CONTRACTS made before marriage regarding a couple's assets, maintenance and the custody and care of children will be considered by the courts in a divorce but not automatically upheld, Singapore's highest court said yesterday.

The Court of Appeal's landmark decision means that while a prenuptial agreement will not be enforced automatically, the courts will also not reject them outright.

Instead they will take into account the terms of such agreements in coming to a decision about matters stemming from a divorce.

The court's ruling brings to an end the uncertainty in legal circles over whether "prenups" are enforceable in Singapore.

In Singapore, divorces are governed by the Women's Charter first, which seeks to protect the more vulnerable parties in a split.

The rules and principles to apply to such agreements were laid out in a 30-page written judgment by Judge of Appeal Andrew Phang, delivering the decision of the three-judge appeal court.

The court indicated that it is less inclined to give weight to agreements regarding maintenance of the wife and children as well as custody, care and control of children.

The bar is set lower for agreements about the division of matrimonial assets.

The judgment set out why the appeal court had, in January last year, agreed with a lower court that the matrimonial assets of a foreign couple who divorced here would not be divided.

But while the lower court had upheld the couple's prenuptial agreement, which said there would be no common assets in the marriage, the Court of Appeal took a different approach in arriving at the same result.

In this case, the prenuptial agreement was given the greatest weight, as the couple were foreigners and had made the agreement under the laws of a different country.

They had got married thinking their agreement was valid and binding.

"It would, in our view, neither be fair nor equitable for the wife to now ask the court to allow her to evade her responsibilities under the agreement," said Justice Phang.

In fact, the decision was academic since the husband had stated that he had no assets.

But Justice Phang said the case had raised an issue of public importance about whether prenups are enforceable in general.

In the court's decision, he set out three categories of agreements: Prenups relating to the maintenance of the wife and/or children.

In such agreements, the court will make sure that the terms are just and fair in providing adequate maintenance.

It will be vigilant to see that they are in the best interests of the child. Prenups relating to the custody, care and control of the children.

Such agreements are not enforceable unless they are shown to be in the best interests of the child. Prenups about the division of matrimonial assets.

In such cases, the court will look at all the circumstances, including the prenuptial agreement, and decide how much weight to give it in ordering a division of assets that is "just and equitable".

Ultimately, all prenuptial agreements should be subject to the close scrutiny of the court, said Justice Phang.

Lawyer Quek Mong Hua, who acted for the man in this case, told The Straits Times: "Until this case, it was uncertain what was the judicial attitude towards such agreements.

"This decision has clarified that the court is prepared to give prenuptial agreements due consideration, depending on the circumstances and reasonableness of the terms."

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The above article was first published in The Straits Times.