Singapore should reconsider accepting the legality of prenuptial agreements

A recent new ruling by China's Supreme Court now makes it difficult for wives to claim a share of assets paid for by their husbands. As a result of this new ruling, lawyers and observers in Singapore have indicated that this would motivate Chinese women to look for mates outside China. For instance, if their marriages end in divorce in Singapore, these Chinese women would be protected by the Women's Charter and lawyers here expect to see a rise in Chinese women marrying and divorcing in Singapore. 

I am of course not suggesting that all Chinese women are opportunistic nor am I restricting materialism to Chinese women. I am merely using this as an example to highlight why I think it might be time for Singapore to reconsider clearly accepting the legality of prenuptial agreements in Singapore.

Opponents of prenuptial agreements will no doubt argue that these agreements go against the essential tenet in marriage - that of commitment. Why prepare for the demise of a marriage before even entering into it? While I have some sympathy for that argument, divorce is something that is a part of our society. As such, we should address the issue to ensure that divorce proceedings are as smooth as possible to minimise its emotional impact on the parties involved, especially if there are children involved.

Rather than go through the messy process of fighting and dividing assets while dealing with the emotions caused by an irretrievable breakdown of marriage, it might make sense for these issues to be ironed out beforehand.It would also serve to protect the richer party from potential 'gold diggers' (whether foreign or otherwise) and act as a deterrent against parties who might marry solely for money with the intention of divorce at a later stage. 

A marriage contract is a commitment entered into by 2 consenting adults. As such, 2 consenting adults should also be permitted to dictate the terms of that marriage and our courts should recognise this.

While Singapore law does not officially recognise prenuptial agreements, the Singapore courts have in recent years indicated that prenuptial agreements governed by foreign law will be upheld and enforced (see HERE). While this case did not involve Singaporeans, the acceptance of prenuptial agreements should be extended to cover Singapore law governed prenuptial agreements in marriages involving Singaporean parties who have married in Singapore.

English law, like Singapore law, does not typically recognise prenuptial agreements. But last year,in a landmark decision, British courts upheld a prenuptial agreement made between a German heiress and a French banker who married in London (see HERE).

There is indication that reforms will be made in the near future to formally recognise the legality of prenuptial agreements under English law, in line with Scottish law which already recognises it. Many countries around the world from China to the US to the Philippines and virtually all of Europe recognise the validity of prenuptial agreements (see HERE). 

In view of the possible increase in marriages and divorces as highlighted above, it would make sense to officially recognise the legality of prenuptial agreements in Singapore. Prenuptial agreements would reduce the stress caused by protracted divorce proceedings where substantial assets are involved. It would also reduce legal fees and protect the assets of the richer party who may have unwittingly entered into a marriage with someone motivated solely by their wealth.