention Application in Singapore

The first way to get your child back is to bring a court action to invoke the Hague Convention (“HC”) within one (1) year of your child’s removal, either in Singapore or the country to which your child has been taken to. HC is an international treaty that protects children from international abduction.

It provides a legal avenue for you to:

• Seek the return of your child who has been wrongfully removed from Singapore; and/or
• Make arrangements for securing the effective exercise of rights of access to the child.

However, only some signatory nations have adopted the HC. Some of the signatory countries include Singapore, United States of America, Australia, Germany, United Kingdom, Japan, South Korea etc.

Hence, you are only able to invoke the HC if your child has been taken to these signatory countries. If you cannot locate the country where your child has been taken to, speak to our international divorce lawyers to check.

The Procedure

• Step 1: File an Originating Summons in Form 213 and a Supporting Affidavit in Form 215 of Appendix A of the Family Justice Courts Practice Directions (“FJCPD”) through the e-Litigation system.
• Step 2: Serve on the other parent the HC application and other supporting documents.
• Step 3: Send a copy of the application to the Central Authority of Singapore and to any court where there might be pending proceedings to the custody, care and control or access of your child. Failure to do so would result in that court not hearing your application.
• Step 4: Once the required affidavits are filed and application is ready for hearing, your case would be heard before a District Judge.
• Step 5: To successfully invoke the HC, you must prove that your child was a “Habitual Resident” in Singapore before being wrongfully removed to another signatory nation. While the term “Habitual Resident” is not defined, the court will take these factors into consideration to determine your child’s habitual residence:
  • Whether your child’s ordinary residence or home is in Singapore?
  • Whether you and your ex-spouse intended for your child to be a habitual resident in Singapore?
  • Whether your child attended school in Singapore?
  • Whether your child had caregivers who are based in Singapore?

These factors turn on the extent of how settled your child is in Singapore prior to the removal and are by no means exhaustive. Speak to our Lawyers who can assist you in making this complicated process a seamless and expedient one.

• Step 6: Once your HC application is approved, you will have to forward a copy of the court order to the Central Authority of Singapore within seven (7) days and enforce the order for your child to be returned.
• Step 7: Following which, you will need to file for custody orders in Singapore to determine who should have custody over your child. If the HC application did not succeed, you may have to commence separate proceedings domestically in the signatory nation.

Read more: Child Abduction – What If My Spouse Takes my Child to Another Country?

Alternative strategy if the Hague Convention is not applicable

If your ex-spouse has taken your child to a non-signatory country to circumvent the HC, having your child returned would be more challenging. Although it seems like a possibly unfamiliar and tumultuous process, many non-signatory countries still prioritize the welfare the child and have measures or laws in place to tackle international abduction.

One example of such a country is India. For example, although India is not a signatory, under Art 226 of the Indian Constitution, you will be able to petition to India’s High Court to issue a Writ summoning your ex-spouse and your child in Court.

Even though it is extremely distressing to learn that your child has been forcefully relocated to a non-signatory state, there are still ways to get your child back to Singapore if it is in his/her best interests to return. Speak to our divorce lawyers to find out more about how we can assist you in the safe and proper return of your child.

How Therapy Can Be Help During The Divorce Process

Are you getting divorced?

• Want Help to Manage Feelings as You Go Through the Process?
• Have you decided to end your marriage?
• Are you already meeting with the lawyers?
• Does the prospect of going through stages of the divorce emotionally overwhelm you?
• Are you wondering if you will be strong enough to ask for what you deserve?
• Are you confused by all the feelings you are having?
• Going from sadness to anger to depression to fear?

The decision to end a marriage can come about for many reasons. Often people feel may have strong feelings of failure because their marriage ended. Some people may it ended on bad terms due to infidelity or addiction. Other times it can end just because two people grow apart.

The reasons can affect the feelings you are having as you go through this journey. You may feel guilt or shame or embarrassment. Are you afraid to tell your friends, your family, or your children? Are you having a hard time coming to grips with your new reality?

The legal aspect is covered by your divorce lawyer. However, to be able to make full use of your legal team, you will need to make sure that you have processed all your emotions.

Strong feelings of anger, hate or rage will just get in your way of working with your legal team. Unfortunately, divorce is not a great way to seek revenge or punish your partner. As the Italians say, revenge is drinking the poison and expecting the other person to die.

When we are hurt, scared, or rejected, these strong feelings can get in the way of working with people who want to help us. These strong feelings cloud our judgement and may push away people helping us.

Getting control of strong feelings will help you to be more effective to work through the divorce process and make sure you do not make mistakes or take decisions from the wrong emotional base.

Divorce is a process that is relatively short compared to the consequences it can have on your financial and emotional well-being. Make sure you give yourself the emotional support to make sure that you can be 100% focused on your divorce and building a new life.

Issues that should be addressed to make sure the divorce process goes smoothly include but are not limited to:

• Addressing your anger or strong negative feelings towards your spouse
• Working through any guilt and shame
• Start to get a vision of what your life will look like as single
• Start addressing emotional issues around being single
• Get help figuring out how to tell important people in your life
• Address any damaged self-esteem or self-worth issues

All in the Therapy Counselling Pte. Ltd. Helps individuals manage the complex issues faced with ending a marriage. If you want to support and guidance through this period, we can help you manage it in the least painful way possible. Tammy Fontana, MS, NCC, CTRT will provide a structure and framework to take you from the loss and grief of marriage to the figuring out what your new life will be looking like. Therapy can help you feel hopeful in a time of great change.

Therapy provides a structured, safe and healthy relationship to help a person be able to recognize and process their feelings to make informed and healthy decisions and behaviours. If you want your life and relationships to be better, don’t wait. Help is there for you. We provide online therapy through Zoom, Skype and WhatsApp video.

If you would like to learn more, contact All in the Family Counselling Centre Pte Ltd. to arrange for an initial consultation. Preferred communication is via WhatsApp at +6590307239 or email at tammy@allinthefamilycounselling.com

Foreign Students Studying In Singapore During Covid-19

International Prenuptial Agreements In Singapore

Is my International pre-nuptial agreement valid and enforceable in Singapore?

In the event of a divorce, the Singapore courts will take into account any agreement entered into between parties when determining divorce issues (s 112(2)(e) of the Women’s Charter). However, the weight of such an agreement would differ in each circumstance.

In entering into a pre-nuptial agreement, the following issues should be considered:-

• Whether your pre-nuptial agreement expressly includes a clause on “the governing law” i.e. the jurisdiction that parties agree to be bound to. If it does not, the Singapore Courts will have to look at what the parties could have possibly intended the governing law to be by examining the terms of the agreement, or the connections that the agreement has to a certain possible jurisdiction.
• Once “the governing law” and the specific jurisdiction is determined, the Singapore Courts look at whether pre-nuptial agreements are recognised under that specific jurisdiction.
• Whether the terms of the pre-nuptial agreement contravene any legal principles in Singapore. In the event that this is the case, such terms or even the entire agreement may not be enforceable in Singapore.
• Clauses with respect to the children’s issues including maintenance, custody, care, and control of children are often re-examined and in most instances these clauses not specifically enforced by the Singapore Courts. The Singapore Court will re-examine these issues to ensure that any decisions made regarding children are determined on the basis of what will be in their best interests, and not necessarily on the agreement between parties prior to marriage.

The validity and enforceability of a pre-nuptial agreement will ultimately be decided on a case-by-case basis.

Is my pre-nuptial agreement written in Singapore valid and enforceable in my home country?

Due to the difference in the treatment of pre-nuptial agreements between jurisdictions, the courts in your home country will have to decide whether it is the right forum to enforce your Singapore agreement. This decision process may generally involve:-

• The Court first acknowledges the existence of the premarital agreement. The agreement would generally need to adhere to the basic contractual requirements of the jurisdiction.
• Thereafter, the Court will determine if the laws of your home country would allow for the law as detailed in the prenuptial agreement to be applied. In the event that it can be applied, the agreement will be enforced as if it would have been in the Singapore Courts. It is thus crucial that parties state clearly “the governing law” of the pre-nuptial agreement, i.e. Singapore law.
• In the event that the laws of your home country do not allow for the law as detailed in the prenuptial agreement to be applied, the court will examine the agreement on the basis of its own legal principles.

Whether the court in your home country will recognise and enforce a pre-nuptial written in Singapore and governed by Singapore law depends on its particular legal principles.

At Gloria James-Civetta & Co, we work hand-in-hand with lawyers from other jurisdictions to ensure that your pre-nuptial agreement has hold in Singapore and in your home country.

Erroneously drafted agreements can be a rich source of litigation, contrary to the idea that reaching an agreement will help minimise the risk of protracted legal battles. It is important to ensure that the formalities and content of the Singapore pre-nuptial accommodate your home country’s unique family law system.

Advantages of a prenuptial agreement for Expatriates

In the event of contested divorce proceedings, a pre-nuptial agreement is often a useful guiding measure on parties’ intentions and positions to be used by the Singapore Courts.

For expatriate couples where assets and living arrangements may have often been across various jurisdictions, it is beneficial for parties to enter into a pre-nuptial agreement for their agreement to be streamlined so as to minimise confusion and complications on preliminary issues such as jurisdiction in the event of a divorce.

A properly drafted pre-nuptial agreement can offer expatriate couples a wide range of benefits:-

• Additional certainty to the financial arrangement between parties and specifically so when parties have assets in several jurisdictions;
• Parties can expressly agree to exclude pre-marital assets from the pool of assets for division in the event of a divorce.
• Parties can expressly agree to exclude specific marital assets or family heirlooms, family businesses, and any potential inheritance from the pool of assets for division in the event of a divorce.
• Parties can agree that certain specific assets can be set aside as safeguards for the children instead of being divided between parties in the event of a divorce.
• It saves precious time and costs in the event of a divorce as all issues with respect to the divorce would have already been agreed to and specified in the pre-nuptial agreement.

We understand that negotiating and drafting an international prenuptial agreement may be unpleasant and difficult; a general agreement may not be sufficiently comprehensive to meet all specific legal requirements in Singapore and your home country.

Our international family lawyers can help you navigate the complex legal waters to draft an international pre-nuptial agreement that suits your needs.

Child Abduction: What If My Spouse Takes My Child To Another Country?