For the longest time, when clients enquire about validity of prenuptial agreements (“prenups”) in Singapore, my reply often is “If you are thinking of doing a prenup, take heart that the Singapore Courts give almost no weight to agreements like this and regard these agreements as against public policy. There is a high chance of it not being legally enforceable.”

That is, until February this year when the Singapore Courts upheld a pre-nup in the case of TQ v TR [2007] SGHC 106.

This case concerns a prenuptial agreement between a Dutch husband and a Swedish wife entered into in the Netherlands where the parties were married before returning to their residence in London. This agreement was prepared by a Dutch civil law notary in the Netherlands. After six years of marriage the couple moved to Singapore with their children. The agreement provided 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 found that the wife was not domiciled in the Netherlands, so that Dutch law would not govern the division of matrimonial property. Accordingly the Court applied Singapore law. Section 112 of Singapore's Women’s Charter empowers the courts to order such division of matrimonial assets as they deem “just and equitable” and requires the courts to consider a host of specified factors in making that decision. Such factors include “any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce.”

The court awarded “maintenance” (i.e. alimony or spousal support) in the form of a lump sum in the full amount that the wife requested, as well as child support. It then upheld the prenuptial agreement in light of those apparently generous awards.

The Singapore courts had stated that it would accord “significant (even critical) weight” to the terms of a prenuptial agreement between foreign nationals that is governed by and valid according to a foreign law, unless its terms violate the public policy of Singapore.

Thus the court ruled that:

“There is another specific issue that arises (and which is of particular relevance in the context of the present appeal). This relates to prenuptial agreements which have been entered into abroad and are wholly foreign in nature. It would appear to us, as a general guide (and no more), that if a prenuptial agreement is entered into by foreign nationals and that agreement is governed by (as well as is valid according to) a foreign law, then there is no reason in principle why the court should not accord significant (even critical) weight to the terms of that agreement – bearing in mind that (as we have noted) prenuptial agreements are not, generally speaking, void as being contrary to the public policy of Singapore and there is therefore no overarching public policy of the lex fori which prohibits such agreements in the first place (with, perhaps, the exception of certain prenuptial agreements relating to the custody (as well as the care and control) of children (see above at [70])). The assumption here is also that such foreign law is not repugnant to the public policy of Singapore. Such an approach will also avoid the danger of forum shopping (see, for example, Jeremy D Morley, “Enforceable Prenuptial Agreements: Their Time has Come” (2006) 36 Fam Law 772).

However, such an approach is, it should be noted, confined (in the main at least) to prenuptial agreements relating to the division of matrimonial assets and it is important to emphasise that there is no blanket rule to the effect that such agreements will (even with respect to the division of matrimonial assets only) be accorded significant (let alone crucial) weight as a matter of course. Where, for example, there has been clear fraud or other indications of unconscionability, the court might even disregard the agreement concerned altogether … Much will, of course, depend on the precise facts of the particular case as well as on the expert evidence adduced (in this last-mentioned regard, it behoves the parties concerned to adduce the best and clearest evidence that they can muster; indeed, to obviate potential as well as unnecessary bias and/or confusion, an independent expert (whether appointed by consent of the parties or even by the court) might be the best way forward in such situations). The court ought not – and cannot – be utilised by any one party as a means to achieve an unjust and unfair outcome.”

Perhaps this change in the approach by the Singapore Courts is also with an eye on the shifting in attitudes towards pre-nup in England and Wales.

In England and Wales the courts have traditionally given little weight to a prenuptial agreement, and have viewed the enforcement of prenuptial agreements as being against public policy. However, the traditional view is shifting. The English courts appear to be saying that a prenuptial agreement can be a material consideration when considering what adjustments to make to a divorcing couple's financial circumstances on divorce.

The Singapore Courts are nonetheless taking a cautious approach and is unlikely to be quick on the take when it comes to recognising all such agreements.

Note also that the court in TQ v TR CONTRACTS has stated clearly that contracts made before marriage regarding a couple's assets, maintenance and the custody and care of children will be considered by the courts in a divorce but not automatically upheld.

The Court has stressed that the validity of a prenuptial agreement must still be governed by its “proper” law, as with any other contract.

The proper law means that the following factors must be taken into consideration:

(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.

Further, there have been many postnuptial agreements or agreements entered into in anticipation of a divorce where the Court has not enforced the terms agreed upon between parties on grounds like change in circumstances, parties’ contributions etc. It is thus highly unlikely that prenups will be given more consideration than postnups when it comes to enforceability.

This landmark decision does mean one thing though: while a prenuptial agreement will not be enforced automatically, the courts will also no longer reject them outright, like before.