Is my foreign 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 acknowledging 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 specialist family lawyers can help you navigate the complex legal waters to draft an international pre-nuptial agreement that suits your needs.