Prenuptial Agreements in Singapore

Shift from Traditional English Rule

Historically, Singapore followed the English common law principle that prenuptial agreements were unenforceable. Like in England, this outdated rule has gradually given way to a more flexible approach, where such agreements may be considered as part of a broader assessment of fairness. In its landmark 2009 decision, the Singapore Court of Appeal clarified that it would typically enforce foreign prenuptial agreements.

Case Background: TQ v. TR

The case involved a Dutch husband and a Swedish wife who entered into a prenuptial agreement in the Netherlands prior to their marriage there. The agreement was drafted by a Dutch civil law notary and stated that there would be no community of matrimonial assets and that their marital property regime would be governed by Dutch law. After six years of marriage, the couple and their children moved to Singapore.

The court held that Singapore should give “significant (even critical) weight” to the terms of such an agreement between foreign nationals, provided it is valid under the applicable foreign law and does not violate Singapore’s public policy.

Determining the Applicable Law

The court also emphasized that the validity of a prenuptial agreement should be assessed based on its “proper law,” similar to how other contracts are evaluated. The proper law is determined by the following criteria, in order of priority:

1. The express choice of the parties
   
   
2. The implied choice of the parties
   
   
3. In the absence of either, the legal system with the closest and most real connection to the agreement—presumed to be the law of the matrimonial domicile unless proven otherwise.
   
   

Limits to Enforceability: AFS v. AFU

In 2011, the Singapore High Court declined to enforce a Deed of Separation signed in Singapore. The court found that the husband had failed to fully disclose his assets and financial expectations before signing the document. It reaffirmed the principle from TQ v. TR that an agreement cannot be enforced on its own but should be considered as one factor among many in determining the fair distribution of matrimonial assets.

Even when parties have reached a private agreement, the court has the discretion to disregard it if enforcing the agreement would not be just and equitable.

Judicial Oversight and Section 112 of the Women’s Charter

Under Section 112 of Singapore’s Women’s Charter, the courts are required to divide matrimonial assets “in such proportions as the court thinks just and equitable.” Therefore, while financial agreements between spouses or future spouses can carry considerable weight, they are never automatically enforceable. Judicial scrutiny is always required.
Reference: AFS v. AFU, [2011] SGHC 52.

Future Developments and Cross-Border Collaboration

It is expected that Singapore courts may be influenced by future decisions in England, particularly following the precedent set by the UK Supreme Court in Radmacher v. Granatino.

Our firm has experience handling U.S.–Singapore prenuptial agreements and always collaborates with local legal counsel in the relevant jurisdictions to ensure validity and enforceability.