Singapore Prenuptial Agreements

The Singapore Court of Appeal has rendered a weighty and well-reasoned decision on the enforceability of prenuptial agreements in the case of TQ v TR, [2009] SGCA 6 (Feb. 3, 2009).

The opinion is especially important for its analysis of the (substantial) weight to be given in Singapore to foreign prenuptial agreements as compared to prenuptial agreements entered into in Singapore.

Traditionally Singapore has followed the English rule that prenuptial agreements are unenforceable and, as in England, that ancient and much discredited rule has given way to a principle that prenuptial agreements may be considered in a court’s determination of what is a fair result, along with a host of other factors.

The Singapore Court of Appeal now holds that it will normally enforce foreign prenuptial agreements.

The Singapore 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 determined that the Singapore courts should 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 (Paras. 87 and 88 of the opinion) 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.”


It is also important to note that the court confirmed that the validity of a prenuptial agreement should be governed by its “proper” law, as with any other contract.

The proper law is to be determined by (in order of descending priority): (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.

Singapore Ruling on Marital Agreements

We have previously reported that Singapore Court of Appeal has held that it will normally enforce prenuptial agreements or other marital agreements, at least if they were entered into in a foreign jurisdiction under whose law they are valid. The Court determined in the case of TQ v TR, [2009] SGCA 6 (Feb. 3, 2009) that the Singapore courts should 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.

Now, in AFS v AFU, [2011] SGHC 52 (7 March 2011), the Singapore High Court has followed the ruling in TQ v TR but has refused to enforce a Deed of Separation entered into in Singapore on the ground that the husband had violated an obligation to make full disclosure of his assets and expectancies before the parties had signed the Deed.

One year after the Deed was executed the husband’s company granted him a stock option of great value. The Court determined that the husband had had an expectancy of receiving the stock option prior to the date of the deed and that he had failed to disclose it to his wife.

The Court explained that the decision in TQ v TR held that an agreement between parties “cannot be enforced in and of itself”. The terms of an agreement would only constitute one of the factors that the court should take into account in arriving at its decision as to the proportions in which the matrimonial assets concerned are to be distributed. Even if prima facie the court would not lightly set aside an agreement between parties, the court has liberty to decide that an agreement ought not to apply if the court does not consider it just and equitable.

Applying those considerations the Court awarded the wife 25% of the value of the undisclosed assets.

Thus, the rule in Singapore is that financial agreements between spouses (or spouses-to-be), while they might be afforded decisive weight in appropriate circumstances, are always subject to judicial scrutiny. Section 112 of the Singapore Women’s Charter requires the Singapore courts to order the division of matrimonial assets “in such proportions as the court thinks just and equitable”. Thus, although financial agreements are most significant there are not mechanically enforceable in Singapore.

It also seems most likely that the Singapore courts will be influenced significantly by cases to be handed down in England under the authority of the English Supreme Court case of Radmacher.