Should You Get a Post-Nuptial Agreement?

You might think that a post-nuptial agreement is a bit like closing the stable door after the horse has bolted, but a post-nuptial agreement can have relevance, and is a valid arrangement in Singapore. Perhaps the more burning question is whether a post-nuptial agreement is enforceable should you need to rely on it. More on that later.

There are lots of scenarios that may make a post-nuptial agreement worth having; some of these may be predictable, but others could be unforeseen. The object of a post-nuptial agreement is to make it easier for a couple, and any children of the marriage, to dismantle their financial and practical arrangements if the marriage ends.

Are post-nuptial agreements relevant?

Most people think of nuptial agreements in a pre-wedding context, not after the event, but post-nuptial contracts do have a place. In cases of divorce or separation, a post-nuptial agreement can make the process from married to sole living much smoother.

A post-nuptial agreement usually sets out what will happen if one of the parties dies, the couple separates, or gets divorced. Whilst a couple may have made a will (or they might not), this is only one event that could end the marriage and doesn’t cover all possible scenarios that could cause the marriage to fail. Sometimes, a post-nuptial agreement can be prompted by a specific event after the marriage.

Is there a timeline after marriage for a post-nuptial agreement?

Post-nuptial agreements can be entered into at any time after the wedding; there is no restriction on when this happens, and sometimes it happens years later. A post-nuptial agreement is flexible and usually narrates what will happen if certain events occur. Depending on the point a couple is at in their marriage, a post-nuptial agreement can reflect a vast range of potential scenarios, but mostly, there are three main classifications.

The honeymoon period

A post-nuptial agreement can be created in the weeks and months after the marriage, and deals with issues very similar to those of a pre-nuptial agreement; what will happen if the marriage breaks down? There may be no indication that it will likely occur at this stage. Couples tend to view post-nuptial agreements as an insurance rather than reality. It will cover finances and how to split property, assets, and it will look very similar to a pre-nuptial agreement.

Pre-separation and post-separation

Sometimes, post-nuptial agreements are written during the early stages of a separation. They provide ground rules should that separation become permanent. Some couples separate and don’t want to divorce. The problem with a non-divorce situation where assets must be split and allocated is that there is no formal regulation over finances and property. A post-nuptial agreement in this situation also lays the foundation for divorce should that happen further down the line.

A post-nuptial agreement is an excellent way to broker a stable landscape in a relationship separation and minimise the fallout on any children. It is designed to facilitate clarity and keep things amicable if possible. It provides a helpful bridge into a post-marriage world of managing money and assets as an individual. Even if there is a pre-nuptial agreement, this may not have anticipated the arrival of children or other life-changing events, which create a very different landscape.

What happens if divorce is looming?

At this point in the marriage, if the couple is sure that there is nothing to salvage and no way back, then a post-nuptial agreement can either be used as a template for the impending divorce settlement, or to manage ancillary matters after the main consent order. If issues are contentious, it can be helpful to use a post-nuptial agreement to take the sting out of the situation, and perhaps resolve some of the more day-to-day matters via mediation as part of the divorce process; this is less adversarial than going to court.

In this situation, a post-nuptial agreement would include the parties’ agreement on how to divide the assets and arrangements for custody, care and control, plus access for the children of the marriage.

The difference between a post-nuptial agreement and a deed of separation

Two key differences exist between a post-nuptial agreement and a Deed of Separation. First, a Deed of Separation is a binding legal document; in contrast, a post-nuptial agreement is not necessarily enforceable, and can be challenged by either party to the marriage in court.

The other essential distinction is that a Deed of Separation is only used during a separation. In contrast, a post-nuptial agreement can be created when the marriage is going well, and no icebergs are on the horizon.

Post-nuptial agreements vs. wills

Both a will and a post-nuptial agreement can cover what happens to certain things if a spouse dies. However, a post-nuptial agreement can only reference the spouse and the marriage, whereas a will may include other family members as beneficiaries.

Are post-nuptial agreements valid in Singapore?

Post-nuptial agreements are valid in Singapore; however, because they are not orders of court (like a Deed of Separation), they cannot always be relied upon to be enforceable. If a married couple disputes the validity and enforceability of a post-nuptial agreement, the court will have the final say.

The best way to view a post-nuptial agreement is like any other contract. It must be consensual and formed correctly. Like a commercial contract, it could be invalidated if there was undue influence, duress, mistake, or misrepresentation. Even with everything correctly in place, the court can still choose not to enforce a post-nuptial agreement if it doesn’t comply with the provisions of the Women’s Charter.

The key areas that may be contravening the Women’s Charter are things such as maintenance. For instance, a post-nuptial agreement that states a wife cannot apply for maintenance from her husband post-divorce would be unenforceable, as it is in direct contravention of Section 113 of the Women’s Charter. Section 112(2) of the Women’s Charter also requires the court to consider the content of pre- and post-nuptial agreements regarding the division of matrimonial assets. If one or two clauses of the agreement contravene the Women’s Charter, it doesn’t mean the whole agreement is invalid; a court can choose to ignore or override those specific terms.

Children and post-nuptial agreements

Post-nuptial agreements are usually the province of the parties to the marriage, but later agreements may refer to custody arrangements for children in the event of separation or divorce. A court will always put the best interests of any children first and override or disregard any terms in a post-nuptial agreement that would contradict that position.

Is it worth getting a post-nuptial agreement?

Yes, even if you have a pre-nuptial agreement, it could be several years old, and your marital situation might differ. Perhaps you have had children or a significant job or lifestyle change. A post-nuptial agreement is designed to supersede a pre-nuptial agreement, and you can have more than one post-nuptial agreement.

Post-nuptial agreements can reflect a current or recent situation, and specific events other than death, which your will should cover. For this reason, the courts place more weight on a post-nuptial agreement because it is more likely to reflect a couple’s most recent wishes accurately. A post-nuptial agreement will also ultimately reflect the reality of marriage with all its commitments and responsibilities rather than the pre-view of marriage contained in a pre-nuptial agreement.

If the pre- and post-nuptial terms conflict, the court is more likely to attribute more weight to a post-nuptial agreement than a pre-nuptial agreement.

Parties can include any terms they want in a post-nuptial agreement, but anything that is not broadly in line with established family law will likely be overruled and not enforced by any court. The most common terms are how property and assets will be divided in the event of divorce, whether maintenance is payable – how much, and for how long – and the care, custody, and control of any children. Whilst the core of these issues may remain unchanged for years, their substance may alter as children grow up and properties and assets change.

So, the real question is, should you get a post-nuptial agreement? And the answer to this is that it depends on the couple.

A post-nuptial agreement must be consensual, so forcing it when the other party is not keen can create a problem.

There is no template for a post-nuptial agreement; couples can arrange what they like, but the final document should be accurate and genuinely reflect everyone’s wishes. If you opt for a post-nuptial agreement, remember that it may need updating after a few years to reflect changes in your domestic circumstances.

The final thing to consider is that a post-nuptial agreement can be a double-edged sword. It might not be enforceable in court; it seems odd to write something you may not be able to rely on, so to minimise this risk, it may be better to ask a family lawyer to write it for you.

Should you require legal representation, kindly contact PKWA Law for a free first consultation with one of our lawyers.

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Dorothy Tan

Deputy Head, Family & Divorce Practice Group

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