updated 12 Apr 2011, 14:08
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Tue, Apr 12, 2011
New Straits Times
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I do, but sign here first
by Audrey Vijaindren

WHILE some soon-to-be-wed couples believe that they can live on love and fresh air, many others are choosing to enter wedlock with both eyes open, lawyers by their sides and prenuptial agreements (PNAs) in hand.

Although PNAs have been popular in the West for many decades, Malaysians are slowly following suit - for better or worse.

But PNAs are not binding in Malaysian courts and may only act as an aid in our legal system.

"These days, everyone talks about it because it makes them feel safe. Many successful single women in their 30s don't want to get into a marriage that doesn't provide some sort of security.

"However, PNAs may just give couples a false sense of security because the courts have the last say. Whatever the agreement, the law is there and it will prevail," said senior family law practitioner, Pushpa Ratnam.

Pushpa said a PNA at best may only act as an aid for the judge.

"The judge may want to take into consideration the intentions of the parties when they entered into the agreement, especially if the marriage is a short-lived one.

"The practice is that the PNA is not binding in court. This is in line with English Law, where it looks at the conduct between parties -- if it's unequal, for instance in terms of financial standing and status, then the courts disregard the prenuptial.

"However, people are beginning to question why an agreement drawn up between two consenting adults should not be accepted.

"Their perception is that if two people knowingly and willfully enter into an agreement with each other, why should anyone else, including the courts, change that?"

She said it would cost couples between RM5,000 (S$2,092) and RM10,000 to draw up a PNA.

A prenuptial is an agreement entered into by a couple who are intending to marry. It sets out how assets will be divided should the marriage subsequently come to an end.

In most instances, it states how property, lump sum payments, and maintenance are to be distributed. Parties can also decide on the duration of the agreement.

"Usually both parties are more than willing to compromise when they get into a marriage, but when things turn sour, there's a lot of bitterness, rage and resentment.

"A PNA can pacify and put things into perspective, because it's drawn up before any of these ill feelings come into play.

"Unfortunately, PNAs have not been tested in our courts often enough and hence at best it would be an aiding tool for the courts to decide on issues of assets and monies.

"What's even more mind boggling is that one can enter into a PNA in Malaysia, but there's no provision for it. It doesn't really make much sense," Pushpa added.

In Western countries, there have been instances where such agreements are upheld in the courts.

In the case of K v K (2003), the wife was awarded a lump sum of STG120,000 following a PNA, although the husband had assets amounting to STG25 million.

The wife argued that the PNA should not stand because her ex-husband's assets had increased significantly, and she sought STG1.6 million lump sum and STG57,000 per annum in maintenance. However, the courts ruled against her claim.

Not known to many is that there are other forms of marital agreements that protect the interests of both parties.

"In Malaysia, another form of marital agreement is a 'maintenance agreement' and a 'deed of separation', in which both parties agree on terms amicably.

"It's popular among people who do not wish to divorce at all, perhaps for religious reasons.

"However, one can argue that even a 'deed of separation' should be decided within the family law ambit and should not be used to one party's advantage," she added.

A deed of separation is a written document drawn up by parties to a marriage that have decided to separate and live apart but still want to maintain their marriage, and do not wish to use the courts to rule on their terms of settlement.

These agreements may bind the parties and the court may take into account the agreed terms to determine how to distribute assets and monies.

Pushpa conceded, however, that many Malaysians viewed PNAs with suspicion due to cultural values.

"Culturally, we don't want to get into a marriage with preconceived negative thoughts, it's almost like cursing it.

"But you don't have to look at it negatively. You can also look at PNAs in a positive way, in terms of providing for each other and being a guide for any unexpected breakdown in the marriage."

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