The Singapore Court of Appeal, in the case of QT vs. TR [2009] SGCA 6, has decisively decided on the enforceability of foreign prenuptial contracts.
In the past, Singapore followed the English rule that prenuptial agreements are generally unenforceable. However, more recent developments in both England and Singapore have held that this rule is out of date and should give way to a principle that prenuptial agreements may be considered, as part of all the circumstances in a case, in determining of a court of what is just and equitable.
Singapore’s Court of Appeal now holds that it will normally enforce foreign prenuptial agreements.
The aforementioned case concerns a prenuptial agreement between a Dutch husband and a Swedish wife that was concluded in the Netherlands. In particular, this agreement was prepared by a Dutch civil law notary in the Netherlands. The agreement provided, among other things, that “[t]here there will be no community of matrimonial property between the spouses” and that “[t]The matrimonial property regime in force between them shall be governed by Dutch law.”
The Court of Appeal held that local courts should give “significant (even critical) weight” to the terms of a prenuptial agreement governed by and valid under foreign law, unless its terms violate public policy of Singapore.
It is also important to note that the court confirmed that the validity of a prenup must be governed by its “proper” law, just like any other contract. The validity of the Agreement therefore depends on its status under Dutch law in the present case.
Proper law will be determined by (in descending order of priority):
(a) the express choice of the parties;
(b) the implied choice of the parties; and
c) in the absence of express or tacit choice of law, finding out the legal system with which the agreement has the closest and most real connection, which is presumed to be the law of the marital home unless opposed.
Ultimately, there is no general rule that a prenuptial agreement should be executed to exclusion in light of all the relevant circumstances before the court. The aim of the court is (in accordance with Article 112(1) of the Women’s Charter) to arrive at a division of the matrimonial property that is both fair and equitable between the parties.
Is a Prenuptial Agreement necessary??
Prenuptial agreements can be an option for both parties to agree if executed correctly by the experts. Therefore, it is best to start by talking to a lawyer. Only you and your partner can decide, but it pays to do your research and learn about all your options, especially when your finances and more are at stake.